Discussions of Bill S-5: Urgent Action Needed
Standing Senate Committee on Energy, the Environment and Natural Resources 

June 1, 2022

Attn: Standing Senate Committee on Energy, the Environment and Natural Resources

 

Dear Senators,

 

We, the Coalition for Environmental Rights[1], wish to bring your attention to a matter of great urgency, regarding the Committee’s ongoing discussions of Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.

 

We wish to express concern that as Bill S-5 is currently worded, Canada is at risk of becoming the only country in the world where the right to a healthy environment is explicitly subjected to being ‘balanced’ against economic interests. Sub-clause 3(2) currently states:   

(2) Subsection 2(1) of the Act is amended by adding the following after paragraph (a.‍1):(a.‍2) protect the right of every individual in Canada to a healthy environment as provided under this Act, which right may be balanced with relevant factors, including social, economic, health and scientific factors;

 

Similar language is included in Clause 5 of the Bill. 

 

Several formal submissions and testimonies before the Committee have flagged why adding an economic qualifier to a human right is problematic, and out of step with language that other jurisdictions have used to recognize this right. We are not aware of any of the 156 members of the United Nations that have recognized this right in law, that have subjected it to “balancing” of any sort. Similarly, the resolution recently adopted by the UN Human Rights Council (A/HRC/48/L.23/Rev.1):                                                          

1. Recognizes the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights;                               

2. Notes that the right to a safe, clean, healthy and sustainable environment is related to other rights that are in accordance with existing international law;

Can you imagine if it were proposed that any of our Charter rights be amended to explicitly subject them to being “balanced” against economic factors? Would we ever allow discrimination on the basis of race or gender, if that were deemed to be what was required to achieve “economic balance”? To suggest so would be scandalous. Yet that is effectively what is being suggested within Bill S-5.

 

As identified by the UN Special Rapporteur on Toxics and Human Rights in a 2020 report, many communities in Canada do not currently have access to a healthy environment, and this is often a result of economic interests superseding those of less politically powerful communities[2]. As a result, certain populations are disproportionately impacted by pollution and toxics- this is the very problem that environmental rights are meant to address. This includes Indigenous, Black, other racialized and low-income communities, as well as women, children, people with disabilities, and other people who have been made vulnerable. 

 

Thus, the top recommendation made by the resulting UN report states that Canada should “Recognize the right to a healthy environment through legislation and eventually a constitutional amendment, including the duty to prevent exposure to hazardous substances.”[3]

 

Notably, this recommendation is not made subject to economic considerations. 

 

Polling reveals that more than 90% of people in Canada support the right to a healthy environment[4], so it’s no surprise that more than one hundred Members of Parliament, from all major parties, have now signed the MP Pledge for Environmental Rights[5], which states: “I hereby pledge that, as a Member of Parliament, I will support the recognition in law of the right to a healthy environment for all people in Canada.” Again, this is not subject to economic “balancing.” 

 

In the May 31st, 2022 Senate ENEV Committee hearing[6], an alternative text was proposed, to the effect that the right to a healthy environment would instead be “subject to reasonable limits.” However, this does not address the problem. Our current predicament is the result of many years of decision makers believing that the environmental degradation being inflicted on the communities mentioned above is “reasonable.”

 

As raised in Committee on May 31st, 2022 by Senator Miville-Dechêne[7], while human rights are not absolute, it is up to the courts to decide what other factors to take into consideration, and to what degree.  

 

Our Coalition joins the many other groups and individuals that are calling for this provision to be kept consistent with international, national, provincial and municipal language recognizing the right to a healthy environment, and not made subject to any qualifications or restrictions. Consistent with this recommendation we urge the committee to ensure the bill reads as follows: 
 

3 (2) Subsection 2(1) of the Act is amended by adding the following after paragraph (a.‍1):

(a.‍2) protect the right of every individual in Canada to a healthy environment as provided under this Act. 

 

If this bill leaves the Senate without addressing this fundamental flaw, we will focus our efforts on ensuring that this is rectified in the House of Commons before becoming law. 

 

We hope you will take these concerns into consideration as you complete your remaining deliberations on this bill. We would be happy to provide more information on the right to a healthy environment, the benefits it can provide, and the growing international movement that supports this concept.

