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Bill C-469: The Canadian Environmental Bill of Rights

Brief prepared for the House of Commons

Standing Committee on Environment and Sustainable Development

Dr. David R. Boyd, Ph.D., J.D., B.Comm.

Adjunct Professor, Resource and Environmental Management, Simon Fraser University

Research Associate,

POLIS Project on Ecological Governance, University of Victoria

Member, IUCN Commission on Environmental Law

October 27, 2010

Dr. David R. Boyd 1321 Mackinnon Road

Pender Island, BC V0N 2M1 250-629-9984

drboyd@uvic.ca

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Executive Summary Why does Canada need an Environmental Bill of Rights? There are four compelling reasons. First, Canada’s poor environmental record compared to other wealthy industrialized nations is demonstrated by studies from the Conference Board of Canada, Simon Fraser University, Yale and Columbia Universities, and the Canadian Medical Association. Second, recognizing the right to a healthy environment can contribute to stronger environmental laws and policies, improved enforcement, increased citizen participation, greater accountability, and healthier democracy. Third, as of 2010, 89% of UN member nations (170 of 192) recognize that their citizens possess a legal right to live in a healthy environment. In 100 nations, the right to a healthy environment is constitutionally protected. Fourth, empirical evidence indicates that nations with constitutional environmental rights and responsibilities perform significantly better in protecting the environment than nations without such provisions. Statutory environmental rights and responsibilities likely have similar effects, though of smaller magnitude. Proposals to recognize the right to a healthy environment in Canada date back to the late 1960s. Yet as of today, no federal legislation, regulation, policy, or program explicitly recognizes this fundamental human right. However, the right to a healthy environment is recognized by laws in Quebec (1978), Ontario (1993), the Yukon (1991), and the Northwest Territories (1988). Bill C-469 recognizes that Canadians have the right to live in a healthy environment, amends the legislative Canadian Bill of Rights to include this right, and provides a suite of procedural rights (access to information, participation in decision-making, and legal remedies) intended to contribute to the fulfillment of this right. Bill C-469 also contains several provisions designed to increase the enforcement of Canadian environmental laws in cases where environmental damage has been caused, is ongoing, or is likely to occur. The greatest attributes of Bill C-469 are likely its democracy enhancing provisions—giving citizens a greater role in the environmental decisions that affect their lives—and its potential to improve environmental enforcement. Bill C-469 represents a step forward towards increased accountability and transparency but is weaker—both legally and in terms of reflecting and reinforcing Canadian values—than a constitutionally entrenched environmental bill of rights (such as France enacted in 2005). Recommended revisions to Bill C-469 include: adding a section stating that Canadians have a duty to protect the environment; shifting responsibility for responding to requests for review from the Minister to the Commissioner for Environment and Sustainable Development (s. 13); adding remedies for civil actions (s. 23); and adding rules for simplified and expedited legal actions. Other recommended actions include: bringing the Environmental Enforcement Act (2009) into force; and ratifying the Aarhus Convention, the American Convention on Human Rights, and the associated San Salvador Protocol. Ideally, Canada should amend the Charter of Rights and Freedoms to include the right to a healthy environment. Although politically challenging, a constitutional amendment would be the most powerful expression, both legally and symbolically, of Canadians’ dedication to protecting the environment for both present and future generations.

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Bill C-469: The Canadian Environmental Bill of Rights

Rationale Why does Canada need an Environmental Bill of Rights? There are four compelling reasons:

1. Canada’s poor environmental record 2. Recognizing the right to a healthy environment offers numerous potential advantages—both environmental and democratic 3. The right to a healthy environment has gained widespread legal recognition across the world 4. Other nations’ experiences demonstrate the extensive benefits of recognizing environmental rights and responsibilities

My brief reviews this evidence and then makes specific recommendations regarding Bill C-469, the Canadian Environmental Bill of Rights. Canada’s Environmental Record It is widely acknowledged that Canada lags behind other nations in terms of environmental performance. According to the Conference Board of Canada, we rank 15th out of 17 large, wealthy industrialized nations on environmental performance (based on a comparison of 15 indicators in the areas of air quality; water quality and quantity; natural resource management; biodiversity and conservation; and climate change and energy efficiency).i According to researchers at Simon Fraser University, Canada ranks 24th out of 25 wealthy nations in the Organization for Economic Coordination and Development (based on a comparison of 28 environmental indicators in the areas of energy, waste and pollution, water, food, nature conservation, and global sustainability).ii According to researchers at Yale and Columbia Universities, 45 nations out-perform Canada in terms of environmental protection.iii Canadians have the seventh largest per capita ecological footprint in the world.iv Thousands of Canadians die prematurely each year because of exposure to air pollution and other environmental hazards.v As Prime Minister Harper observed in December 2006, "Canada's environmental performance is, by most measures, the worst in the developed world. We've got big problems."vi

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The Potential Benefits of Recognizing the Right to a Healthy Environment The potential advantages of recognizing the right to a healthy environment (and associated procedural rights) include:

-providing a stimulus for stronger environmental laws and policies; -bolstering the implementation and enforcement of existing environmental laws and policies; -promoting greater citizen involvement in decisions and actions to protect the environment, in part through enhancing access to information, participation in decision-making, and access to justice; -increasing accountability; -increasing transparency; -playing an educational role; -reflecting the environmental values expressed by Canadians; -protecting environmental laws and regulations from future rollbacks; and -guiding the discretion of law makers, administrative agencies, and courts towards more environmentally sustainable decisions.

