CEPA, chemical management and the “right” to a healthy environment | S3 EP7

In June, the Canadian Environmental Protection Act (CEPA) was amended for the first time in over 20 years. The most publicized amendment was the recognition that every individual has a “right to a healthy environment.” But even more significant for industry will be the changes to assessment and management of toxic chemicals, prohibited substances, and expanded government information powers.

This episode examines how CEPA works, why it took so long to pass the amendments, and what the changes mean for industry and individuals. How will they affect what substances are used in everyday products? Is this “right” to a healthy environment anything more than legislative greenwashing?

Diana Weir joins co-hosts Ailsa Robertson and Ted Brook for this episode. Diana is of counsel with the firm and her practice focuses on environmental law. She provides legal and strategic advice on environmental matters concerning Ontario, federal, and municipal legislation, everything from permitting to compliance. Diana is also a litigator and has defended clients charged with environmental offences, and has prosecuted environmental litigation claims by property owners.

For more information:

• Recognition of a right to a healthy environment
• Canadian Environmental Protection Act Registry*
• Toxic substances list: schedule 1*
• Basel Convention*
• London Convention*

Transcript

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Transcript:

Ted Brook  00:10
Hello and welcome to Disputed, a Norton Rose Fulbright podcast with your hosts, me, Ted Brook from Toronto and Ailsa Robertson from Calgary. In this episode, we're talking about the recent changes to the Canadian Environmental Protection Act or CEPA. CEPA impacts a huge proportion of Canada's key industries, from energy to manufacturing, retail, agriculture, shipping, pharmaceutical, and other similar industries. If you work in any of these, you will no doubt be familiar with Canada's Cornerstone Environmental Protection Law, originating from an amalgamation of legislation since the 1970s, CEPA is designed to identify and control the use of substances which pose a risk to human health and the environment. It governs a variety of environmental matters, such as air and water pollution, waste management, fuel regulation, emission standards and toxic substances. The modern version of CEPA, as we know it today, has been in force since 2000. And the law has not changed since then, at least until now. On June 13, 2023, the first significant amendments to CEPA in over 20 years received Royal Assent. The most publicized of these, is the recognition that every individual in Canada has a quote, ““right to a healthy environment””. However, the amendments are much broader than this and include a number of potentially more significant changes for both industry and Canadians. In particular, they include changes to how toxic chemicals are assessed and managed, identifying which substances should be prohibited from use in Canada and, the introduction of expanded powers for the federal government to compel information from industry. This is a fascinating discussion, which starts by looking at CEPA itself, its history, how it works, and why it took so long to review and update the Act. Despite the rapid developments in sustainability and environmental science since 2000. We then analyze the recent amendments focusing on two in particular. First, the changes to the chemical management regime under the Act. And second, this recognition of a ““right to a healthy environment””. What does it mean in practice for individuals and for industry? Does it create or enhance a statutory cause of action under the Act? Or is this just a form of legislative "greenwashing"? Diana Weir is our guest for this episode. Diana is an environmental lawyer in our Toronto office, and she has extensive experience in this legislative field. She provides legal and strategic advice on environmental matters concerning Ontario, federal, and municipal legislation. Everything from permitting to compliance. Diana is also a litigator and has defended clients charged with environmental offences, and has prosecuted environmental litigation claims by property owners. Diana is a brilliant colleague and a fantastic resource on our Toronto team. She's my first call whenever my litigation matters involve difficult environmental issues. And so, we are very happy to speak with her today about these important changes to CEPA, we hope that you enjoy the episode.

Ailsa Robertson  03:15
Diana, thank you for joining us and welcome to the podcast. 

Diana Weir  03:18
Oh, it's great to be here. And thanks for having me. 

Ailsa Robertson  03:21
Okay, so before we get into the amendments to the Canadian Environmental Protection Act, or CEPA, I’m wondering if you can just set the scene for us by giving us a bit of background to this legislation. I mean, what-- what actually is the Act and how does it impact Canadians and Canadian businesses?

Diana Weir  03:39
Sure. So CEPA is Canada's principal federal environmental protection law. There are a number of other federal environmental laws in place that complement CEPA or CEPA complements those Acts, and that regulate matters like agricultural chemicals, endangered species and broad scale land disturbing activities. The modern version of CEPA as we know it today, came into force in 2000. CEPA was originally enacted in 1988, but was substantially amended in 1999. And was the amalgamation of a number of federal environmental laws that were enacted throughout the 1970s. And so since 1999, there have been relatively few and very minor amendments to the Act, which really speaks to the significance of this package of amendments that was recently granted a Royal Assent. And so the goal of CEPA at its core is really designed to identify, assess and control the use of substances that pose a risk to human health and the environment. And CEPA provides authority for the Government of Canada to take action on a really wide range of environmental and human health risks, from chemicals to pollution to waste. It also functions as an enabling statute to provide a suite of instruments and measures for identifying, assessing and addressing environmental risks.

