Thursday Thinkpiece: Parker on Environmental Inequality Under S.15 of the Charter

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Not in Anyone’s Backyard: Exploring Environmental Inequality under Section 15 of the Charter and Flexibility after Fraser v Canada

2022 27 Appeal: Review of Current Law and Law Reform 19, 2022 CanLIIDocs 952

Larissa Parker is a recent graduate of the McGill Faculty of Law and the 2021 recipient of the David L. Johnston medal upon graduation. Larissa holds an MSc from the University of Oxford and a BA from the University of Toronto. This piece was awarded the CIAJ’s 2022 Christine Huglo Robertson Essay Prize for Law Students.

Excerpt: Introductions, Parts I, II & Conclusion [Footnotes omitted. They can be found in the original via the link above]

INTRODUCTION

Depending on where you are, you can smell environmental racism in Canada. [1] In some communities, you can feel it too; proximity to pollution can cause dizziness, muscle twitching, body rashes, and nausea. [2]

Pollution hotspots exist across Canada and predominantly affect low-income and racialized populations. [3] Examples include Indigenous communities like Aamjiwnaang First Nation in Ontario [4] or Beaver Lake Cree Nation in Alberta; [5] predominantly Black communities in rural Nova Scotia; [6] or poor neighbourhoods in urban cities like Toronto or Vancouver. [7] Such communities—referred to in literature as “shadow places,” [8] “poverty pockets,” [9] and “sacrifice zones” [10] —face disproportionate environmental burdens due to their proximity to landfills, fossil fuel infrastructure, plastic pollution, and toxic waste. [11] This proximity causes harrowing health effects (also known as “pollution burdens”) that would otherwise not be acceptable elsewhere in Canada. These unequal burdens constitute a form of environmental inequality. [12]

Although these inequalities stem from a number of interrelated factors, the role of the state in regulating (and facilitating) polluting activity is key. [13] Across jurisdictions, ministries grant pollution permits to new and existing facilities based on deficient regulatory standards laid out under environmental protection legislation. [14] Ministry officials have direct control over when and where pollution occurs.

I contend that the inequality that results from these regulatory systems triggers constitutional scrutiny under section 15 of the Charter of Rights and Freedoms (“Charter”), which imposes limitations on statutory authority. It is an example of adverse effects discrimination [15] from a legislative framework that appears neutral on its face. [16] Although the Charter has not yet been interpreted to extend to the unequal distribution of environmental burdens, [17] scholars have argued that there is scope within section 15 to capture environmental claims. [18] In addition, recent developments in equality-focussed jurisprudence signal a new emphasis on flexibility in establishing an equality rights infringement, which I argue, render environmental claims under section 15 more viable than ever before. [19]

The application of section 15 to environmental inequality is underexplored. Given that the recognition and remedying of adverse discrimination is crucial to the realization of substantive equality, [20] jurisprudence on section 15 should evolve to capture the distinct dynamics of environmental inequality. While numerous scholars have undertaken detailed socio-legal analyses of disproportionate exposure to environmental hazards across North America, [21] and many have focussed on the regulatory causes for such harms, [22] few scholars have explored the potential application of adverse effects discrimination to environmental regulatory regimes in Canada. [23] Additionally, while there is a wealth of literature on the challenges associated with adverse effects discrimination litigation, few scholars have explored the implications for environmental claims under this framework, particularly after the 2020 Supreme Court of Canada decision in Fraser v Canada (Attorney General) (“Fraser”). [24]

This paper is structured as follows. Part I introduces disproportionate pollution burdens through the case study of Aamjiwnaang First Nation in ‘Chemical Valley’ and the permitting system under the Ontario Environmental Protection Act (“EPA”). [25] Part II considers the application of section 15 to environmental inequality in this context and the complexities that arise under the adverse effects discrimination framework. Part III explores the newfound flexibility in Fraser and its promising implications for environmental claims.

