Environmental Racism and the Struggle for Change in Canadian Law

Contributed by Olivia Wawin

Introduction

Although the pandemic has been the focus of health news coverage recently, many marginalized groups in Canada have been experiencing health crises for years. We take for granted the effects that a person’s race can have on their socioeconomic opportunities and wealth, but what about the health of the neighborhoods they live in? There is evidence that neighborhoods composed of predominantly racialized people have worse health outcomes, mainly due to environmental factors including undrinkable water and air pollution. Canadian law has been largely silent on the issue of environmental racism, and absent legislation specifically addressing environmental degradation’s effects on people of colour in Canada, litigation has had to fill in the gap. However, this could change soon with Bill C-226, which was tabled in the House of Commons on February 2nd.

What is environmental racism?

The term “environmental racism” was first used in 1987 by Reverend Dr. Benjamin Chavis, an established civil rights organiser, to criticize environmental law in the United States. Chavis has described environmental racism as racial discrimination in environmental lawmaking, the exclusion of people of colour from decisions, and  the “official sanctioning of the life-threatening presence of poisons and pollutants in communities of color.” The effect of environmental racism has also empirically been shown to not depend on income, albeit in a U.S. context. Despite the term originally being used to describe the situation of communities living near hazardous waste sites, environmental injustice can take many forms, including inadequate urban planning, a lack of safe drinking water, and more.  

Although the idea of environmental justice described in terms of race first sprung up in the U.S., there is evidence of differential effects of environmental destruction in racially diverse communities in Canada. In fact, a UN rapporteur has stated that there is a “pervasive trend of inaction of the Canadian government in the face of existing health threats from decades of historical and current environmental injustices.”

A historical example of this phenomenon is the environmental degradation and eventual destruction of Africville, a predominantly Black community in Halifax, Nova Scotia. First established by the descendants of enslaved peoples and Black refugees of the War of 1812, the community was vibrant and self-sustaining. The City of Halifax, however, began to place “undesirable services”, such as a fertilizer plant, slaughterhouses, and human waste “disposal pits” in the area throughout the 19th century. In the 1950s, the city put a garbage dump in the community after residents of other areas rejected this idea due to public health concerns. By the 1960s, the community was viewed as a “slum” by Halifax residents and it was bulldozed in an “urban renewal” effort, with its long-time residents pushed out.


Africville during the  1960s. || (Source: CreativeCommons // Ross Dunn)

Current examples in Canada

Located in Canada’s “Chemical Valley,” the Aamjiwnaang First Nation of Ontario is surrounded by over 50 industrial plants within a 25 km radius of its territory. In 2016, this area was the source of approximately 10 percent of Ontario’s total pollution output. Aamjiwnaang people are disproportionately exposed to sulfur dioxide, particulate matter, benzene, and mercury, among other toxic substances. Sulfur dioxide and particulate matter may affect lung and cardiovascular function, while a high concentration of benzene in the air has been linked to “strikingly high” rates of a form of leukemia in the area. Mercury has been linked to neurological, endocrine, reproductive, cardiovascular, digestive damage, in addition to birth defects or stillbirths if a pregnant person is exposed.    

Another example of environmental racism is the existence of long-term drinking water advisories (DWAs) in 29 Indigenous communities in Canada as of February 24th, 2022. The lack of clean water in these communities has had devastating public health effects: a meta-analysis has shown that reports of gastrointestinal infections were 26 times higher in Indigenous communities than the rest of Canada, indicating a higher level of waterborne microbes in their supply, while heavy metal contamination is a concern for long-term health outcomes, including cancer. Still, there is relatively little research on First Nations reserves specifically, making it difficult to draw a causal link between water quality and health outcomes. However, the adverse health effects of a lack of sanitation and heavy metal leeching in drinking water are well-documented in other contexts. Although the Trudeau government has been working to end all DWAs on First Nations reserves, as promised in 2015, most of the advisories have been ended due to interim fixes to infrastructure, not long-term and systemic overhaul.  

Urban centers are also not immune from environmental racism. Toronto, Montreal, and Vancouver all show “lower walkability, lower streetscape greenness and worse traffic-related air pollution” in higher poverty areas. Air pollution, according to Health Canada, is a “leading risk factor for premature mortality”, and is the cause of around 15,300 deaths per year. In addition, while decreased park access is correlated with increased mortality, well-maintained parks and green spaces can provide air filtration and soak up rainwater. A lack of tree cover in lower-income, racially diverse Montreal neighbourhoods has also been criticized, as residents of neighborhoods with fewer trees do not get to enjoy their positive effect on mental health or their cooling benefits during heat waves.


An oil refinery near the Aamjiwnaang First Nation reserve in Sarnia, Ontario. || (Source: CreativeCommons // josullivan.59)

The answer: lawsuits or legislation?

Multiple lawsuits have taken aim at the federal and provincial governments for their lack of action in the face of environmental injustice. The former residents of Africville and their descendants, for example, have been attempting to launch a class-action suit against Halifax for the destruction of their community, however they have not yet been successful in proving that the area they occupied was clearly defined enough. Two residents of Aamjiwnaag filed a lawsuit against the Ontario’s Ministry of Environment in 2011 on the basis of their Charter rights to life, liberty, and security of the person (section 7), as well as their right to equality (section 15). However, they withdrew the lawsuit in 2017 after the province promised to take action with a cumulative effects policy, which has since been criticized for its inefficacy. A class action lawsuit was also launched by multiple First Nations against the federal government for breaching its fiduciary duty and sections 7 and 15 of the Charter by failing to address DWAs on reserves across the country. The parties reached a settlement in December 2021, with Canada promising 1.5 billion dollars in settlements for individuals affected and a commitment of 6 billion dollars to increase access to clean water on reserves.

The question remains of how to address environmental racism as a systemic issue. Dr. Chavis has characterized this discrimination as a problem with environmental law itself. The solution, then, may not be to pass more environmental legislation in general, but legislation that is remedial and takes into account the perspectives of racialized Canadians in the interest of substantive equality. This February, Green Party MP Elizabeth May reintroduced a private members bill to address environmental racism in the House of Commons, after an almost identical bill died when the last federal election was called. Bill C-226 would require the federal government to devise a national strategy to advance environmental justice, including a study of the “link between race, socio-economic status and environmental risk”, and other measures to eradicate environmental racism (including consideration of possible amendments to legislation, the involvement of affected groups, and compensation). Another legislative approach is encapsulated in Bill S-5, introduced by Senator Marc Goldin February. This bill, if passed, would amend the Canadian Environmental Protection Act to include a “right to a healthy environment” for all Canadians. With an unqualified right to a clean environment, groups affected by environmental racism may have another way of holding governments accountable.

Olivia Wawin is a Junior Online Editor of the McGill Journal of Law and Health. She is a first-year student at McGill University’s Faculty of Law. Prior to beginning law school, she completed a Bachelor of Sociology and Economics at McGill University. Her interests include maternal and sexual health, international development, and human rights.

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