Parliament Recognizes the Right to a Healthy Environment— but there’s a catch
First major update to the Canada Environmental Protection Act in two decades passed, but more is needed to protect communities
Ottawa, May 30, 2023. Today, Parliament passed Bill S-5, intended to modernize Canada’s most important, yet badly outdated law on pollution and toxic substances: the Canadian Environmental Protection Act (CEPA). Bill S-5 makes several much needed and long-awaited changes to the Act, including:
-
recognizing the human right to a healthy environment for the first time in federal law;
-
requiring the federal government to consider the cumulative impacts of toxics and their effects on vulnerable populations; and
-
requiring the Minister to develop a plan prioritizing substances for assessment that are (or have the potential to become) toxic.
While these changes are much needed and welcome, the bill falls short of fully protecting communities, addressing significant gaps in the regulation of toxins, and providing for a substantive right to a healthy environment. There are still no mandatory timelines for completing assessments or undertaking control measures if a substance is found to be toxic - an issue which has resulted in lengthy delays in the government moving to address dangerous substances.
While the bill does recognize the right to a healthy environment— a right recognized by the UN and over 150 countries— it allows government to impose “reasonable limits” to that right (for example, if it is determined that doing so would be too costly).
“Ensuring that environmental rights are upheld consistently is crucial for addressing the pattern of environmental racism that the UN identified in its 2019 study of Canada” said Ingrid Waldron, ENRICH. “Allowing government to impose or influence limitations on this right will mean that economic development can take priority over the health of Canadians, if the price is right. In practice, this results in disproportionate impacts on BIPOC communities.”
“While we are excited that Canada has finally recognized the right to a healthy environment, we are concerned that this could be undermined by the provision that allows the government to influence the limits placed on this right,” said Melak Gebresilassie, Amnesty International Canada. “So long as this is the case, it fails to establish a true and substantive right to a healthy environment.”
Bill S-5 also failed to fix flaws in the Canada Environmental Protection Act which prevent individuals from being able to take legal action to enforce their right to a healthy environment against polluters. For rights to be effective, individuals must have the means to enforce them.
While these gaps are concerning, there are opportunities to address them, and the public’s voice is needed more than ever. Over the next two years the government will be consulting the public on an implementation framework which will set out the “reasonable limits” the right to a healthy environment will be subject to, and how this right will be considered in the administration of the Act, such as in the assessment and management of toxic substances.
The Coalition for Environmental Rights is calling on organizations and individuals concerned with environmental health and justice to engage in this process, in order to ensure that the right to a healthy environment is fully achieved, and that all communities have access to clean air, soil, and water.
Today is a landmark moment for the right to a healthy environment in Canada, but it is only a first step, and must not be our last.
​
Anyone wishing to get involved in continuing to advance the right to a healthy environment and press the government to strengthen the regulation of toxins is encouraged to reach out to the Coalition at: contact@environmentalrights.ca.
​
For media inquiries, please contact:
Peter Wood: 604 761 3075/ contact@environmentalrights.ca
About the Coalition for Environmental Rights:
The Coalition for Environmental Rights is a collection of organizations that have come together to fight environmental injustice in Canada using a human rights-based approach. We recognize that Canada’s unfair pattern of environmental harm is a reflection of deeper systemic issues that require systemic change. Coalition organizations support and amplify each other’s work towards achieving environmental justice in its many forms. Our goal is to ensure that the right to a healthy environment is recognized in law and in practice in Canada, as a way to achieve clean water and soil, and a safe and healthy climate for all. See https://www.environmentalrights.ca
​
Submission to the House of Commons Standing Committee on Environment and Sustainable Development
Standing Committee on Energy, the Environment and Natural Resources
Study: Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act
November 25, 2022
​
About the Coalition for Environmental Rights:
The Coalition for Environmental Rights represents a growing number of organisations that have come together to fight environmental injustice using a human rights-based approach. We recognize that Canada’s unfair pattern of environmental harm is a reflection of deeper systemic issues that require systemic change. Our goal is to ensure that the right to a healthy environment is recognized in law in Canada, and ultimately to ensure that in practice, everyone in Canada has access to a healthy environment, including clean air, water and soil, and a safe and healthy climate.
​
Submission Concerning Bill S-5:
The Coalition for Environmental Rights thanks the Standing Committee on Environment and Sustainable Development (ENVI) for their time in studying Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.
This bill provides a starting point for addressing major gaps in the Canada Environmental Protection Act (CEPA), but must be improved if it is to substantially bolster the protection of Canadians' health against toxins and pollution. Recognizing the committee will be receiving submissions from other important voices covering a range of issues addressed by Bill S-5, we have focused this brief and our recommendations on ensuring that this bill recognizes and protects the right to a healthy environment for all Canadians.
Over the past decade, public and political support for recognition of the right to a healthy environment has been on the rise in Canada. Polling reveals that more than 90% of people in Canada support the right to a healthy environment[1], and more than 170 cities and towns representing more than half of Canada’s population have passed resolutions recognizing this right. Political leaders and representatives have taken notice of this issue, and more than 100 members of Parliament, from across the political spectrum, have signed the MP pledge for environmental rights[2].
While public demands for the right to a healthy environment have increased, so has the threat of toxic substances to our communities. Chemical production has increased by 50 fold since 1950 and is expected to triple again by 2050[3]. Unfortunately, Canada has failed to responsibly regulate toxic substances even as they proliferate. The government has established pollution prevention plans for only 20% of 125 substances on its toxic substances lists[4] and a 2018 federal audit found the government still had significant work to do to effectively control the risk of toxic substances[5].
If Canadians' health and right to a healthy environment is to be protected, Bill S-5 must be strengthened before being returned to the house. To ensure that a meaningful and enforceable right to a healthy environment is established under the Act we recommend the following:
1. Remove language which places limits on the right to a healthy environment
While we welcome the recognition of the right to a healthy environment in federal law for the first time, the bill as currently worded would undermine the application and scope of the right, to the detriment of Canadians’ health and their communities.
Although Sub-clause 3(2) currently requires the protection of “the right of every individual in Canada to a healthy environment as provided under this Act,” this is immediately undermined by adding that this right may be “balanced” with other factors, including economic ones (similar language is included in Clause 5 of the Bill).
We recommend provisions 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. Qualifying language or restrictions are absent from the resolution adopted by the UN Human Rights Council resolution (A/HRC/RES/48/13) recognizing the right to a healthy environment:
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;
Similarly, recommendations made by the Standing Committee on Environment and Sustainable Development in its 2017 report on CEPA did not include any such restrictions or limiting language when it recommended that the right be recognized.[6]
We support the view of Senator Miville-Dechêne, that while human rights are not absolute, it is up to the courts to decide what factors to take into consideration, and to what degree[7]. Allowing for economic factors to limit the scope of the right raises serious concerns, and while social, health, and scientific factors may inform the application of the right, they should not be used to limit its scope.
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 [8]. As a result, certain populations are disproportionately impacted by pollution and toxics - the very problem that environmental rights and CEPA 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”[9]. Notably, this recommendation is not made subject to economic considerations.
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 made vulnerable to being overridden by economic interests.
​
Recommendations:
Remove reference to reasonable limits from proposed subsection 3(2) such that it reads “protect the right of every individual in Canada to a healthy environment as provided under this Act”.
Remove proposed subsection 5.1 (2c): “the reasonable limits to which the right is subject, resulting from the consideration of relevant factors, including, social, health, scientific and economic factors”
2. Strengthen legislation to guide the implementation of the right to a healthy environment
The implementation framework that is to guide how the right to a healthy environment is considered in the administration of the Act contains several positive aspects, but can be strengthened to ensure that it supports a robust right, rather than one which is limited in scope, application, and benefit.
As currently proposed, the framework would be required to elaborate on the principles to be considered in administration of the Act. This would include the principles of environmental justice - including the avoidance of adverse effects that disproportionately affect vulnerable populations, intergenerational equity and non-regression.
These are fundamental principles of the right to a healthy environment and we are encouraged to see them explicitly referenced in the implementation framework. However, we stand with other national organisations (such as the Canadian Association of Physicians for the Environment, Environmental Defence, Ecojustice, and the David Suzuki Foundation) in calling for these principles to be incorporated into Section 2 of the Act (Administrative Duties) to give them greater force and create consistency throughout the Act.
We also wish to echo recommendations to explicitly require the implementation framework to specify how the right to a healthy environment will be upheld in relation to substance assessments and the enforcement of air quality standards.