The extent to which these benefits are realized will depend on a wide range of political, economic, social, cultural, and legal factors. International Recognition of the Right to a Healthy Environment Canada is one of a shrinking number of nations that fails to recognize the right to a healthy environment. As of 2010, 170 of 192 UN member nations (89%) recognize that their citizens possess a legal right to live in a healthy environment.vii The 22 nations that do not yet recognize that their citizens possess a legal right to live in a healthy environment include Canada, Afghanistan, Australia, Brunei Darussalam, Cambodia, China, Iceland, Ireland, Japan, Kuwait, Laos, Lebanon, Liechtenstein, Monaco, Myanmar, New Zealand, North Korea, Oman, San Marino, Switzerland,viii the United Kingdom, and the United States. However there are sub-national governments in some of these laggard nations that have recognized their citizens’ right to a healthy environment, including four provinces and territories in Canada and ten states in the US.ix In addition,

-100 of 192 UN member nations (52%) recognize that their citizens have a constitutional right to live in a healthy environment, a number that increases every year.

For example, Art. 110(b) of Norway’s Constitution (1992) states “Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved. Natural resources should be made use of on the basis of comprehensive long-term considerations whereby this right will be safeguarded for future generations as well.”x

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-135 of 192 UN member nations recognize that their governments have a constitutional duty to protect the environment (see map on p. 6) For example, Art. 66(2) of Portugal’s Constitution (1976) states:

In order to ensure enjoyment of the right to the environment within an overall framework of sustainable development, acting via appropriate bodies and with the involvement and participation of citizens, the state shall be charged with:

a) Preventing and controlling pollution and its effects and the harmful forms of erosion; b) Conducting and promoting town and country planning with a view to a correct location of activities, balanced social and economic development and the enhancement of the landscape; c) Creating and developing natural and recreational reserves and parks and classifying and protecting landscapes and places, in such a way as to guarantee the conservation of nature and the preservation of cultural values and assets that are of historic or artistic interest; d) Promoting the rational use of natural resources, while safeguarding their ability to renew themselves and maintain ecological stability, with respect for the principle of inter-generational solidarity; e) Acting in cooperation with local authorities, promoting the environmental quality of rural settlements and urban life, particularly on the architectural level and as regards the protection of historic zones; f) Promoting the integration of environmental objectives into the various policies of a sectoral nature; g) Promoting environmental education and respect for environmental values; h) Ensuring that tax policy renders development compatible with the protection of the environment and the quality of life.xi

-80 of 192 UN member nations (42%) recognize that their citizens have a constitutional responsibility to protect the environment For example, in France’s Charter for the Environment (2005):

Article 2. Every person has the duty to take part in the preservation and the improvement of the environment. Article 3. Every person must, in the conditions defined by law, prevent or, at a minimum, limit the harm that it is susceptible to bring on the environment.xii

-115 of 192 UN member nations (60%) have signed legally binding international treaties that recognize the right to live in a healthy environment.xiii

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Many international declarations and resolutions have endorsed the right to a healthy environment, including:

-a resolution from the UN General Assembly in 1990;xiv -the Council of Europe’s Dublin Declaration in 1990;xv -the 1990 Cairo Declaration on Human Rights in Islam;xvi -repeated resolutions from the UN Commission on Human Rights;xvii -the Earth Charter, a unique international agreement, drafted by civil society rather than states;xviii and

-the 2007 Male’ Declaration on the Human Dimension of Climate Change.xix International recognition of the right to a healthy environment has been endorsed by:

-the World Commission on Environment and Development (also known as the Brundtland Commission);xx -the UN Special Rapporteur on Human Rights and the Environment, whose final report included a Draft Declaration of Principles on Human Rights and the Environment;xxi -a Global Judges Symposium;xxii -the International Law Association;xxiii -the IUCN’s Commission on Environmental Law and the International Council of Environmental Law;xxiv and -the Institute of International Law.xxv

Experts in international law have also produced a series of declarations endorsing the right to a healthy environment, including: -the 1991 Draft Charter on Environmental Rights and Obligations;xxvi

-the 1999 Bizkaia Declaration on the Right to the Environment; xxvii -the Limoges Declarations (1990, 2001);xxviii and -the Draft International Declaration on Human Rights and Environment.xxix Overall, the majority of international law organizations and international environmental law experts agree that there is a human right to a healthy environment.xxx The growing legal recognition of the right to a healthy environment indicates that the right is likely close to, or has already surpassed, the threshold for becoming a general principle of international law or customary international law, and thus binding on Canada. Other Nations’ Experiences with Constitutional Environmental Protection The focus of my recent research is on whether, and to what extent, constitutionalizing environmental rights and responsibilities makes a tangible difference, in terms of both environmental law and environmental outcomes. In an effort to answer these questions, I examined environmental laws and court decisions in 100 nations, surveyed 500+ environmental law experts, and compared the performance of nations with and without constitutional environmental protection using seven different sets of environmental data. My research on the 100 nations where citizens have a constitutional right to a healthy environment demonstrates that these provisions are making a substantial contribution to improving people’s lives and well-being. The potential advantages described earlier are

