2 Principles of Canadian Environmental Law
Principles
There are some environmental principles that can be found in many international (Campbell-Mohn & Cheever, 2022) and Canadian environmental regulations. These principles may not be universally accepted as legal principles, but they are common themes in modern environmental acts and regulations here in Canada and around the world. It is worthwhile to understand the themes as follows:
Polluter Pays
The principal concept of polluter pays, is that whoever created a mess, like environmental contamination, must clean it up or pay someone else to complete the clean up. For example, if a corporation has a spill, it must clean the spill up to legislated standards. The taxpayer or neighbours should not have to pay for the cleanup (Clark, 2012).
When a property is sold, a buyer should check for liabilities. The cost of cleanup is also sold with the property, unless in the contract the liability is specifically retained by the current owner.
The origins of the concept of polluter pays might be found from the significant legacy environmental contaminations that governments have found themselves inheriting like the Giant Mine in the Northwest Territories.
Consultation
Many environmental acts have a core principle of the obligation to consult with the general public on matters of environmental concern in legislation. On June 1, 2022 a quick search of the Government of Canada website showed they had 806 open consultations, many on environmental issues. (Government of Canada, n.d.)
This core principle is in addition to the rights of Indigenous peoples to be consulted as defined in the Canadian constitution and historical court cases.
Sustainable Development
Sustainable development can be defined as the act of doing today with view to keeping future generations whole. Future generations should have access to resources, should not have to clean up historical contamination and should be able to have an equally productive lives as we have today.
Sustainable Development was discussed and widely disseminated as a principle by the United Nations report “Our Common Future” also commonly known as the Brundtland Report (World Commission on Environment and Development, 1987). Our Common Future defined sustainable development as “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
Acts and regulations are often written with sustainable development in mind so that future generations do not inherit liabilities or have exhausted resources.
Precautionary Principle
In the absence of complete scientific information, the precautionary principle suggests that actions are taken to prevent a problem.
In many situations, science does not have exact answers nor can it explain completely the environmental issue. The Precautionary Principle means in the absence of exact answers, regulations should be written to cautious and preventative.
An example of the precautionary principle in an international treaty is the United Nations Framework Convention on Climate Change. In it the world commits to “ act in the interests of human safety even in the face of scientific uncertainty.” (UNFCCC, n.d.)
Transparency
Decisions should be clear for all to understand why the decision was taken. Sometimes this is confused with consensus. Whereas consensus means that everyone will agree to a large extent, transparency means the reasoning is available. Transparency does not mean agreement.
Transparency means that the laws for environment are publicly available. For example Environment Canada and Climate Change lists all the laws it administers and the details are available on the Justice Canada website (Government of Canada, n.d.).
Transparency means that everyone understands why, but does not mean that everyone agrees. The author believes this principle of transparency can be a bit tricky to uphold.
Ecosystem Approach
Many early regulations were written to address a problem like sewage or waste. Modern environmental understanding is now that ecological systems are interconnected. Problem solving should take a bigger picture ecosystem approach.
An example of an ecosystem approach is considering the ocean’s impact on climate and climate’s impact on the ocean. The classic use of ecosystems is in regulations that govern biodiversity. For example the UK’s Houses of Parliament: Parliamentary Office of Science and Technology defines an ecosystem approach as “makes explicit the link between the status of natural resource systems and ecosystem services that support human well-being.” (Houses of Parliament, 2012)
Science Based Decisions
This principle suggest that the decisions made by regulations are guided by sound science. The principal is based on the assumption that sound science is available to understand an environmental or health issue (Government of Canada, n.d.).
The author believes this principle can also be bit tricky for politicians, many of whom do not have science backgrounds.
Due Diligence
In many environmental acts a defense of due diligence is allowed under certain circumstances. Due diligence is essentially based on the idea that accidents happen, and in some circumstances they would be difficult to prevent.
