ENVIRONMENTAL RIGHTS, PUBLIC PARTICIPATION

1. ENVIRONMENTAL RIGHTS, PUBLIC PARTICIPATION Environmental Law 3369 October 21

2. OVERVIEW • Rights to Environmental Quality • Legislative Basis for Environmental Rights • Rights to Participate in Environmental Decision-making • Environmental Reporting and Information Sources • Interactive Exercise 2: Interested Party (Erasmus) Moot

3. ENVIRONMENTAL RIGHTS • Constitutional, quasi-constitutional, legislated rights • Substantive v. Procedural: • Actual changes in priorities and outcomes of decisions? • Civil liberty against environmentally unsound governmental actions • Property right restraining others • Safeguards for the participation of public/ environmental advocates • Issues surrounding environmental rights: • Individual or collective? • Positive or negative? • Necessarily anthropocentric? • Duties? • Implications?

4. CONSTITUTIONAL ENVIRONMENTAL RIGHTS Canadian Charter of Rights and Freedoms: 7. 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. 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

5. CONSTITUTIONAL ENVIRONMENTAL RIGHTS Charter as environmental sword? Lockridge v. Ontario (Ministry of the Environment) Ongoing application for judicial review, Ecojustice as counsel • Cumulativeeffects of government-approved pollution in Sarnia’s Chemical Valley is threatening health of plaintiffs (Aamjiwnaang First Nation members), violates constitutionally protected human rights • Environment Ministry’s ongoing approval of pollution in Sarnia violates their basic human rights under sections 7 and 15 of the Charter , including the right to life, liberty and security of the person, and the right to equality Charter as pollution shield? • “Environmental problems do not lend themselves to precise codification” Gonthier J in R. v. Canadian Pacific Ltd. • “Obvious” social importance of environmental protection, and necessity to accommodate a wide range of environmentally harmful activities • “A strict requirement of drafting precision might well undermine the ability of the legislature to provide for a comprehensive and flexible regime” • Therefore necessary that courts “take a more deferential approach” to Charter review when environmental health and property damage are at risk

6. Quebec’s Environment Quality Act • “every person has a right to a healthy environment and its protection, and to the protection of the living species inhabiting it, to the extent provided for by this act and the regulations, orders, approvals and authorizations issued under . . . this act” s.4 • Calvédecision – Trial level interlocutory injunction upheld on basis that some judicial remedy required to ensure respect for statutory environmental right • “every person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and ac cording to the standards provided by law” Quebec Charter of human rights and freedoms s. 46.1

7. NWT’s Environmental Rights Act • “the people of the Northwest Territories have the right to a healthy environment and a right to protect the integrity, biological diversity and productivity of the ecosystems in the Northwest Territories” • Any resident has the right “to protect the environment and the public trust from the release of contaminants”

8. Ontario’s Environmental Bill of Rights Preamble • The people of Ontario recognize the inherent value of the natural environment. • The people of Ontario have a right to a healthful environment. • The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations. • While the government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner.

9. Ontario’s Environmental Bill of Rights Purposes of Act (a) to protect, conserve and, where reasonable, restore the integrity of the environment by the means provided in this Act; (b) to provide sustainability of environment by means provided in this Act; (c) to protect the right to healthful environment by means provided in this Act Purpose of Part II 3.  (1)  This Part sets out minimum levels of public participation that must be met before the Government of Ontario makes decisions on certain kinds of environmentally significant proposals for policies, Acts, regulations and instruments.

10. Ontario’s Environmental Bill of Rights Right of action 84.(1) Where a person has contravened or will imminently contravene an Act, regulation or instrument prescribed for the purposes of Part V and the actual or imminent contravention has caused or will imminently cause significant harm to a public resource of Ontario, any person resident in Ontario may bring an action against the person in the court in respect of the harm and is entitled to judgment if successful. Steps before action: application for investigation (2)  … an action may not be brought under this section in respect of an actual contravention unless the plaintiff has applied for an investigation into the contravention under Part V and, (a) has not received one of the responses required under sections 78 to 80 within a reasonable time; or (b) has received a response under sections 78 to 80 that is not reasonable.

11. Ontario’s Environmental Bill of Rights No judicial review 118.  (1)  Except as provided in section 84 and subsection (2) of this section, no action, decision, failure to take action or failure to make a decision by a minister or his or her delegate under this Act shall be reviewed in any court. Exception (2)  Any person resident in Ontario may make an application for judicial review under the Judicial Review Procedure Act on the grounds that a minister or his or her delegate failed in a fundamental way to comply with the requirements of Part II respecting a proposal for an instrument.

