Are all Canadians equal? Not when it comes to the environment, says Nathalie Chalifour, who is trying to determine how Canada’s laws might better protect us against environmental discrimination.
A land teeming with unspoiled forests, criss-crossed by crystal-clear rivers, and blessed with clean, fresh air. That’s the image Canada likes to project to other countries but, in many cases, that idyllic picture is myth, not reality. “It’s often not true at all, especially for communities living next to large industrial complexes,” says Nathalie Chalifour, who specializes in environmental law.
Conditions are particularly dire for Canada’s First Nations. On reserves, for example, households are 90 times less likely to have access to clean drinking water than those elsewhere in the country, leaving native communities under the threat of water-borne diseases.
“Yet, under our Charter of Rights and Freedoms, all Canadians are supposed to be equal,” says Chalifour, who worked for several environmental organizations before joining the University of Ottawa’s Faculty of Law in 2002. “The Charter states that we all have a right to life and liberty and that we’re all protected against discrimination. The fact is, however, Canadians aren’t equal when it comes to living in a healthy environment.”
This disparity concerns Chalifour, an expert in environmental justice, which is still a largely uncharted field in Canada. “Environmental discrimination,” she explains, “happens when underprivileged individuals or marginalized communities are more exposed to pollution or suffer more from its harmful effects.”
In the United States, where environmental justice has garnered more research interest, studies have clearly shown, for instance, that toxic landfill sites are more often located in underprivileged neighbourhoods. “In Canada, the issue hasn’t been examined that specifically, but we know, of course, the problem exists. The Inuit, for example, are being hit harder by the impacts of climate change than are Canadians in the South of the country,” argues Chalifour.
As jurists, the members of Chalifour’s team, which includes University of Ottawa law professors Heather McLeod-Kilmurray and Sophie Thériault, want to determine if, and how, legal mechanisms can advance the cause of environmental justice.
In 110 countries, including France, Norway, South Africa and Argentina, the right to a healthy environment is enshrined in the constitution. Not so in Canada.
Indeed, a constitutional right isn’t a cure-all. “Still, my colleague David Boyd, who has written a paper on the subject, has shown that, overall, constitutional protection has a positive impact on the quality of the environment in these countries,” says Chalifour.
Though the Canadian constitution does not explicitly guarantee the right to a healthy environment, Chalifour believes such protection might be implicitly covered by the Canadian Charter of Rights and Freedoms. After all, Section 7 states that everyone has the right to life, liberty and security of the person. “You can defend the notion that Section 7 implicitly includes the right to breathe clean air and drink clean water,” she adds. The argument has actually been submitted in several cases to date in Canada, but the courts have always rejected it. Why? “Our team is analyzing the rulings to shed light on that,” says Chalifour.
Beyond Section 7, equality rights provided under Section 15 of the Charter could be cited by First Nations whose reserves have little or no access to drinking water while Canada’s cities, towns and villages virtually all do. “Strong arguments could be advanced if this went before the courts,” says Chalifour, who has published an article on that very topic.
Members of the First Nations haven’t yet taken the Canadian government to court over the issue of drinking water. However, in 2010, two members of the Aamjiwnaang community on the outskirts of Sarnia, Ont., home to 40 percent of the province’s petrochemical industry, filed a suit against Ontario’s Ministry of the Environment. Their claim: the government is violating sections 7 and 15 of the Charter by continuing to approve the construction of chemical plants that contaminate the community’s environment. “It’s the first case of this scale launched by an Aboriginal community,” notes Chalifour, who has been following proceedings since 2010. “If the Aamjiwnaang community members win, everyone’s right to a healthy environment will carry more weight across Canada.”
by Dominique Forget