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being realized. Environmental laws are being strengthened. Reports from the OECD confirm that the incorporation of environmental provisions in European constitutions led to “major revision and amplification of environmental policies … and facilitated the development of inspection, monitoring, and enforcement.”xxxi Enforcement of environmental laws is increasing. For example, Brazil has seen a dramatic increase in environmental enforcement since environmental provisions were added to the constitution in 1988.xxxii Citizens of European and Latin American nations in particular are enjoying unprecedented access to environmental information, opportunities to participate in environmental decision-making, and access to legal remedies when the environment is being harmed or threatened with harm.xxxiii Tangible benefits for people, communities, and nature include improved access to clean drinking water, cleaner air, more effective sanitation and waste management practices, and healthier ecosystems. In terms of the bigger picture, there is now empirical evidence that compared to nations without constitutional environmental provisions, nations with such provisions:

-have significantly smaller ecological footprints, both globally and in each of five major regions (see Figures 1 and 2, below);xxxiv -perform significantly better on comprehensive indices of environmental performance, such as the Conference Board of Canada’s ranking of 17 wealthy nations and assessments of OECD nations by SFU researchers;xxxv and -have made significantly faster progress with respect to reducing emissions of nitrogen oxides, sulphur dioxide, and greenhouse gases.xxxvi

Figure 1: Constitutions and Ecological Footprints

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Figure 2: Regional Comparison of Constitutions and Ecological Footprints

As a result of the right to a healthy environment, people in many communities have gained access to safe drinking water. Millions of people are breathing cleaner air. Law-breaking polluters have been hauled into court, fined, and forced to clean up their act. And while the right to a healthy environment has focused primarily on people, Nature too has benefited. The habitat of endangered species—sea turtles in Greece, green macaws in Costa Rica, salamanders in the Netherlands, and many others—has been protected. Damaged ecosystems—from Argentina to the Philippines—are being restored. As Professors Yang and Percival observed after reviewing the experiences of other nations with environmental rights and responsibilities, “there is much that the United States can learn about governance systems that take environmental human rights seriously enough to back them specifically in the law.”xxxvii This statement applies with equal force to Canada. A Brief History of the Right to a Healthy Environment in Canada Proposals to recognize the right to a healthy environment in Canada date back to the late 1960s, but have never succeeded.xxxviii In 1981, then Environment Minister Charles Caccia proposed an environmental bill of rights.xxxix During the process that led to the repatriation of the Constitution and the enactment of the Canadian Charter of Rights and Freedoms in 1982, several citizen’s organizations proposed the inclusion of the right to a healthy environment.xl In 1987, Prime Minister Brian Mulroney’s government proposed including the right to a healthy environment in the proposed Canadian Environmental Protection Act.xli In 1989, Canada signed the non-binding Hague Declaration on the Environment, along with 23 other nations, recognizing that all individuals have: "the right to live in dignity in a viable global environment, and the consequent duty of the community of nations vis-à-vis present and future generations to do all that can be done to preserve the quality of the environment."xlii In 1992, Prime Minister Mulroney advocated the negotiation of a binding international agreement recognizing the right to a healthy environment.xliii The notion of a constitutional right to a healthy environment was

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raised again during the Meech Lake and Charlottetown processes.xliv For example, in 1990, the Canadian Bar Association called for constitutional recognition of the right to a healthy environment.xlv The Liberal Party pledged in the mid-1990s to enact a legislative environmental bill of rights.xlvi In 1995, the Supreme Court of Canada explicitly endorsed a passage from a Law Reform Commission report that stated "a fundamental and widely shared value is indeed seriously contravened by some environmental pollution, a value which we shall refer to as the right to a safe environment."xlvii The Supreme Court referred to this passage with approval again in 1997 in another key environmental law decision.xlviii In 2006, I filed a Petition with the Commissioner of the Environment and Sustainable Development asking: “Does the Government of Canada recognize that Canadians have a right to clean water, clean air, and a healthy environment?”xlix The Government of Canada’s formal response, although long and convoluted, can be summarized in a single word: No.l As of today, no federal legislation, regulation, policy, or program explicitly recognizes this fundamental human right. There are, however, four provinces and territories with legislation recognizing the right to a healthy environment:

-Quebec included the right in its Environmental Quality Act in 1978, and more recently in its provincial Charter of Human Rights and Freedoms (2006). -Ontario passed the Environmental Bill of Rights in 1993. -The Yukon included the right in the Environment Act in 1991. -The NWT passed its Environmental Rights Act in 1988.

Analysis of the Canadian Environmental Bill of Rights Bill C-469 recognizes that Canadians have the right to live in a healthy environment, amends the legislative Canadian Bill of Rights to include this right, and provides a suite of procedural rights. The Canadian Environmental Bill of Rights sets out five primary purposes in s. 6:

-Safeguarding the right of present and future generations of Canadians to a healthy and ecologically balanced environment -Confirming that the federal government has a public trust duty to protect the environment -Ensuring all Canadians have effective access to environmental information, mechanisms for participating in environmental decision-making, and access to justice -Providing legal protection for environmental whistle-blowers (employees who act to protect the environment and may be subject to reprisals by their employer) -Enhancing public confidence in the implementation of environmental law

At the heart of the Canadian Environmental Bill of Rights is recognition of the right to live in a healthy and ecologically balanced environment. The majority of the bill consists of procedural tools designed to ensure the fulfillment of the right to a healthy

