Bill S-5 is federal legislation that amends the Canadian Environmental Protection Act (CEPA). While the amendments have received some criticism for various shortfalls, many are noting the significance of the amendments which recognize that all Canadians have a right to a healthy environment.
Dr. Neil Craik, law professor in University of Waterloo’s School of Environment, Enterprise and Development, is an expert in international and Canadian environmental law. The University of Waterloo in Waterloo, Ontario is a leading global innovation hub with more than 41,000 students, home to the world’s largest co-op education talent pipeline and to game-changing research and technology.
Professor Neil Craik, law professor at the University of Waterloo’s School of Environment, Enterprise and Development. (Credit: University of Waterloo.)
The university recently released this Q and A with Professor Craik:
Is the right to a healthy environment a new constitutional right?
Bill S-5 amends ordinary legislation and is not a constitutional right. It does not bind provincial governments and can be amended or revoked by subsequent governments. In effect, Bill S-5 requires that where the government is making decisions or exercising other powers under CEP, it must do so in such a manner that protects the rights of Canadians, and vulnerable populations, to a healthy environment. The other important aspect is that the obligation to protect environmental rights falls on the Government of Canada, but not private individuals.
How is Bill S-5 likely to change government policy and practices concerning the environment?
While the right to a healthy environment only directly impacts decisions made under CEPA, this Act is a critically important element of the federal government’s regulatory framework for protecting the environment. CEPA provides regulations governing a wide range of environmental issues, including toxic substances and other pollutants, such as carbon dioxide emissions, marine pollution, hazardous waste and biotechnology. In administering CEPA in these areas, Bill S-5 provides the basis for the public to hold the Government accountable for its failure to adequately protect environmental conditions. An important limitation on the right to a healthy environment is that the legislation recognizes that this right “may be balanced with relevant factors, including social, economic, health and scientific factors”. This caveat acknowledges that the right to a healthy environment is not absolute but must be balanced against other public priorities.
How will Bill S-5 be implemented and enforced?
The are many unresolved questions in Bill S-5, including how the government will define the precise content of, or standards pertaining to, the right to a healthy environment. The legislation requires the Minister of Environment and Climate Change to develop an implementation framework that is intended to elaborate on key principles and on how the government intends on balancing the right to a healthy environment against other factors. The success of the legislation in protecting the environmental rights of Canadians will depend in large measure on the implementation framework. Bill S-5 does not specify whether the implementation framework itself will be formulated as a binding instrument, such as a regulation, or as a guideline, nor does it specify how the right to a healthy environment may be enforced by individuals or vulnerable communities.
For further information on Bill S-5, click here.
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