Does toxic pollution violate your Charter rights?

Last week our colleagues at Ecojustice launched a case in Ontario that, if successful, could transform how governments regulate toxics in Canada and how environmental law is practiced. The story has had a bit of media pickup from the Toronto Sun and CBC, but nothing compared to the attention it should be getting.

The case, brought on behalf of Ron Plain and Ada Lockridge, members of the Aamjiwnaang First Nation, argues that the Ontario Ministry of Environment has violated their Charter rights by authorizing unacceptable levels of toxic pollution in the Sarnia Valley (which they refer to as “Chemical Valley”).

“This case is about the connection between pollution, health and human rights," said Ecojustice lawyer Justin Duncan. "The Charter exists to protect the rights of all Canadians, but right now those human rights are being denied to Ron, Ada and other Aamjiwnaang families."

The application challenges the MOE’s recent approval of increased pollution from refinery operations in Sarnia. The MOE completely failed to consider and minimize the cumulative effects of pollution resulting from the intensive industry next door to Aamjiwnaang First Nation.

Most of the court cases that have transformed the law in Canada – those concerning same-sex marriage or Aboriginal Rights and Title, for example – have been based on rights guaranteed in Canada’s constitution. They have used these constitutionally protected rights to challenge the existing laws. By contrast, most environmental cases have assumed the legality of existing environmental laws and tried to use them to protect the environment.

The Chemical Valley case is based on sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Section 7 states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

We have had discussions with Ecojustice for some years about the potential for a court case based on section 7. In 2003 I wrote an article, published in Volume 13 of the Journal of Environmental Law and Practice, pointing out that there was case law, both in Canada and elsewhere, that supported the view that that right extends to protecting the public from exposure to toxins and other public health impacts. The abstract of that paper explained:

Government decisions that give rise to a health risk to the public at large may have a very real impact on the right to life, liberty and security of the person of individuals and the public at large. Surprisingly, there has been comparatively little litigation examining whether s. 7 of the Canadian Charter of Rights and Freedoms places limits on the ability of government to create or authorize such health risks. After a review of the relevant Canadian court decisions, decisions from other jurisdictions with similar constitutional provisions and relevant international instruments, the [paper] concludes that the scope of s. 7 does extend to protecting members of the public against government decisions that create a serious public health risk. … [G]overnment authorization of private actions that threaten public health must comply with the principles of fundamental justice. The article concludes with an examination of what “principles of fundamental justice” apply to a government decision impacting on public health. … [In some cases] section 7 will require that procedural protections be put in place to notify the public of the potential health risks, to provide the public with an opportunity to be heard, and to ensure that an unbiased decision-maker assesses the health risk and makes an informed and cautious decision.

This article led to meetings with Ecojustice lawyers during which we developed a collective idea of what a section 7 challenge might look like. Scenarios very much like the Chemical Valley case were discussed. The possibility of invoking section 15 of the Charter – the right to equality under the law – was also discussed.

If the Chemical Valley case is successful, then, the victims of pollution will be able to argue that the principles of fundamental justice require governments not only to consider the isolated impacts of a single polluter, but to grapple with the more difficult question of what happens when multiple polluters collectively give rise to unhealthy levels of air or water pollution.

It’s this aspect of the case that has attracted the attention of Ontario Environmental Lawyer, Diane Saxe:

Ontario’s current system of authorizing air and water pollution was never designed to manage cumulative and synergistic impacts, and does not do it well. The entire concept of cumulative effects raises difficult scientific, regulatory and legal issues that no Canadian jurisdiction has really come to terms with, and which still will be troublesome under the new approvals regime adopted last week. Nor have we developed any concept of environmental justice. The Ecojustice lawsuit may trigger an important and long overdue review of this challenging area.

But that would, I hope, be just the beginning. In my paper, I suggested that section 7 requires governments to:

Notify the public of potential and actual pollution or threats to their health and give potentially affected members of the public a meaningful opportunity to be heard before critical decisions are made;
Adopt a precautionary approach in considering risks to human health; and
Avoid situations in which government decision-makers have an incentive to approve toxic pollution.

Imagine what this might mean for people living next to sour gas wells that could leak potentially fatal gas or parents of children concerned about their kids being exposed to pesticides at school.

We at West Coast Environmental Law would like to commend Ron Plain, Ada Lockridge and the lawyers at Ecojustice for bringing this case, and wish them the best of luck. If successful, it could fundamentally alter how environmental law is practiced in Canada.

By Andrew Gage, Staff Counsel