I. TOXIC BURDENS AND STATE RESPONSIBILITY

In the 1980s, the concept of environmental inequality emerged to stand for the simple premise that environmental degradation does not affect everyone equally. Low-income and racialized communities living in close proximity to environmental hazards and externalities experienced health and social consequences, while those who lived comfortably away from them did not. [26]

A. Introducing Disproportionate Pollution Burdens

In Canada, environmental racism is a widespread problem. The paradigmatic example is “Chemical Valley,” which is widely reported as the most polluted area in Canada. Chemical Valley is located in Lambton County, Ontario and is replete with 66 smokestacks that pepper the horizon. [27] The region is home to Aamjiwnaang First Nation, an Ojibwe community that lies within a five kilometer radius of this pollution. [28] In 2016–2017, a total of 45,357 tonnes of pollution was emitted from industries within a 25 kilometer radius from Aamjiwnaang, according to Canada’s National Pollutant Release Inventory. This accounted for 10 percent of all air pollution in the province. Strikingly, Ecojustice reported in 2005 that the region’s pollution was greater than that of the entire provinces of Manitoba, New Brunswick, or Saskatchewan. [29]

Extreme pollution exposure in Chemical Valley has caused significant health-related harm in Aamjiwnaang First Nation. In particular, toxic pollution is linked to increased risk and incidences of cancer, endocrine disruption, neurobehavioral abnormalities, cardiovascular disease, diabetes, and altered immune function. [30] These risks and effects are compounded by the fact that residents in the area are not exposed simply to one or two dangerous pollutants from one or two sources at a given time, but rather, are continuously exposed to dozens of different pollutants all the time. [31]

Given the latency of environmental pollution, environmental harm is difficult to track. [32] This has propelled various community-led efforts to document and shed light on the cumulative harm experienced by residents in Chemical Valley. The Aamjiwnaang Health and Environment Committee, for instance, directed a mapping exercise that enabled community members to learn about the pattern of individual and shared impacts of toxins in the region (See Figure 1). [33]

Figure 1: Body Mapping the Body Burden of Chemical Valley

Source: Sarah Marie Wiebe, Everyday Exposure: Indigenous Mobilization and Environmental Justice in Canada’s Chemical Valley, (UBC Press, 2006) at 109.

The exercise revealed a number of startling statistics, including that 25 percent of children suffered from learning and behavioural problems (when compared to the national average of 4.4 percent) and about 40 percent of women had experienced a miscarriage or stillbirth (when compared to the national average of 15–20 percent). [34] Indeed, several researchers point out that the Sarnia region reports more hospital admissions for respiratory and cardiovascular illnesses than nearby Windsor and London. [35]

B. A Structural Approach to Identifying Responsibility

How environmental inequality emerges has long been a subject of debate. Although there is extensive literature about the distribution of social groups around environmental hazards— including hazardous waste sites, manufacturing facilities, superfund sites, chemical accidents, and air pollutants—much of this literature focusses on the unequal outcomes linked to such pollution, rather than how the pollution emerged in the first place. [36] According to David Pellow, expert in environmental justice, environmental inequality originates through complex processes that can only be understood through a framework that assesses the underlying “structural dynamics” of such inequality. [37] Rather than approaching environmental inequality as being linked to a discrete event (e.g. a particular polluting actor), it is important to understand what creates and sustains pollution in a given community (e.g. the regulatory system that allows the actor to operate). [38]

In Canada, scholars have linked environmental inequality to environmental protection legislation, which gives public officials the discretion to grant pollution permits. [39] These regulatory regimes delineate the types and amounts of pollution that may be emitted by a given project based on various pollution standards. [40] Ultimately, through such regimes, provincial and federal ministries act as “gatekeepers” of pollution, deciding what types, levels, and sources to “let in” in a given region. Since environmental protection laws do not consider whether environmental harm is fairly distributed among all members of the public, [41] pollution burdens are disproportionately allocated to vulnerable communities. [42]

The Ontario environmental protection legislation is a useful case study because it has created and sustained inequality in Chemical Valley for decades. In 2016, the Office of the Auditor General reported that the Ontario Environmental Protection Act did not effectively manage the risks to the environment and human health from polluting activities. [43]

