VI Legislation and Tribunal Hearings: Procedural Issues
For many countries who recognize the right to a healthy environment, standing is not an issue (Boyd, “Elements” at 240). In the Philippines, standing rules state that “any person, including minors, can start proceedings related to environmental damage and environmental laws on behalf of themselves or future generations” (Boyd, “Elements” at 240). The new constitutional rights in Bolivia and Ecuador enforce the notion that standing is available for people representing nature and animals (Boyd, “Elements” at 240).
Broad standing laws have been established by many countries, including: Portugal, Spain, Finland, Netherlands, Slovenia, Estonia, India, Argentina, Brazil, Chile, and Colombia (Boyd, “Elements” at 240).
For example, South Africa National Environmental Management Act, Act 107 of 1998, regarding legal standing states:
32. Legal standing to enforce environmental laws
(1) Any person or group of persons may seek appropriate relief in respect of any breach or threatened breach of any provision of this Act, including a principle contained in Chapter 1, or any other statutory provision concerned with the protection of the environment or the use of natural resources—
(a) In that person’s or group of person’s own interest;
(b) In the interest of, or on behalf of, a person who is, for practical reasons, unable to institute such proceedings;
(c) In the interest of or on behalf of a group or class of persons whose interests are affected;
(d) In the public interest; and
(e) In the interest of protecting the environment.
Further, the International Rights of Nature Tribunal provides an avenue to hear environmental cases regarding the Rights of Nature; there is a panel of Tribunal Judges that recommend action for restoration, protection, prevention and preservation in each case (Global Alliance). Ecosystems, trees, oceans, mountains, rivers, and other elements of nature have been granted their own rights, are rights holders, and have legal standing in a court (Global Alliance). The Tribunal has a duty to provide information which educates society and governments on what the Rights of Nature are and how to enforce it (Global Alliance). This Tribunal enables people from different countries around the world to have a legal voice and presence to protect nature (Global Alliance).
In Lima, Peru, in 2014, the second International Rights of Nature Tribunal came together (Global Alliance). This Tribunal heard evidence by experts and witnesses speaking about violations of the Rights of Nature, including the human rights to a clean environment and rights of Indigenous communities (Global Alliance). The Global Alliance notes that “Selected cases addressed the impacts of climate change, destructive oil and mineral extraction, and aggressive actions against defenders of the earth, especially in South America” (Global Alliance).
In Paris, 2015, the third International Rights of Nature Tribunal convened (Global Alliance). As noted by Global Alliance, “The Tribunal uses the emerging field of Earth Laws to hear and decide cases brought to it” (Global Alliance). Global Alliance states that: “Earth Laws includes laws recognizing the Rights of Nature, as stated in the Universal Declaration for the Rights of Mother Earth, the crime of Ecocide and the laws of the commons” (Global Alliance).
There are many environmental documents that include procedural provisions regarding the environment. The World Charter for Nature, 1982, (UN World Charter of Nature, GA Res 37, UN GAOR, 48TH Plen mtg, III (23), UN Doc A/Res/ 37/7 (1982)) states:
All persons, in accordance with their national legislation, shall have the opportunity to participate, individually or with others, in the formulation of decisions of direct concern to their environment, and shall have access to means of redress when their environment has suffered damage or degradation.
As well, Principle 10 of the Rio Declaration on Environment and Development (1992) states:
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
In order to fully understand the environment as a rights holder, it is important to understand what “legal standing” means in Canada. Legal standing is the legal right to bring a lawsuit to court. Standing requires that the person bringing the case is directly affected by the statute, action, or without the court’s intervention, the individual would continue to suffer damage (Warnock, “Standing” at 57; Stone, “Trees” at 453). However, legal standing can also apply to parties who are not directly harmed or affected, but the damage has a reasonable relationship to their situation; this is also known as public interest standing (Warnock, “Standing” at 57; Stone, “Trees” at 453).
The Supreme Court of Canada defines public interest standing in three cases, as modified by a fourth case. These cases are called "the Standing trilogy": Thorson v Attorney General of Canada, Nova Scotia Board of Censors v McNeil,  2 SCR 265 1975 CanLII 14 (SCC); and Minister of Justice v Borowski,  2 SCR 575 1981 CanLII 34 (SCC). The trilogy was summarized in Canadian Council of Churches v Canada,  1 SCR 236, 1992 CanLII 116 (SCC) [Canadian Council of Churches].
The SCC, in Canadian Council of Churches sets out three aspects should be considered:
- Is there a serious issue raised as to the invalidity of legislation in question?
- Has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity?
- Is there another reasonable and effective way to bring the issue before the court?
The most recent development in the law of standing in Canada may be found in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society,  2 SCR 524, 2012 SCC 45 (CanLII) [DESW]. The Downtown Eastside Sex Workers United Against Violence Society brought an action challenging the constitutional validity of sections of the Criminal Code that dealt with prostitution, claiming that the Criminal Code violated their constitutional rights under Charter s 15(1), and s 7. This case modified the third requirement of public interest standing. It was held that three requirements should be present for public interest standing: “serious justiciable interests; the proposed plaintiff’s interest; and a reasonable and effective means of bringing the issue before the court” (DESW at paras 37 to 52).
In Alberta environmental cases, standing is limited to direct effects on individuals, and the Canadian Council of Churches test is interpreted narrowly; in other jurisdictions, standing rules vary (Boyd, “Elements”, at 240). For example, Boyd notes: “In British Columbia, some tribunals limit standing to the person or entity that is the holder of an order or permit and owners of land, some limit standing to aggrieved persons and others to interested persons” (Boyd, “Elements”, at 240). However, whether narrowly or widely interpreted, in Canada, the principle of standing applies to people, and not nature or the environment.