12. Bill C-469 CanadianEnvironmental Bill of Rights • Private member’s bill introduced in 2010 by Linda Duncan MP (Edmonton-Strathcona) supported by Ecojustice 9. (1) Every resident of Canada has a right to a healthy and ecologically balanced environment. (2) The Government of Canada has an obligation, within its jurisdiction, to protect the right of every resident of Canada to a healthy and ecologically balanced environment. (3) The Government of Canada is the trustee of Canada’s environment within its jurisdiction and has the obligation to preserve it in accordance with the public trust for the benefit of present and future generations.

13. Bill C-469 Public Participation Rights 11. Every resident of Canada has an interest in environmental protection and the Government of Canada shall not deny any resident standing to participate in environmental decision-making or to appear before the courts in environmental matters solely because they lack a private or special legal interest in the matter. 12.  . . .the Government of Canada shall ensure opportunities for effective, informed and timely public participation in decision-making related to policies or Acts of Parliament . . .

14. Bill C-469 Reviews and Investigations 13. (1) Any resident of Canada or entity that believes that an existing policy or an Act of Parliament or a regulation . . . should be amended, repealed, or revoked, or that a new policy or Act or a new regulation . . . should be made or passed in order to protect the environment, may apply to the Commissioner for a review by the Minister responsible . . . 14. (1) Any resident of Canada or entity that believes that an Act of Parliament or a regulation . . . related to the environment has been contravened may apply to the Commissioner for an investigation of the alleged offence by the Minister responsible . . .

15. Bill C-469 Environmental Protection Action 16. (1) Every resident of Canada or entity may seek recourse in the Federal Court to protect the environment by bringing an environmental protection action against the Government of Canada for (a) failing to fulfill its duties as trustee of the environment; (b) failing to enforce an environmental law; or (c) violating the right to a healthy and ecologically balanced environment.

16. Entrenching Environmental Rights • Ontario EBR may be the highwater mark in terms of entrenching environmental rights • Ecojustice/David Suzuki Foundation are actively advocating a federal environmental bill of rights similar to Bill C-469 • Is this worth the effort? Should legislative advocacy efforts be more useful deployed elsewhere?

17. Public Participation Rights in Environmental Decision-making • Participation rights • Funding • Interested party determination • Citizen rights to sue and petition for investigations

18. Why Public Participation?(Sinclair, Doelle) • Individual empowerment • Ensure project meets public needs • Assigns legitimacy to project • Provides avenues for conflict resolution • Provides forum for local knowledge • Provides for more comprehensive consideration of factors in decisions • Recognizes legitimate role of affected public in decisions

19. Why Not Public Participation?

20. Public Participation in CEAA 2012 “AND WHEREAS the Government of Canada is committed to facilitating public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the Government of Canada and providing access to the information on which those environmental assessments are based”

21. Public Participation in CEAA 2012Purposes S. 4.(1) The purposes of this Act are . . . (d) to promote communication and cooperation with aboriginal peoples with respect to environmental assessments; (e) to ensure that opportunities are provided for meaningful public participation during an environmental assessment

22. Access to Information • Registry established to: • facilitate public access to records, includes Internet site and project files s. 78.(1) • be operated in a manner that “ensures convenient public access” s.78.(2) • Copies of documents to be “provided in a timely manner on request” s. 78.(3)

23. Public Participation Screenings • Public may provide “comments respecting the designated project within 20 days after the posting of the notice” s. 9.(c) • Agency must consider public comments in screening s.10.(a)(iii)

24. Public Participation Environmental Assessment • RA to publish notice of commencement of EA on Internet Site s.17 • EA to take into account “comments from the public” s.19.(1)(c) • RA to “ensure that the public is provided with an opportunity to participate in the environmental assessment” s.24 • RA to post draft report on Internet site, take into account public comments on draft report s.25

25. Public Participation in Panel Reviews • Public concerns a factor to be considered by Minister in determining public interest in referring project to review panel s.38.(2)(b) • Informal petition for panel review

26. Public Participation Panel Reviews • Review panel to ensure that “information it uses when conducting the EA is made available to the public” s.43.(1)(b) • Review panel to hold “hearings in a manner that offers any interested party an opportunity to participate in EA” s.34.(b) • Review panel to prepare report including summary of public comments s.43.(1)(d) • Hearings to be public s. 45.(1)

27. Interest Party Definition S. 2.(1) “interested party”, with respect to a designated project, means any person who is determined, under subsection (2), to be an “interested party” . . . S. 2.(2) One of the following entities determines, with respect to a designated project, that a person is an interested party if, in its opinion, the person is directly affected by the carrying out of the designated project or if, in its opinion, the person has relevant information or expertise: (a) in the case of a designated project for which the responsible authority is referred to in paragraph 15(b), that responsible authority; or (b) in the case of a designated project in relation to which the environmental assessment has been referred to a review panel under section 38, that review panel.

