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.

The Lancet publishes a damning review of Trump’s legacy, including damage to occupational health and the environment

A special issue of the prestigious British journal The Lancet was released on February 11, titled Public policy and health in the Trump era, with an Editor’s introduction which captures the broad scope and tone:

“President Biden must contend with the continued COVID-19 pandemic and economic fallout in addition to Trump’s corrosive legacy. Each roll-back from regulation
and every retreat from global cooperation that defined the Trump era has become an action item on a daunting but crucial list: racism, income inequality, immigration
protection, universal health coverage, nutrition, the environment, workplace safety, reproductive rights, antiscience, and isolationism.”

Discussion of  “The environment, workplace, and global climate” starts on page 27, with a list of Trump’s regulatory rollbacks related to air pollution and emissions, and toxic chemicals and occupational hazards. It states that Trump used the Covid-19 pandemic as a “cover” for rollbacks, and comes to some shocking conclusions, based on official data:   “Between 2016 and 2019, the annual number of environmentally and occupationally related deaths increased by more than 22000, reversing 15 years of steady progress”,  and  “The Trump administration’s regulatory rollbacks have increased disease, injury, and death among workers in the USA. Its weakening of mine health and safety standards and mine enforcement programmes has led to increased injury deaths among workers employed in mining, quarrying, and oil and gas extraction .… and increased mortality from coal workers’ pneumoconiosis … Despite rising deaths from work-related silicosis, the administration terminated a silicosis prevention programme launched during the Obama era.”

The Report concludes with a long list of recommendations for Executive Action (which includes rejoining the Paris climate agreement) and for Legislative Action, including: “Implement the Green New Deal, end subsidies and tax breaks for fossil fuels, and ban coal mining and single-use plastics.”  The all- encompassing scope of the review is reflected in these concluding paragraphs:

“The path away from Trump’s politics of anger and despair cannot lead through past policies. President Biden must act for the people, not for the wealthy and the corporations they control. Resources to combat climate change, raise living standards, drop financial barriers to higher education and medical care, meet global aid responsibilities, and empower oppressed communities within the USA must come from taxes on the rich, and deep cuts in military spending…. For health care, overreliance on the private sector raises costs and distorts priorities, government must be a doer, not just a funder—eg, directly providing health coverage and engaging in drug development rather than paying private firms to carry out such functions.”

This report was authored by a Lancet Commission on Public Health and Policy in the Trump Era,  comprised of thirty-three experts from medical, public health and law schools, universities, Indigenous communities, clinical settings, public health agencies, unions, and legislative bodies, in the U.S., the U.K., and Canada. The Commission website states: “Convened shortly after President Trump’s inauguration in 2017, the Lancet Commission on public policy and health in the Trump era, offers the first comprehensive assessment of the detrimental legislation and executive actions during Trump’s presidency with devastating effects on every aspect of health in the USA. The Lancet Commission traces the decades of policy failures that preceded and fueled Trump’s ascent and left the USA lagging behind other high-income nations on life expectancy.”

Environmental justice in Canada: A labour union call to action, and evidence from the UN Special Rapporteur

  “We will not rest, we will not stop: Building for better in a post-pandemic recovery” appeared in the Labour Day issue of Our Times magazine, written by Yolanda McClean and Christopher Wilson, executive officers of the Coalition of Black Trade Unionists (CBTU). Set in the context of the pandemic and the Black Lives Matter movement, the article states: “The calls to intensify the struggle against Canada’s police violence, economic apartheid and environmental racism are resounding.  …Anti-Indigenous, anti-Black and systemic racism extend beyond our political structures to our education and healthcare systems, to our corporations, workplaces, communities and, yes, to our labour movement.  (On this point, the authors refer to “Dear White Sisters & Brothers,” an Open Letter by unionist Carol Wall which appeared in the Summer 2020 issue of Our Times).

Wilson and McClean call upon the labour movement, stating: “A labour vision for a post-pandemic recovery must confront structural racial inequalities and advocate for the inclusion of BIPOC communities — economically, politically and socially.”   As positive examples, the article cites the Ontario Federation of Labour, which joined with the CBTU in a joint statement in July, stating: “As allies, we must act now and support the call to defund the police”. Wilson and McClean also highlight the CBTU’s “Green Is Not White” Environmental Racism research project, and its associated webinar “What Can Unions Do to Stop Environmental Racism?” , produced by the CBTU, the Asian Canadian Labour Alliance, and York University’s Adapting Canadian Work and Workplaces to Respond to Climate Change (ACW).   

