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Why Legislate Environmental Rights on Prince Edward Island: Part One

Photo Credit: Dan Hussey Photo Credit: Dan Hussey

April 23, 2021

Amended on June 8, 2021. This blog post initially neglected to mention Nunavut's Environmental Rights Act and has been corrected to take that statute into account.  

On April 8, 2021, Bill 108—a proposed Environmental Bill of Rights—was introduced to Prince Edward Island’s Legislative Assembly. The bill was tabled as a Private Member’s Bill by Lynne Lund, Green MLA for Summerside-Wilmot and party Critic for Environment, Water, Climate Change and Green Development. If it were enacted as tabled, the bill would create substantive and procedural environmental rights for all residents of Prince Edward Island. 

In this blog post, East Coast Environmental Law staff lawyer Tina Northrup and Board member Chris Ortenburger—a founder of the Citizens’ Alliance of P.E.I.—offer some initial thoughts on the value of legislating environmental rights on Prince Edward Island.

Environmental Rights Legislation Across Canada

Although many Canadians take it for granted that we have legal rights to clean air, safe drinking water, and healthy ecosystems that create oxygen, regulate planetary temperatures, and enable our existence on Earth in countless other ways, the reality is that our legal rights to healthy, ecologically balanced, and biodiverse environments are tenuous at best. 

Without legislation (written law created by the federal government or the provincial and territorial governments) that establishes clear environmental rights, it can be very difficult for Canadians to protect themselves, their families, their communities, or their neighbours near and far from environmental harms, and it can be even more difficult to get justice when such harms occur. 

Today, no federal statutes in Canada recognize the right to a healthy environment or to human necessities like clean air and drinking water (although proposed amendments to the Canadian Environmental Protection Act may do so). 

Two provinces, Ontario and Quebec, and the three territories have environmental rights legislation that establishes substantive or procedural environmental rights, or both, for persons within their jurisdictions. 

The Quebec Charter of Human Rights and Freedoms and Environment Quality Act and the Yukon Environment Act give substantive and procedural environmental rights to the residents of each jurisdiction, respectively. The Northwest Territories Environmental Rights Act, the Nunavut Environmental Rights Act, and the Ontario Environmental Bill of Rights give procedural, but not substantive, environmental rights to the residents of each jurisdiction, respectively. 

substantive environmental right is an enforceable legal right to enjoy or benefit from the environment in some way. Procedural environmental rights are enforceable rights that relate to processes such as the collection and sharing of relevant information, participation in environmental decision-making, and participation in environmental compliance and enforcement. Procedural environmental rights can be created without substantive environmental rights, but ideally the two kinds of right will be paired so that they can work together and be mutually reinforcing. We say more about each kind of right in our discussions below.

If it were passed as tabled, the proposed Environmental Bill of Rights for PEI would give Islanders substantive and procedural environmental rights. This is positive, as the strongest environmental rights statutes combine both kinds of right. 

 

"Today, no federal statutes in Canada recognize the right to a healthy environment

or to human necessities like clean air and drinking water".

 

Exploring Substantive Environmental Rights

As we noted above, a substantive environmental right is an enforceable legal right to enjoy or benefit from the environment in some way. Substantive environmental rights can take many different forms. For example, they can create specific rights of access such as rights to clean air and drinking water, and they can also create specific rights to the protection of biodiversity and ecosystem integrity. 

            The Proposed Substantive Environmental Rights for PEI

If it were passed as tabled, the proposed Environmental Bill of Rights for PEI would create substantial environmental rights in these terms:

46(1) Every resident has a right to a healthy and ecologically balanced environment and the right to be protected from environmental hazards.

This language connects the concept of a “healthy” environment—i.e., an environment that would be healthy for humans and presumably include clean air and drinking water as absolute minimums—with ecological balance. Although biodiversity is not mentioned explicitly, human rights to the protection of biodiversity could arguably be included under the concept of an “ecologically balanced environment”. The human right to be protected from environmental hazards could possibly be interpreted to mean protection from contaminants in air, water, and harvested foods, and it might also be interpreted to mean protection from harmful consequences of climate change. 

