Law Firm Calls on Nova Scotia Party Leaders to Legalize Environmental Rights

Just one thing, make sure it has serious teeth

In the run up to a snap provincial election on November 26, 2024, East Coast Environmental Law has called on Nova Scotia’s political party leaders to commit to enacting a Bill of Environmental Rights and Responsibilities for the province—one the firm argues would, “at minimum,” make preserving biodiversity and protecting the environment for future generations a legal obligation of the government.¹

According to its press release, the law firm has developed a model bill that would make the legal changes they are calling for, drawing on legislation from the Northwest Territories, Nunavut, Ontario, Québec, the Yukon, and the Nunatsiavut Government in Labrador—all of which have laws in place to recognize and protect environmental rights.

Cover of David Boyd’s 2017 book. Boyd is an advocate of environmental rights and an associate professor of Law, Policy and Sustainability at the University of British Columbia.

“The model bill also recognizes the impacts of environmental racism in Nova Scotia, the need for environmental justice and equity, and the Indigenous rights affirmed in the United Nations Declaration on the Rights of Indigenous Peoples,” the firm states.

I explored the subject of environmental rights in my 2016 book, as well as in research I did with the late Silver Donald Cameron for The Green Interview, who, along with filmmaker and producer Chris Beckett, travelled to Ecuador and Argentina—ground zero for some of the most inspiring work in the field of “green rights.” You can peruse the multi-media archive here.

One of the people we sought out for our research was David Boyd, a forceful advocate for the entrenchment of environmental rights in national legal systems. He’s an ecological lawyer and associate professor of Law, Policy and Sustainability at the University of British Columbia. He argues that enshrining the right to a healthy environment in national constitutions can dramatically transform countries’ environmental laws and policies and improve their practices of protecting the environment. 

In his 2012 book, The Right to a Healthy Environment: Revitalizing Canada's Constitution, Boyd shows us what the defects are in the Canadian constitution but he also points to empirical evidence from more than a hundred countries indicating that constitutional entrenchment results in “stronger laws, increased enforcement, and an enhanced role for citizens.”

In our interview, Boyd explained how such legislation “would grant increased powers to sue in civil court for damages caused by pollution and to initiate private prosecutions of pollution offences in cases where government had refused to act.”

According to Boyd, because the role of courts is to make sure that governments obey the constitution, once a right to a healthy environment is entrenched in the constitution, it provides an unprecedented level of accountability.

In his 2012 book, Boyd reported that 75% of the world’s nations had constitutions recognizing this right and that overall, 177 out of 193 countries (or 92%) recognized our right to a healthy environment through the constitution, laws, court decisions, or international treaties and declarations.

At that time, Canada was glaringly absent from this list.

But in 2023, the feds introduced Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, amending the Canadian Environmental Protection Act (CEPA), and recognizing that every individual in Canada has a right to a healthy environment, and that the government has a duty to protect the right to a healthy environment. But according to legal experts, there is no enforcement mechanism, and the right recognized is subject to “reasonable limits”— a definition “left to executive discretion and judicial interpretation.” Furthermore, there is no remedy provided “when the right is allegedly violated.”

Beatriz Mendoza, the lead plaintiff in the landmark “green rights” legal ruling in Argentina. [Photo from David Boyd’s powerpoint presentation]

In his 2012 interview with Silver Donald Cameron, Boyd shares the story about Beatriz Mendoza, who in 2006, along with her neighbours, hired a lawyer and filed a lawsuit against all levels of Argentina’s government, including 44 corporations, arguing that the pollution in the Matanza-Riachuelo River Basin violated their constitutional right to live in a healthy environment. The country amended its constitution in 1993 to include this right, and the river —one of the most polluted in the world— literally poisoned from a century of toxic industrial effluent — was making people very sick. Mendoza’s own health was suffering — her blood contained extremely elevated levels of toluene, a by-product of petroleum refining. Toluene is toxic and can cause permanent damage to the brain, muscles, heart, and kidneys.