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environment. These procedural tools reflect the three key pillars—access to information, participation in decision-making, and access to justice—of a highly regarded international agreement called the Aarhus Convention.li Although Canada participated in Aarhus negotiations, it never signed the agreement. The Public Trust Doctrine The public trust duty referred to in Bill C-469 means that certain public goods (e.g. air, water, waterways, fisheries and public lands) are held by the government in trust for the benefit of all people, and in some cases for future generations. Decisions regarding the use of those public goods must reflect the government’s role as a trustee rather than owner or manager. The public trust is included in environmental rights legislation in the Yukon and NWT and has had a modest positive influence on land and water management in the USA.lii Access to Information and Opportunities for Public Participation To achieve the Bill’s purposes related to information and public participation, the Canadian Environmental Bill of Rights mandates the federal government to: make environmental information available in a reasonable, timely, and affordable fashion (s. 10); and ensure opportunities for effective, timely, and informed public participation in decision-making related to laws, regulations, and policies (ss. 11-12). To some extent, other federal laws and policies already provide access to environmental information and opportunities for public participation. However, there are gaps and inconsistencies in today’s system. Laws such as the Canadian Environmental Protection Act and the Canadian Environmental Assessment Act provide public registries of documents and opportunities for public participation. Other laws, such as the Fisheries Act, still lack public participation mechanisms. Existing legislative provisions governing access to information are not necessarily effective, as demonstrated by delays in disclosing information, expensive fees, and withholding or redacting vital documents. Similarly, many of the current public participation processes are limited in scope. The Canadian Environmental Bill of Rights has the potential to improve the current system, fill existing gaps, and prevent the future weakening of either access to information or public participation mechanisms. Increased Opportunities for Enforcement of Environmental Laws Bill C-469 contains a suite of provisions designed to increase the enforcement of Canadian environmental laws in cases where environmental damage has been caused, is ongoing, or is likely to occur. The effective enforcement of Canadian environmental laws and regulations is not a question of environment versus economy, but rather a question of whether laws enacted by Parliament will be respected or not. Federal environmental law enforcement agencies have historically been constrained by scarce resources, limited information, and political pressures. Weak and often inequitable enforcement of Canada’s environmental laws has contributed to the erosion of trust in government institutions over the past 30 years. For purposes of comparison, every year the enforcement activities of the US Environmental Protection Agency dwarf the entire history of prosecutions, fines,

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and convictions of federal environmental enforcement in Canada.liii Recent pledges to increase the number of environmental enforcement personnel and raise maximum fines for environmental offences are steps in the right direction.liv The Canadian Environmental Bill of Rights could further improve environmental enforcement by authorizing concerned citizens, NGOs, and communities to:

-apply to the Commissioner of Environment and Sustainable Development asking the responsible Minister to conduct a review of existing or proposed laws, regulations, and policies in order to protect the environment (s. 13); -request investigations into potential violations of environmental law (ss. 14-15); -file environmental protection lawsuits against the federal government for violating the right to a healthy environment, failing to enforce an environmental law, or failing to protect the public trust (ss. 16-21); and -file a civil lawsuit against anyone (individual, business, or government) who violates a federal environmental law or regulation (s. 23).

Bill C-469 also guarantees that concerned citizens/NGOs will be granted standing in the Federal Court to challenge government decisions related to environmental protection (s. 22). Provisions authorizing requests for review (s. 13) exist in a limited context in the Canadian Environmental Protection Act and the Pest Control Products Act but have not been effective. A major reason is the Minister’s discretion to deny such requests. Under Bill C-469, the same problem exists, as the responsible Minister has the discretion to determine whether or not to proceed with a requested review. It would be more effective to authorize an independent body (e.g. the federal Commissioner for Environment and Sustainable Development) to respond to requests for reviews and make recommendations to the Minister, who would then be required to respond to the recommendations (either implementing them or providing reasons for refusing to do so). Provisions authorizing requests for investigations (ss. 14-15) exist in the Canadian Environmental Protection Act and the federal Species at Risk Act as well as the Ontario Environmental Bill of Rights. Combined with enhanced opportunities for citizens to enforce environmental laws, this provision should contribute to stronger enforcement of environmental laws in Canada. The environmental protection action (ss. 16-21) is a potentially important legal tool, enabling citizens/NGOs/communities to take the federal government to court for failing to fulfill its public trust duty to protect the environment, failing to enforce environmental laws, or violating the right to a healthy and ecologically balanced environment. The rules regarding environmental protection lawsuits reduce several traditional obstacles to access to justice by: (i) reducing the burden of costs for the party bringing the lawsuit; (ii) authorizing effective interim provisions to halt environmental harm; (iii) outlining a range of creative and effective remedies (including those focused on environmental remediation); and (iv) reducing the number of defenses available. The Yukon’s Environment Act and the Ontario Environmental Bill of Rights include civil action provisions but they have not proven useful because the processes are unwieldy. In

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both Ontario and the Yukon, citizens/NGOs must first file a request for an investigation, and then may file a civil lawsuit only if the government’s resolution of the investigation is held to be “unreasonable.” This procedural obstacle is absent from s. 23 of Bill C-469, increasing the likelihood that civil lawsuits could be an effective tool for increasing the enforcement of environmental laws and regulations. As well, Bill C-469 places the onus on the defendant to prove that its actions or inactions will not cause significant environmental harm and prevents defendants from relying on government permits or licenses as a defense. However, there appears to be a drafting oversight in that Bill C-469 fails to provide the range of remedies available through civil actions. Whistleblower Protection Protection for environmental whistleblowers is provided by ss. 24 and 25, authorizing a complaint to be filed with the Canada Industrial Relations Board. The whistleblower provisions apply to federal employees and persons working on projects within federal jurisdiction (e.g. inter-provincial railways or ferries). The whistleblower provisions in the Ontario Environmental Bill of Rights have rarely been used, suggesting that these provisions are either an effective deterrent, other remedies are available, or employer reprisals for whistle-blowing in environmental contexts are rare.