There are three key issues with pollution permitting under the EPA. [44] First, the Ministry issues permits without fully considering the cumulative pollution of such approvals. Under the EPA, there are no limits placed on the number of industries that can operate in a region and the Ministry is typically not required to consider the cumulative effects of pollution before issuing another permit. [45] Although industries might be individually meeting particular standards set by the government, there is no limitation on having multiple polluters close together. [46] The Ministry grants pollution permits to each facility as though they exist in isolation. This results in the approval of projects in areas that are already subject to significant environmental stresses. [47]

Although there has been progress in considering cumulative pollution by the Ministry, it remains limited and insufficient. [48] As of November 2017, the government announced that it would consider the cumulative impacts of air emissions of benzene and benzo[a] pyrene in the Hamilton/Burlington area and benzene in the Sarnia/Corunna area. Notably, this announcement excluded a wide number of contaminants of concern, such as sulphur dioxide. Given the limited scope of Ontario’s cumulative effects policy, the conclusions of a 2017 report by the Environmental Commissioner of Ontario (“ECO”) remain largely true today: “Ontario regulates each facility’s air emissions as if it were the only emitter.” [49] In communities with one or two significant polluters, this might not be an important distinction, but in a pollution hotspot like Chemical Valley, it is “literally a life-threatening defect in environmental policy.” [50]

Second, permitting in the province is often based on outdated standards. One example is the standard for sulphur dioxide (SO 2 ), which—until 2018—had not been updated in over 40 years. [51] In 2017, the ECO reported that this standard was over six times the recommended standard set by the federal government. [52]

Finally, the Ministry also has discretion to modify a standard if a proponent identifies that it cannot be met. In 2017, the ECO observed that government officials lowered standards or allowed various industries to opt out of them on a case-by-case basis. In the context of benzene, which is a known carcinogen, the government set a more stringent health-based air standard in 2016. [53] However, the ECO reported that because several industries were not able to meet the 2016 benzene standard, the government made exceptions for such facilities and developed a new technical standard that these industries could comply with instead. [54]

These three issues within the permitting system expose how pollution hotspots are not only created, but also sustained by the regulatory regime under the EPA. Government officials control the amount, type, and concentration of pollutants emitted in any given area of the province, and consequently permit persistent harmful pollution levels in Chemical Valley.

As I will explore below, pollution hotspots can be conceptualized as an indirect consequence of government legislation [55] that amounts to “adverse impact discrimination.” [56] As the Office of the Human Rights Commissioner in Ontario identified in a 2009 report, indirect discrimination includes “measures such as authorizing toxic and hazardous facilities in large numbers in communities that are predominantly composed of racial or other minorities, thereby disproportionately interfering with their rights, including their rights to life, health, food and water.” [57]

II. INDIRECT DISCRIMINATION & SECTION 15 OF THE CHARTER

Under section 15, discrimination exists when facially neutral government action “frequently produce[s] serious inequality.” [58] This is type of discrimination, referred to as “adverse effects discrimination,” focusses on “the results of a system” and how it impacts a particular group. As the Abella Report asserts, “[i]f [government action] is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.” [59]

Disproportionate pollution burdens created and sustained by environmental protection legislation are an example of this type of inequality. Although such legislation aims to manage the release of pollutants to regulate the environmental and social effects of pollution, the combined flaws in permitting systems across the country have the effect of allowing dangerous levels of pollution in certain regions. Through these systems, environmental inequality is not only created, but sustained in pollution hotspots. In this way, the EPA in Ontario is indirectly producing outcomes that are inconsistent with the overarching goals of the legislation—outcomes that disproportionately affect already vulnerable communities. [60] In other words, the disproportionate pollution burden on a particular group represents a distinction “in its impact” under section 15 of the Charter. [61]