1. Federal Legislation
Boyd (“Elements” at 205) asserts that Canada’s environmental rules regarding air pollution, toxic substances, food contamination and drinking water are not strong. Further, Canada does not have a legally binding air quality standard and produces more air pollution than the majority of other countries (Boyd, “Elements” at 205). Individuals who live in smaller communities and rural areas are more likely to develop health issues, specifically, in Alberta and Manitoba; there are Aboriginal people living on reserves dealing with a lack of running water, which can result in waterborne illnesses and other diseases (Boyd, “Elements” at 205).
The SCC has reiterated the right to a clean and healthy environment, and this is clear in many cases where environmental harm infringes on the Charter, specifically, s 7 rights (Boyd, “Elements”, at 202). Within the last 15 years, the SCC has recognized that environmental protection is an important value for Canadians (Boyd, “Elements”, at 204).
In addition, Boyd notes that the Canadian Parliament has expressed some interest in this right:
Bill C-634 (2nd Session, 41st Parliament, 2014), the proposed Canadian Environmental Bill of Rights set out five purposes:
- safeguarding the right of present and future generations of Canadians to a healthy and ecologically balanced environment;
- confirming that the federal government has a public trust duty to protect the environment;
- ensuring all Canadians have access to environmental information, effective mechanisms for participating in environmental decision making, and access to justice;
- providing legal protection for environmental whistle-blowers (employees who act to protect the environment and may be subject to reprisals by their employer); and
- Enhancing public confidence in the implementation of environmental law.
2. Provincial and Territorial
Canadians agree that environmental laws are important and these can also be seen at the provincial level. Boyd notes: “In Quebec, Ontario, Yukon, Northwest Territories, and Nunavut, citizens enjoy limited environmental rights in legislation” (Boyd, “Elements” at 215). Boyd (“Elements” at 215) lists the applicable legislation as:
Ontario: Environmental Bill of Rights, 1993, SO 1993, c 28;
Yukon: Environment Act, RSY 2002 c 74
Northwest Territories: Environmental Rights Act, RSNWT 1988 c 83 (Supp).
Nunavut: adopted all NWT legislation, including the Environmental Rights Act, (Nu) 1988 c 83 when it became a territory in 1999 (Boyd, “Elements” at 8).
Canadian laws and regulations primarily focus on procedural rights, such as the right to access information, to be informed about regulatory changes, and to request investigations; however, the laws generally do not offer legal protection for rights to clean air, a healthy environment, or water (Boyd, “Elements” at 215). There are a few exceptions that seem to indicate a willingness to consider the right to a healthy environment.
Boyd (“Elements” at 215) notes that Quebec was the first province to put environmental rights into legislation. The Environmental Quality Act states in Art. 19.1 that: “Every person has the right to a healthy environment and to its protection, and to the protection of the living species inhabiting it, to the extent provided for by this act and the regulations, orders, approvals, and authorizations issued under any section of this act.” Boyd (“Elements” at 8) asserts that even though this law has not made a big impact, it has expanded the law of standing; therefore, this will increase access to justice for residents in Quebec.
In 2006, the Quebec Charter of Human Rights and Freedoms was amended, stating (at Art 46.1): “Every person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law”. Boyd notes (“Elements” at 216) The amendment also requires the provincial government to establish a legislative and policy framework for enforcing these environmental rights and making them a reality.
Ontario’s Environmental Bill of Rights, 1993, Preamble, states: “the people of Ontario have a right to a healthful environment.”
Section 2(1) states:
The purposes of this Act are,
(a) To protect, conserve and, where reasonable, restore the integrity of the environment by the means provided in this Act;
(b) To provide sustainability of the environment by the means provided in this Act; and
(c) To protect the right to a healthful environment by the means provided in this Act.
Yukon’s Environment Act, states in s 6 that: “the people of the Yukon have the right to a healthful natural environment and recognizes that citizens should be provided legal remedies for breaches of the law involving the environment.”
d. Northwest Territories and Nunavut
The preamble of the Environmental Rights Act for the Northwest Territories and Nunavut states: “The people of the Northwest Territories have the right to a healthy environment and a right to protect the integrity, biological diversity and productivity of ecosystems in the Northwest Territories.”
3. Aboriginal and Treaty Rights
Before the Constitution Act, 1867, came into force, Indigenous systems, along with English and French legal systems, co-existed in Canada (Boyd, “Elements” at 206; Hogg, Constitutional at 28.8). Steps have been taken to integrate common law and civil law into the Canadian legal system and progress has been made—however, less progress has been made with Aboriginal law (Boyd, “Elements” at 206; Hogg, Constitutional at 28.8.) As noted by Boyd (“Elements” at 206): “Indigenous law can be defined as those procedures and substantive values, principles, practices, and teachings that reflect, create, respect, enhance and protect the world and our relationships within it.” The Canadian Constitution protects Aboriginal rights, title, and self-government. Boyd and Hogg assert that Indigenous people would receive the most benefit from an Environmental Bill of Rights (Boyd, “Elements” at 206; Hogg, Constitutional at 28.8). An Environmental Bill of Rights should reflect principles and belief systems of Indigenous law as well as protect the environments upon which Indigenous people depend, work towards reconciliation and reduce environmental injustice (Boyd, “Elements” at 249; Hogg, Constitutional at 28.8).