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And Environmental Justice For All

The compelling case for a Canadian Environmental Bill of Rights

by Rebecca Hussman

Canadians are often lulled into believing we have a right to clean water. This is, in fact, not the case. [Photo: flickr]
Canadians are often lulled into believing we have a right to clean water. This is, in fact, not the case. [Photo: flickr]

KJIPUKTUK (Halifax) - Citizens of British Columbia are leading the way in a growing environmental movement across Canada with its 13 municipal declarations in support of environmental rights.

The grassroots movement aiming at granting Canadian citizens the legal right to a healthy environment, known as the Blue Dot, was started by the David Suzuki Foundation and Ecojustice Canada in the summer of 2014. Since the cross-country Blue Dot tour wrapped up in November, there have been 20 municipal declarations made – thirteen in British Columbia, three in Quebec, two in Manitoba and one in The Northwest Territories. The notion of an environmental bill of rights has clearly resonated with Canadians, as demonstrated by a petition that has counted more than 67,000 signatures to date.

The Blue Dot campaign also calls for increased transparency with regards to toxins in products, harmful pollutants being released into the atmosphere, as well as encouraging more public participation when the government makes decisions that affect the Canadian environment.

In order for the right to a healthy environment, or 'environmental rights', to be added to the Canadian Charter, changes must first happen on the municipal level, says Katie Perfitt, the community organizer of Halifax Blue Dot hired by the David Suzuki Foundation. With municipal council approval, mayors are then able to pass a by-law declaring their support for the citizen's right to a healthy environment. Halifax, for its part, appears supportive at the municipal level.

On February 5th, Perfitt and Kate MacEachern-Ali, a fellow Halifax Blue Dot volunteer, presented to Halifax City Council’s Environment and Sustainability Standing Committee.

Perfitt says that the council’s response was incredibly supportive.

“They decided unanimously to have a staff report done in regards to the model declaration and expect a positive recommendation to come of that,” Perfitt writes.

“The committee was taken with the fact that during our kickoff event, two out of the three keynote speakers were under the age of 12. They said that spoke volumes about who we are really fighting this fight for,” MacEachern-Ali says.

Once municipal leaders are on board, it is up to the provincial or territorial leaders to pass a bill in support of protecting the environment and citizens’ environmental rights.

Jamie Simpson, executive director of East Coast Environmental Law, says that in Nova Scotia, a provincial bill supporting the right to a healthy environment could assume many forms. It could be a stand-alone bill, or either an amendment to the Environmental Goals and Sustainable Prosperity (EGSPA) Act or to the Human Rights Act.

“I think that a lot of people sort of just assume that (Canadians) have a right to clean water," Simpson says.

Silver Donald Cameron, a local environmental activist and executive director of TheGreenInterview.com, says that EGSPA is a “wonderful” and “very advanced piece of legislation,” but that it “really has not had the impact on the province that it should have.”

Whatever form a prospective provincial bill may take, Simpson says he and other members on the front lines of the Nova Scotia environmental rights movement plan on coming up with a draft of the provincial bill by the end of 2015.

Three Benefits of an Environmental Bill of Rights

“The laws just don’t take into account cumulative effects when permitting industrial emissions in Canada,” says Kaitlyn Mitchell, a lawyer for Ecojustice Canada.

According to Mitchell, Canadian citizens would experience three main benefits if they gained the constitutional right to a healthy environment. The first benefit would be that the federal government would be required to treat every citizen equally, preventing any further discriminatory treatment to vulnerable populations such as low-income or First Nations communities.

“There are a number of situations that are examples of environmental injustice in Canada. Thousands of First Nations people, for example, not having access to clean water, communities that bear a disproportionate amount of air pollution such as Sarnia’s Chemical Valley and Alberta’s Fort MacMurray,” she explains.

“A constitutional right to a healthy environment would mean that governments would be forced to recognize that regardless of who they are or where they live, every Canadian is entitled to a minimum standard of environmental quality. I think that’s significant,” Mitchell says.

Mitchell believes that First Nations’ lacking access to safe drinking water is an example of the systemic environmental injustice or environmental racism that occurs within Canadian borders. She notes that Canadian First Nations communities are subjected to “a disproportionate amount” of the negative effects from industrial development projects.

“When people are not getting that access to clean drinking water, and there’s no legal recourse through a recognized right, or when people are breathing air that makes them sick and there’s no right to breathe air that’s not going to make them sick, I think people sort of wake up a bit to what’s missing here,” Simpson says.

Second, Mitchell notes that in Canada, part of the problem is that there is currently “no national water law.” Which is to say, provincial and territorial governments are responsible for monitoring drinking water quality. This means that certain places have stronger regulations than others, and that only some Canadians are granted the right to access water that is safe to drink.

“Communities under federal jurisdiction – that includes First Nations reserves – don’t have legal protection of their drinking water quality,” Mitchell explains.

