On September 1, 2015, the Canadian Environmental Law Association (“CELA”), on behalf of Grassy Narrows First Nation and members of the nation, filed an Application for Judicial Review of a pair of decisions made by the Ontario government (“Ontario”) with respect to how an authorized forest management plan (“plan”) will impact their constitutional rights. Members of the Grassy Narrows First Nation fish in the English-Wabigoon river system and have a traditional diet that relies heavily on area fish. Since the 1960s, there have been concerns over mercury poisoning in the watershed, including fish found with high levels of the mercury and members frequently being diagnosed or exhibiting symptoms of mercury poisoning.
The Applicants allege that the approval of clearcut logging under the plan without the requirement of an individual environmental assessment (“IEA”) increases the risk Grassy Narrows First Nation members face of additional mercury poisoning. They alleges that clearcut logging “will trigger new releases of mercury to the watershed, increase the accumulation of mercury in the food chain, and prolong and exacerbate the existing mercury problem.” For this reason, the Applicants plead the decisions made by Ontario to authorize the plan and waive the requirement of an IEA infringes their section 7 Charter rights, which relates to:
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.
I am interested in constitutionalizing environmental protections under Charter, and have recently published an academic article in the Journal for Environmental Law and Practice that explores avenues to do so in the context of heavy oil development in Peace River, Alberta. In the paper, I also devote time to setting out the theoretical basis for bridging the precautionary principle and section 7 of the Charter. From my perspective, the precautionary principle is congruent with section 7 of the Charter of Rights and Freedoms and provides the basis to entrench this foundational environmental principle in the Canadian Constitution.
This post outlines that theory and why entrenching the precautionary principle is an objective worthy of pursuit. Entrenching the precautionary principle in the constitution will add greater substance to Canadian environmental law, provide a clearer avenue for impacted parties to obtain redress, and realize the international and domestic commitments Canadian governments have made to implement the principle in environmental decision making.
This argument proceeds in three parts. First, I define the precautionary principle. Then, I outline section 7 of the Charter of Rights and Freedoms with a focus on how the provision encompasses protections for both actual and prospective harms. I conclude by explaining the consequences of elevating the principle to constitutional status.
- Precautionary Principle
There are many competing definitions of the precautionary principle. Generally, the principle can be described as follows: the duty to not approve or engage in activity that causes serious adverse environmental impacts, even if there is no certainty that these adverse impacts will materialize. In other words, the precautionary principle protects against prospective harms that may or may not occur, though a real risk exists.
- Section 7 of the Charter of Rights and Freedoms
Section 7 protects against actual deprivations of the life, liberty and security of the person interests of individuals by the state, as well as the risk of deprivation. For instance, in Canada v PHS Community Services Society, Canada v Bedford and Canada v Carter, the claimants did not allege actual section 7 deprivations. Rather, they alleged that the deprivations may occur in the future. It was the risk of harm that flowed from when Insite closed, sex workers had a bad date or when the terminally ill were physically unable to end their own lives. None of these events had yet transpired in these cases or formed the basis of the claims, yet the court still found that the state infringed the claimants’ section 7 rights.
In fact, causation under section 7 has developed in a manner that is consistent with its aim of protecting against actual and prospective harms. Claimants are not required to demonstrate direct harm to establish a section 7 violation. They can demonstrate a violation by showing that: (1) they belong to a class of persons, (2) the class of persons is more likely experience a deprivation due to the state’s (in)action, and (3) the claimant faces a real risk of harm due to their membership in the class of persons. Causation allows section 7 to encompass both actual and prospective harms.
- Consequences of Elevating the Precautionary Principle to Constitutional Status
There are three potential consequences of elevating the precautionary principle to constitutional status that make pursuing this objective valuable:
(A) Informs Environmental Assessments and Approvals: constitutionalizing the precautionary principle provides substance to environmental assessments, and sets out a clear threshold that must be met for approvals to occur that is beyond the reach of governments. The substance and thresholds of environmental assessments and approvals is currently opaque, different depending on projects and jurisdictions, and continually subject to the whims of the government. This provides a framework that is clear and unchanging, setting out the legal rights and obligations of all parties.
(B) Provides a Clear Mechanism for Impacted Individuals to Challenge or Review Environmental Approvals: recognizing the constitutional status of the precautionary principle will provide an avenue for impacted individuals to challenge or review environmental approvals. Section 7 can be raised anytime an impacted individual believes that state activity or sanctioned activity creates real harm or the risk of harm. It also provides clarity on the type of evidence that must be marshalled in such situations.
(C) Provides the Basis to Realize the Precautionary Principle in Canadian Law: Canada has committed to implementing the precautionary principle in various international treaties and protocols, and the concept is frequently invoked in the preambles of domestic statutes and policies. However, these commitments and invocations have not been realized, as there is no basis to enforce international treaties domestically and statutes do not give rise to causes of action to ensure the principle is adopted. Section 7 provides the space to recognize the precautionary principle in a manner that is entirely consistent with the progression and development of Canadian jurisprudence.
From my perspective, the jurisprudence has developed around s. 7 to allow for the entrenchment of the Precautionary Principle in Canadian constitutional law. The consequences of such a development would have significant impact on environmental assessments and policy in this country. All that is required is for litigants to make this argument on a strong set of facts. One hopes that Grass Narrows First Nation does, and that this case will bridge the Precautionary Principle and Canadian constitution.