Canada Legislates Right to a Healthy Environment

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On May 30, Canada’s House of Commons passed Bill S-5, which will amend the Canadian Environmental Protection Act 1999 (CEPA) to recognize a Canadian right to a healthy environment, and otherwise update the nation’s principal environmental protection legislation.

Originating in the Senate, the bill will now be affirmed by that upper legislative body and receive royal assent before taking effect. (Update: this has now occured.)

The amended law will formally declare that “every individual in Canada has a right to a healthy environment” and impose a duty on the Canadian government to protect that right “subject to any reasonable limits.” To accomplish this, the law requires Environment and Climate Change Canada to “develop an implementation framework to set out how that right will be considered in the administration” of the law within two years.

The explicit conferral of a right to a healthy environment should, in theory, allow potential claimants, such as youth climate action litigants, to directly challenge government policies and activities that infringe upon Canadians’ environmental rights. Taking into consideration recent (and so-far unsuccessful) Canadian climate action cases - such as La Rose and Mathur - which sought to compel more aggressive government climate action based on a particular interpretation of Canadians’ Charter rights, the amended CEPA may accordingly carve a legal path for new, more successful claims.

Although the content of a right to a healthy environment is not set out in the amended law, it has been comprehensively elaborated over the last decade by two Special Rapporteurs – John Knox and Canada’s own David Boyd – appointed by the UN Human Rights Council to address the connection between human rights and the environment. This should make it easier for claimants to articulate violations by reference to specific elements that the right is said to contain, such as clean air, access to safe water and sanitation, healthy biodiversity, etc.

However, future enforcement of the right may be hindered by the law’s textual leeway which allows Canadian authorities to consider the right subject to “reasonable limits,” which are already specified to include considerations of “social, health, scientific and economic factors”.

Please contact our firm at 647-725-4308 or info@greeneconomylaw.com for legal assistance in connection with environment or climate policy matters.