Blog post by Bridget Allen-O’Neil
This blog won an award in the TBCG Environmental Advocates writing contest. All content, including any opinions expressed, belong to the author.
There are many challenges to increasing equitable access to environmental decision making, such as direct discrimination against individuals and communities, a hierarchy of knowledge systems which prioritizes narrow conceptions of expertise, and decision-making procedures which are oblique, inflexible, and unwelcoming.
However, attempts to address these problems will be limited without a mechanism to enable individuals and communities to enforce access to environmental decision making. The case of Mitchell v Minister of National Revenue illustrates that once a group has an enforceable right which limits the effectiveness of decisions made in their absence, decision makers will be obligated to reduce systemic participation barriers even if that means changing hierarchies of knowledge or access which would otherwise contribute to exclusion.[1]
I propose that one systematic change which would permit the enforcement of equitable access would be the establishment of an effective and substantive right to a healthy environment (RtHE). At present, Yukon, Northwest Territories, Nunavut, Ontario, and Quebec have variations on rights to a healthy environment. In the territories, the rights are protected by environmental rights statutes,[2] in Ontario, they are mentioned in the preamble of the Environmental Bill of Rights,[3] and in Quebec in they are protected in the Environmental Quality Act,[4] and the Charter of Human Rights and Freedoms.[5]
Environmental rights pose a variety of unique structural challenges compared to existing legal structures, principally because of indirect harms from environmental activities, because of the impact of environmental decisions on non-rights bearing entities (communities, animals, future generations), and because of the present legal recognition, value, and governance of the environment. For example, one of the limits in using traditional tort law to challenge environmental decisions is that an individual must demonstrate that they have suffered particular harm from the environmental act (or proposed environmental act).[6] Environmental rights often offer broader standing – for example, in Nunavut, an individual may take an action to enforce an environmental right even if they are not directly affected if they are protecting the environment or the public trust.[7]
However, these existing Canadian RtHE have substantial limitations. In the territories, there are nominally substantive environmental rights, but broad defenses make them effectively unenforceable (for example, it an individual does not infringe another person’s environmental right if they have the permission of the landowner to undertake the infringing action).[8] In Ontario, while procedural rights are relatively robust (for example, creating a general obligation for the government to provide information to the public about environmental decisions),[9] they do not actually guarantee individuals participating in decision making will be listened to,[10] and it is effectively impossible to bring an action for environmental harm under the statute.[11] And in Quebec, the Charter of Human Rights and Freedoms does not ground an independent causes of action, limiting its efficacy.[12]
What we need is a constitutionally recognized RtHE[13] which maximizes the extent to which it can be used by marginalized individuals and communities, and provides a meaningful check on exclusive and harmful decision-making. By amending the constitution there will be greater equity across Canada, and by making it inclusive and effective, it can be a meaningful tool for both individuals and communities in access environmental decision-making participation across. In the EU environmental rights jurisprudence is generally similar to a tort-style legal structure where in order to enforce the right, an individual must have suffered personal damage, and they are enforceable against private actors for damages.[14] In the US, environmental rights are usually enforceable by communities, but they are unable to receive damages, and penalties may not be sufficient to induce change.[15] Our right needs to include both – enabling access to the public while effective penalizing decisions made which adversely affect rights.
An effective and substantive right to a healthy environment cannot be sufficient in itself to meet the myriad challenges of equitable environmental decision making because a strategy to increase equity which relies on the highly inequitable colonial legal system cannot be complete on its own. Moreover, merely the presence of a right does not guarantee its enforcement. However, attempts to address the deeper challenges to equitable decision making in the absence of an enforceable right recognized by the existing legal structures will be haphazard and limited, relying on the goodwill of particular decision makers rather than a recognized legal structure. The creation of an effective and substantive RtHE would give individuals and communities a tool that they could turn to enforce their right to participate in these decisions when the broader inequalities of our society would otherwise exclude them.
[1] Mitchell v MNR, [2001] 1 SCR 911, 2001 SCC 33.
[2] Yukon: Environment Act, RSY 2002, c 76, https://canlii.ca/t/55d9g; Northwest Territories: Environmental Rights Act, SNWT 2019, c 19, https://canlii.ca/t/53q1x; Nunavut: Environmental Protection Act, RSNWT (Nu) 1988, c E-7, https://canlii.ca/t/52310.
[3] Environmental Bill of Rights, 1993, SO 1993, c 28 https://canlii.ca/t/54qfg.
[4] Environment Quality Act, CQLR c Q-2, https://canlii.ca/t/55ln6, s 19.1 and 20.
[5] Charter of Human Rights and Freedoms, CQLR c C-12, https://canlii.ca/t/55lp3, s 46.1.
[6] David Estrin & John Swaigan, eds, Environment on Trial: A Citizen’s Guide to Ontario Environmental Law (Toronto: Environmental Law Research Foundation, 1974), p 321.
[7] Nunavut: Environmental Protection Act, RSNWT (Nu) 1988, c E-7, https://canlii.ca/t/52310, s 6(1)
[8] See, for example, Yukon: Environment Act, RSY 2002, c 76, https://canlii.ca/t/55d9g, s 9(1).
[9] Environmental Bill of Rights, 1993, SO 1993, c 28 https://canlii.ca/t/54qfg, s 15.
[10] Lindgren, Richard & McClenaghan, Theresa. “ENSURING ACCESS TO ENVIRONMENTAL JUSTICE: HOW TO STRENGTHEN ONTARIO’S ENVIRONMENTAL BILL OF RIGHTS” Submissions of the Canadian Environmental Law Association To the Ministry of the Environment and Climate Change (Environmental Registry No. 012-8002) < 1082-CELA-Brief-on-EBR-Review-November-2016.pdf.
[11] Ibid.
[12] Gaspé Énergies inc. c. Ministre de l’Énergie et des Ressources naturelles, 2021 QCCQ 11747 (CanLII), https://canlii.ca/t/jkl6h, para 281-282.
[13] Boyd, David R. (David Richard). The Environmental Rights Revolution a Global Study of Constitutions, Human Rights, and the Environment. Vancouver: UBC Press, 2012.
[14] For example, see Case C-129/16, Túrkevei Tejtermelő Kft. [2017] published in the electronic Reports of Cases, ECLI:EU:C:2017:547, as discussed in Iliopoulos, T. (2021). The Jurisprudential Configuration of the “Polluter Pays” Principle: A Critical Assessment. In B. Pozzo & V. Jacometti (Eds.), Environmental Loss and Damage in a Comparative Law Perspective.
[15] Terry, LA. “Clean Water Act Citizens Suits: Key Elements and Defenses.” Environmental law & practice 4, no. 1 (1996): 19–29.