The Right to a Healthy Environment

Will Federal Recognition Improve Access to Environmental Justice in Manitoba?

By Heather Fast and Keza Uwitonze, University of Manitoba, Faculty of Law Students

The federal Parliament recently recognized the right to a healthy environment under the Canadian Environmental Protection Act (CEPA).[1] After a lengthy and complicated parliamentary process, Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act, which amends CEPA, was given royal assent on June 13, 2023.[2] This means that CEPA now includes recognition “that every individual in Canada has a right to a healthy environment as provided under this Act.”[3]

Press releases and briefing sessions offered by the federal government have emphasized the positive implications of federal environmental rights under CEPA.[4] This includes recognition of the Government of Canada’s legal obligation to protect citizens’ environmental rights and uphold principles such as “environmental justice”, “non-regression”, and “intergenerational equity”. The legal utility of the right is currently unknown as we wait for the federal government to develop an implementation framework for the right over the next two years.[5] Thus, the access to justice implications of the right to a healthy environment under CEPA, and the extent to which it will be justiciable, remain unclear.

Benefits of Environmental Rights

To the extent that access to justice is not just procedural (the usual focus of this blog) but substantive, the recognition of a right to a healthy environment moves us in the direction of access to environmental justice. To date, Canada has been behind globally in the recognition of environmental human rights. Over a decade ago, in 2012, at least 92% of the countries in the world (177 out of 193) had recognized the right to a healthy environment in their domestic law.[6]

The legal implications of environmental human rights can vary. A robust adoption of environmental rights involves recognition of both substantive and procedural rights. This creates legal obligations for both citizens and government in the protection of the environmental and human health, and results in a range of procedural legal tools available to the public to help them protect and enforce their environmental rights. Such tools include the ability to trigger an independent investigation of activities that could harm citizens’ rights, access to a range of different environmental information, the right to meaningfully engage in governance processes, funding for citizens engaging in actions to protect their rights, and legal standing to initiate court proceedings if a violation of citizens’ environmental rights has occurred. These are all ways that environmental rights can create legal tools that give citizens power to hold their governments accountable for the environmental decisions they make.

Environmental Rights in Manitoba

Although federal recognition of environmental human rights is a very recent occurrence in Canada, there has been legal recognition of environmental human rights in some provincial and territorial jurisdictions for decades.[7] This is not surprising given that Canada’s constitutional division of powers puts many matters that most affect the environment within provincial jurisdiction. To date, however, no such legislation has been enacted in Manitoba.[8]

There may be room for development of the law to recognize access to environmental justice. For example, a report published earlier this year by the Manitoba Eco-Network shed light on the access to justice barriers faced by citizens in Manitoba. The Healthy Environment, Healthy Neighbourhood (HEHN) project focused on the experiences of vulnerable populations in inner city and mature neighbourhoods in Winnipeg who disproportionately face environmental and human health impacts due to their proximity to industrial operations and railyards.[9]

The HEHN project concluded that Manitobans lack access to environmental justice. For example, Manitobans currently “have little to no legal power to trigger the investigation and clean-up of toxic contamination in their neighbourhoods, participate in monitoring, follow-up or enforcement activities and initiate legal proceedings in situations where industry or government has not taken appropriate action.”[10] The HEHN report recommends a myriad of legal reforms needed at the federal and provincial levels to improve Manitobans’ access to environmental justice.[11]

With no means of holding polluters accountable and no legal recourse, vulnerable community members like those featured in the HEHN project will continue to face the serious mental and physical health consequences of living in areas where the long-term effects of contaminant-filled dust and lead-poisoned soil is unknown. But what will the federal reforms change?

What Will CEPA Reforms Change?

While the right to a healthy environment has now been recognized in the Preamble of CEPA, the details in terms of how this right will be realized remain to be determined.

The new Section 5.1 of CEPA requires the development of an implementation framework to set out how the right will be considered in the administration of CEPA. Required elements of the framework include:

  • Elaboration of how the principles of environmental justice, non-regression, intergenerational equity will be considered;
  • Research studies or monitoring activities to support the right;
  • Relevant factors to be considered when interpreting and applying the right and determining the reasonable limits to which it is subject; and
  • Mechanisms to support the protection of the right.

Public consultation on the implementation plan is required, and the plan, along with future annual reports, should be made publicly available so the government will be able to best understand how to realize, procedurally and substantively, access to environmental justice.

[1] Canadian Environmental Protection Act, SC 1999, c. 33. (CEPA)

[2] Strengthening Environmental Protection for a Healthier Canada Act, SC 2023, c 12.

[3] CEPA, supra note 1, Preamble; Ibid, s 2(1).

[4] Environment and Climate Change Canada, “Stronger chemicals management and the right to a healthy environment: Canada’s cornerstone environmental law has been modernized” (June 14, 2023), online: [ECCC 2023a]; Environment and Climate Change Canada, “Bill S-5: Strengthening Environmental Protection for a Healthier Canada Act” (June 14, 2023), online:  [ECCC 2023b].

[5] Supra note 2, s 5.  

[6] David Boyd, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (Vancouver: UBC Press, 2014).

[7] For example, Quebec, Charter of Human Rights and Freedoms, CQLR, c. C-12; Quebec, Environment Quality Act, CQLR,c. Q-2; Yukon, Environment Act, R.S.Y. 2002, c. 76; Ontario, Environmental Bill of Rights, S.O. 1993, c. 28; Northwest Territories, Environmental Rights Act, RSNWT, 1988, c. 83 (Supp); Nunavut, Environmental Rights Act, RSNWT (Nu) 1988, c 83 (Supp).

[8] Heather Fast and Patricia Fitzpatrick, “Modernizing Environmental Protection in Manitoba: The Environmental Rights Act as One Component of Environmental Reform” (2017) 30:3 JELP 295.

[9] Manitoba Eco-Network, “Healthy Environment, Healthy Neighbourhood”, online: [].

[10] Julia-Simone Rutgers, “Marginalization Amid Contamination”, Free Press (10 June 2023), online: <> [].

[11] Alexandra Caporale and Heather Fast, The Burden of Concern: The Heathy Environment, Healthy Neighbourhood Project (2023), online:; Rutgers, ibid.  

The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top