On June 13, 2023, Canada recognized the right to a healthy environment for the first time in a national law, through Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, which amended the Canadian Environmental Protection Act (CEPA). CEPA defines “healthy environment” as one which is “clean, healthy and sustainable.”[1] This law includes the requirement that an implementation framework be developed by June 2025.
This blog post will address some of the ways procedural rights principles from multilateral agreements on procedural environmental rights such as the Aarhus Convention and the Escazú could be used in developing the framework for CEPA’s right to a healthy environment.
In the Canadian context, the right to a healthy environment is a newer development. In July 2022, Canada voted in favour of the UN General Assembly’s resolution recognizing the right to a clean, healthy and sustainable environment as a human right. The right to a healthy environment is generally thought to include procedural and substantive rights.
Substantive and procedural rights are equally important in ensuring the right to a healthy environment.[2] Substantive rights include those such as the right to clean water, the right to clean air, and the right to live in areas free from contamination. Procedural rights include protections for environmental human rights defenders, rights to access to information, and rights of public participation. This blog post will focus on the latter two types of procedural environmental rights.
The importance of procedural environmental rights for the international community, including Canada, has been evident since at least 1992 as set out in Principle 10 of the Rio Declaration. Canada is not currently party to any agreements that primarily focus on procedural environmental rights, like the Aarhus and Escazú. However, values from these two agreements may still be relevant in statutory interpretation.[3] In addition, these agreements can be used to influence how Canada develops its CEPA implementation framework, even if these treaties are not legally binding in Canada.
When the government creates the framework, they should ensure that the right to a healthy environment includes rights to accessing information, rights to public participation, and protections for environmental human rights defenders.
The framework should also be created with an emphasis on addressing environmental racism throughout. Marginalized communities are more likely to be impacted by environmental issues.[4] Therefore, it is imperative that procedural rights are extended to the communities most at risk of environmental harm. The framework should also align with the recent Bill C-226, National Strategy Respecting Environmental Racism and Environmental Justice Act, which received Royal Assent in June 2024 and addresses environmental racism across the country. (Interestingly, many of Canada’s law were inspired by or modelled on the US approach which is currently being rolled back by the Trump administration).
Access to Information
Access to information in the CEPA framework should include transparency measures from government and industry. There are currently shortcomings in access to information in Canada. Information should be available in the simplest form possible and through multiple means (e.g., via internet, bulletins in community centres, etc.).
Access to information provisions in the Escazú and the Aarhus can provide helpful guidance.
Article 5 of the Escazú contains provisions focused on access to environmental information. The Escazú gives detailed provisions on accessibility of information, refusal of information, conditions for the delivery of information, and independent oversight mechanisms. Article 5(1) notes that the principle of maximum disclosure should be used. While there are still ways that information can be withheld (e.g., Article 5(6)(a), which provides an exception “when disclosure would put at risk the life, safety or health of individuals”), overall, there is an emphasis on information being provided. The breadth of ways in which countries are obligated to ensure access to information means that the public not only has ways to access information, but also has the ability to use the enumerated provisions to challenge the lack of information when needed.
In the Aarhus, access to information is included under Article 4. The provisions are similar to those of the Escazú. Like under the Escazú, the government may decline to provide information, but only for specific stated reasons (see Article 4(3)). A notable difference between the Aarhus and the Escazú is that the Aarhus enumerates a specific timeline for governments to provide information in Article 4(2) (one month at the latest, unless complexity/volume of information justifies an extension to two months).
CEPA’s framework for the right to a healthy environment could follow a similar structure of the Escazú and also emphasize the principle of maximum disclosure. There should be limited reasons why the Canadian government does not provide information that can affect the right to a healthy environment. Like the Aarhus, the Canadian framework should specify the timeline for which information requests to be responded to. A specific timeline will help to ensure that the government is accountable in their response to requests. The CEPA framework should also include an independent oversight mechanism, like the Escazú requires (see Article 5(18)). This might include a new independent regulatory body or a federal ombudsman that specializes in access to information relating to environmental issues.
Both the Escazú and Aarhus focus on access to information from governmental bodies. It would be beneficial if the CEPA framework went a step beyond this to include a provision on the obligations of private companies to provide access to relevant environmental information. This way, proponents and the state would share responsibility, which might lead to better transparency.
Participatory Rights
Participatory rights are important in the CEPA framework to ensure that Canadian’s voices are heard when their rights may be impacted and provisions on public participation from the Escazú and Aarhus agreements can inform Canada’s approach.
In the Escazú, these provisions are under Article 7. Article 7(1) puts forth the general principle that state parties must ensure public participation is available. Subsequent provisions specify the ways in which this can be made out. Article 7(6) provides specific means of how and when the public is to be informed about government environmental decisions, similar to those provisions in Article 4 on access to information. Article 7(10) is particularly notable, when considering impacts of environmental racism and the inequity among who is affected by negative environmental impacts:
Each Party shall establish conditions that are favourable to public participation in environmental decision-making processes and that are adapted to the social, economic, cultural, geographical and gender characteristics of the public.
Including a similar provision in the CEPA framework is important to ensure that public participation is accessible to all people in society and not just those who are in positions of privilege. Taking a holistic and sensitive approach to people’s backgrounds and ensuring that processes are accessible to all citizens is crucial. It also aligns with Canada’s law on environmental racism.
The CEPA framework could also go a step further and have a provision, in addition to those mentioned in the Escazú, which directly states that public participation will also be informed by principles of equity and take into account environmental racism. Having such a provision would make it clear that environmental justice is a priority to the government.
The Aarhus addresses public participation rights in Articles 6, 7, and 8. The provisions are similar to those of the Escazú. Article 6(7) states that the procedural opportunities that the public has to participate may depend on the project and could include making written submissions or attending a public hearing. While submissions in writing tend to be more time-efficient, much can be gained from a public hearing. In the CEPA framework it could be useful to have an expansive section similar to this, where the specific instances when people will get an opportunity to participate at a public hearing are specified.
The Aarhus specifies that public participation should be included in decision making, in policies, programs, and plans, and in executive regulations (see each of Articles 6, 7, and 8). The broad use of public participation is commendable, and a similar scope should be included in the CEPA framework. It would allow for wide public participation and align with democratic values, since more levels of government would be directly accountable to the public.
Both the Escazú and the Aarhus describe the timelines for public participation as “reasonable”. While this is a start, the CEPA framework could be more specific and give timelines that align with the type of project and the relative importance of the project to those who might participate. For example, a guide similar toFramework: Public Participation Under the Impact Assessment Act could be created. Setting a specific standard could help ensure that processes around public participation is adhered to at the early stages of consultation, as well as later on. Specific timeframes would also minimize potential litigation based on whether or not a timeline was reasonable.
Conclusion
Including strong procedural rights in the framework for the right to a healthy environment will help ensure communities have the knowledge and the ability to address environmental harms that may occur. It will also empower communities and individuals to fight for the clean, healthy, and sustainable environment that they are entitled to under CEPA. If the CEPA framework is holistic, specific, and considers the needs of different communities, it is more likely to be successful. Steps forward in procedural environmental rights have been made in the Escazú and the Aarhus. The more Canada can include similar protections in the CEPA framework, the closer the country will be to protecting the right to a clean, healthy, and sustainable environment and the public who fights for it.
[1] Canadian Environmental Protection Act, SC 1999, c 33, s 3(1) [CEPA].
[2] Manson, Robert, Climate Change and the Right to a Healthy Environment: International and Canadian Developments (Ottawa: Library of Parliament, 2024) at 3; David R Boyd, “The Right to a Healthy Environment: A User’s Guide” United Nations Human Rights Special Procedures (2024), online: <www.ohchr.org/sites/default/files/documents/issues/environment/srenvironment/activities/2024-04-22-stm-earth-day-sr-env.pdf> at 14-16.
[3] See e.g., Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at paras 69-71.
[4] Joel D Kaufman and Anjum Hajat, “Confronting Environmental Racism” (2021) 129:5 Environmental Health Perspectives at 051001-1.