Ted Brook  05:14
And so when you talk about the-- the sort of goal of an Environmental Protection Act, you know, what comes to mind for me as well, you know, it's there to make sure we have a safe, clean environment. But I was wondering if you could kind of just tease that out for us a little bit? Like, what-- what do you mean, when you say that CEPA is about identifying and assessing risks to human health and the environment? And how does that actually mean something for the government or for a business or for your average Canadian, when they're concerned about environmental issues?

Diana Weir  05:49
A lot of the matters covered by CEPA are quite technical in nature. And when I when I say that I'm thinking mostly about the provisions that relate to chemical management under the Act. And in that sense, I think for ordinary Canadians in their everyday life, they may not interact with CEPA on a direct basis, to the same extent as they might with some other environmental laws that exist at the provincial or even the local government level. However, I would say the impact of CEPA and the regulation of toxic substances under it, really do have a significant impact for Canadians. I mean, there's, I can give you some examples. But, for example, banning BPA in baby bottles and sippy cups, that's something that came about as a result of risk assessment of BPA in 2010, and Canada was the one of the first countries to make that change or make that restriction. And a current example, of a risk assessment that's being carried out under the regime and has really, potentially significant implications for Canadians is the assessment of PFAS substances. And so when I say PFAS, I mean, per and polyfloralalkyl substances, and that's really garnered a lot of attention in the media lately. And so, PFAS are used in a really wide variety of consumer products, including nonstick cookware, food packaging, waterproof clothing, cosmetics. We keep hearing this group of substances referred to as “forever chemicals”, because they don't break down in the environment, or our bodies. So for Canadians, this this, you know, restricting the use, or potentially restricting the use on PFAS as a result of this assessment under CEPA, could, you know, Canadian consumers could see some significant changes to some of the products that we're using on an everyday basis.

Ted Brook  07:58
I like the example that you gave, you know, substances, in you said baby bottles right being banned. And so like, I assume, if there's a substance that is not allowed in, you know, products to be sold in Canada, it's probably because of CEPA. Like CEPA is that sort of statute that is used to designate and then, you know, place restrictions on substances that enter commerce in this country, is that fair?

Diana Weir  08:31
Well, we do have consumer protection laws, but the CEPA regulations are derived on the risk posed to human health or the environment, from substances, or substances that are deemed to be toxic. So we do have other bodies of law that could, you know, regulate or prohibit the use of certain products for Canadian consumers. But when we're talking about substances that find their way into products, and may negatively impact our health, or the environment, those restrictions would come from the risk assessment process under CEPA. And so, it addresses everything from both existing substances, as well as new substances in Canada.

Ailsa Robertson  09:14
I'm just wondering, traditionally how the government has identified these toxic substances and determined the level of restriction that should be applied to them. Because presumably, I mean, looking at the 20 odd years this Act has been-- this version of the Act has been in force has been huge developments in understanding the harm of certain chemicals that are used, the baby bottles being one, the use of DDT, I think, perhaps in farming too. It takes time to test these chemicals and these products. So how has the government traditionally come up with those chemicals that should be banned or-- or list of substances that are toxic and what has industry's involvement in that process been to date?

Diana Weir  10:02
So that's a really good question. And that really speaks to how the risk assessment process functions under the Act. So when the Act was created, the government looked and came up with something known as the ‘domestic substances list’. And this was approximately 23,000 substances that were deemed or found to be in commercial use in Canada in the mid-to-late 1980s. And all of these substances made their way onto this inventory, or a national inventory of substances that were deemed to be manufactured or imported into Canada on a commercial scale, that list still exists, it's been continuously updated. And now those updates are generated through the risk assessment process. So for substances that are not included on this list, companies that want to import or manufacture into Canada, a product that would contain a substance that's not on the DSL is what we call it, they would need to apply or provide a notification to the government to have that substance risk assessed. And it's a fairly technical process. And there's different requirements, depending on the quantities, as well as specific nature of the-- the substance, I'm talking about chemicals, polymers, organisms, there's different requirements. And so they-- before that substance is manufactured or imported into Canada, you need to notify.

Ted Brook  11:40
Diana, any chemical substance, polymer that-- that's in a product that business might use, or consumer might buy in Canada, that is on the DSL list. And if it's a new one, then you need to apply to have-- you said risk assessed. Do I have that right? 

Diana Weir  11:58
That's correct. 

Ted Brook  12:00
I know that there are-- there's another list under CEPA or there used to be a list of toxic substances in that's a different list than the DSL, right?

Diana Weir  12:11
Yes, yes, it is. And that is so, if a depending on the outcome of your risk assessment, if it is determined, under-- under CEPA that a substance is toxic, it will be added to the schedule 1 list of toxic substances under the Act. And by adding it to schedule 1, the government gets authority to regulate basically the full lifecycle of that substance. So manufacture active-- manufacturing activities, import export, disposal, so the government gets really comprehensive powers to manage the lifecycle of that substance to try and limit exposure or manage the risk associated with exposure.

Ted Brook  13:01
So you've-- thanks, Diana, you've told us a little bit about how chemical management is a cornerstone of CEPA. Before we get deeper into that topic, and deeper into the amendments that have come out recently to the Act. I just want to circle back, what else does CEPA cover at a very high level?

