Q and A with the experts: Canada’s new environmental legislation

The Government of Canada is now required to protect the right of every individual in Canada to a healthy environment when administering CEPA Bill S-5 is federal legislation that amends the Canadian Environmental Protection Act (CEPA). It is significant because the amendments recognize that all Canadians have a right to a healthy environment. Dr. Neil Craik, law professor in the School of Environment, Enterprise and Development, is an expert in international and Canadian environmental law.   

Is the right to a healthy environment a new constitutional right?

 Bill S-5 amends ordinary legislation and is not a constitutional right. It does not bind provincial governments and can be amended or revoked by subsequent governments. In effect, Bill S-5 requires that where the government is making decisions or exercising other powers under CEP, it must do so in such a manner that protects the rights of Canadians, and vulnerable populations, to a healthy environment. The other important aspect is that the obligation to protect environmental rights falls on the Government of Canada, but not private individuals.  

How is Bill S-5 likely to change government policy and practices concerning the environment?

 While the right to a healthy environment only directly impacts decisions made under CEPA, this Act is a critically important element of the federal government’s regulatory framework for protecting the environment. CEPA provides regulations governing a wide range of environmental issues, including toxic substances and other pollutants, such as carbon dioxide emissions, marine pollution, hazardous waste and biotechnology. In administering CEPA in these areas, Bill S-5 provides the basis for the public to hold the Government accountable for its failure to adequately protect environmental conditions. An important limitation on the right to a healthy environment is that the legislation recognizes that this right "may be balanced with relevant factors, including social, economic, health and scientific factors". This caveat acknowledges that the right to a healthy environment is not absolute but must be balanced against other public priorities.  

How will Bill S-5 be implemented and enforced?

The are many unresolved questions in Bill S-5, including how the government will define the precise content of, or standards pertaining to, the right to a healthy environment. The legislation requires the Minister of Environment and Climate Change to develop an implementation framework that is intended to elaborate on key principles and on how the government intends on balancing the right to a healthy environment against other factors. The success of the legislation in protecting the environmental rights of Canadians will depend in large measure on the implementation framework. Bill S-5 does not specify whether the implementation framework itself will be formulated as a binding instrument, such as a regulation, or as a guideline, nor does it specify how the right to a healthy environment may be enforced by individuals or vulnerable communities.