Right to a healthy environment recognized in new amendments to Canadian Environmental Protection Act

On April 13 the Government of Canada announced proposed amendments to the Canadian Environmental Protection Act, 1999 (CEPA), the cornerstone of federal environmental laws. Bill C-28 Strengthening Environmental Protection for a Healthier Canada Act promises to fast-track the regulatory process for particularly harmful chemicals; encourage companies to avoid toxic chemicals entirely and to phase-in mandatory product labelling , beginning with cosmetics, household cleaning products and flame retardants in upholstery. The Act also recognizes and protects the right of Canadians to a healthy environment. 

The government press release is here; and a  Backgrounder and Plain language summary of key amendments is provided. In addition, the government’s talking points about the CEPA amendments are highlighted in an Opinion piece by John Wilkinson, Canada’s Minister of the Environment and Climate Change, in The National Observer.  The amendments are the culmination of a long process, including hearings by the House Standing Committee on the Environment and Sustainable Development, which received 66 submissions. The Standing Committee report, Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999 made 89 recommendations when it was released in 2017. A summary appeared in the WCR here.  

Right to Healthy Environment proposals

Is a healthy environment a right? New CEPA bill says so”, in The National Observer (April 14, re-posted in The Toronto Star) quotes Joe Castrilli, legal counsel for the Canadian Environmental Law Association.  He states: “This bill does not create a right to a healthy environment” …. “There’s a preamble provision which says the government recognizes that … it has the duty to protect the right to a healthy environment. But it doesn’t actually create a remedy for any individual seeking to protect the environment.”

A Joint statement released by the Canadian Association of Physicians for the Environment (CAPE) Breast Cancer Action Quebec , EcoJustice, the David Suzuki Foundation, and Environmental Defence acknowledges the importance of Bill C-28, points out some weaknesses, and alludes to the debates which clearly lies ahead. From the Joint Statement :  

“Bill C-28 includes amendments to CEPA recognizing – for the first time in federal law – the right to a healthy environment . 156 UN member states already recognize this right in law, treaties and constitutions. The recognition of a right to a healthy environment in CEPA is an important step forward. However, the bill should ensure that this right has a positive impact on the lives of everyone in Canada, especially vulnerable populations who have long been denied environmental justice and disproportionately experience cumulative impacts of multiple interacting hazards. ….Bill C-28 is important as we continue to face the COVID-19 pandemic. A strengthened CEPA will be the backbone of a green and just recovery. ….All political parties must now make Bill C-28 a political priority.”

The Right to a Healthy Environment: even more is required to address environmental racism

The environmental rights and protections in Bill C-28 on April 13 come on the heels of private member’s Bill C-230, A National Strategy to Redress Environmental Racism (Bill C-230) , which was debated and passed 2nd Reading on March 24. C-230 will now come before the House Standing Committee on Environment and Sustainable Development, with the first meeting scheduled for April 14. C-230 goes further than the CEPA amendments regarding on environmental justice, and calls for the the government to

  • Examine the link between race, socio-economic status and environmental risk
  • Collect information and statistics relating to the location of environmental hazards
  • Collect information and statistics relating to negative health outcomes in communities that have been affected by environmental racism
  • Assess the administration and enforcement of environmental laws in each province

In addition, it calls for possible amendments to federal laws, policies, and programs, with the involvement of community groups, and with compensation for individuals or communities. A new article (published before the House of Commons vote) appears in Our Times in “Here for all Seasons: A Coalition to Confront Environmental Racism ”  (Feb. 21 2021). It describes some of those community and advocacy groups fighting on this issue, including the Coalition of Black Trade Unionists (CBTU). The Labour Day 2020 issue of Our Times, summarized here, describes the role of labour unions in the struggle against environmental racism – in which CBTU has been prominent.