A constitutional right to a healthy environment would ensure that every citizen’s health is given legal protection from harm, meaning that every Canadian would become entitled to pollution-free air, safe drinking water and clean soil. This would be especially crucial for Canadians who are continually being exposed to unwanted pollutants from industrial development, such as First Nations communities and those living in close proximity to industrial sites.

“I believe that having a constitutional right to a healthy environment could, at the very least, give those types of communities a strong legal tool to enforce their right to clean drinking water in this case, or safe air in other communities,” she says.

Third, if environmental rights were added to the Charter, all existing environmental laws would become more resistant to attacks. Mitchell says that this benefit is especially important to consider because in Canada, environmental laws get “scaled back” on the municipal, provincial and territorial and federal level too often. For instance, in 2012, the Canadian Environmental Assessment Act and the Fisheries Act were scaled back, according to Mitchell.

But with a constitutional right to a healthy environment, the federal government “essentially has to be moving forward. It can’t scale back existing protections.” Mitchell believes that having this “stand-still principle” could “make a really significant difference in Canada.”

Further, Mitchell says that in Canada, environmental class action lawsuits have been “few and far between,” but says that the most recent two, the first filed by citizens from Ontario and the second by citizens of Nova Scotia, were denied leave to appeal by the Supreme Court.

Legal Empowerment through an Environmental Bill of Rights

More than a decade ago, citizens of Sydney, Cape Breton, with the help of Ecojustice, presented the Nova Scotia Supreme Court with an environmental class action lawsuit. Led by Neila MacQueen, the lawsuit was filed against the Sydney Steel Corporation, also known as Sysco, on the grounds that “the emission of hazardous contaminants from the steel works caused damage to and constitutes an interference with their property rights and the integrity of their persons,” according to the case record. Violating integrity of the person is violating section 7 of the Charter of Rights and Freedoms, which reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Residents and landowners of Sydney also felt that the site was being neglected and not properly monitored. The site was used for steel-making for almost a hundred years, meaning that there had been decades of harmful pollutant accumulation. Over the years, federal reports confirming the hazardous nature of the site were published, such as a 2002 report from the Office of the Auditor General of Canada labelling the site as “one of Canada’s largest and most contaminated sites.”

Now, the toxic sludge left over from the tar ponds is hidden under a “green space” called Open Heart Park. The park came about in 2013 through a cleanup initiative that cost the federal government around $400 million.

“That cosmetic upgrade however, is cold comfort for local residents still coping with illnesses and diseases linked to exposure to the tar ponds,” according to a report from Ecojustice.

Justice Allan Boudreau from the Nova Scotia Supreme Court, however, denied leave for appeal. Mitchell says that it is now a tough road ahead for the people of Sydney.

“They do still have legal tools, but the question is whether or not those tools will actually be effective in terms of promoting access to justice.”

One other case in Nova Scotia involves the citizens of Harrietsfield who lack access to non-contaminated water because of their close proximity to a construction and demolition recycling industrial site.

“Over the years, as operations on that site continued, contaminants ended up from those materials on the site and in the community's groundwater,” says Mitchell, one of the lawyers from Ecojustice who got involved with the case.

In Harrietsfield, the main water supply that citizens have access to is filled with a number of contaminants, such as high levels of uranium, lead, boron and arsenic. In 2010, the case went to trial, and under the Environment Act, the provincial Minister of the Environment issued an order to the five corporations who owned the property over the years.

“(The order) basically says that these five parties are jointly and severally liable to undertake tasks that involve cleaning up the site, and monitoring the pollution that has been caused by the site,” Mitchell explains.

However, since that order was issued, it has been appealed by one of the parties listed, 3076525 Nova Scotia Ltd. Mitchell became involved at this point because she was in favour of the order and, like the clients she represented, wanted to make sure it would actually be upheld and followed through with.

“Melissa King, Jonathan Andrews and Marlene Brown wanted to make sure the court understood that this decision has serious implications for their health and their wellbeing, and really to underscore the fact that the minister had a right – and they believe, a duty – to issue this order and actually tackle the problem.”

However, Mitchell says citizens of Harrietsfield generally “don’t have the sense that the order has yet been complied with.”

She also says that the company who filed the appeal “has indicated that they have been compliant with the order but for one specific part of the order that they find problematic,” but she adds that there is no public record for her to really know for sure “the extent to which the order is or is not being complied with.”

Mitchell says that the order was issued almost five years ago, and she hopes that the decision will be made soon. “The community just wants to see action taken on the ground,” she says.

With an environmental bill of rights, such cases would not need to be fought piecemeal with the respective provincial jurisdictions.

Mitchell says that Canada is “falling behind on the world stage when it comes to recognizing environmental rights.”

“There’s every possibility for us to move the law here in Canada to recognize what sort of seems intuitively to be an inherent right of Canadians,” says Simpson.

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