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.