Last week, amendments to the Canadian Environmental Protection Act, 1999 (“CEPA” or the “Act) were passed by the House of Commons which, amongst other things, update the Act to recognize the right to a healthy environment.

In April 2021, Minister Jonathan Wilkinson (then the Federal Minister of Environment and Climate Change) tabled Bill C-28 which would amend CEPA and recognize this right, however, this bill was terminated when Parliament was dissolved before the 2021 federal election. The text of Bill C-28 was reintroduced as Bill S-5 in the Senate in February 2022, and on May 30, 2023, Bill S-5 was passed by the House of Commons and was sent to the Senate to grant royal assent. Upon royal assent, the new amendments will enter into force.

The entrenchment of this right in federal law follows the United Nations (“UN”) General Assembly’s passing of a resolution last summer recognizing the right to a clean, healthy and sustainable environment, which Canada voted in favour of (which Miller Thomson has written about previously). With these amendments, Canada now joins the 156 other UN member states who also recognize the right to a healthy environment either in their constitution or other legislation.[1]

What is the right to a healthy environment?

David Boyd, the UN Special Rapporteur on Human Rights and the Environment, defines the right to a healthy environment as follows:

It means people have a right to breathe clean air, they have a right to a safe and sufficient supply of water, to healthy and sustainably produced food, to healthy ecosystems and biodiversity, and non-toxic environments where people can live, work, study and play, and a safe climate.[2]

The first formal recognition of the right to a healthy environment in the international human rights arena was in the 1972 Stockholm Declaration, which states in Principle 1 that “[m]an 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.”[3]

Without the statutory recognition of the right to a healthy environment in Canada, claimants have historically – and unsuccessfully – turned to sections 7 (right to life, liberty and security of the person) and 15 (right to equality) of the Canadian Charter of Rights and Freedoms (“Charter”) to advance environmental rights arguments. For example, the youth litigants in both La Rose v Canada and Mathur v Ontario argued that their section 7 and 15 Charter rights had been violated due to Canada’s actions/inactions on climate change and Ontario’s inadequate 2030 emissions reduction target, respectively. Both claims were unsuccessful and are under appeal at this time.[4]

Implementation framework

Pursuant to section 5.1(1) of the amended Act, the federal government will be required to develop a plan or “implementation framework” within two years (after the day the amendments come into force) to set out how the right to a healthy environment will be considered in the administration of the Act. In this framework, the government must detail:

  • the principles they will consider in administering CEPA, “such as principles of environmental justice — including the avoidance of adverse effects that disproportionately affect vulnerable populations — the principle of non-regression and the principle of intergenerational equity”;
  • research, studies and monitoring activities to support the protection of the right to a healthy environment;
  • the reasonable limits this right is subject to based on the consideration of relevant factors, which include “social, health, scientific and economic factors”; and
  • mechanisms to support the protection of this right (Section 5.1(2)).

Canada will now be required to protect this right for every individual in Canada as provided under the Act – subject to any reasonable limits (Section 2(1)(a.2)). An earlier version of the bill had instead stated that this right may be balanced with relevant factors. The final language severely curtails the strength of this right, allowing for economic (and other) considerations to trump environmental protection, and introduces considerable uncertainty as to what constitutes a reasonable limit.

Vulnerable populations & cumulative effects

While section 2(1)(a) of the Act already requires the government to exercise its powers in a way that protects the environment and human health, the amendments specify that this protection includes “the health of vulnerable populations.” Vulnerable populations is now defined in section 3(1) of the amended Act as “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances.” This definition does not include examples of groups of individuals who may fit within this definition (such as Indigenous peoples or those who work with certain substances) and is much less detailed than legislation in other jurisdictions that defines this term.[5]

Additional amendments to the Act mandate the specific consideration of vulnerable populations and cumulative effects regarding the toxicity of substances, including:

  • when considering whether a substance is toxic or capable of becoming toxic and whether and how to control a substance, the Minister may now also collect or generate data and investigate as to whether exposure to the substance combined with exposure to other substances could cause cumulative effects and whether there is a vulnerable population or environment in relation to the substance (Section 68(a)(iii.1),(iii.2)); and
  • when interpreting the results of an assessment conducted under Part 5 of the Act (other than section 83), the Minister shall also “consider available information on any vulnerable population or environment in relation to the substance and on the cumulative effects on human health and the environment that may result from exposure to the substance in combination with exposure to other substances” (Section 76.1(2)).

Should there be available information, these amendments make clear that the government can consider how a certain population may be particularly affected, however, there is regrettably no requirement for the Minister to require industry to undertake further testing if data gaps exist.[6]

A step forward but more work to be done

The recognition of the right to a healthy environment in federal Canadian law is an important achievement, and one which is largely due to the tireless efforts of many individuals, grassroots groups, communities, and organizations.

Notably, the right to a healthy environment is enshrined in CEPA and not the Charter. As all laws, regulations, and policies must be consistent with a nation’s constitution, countries which constitutionally recognize this right typically enjoy a higher level of environmental protection. In a review of 95 nations which constitutionally recognize the right to a healthy environment, Boyd found that 78 of these nations had thereafter strengthened their environmental laws, amending them to focus on environmental rights, access to environmental information and justice, and participation in decision-making.[7]

There remains much room for further improvement of the Act. For instance, while section 22 of CEPA allows for an individual to bring an environmental protection action against someone who commits an offence under the Act and causes significant harm to the environment, the Act contains several procedural hurdles, and as a result, this remedy has never been used in the 24 years since the Act was passed.

As Environment and Climate Change Minister Steven Guilbeault has indicated that he intends to introduce another bill to provide more comprehensive updates to the Act, amendments to remove such barriers and provide for greater protection and enforcement of this newly-recognized right could be on the horizon.