For an entity to use due diligence as a defense, the entity would need to prove that they did everything reasonable to prevent the incident from happening. So, what is reasonable? That changes with time and situation. The test can involve many different considerations:
- Awareness
- Training
- Budgets
- Actions
- Checking
- Supervision
- Auditing
- Management engagement
- Best practices
- Emergency preparedness
- Policies and procedures
It is important to note these are all proactive activities. They must be in place prior to an event happening. So in a court you would need to prove you were doing these things prior to an event happening. If you search the internet, you will find offerings of advice for due diligence. Many are trying to sell something. There is no magic to due diligence; it is about having sound management systems in place and using them.
The Intersection of Sex and Gender with other Identity Factors
It might be arguable whether The Intersection of Sex and Gender with Other Identity Factors is a universal environmental principle, but the Canadian federal government does put this clause in the updates to many environmental acts and regulations. Again, arguably, the exact meaning is not yet fully understood. An example of the clause is found in the federal Impact Assessment Act – S.C. 2019, c. 28, s. 1 (Section 22)
Perhaps one way of looking at this clause is to consider if any group of peoples is disadvantaged by the rules or the results of the rules.
A Right to a Healthy Environment
Perhaps a trend in environmental legislation? The right to a healthy environment is sometimes discussed as an environmental bill of rights. This concept is relatively new, perhaps not tested in the courts yet extensively, so perhaps its definition is still undergoing its shape formation. In Canada, perhaps the most visible mention of this is in the act that is currently (sic January 2023) before the House of Commons to modify the Canadian Environmental Protection Act 1999 to include a component on the concept of a right to a haelthy environment. According to the federal government they are or will “The Government of Canada recognizes that every individual in Canada has a right to a healthy environment, and that the Government has a duty to protect that right when administering CEPA.” (Canada, 2022)
Section Conclusion
Many Canadian acts have one or more of these principles defined or included in their wording. The concepts can then influence what and how regulations are written under the acts.
Learning Question
- Open an act and try to find one of the above principles. They may be worded differently.
- Open the Impact Assessment Act and find the section requiring the gender based analysis.
- Take one of the discussed principles and write out a definition of what the concept means to you personally.
References
Campbell-Mohn, C., Cheever F. (2022.) Environmental law. in Britannica, Retrieved from https://www.britannica.com/topic/environmental-law
Canadian Environmental Protection Act, 1999, SC 1999, c 33
Canada. (2022). Government of Canada delivers on commitment to strengthen the Canadian Environmental Protection Act, 1999 and recognizes a right to a healthy environment. Retrieved from https://www.canada.ca/en/environment-climate-change/news/2022/02/government-of-canada-delivers-on-commitment-to-strengthen-the-canadian-environmental-protection-act-1999-and-recognizes-a-right-to-a-healthy-enviro.html
Clark D, (2012). What is the ‘polluter pays’ principle?. The Guardian, Retrieved from https://www.theguardian.com/environment/2012/jul/02/polluter-pays-climate-change
Houses of Parliament: Parliamentary Office of Science and Technology (2012) The Ecosystem Approach. in the Post Note. Retrieved from https://www.parliament.uk/globalassets/documents/post/postpn_377-ecosystem-approach.pdf
Government of Canada (n.d.) Consulting with Canadians, retrieved on June 1, 2022 https://www.canada.ca/en/government/system/consultations/consultingcanadians.html
Government of Canada (n.d.). Acts and Regulations; Environment Canada and Climate Change retrieved on June 1, 2022 from https://www.canada.ca/en/environment-climate-change/corporate/transparency/acts-regulations.html
Government of Canada (n.d.). Science-based decisions at Health Canada retrieved on June 1, 2022 from https://www.canada.ca/en/health-canada/corporate/mandate/regulatory-role/science-based-decisions-health-canada.html#s1
Impact Assessment Act – S.C. 2019, c. 28, s. 1
UNFCCC (n.d.), Climate Change Information Sheet 18 retrieved from https://unfccc.int/cop3/fccc/climate/fact18.htm#:~:text=The%20precautionary%20principle%20says%20that,of%20serious%20or%20irreversible%20damage.
World Commission on Environment and Development (1987), Our Common Future, Oxford University Press, https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf
