Extracting Environmental Justice: A Q&A Panel by Level uOttawa

By: Christa Croos and Aneta Bajic

Level’s chapter at the University of Ottawa Faculty of Law hosted a Q&A panel on February 7, 2018 featuring associate professors Heather McLeod-Kilmurray, Aimée Craft, Penelope Simons and Nathalie Chalifour, as well as the Human Rights Clinic Director of the Human Rights Research and Education Centre (HRREC) at the university, Salvador Herencia. The chapter was grateful to have the support of the Indigenous Law Students Association, the Environmental Law Students Association, and Canadian Lawyers for International Human Rights (CLAIHR) uOttawa as co-hosts. The discussion was shaped by questions posed by the students in the hosting clubs, which sparked enthusiasm in the speakers as it demonstrated to them the various areas of interest. We were pleased and overwhelmed by the interest and engagement of the law students who filled up the classroom for a casual lunchtime chat on the chosen topic.


The panel was cheekily named “Extracting Environmental Justice”, and ocused the lens on the harmful impacts of natural resource extraction on marginalized communities, both domestically and internationally. Professor McLeod-Kilmurray graciously started the panel off with an overview of the topic of environmental justice, reminding the audience that it encompasses many subtopics, areas of concern, and schools of thought including climate justice, food insecurity, Indigenous food sovereignty, and ecological justice and concepts such as intergenerational, intragenerational and interspecies justice. The introduction left us wondering how to address the question of whether there should be a constitutionally protected right to a clean environment, which Canada currently lacks. Should the environment itself have rights? Should environmental rights be shaped through human rights, or a right to life and liberty, as per section 7 of the Charter?

Professor Craft noted that section 35 of the Canadian Constitution is a manner in which the right to a healthy environment is already constitutionalized. Section 35 of the Constitution Act, 1982, enshrines Aboriginal and treaty rights in the supreme law of Canada, providing leverage for the protection of the environment through application of the traditional spiritual, legal, and social understandings of Indigenous peoples in Canada. It was stressed that constitutional mechanisms for Indigenous peoples to be able to enforce their rights are needed. Salvador Herencia noted that the constitutionality of an explicit right to environment, such as in Ecuador, should not be only a paper victory. Mechanisms must be put in place to ensure the right is accessible to all people and that it adequately prevents environmental disasters leading to the unequal distribution of burdens upon marginalized communities. The progressive application and access to environmental laws by the people bearing the brunt of the impacts was a key access to justice issue that was identified in several instances during the discussion.

However, Professor McLeod-Kilmurray reminded the audience that the scope of environmental law is not only limited to laws that explicitly address the environment, but also extends to other well-established regimes, such as modern trade law, which support the rights of corporations over the environment. There was also a gentle reminder that the field of environmental law needs lawyers that are technically trained and can engage meaningfully in policy advocacy and litigation concerning trade law, corporate law, securities law, and more. Professor Simons offered the gendered impacts of mining companies as an example of the failings of corporate law. The underrepresentation of women in the administration of these companies makes it challenging to address gendered violence within the industry. There is also gendered violence experienced within the communities where resource extraction occurs, by the workers or security employed by the extractive projects. This example highlights the intersectionality of the issue; women working in subordinate roles are often minorities and are dependent upon resource extraction but must also contend with the negative fallout of the extraction on their communities, families, environment, and persons. It was highlighted that holding the wrongdoers liable in situations both domestically and internationally has been difficult, as corporate law provides several avenues for corporations to shirk their responsibilities. There was some very cautious optimism expressed about the Canadian Ombudsperson for Responsible Enterprise, which was announced by the federal government early last year and could field complaints and hold corporate entities operating abroad liable for their wrongdoings. Ultimately, it was made clear that there was a large imbalance between the rights related to the environment and the rights of corporations, especially in ways that facilitate the evasion of liability. Addressing this disparity will necessitate getting to the roots of who wields the levers of power to create laws.


Another key theme that was addressed was various difficulties stemming from jurisdictional issues and how they can lead to evasion of liability and innocent communities bearing the burden. Jurisdictional disputes can be used as a sword against liability, such as in the seminal Hydro-Québec case (1997 3 SCR 213), where the respondent tried to argue that the federal law holding them liable for discharging PCBs into a waterway was invalid and, as such, did not apply to them. Jurisdiction can also be viewed as a tug of war, as we see in the Carbon Pricing Reference, where the provinces of Saskatchewan and Ontario are challenging the Federal government’s jurisdiction to enforce a national carbon price to reduce greenhouse gas emissions. And finally, jurisdiction can be viewed as a hot potato, which we see globally with climate change, where various nation states are simply passing on their responsibilities to reduce emissions to others or placing blame on high emitters to take action before they do so themselves. If these jurisdictional issues are resolved in a manner that doesn’t address the environmental wrong, then a major avenue of recourse for those impacted and for environmental protection will have failed.

Professor Chalifour noted that environmental movements and solutions to environmental issues must be designed in a way that deliberately and thoughtfully advance equality; responses to environmental issues should be sensitive to how they will be experienced. The theme of mindfulness about the various dimensions of environmental injustices was one that came up repeatedly throughout the panel. The panelists reminded the audience that the context, space, and intersectionality of environmental issues are challenging to delve into in this forum, but need to be recognized and addressed, especially in forming responses to environmental issues. De-contextualizing these issues by discussing them in a classroom doesn’t quite do them justice—we should be sensitive to how they will be experienced in practice by various communities and contexts, as well as the lack of representation of local voices that are on the frontlines of these issues.

The Level uOttawa chapter is exceedingly grateful to the panelists and the students who attended for this fascinating and engaging discussion. It provided students with a lot to reflect on and explore, especially as they decide what areas of work they would like to pursue. We look forward to our next event where we will be hosting a viewing of Water Warriors, a film that documents the collaborative success of New Brunswick Mi’kmaq Elsipogtog First Nation community, alongside French-speaking Acadians and white, English-speaking families, in driving out the oil and natural gas industry seeking to destroy their water supply through fracking.