“The Supreme Court of Argentina, the highest court in the country, issued an incredibly powerful and poetic judgment in which it imposed a whole list of obligations on the government to carry out specific activities on a very fixed and urgent timeline,” explains Boyd.

“The court ordered the government to create drinking water treatment plants, to build sewage treatment plants, to clean up the river and restore the riverbanks, to provide social housing for people who were living in riverside shanties, and to create a management plan for the entire watershed that would result in regular inspections of every business that was creating air or water pollution. That was in 2008."

By 2012, the Argentinian government set up a watershed management agency to oversea the court’s order to clean up the river — and are spending more than $1 billion a year to build the infrastructure, such as water treatment plants, sewage treatment plants, monitoring stations. Boyd says the government closed down and cleaned up 169 illegal landfills in the watershed, and hired environmental inspectors and enforcement officials.

“The extent of progress in implementing that court order is nothing short of extraordinary,” says Boyd.

Boyd continues:

“I’ve done research on 95 countries around the world whose constitutions explicitly mention the right to a healthy environment, and it has a transformative effect on their environmental laws and policies, it has a pervasive effect on the court systems in those countries so that people can go to court and actually enforce their right to a healthy environment when it's being violated, and most importantly of all, there's a clear correlation between environmental provisions and a national constitution and superior environmental performance. At the end of the day, that's what we're trying to achieve: cleaner air, universal access to safe drinking water, a nontoxic environment, and healthier ecosystems.”

A step in the right direction, for sure, but as the passage of time in this case shows, enlightened laws are not enough against corruption and the forces of neoliberalism.

Despite the fact that Argentina’s Supreme Court ordered the remediation of the river basin, the expected impacts of the judgement have not yet been achieved, according to a 2022 article out of Harvard Law.

From the Harvard Law article:

The first thing that strikes you when you arrive in Argentina’s Villa Inflamable (literally “Inflammable Slum”) is the noxious sulfur smell of the air that mixes with other acrid chemicals, which makes it difficult to breathe deeply. When a breeze picks up, the sands that have been used to extract contaminated water from the nearby Riachuelo, one of the ten most highly contaminated rivers in the world, rain down on everyone, filling eyes and lungs with toxic particulate matter.

As petrochemical tanker trucks parade through nearby paved streets, the unpaved lanes of Villa Inflamable alternate between toxic dust blowing through the air on dry days to flooding raw sewage on rainy ones. Everyone knows someone who died of cancer, or had pregnancy complications and children with birth defects. More than 600 children have been born and are growing up exposed to highly carcinogenic chemicals, such as benzene and toluene.

In these neighborhoods surrounding the river basin, deeply embedded corruption links the actions (and impunity) of local companies with global multinationals (e.g., Trieco, which is the Argentine subsidiary of the US waste management company, Stericycle.

The article authors acknowledge that yes, Argentina’s supreme court judgement “established benchmarks” and “ordered a comprehensive plan for remediation of the river basin,” but it “left significant discretion to the various agencies involved. Notably, the decision left out private corporations, in effect shielding them from liability.” [italics are mine]

Pollution in the Matanza-Riachuelo River, Argentina. Despite the human right to a healthy environment being enshrined in country’s constitution, and some progress being made, serious problems and injustices remain. [Photo: Ecohubmap]

The call for an environmental bill of rights is not new. In Canada, the idea has been around at least since the 1970s — when new government departments of the environment and new environmental laws were all being enacted: Clean Air Act, Environmental Contaminants Act, Canadian Environmental Protection Act, Fisheries Act, and the Motor Vehicle Safety Act (which included emissions standards).

But even with all these new laws, the state of the environment kept getting worse.

Time has revealed that wherever it has been embraced in the world, neoliberalism has followed the same pattern: environmental devastation, more social and economic inequality, an increase in severe deprivation amongst the world’s poorest, a precarious global economy, and an unprecedented bonanza for the world’s elite.

Noam Chomsky says free trade agreements undermine democracy itself because ‘they are designed to transfer decision-making about people’s lives and aspirations into the hands of private tyrannies that operate in secret and without public supervision or control.

