Ryan Chawner, Law Student
I joined CELA in September 2019 as a pro bono student through Osgoode Hall’s Environmental Justice and Sustainability Clinic and received an Osgoode Summer Internship to continue working with CELA. My work has focused on law reform efforts in connection with the Canadian Environmental Protection Act, 1999 (CEPA), namely the intersection of toxic substances and environmental rights.
The right to a healthy environment is recognized by over 150 countries. Canada is not one of them. Recognition of this right would be a significant achievement. In 2017, the House of Commons Standing Committee on Environment and Sustainable Development issued a report with 87 recommendations for improving CEPA. The Committee recommended recognizing the right to a healthy environment in the preamble and adding the right to certain provisions of the Act. Canada, in response, did not accept these recommendations and, instead, committed to further study the implications of recognizing this right.
There is a large body of work on this issue already and there are significant environmental, social, and economic benefits to recognition of this right. CEPA is a significant piece of environmental legislation and recognition of the right to a healthy environment would have positive consequences, particularly for vulnerable Canadians.
Environmental Rights in Canada
There is precedent for recognizing environmental rights in Canada. Two provinces and three territories recognize such rights and offer guidance for CEPA.
Quebec’s Environmental Quality Act was the first law in Canada to recognize the right to a healthy environment in 1978. One downside to Quebec’s approach is that the rights are limited to the matters covered by the Act itself. Ontario’s Environmental Bill of Rights was enacted in 1993, expanding procedural and substantive rights with respect to Ontario residents concerning environmental decisions. While the Environmental Bill of Rights does have some drawbacks, it was likewise a noteworthy achievement. The Yukon Environmental Act provides broad environmental rights, which have been interpreted by courts in an expansive manner, with one noting the rights encourage full participation in environmental decisions.
While the prospect of environmental rights entrenched in a federal statute raises the spectre of constitutional (division of powers) concerns, even circumscribed rights, like those of Quebec, limited to regulatory decisions made under the authority of CEPA would have positive consequences due to the statute’s scope. Greenhouse gases, fuels, and toxic substances are some of the areas governed by CEPA. Recognizing a right to healthy environment in CEPA suggests Canada could increase protections around these substantive matters and strengthen existing mechanisms for participation and access to information.
Toxics and Environmental Rights
Everyday Canadians face exposures to hazardous substances from industrial sources and consumer products, with vulnerable populations and disadvantaged communities facing disproportionate levels of exposure.
Indigenous peoples in Ontario and Alberta face risks from surrounding petrochemical facilities. Cashiers face exposures to Bisphenol A – banned for use in plastic bottles domestically – through thermal paper receipts. Infants and children have lower susceptibilities than adults and may suffer adverse effects from exposures to substances such as lead, found in drinking water. Substances such as PFAS are used in a variety of consumer products – food packaging, non-stick cookware, carpets, and stain- and water-repellant furnishings and textiles, etc. – but Canada has been slow in regulating their replacement with safer alternatives. Data from the Commission for Environmental Cooperation shows that emissions of known or suspected carcinogens increased significantly over the period of 2013 – 2017 in Ontario.
In the face of these problems, there are concrete steps Canada can implement to protect vulnerable communities. The recognition of environmental rights in CEPA would have the potential to advance preventative action and better apply the precautionary principle to protect Canadians, especially the vulnerable, from exposures to toxic substances.
The Path Forward
Since the Committee report in 2017, CELA and other Canadian environmental groups have worked to include environmental rights in CEPA. In 2018, CELA, with the support of over 30 groups, proposed amendments to CEPA based on the environmental justice principle. This is the idea that environmental benefits and burdens should be equitably distributed. In law, there are two elements to environmental justice: non-discrimination and meaningful involvement of impacted communities. CELA’s amendments propose recognition of the right to a healthy environment, a rewritten environmental protection action authority, mandatory participation of vulnerable populations in assessments of toxic substances, and consideration of alternatives for toxic substances. Other groups have suggested that recognition of human rights be entrenched in CEPA, which is an approach consistent with that proposed by CELA.
The road to amend CEPA began in 2016. While we wait for Canada to introduce amendments to CEPA – something not expected until 2021 – there is much that can be done around environmental rights. It is important to let the federal government know that this is an issue that cannot be ignored. Now is the time to call or email your MP (find that information here) and encourage them to support environmental rights in CEPA. The conversation around environmental rights is growing and we need support to make those voices louder.