By Erin Dobbelsteyn and Sara L Seck
Environmental justice calls for the fair and equitable distribution of environmental benefits and burdens. To realize environmental justice is impossible without achieving substantive protections, such as access to clean air and water, a safe climate and non-toxic places. However, the equitable distribution of environmental benefits and burdens is also unachievable without attention to the procedural dimensions of environmental justice.
Principle 10 of the Rio Declaration on Environment and Development identifies the procedural dimensions of environmental justice as the rights to access to information, public participation, and access to judicial and administrative remedies. These are further elaborated in the 2018 Framework Principles on Human Rights and the Environment. Additionally, the 2022 UN General Assembly resolution recognizing the right to a clean, healthy and sustainable environment emphasizes that procedural rights are inextricable from the right. Canada joined together with most of the international community in voting in favour of this resolution.
The GNHRE has played a lead role in the study of procedural environmental rights around the world, most notably its work on the Escazú Agreement Project consisting of a webinar summit, blog symposium, development of principles for the implementation of the Escazú Agreement, and an annotated bibliography of resources. This work was the inspiration for a project on procedural environmental rights in Canada, but as Escazú is a Latin American regional treaty, Canada cannot become a party. Canada has also chosen not to become a State party to the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, better known as the Aarhus Convention (Aarhus), which as of writing had 47 State parties. (The Aarhus Convention was also featured in GNHRE’s Escazú Agreement Project as the subject of a comparative law blog.)
This post provides a brief introduction to a blog series that will highlight current procedural environmental justice challenges in Canada, explore whether there are lessons that Canadian jurisdictions (federal, provincial or territorial) and Indigenous, could and should learn from either treaty, and, ultimately, opine on whether advocacy to seek Canada’s ratification of Aarhus – among other international law measures – would be a worthwhile objective.
The rationale for not becoming a party to Aarhus is provided on the Government of Canada’s website (last updated in 2020) as follows:
Canada has not joined the Aarhus Convention. Canada is not a party to the Convention because Canada maintains a well-established system of engaging the public. There already exists a number of mechanisms in Canada that permit public access to environmental information, including the Access to Information Act, which gives Canadians access to federally held records. Canada complies with most of the provisions and objectives of the Convention, thus acceding to the Convention would have limited benefit to existing processes in Canada.
Our original call for blog submissions, released in May 2023, ambitiously aimed to secure contributions and publish them within the year, along with an annotated bibliography of related literature. Our objective was to gather existing research and stimulate political discussion on point, but not to conduct original research as such. We realized a few months in that our task was more complicated than we had anticipated – while there is Canadian literature on procedural environmental rights, little of it reflects on the international legal context except briefly in passing. Some authors have called for Canada to become a State party to Aarhus, yet there is a lack of in-depth analysis of the benefits and the potential challenges that might arise from such a step in light of Canada’s status as a federal state with numerous overlapping Indigenous jurisdictions. This is not entirely surprising as Canadian jurisprudence also often fails to consider international law or the international legal context, as well-illustrated in this blog post examining the 2023 Supreme Court of Canada’s Reference decision on the constitutionality of the federal Impact Assessment Act.
Given these gaps, we decided that moving forward with our blog series would require a deeper understanding of Aarhus and engagement with under-explored questions regarding procedural environmental justice in Canada and its connection to the international legal context. We are particularly grateful to JD students[1] at the Schulich School of Law’s Marine & Environmental Law Institute at Dalhousie University for their original contributions to this project, as well as to our contributors from across the country.
Our first set of blog posts will introduce Aarhus and the work of its Compliance Committee which reviews states’ compliance its provisions (Anna Stabb), consider how Aarhus could enhance access to environmental information in Canada (Drew Yewchuk), examine the challenges faced by those with disabilities in accessing procedural environmental justice in Canada (Katherine Lofts & Chloe Rourke), and examine lessons from Aarhus for access to environmental justice in light of legal costs (Anna Stabb).
We anticipate rolling out a number of additional blog posts in the months ahead that will tackle questions regarding procedural environmental rights under the Inter-American Human Rights System and implications for Canada, legal protections and barriers for environmental human rights defenders in Canada, and the role of Indigenous legal systems and ontologies, among others. We look forward to engaging with the GNHRE community and other scholars in Canada and beyond on this important area of environmental justice. We also continue to assemble a bibliography of sources and welcome additional contributions to it and to the blog series more generally.
Blog Posts:
1. Overview of the Function of the Aarhus Convention and Potential Lessons for the Canadian Context by Anna Stabb
2. Environmental Harm, Disability, and the Importance of Procedural Environmental Rights by Katherine Lofts & Chloe Rourke
3. How Canada’s Federal and Provincial Governments Collaborate Against the Public Right to Access Environmental Information by Drew Yewchuk
4. Lessons from the Aarhus Compliance Committee on Legal Costs and Access to Environmental Justice by Anna Stabb
5. Dearth of Protections for Earth Protectors: Lessons from Aarhus on Canada’s Protection of Indigenous and Environmental Human Rights Defenders by Erin Dobbelsteyn
[1] Patricia Doiron, Rowan Markesteyn, Anna Stabb, Rebecca Waxman.