Examination of Laws and Regulations Bill C-469 (s. 26) requires the Auditor General to examine all proposed laws and regulations to determine whether they are consistent with the provisions of the Canadian Environmental Bill of Rights. Pursuant to the Department of Justice Act, the federal Department of Justice currently reviews proposed laws and regulations to ensure that they are consistent with the Canadian Charter of Rights and Freedoms.lv It is unclear whether the Auditor General is the appropriate person/office to perform this function with respect to the Canadian Environmental Bill of Rights. As well, whereas laws and regulations that are inconsistent with the Charter cannot be passed because of the Charter’s constitutional status, the government retains the discretion to pass laws and regulations inconsistent with the Canadian Environmental Bill of Rights. Amendment of the Canadian Bill of Rights Finally, the Canadian Environmental Bill of Rights amends the Canadian Bill of Rights to include the right to a healthy and ecologically balanced environment. The Canadian Bill of Rights is a law passed by the Diefenbaker government in 1960 and must not be confused with the 1982 Canadian Charter of Rights and Freedoms, which has constitutional status and is therefore a more powerful legal tool. The Canadian Bill of Rights is widely regarded as having had little direct influence on the fulfillment of human rights in Canada, although a case can be made that it elevated the public profile of human rights and served as a stepping-stone to the eventual enactment of the Charter.

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Conclusion The Canadian Environmental Bill of Rights seeks to improve access to information, public participation in decision-making, and enforcement of environmental laws. Its greatest attributes are likely its democracy enhancing provisions—giving citizens a greater role in the environmental decisions that affect their lives—and its potential to improve environmental enforcement. Bill C-469 represents an important step forward towards accountability and making the environmental laws passed by Parliament meaningful rather than symbolic. The evidence indicates that legal recognition of environmental rights and responsibilities can improve the environmental performance of nations. If our ultimate goal is to establish or re-establish Canada as an environmental leader, then it is imperative that environmental rights and responsibilities be entrenched in the Constitution. The Constitution is both the supreme law of a country and a mirror of a nation’s soul. A legislative Canadian Environmental Bill of Rights is weaker—both legally and in terms of reflecting Canadian values—than a constitutionally entrenched environmental bill of rights. However, Bill C-469 may represent a potential stepping-stone to constitutional recognition of the right to a healthy environment (as the statutory 1960 Canadian Bill of Rights set the stage for the 1982 Charter). The right to a healthy environment recognizes that humanity’s most common link is that we all share this small planet. We all breathe the same air. We all drink the same water. We all cherish our children’s future. Recommendations

Recommendation 1. Bill C-469 should include a provision establishing that Canadians have a responsibility to protect the environment. The provision would be hortatory rather than enforceable, but would make the point that rights and responsibilities are integrally related. As noted earlier, 80 nations have such provisions in their Constitutions.

Proposed Wording: Every person has a duty to take part in the preservation and the improvement of the environment, and to prevent or minimize environmental damage caused by their own actions.

Recommendation 2. Section 13 should authorize an independent body (e.g. the federal Commissioner for Environment and Sustainable Development) to respond to requests for reviews and make recommendations to the Minister. Experience from other jurisdictions suggests that giving the Minister the discretion to decide whether to proceed with a review renders this type of provision ineffective. It would be more effective to have the Commissioner handle requests for review, and to require the Minister to respond to the Commissioner’s recommendations (either implementing them or providing reasons for refusing to do so).

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Recommendation 3. Section 23 establishing civil actions lacks remedies, which appears to be a drafting oversight. Most of the same remedies available for environmental protection actions (ss. 16-21) should be available in civil actions. Recommendation 4. In section 26, the Department of Justice, rather than the Auditor General, should be responsible for examining federal laws and regulations to ensure that they are consistent with the Canadian Environmental Bill of Rights. This will require a consequential amendment to s. 4.1 of the Department of Justice Act: Proposed Wording

4.1 (1) Subject to subsection (2), the Minister shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Environmental Bill of Rights. The Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity. [added words underlined]

Recommendation 5. Consequential amendments should be made to the Federal Court Act and Rules to establish simplified, expedited, and inexpensive procedures for the enforcement of environmental rights and responsibilities. These kinds of procedural changes (e.g. strict timelines for filing documents) will reduce legal costs and prevent cases from dragging on for years. The Rules of Procedure for Environmental Cases recently promulgated by the Supreme Court of the Philippines offer a recent and exemplary model.lvi Recommendation 6. S. 28 should amend the Canadian Charter of Rights and Freedoms rather than (or alternatively in addition to) the Canadian Bill of Rights Proposed Wording: The Canadian Charter of Rights and Freedoms is amended by the inclusion of the following provision:

Everyone has the right to a healthy and ecologically balanced environment. Recommendation 7. The Environmental Enforcement Act (S.C. 2009, c. 14) should be brought into force at the earliest possible date. Recommendation 8. To enhance its international reputation in the field of human rights and the environment, Canada should ratify the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, the American Convention on Human Rights and the associated San Salvador Protocol. Ratifying the Aarhus Convention would provide access to best practices in this field as well as offering independent oversight through the Aarhus Compliance Committee that

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responds to citizen complaints and can make non-binding recommendations for government action. It is worth noting that leading nations such as Sweden, Norway, and Finland have yet to have a single citizen submission filed with the Aarhus Compliance Committee since it began operating in 2004.lvii The San Salvador Protocol to the American Convention on Human Rights provides:

Article 11.1 Everyone shall have the right to live in a healthy environment and to have access to basic public services. 11.2 The state parties shall protect the protection, preservation, and improvement of the environment.