Canada has failed to establish legally binding and enforceable national standards for ambient air quality with clear consequences for the health of Canadians. Health Canada estimates that air pollution contributes to 15,300 premature deaths per year [10] and exposure to air pollution is associated with reduced lung function, respiratory disease and illness, cardiovascular disease, certain pregnancy-related outcomes, preeclampsia, cancers, and diabetes[11]. These risks are inequitably distributed, with the greatest burden often falling on communities with larger Indigenous, racialized, or marginalised populations.
Recommendations:
Provide that the Government of Canada has a duty uphold the principles of environmental justice, non-regression and intergenerational equity.
​
Require that the implementation framework specify the actions that the Minister’s must take when ambient air quality standards are exceeded and the process of considering the right to a healthy environment in the assessment of toxic substances and decisions to prohibit or substantially restrict any substance by another jurisdiction.
​
3. Amend S.22 to ensure the right to a healthy environment can be effectively enforced
Access to courts is one of the critical procedural rights that forms part of the larger right to a healthy environment. In order for the right to a healthy environment to be fully realised and protected, rights-holders must have the means to enforce it. This is what is lacking in CEPA and Bill S-5 fails to address this gap.
Section 22 (Environmental Protection Action) of CEPA establishes the right for individuals to bring a civil suit for an offence under the Act. This provision is intended to allow citizens to play a part in enforcing CEPA by bringing suits to halt, prevent, or remediate damage to the environment and human health. Unfortunately, the barriers to bringing an action under section 22 are so great that it has not been used since CEPA came into force over two decades ago.
A citizen cannot bring an action under section 22 of the Act unless:
-
they requested an investigation by the Minister under section 17 and the Minister fails to conduct an investigation and report within a reasonable time or the Minister’s response was unreasonable
-
the offence committed under the Act has caused significant environmental harm
Amendments addressing these provisions should be included as part of Bill S-5 if the right to a healthy environment is to be enforced.
Successive reports by standing committees in the House (2017[12]) and Senate (2008[13] and 2022[14]) have found that the requirement to demonstrate significant harm to the environment sets a highly restrictive threshold which undermines the ability to bring a section 22 action. In line with these reports, we recommend lowering the threshold for bringing an environmental protection action from an allegation that the offence caused ‘significant harm’ to it may or has caused ‘harm’ to the environment. Concerns raised by industry associations that removing the qualifier of significant could result in an increase of unsubstantiated or frivolous claims are over-stated and can be mitigated without maintaining a threshold that leaves section 22 to be of little practical use.
The 2017 House Standing Committee provided a series of recommendations to address such concerns including: “a mandatory 60-day notice of intent to bring a section 22 action, non-duplication of government enforcement actions, and provision for early dismissal of actions that are frivolous, vexatious or otherwise brought in bad faith” [15]. These types of provisions have been utilized in the US and Australia where citizen suits have been effective in fostering compliance and more rigorous enforcement [16].
Consistent with the 2017 House Standing committee report [17], we also recommend that individuals not be required to request a Minister’s investigation under section 17 prior to bringing an action under section 22. This requirement imposes unnecessary delays, delays which may be costly in emergency situations where notable harm is ongoing or imminent. There is no limitation on how long the Minister has to complete an investigation under section 17, and individuals should not have to wait for an investigation to be completed and then determine if the Minister’s response was unreasonable.
Senate and house standing committees have raised concerns about the barriers to citizens enforcing CEPA for nearly two decades (1995, 2007, 2008, 2017, and 2022), and yet section 22 remains unchanged. We call on this committee to end this inaction and address S.22 to ensure the right to a healthy environment can be enforced.
Recommendations
Remove the requirement for an individual to first seek a Minister’s investigation before bringing an environmental protection action.
Lower the threshold for bringing an environmental protection action from an allegation that the offence “caused significant harm” to “may or has caused harm”.
If deemed necessary, amend Bill S-5 to in accordance with recommendation 33 from the 2017 Standing Committee report to ensure environmental protection actions are brought in good faith.
4. Ensure S-5 supports effective and meaningful access to information
Access to information is a key procedural element of the right to a healthy environment. Where access to information on environmental matters is freely available, citizens and communities can take action to prevent or mitigate harm and hold governments and polluters to account. Unfortunately, this is not the case in Canada. Canadians lack information on the toxic chemicals they are exposed to throughout their lives, and lack effective mechanisms to ensure the government secures this information and makes it readily available. To address these issues, a series of amendments to Bill S-5 are necessary.