Waste Not, Want Not: The Opportunities and Challenges Presented by Food Waste in Canada

By: Angela Lee

Increasingly, a cogent body of evidence demonstrates that the impact of global food and agricultural production and consumption patterns on environmental sustainability is not to be understated. For example, the recently published EAT-Lancet Commission report, the result of a multi-year study bringing together 37 experts from 16 countries, comes to the consensus that “[a] radical transformation of the global food system is urgently needed.” Put starkly, if we are to maintain human and planetary health, there needs to be a “great food transformation” entailing a number of significant dietary shifts, including increased consumption of plant-based foods while, in many settings, substantially limiting animal-sourced foods.

Problems are not limited solely to what we’re eating, however, but are also apparent in how we treat food in general. In the Canadian context, The Avoidable Crisis of Food Waste, a recent report produced by Second Harvest and Value Chain Management International, highlights how food waste, in particular, presents both a formidable challenge and a significant opportunity when it comes to sustainability.

Food loss and food waste occur at all points along the supply chain. Thus, a diverse array of stakeholders, including growers, manufacturers, processors, retailers, distributors, and consumers, all have a role to play in preventing and decreasing food loss and waste. However, the disproportionate emphasis that has been placed on consumers in the past has been debunked by the new report, which highlights that processing and manufacturing are the largest sources of avoidable waste.

Clearly, government at all levels—from federal to municipal—also has a role to play. Regrettably, there is currently no national policy or strategy on food waste, though food waste will hopefully be addressed as part of the emerging Food Policy for Canada. Many Canadian cities do not have a streamlined approach to the management of food waste. While this means that Canada has not benefited from more centralized approaches to the problem of food waste, as in other countries like the United Kingdom, it also means that flexible, locally appropriate measures can be developed and adopted if food waste was made a priority.

In terms of other solutions, many advocates have already highlighted the need for labeling reforms to standardize dates and terms used to distinguish between expiry dates, sell-by dates, and best-before dates (with only expiry dates truly representing food safety concerns as opposed to merely those of food quality). The need to clarify liability regimes around donated and diverted food has also been flagged as a notable issue. Though there are laws in place to shield donors who donate food in good faith from liability—and despite there being virtually no record of cases in which a food donor was sued by a donee—the misconception that donors of food items open themselves up to lawsuits remains widespread.

Further, not all food waste is created equal. The distinction between avoidable and unavoidable food waste is, of course, salient, but of food waste that is avoidable, further divisions can be made. Products that have the greatest environmental footprints, especially meat and other animal products, are especially detrimental when they are wasted, because of the double burden they present at each end of their life cycle. Avoiding the loss and waste of these kinds of products should take precedence over forms that are more benign.

Above all, our attitudes toward food, like our attitudes to the environment in general, need to change. For those of us privileged enough to live in Western industrialized nations, our access to clean air, fresh water, and healthy food can easily be taken for granted. Even while food insecurity remains a serious issue even within wealthy countries like Canada, food is regularly discarded for minor infractions such as cosmetic imperfections, slightly diminished freshness, and sometimes even just the fact that we didn’t feel like eating a particular item that day.

Indeed, among consumers, it is prepared food and leftovers that are commonly wasted. Though it is pleasant to be able to eat a unique, delicious dish for each meal of the day, this needs to be seen for what it is: a luxury, not a right. The true value of food has been eroded such that superficial qualities such as taste, convenience, and appearance have trumped the intrinsic value of food as sustenance. A more conscientious approach to food and eating needs to be inculcated, driven from both the top-down and the bottom-up.

Attitudes toward food have undergone a remarkable shift, even in just the past few decades. During the austere war and post-war eras, for example, people regularly repurposed leftovers, shopped scrupulously, and limited their portions. Though from a relative perspective, we live in a time of abundance, the immense toll that has been and is being extracted to produce enormous quantities of food that are ultimately wasted is being levied against future generations’ ability to survive on Earth, much less thrive.

Fortunately, there are numerous groups and minds working toward developing and implementing better solutions for Canada’s significant food waste problem. In addition to organizations like the National Zero Waste Council and Second Harvest, there are also academic initiatives like the Food Systems Lab at Simon Fraser University that are studying the effectiveness of various different kinds of household food waste awareness campaigns, with results expected to be published this year. As awareness of the problems and knowledge of the solutions expands, we are better equipped to build the momentum necessary to see real change. Not only should and can we do much better, but if we are to preserve a livable Earth—we must.

While politicians flex, she suffers

By: Alexandra Machicado-McGee. Originally posted on Inter Alia.

She keeps giving, we keep taking, yet no one ever asks for consent nor sets reasonable limits on what we can do to her. Carbon pricing is an important method that reduces greenhouse gas emissions and therefore combats climate change. With the death of the cap-and-trade program, environmental rights are once again set aside. Doug Ford’s Conservative government is failing to consider the serious impact that its policies will have on climate change and the residents of Ontario.

The Minister of the Environment has claimed that the Conservatives care a great deal about the environment and remain committed to encouraging lower emissions. However, if the Conservatives actually cared “a great deal” about the environment, they would have tried to improve the cap-and-trade program before cancelling it. Likewise, if the government was committed to lowering emissions, it would have drafted a well thought-out policy to fill the void.

The death of cap-and-trade means that there will no longer be a Green Investment Fund. The Conservatives seem to think that the sole purpose of this tax was to take the money from “the people” to make the government rich. This is untrue. The cap-and-trade program was an environmental incentive to facilitate the transition to use less carbon. The funds generated were invested back into the health of our infrastructure and communities. The Green Investment Fund benefited and assisted Ontarians throughout their transition to green energy. It made green technology more accessible for homeowners and saved them money. It also invested in social housing retrofits, offered subsidies for electric vehicles, and supported businesses that wanted to use more sustainable practices. Funds were invested in Indigenous communities to develop a climate change adaptation plan. Transitioning to greener infrastructure is a difficult task. The absence of these funds now means that Ontarians are left with the burden of transitioning on their own.