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NOTES i Conference Board of Canada. 2008. How Canada Performs: A Report Card on Canada. Ottawa: Conference Board. ii T. Gunton and K.S. Calbrick. 2010. The Maple Leaf in the OECD: Canada’s Environmental Performance. Study prepared for the David Suzuki Foundation. iii J. Emerson, D.C. Esty, C. Kim et al. 2010. Environmental Performance Index 2010. Yale Center for Environmental Law and Policy and Columbia University Center for International Earth Science Information Network. iv World Wildlife Fund, Zoological Society of London, and Global Footprint Network. 2010. Living Planet Report 2010. London: WWF. v Canadian Medical Association. 2008. No Breathing Room: National Illness Costs of Air Pollution. Toronto: CMA. vi Prime Minister Stephen Harper. 2006. Year-end Interview. December 21, 2006. http://www.ctv.ca/CTVNews/TopStories/20061221/harper_year_end_061221/ vii D.R. Boyd. 2011. The Environmental Rights Revolution: Constitutions, Human Rights, and the Environment. Vancouver: UBC Press. viii Switzerland has comprehensive and strong constitutional provisions regarding environmental protection as well as strong legislation but has not yet recognized the right to a healthy environment. “Constitution of Switzerland,” in R. Wolfrum and R. Grote, eds. G.H. Flanz, Ed. Emeritus. 2010. Constitutions of the Countries of the World. New York: Oceana Law. ix Ontario, Quebec, Yukon, and Northwest Territories. Alaska, Hawaii, Illinois, Massachusetts, Minnesota, Montana, Pennsylvania, Rhode Island, Texas, and Washington. x “Constitution of Norway,” in R. Wolfrum and R. Grote, eds. G.H. Flanz, Ed. Emeritus. 2010. Constitutions of the Countries of the World. New York: Oceana Law. xi “Constitution of Portugal,” in R. Wolfrum and R. Grote, eds. G.H. Flanz, Ed. Emeritus. 2010. Constitutions of the Countries of the World. New York: Oceana Law. xii “Constitution of France,” in R. Wolfrum and R. Grote, eds. G.H. Flanz, Ed. Emeritus. 2010. Constitutions of the Countries of the World. New York: Oceana Law. xiii The African Charter has been ratified by 53 nations, of whom 52 are UN members. The San Salvador Protocol has been ratified by 14 nations. The Aarhus Convention has been ratified by 43 nations, although the United Kingdom filed a reservation with its ratification refusing to acknowledge that there is a substantive right to a healthy environment. The Arab Charter has been ratified by at least ten nations (Algeria, Bahrain, Jordan, Libya, Palestine, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Yemen). Algeria and Libya have ratified both the African Charter and the Arab Charter, while Palestine is not a UN member. All ratification data are current to January 1, 2010. xiv UN General Assembly. 1990. Res. 45/94, U.N. GAOR, U.N. Doc. A/45/749 (Dec. 14, 1990). xv Council of Europe. 1990. Dublin Declaration, 26 July 1990. Excerpts in M. Dejeant-Pons and M. Pallemaerts, eds. 2002. Human Rights and the Environment: Compendium of instruments and other international texts on individual and collective rights relating to

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the environment in the international and European framework. Strasbourg: Council of Europe Publishing, pp. 255-6. xvi Organization of the Islamic Conference. 1990. Cairo Declaration on Human Rights in Islam. Cairo, 5 August 1990. UN Doc. A/45/421-S/21797, 200; A/CONF.157/PC/35; A/CONF.157/PC/62/Add. 18, 2. xvii UN Human Rights Commission. 2005. Resolution 2005/57, UN Doc. E/CN.4/2005/L.73. UN Human Rights Commission. 2003. Resolution 2003/21. Effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particularly economic, social and cultural rights, UN Doc.E/CN.4/2003/L.11/Add. 3. UN Human Rights Commission. 2001. Resolution 2001/65 on the Promotion of a Democratic and Equitable International Order, 57th session. UN Human Rights Commission. 1991. Resolution 1991/44 on human rights and the environment, 5 March 1991. xviii Earth Charter, Article 9(a). www.earthcharter.org xix Alliance of Small Island States. 2007. Male’ Declaration on the Human Dimension of Climate Change. Nov. 2007. xx World Commission on Environment and Development (Brundtland Commission). 1987. Our Common Future. Oxford: Oxford University Press, p. 348. xxi F.Z. Ksentini. 1994. Review of Further Developments in Fields with which the Sub-Commission has been Concerned, Human Rights and the Environment: Final Report Final Report of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. UN Doc. E/CN.4/Sub.2/1994/9 (6 July 1994). xxii Johannesburg Principles on the Role of Law and Sustainable Development. 2003. Adopted at the Global Judges Symposium held in Johannesburg, South Africa, August 18-20, 2002. 15 Journal of Environmental Law 107-110. xxiii N.J. Schrijver and F. Weiss. 1995. Report of the Expert Group on Identification of Principles of International Law for Sustainable Development. International Law Association, para. 31. xxiv Commission on Environmental Law of the IUCN (in cooperation with the International Council of Environmental Law). 1995. International Covenant on Environment and Development, Excerpts in M. Dejeant-Pons and M. Pallemaerts, eds. 2002. Human Rights and the Environment: Compendium of instruments and other international texts on individual and collective rights relating to the environment in the international and European framework. Strasbourg: Council of Europe Publishing. xxv Excerpts in M. Dejeant-Pons and M. Pallemaerts, eds. 2002. Human Rights and the Environment: Compendium of instruments and other international texts on individual and collective rights relating to the environment in the international and European framework. Strasbourg: Council of Europe Publishing, p. 91. xxvi Experts Meeting held in Oslo, Oct. 29-31, 1990. Reprinted in Environmental Policy and Law (1991): p. 81. xxvii UN Educational, Scientific, and Cultural Organization and the UN High Commissioner for Human Rights. 1999. Bizkaia Declaration on the right to environment, issued at the International Seminar of Experts on the Right to the Environment, UN Doc. 30C/INF.11 24.09.1999.

