Canada

CRIN would like to express our profound gratitude to our external reviewers Cheryl Milne, Elise Burgert and Hannah West from the David Asper Centre for Constitutional Rights at the University of Toronto, Environmental Working Group for their insightful comments on a draft of this report. CRIN also sent a draft version to the State for feedback and any comments received were taken into account in finalising the report. Any errors or inaccuracies remaining in the report are CRIN’s.

This report is provided for educational and informational purposes only and should not be construed as legal advice. CRIN does not accept liability for any loss, damage, cost or expense incurred or arising by reason of any person using or relying on information in this report. CRIN encourages personal and educational use of this publication and grants permission for its reproduction in this capacity where proper credit is given in good faith.

All CRIN content is licensed under a Creative Commons Attribution Non Commercial No Derivatives 4.0 licence. No material produced by CRIN may be modified unless consent is given in writing. No material produced by CRIN may be re-used for commercial gain unless consent is given in writing.

I. National legal protections

A. Are environmental rights protected within the national constitution?

Environmental rights are not explicitly protected within the Canadian Constitution nor are there any provisions specific to children.

Individual rights are protected in the Canadian Constitution under the Canadian Charter of Rights and Freedoms (the “Charter”).¹ The Charter guarantees individuals the enumerated rights and freedoms set forth in the Charter “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The Charter applies to all persons,³ and consequently protects the rights of children as well as adults.⁴ Although environmental rights are not expressly enumerated, courts responsible for interpreting the Charter may find that certain environmental rights are protected within the ambit of existing Charter rights and freedoms.⁵ The most likely candidates for such a right include section 7 (the right to life, liberty and security of the person), and section 15 (the right to equal protection and benefit of law). Alternatively, environmental rights may also be identified under section 35 of the Charter, which affirms Aboriginal rights and treaty rights separate from any additional individual rights and freedoms. These rights and freedoms are discussed separately immediately below, and environmental cases addressing these rights further below.

Although the Charter does not explicitly include environmental rights, there are arguments that such a right may be encompassed within the scope of section 7 of the Charter, which protects Canadians from deprivations of the rights to life, liberty and security of the person except in accordance with the principles of fundamental justice.⁶ Section 7 provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principle of fundamental justice.”⁷ The liberty interest protected by section 7 includes the individual’s right to make “important and fundamental life choices” free from State interference, including the choice of where to live.⁸

In order to make out a case under section 7, the applicant must first demonstrate a government action that has an effect on their life, liberty, or security of the person. The burden then shifts to the government to demonstrate that the deprivation was in accordance with the principles of fundamental justice.

Section 15(1) of the Charter provides that “(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The plaintiff must demonstrate that (1) the law treats people differently either in its purpose or effects, based on protected grounds (including sex, race, national or ethnic origin, disability, and sexual orientation) and (2) the differential treatment results in discrimination, defined as the perpetuation of historical disadvantage against the group(s) in question.⁹

Although section 15 of the Charter explicitly refers to ‘age’ as an enumerated ground, in reality, it remains difficult for children to make out an age-based claim under this section. The Courts have often held that the infringement and/or denial of children’s rights on the basis of their age can be demonstrably justified as a reasonable limit pursuant to section 1 of the Charter. It has been held that restrictions imposed on children are an appropriate line drawn by the government and deserving of deference, and that the infringements and/or denial of children’s rights are in response to the actual needs and capacities of children and therefore, cannot be classed as discrimination.¹⁰

There are further examples of human rights legislation in Canada tacitly permitting discrimination against children and youth on the basis of their age. For example, the Human Rights Code of Ontario excludes under 18 years old in the definition of age.¹¹ The case of Arzem v Ontario (Community and Social Services)¹² successfully challenged the definition of age in the Ontario Human Rights Code. Nevertheless, the Code continues to define age by referring to a minimum of 18 years old.

In the context of environmental cases, there have been several environmental cases filed under sections 7 and 15 often in conjunction.¹³ These are discussed in Part I.B below.

Nevertheless, it is also worth recognising that even if environmental rights are found within the ambit of the Canadian Constitution, such rights would be subject to limitations.

For example, the Charter only protects against government action, not private action, which is regulated by other laws and regulations. Secondly, the government may impose “justifiable and reasonable limits” on rights and freedoms under section 1 of the Charter, meaning that rights within the Canadian Constitution are not unlimited. Thirdly, under section 33 of the Charter, the government may choose to abrogate a Charter right by express legislative edict, notwithstanding non-compliance with the Charter. In many instances, a right may also be limited by the facts of the case, as Charter jurisprudence is fact-driven. To date, no case law has been found in which the notwithstanding clause has been used to limit environmental law. Fourthly, environmental rights may also exist as an unwritten constitutional principle, which is a contested area of constitutional jurisprudence. Unwritten principles are “unstated assumptions” that “dictate the major elements of the architecture of the Constitution itself and are as such its lifeblood”. Thus, unwritten principles guide the interpretation and development of the Constitution and the evolution of the Charter.¹⁴ Although the courts have not yet recognised any unwritten constitutional principles that relate to the environment, the Supreme Court of Canada has described environmental rights using strong language. In R. v. Hydro-Québec, the Supreme Court of Canada opined that “legal measures to protect the environment relate to a public purpose of superordinate importance” and in Ontario v. Canadian Pacific Ltd. described “stewardship of the natural environment”¹⁵ as a “fundamental value”, and a safe and healthy environment as a “fundamental and widely shared value”.¹⁶ Further, in 114957 Canada Ltée (Spray-Tech, Société d’arrosage) v. Hudson (Town), the Supreme Court said that “[o]ur common future, that of every Canadian community, depends on a healthy environment....This Court has recognised that ‘(e)veryone is aware that individually and collectively, we are responsible for preserving the natural environment ... environmental protection [has] emerged as a fundamental value in Canadian society.”¹⁷

