The Right to a Healthy Environment (and more) in the Canadian Environmental Protection Act: A First for Canadians

13 Jul The Right to a Healthy Environment (and more) in the Canadian Environmental Protection Act: A First for Canadians

In June 2023, the federal government finally amended the Canadian Environmental Protection Act, ostensibly, to reflect a modern interpretation of toxic substance management and environmental principles. The main changes to the CEPA include:

 

• The right to a healthy environment for all Canadians;
• A new focus on vulnerable populations and strong environmental principles;
• Specific regard for hydraulic fracturing and tailings ponds;
• A new category of substances characterized by “carcinogenicity, mutagenicity and reproductive toxicity”; and
• A limit on toxicity testing on vertebrate animals.

 

However, the question remains whether these changes will actually have an impact on toxins in our environment and whether Canadians can now refer back to the Act to uphold their right to a healthy environment. The remainder of our blog post will provide a review of these changes as well as a refresher on the existing toxic substance regime.

 

A Brief History of Past Work

 

You may be familiar with our past work in this area including the post “An Update to CEPA – A long time coming or too little, too late?” which considered then Bill-C28, the precursor to the eventual updates to the Canadian Environmental Protection Act, 1999.[1] Only a few months after that blog, the writ was dropped, ringing in a federal election and halting Bill C-28 along with it. Nearly two years later, a new version of the Bill (Senate Bill S-5) received Royal Assent and became law.[2] In this post, we will highlight the amendments that, after all this time, made their way into the final document.

 

 

As a refresher, the Canadian Environmental Protection Act (“CEPA”) is the federal law that manages and regulates prescribed types of pollution. Generally, CEPA sets out the obligations of Environment and Climate Change Canada and Health Canada “related to the assessment and management of risks from chemicals, polymers and living organisms; programs related to air and water pollution, hazardous waste, air pollutant and GHG emissions; ocean disposal; and environmental emergencies.”[3] CEPA declares that the Government of Canada “is committed to implementing pollution prevention as a national goal and as the priority approach to environmental protection.”[4] Pollution prevention is defined as “the use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health.”[5]

 

The Right to a Healthy Environment and Principles of Environmental Justice – A First of its Kind

 

Bill S-5 introduces the right to a healthy environment, becoming the first federal law in Canada to recognize such a right. The preamble sets the stage stating that the Act shall “recognize that every individual in Canada has a right to a healthy environment.”[6] However, as the preamble is not enforceable, any meaningful amendment will need to be included in the body of the Act, or associated Regulations. In this regard, section 2 specifies that during the administration of the Act, the government “shall…protect “the right of every individual in Canada to a healthy environment as provided under this Act, subject to any reasonable limits.”[7] There is no definition of what ‘reasonable limits’ entails but it does specify that this could include social, health, scientific, and economic factors.[8]

 

It is relevant to highlight that, for the purposes of the Act, ‘healthy environment’ is defined very broadly as “an environment that is clean, healthy and sustainable.”[9] Unfortunately, little else is included and any full protection for the right to a healthy environment is left to an implementation framework, to be completed within two years. As such, we have yet to see the final administration of this right and how widely it will apply.

 

In the meantime, there are already certain limits on its impact. The first is that the right is specific only to CEPA and does not apply to other statutes or areas of government action. The second is the phrase “subject to any reasonable limits.” The Act does not define what these reasonable limits will be but there are two separate places we can look to for interpretation.

 

The first is the balancing provision which allows for the consideration of social, health, scientific and economic factors alongside the implementation of the right to a healthy environment, potentially limiting any impact.[10] The second is section 1 of the Charter of Rights and Freedoms which specifies that rights under the Charter are rights are guaranteed subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[11] While changes to the CEPA do not have the constitutional authority of a Charter right, it may be that the interpretation of any limits on the right to a healthy environment comes from the Charter.

 

The test to determine whether an action or law that would otherwise constitute an infringement of a Charter right can be saved by section 1 is known as the Oakes test, coming from the SCC decision in R v Oakes.[12] The Oakes test is a two part test that asks first whether the objective is pressing and substantial and second whether the means chosen were reasonable and demonstrably justified.[13] To answer this second question the Court also established a three-part proportionality test (1) are the measures adopted carefully designed to achieve the objective in question (2) do the means, even if rationally connected to the objective, impair the right as little as possible and (3) is there proportionality between the effects of the measures which are responsible for limiting the right or freedom and the objective which has been identified as of sufficient importance?[14]

 

While the right to a healthy environment is not a Charter right and does not have the same impact, the use of the phrase ‘reasonable limits’ seems to suggest it may require a similar balancing test to that established for section 1 of the Charter.