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xxviii International Centre of Comparative Environmental Law. 2001. Declaration de Limoges II: Towards a New Environmental Law. World Conference of Environmental Law Organizations. International Centre of Comparative Environmental Law. 1990. Declaration de Limoges. World Conference of Environmental Law Organizations. xxix Center for Human Rights and Environment and the Center for International Environmental Law. 2002. Draft International Declaration on Human Rights and Environment. xxx S. Atapattu. 2006. Emerging Principles of International Environmental Law. Ardsley, NY: Transnational Publishers, pp. 16-34. P. Birnie and A. Boyle. 2002. International Law and the Environment, 2nd ed. Oxford: Oxford University Press, p. 254. M.-C. Cordonier-Segger and A. Khalfan. 2004. Sustainable Development Law: Principles, Practices, and Prospects. Oxford: Oxford University Press, p. 72. A. Kiss and D. Shelton. 2004. International Environmental Law, 3rd ed. Ardsley, N.Y.: Transnational Publishers, p. 709. V.P. Nanda and G. Pring. 2003. International Environmental Law and Policy for the 21st Century. Ardsley, NY: Transnational Publishers, pp. 17, 29, and 475. xxxi Organization for Economic Cooperation and Development. 2004. Environmental Performance Review: Spain. Paris: OECD, p. 122. Organization for Economic Cooperation and Development. 2005. Environmental Performance Review: France. Paris: OECD, p. 18. Organization for Economic Cooperation and Development. 2001. Environmental Performance Reviews: Portugal. Paris: OECD, pp. 41-42. xxxii L.K. McAllister. 2008. Making Law Matter: Environmental Protection and Legal Institutions in Brazil. Stanford: Stanford University Press. xxxiii N. de Sadeleer, G. Roller, and M. Dross, eds. 2005. Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal. Amsterdam: Europa Law Publishing. J. Ebbesson and P. Okowa, eds. 2009. Environmental Law and Justice in Context. Cambridge: Cambridge University Press. Martinez, I. 2001. “El Acceso a la Justicia Ambiental en America Latina durante la decada de los Noventa: Reformas y Desarollos,” in N. Islam, I Martinez, I. Mgbeoji, and W. Xi, eds. Environmental Law in Developing Countries: Selected Issues. Gland, Switzerland: International Union for the Conservation of Nature, pp. 27-66. xxxiv Among 150 nations with available ecological footprint data, 116 had constitutional provisions requiring environmental protection while 34 had constitutions that were silent on the matter. The EF of the nations without constitutional environmental provisions was an average of 3.6 ha per capita. The EF of the nations with constitutional environmental provisions was an average of 2.4 ha per capita. xxxv Fourteen of the fifteen top-performing OECD nations are among those whose constitutions include protection for the environment. Eight of the nine top-ranked nations in the Conference Board’s comparison have environmental protection provisions in their constitutions. xxxvi Comparing the 17 wealthiest industrialized nations, NOx emissions fell more than ten times faster between 1980 and 2005 in nations where constitutional provisions required environmental protection. The eight nations with environmental protection provisions in their constitutions also achieved deeper reductions in sulphur dioxide emissions between 1980 and 2005 (84.8% vs 52.8%). Between 1990 and 2005, total