Section 35 of Charter

Section 35 of the Charter provides: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are recognised and affirmed” and provides an institutional means for Aboriginal peoples to resist violations of their rights.

Aboriginal rights are not defined by section 35. However, the Supreme Court has sought to define Aboriginal rights over time, through landmark cases such as R. v. Calder and R. v. Sparrow.

The case of R. v. Sparrow concerned Ronald Sparrow, a Musqueam band member, who was arrested for fishing in the Fraser River with a net that was longer than what was permitted by his Canadian government food fishing licence. The Musqueam community recognised Sparrow’s arrest as a threat to their collective rights. They believed that they had an inherent and extinguishing right to maintain their culture and ways of life, particularly in relation to fishing, and that regulations infringing their rights were unjustified and invalid. The Supreme Court held that, despite nearly a century of Canadian Governmental regulations and restrictions on the Musqueam’s right to fish, their existing Aboriginal right to fish had not been extinguished. The Court interpreted the words “recognised and affirmed”, as they appear in Section 35, to mean that the Canadian government cannot override or infringe upon these rights without justification.

Despite the partial win for the Musqueam community and Aboriginal rights, the Court in R. v. Sparrow made clear that Aboriginal rights are not absolute and infringement by the State of Canada can be justified in particular circumstances (the Sparrow test). The protection afforded under section 35 is far from ubiquitous and its true effectiveness remains unclear. Many argue that section 35 simply reinforces the colonialism of Aboriginal communities because it makes Indigenous Nations subject to Canadian rules and regulations; ultimately recognising Canadian law as supreme.¹⁸

Jurisprudence has interpreted Aboriginal rights to include a range of cultural, social, political and economic rights including the right to land and to claim title, as well as to fish, to hunt and to practise one’s own culture, and to establish treaties. Courts have recognised that environmental degradation and resource development projects, and infrastructure projects may violate constitutionally protected Aboriginal rights because of their impact on the environment.¹⁹

Nevertheless, it is unclear whether these rights incorporate the right to a healthy environment and there have been many cases where assertions of Aboriginal rights have been entirely unsuccessful in protecting environmental resources. For example, in Mikisew Cree First Nation v. Canada (Governor General in Council)²⁰, the Supreme Court held that the State did not have a duty to consult Indigenous groups during the law-making process, even if the laws being enacted could have an adverse impact on Aboriginal or Treaty rights. The Supreme Court considered that Indigenous groups had more appropriate access to remedies once laws were enacted, without imposing a duty to consult on the State which was argued would interfere with parliamentary sovereignty and parliamentary privilege.

B. Have constitutional rights protections been applied by national courts with regards to environmental issues?

Section 7 and Section 15 of the Charter

As discussed above, there are ongoing proceedings under section 7 and section 15 brought by children who allege that they have been discriminated against, with respect to the environment, on the basis of age, a protected class under section 15. There have also been similar cases brought by Aboriginal litigants.

• In 2011, members of the Aamjiwnaang First Nation, sought Judicial Review against the Ontario Ministry of Energy’s decision to allow additional pollution from a Suncor refinery near their community in Sarnia, Ontario on the grounds that it violated their section 7 and section 15 rights. They dropped the proceedings in 2016 because of indications that the Government of Ontario was taking action with respect to the pollution.²¹

• In September 2015, members of the Grassy Narrows First Nation alleged that proposed clear-cut logging on their traditional territory will worsen pre-existing mercury contamination and threaten human health.²²

• ENvironnement JEUnesse (ENJEU) filed an application with the Superior Court of Quebec for authorisation against the Government of Canada to bring a class action on behalf of all Quebec residents aged 35 and under, alleging that the Government of Canada has failed to take sufficient action to reduce greenhouse gas emissions in the face of climate change and, therefore, failed to protect the fundamental rights of Quebec youth under both the Canadian Charter of Rights and Freedoms and Quebec’s Charter of Human Rights and Freedoms. The Quebec Superior Court rejected ENJEU’s request for the authorisation of the class action on the basis that it did not meet the requirements to proceed as a class action lawsuit. The Court found that the age 35 cut-off to be arbitrary and inappropriate, since it did not consider the rationale for choosing it to be adequately justified.²³ The Court also determined that ENJEU did not have the authority to act on behalf of under 18s in their proposed class action, because under 18s could not be members of class actions. Justice Morrison stated: “In Quebec, the age of majority is set at 18. It is only at this age that a person becomes able to fully exercise all his civil rights… Environnement Jeunesse can give a ‘voice’ to young people, but it does not have the authority to change the legal status and powers of minors.”²⁴ ENJEU appealed the Superior Court’s decision to the Quebec Court of Appeal, arguing that their decision to focus on youth (i.e persons under 35) was not arbitrary. ENJEU argued that under 35s would be disproportionately impacted by climate inaction, and they were within their rights to focus on the needs and interests of youth. ENJEU also sought to contest the Justice Morrisons’ determinations on the inclusion of under 18s in the class action. The Court of Appeal dismissed the appeal, and did not litigate on the allegations that the Canadian Government’s actions were contributing to climate change and therefore violating Charter Rights.²⁵ ENJEU filed an application for leave to appeal to the Supreme Court, but in July 2022 the Supreme Court dismissed the application.²⁶ This judicial reasoning could be a barrier to people bringing age-based climate challenges in Canada.