If passed, S-5 would require the Minister to develop a plan prioritising substances for assessment that are or have the potential to become toxic. While such a plan is welcome, for it to be meaningful it must be accompanied by specific timelines for when assessments and associated control measures will be complete, and a legislated requirement to update the plan within a specified timeframe. Without these provisions, there is a significant risk that governments will continue to fail in delivering timely and critical assessments of substances resulting in dangerous delays to their management.
An effective mechanism to request the Minister undertake an assessment of a substance is also needed to bolster access to information. The current mechanism under CEPA does not require the Minister to issue a clear decision as to whether the request is granted. If a decision to assess the substance is made, there is no requirement for the Minister to complete the assessment within a particular time frame. Bill S-5 should be amended to require the Minister to clearly state whether a request for an assessment has declined or granted. Where the request is granted, Bill S-5 should require the substance be added to the priority substance list and that the assessment is completed within two years. These provisions would bolster public participation and provide an effective means of ensuring the government collects and makes available critical information.
While Bill S-5 contains several provisions to bolster the government’s powers to collect data on and require industry testing of substances, it falls short of what is needed. As noted by the Senate this past summer, “bill S-5 collection of data on whether a substance is an endocrine disruptor … [and] authorizes the Minister to consider available information on vulnerable populations and the cumulative effects of a potential toxic substance. However, in none of these cases does Bill S-5 direct the Minister to require testing by industry when data gaps exist on whether a substance is toxic or is capable of becoming toxic[18]. We support and recommend this committee endorse amendments from the Canadian Environmental Law Association (CELA) which would compel the Minister to require the person to conduct testing on a substance where information is lacking or inadequate to allow a determination of whether a substance is toxic or capable of becoming toxic[19]. We also concur with CELA’s assessment that section 72 of CEPA is inappropriate and should be repealed or amended [20]. This section prevents the Minister from ordering the testing of a substance unless the Minister already has reason to suspect the substance is toxic or capable of becoming so. This places an undue onus on government for data generation, when that responsibility should rest with industry.
Provisions to ensure industry and government are compelled to collect and generate data to assess substances should also be accompanied by amendments to ensure this data is shared with Canadians. Canadians can only make informed decisions and move to protect their health if information on toxic substances is available and accessible. As such, Bill S-5 should be amended to require mandatory labelling of all hazardous substances in consumer products. Without labelling of hazardous materials, consumers are unable to choose or demand safer alternatives, and are unknowingly exposing themselves and or their families to substances known to be toxic. Government must accept their duty to protect the health of Canadians, and recognize part of that duty entails ensuring businesses and industry provide Canadians with information about the hazardous substances in their products.
Recommendations:
Require that the priority substances plan include timelines setting out when assessments and associated control measures will be completed, and that the plan be updated every 5 years.
Require that the Minister provide a clear indication as to whether a request for assessment is granted. In cases where a request for assessment is granted, require the Minister to complete that assessment within two years.
Require that the Minister exercise its power to compel testing by a person where available information is lacking or inadequate to allow a determination of whether the substance is toxic or capable of becoming toxic[21].
Require mandatory labelling of harmful substances on consumers products.
A Generational Opportunity to Protect Our Communities
CEPA is a cornerstone of Canadian environmental law, and yet we have let it become badly outdated to the detriment of Canadians health. We have a once-in-a generation opportunity to strengthen and modernize CEPA so that it is capable of meeting present-day challenges, including addressing levels of environmental injustice that have attracted international attention. We call on you to act on the recommendations listed here and ensure that CEPA supports a robust right to a healthy environment and effectively protects the health and safety of everyone in Canada.
Sincerely,
The Coalition for Environmental Rights
​
_________
Steering Committee members:
Amnesty International
Black Environmental Initiative
ENRICH (Environmental Noxiousness, Racial Inequities and Community Health) Project
Women’s Healthy Environment Network
The National Association of Women And The Law | L'Association nationale Femmes et Droit
[1] The Gandalf Group, 2017. Canadian Public Opinion on Toxics. Commissioned by Environmental Defense. June 6, 2017 (PDF).
