Environmental Justice - 2018-2019 CHAPTER THEME REPORT
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2018-2019 CHAPTER THEME REPORT
Environmental Justice
in Canada
ENVIRONMENTAL JUSTICE IN CANADA
Primary Researcher and Writer: Kenya-Jade Pinto
Edited by: Lisa Del Col, Brittany Twiss, Tristan Mohamed
SECTIO N / GALLERY
Special thanks to experts Dayna Scott, Jamie Benidickson, Ian Miron and Level summer
student Sarah Mack for their guidance in the drafting of this report.
!
© Level. Changing Lives Through Law
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Contents of this publication may be reproduced in whole or in part provided the Intended
use is for non-commercial purposes and full acknowledgement is given to the authors
and editors and to Level as publisher. Reasonable precautions have been taken to verify
the information contained in this publication. However, the published material is being
distributed without warranty of any kind, either expressed or implied. The publication
should particularly not be relied upon for Legal l advice. The responsibility for
interpretation and use of the material lies with the reader. In no event shall the authors,
editors or publisher be liable for damages arising from its use.
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Level is a Canadian charitable organization that levels the playing field by disrupting
stereotypes, building empathy and advancing human rights through community-led
education programs, research and advocacy.
www.leveljustice.org!
October 2018
September
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Table of Contents
1. Introduction ........................................................................................................................ 5
1.1 About Level and the Environmental Justice Movement ......................................................... 5
2. Using the Theme Guide....................................................................................................... 6
2.1 Reading and Learning ............................................................................................................. 6
2.2 Glossary and Key Terms ......................................................................................................... 6
3. What is Environmental Justice? .......................................................................................... 8
3.1 Historical Origins .................................................................................................................... 8
3.2 The Contemporary Canadian Context .................................................................................... 8
4. Environmental Law and the Legislative Framework in Canada ........................................ 10
4.1 Overview .............................................................................................................................. 10
4.2 Basic Principles ..................................................................................................................... 10
4.3 Separation of Powers: Defining the Scope of Environmental Authority in Canada .............. 14
4.4 A Human Right to Environmental Quality ............................................................................ 15
5. Topic: Pollution ................................................................................................................. 17
5.1 Overview .............................................................................................................................. 17
5.2 Case Study: Sarnia’s Chemical Valley.................................................................................... 18
5.3 Case Study: Grassy Narrows ................................................................................................. 19
5.4 Case Study: Africville ............................................................................................................ 20
6. Topic: Access to Water...................................................................................................... 20
6.1 Overview .............................................................................................................................. 20
6.2 Canada’s Obligations: the Right to Water in International and Domestic Law ..................... 21
6.3 Case Study: Shoal Lake 40 ................................................................................................... 21
7. Topic: Access to Food ........................................................................................................ 23
7.1 Overview .............................................................................................................................. 23
7.2 Canada’s Obligations: the Right to Food Security in International and Domestic Law ......... 23
7.3 Case Study: The Arctic Circle ................................................................................................ 24
8. Topic: Climate Change ...................................................................................................... 25
8.1 Understanding Climate Change and the Legislative Framework .......................................... 25
8.2 Case Study: Northwest Territories........................................................................................ 26
9. Conclusion ........................................................................................................................ 27
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1. Introduction2
1.1 About Level and the Environmental Justice Movement
Level is a charitable organization on a mission to disrupt prejudice, build empathy and advance
human rights. We pursue our mission through youth outreach, research, advocacy, training, and
mentorship. Through our Campus Chapter program, we develop and empower social justice
leaders to fulfil their potential by creating opportunities for Canadian law students to engage in
research, advocacy, and community education initiatives on their campuses.
Each year, Level’s Campus Chapters learn and educate their communities about a human rights
theme. In past years, Level has explored topics such as: human trafficking, refugee rights,
children’s rights, Indigenous rights, transitional justice, corporate social responsibility and
women’s rights. This year, Level’s Campus Chapters will focus on environmental justice in
Canada.
In 2018, recognizing and speaking out against environmental injustice is as important as ever.
Unfortunately, we still live in a time where a significant number of First Nation communities in
Canada are faced with boil water advisories and the effects of climate change can be seen and
felt more than ever before.3 Additionally, waste by-products, mercury leaching, and a lack of
access to nutritious foods affect Indigenous and racialized communities at rates higher than the
rest of the Canadian population.4
Environmental justice is the idea that everybody, regardless of race or socioeconomic status,
should have equal protection with respect to the “development, implementation, and
enforcement of environmental laws, regulations and policies.”5 Researchers in this field take a
multidisciplinary approach that involves examining the experiences of communities who
shoulder a large burden of environmental injustice through the diverse lenses of health, biology,
science, economics, and law.6 Beyond the need for a balanced, intersectional perspective, it is
important for lawyers and activists who engage with environmental justice issues to also take
such an approach, because as we will learn later on, defining the Canadian environmental regime
is not a straightforward task.
At the heart of the environmental justice movement is a desire to turn a critical eye to the power
structures that create and distribute environmental harm to specific communities.7 Put another
way, this movement is about the impact of environmental policies, laws, and actions on people.
Similarly, at the core of Level’s mission is a commitment to work with people, particularly youth,
on our mission to disrupt prejudice, build empathy and advance human rights. Level recognizes
that law and social policy do not exist in a vacuum; rather, they are tools that when placed in the
right hands, can change the world for the betterment of all.
This report does not intend to exhaustively cover all of the environmental justice issues facing
communities living in Canada today. Rather, it aims to highlight some of the historical and
emerging issues in Canada through an environmental justice lens and offer an opportunity for
5students and practitioners alike to engage in critical and productive conversations on how to
drive forward and create change.
