The Right to a Healthy Environment: What Does it Mean?

The Right to a Healthy Environment: What Does it Mean?

Blog post 4: The Right to a Healthy Environment: What Does it Mean?

This blog post was written by Kanisha Acharya-Patel, WHEN’s Law Reform Specialist, and the views expressed are not intended as legal advice. 

 The Canadian Environmental Protection Act (CEPA), a federal law dedicated to protecting environmental and human health, was amended in 2023 and now states that everyone has the Right to a Healthy Environment (RTHE): an environment that is clean, healthy and sustainable. However, the substance of this right is still unclear, which raises concerns as to its application and enforceability. The federal government has confirmed that the RTHE will not introduce any new enforcement mechanisms, and will more so be a guiding principle for decision-making under CEPA. This begs the question: if a right can’t be enforced, is it really a right?

Additionally, the RTHE is restricted to CEPA, which means that it will not apply to decisions made under other federal laws or provincial/territorial laws, even though many of those laws have direct impacts on human and environmental health (such as the federal Pest Control Products Act, which regulates pesticides). This restricts the reach of the RTHE, and we urge the government to use the Framework to clarify exactly what the RTHE applies to. 

Compared to the 110+ countries that have enshrined the RTHE in their constitution (which means that it is a fundamental, enforceable right protected by the country’s highest law), Canada’s approach is rather underwhelming. However, despite the limited scope of the RTHE, we are hopeful that its implementation will lead to strengthened decision-making under CEPA that prioritizes people and the planet over profit.

 

HOW WILL THE RTHE BE IMPLEMENTED?

The Minister of Health and Minister of Environment are required to develop an Implementation Framework (Framework) for the RTHE by June 2025. Because the Ministers are required to consult interested parties, grassroots organizations, non-governmental organizations and the public during the Framework development process, this presents a window of opportunity for WHEN to advocate for the RTHE to be implemented in a manner that advances environmental justice for all, including our most vulnerable populations*. 

The requirements for the Framework are set out in s. 5.1 of CEPA. In essence, the Framework must provide a definition of the RTHE, explain how the RTHE will be upheld when making decisions under CEPA (such as deciding whether a toxic substance should be allowed to enter the environment), and outline the mechanisms that will be in place to protect the RTHE (such as avenues for enforcement and studies to monitor the health of the environment). The Framework must also elaborate on how the principles that are meant to inform CEPA decision-making and are key to the RTHE will be applied. These principles include:

  • Environmental justice: the avoidance of adverse health effects that disproportionately affect vulnerable populations

  • Intergenerational equity: meeting the needs of the present generation without compromising the ability of future generations to meet their own needs; and

  • Non-regression: includes the continuous improvement in environmental protection

The federal government’s preliminary discussion document on the Framework was released in February 2024 and included a public comment period until April 8 2024; we encourage you to review WHEN’s detailed comments and recommendations here.

 

THE RTHE MUST BE IMPLEMENTED USING AN INTERSECTIONAL APPROACH

WHEN strongly believes that the Framework must be developed using an intersectional approach, to promote environmental justice. An intersectional approach requires consideration of how the Framework may be understood and experienced by diverse populations differently because of their various intersecting identity factors, such as sex, gender, race, and socioeconomic status. 

This intersectional lens is provided by the gender-based analysis plus (GBA+) methodology, because GBA+ is a process for understanding who is impacted by the issue being addressed (i.e. environmental injustice in the form of an unhealthy environment) and how; identifying how the initiative (i.e. RTHE Framework) could be tailored to meet diverse needs of the people directly impacted (specifically vulnerable populations); and discovering, anticipating and mitigating any barriers to accessing or benefiting from the initiative [1]. 

As mentioned in Canada’s Policy on GBA+, GBA+ goes beyond sex and gender to include consideration of other identity factors (i.e. non-exhaustive list including age, disability and economic status), the context within which people live (i.e. systemic/structural factors), and how these factors can intersect and shape one’s legal, social, health and economic opportunities and barriers to accessing systems, programs or services.

Taking an intersectional approach will allow the federal government to meet their responsibility to administer CEPA in a manner that protects the health of vulnerable populations (i.e. group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances). 

As the federal government is required to use the GBA+ framework when developing or implementing government initiatives, WHEN is calling on the federal government to use GBA+ when developing Framework. In accordance with Women and Gender Equality Canada’s guidance on GBA+, the federal government must complete the seven steps required to ensure that the full impacts of the new RTHE are considered.

 

BILL C-226, CANADA’S NEW ENVIRONMENTAL JUSTICE LAW, PROVIDES IMPORTANT CONTEXT FOR THE RTHE

Bill C-226, also known as the National Strategy Respecting Environmental Racism and Environmental Justice Act, requires that the federal government develop a National Strategy to promote efforts across Canada to advance environmental justice and to assess, prevent and address environmental racism. 

The notion of environmental racism comes from the fact that environmentally hazardous sites (including landfills and polluting industries) are established in areas inhabited by members of an Indigenous, racialized or other marginalized community. Environmental justice expert Robert Doyle Bullard summarizes environmental racism as:

  • The disproportionate location and greater exposure of Indigenous and racialized communities to contamination and pollution from polluting industries and other environmentally hazardous activities;

  • The lack of political power these communities have for resisting the placement of industrial polluters in their communities;

  • The implementation of policies that sanction the harmful and, in many cases, life-threatening presence of poisons in these communities;

  • The disproportionate negative impacts of environmental policies that result in differential rates of cleanup of environmental contaminants in these communities; and

  • The history of excluding Indigenous and racialized communities from mainstream environmental groups, decision-making boards, commissions and regulatory bodies [2]. 

Environmental racism therefore plays a large role in the health of one’s environment and should be a central consideration in the development of the RTHE Framework. Because the federal government has stated that input received during engagement on the development of the Framework may be used to inform the development of the National Strategy, we hope that the Framework will outline how decision-making under CEPA, in upholding the RTHE, will address the systemic injustices and structural determinants of health that perpetuate inequities against vulnerable populations. 

The inclusion of the RTHE in CEPA coupled with the mandate to develop the National Strategy under Bill C-226 show that the government recognizes that environmental health risks are not uniformly distributed, which is a step in the right direction. However, if the Framework is not developed in collaboration with affected communities or the substance and enforceability of the RTHE is not expanded upon, the RTHE risks simply being a performative amendment to CEPA that will not meaningfully advance environmental justice in Canada.

 

PROTECTING EVERYONE: WHAT’S NEEDED?

Above all, it is crucial that marginalized communities have a seat at the table when the Framework is being developed, and there is a responsibility for the federal government to actively facilitate and fund participation by populations rendered vulnerable, including but not limited to women*, BIPOC communities, young people, and disabled people. Consultation can only be meaningful if done with the goal of receiving feedback and meaningfully taking steps to address concerns [3]. 

WHEN has submitted detailed comments and recommendations to the government regarding the Framework. In summary, WHEN strongly believes that to better protect vulnerable populations and their RTHE, the Framework must provide:

 

A comprehensive description of the RTHE

Canada has defined the RTHE as the right to an environment that is clean, healthy and sustainable, but has said that the substantive meaning of the right in the CEPA context will be elaborated on in the Framework. The definition must clarify what ‘clean, healthy and sustainable’ means and how it will be upheld in CEPA decision-making or enforced by the public or the courts.

 

An explanation of how the RTHE will improve access to justice

As said by MP Elizabeth May, “a non-enforceable [right to a healthy environment] is a bumper sticker. It is good to have in the bill, and people can point to it and say it is improvement; however, it is not a right if we cannot enforce it”. Currently, legal avenues for the public to hold the government accountable under CEPA have too many obstacles (such as lengthy and costly court procedures and unequal access to legal representation), and we hope the Framework will address these issues.

