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Long-awaited ‘reforms’ fail to address realities of environmental injustice

Meaningful CEPA reform must clarify what a “right to a healthy environment” means for working and Indigenous people

Canadian PoliticsEnvironmentHuman Rights

Athabasca oil sands. Photo by Kris Krug.

Last week, Minister of Environment and Climate Change Jonathan Wilkinson announced long-awaited reforms to the Canadian Environmental Protection Act (CEPA), one of Canada’s core pieces of environmental legislation, which deals primarily with the regulation of harmful substances, air pollution, and marine pollution.

These changes ostensibly fulfill the Liberal government’s commitment, in its 2019 throne speech, to “modernize” the Act, but as is often the case with the Trudeau government, the purported reforms amount to little more than nice words, with little to none of the material change that working Canadians need from environmental legislation. Real reform would recognize that the working class bears the brunt of industrial capital’s impact on the environment and resultantly faces disproportionately poor health outcomes.

Empty rights are not “healthy”

Among several more technical changes to its wording, the major reform touted in the recently introduced legislation is the recognition, found in the preamble, of the “right to a healthy environment.” An accompanying stipulation—that Canada protect this right as outlined in the Act and balance it against other interests—essentially amounts to a redundant requirement of compliance. The Act also includes a requirement that the minister develop, within two years, an implementation framework for how the right to a healthy environment will be “considered in the administration of this Act,” essentially kicking these measures, already purely rhetorical, further down the road.

Such changes mean little without a more concrete and substantial commitment to addressing what a “right to a healthy environment” means for the working class, racialized, and Indigenous people who are disproportionately impacted by environmental harms. In its current form, the proposed right does little more than preach high-minded rhetoric without providing any genuine commitment to material change.

This comes at a time when material change is more necessary than ever. From a recent report by the United Nations Special Rapporteur on Toxics and Human Rights documenting “a pattern in Canada whereby marginalized groups, and indigenous [sic] peoples in particular, find themselves on the wrong side of a toxic divide, subject to conditions that would not be acceptable in respect of other groups in Canada,” to findings of elevated levels of myeloid leukemia among low-income populations living near industry in five Ontario cities, the severity of environmental injustice in Canada—where working, racialized, and Indigenous people bear the brunt of industrial capital’s environmental impacts—has never been clearer.

Environmental justice denied

Although the language of the Act may sound high-minded and positive, even in its best light the current proposal to introduce a “right to a healthy environment” is unlikely to accomplish anything material. Laying aside the fact that preambles are not binding parts of legislation and are almost uniformly interpreted as mere interpretative aids, a proper right to a healthy environment, formulated more powerfully, might be something akin to a combination of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, which guarantee, respectively, the rights to life, liberty, and security of the person, and to equality. In such a formulation, a right to a healthy environment might prevent regulation and licensing that permits industrial capital to operate in ways that disproportionately impact the health of low-income people.

However, there is a long string of cases in Canadian law denying the application of sections 7 and 15 in cases where class position is the relevant identifier determining unjust treatment. Courts have refused to identify inadequate housing, poverty, or even employment as grounds for a finding of discrimination that threatens life, liberty, or security of the person. Realistically, one may well imagine that a “right to a healthy environment” would be similarly curtailed, despite the clear and, in many cases, proven connection between the locations of homes or workplaces and exposure to the worst environmental harms of industrial capital. Without explicit reference to these impacts, a right to a healthy environment will be little more than a rhetorical flourish.

Real reform means regulation

What might real change to CEPA look like? The answer is a straightforward one: explicit regulation, control, and disempowerment of industrial capital and the impact it has on working class, racialized, and Indigenous people.

This could be accomplished through CEPA in a number of ways, such as imposing a heavy burden upon corporations to prove that their products and emissions are safe (as in the European Union’s REACH measures) or, as the Canadian Environmental Law Association suggests, establishing a right to a healthy environment that explicitly protects Canadians and Indigenous Peoples from industrial pollution by disallowing regulation and licensing that permits increases to existing pollution levels, and by mandating predefined pollution decreases.

As things stand, the proposed reforms do little more than put a nicer face on the environmental harms of industrial capital. One has to wonder if that isn’t the point.

Peter Hillson is a law student at Osgoode Hall and a candidate in the master’s program in Environmental Studies at York University. His research interests include Indigenous sovereignty, climate justice, and environmental law.

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