2. Using the Theme Guide
2.1 Reading and Learning
Each chapter in this guide is meant to provide students with a foundational understanding of a
specific topic area within environmental justice. These are not exhaustive nor in-depth; rather,
they provide students with a basic understanding of the issues. After each chapter, a resource
box includes ideas for engaging your school communities as well as questions to consider and
opportunities for further research.
2.2 Glossary and Key Terms
Abbreviation Name and Definition8
CEPA, 1999 Canadian Environmental Protection Act, 1999
DWA Drinking Water Advisory
Advisories administered by the government cautioning citizens to boil, or not to use or consume
water.
- Environmental equity
The idea that all populations should bear a proportionate share of environmental pollution and
health risks.
- Environmental justice
A social movement and theoretical lens that advocates for the fair treatment and significant
involvement of poor, racialized, and Indigenous communities in shaping environmental policy
and decisions.
- Environmental racism
Racial discrimination in environmental policymaking, including the enforcement of regulations
and laws, and targeting of communities of colour for toxic waste disposal resulting in differential
treatment and/or disproportionate harm to individuals, groups, or communities based on race
or colour.
- Food desert
A residential area where low-income residents have limited or no access to retail food
establishments (for example, grocery stores), with nutritious options at an affordable price.
- Greenhouse effect
The trapping of the sun's warmth in a planet's lower atmosphere due to the greater
transparency of the atmosphere to visible radiation from the sun than to infrared radiation
emitted from the planet's surface.
GHG Greenhouse Gas
Gases that absorb and trap heat in the atmosphere and cause a warming effect on earth. Some
occur naturally in the atmosphere, while others result from human activities. Greenhouse gases
6include carbon dioxide, water vapor, methane, nitrous oxide, ozone, chlorofluorocarbons,
hydrofluorocarbons and perfluorocarbons.
- Indigenous
a collective name for the original peoples of North America and their descendants.
The Canadian Constitution recognizes three groups of Indigenous peoples: First Nations
(referred to under Canadian legislation as Indians in the Indian Act), Inuit and Métis.
PCB Polychlorinated Biphenyl
A common organic chlorine compound with environmental toxicity.
- Polluter Pays Principle
The principle that users and producers of pollutants and wastes should bear the responsibility
for their actions. Under this principle, companies or people that pollute should pay the costs
they impose on society.
POGG Peace, Order and Good Government
“Peace, order and good government” are the words used in section 91 of the British North
America Act of 1867 (now Constitution Act, 1867) to define the Canadian Parliament’s
lawmaking authority in relation to provincial authority. The phrase’s vague and broad definition
of Parliament’s authority over provincial matters has caused tensions between federal and
provincial governments over the scope of their respective powers since Confederation. It has
come to be considered the Canadian counterpart to the United States’ “life, liberty and the
pursuit of happiness.”
- Precautionary Principle
The principle that where there are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
SCLP Short term climate pollutant
A group of greenhouse gases and air pollutants that have a near-term warming impact
on climate and can affect air quality.
- Toxic
A substance that, upon entering the environment:
1. has or may have an immediate or long-term harmful effect on the environment or its
biological diversity;
2. constitutes or may constitute a danger to the environment on which life depends; or,
3. constitutes or may constitute a danger in Canada to human life or health.
VOC Volatile organic compound
compounds that easily become vapors or gases. VOCs are released from burning fuel such as
gasoline, wood, coal, or natural gas. They are also released from many consumer products
including cigarettes and solvents.
73. What is Environmental Justice?
3.1 Historical Origins
The origin of the environmental justice movement is largely attributed to the 1980s, when
racialized and low-income individuals galvanized across the United States to rally for greater
protection in their communities against “dirty industry”, like petroleum refineries, coal-fired
utilities, chemical plants, landfills, nuclear plants, or waste dumps.9 Displeased with the unequal
environmental burden that their communities faced, momentum grew into a national campaign
that would eventually be referred to as the environmental justice movement.10
Some scholars trace the origins of the environmental justice movement to Love Canal, an area in
Niagara Falls, New York, where low-income, (mostly) white residents experienced birth defects,
cancers, and respiratory problems at a disproportionately high rate. The community eventually
identified the sources of the contamination to chemical waste left behind by a chemical
company.11 Lois Gibbs, who led the struggle, went on to create a national environmental justice
organization emphasizing that the movement was about, “people and the places they live, work
and play”.12 Others trace the movement back farther, to the 1960s, when Latino farm workers
advocated for protection from pesticides in the San Joaquin Valley.13
Regardless of when the environmental justice movement began, the events at Warren County
helped to crystalize the idea that low-income people of colour were disproportionately affected
by environmental degradation and harm. In the 1980s, the community unexpectedly rallied
against the state’s decision to dump PCB-ridden soil on their land.14 The community members,
who were mostly African American, drew national attention to the issue, and shortly thereafter
a report by the United Church of Christ Commission for Racial Justice defined environmental
racism as “intentionally selecting communities of colour for waste disposal sites and polluting
industrial facilities”.15 The report demonstrated that race—not household income or the price of
a home—was the best way to predict the location of hazardous waste facilities in the United
States.16 This eventually led the US federal government to add environmental justice to the
Environmental Protection Act’s mandate during the Clinton administration.17
3.2 The Contemporary Canadian Context
Canadian environmental lawyer and York Research Chair in Environmental Law & Justice in the
Green Economy Dayna Scott, frames environmental justice as a social movement and theoretical
lens that advocates for the fair treatment and significant involvement of poor, racialized, and
Indigenous communities in shaping environmental policy and decisions.18 Similarly, Deborah
McGregor, an Anishnaabe woman and Canada Research Chair in Indigenous Environmental
Justice, suggests that the path to environmental justice requires a sober critique of colonial
power structures.19 McGregor further underscores that from an Indigenous perspective these
power dynamics are not limited to people, but include “all our relations”.20 From this Anishnaabe
worldview, McGregor says, environmental justice and the framing of “all our relations” is more
8than the power dynamics between people and institutions—it also includes justice for “all beings
of Creation”.21
Until recently, academic scholarship on environmental justice in Canada has been limited.22
However, this has not been due to a lack of environmental inequity in the country. One scholar
suggests that the movement simply did not catch on as a means to galvanize communities to
champion for change and posits that the factors that make for compelling environmental justice
arguments (for example, large-scale patterns of racial segregation) in the United States, do not
exist in the same way, or require a more nuanced approach in Canada.23 Others suggest that
there have been environmental justice movements in Canada for hundreds of years, but that
these struggles have simply fallen under social justice and human rights advocacy movements.24
It is also important to recognize, as Agyemang et. al have highlighted, that academic research is
largely carried out by universities, governments and transnational corporations.25 Which begs
the question of who is conducting this research, for whom, and under what standard.
The modern-day environmental justice movement is evolving. Today, because of the increased
awareness of the connection between the environment and people, as well as the multi-
disciplinary nature of the environmental justice movement, activists are increasingly focusing
their efforts beyond “conventional” environmental harms (air, water, and soil contamination),
and shifting towards such topics as toxic workplaces, conditions in public housing projects, water
and sanitation services on reservations, and urban food deserts, to name a few.26 In 2016, Dr.
Ingrid Waldron further articulated the main components of environmental racism in Canada at
the Indigenous Environmental Justice Symposium held at York University. She described the
three facets of environmental racism as:
1. a disproportionate siting of polluting industries and other harms in close proximity to
communities of colour as well as Indigenous communities;
2. a lack of capacity at the community level to resist these industries and activities; and,
3. shouldering an uneven burden of the environmental impacts of policies and regulations.27
To address environmental racism in Canada, Dr. Waldron worked with Lenore Zann, Member of
the Legislative Assembly in Nova Scotia, as well as the East Coast Environmental Law Association
to introduce Bill 32, An Act to Address Environmental Racism. This legislation is the first of its
kind, and calls for consultation with Mi’kmaw, African Nova Scotian and Acadian communities.28
As of September 1, 2018, the bill remains in its first reading at the Nova Scotia Legislature.29
Consider this:
What are some examples of environmental racism or injustice that you can think of in your
community?
How does the environmental justice movement relate to other movements and causes? Can
you see any opportunities for collaboration with other movements or causes? What could
that look like?
What other examples of environmental harm can you think of that weren’t canvassed above?
94. Environmental Law and the Legislative Framework in Canada
4.1 Overview
When examining environmental justice issues in Canada it is helpful for students and advocates
to have a foundational understanding of some key principles in Canadian environmental law. In
his foundational text, Environmental Law, Professor Benidickson sets out foundational principles
which have been highlighted below.
While the topic is not new, Canadian law schools did not always offer courses—let alone
specializations—in environmental law.30 This could be due to the fact that defining the scope of
what constitutes environmental law in Canada is a particularly difficult task. Some statutes,
doctrine, and principles have direct links in their objectives and effects on the environment, and
others are less obvious.31 For example, compare a statute that identifies ‘environmental
standards’ to doctrines relating to nuisance, negligence, and strict liability.32 The former has an
obvious link to the environment, and the latter is perhaps more abstract. More complex still, is
the fact that not all components of the environmental law regime in Canada fit neatly inside a
‘substantive law’ box.33 Indeed, environmental law will also include things like environmental
decision making, the granting of environmental licenses and overseeing of waste management.34
Additionally, because the environment is not limited by human-made boundaries or provincial
borders, the legal regime also necessarily includes the collective and collaborative effort of
provincial, federal, and Indigenous decision-makers, regulators, and policy-makers. As a result of
all these factors, it is not surprising that in the same way that it is difficult to define the scope of
environmental law, it is difficult to evaluate its success or failure, 35 (though scholars still do try).
4.2 Basic Principles
The Supreme Court of Canada has emphasized the importance of preserving the environment as
a fundamental value in Canadian society. As outlined in BC v Canadian Forest Products,36 the
court has observed, declared and reiterated through multiple cases that, “legal measures to
protect the environment ‘relate to a public purpose of superordinate importance’”,37 the
“protection of the environment has become one of the major challenges of our time”,38
“stewardship of the natural environment”39 is a fundamental value, and, “our common future,
that of every Canadian community depends on a healthy environment”.40 Basic principles,
outlined below, have been widely canvased, upheld and examined by the Court, by litigants, and
in legislation.41
i. Pollution
By general definition, pollution is the contamination of air, water, or earth by harmful
substances.42 In the Canadian environmental law context, however, pollution (and, more
specifically, what amounts to prohibited pollution), varies.43 Benidickson highlights these
differences by comparing legislation across provinces. For example, where a piece of legislation
from Quebec defines a pollutant as a contaminant in greater quantity than the permissible level,
10a statute from British Columbia defined it as the presence of contaminants that substantially alter
or impair the usefulness of the environment.44 The varying definition of pollution across statutes
is common in Canadian legislation, but the common denominator relates to the risk that a
particular contaminant will have adverse effects on the environment.45
Depending on the nature of the substance, pollutants affect the environment differently, and
have similarly varying impacts on human health. Table 1 highlights common pollutants and their
impacts.
Table 1: Common Pollutants and their Impacts 46
Pollutant Impact
Common air contaminants: • Toxic and/or adverse effects on human and animals resulting in
sulphur oxides, nitrogen limited aerobic capacity, vision impairment, manual dexterity,
oxides, particulate matter, and in some cases death.
volatile organic compounds • Acidification of aquatic and terrestrial ecosystems resulting in
(VOCs), carbon monoxide, decreased productivity of crops and death in ecosystems.
ammonia • Visibility impairment and regional haze.
Greenhouse gases (GHGs) and • Exposure to black carbon can cause and/or contribute to health
short-lived climate pollutants effects such as asthma, low birth weights, heart attacks, and
(SCLPs) lung cancer in humans and animals.
• Exposure to tropospheric Ozone can cause and/or contribute to
bronchitis, emphysema, asthma, and may permanently scar lung
tissue in humans and animals.
• Increased GHGs in the atmosphere create a greenhouse effect,
resulting in warmer than average temperatures on earth.
Volatile organic compounds • Exposure to VOCs can cause eye, nose and throat irritation,
(VOCs) shortness of breath, fatigue, nausea, dizziness, and skin
problems in humans and animals.
Chemical substances and • Varies depending on the substance. A list can be found on the
micro-organisms Government of Canada’s website, here.
Heavy metals: lead, mercury, • Exposure to mercury can cause tremors, memory loss,
inorganic cadmium headaches, bronchitis, weight loss, fatigue, gastro-intestinal
compounds, hexavalent problems, gingivitis, excitability, thyroid enlargement, unstable
chromium compounds, pulse, toxicity to the kidneys, slower physical and mental
particulate matter (PMs) response, gastric pain, vomiting, bloody diarrhea, skin tingling,
containing metals that is numbness, lack of muscle coordination, tunnel vision, loss of
released in emissions from hearing, slurred speech, skin rashes, abnormal behaviour,
copper smelters and/or cerebral palsy, coma, and death in humans and animals.
refineries, particulate matter • Many other heavy metals have adverse health impacts and/or
(PMs) containing metals that are toxic to humans and animals.
is released in emissions from
zinc plants
Polychlorinated biphenyls • Exposure to humans and animals can cause liver damage, weight
(PCBs) loss, carcinogenesis, dermal toxicity, fatty liver, reproductive and
11developmental toxicity, thyroid hormone-level alterations, and
death.
Road salts • Toxic and/or adverse effects on aquatic species, soils and plant
species, and wildlife such as migratory birds.
Petroleum and allied • Exposure to humans and animals can cause dizziness, eye
petroleum products irritation, irritation to the nose and throat, coughing, headaches,
lumbar pain, skin irritation, coma, and respiratory arrest.
ii. Conservation
Conservation—the idea that we should maintain our supply of resources—is an important goal
in environmental and resource legislation.47 As is the case with pollution, conservation does not
have a standardized definition across legislative instruments. Despite this lack of standardization,
the Canadian Council of Ministers of the Environment (CCME) emphasize that conservation
strategy is a “guide” for the sustainable use of resources as well as the environment.48 This was
affirmed in R v Sundown, where the court found that conservation laws should be “construed
generously”, so that the protection measures not only exist for fish, fur-bearing animals, and big
game, but also the environment they live in.49
iii. Sustainable Development
The link between the economy, development and the environment has not always been an
obvious one.50 Today, these relationships are common sense and necessitate a proactive
environmental approach within many industries, including natural resource extraction and
manufacturing.51 Recognizing this interdependence, the United Nations’ World Commission on
Environment and Development published a report called ‘Our Common Future’ which
emphasized the importance of a new phrase—sustainable development.52 Sustainable
development is defined as “development that meets the needs of the present without
compromising the ability of future generations to meet their own needs”.53 This ethical principle
is situated in the fact that there must be equity between “the current generation and those that
will follow [intra-generational equity]; and between the poor and the more affluent” [inter-
generational equity].54 Canada was the first country in the world to endorse the Commission’s
conclusions,55 and today, sustainable development is a cornerstone approach to resource
development that can be found in federal and provincial statutes alike.56
iv. Biodiversity and Ecological Integrity
In Canada, there are approximately 70,000 known species of plants, fungi and animals, of which
at least 686 are at risk of extinction.57 These numbers provide an example of the extent to which
Canada is biologically diverse, and underscore the importance and necessity of legislation aimed
at protecting biodiversity. The most effective way to do this is through an ecosystems approach,
which emphasizes the need for integration and interaction among the living and non-living
elements of an ecosystem.58 Fortunately, this is becoming increasingly common in Canada’s
international obligations as well as in federal and provincial legislation.59
12v. Polluter-pays Principle
In environmental law, the “polluter-pays” principle places the financial responsibility on those
who engage in environmentally harmful actions.60 This principle has been recognized by the
international community,61 and is aimed at preventing the general public from shouldering the
burden of environmental degradation. In 2003, the Supreme Court of Canada affirmed the
principle in Imperial Oil Ltd. v. Quebec,62 stating, “to encourage sustainable development, [the
polluter-pays principle] assigns polluters the responsibility for remedying contamination for
which they are responsible and imposes on them the direct and immediate costs of pollution. At
the same time, polluters are asked to pay more attention to the need to protect ecosystems in
the course of their economic activities.”63
In 2012, the polluter-pays principle was addressed at the Supreme Court of Canada in
Newfoundland and Labrador v AbitbiBowater.64 Friends of the Earth Canada and Ecojustice both
participated as interveners, arguing that insolvent corporations remain obligated to the
environment through a restructuring. In short, both groups argued that taxpayers should not be
burdened with the cost of cleaning up a contaminated site after a corporation has become
insolvent.65 The majority of the Supreme Court held that if there is “sufficient certainty” that the
polluter can pay, provincial remediation orders can be found to be equivalent to other debts and
liabilities under insolvency law.66 However, where the polluter cannot pay, the financial and
environmental costs associated with cleaning up heavy metals and toxic chemicals can be shifted
onto taxpayers.67 This case exposed the need for governments to issue proactive remediation
orders and for the Companies’ Creditors Arrangement Act to be amended to include the full cost
of site remediation as part of any insolvency restructuring plan.68
vi. Precautionary Principle
The precautionary principle is a cluster of basic principles that emphasize the importance of
preventive action. Under this principle, preventive action is appropriate even when there is no