28. Interest Party Definition • Public participation narrowed to "interested parties", persons "directly affected by the carrying out of the Project" or having "relevant information or expertise“ • “Interested party” determinations to be made by CEAA panels, NEB, CNSC

29. Interest Party Definition S. 2.(2) • Why include such a provision in Act? • “One of the “following entities”? • “Directly affected by the carrying out of the project”? • “Has relevant information or experience” • How broad is the discretion inherent in “In the opinion of”? • Why define “interested party” in s.2.(1) as well?

30. Public Participation Funding Requirement • Agency required to “establish participant funding program to facilitate the participation of the public in the environmental assessment of designated projects referred to a review panel” s.57 • NEB, CNSC required to establish similar program for their projects s. 58

31. Ontario Environmental Assessment Act • Proponent duty to consult with “such persons as may be interested” in preparing terms of reference and environmental assessment s.5.1 • Public notice, inspection, comments on proposed terms of reference s. 6.(3.1), (3.5),(3.6) • Public notice, inspection, comments on environmental assessment s.6.3, 6.4

32. Ontario Environmental Assessment Act • No participant funding • Hearings are rare, exemptions are frequent

33. Alberta Energy Regulator • Formerly the Energy Resources Conservation Board • Quasi-judicial body, full-time members • Evidentiary rules, full opportunity to introduce and test evidence • No intervenor funding, except to local intervenors after hearings based on test of utility of intervention • Commitment to public participation suspect: has carried security investigations on intervenors

34. Does Public Participation make for better decisions? • A “qualified yes” (Rutherford, Campbell) • Public role in review panels “for the most part, effective” “positive impacts on the outcome of the EA” • Indicators: • References to public input in reports • Procedural changes prompted by public • Public scrutiny led to recommendations or changes, changes by proponent

35. Improving Public Participation (Sinclair, Doelle) • Integrate public participation throughout process • Allow for more collaborative techniques of participation (ADR, mediation) • Governments (not proponents) responsible for public participation • Accountability for how public input used • Government ensure that the public has basic tools to serve as guardian

36. Citizen Rights to Sue and Petition for Investigation • Canadian Environmental Protection Act, 1999 • Species at Risk Act • Auditor General Act • North American Agreement on Environmental Cooperation

37. Canadian Environmental Protection Act, 1999 • Right to request Minister to investigate an alleged violation • Citizen right-to-sue provisions • Whistle-blower protection • Right to request addition of a substance to Priority Substances List • Right to file notice of objection, request a Board of Review

38. Application for Investigation Species at Risk Act 93.(1) A person who is a resident of Canada and at least 18 years of age may apply to the competent minister for an investigation of whether an alleged offence has been committed or whether anything directed towards its commission has been done. 94.(1) The competent minister must acknowledge receipt of the application within 20 days after receiving it and . . . investigate all matters that he or she considers necessary to determine the facts relating to the alleged offence. (2) No investigation is required if the competent minister decides that the application is frivolous or vexatious.

39. Petitions Auditor General Act 22.(1) Where the Auditor General receives a petition in writing from a resident of Canada about an environmental matter in the context of sustainable development . . . the Auditor General shall make a record of the petition and forward the petition within fifteen days after the day on which it is received to the appropriate Minister . . . (2) Within fifteen days after the day on which the Minister receives the petition . . . the Minister shall send to the person who made the petition an acknowledgement of receipt of the petition and shall send a copy of the acknowledgement to the Auditor General.

40. Petitions Auditor General Act 22.(3) The Minister shall consider the petition and send to the person who made it a reply that responds to it, and shall send a copy of the reply to the Auditor General, within • (a) one hundred and twenty days after the day on which the Minister receives the petition from the Auditor General; or • (b) any longer time, where the Minister personally, within those one hundred and twenty days, notifies the person who made the petition that it is not possible to reply within those one hundred and twenty days and sends a copy of that notification to the Auditor General.

41. North American Agreement on Environmental Cooperation Article 14: Submissions on EnforcementMatters • The Secretariat may consider a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law, if the Secretariat finds that the submission: . . . (d) appears to be aimed at promoting enforcement rather than at harassing industry

42. North American Agreement on Environmental Cooperation Article 15: Factual Record • If the Secretariat considers that the submission, in the light of any response provided by the Party, warrants developing a factual record, the Secretariat shall so inform the Council and provide its reasons. • The Secretariat shall prepare a factual record if the Council, by a two-thirds vote, instructs it to do so.

43. Participatory Rights: What Good are they? • Various tools are available to members of public to demand participation in environmental decision-making • Such participatory rights are usually limited and confer few rights that are not superceded by broad governmental decision-making powers • The value (in terms of outcomes) in the exercise of participatory rights remains poorly documented