To get a better sense of how this proposed language compares to the language of existing environmental rights legislation in Canada, let’s take a look at the provisions that create substantive environmental rights in Quebec and the Yukon. 

            Substantive Environmental Rights in Quebec and the Yukon

Section 46.1 of Quebec’s Charter of Human Rights and Freedoms states that “[e]very person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law”. 

Additionally, section 19.1 of Quebec’s Environment Quality Act states:

Every person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it, to the extent provided for by this Act and the regulations, orders, approvals and authorizations issued under any section of this Act and, as regards odours resulting from agricultural activities, to the extent prescribed by any standard originating from the exercise of the powers provided for in subparagraph 4 of the second paragraph of section 113 of the Act respecting land use planning and development (chapter A-19.1). 

Here, we see that Quebec’s Charter of Human Rights and Freedoms draws an explicit connection between a “healthful” environment and the preservation of biodiversity. This connection is not made as clearly in Quebec’s Environment Quality Act, but even there the statute connects a human person’s right to a “healthy” environment with a corresponding right to protect other living species inhabiting the environment—a connection which arguably recognizes the importance of biodiversity implicitly. 

By comparison, section 6 of the Yukon Environment Act is relatively sparse: it states simply that “[t]he people of the Yukon have the right to a healthful natural environment”. Arguably, the language used to create a substantive environmental right in the Yukon Environment Act could be interpreted more narrowly than the language used to create environmental rights in Quebec, because the concept of a “healthful natural environment”, as used in the Yukon statute, does not clearly recognize the value of biodiversity or the value of protecting other-than-human species.

When we compare the language of the proposed Environmental Bill of Rights for PEI with the language used in Quebec and the Yukon, it’s clear that the PEI bill is more closely aligned with Quebec’s legislation because it recognizes the importance of ecological balance and, in doing so, could potentially enable better protection of biodiversity as well. This is positive, as human beings are part of nature, and the survival of our species depends upon the other-than-human beings with whom we share the planet.   

            Noteworthy Preambular Language in the Northwest Territories and Ontario

Even though the environmental rights statutes of the Northwest Territories and Ontario don’t actually provide substantive environmental rights, it’s worth taking a quick look at the preambular language of both statutes to see how their conceptions of environmental rights measure up.

By “preambular language”, we mean the statements that appear in the preambles of the statutes. Preambles are the introductory parts of statutes that describe governments’ motivations for creating the legislation, often by naming specific issues and identifying important principles. Preambles can offer important insight into statutes’ intentions and purposes and can shape how laws are interpreted, but, in and of themselves, preambles do not create binding legal rights or responsibilities.

The preamble to the Northwest Territories Environmental Rights Act states that “the people of the Northwest Territories have the right to a healthy environment and a right to protect the integrity, biological diversity and productivity of the ecosystems in the Northwest Territories”. If this language were used to create a substantive environmental right, the right to a “healthy” environment would clearly be informed by an ecosystem approach and would include a right to protect local biodiversity. This language resonates with the language used in Quebec’s Charter of Human Rights and Freedoms and Environment Quality Act, discussed above.

By contrast, the preamble to Ontario’s Environmental Bill of Rights says simply that “[t]he people of Ontario have a right to a healthful environment”. If this language were used to create a substantive environmental right, that right might be interpreted more narrowly than the one that could be created using the Northwest Territories’ language, because the concept of a “healthful” environment does not clearly recognize the value of biodiversity or ecosystem integrity. This language parallels the language used in the Yukon’s Environment Act, discussed above.

 

If it were passed as tabled, the proposed Environmental Bill of Rights for PEI

would create substantive environmental rights that connect the concept

of a healthy environment with ecological balance.

 

Envisioning Procedural Environmental Rights

As we noted above, procedural environmental rights are enforceable rights that relate to processes such as the collection and sharing of information, participation in environmental decision-making, and participation in environmental compliance and enforcement. Procedural environmental rights can be created in the absence of substantive environmental rights, but ideally the two forms of right will be paired so that they can work together and be mutually reinforcing. 

Speaking generally, procedural rights can play important roles in enhancing government transparency and fostering better public participation in decision-making that affects the air, land, and waters on which we all rely.

If it were passed as tabled, the proposed Environmental Bill of Rights for PEI would create several procedural rights that would help Islanders exercise their substantive environmental rights in meaningful ways. The bill envisions the creation of an environmental registry where important information about provincial environmental policies and standards, proposed developments, and environmental compliance and enforcement actions (among other things) would be gathered and made available to the public. The bill also describes minimum public participation requirements that would be mandatory in several forms of environmental decision-making within the province, and it proposes a right of action that would allow Islanders to go to court to prevent environmental harms or seek justice after an environmental harm occurs. These are just some examples of the procedural rights the bill envisions: it includes several others as well.

Notably, one of the other procedural rights envisioned by the bill is an application process that would allow any two residents of PEI to apply for a review of an existing provincial policy, statute, regulation, or other legal instrument which they believe should be amended in order to ensure that their environmental rights are protected. To imagine how this could work and why it would be useful, consider the environmental impact assessment process that is currently in place under PEI’s Environmental Protection Act. As things stand now, PEI’s Minister of Environment, Energy and Climate Action has no legal obligation under the Environmental Protection Act to provide opportunities for public participation in environmental impact assessment processes. 

Subsection 9(2) of the Environmental Protection Act states:

The Minister, in considering a proposal submitted pursuant to subsection (1), may

(a) require the person submitting it to supply such additional information as the Minister considers necessary;

(b) require that person to carry out an environmental impact assessment and submit an environmental impact statement; and

(c) notify the public of the proposal and provide opportunity for comment.

[Emphases added.]

The use of the word “may” in this subsection means that the Minister is not obliged to do any of the things listed above: instead, the Minister has discretion to decide to do them or not. 

In our view, Islanders shouldn’t have to question whether or not they will be able to participate in such processes or fight for their right to do so. Among the Atlantic provinces, PEI is an outlier in not requiring public participation in environmental impact assessments: New Brunswick, Newfoundland and Labrador, and Nova Scotia all impose legal requirements for public participation opportunities. Not least for these reasons, PEI’s Environmental Protection Act could be a great candidate for consideration under the review process that the proposed Environmental Bill of Rights envisions.

Conclusion

As things stand today, residents of PEI do not have clear and enforceable legal rights to clean air, safe drinking water, or the many other components of a healthy and ecologically balanced environment. 

Environmental rights legislation is a perfect fit for PEI. Islanders deserve an Environmental Bill of Rights that gives them substantive and procedural environmental rights and draws on strong examples from other provinces and territories that have rights like these in place. As can be seen from the fact that the Government of Canada has proposed amendments to the Canadian Environmental Protection Act that would spark environmental rights implementation at the federal level, the proposed Environmental Bill of Rights for PEI is a timely reflection of growing recognition that legally enforceable environmental rights are valuable and necessary.

In recent years, the Government of Prince Edward Island has recognized the need for progressive environmental laws in the province. PEI's new Water Act includes promising language that emphasizes the importance of protecting one of the province’s most precious natural resources. For example, subsection 2(b) states that “access for everyone to a sufficient quantity and safe quality of reasonably affordable and accessible water for personal and domestic uses, and to basic sanitation that is safe and hygienic, is essential for an adequate standard of living”. The language in subsection 2(a) is also noteworthy: it states that the provincial government “has a guardianship role to play in ensuring that the quality, quantity, allocation, conservation and protection of water is managed in the interests of a common good that benefits and accommodates all living things in the province and their supporting ecosystems”. Enacting an Environmental Bill of Rights for PEI would go even further in enabling better protection by empowering Islanders to participate more actively in environmental decision-making and take action to prevent environmental harms. 

Islanders want more input into environmental decision-making processes on PEI. The public outcry against the “Plan B” Trans-Canada Highway realignment in 2012 is a particularly memorable example of the betrayal and sense of loss that residents feel when major decisions with lasting environmental impacts are made without their involvement. By legislating substantive and procedural environmental rights, the provincial government would take another step forward on the path toward a legal regime that truly recognizes and protects the natural resources, landscapes, and ecologies that Islanders hold dear—and upon which their quality of life depends.

 

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Tina Northrup, Staff Lawyer            

 

Chris Ortenburger

Chris Ortenburger, Board Member and a Founder of the Citizens' Alliance of P.E.I.