UN Special Rapporteur reviews toxic chemicals in Canada and concludes: Environmental injustice persists in Canada

The UN Special Rapporteur on Human Rights and Toxics, Mr. Baskut Tuncak, officially visited Canada in May/June 2019, and presented his resulting Report to the United Nations Human Rights Council in early September 2020. The report states clearly that “Environmental injustice persists in Canada. A significant proportion of the population in Canada experience racial discrimination, with Indigenous, and racialized people, the most widely considered to experience discriminatory treatment.” The report focused on the extractive industries (defined as “mining of metals and oil sands”) in Canada and abroad – noting that over 50% of the world’s multinational mining companies are based in Canada. The report also discusses oil and gas pipelines, and chemical industries (including pesticides in agriculture). After documenting many specific examples, the Rapporteur concludes with recommendations for legislative and regulatory changes.

Excerpted highlights from the Report of the UN Special Rapporteur on Human Rights and Toxics :

“….Contamination from extractive industries, including the massive tailing ponds in Alberta, and the possibility of seeping into local water supplies, is of concern.

… despite compliance with the Fisheries Act, 76% of metal mines have confirmed effects on fish, fish habitat or both. Among these mines, 92% confirmed at least one effect of a magnitude that may be indicative of a higher risk to the environment.

….The health risks posed to Indigenous peoples by the multibillion-dollar oil sands industry are another example of concerns. Fort McMurray, Fort MacKay and Fort Chipewyan (Fort Chip) paint a disturbing picture of health impacts of the oil sands (i.e. tar sands) that were not properly investigated for years, despite increasing evidence of health impacts on local communities.

 … the situation of the Aamjiwnaang First Nation in Sarnia is profoundly unsettling. Deeply connected with their land, residents on the reservation invaded by industry as far back as the 1940s are now surrounded on three sides by over 60 industrial facilities that create the physiological and mental stress among community members …It is one of the most polluted places in Canada, dubbed “chemical valley.” ….   

…Workers are unquestionably vulnerable regarding their unique and elevated risks to chemical exposures. In Canada, occupational diseases and disabilities due to such exposures pose a major challenge to fulfilment of workers’ rights. Recent estimates show over 2.9 million workers are exposed to carcinogens and other hazardous substances at work, which is a gross underestimation.. ”  

SEIU cleaners stage the first union-authorized climate strike in the U.S.

Strike logo yellowTo launch his new column,  Strike: Jeremy Brecher’s Corner at the Labor Network for Sustainability (LNS) website, Jeremy Brecher  began with the theme “The Future of Climate Strikes”.  On February 29 , he posted “First U.S. Union-Authorized Climate Strike?” (re-published in Common Dreams as  “Did we just witness the first union-authorized climate strike in the United States?”). The article describes a one day strike on February 27 by members of Service Employees International Union Local 26 , employed by over a dozen different subcontractors to clean corporate buildings in Minneapolis.  He states that it is, “as far as I have been able to discover, the very first—union sanctioned strike in the U.S. for climate protection demands. ”

Brecher gives voice to many of the low-wage and immigrant workers who are the backbone of the strike, and traces their climate activism back to 2009, when Local 26 won contract language:  to establish an Ad Hoc Committee of union and company representatives at each company, to “review the use of green chemicals”, to provide training to employees on the “use, mixing and storage” of cleaning chemicals, and that “The employer “shall make every effort to use only green, sustainable cleaning products where possible.”  The SEIU Local 26 collective agreement for 2016-2019 is here , with climate-related clause 18.13 on pages 39-40.  Other examples of clauses related to toxic chemicals in Canadian collective agreements are available from the ACW Green Agreements database here ; clauses regarding green procurement are here , and the full searchable database of 240 clauses  is here .

seiu strikeAlthough the main focus of  First U.S. Union-Authorized Climate Strike?  is on the climate-related demands, the strike is also important for its success in coalition-building and community support. Brecher characterizes it as exemplary of the growing trend toward “Bargaining for the Common Good, ” as outlined in a September 2019 article in The American Prospect , “How Workers Can Demand Climate Justice”  .  An article by Steve Payne reported on the broader community justice issues in the strike in “Twin Cities Janitors and Guards Feature Climate and Housing in Their Strike Demands” in Labor Notes (Feb. 20) .

