Taking the torch: NDP’s Cannings preparing to pitch his green bill

By Palak Mangat January 19, 2022

As legal experts emphasize a sense of “urgency” in parliamentarians considering a private member’s bill aiming to enshrine the right to a healthy environment into federal law, NDP MP Richard Cannings is optimistic he will get cross-party buy-in.

Speaking to Parliament Today about his Bill C-219, An Act to enact the Canadian Environmental Bill of Rights, Cannings noted there have long been calls to ink the right into the charter, but a constitutional change “is beyond what you can do in a private member’s bill.”

The Liberals took up the Dippers’ calls to move toward aligning federal laws with the United Nations Declaration on the Rights of Indigenous Peoples, an effort spearheaded by then-NDP MP Romeo Saganash in 2016.

Much like that blueprint, Cannings, the party’s emergency preparedness critic who focuses on climate change resilience, said his bill is a “high level” one that has been gaining momentum in recent years.

“It’s a right in 170-odd countries around the world. Why isn’t it a right in Canada? We have a bill of rights that, for some reason, is silent on that,” he said.

While the recent blueprint was tabled on December 16, the same day the House rose for the holiday break, its origins stretch back more than a decade.

Cannings credited former NDP MP Linda Duncan for her efforts, which kicked off in 2009, to usher a previous edition through the committee stage in the subsequent years, before it died on the order paper upon the spring 2011 election.

Records show the environment committee held more than a dozen meetings on the matter during that Parliament, which Cannings said he is now combing through as he prepares to make his pitch.

NDP MP Richard Cannings being sworn in. (Twitter/Richard Cannings)

A biologist by training, he said he’s spoken to Duncan about the legislation “in fairly general terms,” and it remains virtually unchanged from the previous edition. “When she retired, she asked me as soon as I got elected last fall [to table it], and I was very happy to get that impetus from her.”

Among the rights such a blueprint would enshrine are those to “reasonable, timely and affordable access to information” about the environment; “effective, informed and timely public participation” avenues; and the ability to bring any matter on the file before courts or tribunals, as well as request the review of any federal act.

Cannings acknowledged he is in the “early days” of discussing the legislation, when pressed whether he sees the bill resulting in specific types of cases coming forward. But he remains thankful to his lucky stars for getting it on the books last month.

“I was fortunate enough to get a reasonably good number in the lottery, 47 or something, so I think it’s fairly clear we’ll start debate on this before the summer recess,” Cannings said. ”It’s always up in the air how long a minority government will last … but I know there’s people in every party who support this and would hopefully be champions within their caucuses.”

The MP is hoping to get buy-in for stronger language on the right to a healthy environment, which he argued is “paramount,” noting the Liberals have vowed to update the Canadian Environmental Protection Act. Then-environment minister Jonathan Wilkinson tabled Bill C-28 in April 2021, though it died on the order paper after the election call.

That text ordered the feds to recognize that each person in Canada has a right to a healthy environment but that it must “balance that right with relevant factors” — which Cannings took to mean “social and financial considerations,” showing the need for the government to commit to “stronger wording” around the right that needs to be “considered above others.”

Wilkinson’s successor, Steven Guilbeault, is instructed to “enact a strengthened” edition of the act in his mandate letter and recently said a “similar version” will “happen early in the New Year” upon the chamber’s January 31 return.

Last fall’s Liberal platform, which came amid promises to move faster on climate action, also promised to “pass” that and “recognize” the right for the first time in federal law.

Provisions could help curb ‘strategic litigation,’ says prof

Dayna Scott, who holds the research chair in environmental law and justice at York University, said that Liberal step signals there is “momentum” towards “some form of constitutionalization of environmental rights,” while comparing Cannings’ bill to a “quasi-constitutional statute.”

While it does not explicitly reference climate change, the last several years of extreme floods and heat waves make it clear the bill comes with a similar “urgency,” she added.

Scott pointed to examples where Indigenous communities hit hard by pollution have argued that section seven of the charter, which promises that “everyone has the right to life, liberty and security of the person,” folds in a right to environmental protection.

But “that hasn’t to date yet been accepted by a court,” she said, noting such a “declaration” had been sought when Grassy Narrows First Nation took Ontario to court in 2015. The First Nation argued that mercury levels in local fish would harm those in the community through their food.

The province also came under fire when two members of the Aamjiwnaang First Nation argued authorities did not take into account the “cumulative effects of pollution” from industrial activity for the community, which sits near Sarnia’s Chemical Valley.

That case was withdrawn, with others “discontinued,” noted Scott, but Cannings’ bill could “get past that hurdle more quickly without requiring groups that don’t have a lot of resources to engage in strategic litigation, to have to go through the court process to get that basic recognition.”

While the bill is not retroactive, “it could change the situation on the ground for those groups in their negotiations with environmental protection agencies” in the future, leading to a “shift in the balance of power,” said the professor.

University of Calgary law professor David Wright likened the NDP’s efforts to “putting a thumb on the scale of environmental decision making in favour of the environment.” (U of C)

Bill complements other provincial efforts

David Wright, a law professor at the University of Calgary who once worked with the federal commissioner of the environment, added that until the bill potentially becomes law, “there’s a tool in the environmentalists’ toolkit that is sitting there unused and unavailable.”

“Environmental degradation and a lack of enforcement happen everyday across the country, and human health and species health suffer because of it,” he said. “There’s always a strong argument to be made for urgency.”

Wright noted with the bill applying to federal sectors only, such as the marine industry, cross-border pipelines and fisheries, it comes with a “significant limitation,” even though some regions, like the territories and Ontario, have outlined similar rights in other pieces of legislation.

Wright highlighted section five of Cannings’ bill as being “loud and clear” in its direction to the courts on interpreting environmental law principles, which “without this statute, are kind of an unknown in interpretive value and weight when it comes to any given courts considering an issue.”

He likened the NDP’s efforts to “putting a thumb on the scale of environmental decision making in favour of the environment.”

It’s a notion Cannings agreed with, noting while there are different government players and agencies — be it the auditor general, environment commissioner or ambassador to climate change — that provide accountability or “redress” that people can seek, “this highlights that overall right to everybody.”

“People aren’t going to be throwing CEOs in jails or fining companies millions of dollars. This is more about repairing environmental damage, stopping it before it happens,” Cannings said.

Wright commended the bill for its efforts to pare back any “limits” on who can bring forward a matter about environmental protection to tribunals or courts, as a section outlines that any resident can do so “regardless of whether or not they are directly affected” by it.

The lawyer noted that aims to usher in tweaks to the “standings test,” which generally dictates that applicants need to be directly impacted by the outcome of the case or be otherwise well situated to bring it forward in the pursuit of public interest.

“One thing that this act does quite powerfully is it removes those barriers and creates this quite wide gateway for citizens to get involved,” Wright said.