[2] https://www.environmentalrights.ca/copy-of-mp-pledge
[3] Persson, L. et al (2022). Outside the safe operating space of the planetary boundary for novel entities. Environmental science & technology, 56(3), 1510-1521. https://doi.org/10.1021/acs.est.1c04158
[4] https://cela.ca/wp-content/uploads/2022/10/Bill_S-5-HC_submissions_Sept_2022.pdf
[5] https://www.oag-bvg.gc.ca/internet/English/parl_cesd_201810_01_e_43145.html
[6] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf
[7] https://sencanada.ca/en/committees/ENEV/noticeofmeeting/579237/44-1
[8] 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
[9] Ibid, p.21-22
[11] https://publications.gc.ca/collections/collection_2022/sc-hc/H144-100-2022-eng.pdf
[12] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf pp.37-38
[13] https://publications.gc.ca/collections/collection_2011/sen/yc26-0/YC26-0-392-6-eng.pdf p.23
[14] https://sencanada.ca/en/committees/ENEV/Report/103542/44-1
[15] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf pp.39
[16] https://www.ourcommons.ca/Content/Committee/421/ENVI/Brief/BR8603235/br-external/BoydDavid-e.pdf pp. 37-38
[17] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf pp.37-38
[18] https://sencanada.ca/en/committees/ENEV/Report/103542/44-1
[19] https://cela.ca/wp-content/uploads/2022/10/Bill_S-5-HC_submissions_Sept_2022.pdf p.47
[20] Ibid., pp.46-47
[21] For recommended language see Tab 5 of https://cela.ca/wp-content/uploads/2022/03/CELA-Proposed-Amendments-to-Bill-S-5-CEPA_03Mar22.pdf
Submission to the House of Commons Standing Committee on Environment and Sustainable Development
Standing Committee on Energy, the Environment and Natural Resources
Study: Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act
November 25, 2022
​
About the Coalition for Environmental Rights:
The Coalition for Environmental Rights represents a growing number of organisations that have come together to fight environmental injustice using a human rights-based approach. We recognize that Canada’s unfair pattern of environmental harm is a reflection of deeper systemic issues that require systemic change. Our goal is to ensure that the right to a healthy environment is recognized in law in Canada, and ultimately to ensure that in practice, everyone in Canada has access to a healthy environment, including clean air, water and soil, and a safe and healthy climate.
​
Submission Concerning Bill S-5:
The Coalition for Environmental Rights thanks the Standing Committee on Environment and Sustainable Development (ENVI) for their time in studying Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.
This bill provides a starting point for addressing major gaps in the Canada Environmental Protection Act (CEPA), but must be improved if it is to substantially bolster the protection of Canadians' health against toxins and pollution. Recognizing the committee will be receiving submissions from other important voices covering a range of issues addressed by Bill S-5, we have focused this brief and our recommendations on ensuring that this bill recognizes and protects the right to a healthy environment for all Canadians.
Over the past decade, public and political support for recognition of the right to a healthy environment has been on the rise in Canada. Polling reveals that more than 90% of people in Canada support the right to a healthy environment[1], and more than 170 cities and towns representing more than half of Canada’s population have passed resolutions recognizing this right. Political leaders and representatives have taken notice of this issue, and more than 100 members of Parliament, from across the political spectrum, have signed the MP pledge for environmental rights[2].
While public demands for the right to a healthy environment have increased, so has the threat of toxic substances to our communities. Chemical production has increased by 50 fold since 1950 and is expected to triple again by 2050[3]. Unfortunately, Canada has failed to responsibly regulate toxic substances even as they proliferate. The government has established pollution prevention plans for only 20% of 125 substances on its toxic substances lists[4] and a 2018 federal audit found the government still had significant work to do to effectively control the risk of toxic substances[5].
If Canadians' health and right to a healthy environment is to be protected, Bill S-5 must be strengthened before being returned to the house. To ensure that a meaningful and enforceable right to a healthy environment is established under the Act we recommend the following:
1. Remove language which places limits on the right to a healthy environment
While we welcome the recognition of the right to a healthy environment in federal law for the first time, the bill as currently worded would undermine the application and scope of the right, to the detriment of Canadians’ health and their communities.
Although Sub-clause 3(2) currently requires the protection of “the right of every individual in Canada to a healthy environment as provided under this Act,” this is immediately undermined by adding that this right may be “balanced” with other factors, including economic ones (similar language is included in Clause 5 of the Bill).
We recommend provisions 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. Qualifying language or restrictions are absent from the resolution adopted by the UN Human Rights Council resolution (A/HRC/RES/48/13) recognizing the right to a healthy environment:
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;
Similarly, recommendations made by the Standing Committee on Environment and Sustainable Development in its 2017 report on CEPA did not include any such restrictions or limiting language when it recommended that the right be recognized.[6]
We support the view of Senator Miville-Dechêne, that while human rights are not absolute, it is up to the courts to decide what factors to take into consideration, and to what degree[7]. Allowing for economic factors to limit the scope of the right raises serious concerns, and while social, health, and scientific factors may inform the application of the right, they should not be used to limit its scope.
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 [8]. As a result, certain populations are disproportionately impacted by pollution and toxics - the very problem that environmental rights and CEPA 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”[9]. Notably, this recommendation is not made subject to economic considerations.
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 made vulnerable to being overridden by economic interests.
​
Recommendations:
Remove reference to reasonable limits from proposed subsection 3(2) such that it reads “protect the right of every individual in Canada to a healthy environment as provided under this Act”.
Remove proposed subsection 5.1 (2c): “the reasonable limits to which the right is subject, resulting from the consideration of relevant factors, including, social, health, scientific and economic factors”
2. Strengthen legislation to guide the implementation of the right to a healthy environment
The implementation framework that is to guide how the right to a healthy environment is considered in the administration of the Act contains several positive aspects, but can be strengthened to ensure that it supports a robust right, rather than one which is limited in scope, application, and benefit.
As currently proposed, the framework would be required to elaborate on the principles to be considered in administration of the Act. This would include the principles of environmental justice - including the avoidance of adverse effects that disproportionately affect vulnerable populations, intergenerational equity and non-regression.
These are fundamental principles of the right to a healthy environment and we are encouraged to see them explicitly referenced in the implementation framework. However, we stand with other national organisations (such as the Canadian Association of Physicians for the Environment, Environmental Defence, Ecojustice, and the David Suzuki Foundation) in calling for these principles to be incorporated into Section 2 of the Act (Administrative Duties) to give them greater force and create consistency throughout the Act.
We also wish to echo recommendations to explicitly require the implementation framework to specify how the right to a healthy environment will be upheld in relation to substance assessments and the enforcement of air quality standards.
Canada has failed to establish legally binding and enforceable national standards for ambient air quality with clear consequences for the health of Canadians. Health Canada estimates that air pollution contributes to 15,300 premature deaths per year [10] and exposure to air pollution is associated with reduced lung function, respiratory disease and illness, cardiovascular disease, certain pregnancy-related outcomes, preeclampsia, cancers, and diabetes[11]. These risks are inequitably distributed, with the greatest burden often falling on communities with larger Indigenous, racialized, or marginalised populations.
Recommendations:
Provide that the Government of Canada has a duty uphold the principles of environmental justice, non-regression and intergenerational equity.
​
Require that the implementation framework specify the actions that the Minister’s must take when ambient air quality standards are exceeded and the process of considering the right to a healthy environment in the assessment of toxic substances and decisions to prohibit or substantially restrict any substance by another jurisdiction.
​
3. Amend S.22 to ensure the right to a healthy environment can be effectively enforced
Access to courts is one of the critical procedural rights that forms part of the larger right to a healthy environment. In order for the right to a healthy environment to be fully realised and protected, rights-holders must have the means to enforce it. This is what is lacking in CEPA and Bill S-5 fails to address this gap.
Section 22 (Environmental Protection Action) of CEPA establishes the right for individuals to bring a civil suit for an offence under the Act. This provision is intended to allow citizens to play a part in enforcing CEPA by bringing suits to halt, prevent, or remediate damage to the environment and human health. Unfortunately, the barriers to bringing an action under section 22 are so great that it has not been used since CEPA came into force over two decades ago.
A citizen cannot bring an action under section 22 of the Act unless:
-
they requested an investigation by the Minister under section 17 and the Minister fails to conduct an investigation and report within a reasonable time or the Minister’s response was unreasonable
-
the offence committed under the Act has caused significant environmental harm
Amendments addressing these provisions should be included as part of Bill S-5 if the right to a healthy environment is to be enforced.
Successive reports by standing committees in the House (2017[12]) and Senate (2008[13] and 2022[14]) have found that the requirement to demonstrate significant harm to the environment sets a highly restrictive threshold which undermines the ability to bring a section 22 action. In line with these reports, we recommend lowering the threshold for bringing an environmental protection action from an allegation that the offence caused ‘significant harm’ to it may or has caused ‘harm’ to the environment. Concerns raised by industry associations that removing the qualifier of significant could result in an increase of unsubstantiated or frivolous claims are over-stated and can be mitigated without maintaining a threshold that leaves section 22 to be of little practical use.
The 2017 House Standing Committee provided a series of recommendations to address such concerns including: “a mandatory 60-day notice of intent to bring a section 22 action, non-duplication of government enforcement actions, and provision for early dismissal of actions that are frivolous, vexatious or otherwise brought in bad faith” [15]. These types of provisions have been utilized in the US and Australia where citizen suits have been effective in fostering compliance and more rigorous enforcement [16].
Consistent with the 2017 House Standing committee report [17], we also recommend that individuals not be required to request a Minister’s investigation under section 17 prior to bringing an action under section 22. This requirement imposes unnecessary delays, delays which may be costly in emergency situations where notable harm is ongoing or imminent. There is no limitation on how long the Minister has to complete an investigation under section 17, and individuals should not have to wait for an investigation to be completed and then determine if the Minister’s response was unreasonable.
Senate and house standing committees have raised concerns about the barriers to citizens enforcing CEPA for nearly two decades (1995, 2007, 2008, 2017, and 2022), and yet section 22 remains unchanged. We call on this committee to end this inaction and address S.22 to ensure the right to a healthy environment can be enforced.
Recommendations
Remove the requirement for an individual to first seek a Minister’s investigation before bringing an environmental protection action.
Lower the threshold for bringing an environmental protection action from an allegation that the offence “caused significant harm” to “may or has caused harm”.
If deemed necessary, amend Bill S-5 to in accordance with recommendation 33 from the 2017 Standing Committee report to ensure environmental protection actions are brought in good faith.
4. Ensure S-5 supports effective and meaningful access to information
Access to information is a key procedural element of the right to a healthy environment. Where access to information on environmental matters is freely available, citizens and communities can take action to prevent or mitigate harm and hold governments and polluters to account. Unfortunately, this is not the case in Canada. Canadians lack information on the toxic chemicals they are exposed to throughout their lives, and lack effective mechanisms to ensure the government secures this information and makes it readily available. To address these issues, a series of amendments to Bill S-5 are necessary.
If passed, S-5 would require the Minister to develop a plan prioritising substances for assessment that are or have the potential to become toxic. While such a plan is welcome, for it to be meaningful it must be accompanied by specific timelines for when assessments and associated control measures will be complete, and a legislated requirement to update the plan within a specified timeframe. Without these provisions, there is a significant risk that governments will continue to fail in delivering timely and critical assessments of substances resulting in dangerous delays to their management.
An effective mechanism to request the Minister undertake an assessment of a substance is also needed to bolster access to information. The current mechanism under CEPA does not require the Minister to issue a clear decision as to whether the request is granted. If a decision to assess the substance is made, there is no requirement for the Minister to complete the assessment within a particular time frame. Bill S-5 should be amended to require the Minister to clearly state whether a request for an assessment has declined or granted. Where the request is granted, Bill S-5 should require the substance be added to the priority substance list and that the assessment is completed within two years. These provisions would bolster public participation and provide an effective means of ensuring the government collects and makes available critical information.
While Bill S-5 contains several provisions to bolster the government’s powers to collect data on and require industry testing of substances, it falls short of what is needed. As noted by the Senate this past summer, “bill S-5 collection of data on whether a substance is an endocrine disruptor … [and] authorizes the Minister to consider available information on vulnerable populations and the cumulative effects of a potential toxic substance. However, in none of these cases does Bill S-5 direct the Minister to require testing by industry when data gaps exist on whether a substance is toxic or is capable of becoming toxic[18]. We support and recommend this committee endorse amendments from the Canadian Environmental Law Association (CELA) which would compel the Minister to require the person to conduct testing on a substance where information is lacking or inadequate to allow a determination of whether a substance is toxic or capable of becoming toxic[19]. We also concur with CELA’s assessment that section 72 of CEPA is inappropriate and should be repealed or amended [20]. This section prevents the Minister from ordering the testing of a substance unless the Minister already has reason to suspect the substance is toxic or capable of becoming so. This places an undue onus on government for data generation, when that responsibility should rest with industry.