Ford government sued by Greenpeace for cancellation of cap and trade without consultation

Doug FordUpdated September 11:

On September 11, CBC News broke the news that “Greenpeace suing Ontario government over cancellation of cap-and-trade program” The lawsuit was filed  in Ontario Superior Court by EcoJustice and the University of Ottawa’s Ecojustice Environmental Law Clinic.  It asks the Court to quash the legislation, on the grounds that the Conservative government “unlawfully failed” to hold public consultations before cancelling  the program, as required by Ontario’s Environmental Bill of Rights. An expedited hearing on the matter has been granted and scheduled for September 21.  The EcoJustice press release of September 11 is here .

At issue is Bill 4, The Cap and Trade Cancellation Act, 2018 , introduced in July to honour a campaign pledge to repeal Ontario’s cap and trade program, authorized through the Climate Change Mitigation and Low-carbon Economy Act, 2016  of the previous Wynne government.  Yet as the National Observer  reported on August  15, “Ontario legislature adjourns without adopting Ford government bill to cancel cap and trade” .  The article also compiles expert opinion and reaction to the move, and notes  that the government will be expected to propose new greenhouse gas emissions reduction targets when the Ontario legislature returns for its fall sitting on Sept. 24.

In “Ford government does U-turn, expands electric vehicle rebates for Tesla buyers”  (Aug. 31), CBC reports on another Court case involving the rookie Ford government.  The Court ruled against the government and in favour of  Tesla, which had claimed that it had been discriminated against when the government discontinued electric and hybrid vehicle sales incentives.   The CBC quotes Sara Singh, an Ontario NDP MP, who stated in August:  “This is likely only the first of many decisions against the Ford government’s decision to rip up hundreds of cap-and-trade and green energy contracts.” The Huffington Post compiled a list the legal actions against the government, on a variety of fronts, on Sept. 5.

Others who have weighed in on Ford’s climate and energy policies: Climate Action Network, along with 37 signatories,  sent an Open Letter to Premier Ford  on August 8.  It documents the heat and fire emergencies throughout the province in the summer of 2018, and calls for a public commitment, along with a detailed plan,  to achieve Ontario’s existing legislated emissions reduction goals.  Environmental Defence maintains an online petition calling for similar action.

Regarding Ford’s cuts to renewable energy programs: A widely-cited article appeared in Forbes magazine: “Ontario’s Economic Investment Outlook Dims With New Government Energy Actions”  (Aug. 13)   (and was re-posted by the Pembina Institute )  stating:  “In one fell swoop Ontario’s government has dramatically slashed a source of funding for clean transportation infrastructure to help consumers lower travel costs, erased hundreds of clean energy projects to help consumers reduce electricity costs, dimmed the prospects for jobs and economic growth from clean tech industries, and took a major step backwards in making the province an attractive climate for business and investment today – and into the future.”

Proposed Environmental Bill of Rights includes whistleblowing protection for Alberta workers

Capping a series of related reports on the topic , the Alberta Environment Law Centre published  Environmental Rights in Alberta: An annotated Environmental Bill of Rights for Alberta  in March. The report consists  of model provisions for a statute, along with annotations providing background information.  Amongst the proposed provisions  is protection from reprisals for employees (Whistleblower protection) – which would expand protection from reprisals beyond the existing Alberta legislation, the Public Interest Disclosure (Whistleblower) Protection Act,  which protects government employees only.

To encourage broad public  participation on environmental issues, the report also addresses the issue of Strategic lawsuits against public participation (SLAPP suits) –  “A SLAPP suit is a claim for monetary damages against individuals who have dealt with a government body on an issue of public interest or concern. It is a meritless action filed by a plaintiff whose primary goal is not to win the case but rather to silence or intimidate citizens who have participated in proceedings regarding public policy or public decision making.”

boyd cover the rights of natureFrom the introduction:  “It should be noted at the outset that the Environmental Law Centre drew greatly from David Boyd’s enormous academic contributions in this area. In particular, his article Elements of an Effective Environmental Bill of Rights was an invaluable resource in designing our model EBR” .  Boyd’s most recent book is  The Rights of Nature: A Legal Revolution that Could Save the World (Toronto: 2017, ECW Press).