legislative need to obtain scientific understanding of the risk of harm and shifts the onus of proof
to those whose decisions will have an environmental impact that is not fully understood.69
Generally, there are three key components to the principle: the need for a decision, a risk of
serious or irreversible harm, and a lack of full scientific certainty.70 The precautionary principle is
entrenched in the preamble of the Canadian Environmental Protection Act, 1999 (CEPA, 1999).71
vii. Adaptive Management
The principle of adaptive management arose from the need to recognize that although efforts to
reduce uncertainty in environmental assessment before projects are allowed to start are
important, they need to be accompanied by measures that would account for continuing
uncertainty and ensure that we can, and do learn from outcomes.72 Put another way, adaptive
management is an important principle alongside the precautionary principle in that it asks for
reflection and flexibility to identify and implement new changes or make changes to existing
plans and projects in the face of scientific uncertainty.73
134.3 Separation of Powers: Defining the Scope of Environmental Authority in Canada
A key challenge in Canadian environmental law is recognizing and identifying when legislation
falls under federal or provincial authority. Historically, most people have perceived the
environment as something comprised of separate and distinct elements—air, water, land, other
organisms, etc.74 This general assumption has bled into the Canadian legal framework, resulting
in the inadvertent separation of legislation and policy frameworks that should ideally be read
together.75 To add to this, at the time of confederation, there was no thought as to where the
environment would fit within the constitutional framework.76 As a result, authority over the
environment falls under a number of heads of power presenting a challenge when allocating
responsibility.77 Consider, for example, the challenge when trying to determine whether air
pollution falls underneath federal or provincial jurisdiction.
i. Federal Authority
Generally, federal environmental authority can be found under enumerated sections of the
Constitution Act, 1982. These include the regulation of:
trade and commerce (s. 91(2));
navigation and shipping (section 91(10));
seacoast and inland fisheries (s. 91(12));
federal works and undertakings (s. 91(29) and 92(10));
Indians and lands reserved for Indians (s. 91(24));78
taxation (as in the case of carbon taxes) (s. 91(3)); and79
federal criminal power (s. 91(27));80
In addition to the enumerated grounds, the federal government’s residual power for peace,
order, and good government (POGG) offers a more expansive source of federal authority for
environment.81 Under this power, as illustrated by Justice LeDain in R v Crown Zellerbach Canada
Ltd, environmental concerns (in this case, dumping in coastal waters), satisfies the “national
concern” test to be considered a POGG power.82 Under the national concern test, the statute
must have a “singleness, distinctiveness, and indivisibility that clearly distinguishes it from
matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable
with the fundamental distribution of legislative power under the Constitution.”83 Justice LeDain
concluded that this type of pollution had extra-provincial as well as international implications
and therefore qualified as a matter of national concern.84
Federal authority over the environment can also be determined on the basis of the federal
criminal power, as was the case in Canada (AG) v Hydro-Quebec, where the Supreme Court of
Canada upheld the toxic substance provisions of CEPA on the basis of the federal criminal
power.85 To prevent the criminal law power from becoming too all-encompassing, courts have
determined that provisions will fall underneath the criminal power when they are prohibitive, as
opposed to simply regulatory in nature.86
14ii. Provincial Authority
The scope of provincial authority is constrained within provincial boundaries.87 Section 92A of
the Constitution Act, 1982 grants provincial legislature exclusive authority to make laws in
relation to the “development, conservation and management of non-renewable natural
resources and forestry resources in the province”.88 Additionally, provincial environmental
protection measures can be derived from enumerated grounds in the Constitution Act, 1982,
including:
property and civil rights in the province (s. 92(13);
general matters of a local or private nature in the province (92(16));
the management and sale of public lands and timber (s. 92(5));
municipal institutions (s. 92(8));
licensing for local, municipal, and provincial revenue (s. 92(9));
local works and undertakings (s. 92 (15));89
direct taxation (s. 92(2));90
taxation of natural resources (s. 92A (4)); and,91
power over local works and undertakings (s. 92(10));92
Consider this:
Where do municipal governments fit in with the above frameworks?
Can you think of an example where an environmental issue might fall under both federal and
provincial authority?
c
4.4 A Human Right to Environmental Quality
i. Committing to Environmental Rights in Canada
The first formal declaration of a right to a healthy environment came from the Stockholm
Declaration, which states:
Man has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permits a life of dignity and well-
being, and he bears a solemn responsibility to protect and improve the
environment for present and future generations.93
Since that first declaration, more than 100 countries across the globe include the right to a
healthy environment in their legislative and constitutional frameworks. Canada, however,
currently does not explicitly constitutionally recognize the right to live in a healthy
environment.94
In Canada, the CEPA, 1999 is the key piece of federal legislation for environmental protection. It
asserts that “the protection of the environment is essential to the well-being of Canadians” and
identifies its primary purpose as contributing to sustainable development through pollution
prevention from both a human and environmental perspective.95 Where there is a violation
15under CEPA, sections 22 and 38 allow for the public to initiate an Environmental Protection Action
if the minister fails to conduct an investigation and report within a reasonable time.96
In June 2017, the Standing Committee on Environmental and Sustainable Development
undertook to review CEPA, 1999, and, amongst other things, made a recommendation to include
language about the need to recognize the right to a healthy environment.97 In her submissions
to the committee, University of Ottawa Law Professor Lynda Collins outlined the need for three
dimensions of environmental rights recognized by the United Nations Special Rapporteur on
Human Rights and the Environment. First, the substantive right to environmental quality; second,
the obligation of non-discrimination in environmental protection; and third, procedural
environmental rights.98 The committee ultimately adopted these recommendations in their final
report.99 However, as of August 2018, the current legislative scheme is yet to be changed.100
ii. Preserving Indigenous Rights and Authority
Preserving and respecting Indigenous environmental rights in Canada is especially important
because of the unique relationship between Indigenous peoples and their traditional territories.
