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.