Charter claims invoking the equality guarantee must be based on an enumerated ground— whether race, national or ethnic origin, religion, sex, age or disability—or an analogous ground, which must be established based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. [62] Marginalized communities affected by pollution hotspots will need to establish what ground they intend to plead. When the community in question is Indigenous or racialized, the protected ground can be race or ethnicity. [63] If by contrast, the community does not fall into an enumerated ground, claimants will need to establish an appropriate analogous ground in the circumstances. Due to the established links between poverty and disproportionate pollution burdens, there may be an opportunity to recognize socio-economic status as such a ground. Although courts have rendered mixed decisions on whether poverty is an analogous ground in the past, 64 scholars have found poverty to be the most significant factor in determining unequal distribution of air pollution. Poorer communities tend to be exposed to higher concentrations of air pollution, compared to richer communities. [65]

Given that government legislation enables a regulatory system that creates unequal geographies of pollution, the Charter can be engaged to “strike down laws that allow pollution at levels that interfere with human health and well-being.” [66]

A. Sketches of Potential Claims

There are a number of different ways to structure a claim alleging environmental discrimination under the Charter and this section does not purport to be a comprehensive overview of all of the options available. Rather, the goal of this analysis is to demonstrate, with some imagination, how environmental equality rights claims can be fashioned with existing tools in the section 15 toolbox.

Consider, for example, the claim in Little Sisters Book and Art Emporium v Canada (Minister of Justice), where an appellant bookstore—which carried a specialized inventory of books catering to the gay and lesbian community—was disproportionately targeted by customs officials. The officials were conducting classification exercises related to the importation of literature “deemed to be obscene,” pursuant to a provision of the Customs Tariff Act. [67] The appellants successfully established that these searches were disproportionately affecting them, which led to delays, confiscations, and destruction of materials imported by the appellant bookstore. Although “[t]here is nothing on the face of the Customs legislation, or in its necessary effects, which contemplate[d] … differential treatment based on sexual orientation,” [68] “a large measure of discretion [was] granted in the administration of the Act, from the level of the Customs official up to the Minister,” which was indirectly discriminatory to the appellant. [69]

A claim could similarly challenge a permitting regime for causing indirect discrimination to proximate communities. More specifically, in Ontario, a claim could challenge specific sections of the EPA, including sections 18, 157, 157.1, 157.2, and 196. These sections allow companies to operate outside or above minimum standards and do not require public officials to consider the majority of cumulative impacts associated with their approvals. A claim could also include a challenge to the standards in the Air Pollution – Local Air Quality O Reg 419/05, which sets minimum pollution standards that both the Environmental Commissioner and the Auditor General have criticized as being outdated. [70] Such a claim could seek declaratory and compensatory relief under sections 24(1) and 52 from the government to amend the sections of the legislation that cause indirect effects on the equality rights of the people living in polluted hotspots, to be compliant with section 15.

A claim could also take the form of a judicial review application, as was the case in Lockridge v Director, Ministry of the Environment. The case involved a judicial review application commenced by Ada Lockridge and Ronald Plain of Aamjiwmaang First Nation in April 2010 (and discontinued in December 2017). [71] They sought a judicial review of the Ministry of Environment decision that concerned the sulphur output of a specific Suncor plant in Sarnia. They claimed that the failure of the Director to conduct a cumulative effects assessment prior to making his decision infringed the applicants’ sections 7 and 15 rights under the Charter, as well as their rights to procedural fairness. [72] Lockridge and Plain sought declarations under sections 24(1) and 52, although the latter remedy was later dropped given that section 52 relief is not available on an application for judicial review. [73] The Lockridge claim was thus amended to exclude their original claim for a declaration that certain sections of the EPA are inoperative “in so far as they allow for the additional discharge of contaminants to air in Chemical Valley absent an assessment and minimization of the cumulative effects of pollution on the Applicants’ health.” [74]

The advantage of a more narrow judicial review application is that the claim is less likely to be struck for non-justiciability, [75] however, the disadvantage is that it will likely be more difficult to establish a causal connection between the specific permit at issue in the application and the environmental harms associated with it. As Justice Harvison Young held in Lockridge, “only evidence relating to the [specific permit being challenged] and any synergistic effects of the increase in sulphur production authorized by it are relevant for that purpose…. not any earlier approvals or pre-existing contaminants in the absence of evidence of synergistic effects with the increased level of sulphur production.” [76] Given that it is virtually impossible to connect a particular approval with specific health effects, it may be difficult to succeed on judicial review of a particular permit when the claimants are experiencing a multitude of harm connected to a wide range of polluters.

Recourse through judicial review may also limit the ability for courts to affect the status quo. In Lockridge—where the claimants had initially wanted to tackle the permitting regime as a whole—it became clear that the judicial review format was unable to affect how permitting was regulated in Ontario—and ultimately, the levels of pollution in the region—given that its focus was on a single approval. According to the Court:

The consequences of success would be the quashing of the April 2010 Decision and would not affect general emissions from the refinery, and could not generally impose a cumulative effects assessment into the regulatory process, though the applicants and Ecojustice advocate on behalf of such change. [77]

Despite these drawbacks however, it is conceivable that in cases where large sources of pollution can be linked to particular approvals, resorting to judicial review might be very effective.

While it is beyond the scope of this paper to fully explore the opportunities and challenges associated with different courses of action, it is possible to imagine different types of environmental claims that could be launched as adverse effects discrimination cases. [78]

B. Challenges Associated with Adverse Effects Discrimination Claims

Adverse effects discrimination claims have had mixed success over the years. Until recently, only three cases were successful at the Supreme Court: Eldridge v British Columbia (Attorney General), Vriend v Alberta, and Little Sisters. [79] Classifying these claims into two categories, Dianne Pothier identifies that adverse effects cases can focus on “categorical exclusions,” where all members of a group or sub-group are adversely impacted by a neutral rule or policy, or “disproportionate impact”, where only some members of a group are adversely affected. [80] This distinction is important as Pothier, and later, Hamilton and Koshan argue that the latter type of cases—focussed on disproportionate impact—are more difficult to prove. [81]

Historically, establishing a sufficient causal relationship between the adverse effects and government action has been a key challenge for claimants alleging adverse effects discrimination. [82] It was also more difficult to meet the evidentiary burden required to establish how the impact of the government action or law is discriminatory on a particular group. [83] Over the last two decades, judges focussed on whether the impugned law actually created the claimants’ disadvantage. [84] As a majority of the Supreme Court held in the oft-cited Symes v Canada decision, courts were to “take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision.” [85] In other words, the “social costs, although very real, exist outside of the [government action at issue].” [86]

Reliance on Symes was an important feature of the Federal Court of Appeal’s 2018 decision in Fraser v Canada, where the judges concluded, “the mere fact that women disproportionately take advantage of a government program does not mean that the pension treatment afforded to those who participate in the program creates a distinction on an enumerated or analogous ground. [87] Similar arguments also factored into all of the dissenting judges’ reasons at the Supreme Court. [88] Justices Brown and Rowe in particular, summarized the Court’s (past) approach to causation in section 15 inquiries, as follows:

A search for impact is a search for causation. The inquiry here is into whether the gap in outcomes is fully explained by pre-existing disadvantage or whether state conduct has contributed to it. In other words, s. 15 is concerned with state conduct that contributes to — that is, augments — pre-existing disadvantage. [89]

For years, scholars have criticized this rigid approach for failing to adequately consider the relationships between the broader inequalities that a claimant could be facing and the equality claim they are actually making. [90] Indeed, it is antithetical to the recognition of adverse effects discrimination to reject claims on the basis that a claimant’s disadvantage cannot be fully explained by government action. The very purpose of recognizing this form of discrimination stems from the recognition that some groups may be adversely affected by government action due to their historical disadvantage that is produced and sustained by broader contextual and systemic factors. As Joshua Sealy-Harrington writes:

“Causation” cannot be limited to its overt, active, and inequality-exacerbating interventions if a meaningful conception of equality is to be realized. Indeed, ubiquitous inequality — linked to “social attitudes and institutions” — can be traced to historical and contemporary government policy, making “causation” defences deceptive and misleading. [91]

Overall, strict causation requirements have had the effect of excluding adverse effects discrimination claims from section 15. [92] The consequence of this was—at least until Fraser— that discrimination embedded in apparently neutral government policies or decisions was consistently not recognized as discriminatory.

Such doctrinal requirements related to establishing causation under section 15 might seem particularly insurmountable in the context of environmental problems. [93] Due to the nature of environmental harm—typically transboundary, latent, and large in scope—causation is often difficult to pinpoint with precision. Indeed, understanding environmental harm can be complex because of its temporal and spatial characteristics. [94] That is, the harm itself moves across time and space, covering wide areas and imposing long lasting effects. Although environmental harm may originate in a specific location, it is often impossible to link that harm to a particular polluter. [95] Moreover, toxins accumulate over time. They have a cumulative impact on environments and communities. In an area with multiple polluters, these accumulations make it even harder to identify the cause of harm and its extent. [96]

Harm can be perpetual and potentially intergenerational. [97] Thus, there is a degree of nebulousness inherent in delineating environmental harm that often troubles causation and evidentiary requirements in any legal analysis. [98]

….

CONCLUSION

For decades, section 15 has been plagued by a rigid reliance on categories and rules that do not map neatly onto today’s complex issues—particularly, environmental ones. Rules around causation, evidentiary requirements, and choice have limited the ability for claimants to rely on courts and section 15 to identify and rectify adverse effects discrimination linked to government action. This has fostered a recurring tension among judges to balance the need for certainty in the rules regarding section 15 and the flexibility required to adequately apply these rules to reality. However, as Professor Colleen Sheppard aptly insists, when strict adherence to rigid rules does not adequately fulfill section 15’s goals, we must return to the fundamental promise of substantive equality, which lies in equitable outcomes and equal opportunities for disadvantaged groups. [136]

To adequately fulfill the promise of substantive equality, the section 15 analysis requires a more principled and flexible approach, where anyone experiencing discrimination from a government action is entitled to a true equality in outcomes. As a majority of the Supreme Court stressed in Fraser, section 15 should move towards a conceptualization of equality which promotes the flourishing of all individuals in all of their particularity, even when it is impossible to establish that a particular government action fully caused the discrimination at issue. [137] In a way, flexibility in the section 15 analysis refocusses the inquiry around dignity of the person, [138] which is intimately connected to where we live and our environments. [139]

Flexibility in the application of section 15 is also necessary to accommodate environmental claims under the section. Given that environmental pollution and harm carry complex temporal and spatial dimensions, it does not fit neatly within the Charter framework. The focus on specific pathways of causation and harm—which are inherently difficult to delineate with precision and difficult to prove with evidence—has the quasi effect of barring the application of section 15 to environmental problems. Maintaining these doctrinal limitations risks losing sight of the important rationale behind section 15 in the first place, which is to rectify inequality when it presents itself. Indeed, rigid rights-based frameworks distract from the very real equality issues at stake.

Cases of environmental inequality are prevalent in the backyards of poor and racialized communities across Canada. While affluent—and traditionally white—communities have long opposed infrastructure and other development projects in their backyards, it is undeniable that the burdens of development and pollution have been displaced—almost exclusively—into the backyards of marginalized communities.

The role of discretionary legislative regimes in creating and sustaining these inequalities is well-documented. As a result, governments have a responsibility to rectify such environmental discrimination under section 15 of the Charter. Although jurisprudence on adverse effects discrimination signalled that environmental claimants would be faced with significant challenges around causation and evidentiary requirements to establish environmental discrimination under the section, newfound flexibility in the section 15 framework after Fraser signals that the path to challenge unequal pollution burdens may be more possible than ever.

Under the new framework, the popular slogan “Not in Anyone’s Backyard” might just be given room to transform from a longstanding aspiration to a new reality—one where the law is able to respond to the widespread environmental discrimination that plagues vulnerable communities across Canada.