Chapter 6: Environmental Law for a Just Transition

Key Messages

Environmental law has furthered ‘extractivism’, a mode of accumulation that necessitates both a high pace and a large scale of taking, that is non-reciprocal, and that produces intense, concentrated impacts on people and ecosystems
These extractive logics are built into environmental law: they reside in the risk-based models for toxic substance regulation in the CEPA; the assumption of assimilative capacity that informs the thresholds built into air and water pollution permitting regimes; and the permissive, rather than precautionary, stance of our facility-siting regimes. This imperils the transition to a post-extractive, greener future.
The environmental justice movement provides a new perspective, one which is encouraging us to focus on fairness in the distribution of environmental benefits and burdens, and in the processes, biases and structures that determine those distributions. Environmental Law for a Just Transition must prioritize equity, inherent Indigenous jurisdiction, and work to re-make the underlying legal and structural relations of production and consumption.

The approach to environmental assessments has been project-specific, proponent-driven, and operated on a “consult-and-accommodate” model in relation to affected Indigenous peoples. While the Trudeau government’s Impact Assessment Act did introduce some novel process elements – including a “climate test”, sustainability assessment, regional and strategic assessments, and provisions to allow for assessments to be conducted in partnership with “Indigenous Governing Bodies – its does not fully operationalize Indigenous jurisdiction
Conflicts over the siting of renewable energy installations reveal enduring tensions over who makes decisions about where projects are located, and therefore who will reap the benefits and who will bear the costs – environmental justice considerations continue to be overlooked
Pollution permitting, with its inability to consider cumulative impacts, has been a major contributor to environmental injustice.

Amendments to the Canadian Environmental Protection Act (CEPA) propose to introduce a “right to a healthy environment” into Canadian statute law for the first time, but it is not yet clear whether Ministers would be required to take specific actions when ambient environmental quality standards are routinely breached in specific geographic areas
Proposed Bill C-226, the National Strategy Respecting Environmental Racism and Environmental Justice Act requires the Minister of Environment to develop and table a National Strategy on Environmental Racism and Environmental Justice, to include measures that could be taken to address environmental racism, and to make periodic reports to Parliament on any actions taken. However, the Bill contains no provisions which would bind the Ministry to conduct or complete any of those identified measures.

A focus on ambient air and water quality standards would be an improvement over the point-source permitting approach to pollution in the fossil era
The “informed and willing host” model of facility-siting, applied in the nuclear waste context, could potentially inform new approaches to facility-siting in the transition
The notion of “collaborative consent, or Indigenous-led IA processes, could potentially point the way for impact assessment in the just transition