• The case of Mathur et al v Ontario (AG) was filed in the Ontario Superior Court of Justice in November 2019. A group of seven youth plaintiffs sought several declarations: firstly, a declaration that their rights have been infringed upon pursuant to sections 7 and 15, secondly, a declaration that Ontario's target violates an unwritten constitutional principle that the government will not engage in conduct that results in future harm to the citizenry, thirdly, a declaration that sections of the Constitution Act that allowed for more lenient targets of the Paris Agreement are unconstitutional and of no force and effect, and finally, an order that Ontario implement a greenhouse gas reduction target and revise its climate plan.²⁷ In April 2020, the Ontario government filed a motion to dismiss, arguing that the Charter does not guarantee a right to a stable climate, the plaintiffs lack standing to represent future generations, the plaintiffs have shown no reasonable cause of action, and the plaintiffs cannot prove their allegations. In November 2020, the Court rejected the motion to dismiss on the grounds that it was not plain and obvious that the plaintiffs present no reasonable cause of action. The Justice reasoned that both the GHG reduction target and the repeal of the Climate Change Act are reviewable by the court for their compliance with the Charter. According to the plaintiffs, this is the first time a Canadian court has ruled that climate change may threaten fundamental rights under the Charter.²⁸ The case is still pending.

• La Rose v. Her Majesty the Queen was filed in the Federal Court in 2019. Fifteen plaintiffs aged between 10 and 19 years old filed against the Attorney General of Canada, alleging that Canada’s failure to take action to reduce greenhouse gas emissions impacts their rights under sections 7 and 15.²⁹ In October 2020, the Court dismissed on a pretrial motion to strike for failing to state a reasonable cause of action. The plaintiffs appealed the case to the Federal Court of Appeal in November 2020, and in May 2021 they submitted their memorandum of fact and law.³⁰ The case is still pending.

• In the case of Lho’imggin et al. v. Her Majesty the Queen³¹, two houses of the Wet’suwet’en Indigenous group filed a legal challenge in February 2020 alleging that the Canadian government’s approach to climate change violated their constitutional and human rights. The State of Canada (the Defendant) filed a motion to strike out the case which was granted by the Federal Court without leave to amend on the grounds that the case was not justiciable, had no reasonable cause of action and the remedies were not legally available. The Court wrote, “the issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government.”³² The Court further found that because plaintiffs did not reference specific sections of laws that caused specific breaches of Charter rights, their claims presented no reasonable cause of action. With regard to remedies, the Court found that the multifaceted problem of climate change would make judicial supervision meaningless, and therefore the Court could not take on a supervisory role to ensure adequate laws were passed. The Applicant appealed to the Federal Court of Appeal and provided a memorandum of fact and law. The case is pending.³³

Courts in Canada play an important role in enforcing laws. They exercise appellate and review powers over administrative environmental decision-making. In some provinces, the environmental protection legislation expressly mandates the courts to determine liability and apportion damage for environmental harm, though most environmental protection issues are determined, at first instance, by specialised environmental administrative tribunals. For example, the Ontario Environmental Review Tribunal resolves applications and appeals under the Ontario Environmental Protection Act (“Ontario EPA”) and the British Columbia Environmental Appeal Board hears appeals of decisions of government officials under the Environmental Management Act (an act similar to the Ontario EPA).³⁴

Can an individual bring legal action against a polluter, owner or occupier?

In all Canadian jurisdictions, an individual can commence a legal action against a polluter, owner or occupier for damages related to pollution. Most actions are based in nuisance, trespass, negligence and strict liability. In some provinces, such as Ontario, a plaintiff may also claim relief on the basis of a statutory cause of action. This question is discussed further below in Part II.

C. Has the concept of intergenerational equity been applied within national courts? If yes, in what circumstances?

Intergenerational equity has not been applied by national courts as an overarching principle. However, intergenerational equity is a consideration both in government incursions on, and in the proper uses by Aboriginal peoples of, land held pursuant to Aboriginal title. In Tsilhqot’in Nation v. British Columbia the Supreme Court of Canada held that “[government] incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land” and further that Aboriginal title lands cannot be put to uses that would “destroy the ability of the land to sustain future generations of Aboriginal peoples”.³⁵ This concept has not been further elaborated upon by additional case law.

D. What legislation is in place to regulate environmental protection? Are there any proposals for legal reforms currently under review in the national legislature?

There is a significant amount of legislation in Canada that regulates impacts to the environment. The federal government and the provincial or territorial governments both have jurisdiction over areas of environmental protection based on the division of powers under the Canadian Constitution. Consequently, the federal government and the provinces/territories have all promulgated laws and regulations. As such, there is often an overlap, if not contesting claims of legislative authority, between federal and provincial or territorial regulators.³⁶ The Supreme Court of Canada has consistently affirmed federal,³⁷ provincial³⁸ and municipal³⁹ governments’ powers to regulate environmental protection.⁴⁰ The means of regulating these conflicts is discussed in Part II.

Both the federal and provincial governments regulate the environmental impact assessment processes and the permitting regimes that allow the discharge of pollutants into air, water, and soil (in short, projects must have a permit in order to discharge pollutants, and violate their permits if the project discharges in excess of the limits set in the permit). There are additional laws to govern wildlife. In addition, the federal government and all provinces maintain compliance regimes that authorise the issuance of various types of orders, and the prosecution of environmental offenders. Most environmental regulators in Canada have appointed dedicated investigation and enforcement officers, with powers similar to those granted to police officers. For example, officers are commonly granted broad powers of entry, as well as specific powers to conduct environmental testing, examine and take documents and make reasonable inquiries. Enforcement officers are usually given the authority to seek judicial authorisation to exercise their powers in circumstances where consent cannot be obtained.⁴¹ Further, the federal government has imposed a carbon tax, which provides that either provinces enact their own laws that satisfy the federal criteria, or the federal law will apply as a backstop.

The level of environmental regulatory enforcement varies from jurisdiction to jurisdiction, depending on political will, available resources and public demand and some tensions exist between federal and provincial environmental legislation (see below).

Ontario is the most active in terms of enforcement.⁴²

Federal Laws

The key federal laws relating to protection of the environment are:

• Canadian Environmental Protection Act 1999 (CEPA)
• Transportation of Dangerous Goods Act 1992
• Species at Risk Act 2002
• Migratory Birds Convention Act 1994
• Nuclear Safety and Control Act 1997

Other specialised environmental legislation includes:

• The Fisheries Act 1985
• The Canadian Impact Assessment Act 2019
• The Canadian Navigable Waters Act 1985
• The Arctic Waters Pollution Prevention Act 1985
• The Canada Shipping Act 2001
• The Pest Control Products Act and the Transportation of Dangerous Goods Act 1992

Additionally, the federal government has signed numerous international agreements pertinent to environmental protection, including:

• The Copenhagen Accord: Canada committed to reducing its greenhouse gas emissions by 17% from 2005 levels by 2020.
• The Paris Agreement⁴³ (derived from the United Nations Framework Convention on Climate Change): Canada ratified the agreement in 2015 thereby committing to a reduction in greenhouse gas emissions of 30% from 2005 levels by 2030.
• Kigali Amendment to the Montreal Protocol: a set of regulatory measures to phase-down hydrofluorocarbons (HFCs).
• Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants: a voluntary initiative aimed at protecting the environment and public health and addressing climate change.⁴⁴
• Numerous bilateral and multilateral environmental agreements with nations around the globe.⁴⁵

Provincial legislation largely mirrors federal legislation by regulating the discharge of pollutants via permitting regimes, by regulating the take of wildlife, and by providing approval processes for provincial infrastructure projects. Key provincial and territorial legislation is set out below:

Legislative reform

At the federal level, there was a private-member’s bill to enact a “Canadian Environmental Bill of Rights” introduced in 2019.⁴⁹ The bill, nevertheless, was never enacted, as it didn’t complete second reading in the House of Commons.⁵⁰ The federal government is also working to implement the Pan-Canadian Framework on Clean Growth and Climate Change. It is also engaged in significant reform initiatives in the areas of environmental assessment, fisheries and navigable waters.

The Canadian Net-Zero Emissions Accountability Act (Bill C-12) requires national targets for the reduction of greenhouse gas emissions in Canada (set by the Environment Minister) for 2030, 2035, 2040 and 2045, with the objective of attaining net-zero emissions by 2050. However, Bill C-12 does not currently include a mechanism that legally binds the federal government, or any enforcement “teeth” to hold Canada to account. It is also anticipated that some provinces may seek to challenge Canada’s constitutional authority to pass such legislation because most provinces believe that a federal climate change regulatory regime is paternalistic and usurps the provinces’ right to impose their own policies (see the discussion of Greenhouse Gas Pollution Pricing Act (GGPPA) in Part III).

In 2022, the Government of Canada committed to amend and strengthen (through Bill S-5) the Canadian Environmental Protection Act, 1999 (CEPA), and recognised the right of Canadians to a healthy environment and the duty of the Government to protect such right when administering CEPA.⁵¹ This includes the development of an implementation framework, detailing, among others, “how principles such as environmental justice and non-regression would be considered in implementing the CEPA, as well as how the right would be balanced with relevant factors such as social, health, economic and scientific considerations”.⁵² According to the government, the amendments will focus on protecting vulnerable populations, assessing real life exposures, strengthening the regime for substances that are toxic under CEPA and of the highest risk, supporting the shift to safer chemicals, increasing transparency in decision-making, reducing reliance on animal testing and introducing changes to the Food and Drugs Act to strengthen the environmental risk assessment and risk management of drugs, among others.⁵³ The framework “will be developed through robust consultations” and “Ministers will report on the implementation of the framework annually”.⁵⁴

Most provinces are actively pursuing a variety of environmental law reform initiatives:

• In 2022, the New Brunswick Environmental Network (NBEN) has proposed legislation titled the New Brunswick Environmental Bill of Rights: An Act to Protect Children, All New Brunswickers and Nature, which includes children in its title as a way to highlight the special vulnerability of children to environmental pollution, with the aim of protecting human health by recognising that children, and therefore all people and future generations have the right to a healthy environment.⁵⁵

• The Government of the Northwest Territories has adopted a Statement of Environmental Values in 2022 to ensure climate change impacts are specifically considered when making government decisions.⁵⁶

• In British Columbia, the amendments to the Environmental Management Act, which modified the process of identifying contaminated sites, entered into force in 2021.⁵⁷ After the United Nations Special Rapporteur on human rights and hazardous substances reported that indigenous peoples in Canada are disproportionately affected by toxic waste, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act in 2019.⁵⁸ Since the adoption of this Act, British Columbia has been involved in numerous high-profile resource disputes, such as Coastal GasLink Pipeline Ltd. v. Huson.⁵⁹ In December 2021, British Columbia released its hydrogen strategy to accelerate the development of the sector, help reduce emissions and overcome reliance on fossil fuels.⁶⁰

• Quebec amended the Environment Quality Act in 2020 to modernise the environmental authorisation scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund (Bill 102).⁶¹

• Ontario’s Environmental Bill of Rights was amended and significantly weakened, including by removing the position and Office of the Environmental Commissioner of Ontario in 2019.⁶² Amendments to the Low Carbon Fuels Regulation (Ontario Regulation 79/15) which sought to streamline the approvals process for certain manufacturers to switch from fossil fuels to alternative fuel materials were announced in 2021.⁶³ Ontario has “limited regulatory control over odour emissions beyond broad legislative prohibitions against emissions that may cause an adverse effect” and, although an update to the guide to address odour mixtures was announced in 2021, the uncertainty in this area remains a barrier to “even begin development proposals such as composting facilities”.⁶⁴ The Government of Ontario has also implemented legislative reforms that will fundamentally change the product stewardship regime.⁶⁵

However, there are tensions that exist between federal and provincial environmental legislation and many provinces’ recent environmental law reforms conflict with and weaken existing regulations. In this context, Saskatchewan, Ontario and Alberta challenged the Greenhouse Gas Pollution Pricing Act (GGPPA) and the issue was brought before the Supreme Court of Canada (SCC) arguing it was unconstitutional (Reference re Greenhouse Gas Pollution Pricing Act).⁶⁶ While this ruling allows the federal carbon pricing scheme to continue applying in provinces and territories that lack an appropriate carbon pricing scheme, the power of Parliament to regulate provincial emissions reductions more broadly remains unclear.⁶⁷ Similarly, the regulation of toxic substances under the Canadian Environmental Protection Act was also challenged before the SCC (R v Hydro-Québec, [1997] 3 S.C.R. 213) and was considered to be valid federal law by the Court.⁶⁸ More broadly, another example of these tensions is the recent Alberta Sovereignty Act, framed within the “Free Alberta Strategy”, which aims to give the provincial government the power to refuse to enforce federal legislation that is deemed to invade Alberta's provincial rights or to attack the interests of the region's citizens.⁶⁹ In Canada, the Constitution Act, 1867 (Sections 91 and 92) gives legislative authority to the Parliament of Canada and the provinces over their respective matters.⁷⁰ However, it does so in a rather generic way and does not include all possible legislative matters, such as the environment, which can result in both levels of government passing overlapping legislation.⁷¹ Although the principles of cooperative federalism and double aspect doctrine (recently applied, for example, in Reference re Greenhouse Gas Pollution Pricing Act 2021 SCC 11) allow for this overlap, the doctrine of federal paramountcy, which has been upheld by the SCC, provides priority to the federal government over provincial jurisdiction in situations where provincial law clearly frustrates a federal power.⁷² As for the doctrine of interjurisdictional immunity, which the SCC has held should not be applied broadly, it recognises that “subjects are intended to fall primarily within the jurisdiction of one level of government rather than concurrently”.⁷³ The SCC has held that “the environment is not, as such, a subject matter of legislation under the Constitution Act, 1867”...“[r]ather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial”.⁷⁴

E. Is there any specific national policy addressing childhood exposure to toxic substances? If so, what is considered a safe level of exposure and what is the process for determining safe levels of exposure?

Based on our research, there is no specific national policy addressing childhood exposure to toxic substances. However, the Canadian Environmental Law Association has recommended that “[t]he federal government should be directly involved in research into monitoring (including exposure and body burdens) of chemical substances and longitudinal study of child health. This work should be coordinated with international efforts already under development."⁷⁵Toxic substances are listed on Schedule 1 to CEPA, and Environment Canada and Health Canada are responsible for developing and implementing regulations or other instruments that will prevent or control their use and/or release.⁷⁶

F. Is the country equipped with pollutant release and transfer registers? If yes, do these registers take into account child specific factors regarding the substances for which data is gathered and the type of data generated?

The federal government tracks pollutant releases through the National Pollutant Release Inventory (“NPRI”).⁷⁷ Companies subject to report requirements under CEPA must report to the NPRI annually, and all of the data is available online. Delinquent filers are subject to penalties. Based on our research, child-specific factors are not taken into account.

G. Does the State assert extra-territorial jurisdiction for any environmental issues?

There is a general presumption against extraterritoriality, and Canadian courts will not apply Canadian laws to actions that occur outside of Canada unless Canadian law is express that such law applies to extraterritorial conduct. Part of the issue is that courts generally only hear cases over which they have jurisdiction, which is set in the Rules of Civil Procedure for each province. Canada will generally recognise foreign judgements under principles of international comity, but lawsuits brought in Canada for actions committed abroad are usually dismissed on the basis of forum non conveniens.⁷⁸

II. Accessing courts

A. How can environmental cases be brought before national courts?

Cases in respect of environmental harm may be brought before the courts either pursuant to:

• a statute (either federal or provincial);
• a recognised common-law cause of action; or
• the Canadian Constitution.

In brief, most environmental laws in Canada are procedural, rather than substantive.⁷⁹ Procedural laws refer to laws that set a process for decision making, and which may allow an individual or other affected group to participate in an environmental decision-making process. These laws include, for example, environmental assessment or impact assessment legislation, including the Canadian Impact Assessment Act. Substantive laws include laws that set standards for the discharge of pollutants into air, water, or the environment, or set the conditions on which an undertaking may affect the environment or a species. These laws include acts that protect endangered species, fisheries, and general command-and-control pollutant legislation. Some of these laws – both federal and provincial – are summarised below. However, most of these laws do not confer any environmental rights on individuals or groups. Consequently, individuals concerned about environmental protection have limited avenues to the court. In certain cases, individuals may sue to enforce environmental laws or challenge legislation or the decisions of decision makers that are ultra vires. In other instances, an individual or group can sue because they were denied participation rights in an environmental decision-making process (see the discussion on standing in Part II.B below). However, in such cases, the outcome of litigation is a right to be heard in a decision making process, or re-evaluation of a particular issue, rather than a substantive determination that an environmental right has been infringed. In reality, and as a result of the foregoing, in most cases it falls to either the federal or provincial government to enforce environmental laws, as applicable, under the enforcement authority conferred by statute. In some instances a company may face federal charges under Canada’s Criminal Code for certain environmental harms.

For individuals that seek to allege that their environmental rights, or their environment, was adversely affected, they may seek recourse either through the common law of torts, or by arguing that the particular harm suffered violated a constitutionally-protected right. Tort actions are primarily available against private citizens (although, in some cases, may extend to government actors), and constitutional causes of action are only available against the government.

What follows is a brief summary of some of the applicable laws in each instance.

Statutory Law

The primary avenue through which environmental cases are brought before the courts are through environmental laws, both federal and provincial.

Most environmental laws in Canada are focused on pollution prevention, and establish a permitting regime for the discharge of pollutants into the air and the water. Very few provide an individual with a right to bring an action or seek damages (and the notable exception is CEPA, discussed below).

The key federal laws are:

Provisions of the Canadian Criminal Code are also available to enforce environmental laws, but are not typically used with respect to environmental matters, likely because any such provision requires the Crown to prove a mental element indicating recklessness or intent (as opposed to most provincial and federal statutes, which impose strict liability).

The provinces also have environmental laws, as do the three Canadian territories, which are set out above in Part I. In general, provincial laws empower the responsible minister at the provincial level to enforce the laws by issuing fines, and in some cases through imprisonment, or alternatively, through “creative sentencing”.⁸² In rare instances, provincial laws provide individuals with a right to enforce environmental legislation.

For example, Ontario’s Environmental Bill of Rights 1993 (“EBR”), creates an Environmental Registry, and requires that notice of “proposals” be posted on it. The proposals include changes in Regulations, and requests for Certificates of Approval or changes in Certificates of Approval. The EBR permits the public to comment on the proposals and creates a limited right to challenge the proposals. Section 84(1) of the EBR c. 28 provides that “Where a person has contravened or will imminently contravene an Act, regulation or instrument […] and the actual or imminent contravention has caused or will imminently cause significant harm to a public resource of Ontario, any person resident in Ontario may bring an action against the person in the court in respect of the harm and is entitled to judgement if successful,” if the act harms a public resource, or causes a public nuisance.

In addition, Quebec put the right to a healthy environment into its Environment Quality Act, CQLR c Q-2 in 1978:

“19.1. Every person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it, to the extent provided for by this Act and the regulations, orders, approvals and authorisations issued under any section of this Act and, as regards odours resulting from agricultural activities, to the extent prescribed by any standard originating from the exercise of the powers provided for in subparagraph 4 of the second paragraph of section 113 of the Act respecting land use planning and development (chapter A-19.1).

19.2. A judge of the Superior Court may grant an injunction to prohibit any act or operation which interferes or might interfere with the exercise of a right conferred by section 19.1.

19.3. The application for an injunction contemplated in section 19.2 may be made by any natural person domiciled in Québec frequenting a place or the immediate vicinity of a place in respect of which a contravention is alleged. It may also be made by the Attorney General and by any municipality in whose territory the contravention is being or about to be committed.”

In British Columbia, section 47 of the Environmental Management Act 2003 creates the right to recover damages from a person who is liable for pollution remediation in some circumstances.

In the Yukon, the Yukon Environment Act provides that any resident, who has “reasonable grounds to believe that a person has impaired or is likely to impair the environment… may commence an action in the Supreme Court”.⁸³ Similarly, any resident who has “reasonable grounds to believe that… the government has failed to meet its responsibilities as trustee of the public trusts to protect the natural environment from actual or likely impairment may” also commence an action.⁸⁴ Where it is proven that “the release of a contaminant has impaired” the environment and that the defendant released a contaminant of that type (and the relevant time) then the onus is on the defendant to prove that they did not cause impairment.⁸⁵

In the Northwest Territories and Nunavut, a person may bring suit against persons responsible for releases.⁸⁶

In Ontario, the Ontario Land Tribunal was established in 2021 to hear matters formerly heard by five separate tribunals, including the Environmental Review Tribunal.⁸⁷ Despite the possibility that this amalgamation will eliminate the need for multiple hearings when an undertaking requires multiple approvals, it does raise the possibility of loss of tribunal expertise and, consequently, the possibility of reduced judicial deference to the tribunal by courts conducting judicial review of a judicial decision.⁸⁸

Citizen efforts to enforce environmental laws are frequently stonewalled. Successes include the Sierra Legal Defense Fund’s action against the City of Kingston in Ontario under the Fisheries Act which resulted in a fine of $120,000. A prosecution against the City of Hamilton in Ontario resulted in fines of $450,000 under the Ontario Water Resources Act and under the Fisheries Act.⁸⁹ However, in most instances, public prosecutors take over private prosecutions (and, in many instances, they drop all charges).⁹⁰ The citizen suit provisions that do exist – in Ontario, Quebec, the Yukon, the Northwest Territories and in CEPA – are rarely used.⁹¹

Common Law

Alternatively, at common law, a landowner can bring an action for the tort of nuisance, or alternatively in negligence. There are three problems with actions in tort. The first is the issue of appropriate remedy. In most tort cases, the judge grants financial compensation, rather than a remedy that prevents environmental pollution.

The second problem is that in Canada many tort cases are only possible if brought as class-actions. Class actions are difficult to maintain because of the low damages awarded and the stringent requirements that plaintiffs in a class action suffer similar harm.⁹² However, in Smith v Inco, a class action was brought on behalf of 7,000 property owners who alleged that their property values decreased because of decades worth of nickel deposited on those properties from Inco Ltd.’s nickel refinery in Port Colborne, Ontario, between 1918 and 1984.⁹³ The judge found that Inco was strictly liable – based on the rule of Rylands v Fletcher – because “Inco brought nickel onto the land for the purpose of refining it. Moreover, once the nickel was brought onto the land, Inco processed or refined it, thereby creating airborne nickel particles. The nickel was not naturally on the land, and the nickel particles were not naturally on the land or in the air over the land. Further, the refining of nickel was not an ordinary use of the land; it was a special use bringing with it increased danger to others.”⁹⁴

The third problem is the question of the defendant. Most cases can be made out against an individual, such as a neighbour. However, it is much more difficult to bring a cause of action in tort against a government actor, and in many instances it is government action or in-action that is at the heart of the environmental problem. For example, in Ernst v. Alberta,⁹⁵ Ernst sued the Energy Resources Conservation Board (the ERCB, now the AER) in negligence in relation to the contamination of her groundwater caused by EnCana’s hydraulic fracturing in the region. In order to make out a negligence claim, Ernst had to prove: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached the applicable standard of care; (3) that the plaintiff suffered damages; (4) that these damages were the result of the defendant’s breach (causation); and (5) that the resulting damages are not too remote. In order to prove that the regulator owed her a duty of care, Ernst had to demonstrate that the harm that occurred was reasonably foreseeable, and whether any countervailing public policy factors weighed against finding a duty of care. The Alberta Court of Queen’s Bench and the Alberta Court of Appeal found that the suit was barred by the applicable statute, and found that, in the alternative, the ERCB did not owe Ernst a duty of care because, in part, of the difficulty of factoring individual concerns in a complex public regulatory scheme. (Notably, Ernst appealed the decision to the Supreme Court of Canada on the basis that the ERCB violated her rights to freedom of expression under section 2(b) of the Charter, and such Charter section is discussed in Part IV below.)

Constitutional Law

There have also been various attempts to bring environmental causes of action under the auspices of constitutional law.

