Why Legislate Environmental Rights in New Brunswick?

May 10

May 10, 2024

On December 7, 2023, Bill No. 19: An Act Respecting the Right to a Healthy Environment was introduced to the Legislative Assembly of New Brunswick. Tabled as a Private Member Public Bill by David Coon of the provincial Green Party, the Bill proposes to recognize a substantive human right, shared by all persons living in New Brunswick, to a healthy and ecologically balanced environment. If enacted, the Bill would implement that substantive right by expanding New Brunswickers’ procedural environmental rights.

What Are Legislated Environmental Rights?

Legislated environmental rights are rights set out in written laws enacted by governments. They can appear in environmental bills of rights, or they can appear in other written environmental laws.

Some legislated environmental rights are substantive rights. These rights, like other human rights, are fundamental rights that are enjoyed equally by everyone. They bear directly on human life and wellbeing, which are shaped intrinsically by the health of the environments in which we live. The human right to a heathy environment and human right to clean drinking water are examples of substantive environmental rights.

Section 7 of Bill No. 19 proposes to recognize that every person living in New Brunswick has a substantive right to a healthy and ecologically balanced environment. The Bill would also oblige the Government of New Brunswick to protect that right, with special emphasis on protecting the rights of children and other vulnerable populations.

Some other legislated environmental rights are procedural rights. Procedural rights are sets of rules and tools that can be used to implement and enforce substantive rights. The right to participate in an environmental assessment and decision-making processes and the right to access environmental information are examples of procedural environmental rights. Procedural rights are important features of environmental law regimes because they enable members of the public to take part in regulatory processes that impact substantive environmental rights, and they can also allow members of the public to take action when substantive environmental rights are threatened.

Section 9 of Bill No. 19 proposes to give every resident of New Brunswick a right to access environmental information upon request in a reasonable, timely, accessible, and affordable manner. Section 11 of the Bill would require the provincial Minister of Environment and Climate Change to establish a public registry that houses environmental information, including proposals, decisions, actions, and events. The right to access information facilitates public accountability, because it allows members of public to understand and scrutinize government decisions and identify when substantive environmental rights may be violated.

The right to challenge government decisions is another important type of procedural right. If violations of substantive environmental rights occur, or may occur, members of the public need to have a way to respond. Section 22 of Bill No. 19 would give every resident of New Brunswick a right to seek judicial review (i.e, review by a court) of government decisions that affect residents’ substantive rights to a healthy and ecologically balanced environment.

The right to participate in compliance and enforcement is a third important type of procedural right. This kind of procedural right can provide members of the public with the right to initiate investigations of suspected violations of environmental laws, as well as the right to be informed of the progress and outcome of investigations. Section 23 of Bill No. 19 would grant rights of this kind.

Why Are Legislated Environmental Rights So Important?

Many Canadians may be surprised to learn that they do not have an automatic right to a clean and healthy environment. As many members of the public realize when they find themselves facing actual or potential environmental harms, it can be very difficult—often practically impossible—to address such harms without having substantive and procedural environmental rights set out in legislation. That is why recognizing environmental rights in laws like New Brunswick’s Bill No. 19 is so important.

Many of the environmental harms that are occurring locally and globally today—such as biodiversity loss, climate change, ecological destruction, and pollution of air and water—are harms that diminish human wellbeing, quality of life, and the sustainability of our communities. However, they do not necessarily rise to the level of causing actual physical injury or depriving persons of life, liberty, or security. It is therefore difficult to address such harms under Canada’s common law or constitutional law, as those legal regimes exist today.

Canada’s common law (the law that comes from decisions made by courts) generally only recognizes legal wrongdoing when an environmental harm affects property rights or causes actual physical injury to someone. The situation is similar under Canada’s constitutional law (the law that interprets the rights and responsibilities enshrined in Canada’s constitution), which does not offer much help unless environmental harms would deprive one or more persons of life, liberty, or security, are demonstrably discriminatory, or violate protected Aboriginal or treaty rights.

When provincial and territorial governments enact legislation like Bill No. 19 to recognize substantive human rights to a healthy and ecologically-balanced environment, the legal landscape can change significantly. Although legislated environmental rights will not necessarily enable members of the public to prevent or stop all activities that have negative environmental effects, they create more room for legal recognition of environmental harms that diminish human wellbeing, quality of life, and the sustainability of our communities.

Global and Local Movements to Win Legal Rights to a Healthy Environment

Global and local movements to win legal rights to a healthy environment have been underway and making steady progress for many years. The 1972 United Nations Conference on the Human Environment at Stockholm—and the ground-breaking Declaration that emerged from it—marked the first time that the global community drew an explicit connection between environmental health and human wellbeing.[1] However, it took another fifty years for the United Nations General Assembly to declare formally that access to a clean, healthy, and sustainable environment is a human right.

In Canada, a substantive human right to a healthy environment was not recognized under federal law until 2023, when amendments to the Canadian Environmental Protection Act, 1999 introduced new language recognizing that “every individual in Canada has a right to a healthy environment”. By comparison, the governments of two Canadian provinces and all three territories were in the avant-garde: human rights to a healthy environment had previously been recognized in the Quebec Charter of Human Rights and Freedoms and Environment Quality Act and the Yukon Environment Act (which recognize both substantive and procedural environmental rights), as well as the Northwest Territories Environmental Rights Act, the Nunavut Environmental Rights Act, and the Ontario Environmental Bill of Rights (which focus on procedural, not substantive, rights).

In Atlantic Canada, human rights to a healthy environment have not yet been established in provincial legislation. There have been attempts in Nova Scotia and Prince Edward Island, in each case through the introduction of private member’s bills that, ultimately, did not make it all the way through the legislative process. East Coast Environmental Law has been working to advance human rights to a healthy environment in the region for more than a decade, including by facilitating environmental rights working groups in New Brunswick, Nova Scotia, and Prince Edward Island and developing draft legislation to serve as model bills. We strongly support the development of legislation that would recognize substantive and procedural environmental rights in Atlantic Canada, and we hope that, someday soon, all four Atlantic Canadian provinces will have environmental bills of rights in place.

New Brunswick’s Bill No. 19 is the latest in a series of attempts to give Atlantic Canadians the benefit of environmental rights that have been enshrined in law elsewhere. We look forward to the Bill being debated by MLAs in Second Reading, and we hope that it will pass through to the Committee stage, where its contents can be studied and discussed in more detail.

Footnote

[1] Meinhard Doelle, From Hot Air to Action? Climate Change, Compliance and the Future of International Law (Toronto: Thomson Carswell, 2005) at page 256.