For the first time in the country’s history, the federal government is recognizing Canadians’ right to a healthy environment. 

On June 13, a series of amendments to the Canadian Environmental Protection Act (CEPA) became law when Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act, received royal assent. It’s the first update to CEPA since the Act’s passage in 1999, and a step forward on protecting Canada’s environment, according to advocates.

“It’s a big deal,” said Ecojustice program manager Elaine MacDonald. “It kind of catches Canada up to 160 UN states or countries around the world that have already recognized the right to [a] healthy environment.” 

What does the right mean for Canadians?

The right to a healthy environment is one of a series of provisions proposed to CEPA — Canada’s primary means of regulating toxic substances — by Patrick Weiler, MP for West Vancouver-Sunshine Coast-Sea to Sky Country. 

As a result of Bill S-5, CEPA’s preamble now “recognizes that every individual in Canada has a right to a healthy environment.”

Weiler is quick to specify that the language in the bill isn’t just restricted to a “healthy” environment — instead, the amendment defines the new right as being to a “clean, healthy, sustainable” environment. 

“We purposely didn’t define clean, healthy, and sustainable — or rather, my amendment didn’t specifically define that — because it is something that I think will continue to evolve over time,” said Weiler.

Weiler expects that definition will become more “ambitious” in protecting the right to a healthy environment, in part due to the inclusion of a non-regression clause in the legislation. 

“What it says is, is what if you’re going to alter [CEPA], you can only increase the stringency of the environmental protections,” said Weiler. “And that’s important too, just to make sure that we’re continuing to make progress on this, and really to insulate it from future governments not taking it seriously.”

How long has the amendment been in the works?

CEPA’s right to a healthy environment isn’t something that appeared overnight. It’s been the result of concentrated efforts from a wide range of environmental activist groups and members of government. 

“Folks have been working on this for decades,” said MP Weiler. “So when something like this happens, it’s something you really get to celebrate — all the work that’s gone in for such a long time.” 

In 2014, the David Suzuki Foundation launched the Blue Dot Movement, aimed at getting the right to a healthy environment enshrined in Section 7 of the Canadian Charter of Rights and Freedoms. MacDonald says that enshrining the right in the Charter or the Constitution would have been a big ask. 

“There was never really a door open to constitutional change,” said MacDonald. “There were discussions in the early days about what that would look like to try and run a campaign like that, and I think it was pretty quickly determined that that would be pretty difficult for small environmental groups.”

The Blue Dot campaign was followed by a 2017 parliamentary review of CEPA that recommended 87 changes to strengthen the 1999 act, including the right to a healthy environment.

In April 2021, Bill C-28, An Act to amend the Canadian Environmental Protection Act, 1999, was introduced. It didn’t have a chance to pass into law before the legislative session was ended in the run-up to the 2022 federal election.

A new version of the CEPA amendment was introduced in the senate in November 2022. Now, the right to a healthy environment has been passed into law.

What’s missing from the updated CEPA?

Despite the right to a healthy environment being a step in the right direction, there’s still work to be done, according to Weiler and a number of advocate groups. 

For J. Kevin Barlow, at Sierra Club B.C., the “reasonable limits” to which Canadians’ right to a healthy environment is subject, including “social, health, scientific and economic factors” is worrying. 

“So basically, that gives them a way out to say, ‘well, you know, this is for the good of the greater society,’” said Barlow. “So we’re going to ignore your rights.”

“And a lot of times that happened to the Indigenous community, who were in remote areas where mining and that type of thing would sometimes cause pollution, and then people would start getting cancer.”

That’s not the only missing piece. Since 1999, CEPA has allowed citizens to seek remedies against the dumping of toxic substances into their environments through the pursuit of Environmental Protection Actions. But advocates say there are still too many barriers to citizens successfully filing an Action against the government — and MP Weiler agrees. 

“Section 22 [of CEPA] allows for a member of the public to basically hold the government accountable for doing its job with this legislation,” said Weiler. “But because of the way that it’s written, it hasn’t been workable, and it’s never been used.”

MacDonald lists requisite government investigations and the threshold of “significant harm” as being prohibitive to timely remedies to Canadians’ toxic exposures. 

“So those were some of the barriers we’re wanting to see amended or removed, in order to make it easier for people to be able to go to court,” said MacDonald. 

What’s next for CEPA?

Both Weiler and MacDonald suggested a second set of CEPA-modernizing amendments was to come. But, for now, there’s only one concrete timeline for the right to a healthy environment.

As of June 13, the day Bill S-5 became law, the federal government has two years to figure out how the right to a healthy environment will be implemented under CEPA. That means two years of consultations with Canadians, including Indigenous communities, provinces, non-governmental agencies and business partners. 

Barlow says Canadians who are invested in having a healthy environment should learn how they can participate in the CEPA process. 

“There will be general public hearings,” said Barlow. “Really find a way of going, and listening, and going in with an open mind and trying to really understand what’s going on and how we can have greater protections because that’s where we’ll find solutions.”