Diana Weir  13:23
Right, and I would be remiss if I didn't touch on some of the more discreet matters that are addressed under part seven of the Act, which addresses pollution control and waste management. And so this is kind of an omnibus provision that just addresses a number of discrete areas and some of those are the disposal at sea provisions, and these relate to—our, Canada's obligations under the London Convention that prohibit disposal at sea of anything other than a very, very small list of substances. The Act provides authority for the regulation of fuels, including the concentration of fuel additives, and transfer and handling of fuels. Other areas are setting emission standards for engines, certain types of engines anyways, on-road vehicles, off-road vehicles, lawnmowers and watercraft. It also prohibits the import and trade and sale of vehicles or engines that don't meet those prescribed requirements. And it also establishes regulatory regime for the import and export of hazardous waste. And so implements Canada's obligations under the Basel Convention. And so-- and there's also provisions that relate to – and there kind of backstop provisions for matters that maybe aren't captured under other schemes, but mat provisions that relate to the management of environmental emergencies under part eight of the Act. And so, and one point I want to make is that contravening these provisions under CEPA does constitute an offence and there are significant enforcement risk and fines that can be levied to companies that are found to be guilty of an offence under the legislation. So there is significant enforcement risk under the Act.

Ailsa Robertson  15:13
Is there individual liability for CEOs, directors and officers too?

Diana Weir  15:17
There is, yes. And a number of the offenses, the offense will be considered to be constituting a new offence each day that it occurs. So that can add up to being very, very significant fines and penalties that we've seen, especially in recent years underneath the Act. There's also some other really significant powers that are purported at least to be provided under the Act to everyday Canadians, one of those powers being the ability to apply to the Minister of the Environment to conduct an investigation of any offence that's been allegedly committed under the Act. And another important point that I want to talk on because I think it-- it, you know, it's important to understand, you know, what sort of actions are available to-- or powers are available to Canadians under the Act, and that’s section 22, which purports to provide this environmental protection action, which is sort of a form of public interest litigation, where individuals can bring an environmental claim under the Act. Now, this provision has never actually been used. But I think it's important to be aware that this-- this form of action has been contemplated under the legislation, and that there's been a lot of commentary on how these provisions could be amended to make them more usable for everyday Canadians.

Ailsa Robertson  16:45
So Diana, I just want to circle back briefly to Section 22. And this public interest litigation, environmental, or the ability for Canadians to bring an environmental protection action under the Act. You mentioned that this has not actually been used to date since it was introduced in 2000. Why is that?

Diana Weir  17:06
So the requirements, in order to be able to actually bring a claim under this provision are really significant. So first, an individual would have already had to request that the Minister conduct an investigation and report on the investigation and then determine that the Minister’s response to the request to investigate was unreasonable. The second threshold, that element that someone needs to establish in order to bring a claim under this provision is establishing that an offense has in fact been committed under the Act. And the third requirement is establishing that the offense has caused significant harm to the environment. And so taken together, it's quite a significant burden for the average individual to be able to establish each of those elements in order to bring a claim. And I also want to add that, you know, the intent being that we want to prevent people from personally profiteering off bringing these claims, but the Act actually prohibits a court from awarding damages for any individuals that bring a claim under this provision. So I think coupled with those threshold requirements, it's really put a chilling effect on the-- on the potential for anyone to try and avail themselves of their rights under this provision of the Act. But yes, and I mean, there's been a lot of, you know, advocacy and recommendations or requests to amend these provisions to make this, you know, a more viable provision under the Act and some interesting proposals that have been made, but we just really haven't seen uptake of that anywhere, including in the most recent round of amendments to CEPA this, you know, there really wasn't any considered proposal to amend this provision that seemed to have any traction.

Ted Brook  18:57
So I think that's a good segue. Could we move to talk about what these new amendments are? And where did they come from. I understand there's-- there's a bit of a history. But why don't you walk us through that, Diana?

Diana Weir  19:13
Yeah, so under the-- under CEPA. There is provision that requires the Act to be reviewed every five years, and so that review process has actually only taken place twice. The first review occurred or was commenced in 2005 didn't result in any amendments to CEPA. A second review was commenced by the House of Commons in 2016, and that review resulted in the issuance of a report in 2017, that made a significant number of recommendations for the reform of CEPA and the intent of those recommendations were focused around three main goals; moving Canada closer to enshrining environmental rights, substituting safer alternatives for different substances and commerce, and strengthening the protection of vulnerable populations in the regulation of toxic substances. And there was some pushback to those recommendations, I think one of the major concerns amongst stakeholders was the potential for our chemical management scheme to be taking a more hazard-based approach to chemical management, as opposed to the risk-- of a risk-based approach that's currently in place. And that and by that, I mean, the risk based approach considers both hazard and exposure. And a lot of those in industry feel that this is actually a very temporary, and maybe kind of the gold standard approach to risk management for chemicals, what we have currently in Canada, so there was some comments and pushback on those recommendations. And ultimately, 35 of the recommendations that were in the report were incorporated into Bill C28. And that was introduced in the House of Commons in April of 2021. So that'll tell you how long these amendments have been working their way through Parliament.

Ailsa Robertson  21:21
It is pretty outrageous that there are provisions in CEPA to review the Act every five years. And yet it's been more than two decades to actually get any significant amendments to that Act, given the advancement that there has been in environmental science in the past 20 years, completely inconsistent with the speed at which CEPA has been reviewed and amendments have been considered. And the question being, why has it taken so long to get to this point?

Diana Weir  21:51
If you look at the feedback that that these amendments received, I mean, this impacts such a broad segment of the Canadian population, like we don't just have industry stakeholders, and by industry, like we're talking about the electricity industry, mining, oil and gas, you know, manufacturing, consumer products, chemical manufacturers, we also have, you know, environmental NGOs, bodies that represent doctors, you know, like there's just this Indigenous communities, there's such a broad number of stakeholders who have, in some cases, very disparate priorities with respect to the amendment of the Act that I think, and you'll see this if you go in and look at some of the review of the-- of the proposed amendments, that a lot of times people, you know, the comment was, okay, we're just trying to get this package of amendments through, this doesn't mean CEPA is not going to be amended today. But, we have to kind of keep our eyes on the prize. And if we're ever going to amend this Act, we're not going to be able to address everything all at once. And so I think there's been that tension between trying to make meaningful reform through a package of amendments, but actually being able to get-- get something approved and put in place. The other caveat that, you know, risk assessment and chemical management is resource intensive. You know, science is changing all the time. And so and we-- we, the government does have limited resources to carry out these risk assessments. And so, you know, making substantial changes to that risk assessment process, you know, that's significant, and that's going to be a really big undertaking. You know, as part of his amendments, we're seeing a new plan of chemical management priorities that's going to be consulted on over the next two years. And that could have really significant impacts for how we actually carry out risk assessments in Canada. And, you know, with the introduction of new considerations in that risk assessment process, the question becomes, are we going to have additional resources made available to environment and health Canada to actually complete these risk assessments? Another comment we've seen is, you know, the-- the risk assessment process for chemicals and substances in Europe is-- is very, very data intensive. And the comments from industry was, well, you know, the GDP over there and-- is much larger, there's, there's a much, you know, larger economy to support this risk assessment process than what we have in place in Canada. So I think we need to be able to balance, you know, providing adequate protections with respect to chemical management with creating a system that works and is efficient, and can actually, you know, risk assess substances within a reasonable timeframe. And that's something else we see addressed under the Act is there's additional requirements placed on the amount of time that the government actually has to respond to a risk assessment and provide comment.

Ted Brook  24:59
So-- so, really super, super interesting Diana, what I'm hearing and taking away from this is, you know, CEPA as a statute, it touches many sectors. So that's creating tension because everyone wants to weigh in on issues that are important to them. It does many things as a statute, you said it's an omnibus statute, it's an amalgamation of a variety of environmental statutes from the 1970s and later. And then this idea of chemical management, which is a cornerstone of the Act is itself resource intensive. It's science-based, it's really hard. And it is certainly so important to manufacturing and product consumption in this country that-- that industry wants to weigh in, government wants to get it right. And those reasons sort of create a perfect storm, I guess, that slows down the amendments and then stops or maybe contributes to the delays that we see, in-- in having the Act updated to a point that people would like it to be updated on a regular basis.

Diana Weir  26:09
Yeah, this shouldn't be interpreted to be the final package of amendments. And so, you know, some of these matters that were, you know, perhaps ripe for addressing at this point in time, while they may not be reflected in the current round of amendments, there are probably going to be more amendments coming down the line in the future.

Ailsa Robertson  26:28
So okay, so let's circle back. So we had these 35 recommendations from the report you mentioned that went into Bill C28, and that then died on the docket as a result of the election in the fall of 2021. But then February 2022, comes around, and we have Bill C5, which is now become the amendments have just received-- received Royal Assent. So talk us through what the actual amendments are.

Diana Weir  26:54
Yes. So the only comment I’ll make is there's Bill S5, because the new bill originated in the Senate, as opposed to the House of Commons. But that's the only little caveat. So that was February 2022, that we basically see the substantially the same package of amendments being reintroduced. And so while there has been a lot of focus on the “right to a healthy environment”, which is significant and interesting, the amendments are much broader, and include another a number of other important aspects. One of those are a few of those I want to highlight and share with you. The first being, affirming the government's commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples are UNDRIP, including free prior and informed consent, the authority to impose total partial or conditional prohibitions on toxic substances that pose the highest risk under a revamped schedule 1. So you'll recall earlier that we were talking about this schedule 1 list of toxic substances. And under the amendments, that list has actually been renamed to just schedule 1, and bifurcated into two parts. And so I think this is interesting because it provides a little bit more of a nuanced approach to risk management for substances, and gives the government a little bit more options on how they actually are going to be managing these substances going forward, whether they find themselves into the highest risk group in part one of schedule 1, or part two, of schedule 1, and I can say, the proposed list for part one, schedule 1 is very small. Under our current list of toxic substances, there's approximately I think, 160 substances, and only 19 of those are going to find themselves into-- falling into the category of highest risk substances. And so that's another really interesting change to the scheme. And I think one that received a lot of attention from industry stakeholders. And so for the rest of the not toxic substances, but substances that find themselves on the schedule 1, part two list. risk management is now going to focus on pollution prevention measures, as opposed to prohibition on the use of those substances. And the other interesting change or list that we're seeing that's going to be introduced as a result of the amendments is this creation of a watch list of substances, which they’re not going to be currently regulated under-- under the scheme, but may become the subject of regulation in the future. And this is one again, that caused a lot of concern for industry. A lot, you know, a lot of industry stakeholders felt that this in some ways was duplicative of provisions that actually already exist under the scheme and that's something called a significant new activity requirements were basically, the government approves the use of a substance but says, you know, it's only in these circumstances and anything beyond these circumstances requires further assessment and approval.

Ted Brook  30:11
Lots of lists, in fact, too many lists for me for me to keep track of, but I--I'm being half-serious. So we have our big list. You said, that's the DSL list, right, with thousands of substances. Then we had our toxic substance list, the lists which the government had the power to regulate and prohibit. And what I understand is, you're saying the amendment split that toxic substance list into two, part one, part two, and the government now has more flexibility to address substances that are on part two of that list. But I assumed that they had the power to sort of prohibit the use of toxic-- toxic substances before the amendments. So-- so what—what-- what was actually new about that-- that's sort of where, where you lost me, and it wasn't your explanation, it was kind of me keeping track of all of the lists.

Diana Weir  31:09
Right. So under the old scheme, we actually had something called the virtual elimination provisions, which, basically, the-- the substances that were deemed to be of the highest risk were supposed to be categorized for virtual elimination. But those-- those provisions were never really used. And they were kind of deemed to be untenable. And then we had this schedule 1 list of toxic substances that encompassed kind of a really wide ranging number of substances that, you know, some of these substances were really inherently-- inherently toxic, and did pose significant risks. And some of these substances that in certain applications could pose significant risks, but perhaps not in other applications. And so part of the bifurcation of the list, I think, reflects industry concern that was voiced that saying, kind of getting the wrong impression of what these substances are that are being captured under this list, and what the level of risk is that is associated with them. So by bifurcating and creating kind of two different risk management schemes under this new list or, yeah, the new schedule 1, I think it's going to clarify for individuals, you know, what, we're deeming to be the truly highest risk substances. And all risk management for those substances is focused on prohibition, versus the-- or partial prohibition, versus the lower risk substances. And part two are really going to be regulated pursuant to pollution prevention provisions. So it's, you know, talking about, and it's true, there was, you know, authority to prohibit the use of substances through these virtual elimination schemes. But I think we've now clarified the appropriate types of risk management measures that are to be applied for the two categories of substances under the scheme.

Ailsa Robertson  33:04
Do we have examples of those substances that would be on the prohibition, and then those that are more risk management?

Diana Weir  33:10
Yeah, so I think, you know, one that would be widely recognized, I think you mentioned earlier, that's going to be included in part one of schedule 1, I think, is DDT, for example, versus the vast majority of other substances that are on the list, I think it's something like 140 of them are going to find their way on to part two. And you know, that covers a really, really broad range of substances, but it includes things like asbestos, lead and so there's, there's a big range, a lot of chemical substances and groups of chemical substances on that list. But a lot of really long names that I'm not going to try and say for everyone on the on the podcast today.

Ailsa Robertson  33:52
That will be part two, not part one. That's interesting.

Diana Weir  33:55
Yes, yes. So I think that, again, it's speaking to saying these are truly only the highest risk substances that are going to be finding their way onto part one of schedule 1. And so-- and there's, you know, they're saying these are substances that are going to be, you know, very persistent, bio-accumulate and are largely the product of human activities. So there's there is some more context being given as to the types of substances that are going to be finding themselves on to that list.

Ted Brook  34:25
And now, does being on part two of the list give you a free pass to use a substance in manufacturing or in your products? Or are you potentially going to be subject to a more complex, more nuanced regime than you would have if it had just been under part one?

Diana Weir  34:46
So it's certainly not a free pass. I think, you know, anyone that finds the substance included on any-- either part of schedule one has additional obligations with respect to the use of that substance and sort of higher product stewardship or obligations. I think, you know, candidly, we're going to need to wait to see a bit more development of what these new pollution provision measures are going to be under part two, the scheme because we're part of this is that the new chemical management plan is still under development under-- under these amendments. So I think we're going to see more down the line and more elaboration of what this is going to mean for the different substances that find themselves under these two parts. But it's certainly not something I would characterize as being a free pass.

Ted Brook  35:35
So Diana, the chemical management provisions in the amendments seem to be really important for businesses in the manufacturing and resource-based sectors. But everyone seems to be talking about something else in the amendments and so we definitely want to use our time with you to dig into this idea of a ““right to a healthy environment”” that has been introduced to the preamble to the Act and I understand has also kind of been incorporated into an obligation or duty on the government to protect in another part of the Act. So what is the “right to a healthy environment” and where has it come from? And what do you see arising from it going forward?

Diana Weir  36:24
Right, and so for a little bit of background, I think it's important to understand that, first of all, there's been a lot of-- a big push for Canada to recognize a “right to a healthy environment”. And part of that is that, you know, there's this right has actually been recognized by a lot of-- in a lot of other jurisdictions. And there's-- there's different ways in which that right has been recognized. But I just want to also talk a little bit about what's generally considered to be encompassed in a “right to a healthy environment”. So when we're talking about the right, there's both procedural and substantive elements that we can think about. And when I say procedural rights, I'm talking about access to information, participation in decision making and access to justice. And then the substantive elements of the right would include matters like the right to clean air, a safe climate, access to safe water and adequate sanitation, healthy and sustainable produced food, non-toxic environments in which to live, work, study and play, and healthy biodiversity and ecosystems. So you can see, you know, the different substantive matters that are that have been addressed by the right can be very, very broad. And that's frankly, not what we've seen, with the amendments to CEPA. They don't capture all the procedural or the substantive rights that can be included under the umbrella of a “right to healthy environment”. Rather, the amendments suggest that the “right to a healthy environment” is going to be an organizing principle or framework through which the government will be administering the-- their obligations under CEPA. And so as you briefly touched on earlier, the amendments introduced into the preamble of the Act, the requirement that the government shall recognize that every individual in Canada has a “right to a healthy environment”. But we need to know that a preamble isn't enforceable. And so any meaningful amendment or meaningful requirement for the “right to a healthy environment” is really going to need to be found in the body of the Act.

Ted Brook  38:40
And they're-- isn't there something to it, though I recall, like in the Act, sort of giving teeth to that right in the preamble?

Diana Weir  38:50
Correct, correct. You're correct. There's more. So section two, has been amended, and now imposes a new duty on our federal government in its administration of the Canadian Environmental Protection Act, and specifies that the government shall protect the right of every individual in Canada to a healthy environment, as provided under this Act, subject to any reasonable limits.

Ted Brook  39:18
Interesting, those-- those last five words seem pretty important.

Diana Weir  39:23
They are very important, and there was a lot of debate regarding what those reasonable limits will entail. And the Act doesn't define the arisen reasonable limits, but we do have some guidance to indicate that they can include social, health, scientific and economic factors. So those reasonable limits could be quite significant.

Ted Brook  39:51
And I don't know if this comes to mind for you, Ailsa, or you Diana, but in my litigation practice, what jumps out is reasonable limits under section one of the Charter, right? And this sort of body of jurisprudence that talks about how you apply section one and the reasonable and the limitations that can be placed on Charter rights. And-- and how those reasonable limits have to be demonstrably justified in a--, in a free and democratic society. Do you see that--, that, you know, Charter case law sort of getting incorporated into the application of this right?

Diana Weir  40:33
That's definitely where I think people's minds have gone, when we're talking about what these reasonable limits might be and how they might be applied. Again, unfortunately, at this point, we really don't have a lot of guidance from the government, and I can explain that and provide a bit more context as to why we're expecting additional guidance to be forthcoming. And that is because of the new amended section 5.1 of the Act, which requires the Minister of Health and Minister of the Environment to develop within two years an implementation framework on how the “right to a healthy environment” will be considered in the administration of CEPA. And so this is where people are really looking to say, this is where we expect to get some better guidance on how this right is actually going to be put in-- put into effect and put into practice, when the government is carrying out its obligations under the legislation.

Ailsa Robertson  41:33
These also, just to emphasize, like, it's not a substantive right to like, this isn't a Charter right. It's not constitutional right, it's--, it's really like it's an interpretive principle. So yeah, just want to emphasize that point is that we talked about this being a right, but it's not a vote that you can ground any kind of cause of action at the moment.

Diana Weir  41:51
Yes. And I think, you know, I think that's what, you know, we've seen a lot of people really celebrate the recognition of this right, in our federal kind of cornerstone environmental legislation. But I think a lot of people who are, you know, practice in this space and have looked at this and said, you know, we need to be very clear about what, what this actually proposes to provide to us. And this-- this isn't going to be the same, you know, for example, constitutional right that we've seen in some other jurisdictions, this isn't going to be providing the same types of prot-- protections, that I think some people would envision this right providing, that you would see in some other jurisdictions or how people, individuals have been able to avail themselves of the right in other jurisdictions, it’s just not what we're going to be seeing, as you've said, this is really kind of an organizing principle or framework through which in which is going to infuse, how the government chooses or goes about administering its obligations under CEPA. 

Ted Brook  42:54
It seems like it's a strong recognition of-- of a right at first glance, but then when you look at it further, this is really about the administration of the statute. The statute, which is focused on a wide range of-- of issues, but they're-- they're often quite technical. And, as you said earlier, all subject to a really a hypothetical statutory action for-- for citizens to implement, because it is so challenging for anyone to actually bring an action under CEPA based on a failure of a Minister to investigate a particular problem. So well, what my question for maybe both of you is, is this a kind of "greenwashing" by the federal government to its own Environmental Protection Act, saying, you know, look at look-- at the what we're doing, but it actually doesn't change anything? Are we going to see teeth in this framework when it-- when it does arrive?