 

Environmental Principles to Guide Decision-Making

 

In addition to the right to a healthy environment, section 2 of the Act will now require the Government of Canada to “uphold principles 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.”[15]

 

For example, during the assessment of whether a substance is toxic or capable of becoming toxic, the Minister may now consider the substance’s impacts on vulnerable populations. Specifically, the Minister is now able to consider “whether there is a vulnerable population or environment in relation to the substance.”[16] Further, when conducting and interpreting the results of an assessment or review, the Minister “shall consider 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 [emphasis added].”[17] The use of the word shall is important here as indicates mandatory consideration – although does not prescribe any outcome.

 

Other principles include the principle of non-regression and the precautionary principle. The principle of non-regression refers to the idea that existing environmental standards that are set in Canada’s laws and regulations form a baseline standard of environmental protection which should not be reduced by later decisions or amendments. However, it is only briefly referenced in section2 and it remains to be seen whether the principle of non-regression will be clear and binding on the exercise of government discretion.

 

The precautionary principle does receive further consideration. The definition section adopts the 1992 Rio Declaration on Environment and Development Principle 15 which states that “lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation if there are threats of serious or irreversible damage.”[18] For the purposes of the CEPA, the Minister must now apply a weight of evidence approach alongside the precautionary principle when conducting and interpreting an assessment in order to determine whether a substance is toxic or capable of becoming toxic.[19] This suggests a stricter standard for the determination of toxicity in the event that full information is not available.

These principles suggest how decisions under the Act regarding protecting the right to a healthy environment will be made; however, further details are left up the forthcoming implementation framework.[20] This section is also missing any accountability mechanism and the Canadian Environmental Law Association notes that one of the missing areas is an “effective remedy for a healthy environment” arguing that without an effective remedy the new right may be unenforceable.[21]

 

A Modern Approach to Toxic Substances?

 

Part 5 of the CEPA provides the framework for the control of toxic substances. Substances are first classified on either the Domestic Substances List or the list of Non-Domestic Substances and from there proceed to a screening assessment which looks at whether a substance is toxic or capable of becoming toxic. Following this assessment, the Minister has three options (1) take no further action; (2) add the substance to the Priority Substances List; or (3) recommend the substance be added to the List of Toxic Substances, and where applicable, propose it for virtual elimination. While this framework remains intact, the details and assessment criteria have been updated.

 

‘Substance’ is broadly defined in the Act as “any distinguishable kind of organic or inorganic matter, whether animate or inanimate, and includes (a) any matter that is capable of being dispersed in the environment or of being transformed in the environment into matter that is capable of being so dispersed or that is capable of causing such transformation in the environment.”[22] From there, a substance is considered toxic “if it is entering or may enter the environment in a quantity or concentration or under conditions that (a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity; (b) constitute or may constitute a danger to the environment on which life depends; or (c) constitute or may constitute a danger in Canada to human life or health.”[23]

 

Amendments to the Act introduce new information gathering provisions for the toxic substances framework specifically enabling the Minister to gather information regarding activities that may contribute to pollution; hydraulic fracturing; and tailings ponds.[24] As pointed out by a number of environmental organizations across Canada, this specific reference to both hydraulic fracturing and tailings ponds signals “that these activities are of particular concern requiring attention.”[25]

 

In the assessment phase, we also now see an increased potential to regulate those substances that are characterized by “carcinogenicity, mutagenicity and reproductive toxicity.”[26] Previously section 67(1)(a) focused on substances that were considered “persistent, bioaccumulative and inherently toxic” but will now also include those substances that are carcinogenic, mutagenic, neurotoxic, and substances with the ability to disrupt the reproductive or endocrine system of an organism. As such, these are now criteria to be considered during an assessment of whether a substance is toxic or capable of becoming toxic.[27] The factors that trigger a mandatory proposal for a substance that is determined to be toxic have also been expanded to include those substances that “may constitute a danger in Canada to human life or health and is … carcinogenic, mutagenic, or toxic for reproduction” or if the substance is considered to pose the highest risk – a new category.[28]

 

Cumulative impacts are newly also acknowledged throughout the Act. For example, section 68 now considers “whether exposure to the substance in combination with exposure to other substances has the potential to cause cumulative effects” when assessing whether a substance is toxic or capable of becoming toxic.[29] Further, the Ministers shall apply a weight of evidence and precautionary approach when assessing substance toxicity along with a focus on vulnerable populations and cumulative effects that “may result from exposure to the substance in combination with exposure to other substances.”[30]

 

Going forward, the responsible Ministers are required to complete a plan which sets out “the substances to which the Ministers are satisfied priority should be given in assessing whether they are toxic or capable of becoming toxic”, a priority list to be completed within two years.[31] There is also now the option to assess substances by class rather than individually with a view to preventing the replacement of harmful substances with equally harmful substitutions – particularly before a second assessment can be complete.[32]

 

Changes have also been made to the ‘List of Priority Substances’ which is now known as the ‘List of substances capable of becoming toxic’ which the Minister shall compile as “a list that specifies substances that the Ministers have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic.”[33]

 

Animal Testing – An Adjacent Change with Major Impacts

 

Finally, there is a well-celebrated addition to the Act with the phasing out of toxicity testing on animals. These new provisions aim to replace animal toxicity testing with other forms of testing methods that do not involve vertebrate animals. To do this, during the administration of the Act, the government shall “encourage the development and timely incorporation of scientifically justified alternative methods and strategies in the testing and assessment of substances to replace, reduce or refine the use of vertebrate animals.”[34] The changes also enable the creation of regulations “respecting the conditions, test procedures and laboratory practices to be followed for analysing, testing or measuring the property or characteristic, including conditions, test procedures and laboratory practices to be followed for replacing, reducing or refining the use of vertebrate animals.”[35] Further, there is now a provision specifying that “scientifically justified alternative methods and strategies to replace, reduce or refine the use of vertebrate animals in the generation of data and the conduct of investigations” are to be used during an assessment of a substance’s toxicity.[36]

 

While this may be a smaller change it has been lauded by Animal Justice Canada as a major step towards more cruelty-free toxicity testing in the country.[37]

 

These changes represent some major updates to the CEPA regime; however, they are not without limitations. We considered many of the limits of these proposed changes in our first blog post, including the challenges of enforcement and the limits of applying them only to the CEPA regime. Notably, despite the time that has elapsed between these two Bills, these concerns remain. To read our full assessment, check out our previous blog post.

 

Further, we will have to wait until the release of the implementation framework to see how these principles will be enforced. Without this framework, the right to a healthy environment and new environmental principles remain principles and not enforceable changes. Check back for another blog update, hopefully, this time sooner than summer 2025.

 

 

For further critics of the amendments the Canadian Environmental Law Association and a backgrounder by a consortium of environmental groups.

[1] Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA].

[2] Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, 1st Sess, 44th Parl, 2022 (royal assent 13 Jun 2023) [Bill S-5].

[3] Government of Canada, “Understanding the Canadian Environmental Protection Act” (13 April 2021) online: https://www.canada.ca/en/services/environment/pollution-waste-management/understanding-environmental-protection-act.html.

[4] CEPA, supra note 1, preamble.

[5] Ibid, s 3(1).

[6] Bill S-5, supra note 2 preamble.

[7] Ibid, s 3(2).

[8] Ibid, s 5.

[9] Ibid, s 4(2).

[10] Ibid, s 5.1(2).

[11] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1.

[12] R v Oakes, 1 SCR 103.

[13] Ibid at para 69.

[14] Ibid at para 70.

[15] Bill S-5, supra note 2, s 3(2).

[16] Bill S-5, supra note 2, s 16(2).

[17] Ibid, s 20.

[18] Ibid, s 4(2).

[19] Ibid, s 20.

[20] Ibid, s 5.1(2).

[21] Joseph F. Castrelli & Fe de Leon, “Canadian Environmental Protection Act – Improvements Still Needed” Canadian Environmental Law Association online: https://cela.ca/blog-canadian-environmental-protection-act-improvements-still-needed/.

[22] CEPA, supra note 1, s 3 “substance.”

[23] Ibid, s 64.

[24] Bill S-5, supra note 2, s 9(3).

[25] Environmental Defence et al., “Moving forward on CEPA modernization: Key Provisions in Bill S-5” (May 2023) online: https://environmentaldefence.ca/wp-content/uploads/2023/05/Bill-S-5-Briefing-Note_May-2023_EN-1.pdf.

[26] Bill S-5, supra note 2, s 15(1).

[27] Ibid, s 15(1).

[28] Ibid, ss 15(2) & 21(1).

[29] Ibid, s 16(2).

[30] Ibid, s 20.

[31] Ibid, s 19.

[32] Ibid, s 19.

[33] Ibid, s 20.

[34] Ibid, s 3(3).

[35] Ibid, s 15(2).

[36] Ibid, s 16.1.

[37] Shannon Nickerson, “Victory! Canada Bans Cosmetic Animal Testing” (23 Jun 2023) Animal Justice online: https://animaljustice.ca/blog/canada-bans-cosmetic-animal-testing.

Share this: