Hon. Dennis Glen Patterson: Honourable senators, I too rise to speak to Bill S-5, with the short title “Strengthening Environmental Protection for a Healthier Canada Act.” This bill proposes to do three things. If passed, it would make over 100 changes to the Canadian Environmental Protection Act, or CEPA, as we fondly know it. It would make related amendments to the Food and Drugs Act, and it would repeal the Perfluorooctane Sulfonate Virtual Elimination Act.

I would like to focus my remarks on the first slough of amendments related to CEPA. It is known internationally as a world-leading, flexible and risk-based piece of environmental legislation. It declares that:

. . . the protection of the environment is essential to the well‑being of Canadians and that the primary purpose of this Act is to contribute to sustainable development through pollution prevention.

According to the Environment and Climate Change Canada website, “Canadians have indicated that the Act is fundamentally sound.”

That said, no legislation is perfect. Between 2004 and 2007, consultations were undertaken by Environment Canada and Health Canada in an effort to identify issues with CEPA that could be addressed during a comprehensive review of the legislation.

According to a 2017 paper posted by Environment Canada entitled The Canadian Environmental Protection Act, 1999: Issues, these consultations identified 12 specific concerns and 3 broader ones.

The 12 specific concerns all sought to bring clarity and certainty to the bill, as well as to alleviate unnecessary bureaucratic red tape by streamlining certain processes. How, for example, would the government deal with substances added to the Domestic Substances List created in 1988, prior to the requirement for rigorous testing established by CEPA?

There was also the question of national consistency. The report states that national consistency with regard to regulations:

. . . creates a more level playing field by reducing problems associated with having a patchwork of different regulations across the country being applied to the same industry sectors.

This overall desire for more certainty and consistency across jurisdictions in an effort to mitigate a guessing game by potential investors and proponents is what has helped shape my opinions on this bill.

Colleagues, Bill S-5 seeks to add a preambular clause that would recognize the right of all Canadians to a healthy environment. Clause 5 of the bill then goes on to outline the multi-year consultative process that will set out how to implement this right.

However, as we look at this bill, my question is this: What does that right actually mean for Canadians? To explore this question, we must first look at Canadian jurisdictions that have similar provisions and look at the body of jurisprudence we currently have available.

Ontario, Yukon, N.W.T. and Nunavut all recognize the right to a healthy environment in their legislation in preambular clauses. Quebec put the right into its Environment Quality Act in 1978 and added it to its provincial Charter of Human Rights and Freedoms in 2006. This has resulted in the ability of cases to be brought against CEOs of companies, who, in that province, can be held personally liable for any detrimental environmental effects resulting from their companies’ mismanagement.

In recent years, four actions have been launched in Canada asserting that the Constitution guarantees Canadians a right to a healthy environment. In late 2018, a group called ENvironnement JEUnesse launched a class action, alleging that the Government of Canada, by adopting what they felt were ill-conceived GHG emission targets, failed in its duty to protect the right of Canadians to a healthy environment. They argued that this right is inherently granted under section 7 of the Charter of Rights and Freedoms, which lists a right to “. . . life, liberty and security of the person . . . .” In their submissions, they stated that:

. . . by adopting inadequate targets and failing to put in place the necessary measures to achieve these targets, the government is violating the class members’ right to live in a healthful environment in which biodiversity is preserved, protected by the Québec Charter.

The Government of Canada submitted, in turn, that this issue was not justiciable, as those were inherently political arguments. In the end, the class action was not certified. The July 11, 2019, decision did not disagree with the substantive issues but instead found that the age group of Québec residents, 35 years or younger, that the organization claimed to be representing was an arbitrary one. So Justice Morrison did not certify the claim based on procedure, and the substantive question about what a right to “a healthful environment” entails went unanswered.

In 2019, La Rose v. Her Majesty the Queen and Mathur, et al. v. Her Majesty the Queen in Right of Ontario were launched in quick succession of one another. They were both launched by children throughout Canada and Ontario, respectively. Some of the plaintiffs were Indigenous children, while others were vulnerable children whose medical conditions or geographical locations made them more susceptible to pollutants or drastic changes in the environment. Both claims stated that section 7 of the Charter created a constitutional obligation to protect the right to a healthy environment.

According to the summary by climatecasechart.com regarding La Rose:

On October 27, 2020, a Federal Court judge dismissed the lawsuit by Canadian youth against the Canadian government on a pretrial motion to strike for failing to state a reasonable cause of action. . . .

A similar motion was put forward in Mathur, but it was rejected by the Ontario Superior Court of Justice, so that case has yet to be heard.

The final case that follows this theme is Lho’imggin et al. v. Her Majesty the Queen, which was launched in February 2020 during the blockades resulting from some Wet’suwet’en opposition to the Coastal GasLink pipeline. The plaintiffs argued that Canada has failed in its international obligations under UNDRIP, and that the government’s inaction on climate change has caused irrevocable damage to their traditional lifestyles and land. They also contend that Canada “. . . has a constitutional duty to maintain the peace, order and good government of Canada . . .” The case has not yet been heard.

Honourable senators, I am concerned by what I have learned. With two cases looking to define what the right to a “healthful environment” would afford, it seems prudent to wait to introduce such a right in legislation.

It brings me back to the need to preserve the certainty that so many have lauded in CEPA. Environment and Climate Change Canada, on their own website, describes CEPA as providing:

. . . a structured predictable approach to risk management decision-making that provides for the input and full consideration of public values and concerns at all stages of the decision-making process. . . .

In my opinion, if we are to agree to put the official recognition of this right into a bill that industry relies upon for clarity on process and policy, we must ensure we know right here and now what that right means. We should not be waiting years for answers regarding how to implement this right or what actions and expectations that right entitles Canadians to.

There are many other concerns that I have with this bill, colleagues, that will not fit into the short time that I have in speaking to it today. I have not had a chance to discuss my concerns regarding the potential infringement on provincial or territorial jurisdiction, nor do I have time to fully discuss concerns regarding the change in how substances are labelled “toxic” or, as clause 75.1 states, “. . . capable of becoming toxic.”

I will close in saying that I believe careful and thorough study of this bill must be done in committee. I sincerely hope our committee is not rushed as it considers this important bill since I, for one, am hoping to gain more clarity and comfort through that process.

Thank you.