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GHG emissions in nations without constitutional environmental provisions grew eight times faster than in nations with constitutional environmental provisions. xxxvii T. Yang and R.V. Percival. 2009. “The Emergence of Global Environmental Law,” Ecology Law Quarterly 36: 615-64 at 661. xxxviii C. Williams. 1985. “The Changing Nature of Citizen Rights” in A. Cairns and C. Williams, eds. Constitutionalism, Citizenship, and Society in Canada. Toronto: University of Toronto Press, pp. 99-132, at 114. Canadian Environmental Law Research Foundation. 1972. Public Rights and Environmental Planning. Toronto: CELRF. R.T. Franson and P.T. Burns. 1974. Environmental Rights for the Canadian Citizen: A Prescription for Reform. 12 Alberta Law Rev. 153 at 171. xxxix Private Member’s motion introduced by Charles Caccia, “Establishment of Environmental Bill of Rights,” Hansard, July 9, 1981, pp. 11385-89. xl D. Estrin and J. Swaigen, eds. 1978. Environment on Trial, 2d ed. Toronto: Canadian Environmental law Research Foundation, p. 459. Canadian Environmental Law Association. “CELA Asks for Constitutional Guarantee of a Clean Environment,” Newsletter 3(5): 70. Toronto: CELA. D. Gibson. 1983. “Environmental Protection and Enhancement under a new Canadian Constitution,” in S.M. Beck and C. Bernier, eds. Canada and the New Constitution: The Unfinished Agenda. Montreal: The Institute for Research on Public Policy. xli Canadian Environmental Protection Act, Bill C-32, 1987. xlii Hague Declaration on the Environment, 11 March 1989, 28 I.L.M. 1308 (1989). xliii Proposal of Canada, UN Doc. A/CONF.151/PC/WGIII/L5, 16 August 1991 quoted in M. Pallemaerts and M. Dejeant-Pons, eds, Human Rights and the Environment, Strasbourg: Council of Europe Publishing, p. 13, n.2. xliv D. Gibson, "Constitutional Entrenchment of Environmental Rights," in N. Duple, ed. Le droit a la qualite de l'environnement: un droit en devenir, un droit a definir (Quebec: Quebec/Amerique, 1988) pp. 281-282. F. Gertler and T. Vigod, 1991. "Submission by the Canadian Environmental Law Association to the Select Committee on Ontario in Confederation: Environmental Protection in a New Constitution," Toronto: CELA. xlv Canadian Bar Association. 1990. Report of the Canadian Bar Association Committee on Sustainable Development in Canada: Options for Law Reform, p. 27. xlvi Liberal Party of Canada. 1993. Creating Opportunity: The Liberal Plan for Canada. xlvii Ontario v. Canadian Pacific [1995] 2 S.C.R. 1031 at 1075-1076. The full passage from the Supreme Court of Canada's decision is as follows:

Everyone is aware that individually and collectively, we are responsible for preserving the natural environment. I would agree with the Law Reform Commission of Canada, Crimes Against the Environment, supra, which concluded at p. 8 that:

… a fundamental and widely shared value is indeed seriously contravened by some environmental pollution, a value which we will refer to as the right to a safe environment.

To some extent, this right and value appears to be new and emerging, but in part because it is an extension of existing and very traditional rights and values already protected by criminal law, its presence and shape even now are largely discernible. Among the new strands of this fundamental value are, it may be

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argued, those such as quality of life, and stewardship of the natural environment. At the same time, traditional values as well have simply expanded and evolved to include the environment now as an area and interest of direct and primary concern. Among these values fundamental to the purposes and protections of criminal law are the sanctity of life, the inviolability and integrity of persons, and the protection of human life and health. It is increasingly understood that certain forms and degrees of environmental pollution can directly or indirectly, sooner or later, seriously harm or endanger human life and human health. [emphasis in original]

xlviii R. v. Hydro-Quebec, [1997] 3 S.C.R. 213, at para. 124. xlix David R. Boyd. 2006. Petition Regarding the Right of Canadians to Clean Air, Clean Water, and a Healthy Environment. Petition No. 163, January 16, 2006. www.oag-bvg.gc.ca/internet/English/pet_163A_e_28897.html#wp1008755 l Environment Canada, Department of Foreign Affairs and International Trade, Health Canada, and Department of Justice. 2006. Government Response to Petition 163 Filed by David R. Boyd. June 2, 2006. www.oag-bvg.gc.ca/internet/English/pet_163A_e_28897.html#wp1008755 li The Aarhus Convention is formally known as the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 1999, 38 I.L.M. 515. lii M.C. Blumm. 2009. “The Public Trust Doctrine: A Twenty-first Century Doctrine,” Hastings Journal of Environmental Law and Policy, Vol. 14. M.C. Wood. 2007. “Nature’s Trust: Reclaiming an Environmental Discourse,” 25 Virginia Environmental Law Journal 242. liii In 2008, the US Environmental Protection Agency (EPA) imposed $127 million in administrative penalties and secured court judgments requiring defendants to pay $64 million in fines. The EPA also sent corporate polluters and despoilers to prison for 57 years and forced lawbreakers to invest over $11 billion to come into compliance with their legal obligations. All fines and penalties secured through enforcement of the Canadian Environmental Protection Act, the habitat protection provisions of the Fisheries Act, and all other federal environmental laws and regulations from 1988 to 2008 (a period of twenty years) doesn’t come close to one year’s worth of environmental enforcement in the US. See A.L. Girard, S. Day, and L. Snider. 2010. “Tracking Environmental Crime Through CEPA: Canada’s Environment Cops or Industry’s Best Friend?” Canadian Journal of Sociology 35(2): 219-241. US Environmental Protection Agency (Office of Enforcement and Compliance Assurance). 2009. Fiscal Year 2008 Accomplishments Report. Washington, D.C: EPA. liv See the Environmental Enforcement Act, S.C. 2009. However this Act is not yet in force. lv Sec. 4.1, Department of Justice Act, (R.S. 1985, c. J-2). lvi Supreme Court of the Philippines. 2010. Rules of Procedure for Environmental Cases. A.M. No. 09-6-8-SC. lvii See Aarhus Compliance Committee. 2010. Communications from the Public. www.unece.org/env/pp/pubcom.htm