Tag: Olivia Wawin

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 2^nd.

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 19^th 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 24^th, 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.

Contributed by Olivia Wawin

Introduction

In 2018, a class action lawsuit was brought against the Saskatchewan provincial health system after at least 60 Indigenous women came forward alleging coercion or being forced into consenting to undergo tubal ligation, a form of permanent sterilization whereby a woman’s fallopian tubes are cut or closed, ensuring that she cannot conceive again after giving birth. Since then, the class action has grown to include over 100 women from multiple provinces, who have reported similar allegations occurring as recently as 2018, for example in Manitoba.

Canada’s provincial healthcare systems have a history tainted by a lack of full and informed consent to tubal ligation procedures dating back to the early 20^th century, often with the aim of restricting population growth in “undesirable” groups such as people with disabilities, certain immigrants, Indigenous peoples, and people living in poverty. Such practices were permitted under legislation that has since been repealed, but have nonetheless persisted beyond the time that sterilization without consent was made illegal, leading to a de facto use of forced sterilizations which continue to this day.

Women of colour, Indigenous women, and disabled women have allegedly been sterilized in Canadian hospitals without providing informed consent in recent years. || (Source: pixabay // Pexels)

Background: History of Eugenics in Canada

The control of certain populations through forced sterilization is a form of eugenics, which was first used in 1883 by British scientist Francis Galton, to describe the theory that undesirable traits, such as mental and physical afflictions, could be bred out of the human race through “selective breeding”. In Canada, eugenics was considered “modern, scientific, and respectable” in the early 20^th century among politicians, doctors, and other highly regarded experts.

Through the passage of the Gradual Civilization Act in 1857 and the Indian Act in 1876, Canada had already controlled the marriage and reproduction of Indigenous peoples when theories of eugenics started to become widespread in the early 1900s. Moreover, an influx of immigrants from Eastern and Southern Europe, following Canada’s more permissive immigration policy that aimed to settle the West, gave rise to anxiety about the proliferation of “feeblemindedness” in the general population. Such theories did find some opposition by French Catholics in Quebec, as the English Protestant experts who espoused them supported measures such as birth control and sterilization. However, sterilization for the purpose of perpetuating eugenic ideologies was favoured in Western Canada, and was codified in both Alberta and British Columbia.

Codification of Forced Sterilization in the Early 20^th Century

The Sexual Sterilization Act of Alberta was passed in 1928, following widespread anxiety that mental defects and criminal activity were on the rise due to increased immigration into the province. The Act gave a “Eugenics Board”, composed of two medical practitioners and two “persons other than medical practitioners appointed by the Lieutenant Governor in Council”, the ability to authorize the sterilization of recently released mental patients with their consent or that of their guardian, although this requirement was removed in 1937. The Albertan government sanctioned the sterilization of approximately 2,800 people under the Act until it was repealed in 1972. Moreover, between 1969 and 1972, a quarter of said sterilizations were performed on Indigenous women who were overrepresented due to their increased likelihood of being branded as “mentally defective”, a theory rooted in racism towards Indigenous peoples.

British Columbia followed Alberta’s lead shortly thereafter, passing An Act Respecting Sexual Sterilizationin 1933 and putting a Eugenics Board in place to review cases involving institutionalized patients. However, the British Columbia Act had a narrower scope than that of Alberta, resulting in an estimated 200 to 400 sterilizations before it was repealed in 1973. Similar legislation had been drafted in other provinces around the same time as Alberta and British Columbia, but ultimately failed due to opposition, most notably by Catholic groups. However, it was not until 1986 that the right to consent to sterilization for all Canadians, including “mentally incompetent” individuals, was affirmed by the Supreme Court in the landmark E. (Mrs.) v. Eve case.  

In the years following these events, multiple lawsuits were filed against provincial health authorities in both Alberta and British Columbia. The most well-known case is that of Leilani Muir, who as a child was deemed “mentally defective”, institutionalized, and sterilized without her knowledge pursuant to Alberta’s Sexual Sterilization Act. Upon taking an IQ test in her adulthood that proved that she was of normal intelligence, she won a lawsuit in 1996 against the Albertan government for wrongful sterilization, leading to a formal apology and compensation to her and hundreds of others who had been similarly violated as a result of the Act.  

The theory of eugenics has historically been used in Canada to justify the sterilization of certain groups without consent. || (Source: pixabay // 1662222)

Contemporary Eugenics

Despite all legislation allowing sterilization without consent having been repealed in Canada, there is nonetheless evidence demonstrating the continuation of such practices. For example, forced sterilization of Indigenous peoples occurred in “Indian hospitals”, which operated across Canada. Even after the Canadian Charter of Rights and Freedoms came into force, which guarantees “the right to life, liberty, and security of the person” in section 7, de facto eugenics is still allegedly being practiced in Canada’s hospitals. Alberta, for example, has faced allegations of forced sterilizations of Indigenous women that occurred years after the Sexual Sterilization Act was repealed. Moreover, the aforementioned Saskatchewan lawsuit details similar instances of forced sterilization of Indigenous women in recent years.

Notably, a recent Senate report on forced and coerced sterilizations in Canada since 2000 found that the practice persists in hospitals, with marginalized women being particularly vulnerable. For instance, allegations of a lack of informed consent to sterilization procedures included accounts of Indigenous women being coerced by medical staff who made threatening remarks about child custody, not being adequately educated on the permanence of the procedure, being asked for consent shortly after labour or while the effects of an epidural were wearing off, and not being made aware that they could decline the procedure. A Haitian woman from Montreal has also filed a complaint alleging she was not informed of the medical implications of the tubal ligation that she verbally consented to right before undergoing an emergency C-section in 2018. Her story has been widely publicised in Quebec after Radio-Canada interviewed her  and other victims of coerced sterilization this past September.

Conclusion: Where Do We Go from Here?

The Senate report concluded with two recommendations: that the federal government respond to the report’s findings as soon as possible, and that a second study focusing on survivors’ testimonies be completed by Parliament to find solutions to stop the practice of forced sterilizations. This report was also completed without the participation of the Quebec government, as it refused to participate in 2018 when the Senate’s research began (although Premier Legault has condemned coerced sterilizations since the Radio-Canada report). To remedy this gap in the literature, the Assembly of First Nations of Quebec and Labrador, in partnership with the University of Quebec in Abitibi-Témiscamingue, has launched a new research inquiry on forced sterilizations, and is currently collecting testimonials from First Nations and Inuit women in Quebec.

More broadly, it is argued that addressing systemic discrimination as the root cause of forced and coerced sterilizations is essential to eradicating such practices. Rather than finding that women’s individual rights were violated in certain exceptional instances, it is imperative that courts and governments recognize the existence of systemic discrimination, particularly against women of colour and women with disabilities, which in turn has resulted in a pattern of medical victimization. In the words of Alisa Lombard, lead counsel in the case against the Saskatchewan government: “whatever Canada has done is wholly inadequate and really not measured to the seriousness of the violations that are at stake”.

Olivia Wawin is a Junior Online Editor with the McGill Journal of Law and Health. She is currently 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.