 

Best regards,

 

Kristian Ferreira, LL.B & Peter Wood, Ph.D

 

On behalf of the Coalition for Environmental Rights

 

[1] The Coalition for Environmental Rights is guided by a small steering committee composed of organizations representing key constituencies seeking to achieve environmental rights, with support from highly-engaged volunteer advisors and coordinators.  In addition, we are supported by national and local member organizations, representing diverse interests, who share our common vision and commit to supporting the coalition in pursuit of its goals and objectives.https://www.environmentalrights.ca/who-we-are

[2] UN Human Rights Council, 2020.Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes on his visit to Canada. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G20/328/37/PDF/G2032837.pdf?OpenElement

[3] Ibid, p. 21-22.

[4] The Gandalf Group, 2017. Canadian Public Opinion on Toxics. Commissioned by Environmental Defense. June 6, 2017. (PDF).

[5] https://www.environmentalrights.ca/copy-of-mp-pledge

[6] https://sencanada.ca/en/committees/ENEV/noticeofmeeting/579237/44-1

[7] Ibid

Canada’s first environmental racism bill closer to becoming law
Groups urge all MPs to support Bill C-230 in final House vote this fall

OTTAWA | | TRADITIONAL, UNCEDED TERRITORY OF THE ALGONQUIN ANISHNAABEG PEOPLE (June 22, 2021) -- 

We, a broad and diverse coalition of civil society groups, urge Parliament to move forward with passing an environmental racism law immediately following its summer break. Yesterday, the House of Commons environment committee completed its review of Bill C-230, which mandates the federal government to examine the link between race, socio-economic status and environmental risk. This marked a critical first step toward Canada acknowledging its shameful legacy of environmental racism and ensuring that all people in Canada benefit from environment protection policies.

Renamed the National Strategy Respecting Environmental Racism and Environmental Justice Act, the bill, if passed, would require the federal environment minister to develop a strategy on environmental racism and environmental justice – a Canadian first. Canada is long overdue for this legislation -- parallel requirements have been in place in the U.S. since 1994. 

It’s good to see Canada finally stepping up, but we have no time to lose to ensure this draft legislation actually becomes law. With the House of Commons scheduled to break for the summer later this week and a potential election this fall, we strongly urge all parties to move the bill through the final stages of the legislative process as soon as possible when Parliament resumes sitting following its summer break. Canadians can’t afford a delay of this long-awaited legislation.

Additional information on the review of the Standing Committee on Environment and Sustainable development: 

  • MP Lenore Zann (Cumberland – Colchester) introduced Bill C-230 in February 2020.

  • Three of the four parties represented on the committee supported the bill with amendments. An important sub-amendment, proposed by MP Taylor Bachrach (Skeena – Bulkley Valley) and approved by the committee, stipulates that the national strategy must include information and statistics related to the location of environmental hazards, and an examination of the link between race, socio-economic status and environmental risk, as well as health-outcomes. A lack of disaggregated data about environmental hazards and effects on racialized and low-income people in Canada has obscured the problem and hampers efforts to advance environmental justice.

  • The committee tabled its report on Bill C-230 in Parliament today. 

 

 

The National Anti-Environmental Racism Coalition (NAERC) was formed in 2020 by Ingrid Waldron from the ENRICH Project and Naolo Charles from the Black Environmental Initiative to mobilize organizations and individuals for the environmental protection of Black, Indigenous and immigrant communities and for the promotion of environmental justice in Canada. The National Anti-Environmental Racism Coalition is composed of over 60 organizations working in the social and environmental sector. Our current work is paving the way for the success of a national environmental justice strategy in Canada.

 

 

Statement issued by the following groups: Black Environmental Initiative, Breast Cancer Action Quebec, Canadian Association of Physicians for the Environment (CAPE), Canadian Environmental Law Association, Coalition for Environmental Rights, David Suzuki Foundation, Ecojustice, ENRICH Project, Environmental Defence, Équiterre, National Anti-Environmental Racism Coalition, Nature Canada, Prevent Cancer Now, Sierra Club Canada Foundation, West Coast Environmental Law

Please see here for quotes from NAERC groups and individuals supporting Bill C-230

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Environmental racism occurs when environmental policies or practices intentionally or unintentionally result in disproportionate negative impacts on certain individuals, groups or communities based on race or colour, and as well as unequal access to environmental benefits. Examples of environmental racism in Canada have been documented by the ENRICH Project and in a 2020 report by the UN Special Rapporteur on toxics and human rights.

 

For more information or a media interview, please contact:

Brendan Glauser, bglauser@davidsuzuki.org, 604-356-8829

Sarah Jamal, sjamal@environmentaldefence.ca, 905-921-7786