In other words, enshrining the rights of nature into a country’s constitution is not enough to curtail pollution or restrain extractivist industries.

Here in Canada we’ve seen cases where enlightened laws are simply no guarantee of change. Ontario’s 2009 renewable energy law—one that required wind and solar firms to buy and hire local—was superseded by international trade agreements. In this particular case, Japan and the E.U. complained to the World Trade Organization that the provisions aimed at benefiting Ontarians discriminated against foreign companies. Foreign corporations’ right to unimpeded profit can trump a country’s laws and threaten not only democracy but national sovereignty.

For instance, NAFTA’s investor-state dispute settlement process gives corporations or foreign investors in the US and Mexico sweeping rights to sue the Canadian government for damages if an action is taken that somehow limits or restrains the profit potential of an investment.

As of 2024, environmental protection and “resource management” including extraction or energy claims make up the vast majority of NAFTA claims against Canada. According to data provided by Global Affairs Canada, 21 of 27 (or 78%) of ongoing or concluded arbitrations pertain to the environment. This means that if Canada takes measures to protect the environment or “manage” the country’s “resources” in a responsible manner, it can be targeted by foreign corporations claiming Canada is interfering with profitability.

When disputes like this arise at the international level, the World Trade Organization (WTO) is the body that steps in to settle them. Needless to say, the rules of that game are also rigged in favour of the corporation’s right to turn a profit.

The fact that foreign investor rights supersede a country’s regulatory authority has also had a chilling effect on what governments are willing to do.

Nova Scotia Environment Minister Tim Halman (left) and Municipal Affairs Minister John Lohr take questions from reporters about the scrapping of the Coastal Protections Act. [Communications NS]

Let’s face it, corporate power is unhinged, making it increasingly difficult for governments all over the world to make democratically based decisions in the public’s long-term interests. As well, we are seeing regulatory capture, a term used to describe government agencies that advance commercial, industrial, or ideological interests at the expense of the public one. The influence is often exerted behind closed doors, away from public scrutiny.

Here in Nova Scotia we have seen first-hand how the current government under Premier Houston has shown contempt for democratic processes. In one recent example, the government has undermined the Wetland Conservation Policy by creating a “new interpretation” of what constitutes a Wetland of Special Significance. The move was only made public because an internal memo was leaked to the media but the change has functionally delisted potentially thousands of hectares of what are the most endangered ecosystems on earth. I’ve reported extensively on this story, including here.

As well, Houston’s government also failed to proclaim an important environmental law that was passed with all-party support. The Coastal Protection Act received royal assent in April of 2019, and up until this past year, the Department of Environment and Climate Change said it had been working on the regulations for the law which were to be specifically focused on restricting development in places where it will put properties at risk from coastal erosion, sea level rise and coastal flooding in the coming decades. The regulations were also supposed to be aimed at restricting development where it will damage valuable coastal ecosystems.

After a 5-year delay, the government decided to scrap the law—one that also received overwhelming public support—and instead announced a “plan” for property owners, municipalities, and the Province, all of which are voluntary.

Oh, and let’s not forget the abysmal track record successive governments in this province have had when it comes to protecting species at risk — something they are legally obligated to do, but don’t. In 2016, Nova Scotia’s Auditor General admonished the Department of Natural Resources for not meeting its legislated obligations for the conservation and recovery of species at risk. The report noted that 60 species were at risk in the province — 28 of which were in imminent danger of extinction, and the numbers were going up. In 2013 alone an astounding 19 species were added to the list of provincial species at risk.

So, how well would another law intended to protect human health and the environment work?

A lot better if it has serious teeth, an enforcement mechanism with serious penalties when violated. But it would also work better if our institutions recognize the intrinsic value of our life support system, if we ditch neoliberalism, and kick our delusional economic system, based on infinite growth on a finite planet, to the curb.

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1. Progressive Conservative Premier Tim Houston called the election seven months before it was supposed to happen. When they were elected, the Conservatives set a fixed election date of July 15, 2025 in their first piece of legislation.