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On June 17, 2014, several environmental groups in New Brunswick circulated for comment a draft environmental bill of rights for children. Called “A Bill of Rights to Protect Children’s Health from Environmental Hazards,” it is the first of its kind in Canada. If passed, the law would confer on every child “the right to protection from environmental hazards,” meaning a hazard that impairs or damages the environment or changes the environment in a manner that may threaten human health, including physical and mental well-being, and includes a “contaminant” as defined by the Clean Environment Act.

The teeth of the bill would come from section 5:

The Government of New Brunswick has an obligation, within its jurisdiction, to ensure it does not expose a child or allow a child to be exposed to an environmental hazard.

Any child whose right to protection from environmental hazards, as guaranteed by this Act, has been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Thus, the Bill would give children standing to sue the government of New Brunswick (via their parents or guardians) for money, or for other relief, if they suffer harm due to an “environmental hazard.”

Such a Bill would be a major departure from existing Canadian law, though not unusual internationally. Ontario has an Environmental Bill of Rights, 1993 (EBR) which recites that “the people of Ontario have a right to a healthful environment,” but the EBR only confers procedural rights, such as the right to access information and the right to participate in governmental decision-making. No Canadian jurisdiction now recognizes a human right to a healthy environment, or authorizes American-style citizen suits to enforce environmental rights.

The New Brunswick draft was prepared by the New Brunswick Environmental Children’s Health Collaborative, one of many children’s environmental health groups across the country. The legal backgrounder on the draft bill outlines its rationale. As is now well known, environmental contaminants can affect children more easily, but existing regulations are not always well designed to protect the special vulnerabilities of children. Sources such as the Canadian Medical Association and the United States Environmental Protection Agency frequently report that pollutants cost the health care system and society billions of dollars each year.

It is not likely that any Canadian government will quickly adopt a law of this kind, because of fears that such open-ended “rights” could cause economic and regulatory havoc, with an avalanche of litigation. Supporters of the concept say such fears are overblown.

As we have previously reported, over 90% of United Nations member countries recognize the right to a healthy environment through their constitution or other laws. Specifically, 177 out of 193 U.N. member nations recognize a substantive right to a clean environment. Aside from Canada, the holdouts include the United States, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia. Of course, having such a law is by no means the same as having a healthy environment.

In 2012, Professor David Boyd, one of Canada’s leading academics on environmental law and policy, reviewed the constitutions and case law of the 193 U.N. member countries on this very issue. His conclusion was that “the incorporation of the right to a healthy environment in a country’s constitution leads directly to two important legal outcomes—stronger environmental laws and court decisions defending the right from violations.” Are these laws leading to a cleaner environment? Boyd posits that, “The evidence in this regard is strikingly positive. Nations with environmental provisions in their constitutions have smaller ecological footprints…are more likely to ratify international environmental agreements, and made faster progress in reducing emissions of sulfur dioxide, nitrogen oxides, and greenhouse gases than nations without such provisions.”

What about lawsuits overburdening regulators? Boyd argues that only the most egregious cases have led to awards against governments, and the amounts have been modest. He cites examples from Russia, Romania, Chile and Turkey.

The European Court of Human Rights (ECHR) provides two interesting examples. In both cases, the plaintiffs suffered serious distress, but could not prove that their health problems were due to pollution from a particular industry. In Tatar and Tatar v. Romania (2009), a company used sodium cyanide to exploit a gold mine near the applicant’s home, much as the Giant Mine did in Yellowknife. An environmental accident occurred, releasing cyanide-contaminated tailings. The European Convention on Human Rights (ECHR) recognizes (in its Article 8) a “right to respect for private and family life.” The ECHR observed that pollution could interfere with a person’s private and family life by harming his or her well-being, and that a state had a duty to ensure the protection of its citizens by regulating the corporations that emit it. The ECHR held that the applicant had failed to prove a link between his asthma and his exposure to sodium cyanide, but it did find that the Romanian authorities had “failed in their duty to assess, to a satisfactory degree, the risks that the company’s activity might entail, and to take suitable measures in order to protect the rights of those concerned”. The Court awarded the applicant 6,266 euros (EUR) for costs and expenses and dismissed his claim for damages.

In Fadeyeva v. Russia (2005), a Russian national sued her government because she alleged that the operation of a steel plant in close proximity to her home endangered her health. She relied on Article 8 of the ECHR. The Court found that the concentration of various toxic chemicals exceeded permissible levels near her home. The Court noted the possibility that the applicant had suffered harm from the chemicals: “Even assuming the pollution did not cause any quantifiable harm to her health, it inevitably made the applicant more vulnerable to various illnesses. Moreover, there can be no doubt that it adversely affected her quality of life at home.” The Court found fault with the Russian government because it failed to regulate the plant. The plant was alleged to be responsible for 95% of the overall air pollution in the region. The Court noted, however, that the applicant did not incur any expenses as a result of the violation of her rights, and was never deprived of title to her property. Her possible relocation by the government was only “one of many possible solutions.” In its final judgment, the Court ordered Russia to pay 6,000 euros (EUR) for her mental distress, as well as her costs and legal fees.

As these cases illustrate, it is exceptionally difficult to prove legal causation of a specific illness by a specific polluter. This is just as true in Canada as it is in Europe, and may be the major reason that there has been so little litigation on environmental rights in the countries that have them.

There is also a philosophical issue: would the courts do a better job of protecting the environment than elected governments do?

This article was originally published in SLAW on August 18, 2014.

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