In Indigenous socio-legal, spiritual, and political systems, stewardship of the land is an organizing
principle.101 Internationally, Indigenous environmental rights have been recognized in Article
29(1) of the United Nations Declaration on the Rights of Indigenous Peoples, which asserts:
Indigenous peoples have the right to conservation and protection of the
environment and the productive capacity of their lands or territories and
resources. States shall establish and implement assistance programmes for
[I]indigenous peoples for such conservation and protection, without
discrimination.102
Canada was one of a small number of states with large Indigenous populations that initially voted
against the declaration.103 In 2016, however, Indigenous and Northern Affairs Minister Carolyn
Bennett announced that “[Canada is] now a full supporter[…] without qualification”.104 Currently
Currently, in Canada, Indigenous rights—and by extension, environmental rights—are protected
through various legal mechanisms.
Aboriginal Rights
The Canadian constitutional framework sets out Indigenous environmental rights and authority
by way of the governments’ relationship with First Nation, Métis and Inuit communities.105
Specifically, section 35(1) of the Constitution Act, 1982, recognizes and affirms existing Aboriginal
and treaty rights.106 The test for when Aboriginal rights are extinguished was articulated in R v
Sparrow, a case decided by the Supreme Court of Canada in 1990, where a Musqueam man was
charged for fishing without a proper fishing license. Sparrow argued, and the majority agreed,
that he maintained an Aboriginal right to fish that overrode the license and that could not be
infringed without government justification.107 The court therefore recognized, in Sparrow, that
there are existing aboriginal and treaty rights and defined the parameters of government
justification in Gladstone.108
16Aboriginal Title
Aboriginal title is a subset of Aboriginal rights which may also be used protect Indigenous peoples’
environments. For an Indigenous community to prove Aboriginal title, they must be able to show
sufficient, continuous and exclusive occupation prior to European Sovereignty.109 However, using
this doctrine to protect Indigenous environmental rights is challenging because proving
Aboriginal title is time-consuming and difficult, and the breadth of infringements allowed by the
government poses a challenge.110
The Crown’s Fiduciary Duty
Indigenous environmental rights in Canada can also materialize through the Crown’s fiduciary
duty to Indigenous peoples—a duty that exists independently of the section 35 constitutional
guarantee.111 This duty is an obligation that is imposed on the Crown in all of its dealings with
Indigenous peoples.112 This makes sense, because the deterioration of traditional territories
without consent is adverse to the community’s interests. If the Crown were to take an action that
could harm or destroy the physical or cultural integrity of the community, this could violate that
duty.113
Related to the Crown’s fiduciary duty to Indigenous peoples’ is the Crown’s duty to consult.114
This is an enforceable legal and equitable duty, which arises when the government has a real or
constructive knowledge of an Aboriginal right, and makes a decision relating to Indigenous
territorial land that could have an adverse impact.115 A contemporary example of this duty at play
can be found in the Federal Court of Appeal’s recent decision that found that the Crown did not
meaningfully consult with Indigenous communities before they decided to approve the
expansion of the Trans Mountain pipeline in November 2016.116
5. Topic: Pollution
5.1 Overview
Pollution is a deadly and expensive problem in Canada. Nationally, pollutants and toxic
substances are responsible for thousands of premature deaths and millions of preventable
illnesses.117 Despite the fact that common pollutants (Table 1) are monitored and regulated by
various federal and provincial legislative instruments,118 every year, an estimated 7700 people
die prematurely related to poor air quality and Canada incurs more than $39 billion in costs.119
Unfortunately, in Canada racialized, Indigenous and low-income communities bear the burden of
pollution more heavily than their white counterparts. The following case studies in Sarnia, Grassy
Narrows and Africville are just some examples of the disproportionate burden carried by these
communities in Canada.
175.2 Case Study: Sarnia’s Chemical Valley
The Aamjiwnaang First Nation is a Chippewa community located on the south end of Sarnia. The
community of approximately 900 residents live in the heart of one of the largest petrochemical
complexes in Canada.120 In 2005, the National Pollutant Release Inventory, which tracks the
quantities of chemicals released into the environment, identified that 5.7 million kilograms of
pollutants associated with reproductive and development disorders, as well as cancer, were
released into the air in the area.121 This was greater than the quantity of emissions released in
Manitoba, New Brunswick, and Saskatchewan combined.122 In addition to polluted air, the
community is also in danger from drinking the water out of the St. Clair River, where, between
1974 and 1986, 332 spills contributed to approximately 10 tonnes of pollutants.123 In 2006,
Aamjiwnaang Environment Committee revealed that residents were suffering serious health
problems related to the pollution, including an increase of asthma and a decreased male birth
rate.124 In the 10-years between 1994 and 2003, male births accounted for only 41.2% of births.125
Throughout their ongoing struggle, the community at Aamjiwnaang have taken it upon
themselves to monitor the air and determine the “body burden” individuals carry just by living in
the area, underscoring the community’s persistence and resilience in the face of environmental
injustice.126
In 2009, Aamjiwnaang First Nation residents Ada Lockridge and Ron Plain, received a
commitment from the Ontario Ministry of Environment to review how air pollution is regulated
when there are multiple emitters.127 Ecojustice lawyers represented Ada and Ron in their fight to
ensure the community’s health was protected. In a case filed in 2010, they asked the court to
declare that an order issued by Ontario’s Ministry of the Environment that allowed Suncor Energy
Products to produce more sulphur at part of its Sarnia refinery violated their Charter rights under
sections 7 and 15—namely, their rights to life, liberty and security of the person, and the right to
equality.128 Ada, Ron and their Ecojustice lawyers were firm in their belief that all Canadians have
a right to breathe clean air, and that governments are responsible for protecting people and
communities from unsafe levels of industrial pollution. Together with Ecojustice, they expressed
concern for the Ontario government’s practice of assessing each source of air pollution
individually to determine whether emissions fell within safe limits.129 Instead, they argued that
Ontario should assess cumulative impacts, evaluating overall air quality.130
After the case was filed in 2010, the Ontario government began to fix some of the problems that
led to legal action and Ecojustice advised Ada and Ron to withdraw the lawsuit in order to change
strategy and focus on holding the government accountable for implementing those fixes.131
Pollution levels in Sarnia have decreased. This is in part due to the fact that in 2013, the Ontario
government shut down the Lambton power plant.132 After a Global News investigation uncovered
a pattern of chemical leaks in the region, the Ontario government recently committed to funding
a health study to, “understand the localized impact of air pollution on Sarnia residents”.133
18Ada Lockridge by Ecojustice
5.3 Case Study: Grassy Narrows
In Grassy Narrows, Ontario, high levels of mercury contamination have prevented the First Nation
community from engaging in their main sources of employment—guiding and commercial
fishing.134 What’s more pressing is the fact that citizens have faced ongoing health problems as a
result of consuming the fish in the English-Wabigon River—which was impacted by mercury
contaminations from a nearby paper mill.135 According to a recent report, 90% of the population
showed signs of poisoning and were at least three times more likely to have neuropsychological,
intestinal and vision problems.136 Additionally, 33% of community members reported losing a
friend or family member to suicide—a rate that is five times higher than other Indigenous
communities in Ontario.137
The government of Ontario has committed $85 million to remediate the river, but work is not
scheduled to begin until at least 2020.138 In 2017, the federal government also committed to
funding a treatment centre for people who were suffering from the effects of mercury
poisoning.139
195.4 Case Study: Africville
The history of Africville, Nova Scotia, is perhaps one of the most well-known examples of
environmental racism in Canada. Nova Scotia has one of the highest populations of African-
Canadians in the country, most of whom are descendants of slaves who were brought to the
province in the 18th century.140 It is unclear when the name “Africville” originated, but it is known
that it was intended to be a derogatory name which reflected social attitudes towards the
community.141 The segregated black community was considered an ‘expendable nuisance’ that
was blocking commercial development.142 After the industrial boom, there was a need for new
dumping sites and the government decided to place dumps as well as an infectious disease
hospital in and around Africville.143 Further, in the 1960s, the City of Halifax determined that
Africville had become an eyesore that brought shame to the city, and sent bulldozers into the
community to demolish the homes of black residents.144
In July 2018, the Ontario Black History Society put on a national exhibit titled ‘Black History is
Canadian History: Continuing the Conversation.145 The event included storytelling by Africville
elders, who shared their experiences and laid a wreath in memory of residents who died.146
The ENRICH Project was established in 2012 to address the effects of environmental racism in
Mi’kmaw and African Nova Scotian communities.147 The group take a collaborative and multi-
disciplinary community-based approach to address inequitable distribution of health risks faced
by these communities.148 Since 2012, the group have developed a multi-disciplinary research
team, conducted community-based policy research, published peer-reviewed journal and book
articles, engaged youth, hosted workshops, produced a documentary film, consulted with
government departments, and collaborated on a bill to address environmental racism.149
Consider this:
How do we navigate environmental justice issues when they seemingly conflict with other
rights-based movements? Consider exploring the recent plastic straw ban’s impact on people
living with disabilities.
How could the events at Grassy Narrows, Africville and Aamjiwnaang have been avoided?