UPDATE: 

Since Brecher’s article, the union has released a press release on March 14,  announcing agreement with most employers and members’ approval of  a contract which includes funding towards a Labor-Management Cooperation Fund for green education and training.  Notably, given that these are the workers keeping airports and commercial buildings clean in the Covid-19 crisis, the agreement also provides for an increase for all full-time workers to six paid sick days by the second year of the contract.

Environmental injustice for Canada’s First Nations – updated

Syncrude_mildred_lake_plantAn overview of the state of environmental injustice in Canada appears in The Statement of United Nations Special Rapporteur on human rights and hazardous substances and wastes, issued following his visit in May/June 2019. The full report will be presented to the United Nations in Fall 2020.  The preliminary information presented in  the Statement identifies “a pervasive trend of inaction of the Canadian Government in the face of existing health threats from decades of historical and current environmental injustices and the cumulative impacts of toxic exposures by indigenous peoples. ” The Statement commented on the specific cases of the oil sands (Fort McMurray, Fort MacKay and Fort Chipewyan), Sarnia, Muskrat Falls, and mining sites such as Elk Valley.  He noted that Canada has “the second highest number of known mining accidents from 2007-2017, increasing significantly from previous years.”

The Special Rapporteur concluded: “It was clear during the course of my visit that many communities in Canada continue to be exploited by toxic exposures.  Some key concerns include: (1) the limited degree of protection of human health and ecosystems under various legislation; (2) the lack of environmental information and monitoring in areas of high risk; (3) long delays or absence of health impact assessment for affected communities; (4) the inadequate compliance with and enforcement of laws and policies; (5) systemic obstacles to access to justice, in particular for cases of health impacts due to chronic exposures; and (6) the recalcitrance to ensure that victims can realize their right to an effective remedy.   The situation of affected communities outside Canada is of equal concern in many of these regards, including the inordinate power imbalance faced by communities in low- and middle-income countries relative to Canadian corporations.”

The Special Rapporteur visited Sarnia’s “Chemical Valley” and highlighted it in his Statement. This area has been identified as a “pollution hot spot”, and the Aamjiwnaang   First Nation have long fought for redress – including a legal challenge under the Environmental Bill of Rights in 2007.  More recently, on October 9, the Toronto Star published “Whistleblower alleges province failing to protect First Nations community in ‘Chemical Valley’ from ‘dangerous’ air pollutants” , a senior engineer employed by the provincial Ministry of the Environment  alleges that ministry executives withheld technical and scientific information about sulphur dioxide impacts,  failed to properly consult the Aamjiwnaang First Nation representatives, and that he was subject to workplace reprisals for raising the issues. His grievance, filed with the labour board, details his accusations and asks for $186,000 to compensate for the reprisals, and for the ministry to begin discussions with him and Aamjiwnaang representatives “with the goal of providing capacity funding and to develop a program” that would transfer authority from the ministry  to the Aamjiwnaang to enforce Ontario air pollution requirements that impact their territory.

Other examples are described by reporters at The National Observer – for example, “How Alberta kept Fort McKay First Nation in the dark about a toxic cloud from the oilsands” (April 2019)  and “Alberta officials are signalling they have no idea how to clean up toxic oilsands tailings ponds” (Nov. 2018) .  The Narwhal maintains an archive of articles concerning Canadian mining examples, including the Mount Polley and Taesko mines. One example, “‘This is not Canada’: inside the Tsilhqot’in Nation’s battle against Taseko Mines” (August 2019) .  The APTN News article “Amnesty uses World Water Day to highlight environmental racism in Canada” provides an overview of First Nations actions as of March 2019.

grassy narrows warningAnother example of long-standing concern, mercury pollution at Grassy Narrows, has emerged as an election issue, with the Chief of Grassy Narrows running for the NDP in the riding of Kenora.  Dozens of other Indigenous leaders are running in the current election to bring attention to their own areas, according to a CBC report : for the NDP, 10 candidates; for the Liberals, 12; for the Conservatives, 7, and for the Greens, 6.

Related reading:

The Alberta Environmental Law Centre published a blog in September, Access to Environmental Justice: Costs and scientific uncertainty raise barriers to protecting communities .  This brief blog acts an introduction to the issue of environmental injustice by providing brief overviews (with links to further readings) of case studies which illustrate the barriers to legal action experienced by Alberta First Nations. The  specific cases described are Kearl Oil Sands Environmental Assessment (2007), Fort McKay (2016) and the Beaver Lake Cree Nation.  Looking beyond Alberta, the blog also notes examples of Sarnia Ontario’s Chemical Valley, and Africville Nova Scotia, and briefly discusses the concept of climate justice.