Environmental Bills of Rights

1
Environmental Bills of Rights

• What are the weaknesses of CELP (Cdn Env Law
  Policy) observed to date?
• Why optimism about efficacy of law/rights outside
  the legal fraternity pessimism within?
• How high a priority should rights-reform be in
  terms of fixing CELP?

2
Critiques of Rights-based Approaches

• Empowering the wrong people
• Anti-democratic
• Tend to conceive of rights as claims against the
  state
• Tend to see rights in negative r.t. positive
  terms
• Tend to see rights in procedural r.t. substantive
  terms

3
Procedural vs. Substantive Approaches to EBR

• A somewhat fuzzy distinction
• Procedural fixing the common law (class
  actions private actions in public nuisance
  rules) enhancing standing, public participation,
  FOI
• Substantive recognition of a positive right to a
  clean environment PTR-based approaches

4
Procedural Rights I

• Most robust illustrations are Yukon and NWT
• Efforts to secure similar protections in other
  provs have generally failed
• Why?
• What are the strategic lessons from these
  failures?

5
The Yukon EBR

• PTR related provisions ss. 6, 7, 8(1)(b),10
• Statutory cause of action against polluters ss.
  8(1)(a), 9,10
• Right to trigger investigation s. 14, 22
• Private prosecution fee splitting s. 19
• Whistleblower protection s. 20

6
The Ontario EBR

• Public registry Office of Env Comm created s.
  5,6, 49
• Ministry oblig to prep SEVs s. 7,9
• Oblig on Ministries to consider SEVs s. 15
• Public notice and comment on policies, laws or
  regs that could affect env s. 15,16, 22, 35
• Right to apply to EC for review of law/policies
  to protect environment 61-73
• Right to investigation of violations s. 74
• Right of action to protect public resources ss.
  82-85
• Public nuisance doctrine fixed s. 103

7
CEPA (1999)

• Trigger for investigation of offences s. 17
• Right to bring action if investigation delayed or
  inadequate s. 22
• New Registry and creation of Office of Commish
  for Environment and Sustainable Development
  (CEDC) housed within Auditor Generals office

8
Substantive Rights

• Recognition that efficacy of procedural rights is
  limited
• What kind of positive rights?
• Are they implied in s. 7 or 15 of the Charter?
• Is a constitutional amendment a viable strategy?
• What about rights against private parties?
• To what extent does the division of powers fetter
  our choices?

9
The Public Trust Doctrine the next frontier?

• U.S. law see Illinois Central (1892) and Redwood
  (1974) cases (Hughes at 496-501)
• But see Green (Ont HC, 1973)
• Canfor (2004) (see CP at 233-244 see esp para
  81)
• connections to AGs juris dedication language
  in parks legislation etc