 

An approach to toxic substance regulation that prioritizes the prevention of harm to human and environmental health

Canada’s approach to assessing and managing the risks of a toxic substance assumes that everyone is exposed to the same amount of a toxic substance, and everyone is equally likely to face the same negative health effects from being exposed. This does not account for how physiological identity factors (such as sex and age) and social/environmental identity factors (such as gender, race, income, and physical location) can make someone more likely to be exposed to a substance or more likely to face negative health effects. 

For example, gendered beauty norms result in women using more personal care products than men and therefore being more exposed to toxic substances. Some of these substances also have sex-specific health effects, such as ovarian cancer, that make people with ovaries more likely to get sick than people without ovaries. These differences need to be accounted for. Given that the RTHE is supposed to advance environmental justice (i.e. the avoidance of adverse health effects that disproportionately affect vulnerable populations), we believe the Framework must explain how toxic substance regulation will be strengthened to better protect our health.

 

Effective communication strategies

Communication strategies must ensure that everyone, including our most marginalized populations, has access to information regarding what the RTHE entails, what government actions it applies to, and how it can be enforced. With the RTHE being a guiding principle for decision-making under CEPA rather than an enforceable right, we are concerned that the government will expect the public to simply trust that their decisions are informed by the RTHE. 

The “trust us, we got it right” approach has been widely critiqued for eroding government accountability, and we believe it is important for the government to be transparent by providing accessible, plain language summaries outlining the reasoning behind their decisions made under CEPA and exactly how the decisions uphold the RTHE. Communication strategies must consider the barriers that may exist for certain individuals seeking to enforce their RTHE, including literacy constraints, language barriers, financial constraints, access to the internet, and access to legal advice or representation.

 

GET INVOLVED

Bill C-226 is in its final stage of the legislative process and will hopefully become law in the near future; we encourage you to show your support for environmental justice by signing this petition calling on the Senate to pass Bill C-226 without delay. To learn more about WHEN’s perspective on Bill C-226, please review WHEN’s brief that was submitted to the Senate Committee on Energy, the Environment and Natural Resources for their consideration. 

 One of the primary organizations WHEN is collaborating with on the RTHE is Shake Up The Establishment: a non-partisan, youth-led, registered organization that aims to make credible, evidence-informed information readily available to the Canadian population to promote informed voting, advocacy practices, and political accountability surrounding human and social justice issues that are exacerbated by the climate crisis. Shake Up The Establishment has released an informative blog post regarding opportunities to engage with the federal government’s environmental justice initiatives and continues to provide updates on their website. Check it out!

We also encourage you to register with the federal government’s website on Advancing Environmental Equity, which provides background information on Canada’s initiatives and will alert you of public engagement opportunities.  

 Finally, we invite you to follow the important environmental justice-focused work being done by our colleagues at Shake Up The Establishment, the ENRICH Project, the David Suzuki Foundation, Environmental Defence, the Canadian Association of Physicians for the Environment, the Coalition for Environmental Rights and the Canadian Coalition for Environmental and Climate Justice.

*Note on language: 

WHEN advocates for all women, trans, cis, and Assigned Female at Birth (AFAB) individuals. For the purposes of this blog post, the term ‘women’ is used to describe those with ovarian reproductive systems and/or those who identify as women, recognizing that both sex and gender affect one’s vulnerability to environmental harm.

For simplicity and consistency with CEPA language, WHEN uses the term ‘vulnerable population’ to refer to individuals who are at greater risk of experiencing negative health effects from exposure to environmental contaminants than the general population due to their intersecting identity factors and structural conditions. We recognize that the term ‘vulnerable’ can imply an intrinsic deficit, inferiority or inability to protect one’s own best interests, reduce perceived and actual agency of the individual or group, and result in their further stigmatization and exclusion [4]. We appreciate that Environment and Climate Change Canada and Health Canada are exploring using the term “populations who may be disproportionately impacted” interchangeably with “vulnerable populations” to recognize that many of these populations are not inherently vulnerable but rather that their susceptibility is associated with the circumstances of their lives. However, we encourage the government to further specify the factors that make one “inherently vulnerable” as well as the circumstances that make one more susceptible, in order to increase public awareness around the structural and physiological causes of health inequities.