In February 2022, Bill S-5 was introduced in the Senate with the goal of amending and strengthening the Canadian Environmental Protection Act, 1999 (“CEPA”). Among other things, the bill aims to amend the protection provided for vulnerable populations and establish a right to a healthy environment.
Bill S-5 states that a vulnerable population is “a 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''. Pregnant individuals, children, and people with disabilities may be at a greater risk of adverse health effects due to a greater susceptibility (Tillerman, et al., 2003, p.85). Additionally, as a result of social and economic disadvantages, racial minorities and Indigenous communities are more likely to live closer to air polluters than others, resulting in greater exposure to air pollution (White & Heckenburg, 2014, p.167).
Section 7 of Bill S-5 adds that when protecting the right to a safe environment, the Minister shall collect data and conduct research on the environmental harm and its effects. When it comes to research surrounding harmful emissions or any other substance, the research ‘may’ relate to vulnerable populations but there is no requirement that the role of substances in illnesses or health problems of vulnerable groups be studied. There is only a requirement that the Minister refer to “available information on any vulnerable population in relation to the substance” and that environmental justice be generally considered alongside other factors.
This is not sufficient. Without information on the impacts of emissions, the government will not be able to effectively protect vulnerable populations. An effective bill would: 1) research both the environmental and health impacts of emissions on the community; 2) eliminate the infrastructures that create inequality, such as racism, ableism, and classism; 3) implement new structures to protect vulnerable populations, and; 4) commit to any other act necessary to prevent future harms.
Further, the addition of the vulnerable population designation appears to put emphasis on the protection of disproportionately burdened communities. However, if a group is designated as a vulnerable population due to their exposure to toxic air pollution, it is unclear whether actions would be taken to protect the group. The Minister has significant discretion in the classification and prohibition of substances. For instance if it is placed on the toxic substance list, the substance and its use may be prohibited but the Minister can grant exemptions where deemed necessary. Without firm regulations and prohibitions explicitly written into the Bill to create consistency and transparent regulations, vulnerable populations are not guaranteed protections from harmful substances.
Finally, the Bill aims to create an environmental right to a healthy environment. Unfortunately, much like the protections for vulnerable populations, the Bill does not outright guarantee the right in any meaningful way. As it is currently written, the right to a healthy environment would be balanced against social, economic, health, and scientific factors – with no indication on which factors may carry more weight in the analysis. With regards to air pollution, the protection of individuals from air pollution as a result of the oil, gas, or energy sector may be outweighed by the economic and social benefits of the emissions despite the dangers created by the emissions. Without an unqualified right to a healthy environment, the Bill allows for loopholes that will leave Canadians vulnerable to toxic emissions and air pollution.
While Bill S-5 has identified vulnerable populations and a lack of environmental rights as areas of concern, it is not able to properly address the ever-increasing threats Canadians are facing as a result of dangerous emissions and air pollution. The Bill must guarantee a right to a healthy environment that prioritizes the protection of vulnerable individuals from toxic substances, study the cumulative impacts of the substances, and establish consistent decision making criteria. Without these concrete action items, the Bill provides weak protection for vulnerable populations and does not fulfill its promises of a safer and healthier environment.
Megan Cormier is originally from New Brunswick, Canada but moved to Ottawa last year to study Law at the University of Ottawa with a specialization in Environmental Law. Outside the classroom, Megan is currently working on a small-scale, zero emission farm in Kemptville, ON learning about sustainable and ethical farming practices.
References
Ecojustice. (2007, October). Exposing Canada’s Chemical Valley: An Investigation of Cumulative Air Pollution in Sarnia, Ontario Area. Ecojustice. http://ecojustice.ca/wp-content/uploads/2015/09/2007-Exposing-Canadas-Chemial-Valley.pdf
Government of Canada. Health Impacts of Air Pollution in Canada: Estimates of morbidity and premature mortality outcomes – 2021 Report. https://www.canada.ca/en/health-canada/services/publications/healthy-living/2021-health-effects-indoor-air-pollution.html#a4
Parliament of Canada. Strengthening Environmental Protection for a Healthier Canada Act (2022, April 7). Legisinfo. Retrieved May 19, 2022, from
https://sencanada.ca/en/content/sen/chamber/441/debates/022db_2022-03-01-e?language=e#44
Strengthening Environmental Protection for a Healthier Canada Act, Bill S-5, 44th Parliament (2022). https://www.parl.ca/Content/Bills/441/Government/S-5/S-5_1/S-5_1.PDF
Tilleman, W. A., et al. (2003). Environmental Justice. Environmental Law and Policy. Edmond Montgomery Publications.
White, R., & Heckenberg, D. (2014). Green Criminology: An Introduction to the Study of Environmental Harm. Routledge.