The Right to a Healthy Environment – Is Canada Finally Catching Up with The Rest of the World?

Jerod Miksza

Late last year, Canada recognized the right to a healthy environment through Bill-S5. There are several areas of concern regarding its implementation framework. This blog reviews the available knowledge surrounding the Canadian right to a healthy environment in the face of international strategies for honouring this right.

What is the right to a healthy environment?

For the first time since 1999, Canada has made changes to the Canadian Environmental Protection Act (“CEPA”). On June 13, 2023, Bill S-5 (Strengthening Environmental Protection for a Healthier Canada Act) received royal ascent, becoming binding law.[1] Alongside other measures,[2] the statute outlines that the CEPA now gives legal effect to the right to a healthy environment by committing to “protect the right of every individual in Canada to a healthy environment as provided under this Act, subject to any reasonable limits.”[3]

In the CEPA, a healthy environment is defined as an environment that is clean, healthy, and sustainable.[4] This description aligns with guidance on the right to a healthy environment outlined by the United Nations General Assembly in July 2022.[5] Internationally, implementation of this right has seen varying levels of success,[6] so the implementation process will be essential to the extent that this right is successfully introduced in Canada.

How will the right to a healthy environment be implemented?

At present, the framework for the right to a healthy environment is in an early stage of development. Environment and Climate Change Canada and Health Canada are currently drafting and consulting in preparation for a short public comment period.[7] Minimal information has been provided on this process outside of commitments to consult Indigenous People throughout the framework’s development and to recognize the role of Indigenous knowledge in accordance with the United Nations Declaration on the rights of Indigenous People.[8]

According to the amendments in Bill S-5, the right to a healthy environment will be framed around three foundational principles. Firstly, the principle of environmental justice protects vulnerable populations that are disproportionately affected by adverse environmental interference. Secondly, the principle of non-regression indicates a commitment to continuous improvements in environmental protection. Thirdly, the principle of intergenerational equity asserts a commitment to meeting the needs of the current generation without sacrificing resources for future generations.[9] These principles offer a promising foundation for the development of a successful framework. However, the practical success of the right to a healthy environment will largely depend on effective enforcement by citizens and transparency throughout implementation.

International Rights to a Healthy Environment – Is There a Gold Standard?

Canada is overdue when it comes to environmental rights. Over 75% of national constitutions already include explicit references to environmental rights.[10] Starting in 1971, Switzerland was the first country to impose a general duty on the federal government to protect the environment.[11] Subsequently, Portugal (1976) and Spain (1798) were the first countries to add a right to a healthy environment to their constitutions.[12] Bill S-5 is merely a statutory provision, falling short of constitutional protection.

The United Nations Global Report on Environmental Rule of Law highlights that the gold standard for implementing a right to a healthy environment is through inclusion in national constitutions. Constitutional enshrinement affords greater importance to this right, allowing for more rigorous environmental protection, as well as effective enforcement by citizens.[13] For example, Portugal’s constitution outlines citizens’ rights to a healthy environment at article 66 with an accompanying framework for legal enforcement.[14]

In Canada, since Bill S-5 amends a statute, it does not go as far. Constitutional rights and other statutory provisions may narrow its scope. The Government of Canada has released a statement regarding possible interactions between the Canadian Charter of Rights and Freedoms (Charter) and the Bill S-5 CEPA amendments.[15] This statement concludes that interactions with the Charter could limit the enforcement of the right to a healthy environment.

The United Nations Environment Programme also highlights three important procedural elements of the right to a healthy environment: access to environmental information, public participation in environmental decision-making, and access to justice.[16] France has implemented these elements into The French Charter for the Environment by guaranteeing rights of access to environmental information and participation in decisions affecting the environment.[17] As I describe in the next section, Bill S-5 apparently intends to promote public access to environmental information and to consider public opinion. However, given that these intentions are not legally binding commitments, it does not go as far as the French Charter.

An alternative route to constitutionalization exists. Scholars argue that Section 7 of the Charter (which protects life, liberty, and security of the person) encompasses the right to a healthy environment.[18] However, this remains to be recognized by the Canadian courts.[19]

How can you empower this right?

The Canadian government intends to reflect the changing interests of Canadians in their implementation framework for the right to a healthy environment. The Ministers of Environment and Climate Change and of Health have committed to releasing annual reports on the framework and incorporating new research, studies and monitoring activities as the right develops.[20]

Early this year, the draft implementation framework for the right to a healthy environment will be released for a 60-day public comment period.[21] These comments will be considered in the final draft of the framework to be released in June 2025.[22] It is important that Canadians participate and voice concerns for the implementation or limitations of this right, as it will influence its overall scope and effect.

Because Canada harbors an abundance of natural wealth, people in Canada can and should feel a responsibility to protect the environment. Canadian ecosystems also provide essential resources like clean air, water, and food, which sustain Canadian society. Increased logging of old growth forests in British Columbia and declining Atlantic salmon populations also make it clear that intervention is required.[23] The implementation of this right is a step in the right direction, however it is still in very early stages of development. Success will largely depend on conformity with other international approaches and United Nations guidelines. We can only hope that this new right to a healthy environment will reflect the direness of the current environmental crisis.

Jerod Miksza is a 1L student in the McGill Faculty of Law. After completing a bachelor’s degree in Biochemistry and working for 3 years as a physical scientist at Environment and Climate Change Canada, he moved to Montreal to pursue studies in environmental law. Special thanks to Samuel Anthony and Sofia Watt Sjöström for their contributions during the editing process.

[1] Government of Canada, “Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act - Summary of Amendments”, (13 April 2021), online:<canada.ca/en/services/environment/pollution-waste- management/strengthening-canadian-environmental-protection-act-1999/bill-c-28-strengthening-environmental- protection-healthier-canada-act-summary-amendments.html>.

[2] Environment and Climate Change Canada, “A Right to a Healthy Environment under the Canadian Environmental Protection Act, 1999”, (12 September 2023), online: <canada.ca/en/environment-climate-change/services/canadian- environmental-protection-act-registry/right-to-healthy-environment.html>.

[3] Canadian Environmental Protection Act, 1999, SC 1999, c 33, as amended by Strengthening Environmental Protection for a Healthier Canada Act, SC 2023, c 12, s 2(1)(a.2) [CEPA].

[4] Ibid at s 3(1).

[5] The human right to a clean, healthy, and sustainable environment, UN General Assembly, 76th Sess, UN Doc A_76_L.75-EN (2022).

[6] David Boyd, The Status of Constitutional Protection for the Environment in Other Nations (David Suzuki Foundation, 2013) at 14–15.

[7] Environment and Climate Change Canada, supra note 2.

[8] CEPA, supra note 3 at preamble.

[9] CEPA, supra note 3 at s 2(1)(a.3).

[10] Boyd, supra note 6 at 6.

[11] Nicolas Schmitt, Environmental Protection in Multi-Layered Systems (Leiden: Brill Nijhoff, 2012) at 83.

[12] Boyd, supra note 6 at 6.

[13] United Nations Environment Programme, “Environmental Rule of Law: First Global Report” (2019) at 156, online: <unep.org/resources/assessment/environmental-rule-law-first-global-report>.

[14] English translation of the seventh (7th) revision of the Constitution of 1976, as appended to Constitutional Law no. 1/2005 (8 December 2005), arts 66, 52 (Portugal).

[15] Department of Justice, “Department of Justice - Statement of Potential Charter Impacts”, (30 March 2020), online:<justice.gc.ca/eng/csj-sjc/pl/charter-charte/s5_1.html>.

[16] United Nations Environment Programme, “Right to a Healthy Environment: Good Practices” (2020), online: <unep.org/resources/toolkits-manuals-and-guides/right-healthy-environment-good-practices>.

[17] LOI constitutionnelle n° 2005-205 du 1er mars 2005, JO, 2 March 2005, 3697

[18] Lauren Worstman, “‘Greening’ the Charter: Section 7 and the Right to A Healthy Environment” (2019) 28:1 Dalhousie J Leg Stud; Catherine Jean Archibald, “What Kind of Life; Why the Canadian Charter’s Guarantees of Life and Security of the Person Should Include the Right to a Healthy Environment” (2013) 22:1 Tulane J Intl & Comp L 1–42.

[19] La Rose v Canada, 2023 FCA 241 at paras 100, 109.

[20] Government of Canada, supra note 1.

[21] Environment and Climate Change Canada, supra note 2.

[22] Ibid.

[23] Chad Pawson, “Provincial data shows increase in old-growth logging, contrary to B.C.'s earlier figures: conservationists”, CBC (05 October 2023), online: <cbc.ca/news/canada/british-columbia/old-growth-logging-british-columbia-how-much-is-harvested-each-year 1.6987777#:~:text=Conservationists%20have%20used%20the%20B.C,was%20announced%20three%20years%20ago.>;Michael Dadswell et al, “The Decline and Impending Collapse of the Atlantic Salmon (Salmo salar)Population in the North Atlantic Ocean: A Review of Possible Causes” (2022) 30:2 Reviews in Fisheries Science & Aquaculture 215–258.