Recognition of a right to a healthy environment: Royal assent for Bill S-5 and long-waited amendments to Canada’s framework for protecting the environment

On June 13, 2023, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, received royal assent. This is the first set of major amendments to the Canadian Environmental Protection Act (CEPA) since its enactment in 1999.

Key amendments

Key amendments to CEPA include: 

• Recognition, for the first time in Canadian law, that every individual in Canada has a right to a healthy environment and that the government has a duty to protect that right when administering CEPA; 
• Recognition of the importance of management of substances in commerce under Canadian law and confirmation of the government’s commitment to openness, transparency and accountability, and a risk-based approach to chemicals management; 
• Recognition of the importance of:
  • considering vulnerable populations in risk assessments and minimizing the risks posed by the cumulative effects of toxic substances;
  • replacing, reducing or refining the use of vertebrate animal testing; and
  • access to information regarding the risks of toxic substances, including by labelling products;
• Providing the government with additional information-gathering powers that will cover a broader range of substances, including products that may release substances into the environment; and 
• Confirmation of the government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including free, prior and informed consent, and recognition of the role of Indigenous knowledge in decision making related to the protection of the environment and human health.

Right to a healthy environment

CEPA’s preamble will now include a declaration that every individual in Canada has a right to a healthy environment. Section 2(1) of CEPA will also require the government to protect that right “as provided under this Act, subject to any reasonable limits.” At present, the right to a healthy environment appears to be an interpretative principle that will inform the government’s administration of CEPA.

Additional guidance regarding the government’s administration of the right to a healthy environment is forthcoming. Within two years of the amendments coming into force, the government, in partnership with interested persons, including Indigenous partners and industry representatives, must develop an implementation framework setting out how the right will be considered in the administration of CEPA. The framework will elaborate on the relevant “social, health, scientific and economic factors” to be considered when interpreting the right to a healthy environment and its reasonable limits, and the mechanisms to support the protection of the right to a healthy environment.

With the implementation framework having not yet been established, the question remains as to whether the amendments will provide the public with any additional means to hold the government accountable to protect this right when administering CEPA. It is also unclear what will constitute a “reasonable limit” on the right to a healthy environment and how the right will be weighed against other “social, health, scientific and economic factors.”

Indigenous reconciliation

The amendments will introduce a statement in CEPA’s preamble confirming the government’s commitment to the implementation of UNDRIP, including free, prior, and informed consent, and recognition of the role of Indigenous knowledge in decision making related to the protection of the environment and human health. 

The amendments also require the Minister of the Environment’s annual report to Parliament to take into account the operation of CEPA in respect of Indigenous peoples in Canada. The annual report must now include information relating to consultations, key issues raised; administration of CEPA, including measures taken to advance reconciliation; and key findings or recommendations of any report made under an Act of Parliament in respect of the administration of CEPA and Indigenous peoples and governments. Future annual reports may include information gathered as part of the revised chemical management plan, which now includes the consideration of effects on vulnerable populations. The amendments define “vulnerable populations” to include those with the potential for greater exposure, such as Indigenous communities located in areas where pollution standards may be exceeded. 

Chemical management

The amendments make several significant changes to chemical management under CEPA. Within two years, the Minister of the Environment and Minister of Health (the Ministers) must publish a new Plan of Chemicals Management Priorities for the ongoing assessment of substances already in commerce in Canada. When assessing and managing substances under the Plan, the government will be required to consider vulnerable populations, vulnerable environments and the risk posed by the cumulative effects of substances and consider class-based assessment approaches. The government will be required to communicate anticipated timelines for completing risk assessments and for proposing subsequent risk management actions when a substance is found to meet the criteria to require risk management. The amendments will also allow Canadians to request that a chemical be assessed and require the Ministers to consider and respond to any such requests.

In addition, the current Schedule 1 List of Toxic Substances to CEPA will be renamed and divided into two parts. Substances that pose the highest risk will be listed in Part 1 of Schedule 1. Priority will be given to the total or partial prohibition¹ of activities involving these substances. All other substances that are found to be CEPA-toxic will be listed on Part 2 of Schedule 1, which will require pollution prevention actions when managing risk posed by these substances.

The government will also publish a Watch List of substances that can pose a risk and be considered CEPA-toxic if, for example, uses change or exposure increases. Adding a substance to the Watch List will be one of the options available following the completion of the substances risk assessment process under CEPA. The Watch List is intended to help stakeholders select safer alternatives and avoid regrettable substitutions.

Information-gathering powers

The amendments provide the government with new powers to gather information on substances in commerce in Canada including the requirement to conduct research and studies. The government will now have the power to specify the methods for quantifying required information and the laboratory procedures and practices to be followed in performing required tests. The government could also require supplementary information and samples to be provided along with test results.

The amendments also extend the Minister’s information-gathering powers to include the ability to compel information on activities that may contribute to pollution, including hydraulic fracturing and tailings ponds.

With these new information-gathering powers, requests for confidentiality can be submitted so long as they are accompanied by reasons. However, the Minister has the authority to disclose the name of a masked substance when risk management protocols have been implemented for the substance, and the government will be able to disclose names after 10 years from the date a name was masked. 

Related amendments to the Food and Drugs Act

Related amendments are also made to the Food and Drugs Act (FDA) to expand the Minister of Health’s authority to manage environmental risks posed by therapeutic products by:

• Adding a suite of legislative environmental risk management tools for therapeutic products; and 
• Providing the ability to create regulations to assess and manage environmental risks from products regulated under the FDA. 

The government is currently developing guidance on when and how Health Canada would use these FDA post-market environmental risk management provisions. While the authority now exists under the FDA to create regulations to assess and manage environmental risks for all FDA-regulated products (i.e., food, drugs, cosmetics and devices), only regulations for drugs are being contemplated at this time. 

Takeaways

This is the first time that federal law has recognized that all Canadians have a right to a healthy environment and that the government has a duty to protect that right and uphold the principles of environmental justice, intergenerational equity, and non-regression. The development of the implementation framework over the next two years will dictate how the right will be implemented in the administration of CEPA.

Businesses should be aware that the amendments to CEPA will significantly change the government’s approach to chemical management. Interested stakeholders should closely follow the government consultation process to avail themselves of the opportunity to provide input on the forthcoming Plan of Chemicals Management Priorities. In addition, businesses submitting substances for risk assessment should be prepared to address available information regarding effects on vulnerable populations and vulnerable environments.

We will continue to monitor and report on these developments. If you have any questions on these amendments and how they may impact you or your business, contact the authors or any of the key contacts identified below.