The Women’s March was a huge success. Next up – Sustained Resistance

toronto women's march jan 2017.jpgUnionists were among the hundreds of thousands of Canadians who joined in the Sister Marches for the Women’s March in Washington on January 21, 2017 .  The Canadian Labour Congress statement of “Why we March” is here  .  Unifor’s President Jerry Dias  endorsed the March and called for a “united mobilization effort” against the Trump agenda.  The March was an undeniable success,  and the Washington organizers, quoted in a Globe and Mail report,  recognized:   “This is more than a single day of action, this is the beginning of a movement – to protect, defend and advance human rights, even in the face of adversity. ”

Jeremy Brecher of Labor Network for Sustainability tackles this issue for U.S.  labour unions in “How Labor and Climate united can trump Trump” . After cataloguing some of the worst threats under a Trump administration , he calls  for “an alliance of unions and allies willing to fight the whole Trump agenda”  and states: “Such a “big tent” needs to include unions that are not part of the AFL-CIO, such as SEIU, Teamsters, and National Education Association. Some unions may choose not to join because they are unwilling to take a forthright stand against the Trump agenda; it would be both absurd and catastrophic for that to prevent the rest of the labor movement and its allies from taking on a fight that is about the very right of unions to exist.”

The United Resistance, led by the  NAACP, Greenpeace USA, and the Service Employees International Union, is chief among these new alliances, pledging to “stand together”  on the issues of civil rights, immigrants, women’s reproductive rights, social equality, action on climate change, public health and safety, public dissent, and access to information. Their inspirational video is here , as well as a list of the alliance members. The AFL-CIO is not listed as a member of the United Resistance, though their recent blogs oppose Trump’s nominees, and they promoted the Women’s March.   For more about the United Resistance, see  “More than 50 Organizations Launch United Resistance Campaign as Trump’s Cabinet Hearings Begin”  in Common Dreams (Jan.10).

In a second article , SOCIAL SELF-DEFENSE: Protecting People and Planet against Trump and Trumpism ,  Jeremy Brecher borrows a term from the Solidarity movement in Poland 40 years ago, and takes a larger, more global focus.  He writes that “Social Self Defense includes the protection of the human rights of all people; protection of the conditions of our earth and its climate that make our life possible; the constitutional principle that government must be accountable to law; and global cooperation to provide a secure future for people.”  “Social Self-Defense is not an organization – it is a set of practices to be engaged in by myriad organizations, hopefully in close coordination with each other.”  Although the article highlights a number of examples, such as the growing Sanctuary movement in the U.S.,  and case studies of alliances, including  Vermont Labor Council Initiates Social Self-Defense ,  the overriding impact is to emphasize the scale of the task: “These actions appear to be on the way to being the greatest outpouring of civil resistance in American history.”

Environmental Rights in Alberta and in Canada: do we have the rights we need? A legal discussion and some practical examples

In December 2016, the Environmental Law Centre in  Alberta  published a series of reports to review the current state of environmental rights in the province, drawing on examples and information from other jurisdictions.  These reports are intended as educational materials;  the website  is open for comments and input.  The first report,    Do we have the rights we need? , identifies deficiencies:   “Narrow standing tests for legal reviews and hearings; gaps and insufficiency in cost awards to support participation and informed decision making; failures to adequately recognize and manage cumulative environmental effects;  insufficient review or hearing options for policies, regulation and administration of environmental decision making; and insufficient tools for engaging public participation in enforcement.”

While most Environmental Rights discussions are about procedures for establishing and enforcing rights, the report Substantive Environmental Rights relates to the right to a specific environmental condition, such as a “healthy”, “healthful” or “clean” environment.  This report discusses definitions, which can be set in statutes or regulations.  The report includes a helpful comparative table of language from other Canadian jurisdictions.

