Bill S-5 amends the Canadian Environmental Protection Act, 1999 (CEPA). This article highlights a key feature of that Bill: the right to a healthy environment.

The Bill proposes to amend CEPA’s preamble to recognize that “every individual in Canada has a right to a healthy environment as provided under this Act.” Preambles are interpretive aids that provide important context and policy objectives, but fall short of creating or protecting substantive legal rights. Recognition of a right to a healthy environment arguably marks a shift in policy from measures aimed at preventing or remedying environmental harm to a rights-based framework in favour of environmental health.

However, Bill S-5 proposes cautious implementation of this through the following proposed requirements. The federal government would be required:

• In the administration of CEPA, to “protect the right of every individual in Canada to a healthy environment as provided under this Act, subject to any reasonable limits”;
• To develop an “implementation framework” for how the right will be considered in CEPA’s administration, including such things as “principles of environmental justice” and the “principle of intergenerational equity,” as well as the “reasonable limits” to which the right is subject based on social, health, scientific, and economic factors; and
• To carry out research, studies, or monitoring activities supporting the right to a healthy environment.

These proposed amendments are not the first appearance of the right to a healthy environment in Canadian law. Ontario, Nunavut, Yukon, and the Northwest Territories all have environmental legislation with similar declarations in their respective preambles. In Ontario’s Environmental Bill of Rights, reference to the right is then limited to its legislative purpose. In Nunavut, Yukon, and the Northwest Territories, the legislation provides for a complimentary public interest statutory right of action to protect the environment from harm or impairment. The Northwest Territories’ Environmental Rights Act further requires a “Statement of Environmental Values,” which is a policy that applies to all decisions and actions by that government that may have a significant impact on the environment. Only Yukon’s Environment Act elevates the right from its preamble to a specific enabling provision, stating “[t]he people of the Yukon have the right to a healthful natural environment.” In addition, Quebec’s Charter of Human Rights and Freedoms expressly protects the “right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law.”

Bill S-5 does not propose any substantive provision that provides for the right to a healthy environment, as in Yukon and Quebec. Nor does it provide an independent means of enforcing that right, such as through the statutory causes of actions in Canada’s North. Instead, it requires the federal government to consider the right to a healthy environment in the administration of CEPA through an express policy framework, similar to the Northwest Territories.

Without expressly providing for an independent right to a healthy environment, the impact of Bill S-5 is more limited, and litigants may have to continue to rely on Charter arguments to seek its realization (e.g., La Rose v. Canada). However, the proposed amendments may provide another basis to judicially review CEPA-related decisions.

The federal recognition of a right to a healthy environment is arriving on the heels of significant international recognition. In October 2021 and July 2022, first the UN Human Rights Council and then the UN General Assembly recognized the right to a “clean, healthy and sustainable environment.” With such momentum internationally, and growing domestic recognition, it will be difficult to ignore the right to a healthy environment in Canada as it increasingly becomes part of our legal tapestry.

At time of writing, Bill S-5 has been referred to the committee stage after second reading by the House of Commons.