Some argue that climate change is fake news. However, scientists across the world have agreed that the over-exploitation of our environment is detrimental to communities and future generations. Climate change is the defining crisis of our generation and the Ontario Conservative government does not seem to care.

Conservatives also argue that cap-and-trade was not the best method to deal with climate change—but at least it was a plan. The government will soon unveil the “Made-in-Ontario climate change plan” and has now finished gathering feedback from residents. Though asking residents for their thoughts was respectable, there will still be no limits on carbon emissions until a new limit is set by the Ford government or until the federal government imposes one. This will have devastating effects on our environment and it is unfair to our residents.

Lastly, the Conservatives claim that the cancellation of cap-and-trade is beneficial because it will save us money. However, as financial watchdogs underlined, Ontario will suffer a loss of $3 billion. This $3 billion could have been used to reinvest in our communities. The government will now be using millions of our tax dollars to battle court cases, instead of building greener and healthier communities for current and future generations. Doug Ford needs to listen to the cries of Mother Earth and set reasonable limits on what we can do to her. If he cannot do it for her, at least do it for “the people.”

Alexandra Machicado-McGee is a French Common law student at the University of Ottawa. She is in the midst of drafting a major research paper on the cancellation of Ontario’s cap-and-trade program.

Reflections on the Environmental Law Speaker Series on “The United Nations Global Pact for the Environment: Implications for Canada?”

By: Sunitha Bisan

The magnitude of issues under the United Nations Framework Agreement for Climate Change (UNFCCC) Paris Agreement raises questions about the purpose of the Global Pact for the Environment proposal. The current challenges under the Paris Agreement ranges from greater accountability of climate financing, gender integration, and the nationally determined contributions (NDCs) to loss and damage issues. Taking a step back, these concerns are around inequalities, ensuring there is no regression on commitments and just actions. Could a normative framework like the Global Pact for the Environment be the key to enhance implementation of our collective global commitments?

On September 24, 2018, the Centre for Ecological Law and Global Sustainability at the University of Ottawa Faculty of Law hosted an Environmental Law Speaker Series to discuss “The United Nations Global Pact for the Environment: Implications for Canada?”. This was a timely conversation, particularly as the United Nations 73rd General Assembly in New York debates the topic of “Making the United Nations Relevant to All People: Global Leadership and Shared Responsibilities for Peaceful, Equitable and Sustainable Societies”.  Could the Global Pact help address this concern of the United Nations?

Yann Aguila, Chair of the Environmental Law Commission, Club des Juristes and Secretary General of the Group of Experts for the Pact presented the gist of the Global Pact. His presentation was followed by in-depth discussions on the Global Pact for the Environment’s implications for Canada by a multi-disciplinary panel. The panel was comprised of Will Amos, Member of Parliament for Pontiac, Lisa Gue from the David Suzuki Foundation and Professor Nathalie Chalifour from the University of Ottawa’s Centre for Ecological Law and Global Sustainability. While the discussions were primarily focused on the Canadian context, they were also relevant to developing countries.

The UN Global Pact seeks to seize the opportunities of the increased environmental awareness at the international level, as emphasized by the 2030 Agenda and the Paris Agreement. The momentum is present to solidify the rule of law for the environment. Yann Aguila stressed that although France leads the Global Pact, it is the effort of a Group of experts from across the world. He informed that the guiding principles for the Global Pact were derived from the Stockholm Declaration (1972), the World Charter for Nature (1982), the Brundtland Report (1987), the Rio Declaration (1992) and the IUCN World Declaration on the Environmental Rule of Law. He expressed the caveat that the Global Pact is not a complete solution in spite of the benefits of harmonizing fundamental environmental rights. The Global Pact can potentially strengthen a broader environmental ethos supporting better implementation of the many conventions and treaties on environment and development within the UN as well as those developed by regional bodies.

These sentiments were echoed in the panel discussions. Will Amos, MP, raised concerns about sub-national implementation and the need to ensure that the Global Pact addresses fragmentation in implementation across each levels. This concern is pertinent as it draws on the legal value of the Global Pact. Importantly, environmental protection begins at these sub-national levels, as it is the site of climate disruptions and events. Harmonizing an ecological ethos and gendered perspectives are imperative in climate mitigation and resilience building to avoid perpetuating inequalities.

Another key component in determining the success of this Global Pact is citizen action. Lisa Gue, in her discussions on citizen’s activism, highlighted Yann Aguila’s introduction of Article 10 and 14 as proposed in the Global Pact, which recognizes the roles of non-state actors. This reminded me of the Aarhus Convention. Despite being a regional convention, the Aarhus Convention had albeit with some limitation, carved a pathway for access to information, public access to participate in decision-making as well as access to justice for supporting civil society participation universally. These Aarhus principles are important and need to be harmonized globally. The significance of this recognition is critical, as environmental activists are increasingly at serious risk. The Global Witness 2017 Annual report exposed the grave risks borne by environmental activists, noting that 207 activists were killed in 2017 with 60% of those killed being from Latin America.

These activists fight for the important right to a healthy environment through a conscious duty of care to the environment. The right to a healthy environment that is applied within Article 1 of the Global Pact as recounted by Yann Aguila is traced to the Stockholm Declaration. Professor Chalifour rightly appraised the intergenerational contexts of this discussion. She discussed the need for recognition of various cultures, in particular “the seventh generation” concept of Indigenous communities.  

The discussions of these underpinning principles cleared some doubts relating to the Global Pact. There are undeniable merits as well as challenges within the Global Pact for the Environment. The harmonization of common and fundamental principles is a welcome pathway to avoid a business-as-usual approach.

There was a tacit acknowledgment that more discussions are needed, not only within legal circles and high-level forums, but also with civil society. Many doubts are rooted in the discomforts surrounding enshrining a duty of care to the environment. The magnitude of the global climate and environmental situations requires collective action that has some degree of certainty and predictability. It is undeniable that the implementation of both the 2030 Agenda for Sustainable Development and the Paris Agreement would greatly be aided by a strengthened environmental rule of law. In the end, the hope is that environmental justice will be realized.

Sunitha Bisan is currently pursuing her LLM in Global Sustainability and Environment at the University of Ottawa. Her research focuses on intersections of Gender, Environment and Development.

The Transformation of Environmental Law and Governance: Innovation, Risk and Resilience

By: Angela Lee

Recently, Professor Heather McLeod-Kilmurray and I traveled to Glasgow, Scotland to attend the 2018 IUCN Academy of Environmental Law Colloquium, hosted by the University of Strathclyde Centre for Environmental Law and Governance. The colloquium, now in its 16th iteration, is a major event within the environmental law community around the world. Hundreds of scholars, practitioners, and students convened at the University's Technology and Innovation Centre to discuss and reflect on this year's theme, The Transformation of Environmental Law and Governance: Innovation, Risk and Resilience

One of the main goals of the conference was to explore the role of law and governance in addressing the opportunities, challenges and risks posed by technology and innovation, in order to build resilience. To this end, there were panel sessions dedicated to topics as broad as "Land Governance", and as specific as "Dealing with Risk and Technology in the Oceans: State and Corporate Social Responsibility".

Professor McLeod-Kilmurray presented in a panel called "Sustainable Agriculture and Food Systems: From Law-making to Implementation". Her presentation looked at how trade law might be transformed to better align with sustainable food systems. She also chaired a panel on "Technology and Environmental Law and Governance", featuring scholars from South Africa, New Zealand, and the UK discussing technological developments like blockchain and drones, and the vexing legal issues that they raise. 

My own presentation was part of a panel called "What Futures? Techno-Fixes and the Role of Law and Governance in Land, Food and Agriculture". I discussed some of my ongoing research (part of the Food Justice case study) interrogating the complex relationships between food, technology, environment, law, and various kinds of justice (including intergenerational, intragenerational, and interspecies). As new and emerging technologies like genetically engineered animals and in vitro meat are increasingly touted to be an indispensable part of the toolkit when it comes to feeding the world sustainably, especially when it comes to animal products, I argue that technology's promises in this area are often over-emphasized and over-estimated, while law's potentials to shift diets for sustainability are often under-theorized and under-utilized. Upon more critical appraisal, a wholesale embrace of technological solutions may not necessarily be warranted when it comes to food, especially when taking a broader perspective in terms of how benefits, risks, and impacts are evaluated. 

Indeed, the need to think differently about environmental law and governance was stressed repeatedly throughout the event. Of particular relevance to environmental justice, there was a great deal of emphasis placed on the importance of more robust legal rights (both substantive and procedural), including more (and better) public participation. The panel I chaired on "Civil Society and Community Participation in Environmental Law and Governance" exemplified this emphasis, as did other panels dedicated to "Environmental Justice", "Climate Justice and Liability", and "Environmental Litigation: Principles, Justice, Rights of Nature and Indigenous People".

One of the most fascinating aspects of the colloquium was being able to hear about research and litigation being undertaken in a diversity of national contexts, many of which are at different stages in terms of legal responses to social and environmental challenges. As keynote speaker Professor Tianbao Qin noted, the function of environmental law changes in light of the processes of social transformation that are often taking place in tandem. What this means is that, as countries struggle to reconcile the enduring tensions between environment vs. economy, willingness vs. capacity, and unity vs. diversity, it is important that legal solutions are adaptable and reflexive.

Speaking in the context of wind energy infrastructure, keynote speaker Maria Lee also reminded us that the question of scale is complicated, especially as scale is a concept that is socially constructed, including by legal processes. Although the common assumption is that wind energy projects are to the national/global benefit but to the local detriment, there is not a simple dichotomy between national and local, and different scales do not nearly nest within each other or rank in a simple hierarchy. Accordingly, there is a real need to engage with questions of authority and the scale of community by which we are willing to be bound.

Overall, the colloquium made clear that although technology will undoubtedly form an important part of the material and legal infrastructure when it comes to sustainability, it also poses a number of significant questions and concerns, particularly when it comes to risk and resilience. Consequently, it will be of paramount importance that current and future generations of environmental scholars, practitioners, and activists continue to engage with these issues, helping to ensure that the trajectory of innovation does not skew towards simply upholding the status quo, but that technologies can truly contribute to a more ecologically robust and socially just future for all. 

Property Law at the Service of Environmental Justice? A New Case in the “Hog-Industry” in North Carolina

By: Sabrina Tremblay-Huet

In legislation and case law about the use of non-human animals, the right to property can serve to exclude and oppress, while also, perhaps surprisingly, serving to emancipate in response to the effects of placing a profit imperative above all other interests.

In terms of exclusion or oppression, an important example is “ag-gag,” or “anti-whistleblower” legislation (and the ensuing lawsuits) in the United States (US). Ag-gag laws essentially seek to impose criminal punishment on individuals undertaking undercover investigations in factory farms, for both the act of investigation itself as well as for the means used to access the facility if this involved deceitfully seeking employment for this purpose. While the ag-gag laws of Idaho and Utah have been struck down as being unconstitutional (in the case of Idaho, affirmed in part and reversed in part on appeal in the 9th Circuit), their “chilling effect” cannot be underestimated, and the private property logic being adopted by so many state legislatures speaks volumes about its discursive power. In the case of Idaho, the 9th Circuit held that while “misrepresentations to enter a production facility” and the “audio and video recordings of a production facility’s operations” were confirmed as falling within free speech protections, “misrepresentations to obtain records and secure employment” did not.

As I expressed a few years ago in this piece, “I am […] baffled by the brazen use of the mirage of private law, and the language that is consequently shamelessly used, in opposition to concerns of free speech, consumer information, and grave animal suffering. While houses are considered private grounds, you cannot abuse animals and prevent people from reporting these acts, under many laws; yet, for the ‘different’ private property of a moral being, in our case agricultural companies, this is most legitimate under Ag-Gag laws.”

More recently, the right to use and enjoyment of property constituted the object of a jury verdict in which the impressive amount of $50 million (USD) was awarded in punitive damages on April 26 (later reversed by the Court, who on May 7 allowed the defendant’s motion to impose a statutory cap on punitive damages, leading to $250,000 in punitive damages for each of the ten plaintiffs rather than $5,000,000, in addition to the $75,000 in compensatory damages). These damages were attributed to property owners in Bladen County, whose lands neighbour an intensive pig production facility (known in the US as a “Concentrated Animal Feeding Operation” or “CAFO”), Kinlaw Farms, operated by Murphy Brown, in McKiver, et. al v. Murphy-Brown, LLC, No. 7:14-CV-180-BR. The first question asked to the jury, and the only one on the facts of the case and to which it answered “yes,” was: “Did the defendant substantially and unreasonably interfere with the plaintiffs use and enjoyment of his or her property?”

The plaintiffs filed their complaint on August 21, 2014 to the United States District Court for the Eastern District of North Carolina. The plaintiffs claim that Murphy-Brown “failed to take adequate steps to manage the number of hogs at the sites or dispose of the millions of gallons of manure that come from the hogs,” “failed to take appropriate steps to eliminate the obnoxious recurrent odors,” that the pigs “caused periodic swarms of flies, other insects, and other pest,” and “necessitate very large trucks crawling up and down the streets outside of the Plaintiffs’ homes” (para. 2, 3, 4). The presence of “swine sites” is also documented as being detrimental to property values (para. 137). They argue that Murphy Brown possesses the means to end the use of the “lagoon and sprayfield” agricultural system, which has been prohibited for new North Carolina farms since a 1997 moratorium was re-enacted in 2007 (para. 5, 6, 116). Furthermore, it is Murphy Brown that “owns” the pigs, rather that Kinlay Farms who only “houses” them (para. 97). Kinlaw Farms holds about 14,688 pigs, “generating 27,907 tons and a volume of approximately 7.5 million gallons per year of manure, feces and urine” (para. 100).

Environmental justice has long been concerned with the disproportionate effects of pollution on racially and economically marginalized populations. The median income in Bladen County is $30,164, as opposed to the $46,334 median income for North Carolina more broadly. In addition to the property-related nuisances that living near hog farms may cause, its demonstrated health effects cannot be underestimated (such as mood, respiratory, and immune system issues), nor can its environmental consequences (such as an immense contribution to greenhouse gas emissions through manure, as well as groundwater and air pollution). North Carolina is infamously notorious for its “noxious pig farms,” with claims of environmental racism also being related to “hog country.”

It is especially interesting to note that the 1997 moratorium was adopted in the context of a fear that CAFOs would be constructed around golf courses (para. 117). This thinly-veiled classist fear, which led to legislation indeed prohibiting the practice, supports the environmental justice argument that pollution-inducing industries are located in areas where their manifold forms of nuisances fall on marginalized, rather than privileged, communities.

Like the US, Canada is a major centre for industrial agricultural production, including industrial animal agriculture, and so despite the different legal regimes at play, the environmental justice issues associated with industrial animal agriculture are just as relevant across the border. It will be interesting to see how courts’ approaches to these issues will diverge or converge in coming years.

The right to property is a social construction, in constant intersubjective movement, to use constructivist vocabulary. Property law must thus be interpreted by taking into account the conflicting interests in the context of a dispute about an element that has been socially and materially appropriated while considering its possible infringement on the equal property rights of competing appropriation. The appropriation of non-human animals, of course, has been at the social and legal source of innumerable harms. But: here’s to hoping other examples of courts’ interpretations of the right to property in favour of environmental justice for communities living in vicinity of factory farms will soon appear in other contexts, and might alarm societies to the various manifestations of the harms of factory farming aside from the obvious non-human animal suffering.

Sabrina Tremblay-Huet is a doctoral candidate and lecturer at the University of Sherbrooke’s Faculty of Law, and was recently a Visiting Research Fellow at Fordham University School of Law. She is a co-founder and member of the Critical Legal Research Laboratory (CLRL). Her research focuses on legal theory, international human rights, tourism law, law and literature, and animal law.

A Promising Event for the Future of Environmental Rights: Symposium on Formalizing the Right to a Healthy Environment in Canada

By: Danielle Gallant, LLM Candidate and Environmental Justice Research Fellow 2017-2018

On February 15th, 2018, a diverse crowd assembled in the Alex Trebek Alumni Hall at the University of Ottawa. Members of Parliament and federal government workers, representatives of environmental NGOs and activists, university professors and students as well as foreign diplomatic staff gathered to address a topic at the convergence of their varied perspectives: the recognition of environmental rights in Canada. The presentations of many distinguished Canadian and international speakers, as well as their panel discussions, fostered stimulating debates and ultimately presented a convincing argument in favour of formalizing these rights as soon as possible.

The Need for Legal Recognition of Environmental Rights in Canada

The importance and urgency of the topic was clearly demonstrated during the event’s second panel. Vanessa Gray, an Indigenous land defender from Aamjiwnaang First Nation in Sarnia, gave testimony about some of the consequences of living in Canada’s “chemical valley”, including the adverse health effects on her community and the constant fear for her safety because of her advocacy. She pointed to Canada’s ill-treatment of its Indigenous peoples as being central to the ongoing issue, at a time when the federal government has ostensibly advanced a goal of reconciliation. Kaitlyn Mitchell, a lawyer with Ecojustice litigating the community’s case against the Ontario government, raised the environmental justice implications of the disproportionate exposure of the country’s marginalized populations to environmental harms, while the same populations have limited access to its benefits. This imbalance could be addressed through formal environmental rights, which could in turn promote equality for the impacted communities and advance the integration of Indigenous laws into the legal system. Managing editor of the National Observer, Mike De Sousa, spoke about the ‘Price of Oil’ series, an impressive cross-country collaboration of investigative journalism that shines a light on the impacts of the industry on its workers and neighbouring communities. The overarching message was that these are real and concerning issues that already affect Canadians, particularly vulnerable populations, and should therefore be addressed immediately.

The Promise of Environmental Rights

The significant potential that environmental rights represent was another key element discussed throughout the symposium. David Boyd, Associate Professor at the University of British Columbia, described the environmental rights revolution taking place all over the world throughout the last half century, whereby environmental protection and correlated governmental duties have been enshrined in hundreds of constitutions and statutes. Such inclusions have strengthened environmental policies, decision-making and performance, as well as enabled citizens to hold their governments accountable. However, it is important to recognize that such legal reforms come with their own set of obstacles. Emeritus Professor at George Washington University, Dinah Shelton, discussed many of the technical issues surrounding improving environmental laws and using litigation to ensure their enforcement. She also acknowledged the dilemma in determining when to override governmental decisions through judicial action in democratic societies. In the meantime, some rights-based legal tools are already at our disposal. In a video address, John Knox, UN Special Rapporteur on human rights and the environment, said that he has recommended that the UN recognize environmental rights either through general resolution or international treaty, but indicated that it is also possible to ‘green’ existing human rights with a focus on both procedural and substantive rights. He concluded by urging Canada to consider amending its federal laws to include an explicit recognition of environmental rights.

International Leadership and Success

Within the worldwide movement for the recognition of environmental rights, Canada can find inspiration in the leadership of other jurisdictions. Florence Ferrari, Deputy Head of Mission for the French Embassy in Ottawa, described her country’s Environmental Charter as giving constitutional value to an environmental human right. It has inspired France to act domestically, regionally and internationally, such as proposing an innovative Global Pact for the Environment to address the fragmentation of international environmental law. However, the federal government can also look locally to the enshrinement of a right to a healthy environment within the Quebec Charter of Human Rights and Freedoms and the Environment Quality Act. Karine Péloffy, Director of the Quebec Environmental Law Center, explained that these provisions have provided citizens with the tools to demand the enforcement of environmental laws, as proven by the recent case against TransCanada to protect vital beluga habitat. University of Ottawa Associate Professor Nathalie Chalifour spoke about multiple climate litigation success stories throughout the world, from the Urgenda case in the Netherlands to the Leghari decision in Pakistan, where governments were held accountable for inadequate action on the basis of their citizens’ environmental rights. Other claims in various jurisdictions have also hinted at the potential and need for such rights, such as the Juliana v. US case focusing on youth and future generations.

Current Opportunities within Canada

Turning back towards Canada, Eric Bertram, Deputy Director of Human Rights and Indigenous Affairs at Global Affairs Canada, highlighted the importance of protecting environmental defenders. Specifically, the department has issued guidelines to help Canadian officials abroad support human rights defenders, including environmental activists. However, the event made it clear that our country needs to address its failure to recognize environmental rights, and current reforms to Canadian environmental legislation offer the perfect opportunity to do so. Pontiac MP Will Amos presented key recommendations from a standing committee report on strengthening the Canadian Environmental Protection Act, 1999 (CEPA), such as recognizing the right to a healthy environment, recognizing the particular rights of vulnerable populations and Indigenous communities, and the improvement of procedural rights. Fellow MP and NDP deputy critic for environment and climate change, Linda Duncan, who has tabled federal environmental rights bills three times in successive governments, stated that CEPA is only the tip of the iceberg. She called for environmental rights to be included within other legal reforms, and emphasized the need for the participation of the impacted communities in the decision-making process. Professor Lynda Collins of the University of Ottawa commended the CEPA report for being progressive, and emphasized the importance of establishing minimum standards for air and water quality and including an obligation of non-discrimination. She also indicated that applying a human rights approach to CEPA could result in a radical improvement that could then be reproduced with the reform of other Canadian environmental laws.

Throughout the symposium, multiple speakers referenced a poll conducted in 2017 by the Gandalf Group indicating that 92% of Canadians somewhat (20%) or strongly (72%) agree that “[t]he government of Canada should recognize the right of Canadians to a healthy, non-toxic environment”. This momentum is evidenced by the success of the Blue Dot movement for environmental rights, as described by Peter Wood, National Campaign Manager for the David Suzuki Foundation. He noted that grassroots organizing efforts have resulted in more than 160 cities and towns in Canada passing resolutions in support of environmental rights, and that these efforts are now being directed at the federal level. As highlighted by University of Ottawa Professor Heather McLeod-Kilmurray, other countries have looked to Canada for inspiration and leadership concerning human rights in the past, and it is now time to bring this energy to the long overdue recognition of environmental rights in Canada.

An Indigenous Community’s Case Against Mining Concessions, from the Lens of Ecological Law

By: Carla Sbert

In Mexico, as in several other countries where large-scale mining has boomed since the 1990s, hundreds of communities have declared themselves “free of mining.” Many Indigenous communities have challenged mining concessions on their territories, arguing that these were granted in violation of their constitutional rights. While these are mostly described as struggles for self-determination, they are also struggles for environmental justice.

Júba Wajíín is one of the communities threatened by large-scale mining. Also know as San Miguel del Progreso, this Me’phaa (or Tlapaneca) Agrarian Indigenous community of approximately 3,800 people is located in the Mexican State of Guerrero. In 2011, witnessing a growing interest in the region’s mineral potential and aware that other communities had been harmed by mining projects, the community declared itself free of mining. Two years later, after learning that two mining concessions had been granted on its territory, Júba Wajíín filed an amparo—a special judicial review to protect fundamental rightsagainst the mining concessions.

Indigenous rights and mining law in Mexico

The Mexican Constitution and international instruments to which Mexico is a party recognize certain rights of Indigenous peoples, including the rights to territory and to consultation before carrying activities affecting their territories. In Mexico, the State owns all minerals and can grant concessions to private companies for their exploitation. Under the Mining Law, a concession includes exploration and extraction rights, and guarantees access to the minerals, including through expropriation. The term for a concession is 50 years, renewable for the same period. Mining is considered an activity of “public utility” and given precedence over any other land use, except oil and gas extraction.

In the amparo, Juba Wajíín argued that several provisions of the Mining Law regarding mining concessions contravene the Mexican Constitution, ILO Convention 169 on Indigenous and Tribal Peoples and the American Convention on Human Rights. Also, the community argued that in granting the concessions the authorities violated the community’s collective right to property of their Indigenous territory, to the protection of Indigenous lands, and to consultation, as well as the general guarantees of legality and legal certainty, and the obligation to protect communal lands both for purposes of human settlements and for productive activities.

The Júba Wajíín amparo from the lens of ecological law

In a forthcoming article (Mexican Law Review, December 2017), I explore this case from the perspective of the new legal paradigm that is the focus of my research: “ecological law.” This new paradigm aims to ensure that society and the economy respect ecological constraints, thus reflecting the physical reality of the planet.

Ecological law is emerging in response to the inability of environmental law to adequately address the root causes of the deepening ecological crisis. It is part of a shift away from a growth-insistent economic model, to an economy that operates within the planet’s biophysical limits, with much reduced material-energy throughputs and ecological footprints. Finally, it is also part of a shift to a different conception of the relationship of humans among themselves and with the Earth.

In order to better understand what adopting this new paradigm will entail, my research proposes identifying the major affinities and inconsistencies between existing laws and ecological law, with a tool I call the “lens of ecological law.” The lens consists of three principles drawn from a growing body of scholarship (primarily by Klaus Bosselmann, Cormac Cullinan and Geoffrey Garver). The principles are:

  • Ecocentrism – Recognize and respect the value of all beings and their interconnectedness, equitably promoting the interests of human and nonhuman members of the Earth community.
  • Ecological Primacy – Ensure that social and economic behavior and systems are ecologically bounded, respecting Planetary Boundaries.
  • Ecological Justice – Ensure equitable access to the Earth’s sustaining capacity for present and future generations of humans and other life, and avoid the inequitable allocation of environmental harms.

My interest in the Juba Wajíín case stemmed from the idea that there may be important synergies between ecological law and Indigenous rights and legal orders. Some Indigenous scholars argue that interconnectedness and strong environmental stewardship are common features of Indigenous legal orders. Also, there are numerous statements from Indigenous peoples worldwide about their relationship with the environment, like the Universal Declaration on the Rights of Mother Earth. I therefore wondered what we could learn about the challenges and opportunities for adopting an ecological law paradigm, in particular regarding mining in Mexico, by seeing this case through the lens of ecological law.

The main conclusion of the analysis is that the Mexican Mining Law provisions regarding mining concessions challenged in the amparo are inconsistent with the principles of ecological law. 1) The pre-eminence given to mining over any other land use is profoundly anthropocentric. 2) Large-scale mining can hardly be viewed as an activity that is ecologically bounded. 3) It is clear that prioritizing mining for up to 100 years over subsistence use by communities and other beings is not conducive to inter-generational, intra-generational and inter-species equity.

In terms of synergies, seen from this case, Indigenous rights to territory, consultation and self-determination, actually seem to align only tenuously with the principles of ecological law (underscoring the caution against essentializing Indigenous peoples). There is no clear connection with the principle of ecocentrism. From the perspective of ecological primacy, one can argue that the Júba Wajíín settlements and their traditional farming and harvesting activities are more in line with ecological limits than the large-scale open pit mining proposed. Finally, there is a somewhat stronger tie to ecological justice, as the amparo raises issues of intra- and intergenerational equity that would result from the loss of access to and destruction of the land on which the community depends for their livelihood. Yet, the third element of ecological justiceinter-species equityis not addressed in any way.

An ongoing struggle

The case made its way to the Mexican Supreme Court. However, in November 2015, the company holding the concessions abandoned thempresumably to avoid review of the constitutionality of the Mining Law by the Supreme Court. The court indeed stayed its review of the case because the contested act no longer existed. The Júba Wajíín community freed its territory of those mining concessions, but the law remains unchanged and others may be granted. Indigenous communities have vowed to protect their territory and ensure their rights are respected, so other amparos may follow. If they succeed in challenging the Mining Law, it will be a momentous gain for Indigenous rights in Mexico, and perhaps a step in the direction of ecological law.

Give Peas a Chance

By: Angela Lee

Whether you’re splurging on avocado toast or simply struggling to get enough nutritious food to eat, the bottom line is that what you eat, where it comes from, and how it was produced all matter. As it is becoming increasingly apparent, food is not just a private concern, but rather, has wide-ranging public consequences. Purchasing patterns and market trends are promising signs that people are becoming more aware of the environmental, social, and ethical implications of their food choices, but in light of an ever-expanding population, small-scale voluntarism is clearly not enough. Accordingly, governments and policymakers have a significant role to play in terms of offering the right incentives and disincentives to promote, incentivize, and facilitate more sustainable food production and consumption practices.

Until recently, there has been little by way of systemic efforts at addressing the various and vexing issues related to food production and consumption in Canada. However, in the past year or two, the federal government has launched several initiatives in this respect, with the pinnacle being the National Food Policy led by the Department of Agriculture and Agri-Food. This policy, the first of its kind in Canada, will unquestioningly chart the trajectory of agri-food policy for years to come, by setting both a long-term vision for the health, environmental, social, and economic goals related to food, while also identifying actions we can take in the short-term.

Organizations like Food Secure Canada and the Canadian Federation of Agriculture have long advocated for a National Food Policy, but some remain skeptical of whether such an initiative can live up to its promise. After all, the swath of concerns related to food along every node of the chain – from production through to consumption – are innumerable, and affect each and every Canadian, the privileged and the marginalized both.

Indeed, there are good reasons for skepticism. Barriers to meaningful reform in the agri-food sector have been identified for years now. When it comes to promoting shifts towards more sustainable diets, harmonization needs to occur horizontally as well as vertically in order to ensure coherence among agriculture, health, water, environmental, and trade policies. Yet, fragmentation is still evident today. For example, the recent revision process for Canada’s Food Guide, led by Health Canada, leaves out any considerations about the sustainability of our food choices – a conspicuous absence, given that diets with low environmental impacts are also generally better for our health.

Unfortunately, balancing the priorities and interests of a large and often-divergent group of stakeholders is inherently challenging. However, in a situation that can sometimes seem bleak, the more compelling narrative is one that focuses explicitly on what can be gained by alternative outlooks and approaches. Despite being a challenge to the status quo (arguably, a necessary one), the growing popularity of plant-based alternatives to animal products presents several different kinds of opportunities for Canada.