Third Party Oversight and Environmental Rights reviews and analyzes the use of administrative third party oversight bodies in various frameworks and other jurisdictions. The report makes recommendations for the design of a third party environmental oversight system for Alberta, where currently the provincial Auditor General does not have a specific environmental mandate, but conducts financial audits or process/system audits of various environmental matters.

The latest report, published on December 19,  Citizen Enforcement considers the question of who can enforce environmental laws and what types of enforcement mechanisms are available to them – in Alberta, but also Ontario, Quebec, Yukon Territory, the Northwest Territories and Nunavut, and the U.S.    The  report concludes that citizen enforcement  in Alberta relies primarily on the use of private prosecutions and the ability to request an investigation of an alleged violation, and  recommends additional citizen-based enforcement tools to bolster  enforcement capacity and to ensure accountability.

As for practical examples of the need for citizen involvement in environmental assessments and decision-making, Canadians need look no further than the federal government’s  current review of the Environmental Assessment Processes .  “EA Review – Report back from a public workshop” at Evidence for Democracy describes one person’s experience at the Environmental Assessment public consultations and summarizes the main concerns of attendees – including the need for transparency, community and traditional knowledge, and open and independent science.  In two recent articles in DeSmog Blog,  scientists describe how their input has been ignored in past environmental assessments and decisions, including the TransMountain pipeline expansion decision.  Read  “Canadian Scientists Say They’re Unsure What Trudeau Means When He Says ‘Science’ ”  (Dec. 15)  and “Open Science: Can Canada Turn the Tide on Transparency in Decision-Making?”  (Dec. 20) .  Yet there is an eagerness amongst young Canadian scientists to become involved;  an Open Letter  to the Prime Minister in November, signed by 1,800 young scientists and researchers, calls on the government to return scientific integrity to the environmental assessment process, and outlines five ways to do that, including the use of best available evidence, making information and data available to the public, evaluating cumulative impacts of projects and eliminating conflicts of interest. See “Five Ways to Fix Environmental Reviews: Young Scientists to Trudeau” in DeSmog Blog (Nov. 15 2016) .

The Youth of Norway are suing for their constitutional climate rights

The government of Norway and thirteen oil companies are being sued  by Greenpeace International and a Norwegian youth alliance called Nature and Youth, who are challenging the government’s decision to allow oil exploration in the Barents Sea.  The suit argues that further oil exploration violates  threatens Norway’s commitments under the Paris Climate Agreement and violates the constitutional right to a healthy and safe environment for future generations.  Two  Greenpeace blogs emphasize that this is meant to be an historic case, protecting the final frontier of the Arctic, and also exercising the  people-power of a new generation stepping up to hold governments accountable to their climate promises. Read “This is the People vs. Arctic Oil”  and  “Why we are taking Arctic Oil to Court” , which appeals to the global community for support.  (Note: the Greenpeace Canada also maintains an Arctic campaign  but the website doesn’t reflect the Norwegian case yet).   An article in Common Dreams,    “Norwegian Youth Taking Government to Court Over ‘Unconstitutional’ Arctic Drilling”   explains the case fully and makes the links with the U.S. case brought by James Hansen and  Our Children’s Trust  .  The groundbreaking federal lawsuit by Our Children’s Trust, having been challenged repeatedly by the fossil fuel industry,  is under review by a U.S. District Court Judge, who heard oral arguments on September 13 . A decision is expected by  mid-November, at which time the case will head to trial, or go to appeal.  Our Children’s Trust is the subject of an October article in Fusion: “Generational Injustice:  Inside the Legal Movement  suing for Climate Justice Now”   .

