On February 26, 2020, Bill C-230, a private member’s bill, was introduced by Nova Scotia MP Lenore Zann to seek environmental justice in Canada.
Bill C-230 requires the Minister of the Environment to develop a national strategy to promote efforts across Canada to address the harm caused by environmental racism (the “Bill”). On June 22, 2021 the Standing Committee on Environmental and Sustainable Development (the “Committee”) tabled the Bill with amendments in the House of Commons.
Three of the four parties represented on the Committee supported the proposed Bill with some amendments including renaming it to the “National Strategy Respecting Environmental Racism and Environmental Justice Act”. An important amendment approved by the Committee requires that the national strategy include information and statistics relating to the location of environmental hazards, and an examination of the link between race, socio-economic status and environmental risk, in addition to health-based outcomes.
Environmental racism is not new and occurs when environmental policies or practices intentionally or unintentionally result in disproportionate negative impacts on certain individuals’ groups or communities based on race, colour, socio-economic status and an unequal access to environmental benefits.
The ENRICH Project being the Environmental Noxiousness, Racial Inequalities & Community Health Project is a collaborative community-based research and engagement project addressing environmental racism in Mi’kmaq and Nova Scotian communities. The documentary “There’s Something in the Water” explores the issue of environmental racism in the province of Nova Scotia.
In the 2020 report by the UN Special Rapporteur on toxics and human rights following the investigation concluded that many communities in Canada continue to suffer from exposure to toxic substances and stated:
Some key concerns that persist include the limited degree of protection of human health and ecosystems under various pieces of legislation and the lack of environmental information and monitoring in areas of high risk. Long delays in or absences of health impact assessments persist for affected communities. Inadequate compliance with and enforcement of laws and policies, and other systemic obstacles to access justice, in particular for cases involving for health impacts due to chronic exposure, increases the reluctance of victims to seek fulfilment of their right to an effective remedy.
And further stated:
The prevalence of discrimination in Canadian laws and policies regarding the application of regulations on hazardous substances and wastes is clear. There exists a pattern in Canada whereby marginalized groups, and indigenous peoples in particular, find themselves on the wrong side of a toxic divide, subject to conditions that would not be acceptable in respect of other groups in Canada. A natural environment conducive to the highest attainable standard of health is not treated as a right; unfortunately, for many in Canada today, it is an elusive privilege.
Similarly, communities in States hosting Canadian business enterprises endure enormous burdens that would not be acceptable in Canada. The impacts on these communities are compounded by the inordinate power imbalance between low- and middle-income countries and Canadian corporations.
The UN Special Rapporteur made numerous recommendations including that Canada recognize the right to a healthy environment in its legislation, eventually through a constitutional amendment that includes the duty to prevent exposure to hazardous substances.
In terms of business enterprises in Canada the UN Special Rapporteur recommended:
- Investment in technologies to phase out chemicals of concern and increase traceability and transparency of chemicals in products, especially consumer products;
- Take proactive measures to prevent environmental harm and respect concerns of risk of harm, including where host countries have put in place no-go zones for resource extraction;
- Implement robust and transparent human rights due diligence and provide redress when activities, whether carried out in Canada or abroad, cause, contribute to or are linked with impacts of toxic exposure. These processes should oblige business enterprises to undertake human rights risk assessments in respect of their activities throughout the supply chain.
The UN human rights expert found that Canada’s handling of toxic chemicals and industrial waste shows a “blatant disregard for Indigenous rights”.
The term “environmental racism” in neither a new or a novel concept and dates back approximately forty years to 1982 when Benjamin Chavis, a civil rights leader from the United States coined the term and defined the concept as:
“… racial discrimination in environmental-policy making, the enforcement of regulations and laws, and deliberate targeting of communities of colour for toxic waste facilities, the official sanctioning of life-threatening presence of poisons and pollutants in our communities, and the history of excluding people of colour from leadership of the ecology movements.”
Environmental racism is a form of systemic racism rather than individual racism meaning it is a result of institutional policies and practices, as opposed to individual beliefs and actions. Environmental racism occurs in many forms including places of work, the lack of enforcement of environmental regulations, siting of noxious facilities, and lack of access to clean drinking water.
The ongoing water crisis in the First Nations is an example, in 2015 there were 126 drinking water advisories in First Nations and despite a commitment to resolve the issues by March 2021 full funding was not provided and there continue to be advisories in approximately 33 First Nations. Other examples include:
- The pollution in Aamjiwnaag Nation;
- The community of Africville in Nova Scotia was exposed to toxic waste and refused basic services such as water and sewers and then subject to expropriation in the name of “urban renewal”, evicting the residents as well as demolishing homes, churches and other features to make room for industrial development;
- The mercury pollution in Grassy Narrows in the English-Wabigoon river system where 90 per cent of residents have mercury poisoning due to the prior operations of a pulp and paper mill;
- In Toronto, the Environmental Justice Report found that soil contamination, waste sites and industrial land use more disproportionately impact areas that are home to racialized communities, recent immigrants and people with low incomes. The Environmental Justice Report concluded that:
… the groups that suffer the most from environmental injustices, the urban poor, visible minorities and new immigrants, have the least power to change their circumstances. As a result significant changes must be made …
The Aamjiwnaang First Nation near Sarnia’s Chemical Valley brought legal action arguing that the Ministry of the Environment’s decision to approve additional air pollutant releases infringes their clients’ right to life, liberty and security of the person, guaranteed under section 7 of the Charter, because of the cumulative effect of all the Chemical Valley pollution on their health.
In 2013 the Mikisew Cree First Nation and Frog Lake First Nation filed applications for judicial review of two federal omnibus Budget Bills, Bill C-38 and C-45, in Federal Court. The Bills slashed federal environmental protections, including the Fisheries Act, the Canadian Environmental Assessment Act, and the Navigable Waters Protection Act. It was argued that these amendments represent a breach of the Crown’s obligation to manage and protect their traditional territories to ensure that they are able to meaningfully exercise their treaty rights, and were made without the required consultation.
Bill C-230 is an important move in the right direction and may be viewed as a step towards effecting change but it does need to be viewed and treated as part of a larger process to ensure every individual has a right to a healthy environment.
Paula Lombardi practices with Siskinds’ environmental law group. If you have questions about the information contained within this article or any other questions related to environmental law, please write to paula.lombardi@siskinds.com.