Diana Weir  44:03
So a couple points I want to make in response to your question. First of all, I think you're linking this back a bit to that-- to the public interest litigation right, that I referred to earlier under Section 22 of the Act. And, to your point, a lot of concern was raised around how the right was being framed, and whether or not you know, this is a meaningful recognition, if we don't have any available enforcement mechanism under the-- under the Act. And that was a concern, actually, that was specifically raised by the Senate committee when it reviewed this package of amendments. And the response from the government was basically to say, you know, you should expect or we anticipate that actually, there will be further amendments to see both foreshadowing what we might expect to see or what the government envisions about how this right might become enforceable. But the other point I want to make is, when we're talking about the implementation framework and what we might see to come, there has been a bit of additional guidance about what is to be included in that implementation framework. And while it's a-- it's a small reference, there was inclusion of mechanisms that would be used to protect the “right to a healthy environment”. And so I suspect that something that will garner a great deal of attention through the stakeholder consultation process on-- on this implementation framework, because obviously, you know, we're going to have a lot of a lot of interested parties in saying, okay, what type of mechanisms is the government envisioning to use to protect this right.

Ted Brook  45:43
On that--, on that point, Diana, if you are a business that is interested in how CEPA affects you and your industry, I am kind of interested to hear about how you can contribute your thoughts or submissions to the development of this framework, it seems like there is going to be collaboration with-- with industry and-- and the public. So what does that look like and how do people get involved?

Diana Weir  46:11
Right, so there's a two-year timeframe that's been provided under the amendments for the government to come up with this-- this framework. And the government's actually mandated to carry out stakeholder consultation on the implementation framework during that two-year period. And I think something I touched on earlier was, you know, kind of the intensity of industry lobbying and comments provided on the draft amendments when Bill S5 was working its way through Parliament. And I think we can expect to see the same level of interest amongst industry groups that are affected by CEPA. And so that's certainly an opportunity for, you know, stakeholders who feel they're impacted by these amendments, to become involved and have their opportunity to provide input on what this implementation framework is going to go look like. Some areas that I expect stakeholders to be particularly interested in would be, you know, the proposed mechanisms to protect the right, as well as the right-- the relevant factors that can be used to limit the “right to a healthy environment”, because I think, you know, getting clarity on those points, is going to be really important, because it's going to have a big impact on how the government actually implements this with respect to, for example, risk assessments for toxic substances going forward. Now, bottom line on all of this is, you know, reach out to Norton Rose, reach out to myself, because we can help you by monitoring the status of the development of the framework, providing updates, as well as input on, or how to guidance on how to provide input during the stakeholder consultation that's going to be coming-- coming about very shortly. 

Ailsa Robertson  48:03
I think I think we, can we just address other jurisdictions in terms of looking at how what we know from them can help navigate this uncertainty. 

Diana Weir  48:15
I think the only other one specific to the right, I didn't touch on was there are new information gathering powers that the government has provided to protect the right.

Ailsa Robertson  48:28
I do, it does make me wonder with the information gathering powers, like how extensive they are, and how problematic that could be

Ted Brook  48:36
It’s compliance, right? It's getting requests that you're not familiar with.

Ailsa Robertson  48:41
I think it would be worth addressing.

Diana Weir  48:42
In my view, like that, to me is actually, in some way, some of the scariest aspects for our industry under this-- under this package of amendments. There's a very significantly expanded information gathering powers and I think, for everyday Canadians, part of the concern around you know, pollution exposure, and toxic substances is a lack of information. And I think that is reflected in what we're seeing. We're, you know, we're saying, okay, not only is the government allowed to gather information about substances that might be toxic, that power is now being extended to products that might contain or release a toxic substance, as well as certain activities that may cause a toxic exposure for the environment. And there's specific activities that are enumerated under the amendments, including tailings ponds, and hydraulic fracturing.

Ted Brook  49:40
And those powers that-- that ability to get information the government didn't have that under the CEPA. 

Diana Weir  49:48
So the government had information gathering powers, but those were more confined and it was to do with the actual substance. So when we're saying a product that can release a substance or contain a substance that expands the realm of things that the government, like in the past, the government was saying, okay, we're issuing a notice with respect to this substance in regard and so anyone that has information that could potentially be relevant for environmental or health risk exposure in relation to this substance, you have to provide us with that information. And they-- they publish these notices in the Canadian Gazette, and, you know, manufacturers, different people in the industry would say, okay, I've got a response, because I have information on this, the scope of that is now expanded. So I think an example that was actually given or talking about products that could release a substance, this goes as broad as saying, okay, this could include like a container that could hold fuel, right like this, the scope of what we're saying now, could be caught by activities, or products that involve the use or can release a substance is much, much broader. And so I think, you know, we haven't seen how that's actually going to be put into effect, but you can see who they're targeting when they're specifically naming activities like tailings ponds, or hydraulic fracturing. Candidly, in Canada, we have communities, that would be, you know, for all intent and purposes, deemed as vulnerable communities or vulnerable populations, who are located in the vicinity of, for example, mining activities, and there is a high degree of suspicion that they may be impacted by activities that are carried out in those facilities, but they just don't have the information to actually connect, perhaps negative effects, they've experienced to those activities. And when we're seeing this expanded scope of information gathering powers, it suggests that, you know, the government is going to use some of these tools to actually go in and gather information that in the past, they wouldn't have necessarily have had access to.