International Criminal Court expands its priorities to include cases of environmental destruction

The International Criminal Court in The Hague, normally associated with war crimes of violence, on September 15  issued a new Policy Paper  which expands the terms of its case selection and prioritization  to include cases relating to “the destruction of the environment and the illegal exploitation of natural resources or the illegal dispossession of land.”  The Guardian summarized developments on September 15:  “ ICC widens remit to include environmental destruction cases” in The Guardian (Sept. 15) , and Global Witness issued a press release: “Company executives could now be tried for land grabs and environmental destruction”. The policy change comes as the  Prosecutor of the ICC considers whether to investigate a 2014 case filing that catalogues mass human rights abuses linked to systematic land seizures in Cambodia.  Global Witness, an advocacy group, published On Dangerous Ground in  June 2016,  documenting the extent of the problem:   “More than three people were killed a week in 2015 defending their land, forests and rivers against destructive industries. … we documented 185 killings across 16 countries – by far the highest annual death toll on record and more than double the number of journalists killed in the same period.”

berta-caceres-770x4702015 was also the year of the murder of Berta Cáceres,  the 2015 Goldman Environmental Prize-winner for her decade-long opposition to the Agua Zarca hydroelectric dam on her community’s land in Honduras.

Climate Justice through Litigation: What will be the impact of the Paris Agreement?

Climate Justice:  The International Momentum towards Climate Litigation   offers a unique discussion of the intersection of climate litigation and climate negotiations, and whether the Paris Agreement will contribute to a growth in climate litigation. It also provides an up to date summary of past and current cases of climate litigation against companies and governments – focusing on the various grounds of human rights to a clean environment, liability for climate-change induced damages, climate refugees, and corporate deception in the U.S., Netherlands, Pakistan, Peru, the Philippines,  and New Zealand.  It examines past litigation in other sectors, including tobacco, asbestos and oil spills. Amongst the recommendations: the fossil fuel industry be removed from the climate negotiations process and banned  from having a role or voice in setting climate change policy;  introduce a levy on fossil fuel producers to partly fund the International Mechanism for Loss and Damage, which would  provide compensation for  individuals and communities.  Another recent but much briefer note, “Courts take on Climate Change” , published in Nature Climate Change in June, addresses the issue of liability and quotes Andrew Gage, Staff Counsel at West Coast Environmental Law , who asks, “Can you really have a business model that costs the world trillions of dollars a year and not have a conversation about who should be paying for that?” … “The question is, can such litigation play a role in accelerating the transition away from fossil fuels or is it only going to be bickering over who pays for the major damages we’re experiencing?” An example of such bickering is chronicled in a June 7 article in the New York Times, “Regulators Fear $1 Billion Coal Cleanup Bill” .

And who will be the lawyers who argue these cases?  Tom Lininger, a professor at the University of Oregon School of Law, proposes  a series of “green ethics” amendments to the American Bar Association rules in his paper  “Green Ethics for Lawyers” in the  Boston College Law Review .

Note that the Adapting Canadian Work and Workplaces to Climate Change (ACW) website recently  posted the 2015 presentation by Roger Cox, lead lawyer in the landmark Urgenda case.  See The Urgenda Climate Case and its Consequences  .  

Manitoba introduces Environmental Rights Act with Whistleblower rights

On March 2, 2016,  the Government of Manitoba introduced Bill 20, the Environmental Rights Act  , summarized at the Environmental Law Centre ( Alberta) blog .  The Act incorporates fundamental environmental law principles:  precautionary principle; polluter pays principle; principle of sustainable development; principle of intergenerational equity; and principle of environmental justice.  The Bill also includes  Employee Protection from Reprisals, which states that  “An employee who uses a measure set out in the Bill to protect the environment is protected from any reprisal from their employer. ”

Update:  The EcoJustice  blog, A Tale of Two Provinces highlights the many strengths of the Manitoba legislation, and compares the reforms with  Ontario’s  Environmental Bill of Rights.  However, with the election call in Manitoba, Bill 20 died on the Order Paper.  The Manitoba election will take place on April 19 – see CBC coverage here.