Provisions to ensure industry and government are compelled to collect and generate data to assess substances should also be accompanied by amendments to ensure this data is shared with Canadians. Canadians can only make informed decisions and move to protect their health if information on toxic substances is available and accessible. As such, Bill S-5 should be amended to require mandatory labelling of all hazardous substances in consumer products. Without labelling of hazardous materials, consumers are unable to choose or demand safer alternatives, and are unknowingly exposing themselves and or their families to substances known to be toxic. Government must accept their duty to protect the health of Canadians, and recognize part of that duty entails ensuring businesses and industry provide Canadians with information about the hazardous substances in their products.
Recommendations:
Require that the priority substances plan include timelines setting out when assessments and associated control measures will be completed, and that the plan be updated every 5 years.
Require that the Minister provide a clear indication as to whether a request for assessment is granted. In cases where a request for assessment is granted, require the Minister to complete that assessment within two years.
Require that the Minister exercise its power to compel testing by a person where available information is lacking or inadequate to allow a determination of whether the substance is toxic or capable of becoming toxic[21].
Require mandatory labelling of harmful substances on consumers products.
A Generational Opportunity to Protect Our Communities
CEPA is a cornerstone of Canadian environmental law, and yet we have let it become badly outdated to the detriment of Canadians health. We have a once-in-a generation opportunity to strengthen and modernize CEPA so that it is capable of meeting present-day challenges, including addressing levels of environmental injustice that have attracted international attention. We call on you to act on the recommendations listed here and ensure that CEPA supports a robust right to a healthy environment and effectively protects the health and safety of everyone in Canada.
Sincerely,
The Coalition for Environmental Rights
​
_________
Steering Committee members:
Amnesty International
Black Environmental Initiative
ENRICH (Environmental Noxiousness, Racial Inequities and Community Health) Project
Women’s Healthy Environment Network
The National Association of Women And The Law | L'Association nationale Femmes et Droit
[1] The Gandalf Group, 2017. Canadian Public Opinion on Toxics. Commissioned by Environmental Defense. June 6, 2017 (PDF).
[2] https://www.environmentalrights.ca/copy-of-mp-pledge
[3] Persson, L. et al (2022). Outside the safe operating space of the planetary boundary for novel entities. Environmental science & technology, 56(3), 1510-1521. https://doi.org/10.1021/acs.est.1c04158
[4] https://cela.ca/wp-content/uploads/2022/10/Bill_S-5-HC_submissions_Sept_2022.pdf
[5] https://www.oag-bvg.gc.ca/internet/English/parl_cesd_201810_01_e_43145.html
[6] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf
[7] https://sencanada.ca/en/committees/ENEV/noticeofmeeting/579237/44-1
[8] 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
[9] Ibid, p.21-22
[11] https://publications.gc.ca/collections/collection_2022/sc-hc/H144-100-2022-eng.pdf
[12] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf pp.37-38
[13] https://publications.gc.ca/collections/collection_2011/sen/yc26-0/YC26-0-392-6-eng.pdf p.23
[14] https://sencanada.ca/en/committees/ENEV/Report/103542/44-1
[15] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf pp.39
[16] https://www.ourcommons.ca/Content/Committee/421/ENVI/Brief/BR8603235/br-external/BoydDavid-e.pdf pp. 37-38
[17] https://www.ourcommons.ca/Content/Committee/421/ENVI/Reports/RP9037962/envirp08/envirp08-e.pdf pp.37-38
[18] https://sencanada.ca/en/committees/ENEV/Report/103542/44-1
[19] https://cela.ca/wp-content/uploads/2022/10/Bill_S-5-HC_submissions_Sept_2022.pdf p.47
[20] Ibid., pp.46-47
[21] For recommended language see Tab 5 of https://cela.ca/wp-content/uploads/2022/03/CELA-Proposed-Amendments-to-Bill-S-5-CEPA_03Mar22.pdf
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
​
- 30 –
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