Ailsa Robertson  51:50
And that creates a civil liability risk as well, presumably, because there isn't-- the information that is submitted, requested, there's no-- it's not automatically confidential, I think you can apply to have it--

Diana Weir  52:01
-- held as being confidential. But there's new provisions under the legislation that also say, you have to justify why that information should be held as confidential. And there are also now specific circumstances where even if you request or even if information is being held as being confidential, the government can actually make that information public. And so, you know, there's fewer protections for confidential information, and it certainly does create a risk for companies that perhaps, you know, are aware and are holding information as being confidential or private, that could create a risk of civil exposure for harm suffered by those who may be negatively impacted by products that are, you know, a byproduct of certain activities, if carried out.

Ted Brook  52:47
How does a member of the public get access to the information?

Diana Weir  52:52
Well, if the government decides to make it public. So this is, I mean, this is, so the overarching theme, I think of-- of the amendments in some ways, saying, this gives the public a tool to hold the government accountable, and how it's administering CEPA. So how it's making decisions about pollution control, and toxic substances in Canada, because, you know, in my view, this is really going to give individuals perhaps a new avenue to judicially review, government decisions made under the scheme, which in turn, I think, is going to hold industry to greater account, because they have to know that the government has more power now to gather information, and investigate the use of substances or pollutants in the environment. And that could help to draw out, you know, potential liabilities with respect to toxic substances or pollution in Canada.

Ted Brook  53:56
You know, in a sense, it's like the, you know, the Parliament is providing these rights to government, in order to put pressure on politicians, you know, at the polls, right, because public can say, I know, you have the power to do this, why aren't you investigating this particular substance that is, you know, important to me, or this particular area where I live, and, you know, did you see that as a sort of then what they were the drafters were trying to achieve?

Diana Weir  54:28
I think so, like, I think we're saying these are the tools that the government has these new duties owed to individual Canadians. And part of this also is, you know, they've introduced timeframes to respond to requests to investigate by the public. And so I think the idea here is that exactly, individuals can initiate these requests and say, you know, I have I know you have these powers. I know you have these new abilities, and if you're not fulfilling that duty, I now have the power to say, you are in the wrong, you haven't administered CEPA in accordance with your obligations, to protect my “right to a healthy environment”. And that in turn, I think is going to impact industry and how they fulfill their obligations as you know, environmental stewards.

Ted Brook  55:17
The takeaway I’m getting is there's a lot of uncertainty until we-- until we see what that second part framework looks like. But there are other jurisdictions that have enacted statutory rights to healthy environments. What can we take from those other jurisdictions? Is there anything that might preview you know, what-- what sorts of obligations or issues that businesses and individuals are going to be grappling with over the next few years?

Diana Weir  55:44
Yep. So, and I think I touched on this a little bit earlier, but there's different ways in which the right can be recognized. And so I don't think we can look to countries say that have, you know, recognized a “right to a healthy environment” and their constitution, because that's going to really reach far beyond the protections that we have available, or that we can envision being available to individual Canadians, under CEPA. We do know, there are a number of you know, for example, UN member states that have enacted a “right to a healthy environment”, in their national legislation, France, Portugal, South Africa, that have done this. And-- and granted that right has been, you know, spelled out differently in each jurisdiction, but we've seen individuals be able to avail themselves of that right. And, for example, to judicially review government action, and most of the cases that have been commenced by individuals have occurred in the global south. And so we don't have as much, you know, precedent to point to in, for example, the EU, or, you know, those type of jurisdictions. But we have seen cases, for example, there's a South African case fairly well known, Earthlife Africa versus Minister-- Minister of Environmental Affairs, where a South African NGO filed a judicial review of a government's decision to license a coal power station. But so I think these are the kind of, you know, proceedings that we could envision occurring in Canada that this might be a new means by which individuals can seek to judicially review government decisions being made under CEPA. And again, I think that would largely relate to things like pollution prevention, decisions regarding risk management, or use of certain substances and how they're being assessed and whether they're being appropriately assessed under our risk assessment scheme. So I think, you know, we've seen some action in this space, but we've also seen how, you know, you need something more to make this enforce-- it enforceable and a meaningful right for individual Canadians. 

Ted Brook  57:54
Thank you, Diana, I think that there's a lot to come in the space. And we're going to have to have you back on when we see the government's framework for implementing the right to health environment, because there's certainly going to be a lot to talk about then.

Diana Weir  58:08
Of course, it was a pleasure speaking with you both and I hope everyone enjoyed hearing about this latest round of amendments to CEPA, because it's certainly going to be interesting to see how the change occurs over the next couple of years.

Ailsa Robertson  58:21
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