Though sometimes maligned for ideological reasons, plant-based diets offer compelling advantages. The climate change mitigation potential alone presents a strong case for shifting away from animal products, if one is not persuaded by the health risks and ethical concerns posed by industrial animal agriculture. Further, the sophisticated simulacrums of animal products that are available today are a far cry from the bland veggie burgers and thin plant milks of times past. Embracing plant-based alternatives– if not as outright replacements for traditional animal products, then at least as occasional or supplementary options – can take us one step closer towards addressing the unprecedented global challenges we face today.

Plant-based protein is a key component of many of the alternative products entering the market, and the mounting demand for these kinds of products presents a unique economic opportunity for the Canadian agricultural sector. Canada is a leading producer of pulses—a notably high-protein food group. According to Pulse Canada, “Canadian production of the eight major pulse and special crops (pea, lentil, bean, chickpea, mustard, sunflower, canary seed and buckwheat) increased from about 1 million tonnes in the early 1990s to 5.9 million tonnes in 2015, more than a fivefold increase in 25 years.” By capitalizing on this niche, the Canadian agricultural sector can benefit from this thriving market while concurrently supporting the development of sustainable products from an environmental and human health perspective.

As public consultations get underway for the National Food Policy, it is important that Canadians reflect on the four themes that the federal government has identified as priority issues: increasing access to affordable food; improving health and food safety; conserving our soil, water, and air; and, growing more high-quality food. When supported by thoughtfully designed policies, local, sustainably grown, plant-based food choices can promote each of these goals, while also being delicious, varied, and nourishing. By giving peas a chance, we can challenge unsustainable, unhealthy, unjust, and unethical modes of food production and consumption, while also advancing flexible, realistic, and successful methods and modes of creating change. 

Urban Agriculture

By: Angela Lee

Urban agriculture refers to a wide range of food production initiatives—from growing plants to raising animals—that can occur within cities, whether in backyards, rooftops, community gardens, or public spaces. Although urban agriculture is often small-scale and diffused throughout a city, it also includes larger, commercial operations (for example, producing food in greenhouses).

The concept and practice of urban agriculture is not new, and the Food and Agriculture Organization of the United Nations (FAO) estimates that 800 million people practice urban agriculture worldwide. However, it is important to note that trends and practices in urban agriculture are very different in wealthy, developed countries than they are in lower-income, food-scarce countries, as they are often driven by different concerns. Although the impetus for urban agriculture is often economic, the contemporary popularity of urban agriculture in wealthy countries has surged in recent years, informed in part by the burgeoning food movement, with its emphasis on healthy, local, minimally processed fare. Many cities in both Canada and the United States have either already adopted or are in the process of adopting measures to encourage the growth of this trend. In Canada alone, examples include urban farms in Halifax and Montreal, community gardens in Ottawa and Calgary, the keeping of backyard chickens in Vancouver, and urban apiaries in Toronto.

Certainly, in terms of food security and food justice, urban agriculture can enhance the nutritional health of a community by acting as a source of both food supply and income. Urban agriculture also offers a number of benefits over and above simply contributing to the food supply, including creating jobs, enriching education, promoting environmental sustainability, community-building, and neighbourhood beautification. Even though much of the rhetoric surrounding urban agriculture from within the food movement has been positive, there are also other theoretical and practical issues associated with urban agriculture from a food and environmental justice standpoint that must be considered.

From an environmental justice perspective, the public health and environmental hazards of urban agriculture—and the distribution of such impacts—are of particular concern. For example, even while urban agriculture can reverse the environmental decline of urban areas by creating green spaces and adding organic content to the urban environment, there are a range of problems that can also arise, including nuisance from unpleasant smells or sounds, various sanitation concerns, and threats to biodiversity. Because urban farms and gardens may be located in proximity to industrial or commercial areas, there are also contamination concerns in relation to the food produced, as well as for the workers. The use of chemical fertilizers and pesticides poses especially acute health and environmental threats in densely populated urban environments, where they can easily carry to contaminate the surrounding neighbourhood. The location of urban agriculture sites and the associated risks therefore raises important questions about environmental justice.

Further, the connection between urban agriculture and increased food security is not an uncomplicated given. This is especially the case in relation to urban commercial gardens operating in impoverished, already marginalized urban neighborhoods. Nathan McClintock has argued that urban agriculture can actually function as a form of neoliberalism, by shifting the burden of food production and provisioning healthy food in low-income areas from the state to non-profits and community-based organizations. Other scholars have raised similar concerns about urban agriculture potentially functioning as a form of “ecological gentrification”.

The practice of urban agriculture also raises gendered concerns, especially since women are a traditionally vulnerable, food-insecure group. Although urban agriculture may afford women valuable opportunities, women may also experience challenges and barriers in accessing the land, capital, and other resources they need to be successful. Consequently, in the context of developing countries, Alice Hovorka argues that in order to benefit, rather than burden women, the promotion and support of urban agriculture must take on a specifically emancipatory agenda that challenges structural inequities.

In order to be a viable food strategy, urban agriculture requires ongoing nurturing. As a result, law and policy is highly significant in the context of urban agriculture, because law works directly to help or hinder urban agriculture initiatives, most specifically in the context of zoning and land use policies at the municipal or local level. While the risks associated with urban agriculture undoubtedly require careful regulation, the legalities of urban agriculture practices in Canada can be described as being in a state of confused disarray. It is important that as questions and concerns relating to our food practices become more pressing, our laws and policies keep step. Notably, best practices for urban agriculture should be attentive to the local environment and context, and take into account all nodes of the food system, including production, processing, distribution, consumption, and waste.  

As the interest and importance of urban agriculture increases, multiple avenues for further scholarly inquiry appear, including the intersections between urban agriculture, food security and food justice, and environmental justice. By applying a critical lens to the ongoing and emerging issues related to urban agriculture and other related initiatives, better laws and policies can be crafted to move us closer towards a more just and sustainable food system in Canada.