6. Topic: Access to Water
6.1 Overview
Canada is one of the world’s most water-rich countries, holding a staggering 20% of the world’s
fresh water supply.150 Yet, as of August 2018, there are 113 short and long-term drinking water
advisories across various First Nations communities.151 In some places these drinking water
advisories have existed for more than 20 years.152 Drinking water advisories are required when
there are process-related problems or pollutants and contaminants in the water systems,
20including line breaks, equipment failure, and/or poor filtration or disinfection during water
treatment.153 Generally, advisories can be categorized in three categories:
1. Boil Water Advisories (BWA), where there is a known or suspected disease-causing
bacteria or waterborne illness that would be killed by boiling it;
2. Do Not Consume (DNC) advisories, where a contaminant cannot be removed by boiling
it, it should not be used for consumption, but is safe for domestic purposes such as
showering and bathing; and,
3. Do Not Use (DNU) advisories, where the contamination cannot be removed by boiling,
consumption poses a health risk, and exposure could cause skin, eye, or nose irritation.154
In 2017, 4% of boil water advisories in Canada were due to E. coli, 13% were due to other
microbiological water problems, and 83% were due to equipment and process-related
problems.155 Living under a water advisory is a hardship. For one woman in Grassy Narrows First
Nation, her son’s recurring health issues meant consistent trips to the clinic and a diagnosis of an
antibiotic-resistant skin disease.156
6.2 Canada’s Obligations: the Right to Water in International and Domestic Law
On July 28, 2010 the United Nations General Assembly passed resolution 64/92—the human right
to water and sanitation.157 This right has been articulated and entrenched by other international
instruments like Article 24(2)(c) of the Convention on the Rights of the Child, and Article 14(2)(h)
of the Convention on the Elimination of All Forms of Discrimination Against Women—both of
which have been signed and ratified by Canada.158 Despite this commitment at the international
level, Canada does not have a national water strategy,159 and the Canadian Charter of Rights and
Freedoms does not include an explicit right to a healthy environment—including access to safe
drinking water.160
Additionally, under the Constitution Act, 1867, the federal government has jurisdiction over
“Indians and lands reserved for the Indians”,161 and as a result, the large majority capital costs
and a portion of operation and maintenance for water systems come from the federal
government.162 In November 2013 the Safe Water for First Nations Act came into force, aimed at
ensuring First Nations communities have access to safe and effective water and wastewater
systems.163
6.3 Case Study: Shoal Lake 40
Shoal Lake 40, an Ojibway First Nations community in Manitoba, has lived under a boil water
advisory for 20 years.164 A hundred years ago, the government took part of their land to develop
Winnipeg’s water system, leaving the community cut off from the mainland.165 As a result of the
development, Winnipeggers are fortunate to enjoy fresh water out of their taps, but the First
Nation community does not have access to this system and instead must purchase their drinking
water.166 To further complicate matters, the community did not have road access in and out of
21the community until 2015,167 and the second half of the project—connecting the long cut-off
community to the Trans-Canada Highway—will not be completed until March 2019.168
Community members make the trek across Shoal Lake. Photo by Mike Aporius for Winnipeg Free Press.
This lack of support and infrastructure is not unique to community members at Shoal Lake 40. In
2016, Human Rights Watch conducted research at 99 households across five First Nations in
Ontario alone. These interviews highlighted the daily hardship of living under a water advisory,
including the disproportionate health and financial burdens faced by low-income or financially
struggling families.169
In March 2018, Autumn Peltier, an Anishinaabe girl from Manitoulin Island, Ontario, addressed
the United Nations General Assembly in a plea to protect the world’s water.170 She called on the
assembly to stop polluting the planet and give water the same rights as human beings. “No one
should have to worry if the water is clean or if they will run out of water”, Peltier said. “We all
have a right to this water as we need it—not just rich people, all people.”171
In 2016 and 2017, Minister Bennett committed almost 2 billion dollars over five years to improve
on-reserve water and wastewater infrastructure.172 However, Bob Rae and John Millar opined
that without a truly integrated approach where First Nations communities are in a position to
take full control of their own infrastructure this approach will be unsustainable.173 Taking this
approach, the Atlantic Policy Congress of First Nations Chiefs Secretariat (APC) recommended an
Indigenous-led water authority that would form a hub to support First Nations communities
managing small water systems.174 Using an approach called Two-Eyed Seeing, which includes the
traditional knowledge that water has a spirit, the APC has called on the federal government to
support their efforts to build capacity and mobilize communities to take over jurisdictions and
control of waters systems.175
22Consider this:
Host a documentary screening with WaterDocs at your school.
Plan a campaign at your school leading up to World Water Day on March 22. Consider
coordinating with other Campus Chapter presidents to plan and host a twitter conversation
about access to water in Canada.
7. Topic: Access to Food
7.1 Overview
While the environmental justice movement sprang from the fight against toxic landfills in low-
income, Indigenous and/or racialized communities, the notion of fair treatment, meaningful
involvement, and the communal sharing of environmental burdens can similarly be applied to
the distribution of unhealthy food in communities.176 Food deserts have become an increasingly
large issue in Canada, creating concern for communities, public health authorities, and
researchers.177 A food desert is defined as a residential area where low-income residents have
limited or no access to retail food establishments (for example, grocery stores), with nutritious
options at an affordable price.178 Studies further categorize food deserts as areas that have fewer
than three square feet of grocery retail per capita, where four to five square feet is desirable.179
Some examples of places where fewer than three square feet of grocery retail exist are London
(Ontario), Gatineau (Quebec), Edmonton (Alberta), Calgary (Alberta), and Saskatoon
(Saskatchewan), among others.180 Food deserts are not always associated with low-income areas,
however, in places like London, Ontario, low-income inner-city residents have been found to
have the poorest access to supermarkets.181
Food insecurity as a result of food deserts poses serious health risks to adults and children alike.
Children who experience food insecurity at an early age have a higher risk of hyperactivity and
inattention and a higher likelihood of developing asthma, depression, and suicidal ideation.182
Adults who experience food insecurity are also at risk for conditions such as diabetes, heart
disease, hypertension, arthritis, back problems, and mental health issues like depression, anxiety
disorders, mood disorders, and suicidal thoughts.183
7.2 Canada’s Obligations: the Right to Food Security in International and Domestic Law
Canada has an international obligation to provide access to nutritious and affordable food to its
citizens through a number of international treaties. For example, the Universal Declaration of
Human Rights creates an obligation where “every man, woman and child, alone or in community
with others, have physical and economic access at all times to adequate food or means for its
procurement”.184 The right to food security is further entrenched in Canada’s ratification of the
International Covenant on Economic, Social and Cultural Rights, which provides that states are
obligated to protect economic and social rights, including the right to be “free from hunger and
to an adequate standard of living, including food”.185 Additionally, the Convention on the Rights
of the Child (“CRC”)—which Canada ratified in 1992—requires that states ensure children are
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