The first type of challenge is that one level of government vis-à-vis another level of government does not have the power to undertake a specific type of action, and thus the action is unconstitutional. The doctrine of Interjurisdictional Immunity holds that a provincial law may not regulate the core of a federal matter.⁹⁶ The doctrine of Paramountcy holds that if two pieces of validly-enacted legislation conflict, then the federal law is paramount.⁹⁷ Most of these cases involve federal infrastructure projects, such as inter-provincial pipelines, which come under federal jurisdiction by virtue of sections 91(29) and 92(10) of the Constitution Act, 1897. However, provinces have the right to regulate the environment within their own borders. For example, in Coastal First Nations v. British Columbia, the B.C. trial court held that the B.C. environmental assessment regime was intra-vires the province and could be validly applied to an interprovincial pipeline. However, the court noted that the province would not be able to use the regime to block the pipeline project entirely.⁹⁸

As an additional example, British Columbia amended its Environmental Management Act to prohibit any person from transporting heavy oil without a permit, but the permits only apply to incremental volumes. The amendments were largely viewed as a political measure to halt the expansion of a pipeline carrying crude oil from Alberta to tidewater in British Columbia. However, pipelines that cross provincial boundaries are under federal jurisdiction. The federal government argued, successfully, that the purpose of the amendments was to frustrate the construction of the pipeline. The British Columbia Court of Appeal held that although both the province and the federal government have authority over the pipeline, the amendments were, in pith and substance, aimed at regulating the federal matter, and thus were unconstitutional.⁹⁹ The Supreme Court of Canada adopted the reasons of the British Columbia Court of Appeal.

The second type of challenge is a claim brought under the Charter. These types of challenges are an imperfect avenue for litigating environmental claims because the Charter does not enumerate any environmental rights, as discussed above in Part I. Finally, there are specific protections available to First Nations under the section 35 of the Canadian Constitution, which affirms and recognises Aboriginal rights and Treaty rights. Generally, First Nations may seek judicial review of government decisions that do not adequately consider Aboriginal and treaty rights.¹⁰⁰ Charter claims and Aboriginal and treaty rights claims are discussed more fully in Part I.

B. What rules of standing apply in environmental cases?

“Standing” is the legal term for one’s ability to bring a case in court.

Individual Standing

The Canadian civil litigation system is premised on the norm of “private standing” or “standing as of right” - meaning an individual will come to court to raise a grievance that is personal to them. A court will determine whether an individual has standing in accordance with the common law or any applicable legislation that displaces common law rules. Under the common law, the issue must be justiciable, and the plaintiff must be proper (i.e. must have suffered some harm).

(a) The issue must be justiciable:

This element has been notoriously difficult to establish in environmental claims. A review of jurisprudence reveals some key similarities in how courts assess whether a case is justiciable by considering two dominant criteria: legitimacy and capacity.

Legitimacy concerns are intimately linked to the separation of powers and the general notion that certain matters are not justiciable due to their political nature.¹⁰¹ In the case of Friends of the Earth v Canada, the Federal Court was asked to review the government’s failure to meet its own commitments under the Kyoto Protocol Implementation Act to prepare a climate plan and publish proposed regulatory amendments to meet its commitments. The Courts were sensitive to their role as judicial arbiters and declared the claim non-justiciable for public policy reasons.

Capacity concerns are linked to the assumption that environmental rights are predominately social and economic rights. and thus the Courts feel they ‘lack the capacity’ and expertise to properly adjudicate. The Court found the case of Tanudjaja v Attorney General (Canada) not justiciable because it implicated positive rights, which it stated were not recognised in Canadian law. This denial of economic and social rights is intimately connected to the question of positive obligations. Because environmental rights are not clearly articulated in Canadian legislation, and many environmental cases are framed as a positive right, impacting social and economic rights - rights to air, to a clean environment, to clean water - the Canadian courts tend to avoid weighing in. The Courts instead prefer claims that challenge government interference with rights, and are reluctant to engage with claims that implicate positive obligations on the government to act and protect rights. By insisting that environmental claims must be tied to a challenge to a specific instrument, the Courts often fail to recognise the diffuse nature of environmental harm making the justiciability hurdle difficult to overcome.¹⁰²

(b) The plaintiff must be proper:

For individuals, their rights must be affected. Usually plaintiffs must be directly affected or have a genuine interest in the matter.

Certain statutes set specific standing requirements. For example, under the old Energy Resources Conservation Act, a plaintiff seeking standing must demonstrate that they are “directly and adversely” affected. In 2009, Kelly and others sought standing to contest a decision of the regulator to locate sour gas wells near their property. The regulator had determined that the applicants did not have standing. The Court of Appeal disagreed, finding that they did have standing and ordered the regulator to convene a new hearing to place appropriate limits on the wells because of the proximity of the plaintiffs to the wells and potential for hazardous releases.¹⁰³ Notably, under the decision on leave to appeal, the judge sua sponte considered that the applicants had met the test for leave to appeal on the grounds that their section 7 rights were violated.¹⁰⁴

The Public Nuisance Rule provides that the proper plaintiff is the government vis a vis the Attorney General, and private parties could only sue to enforce public rights if their own personal rights were violated.¹⁰⁵ Private parties may also bring suit if the defendant is the government.

These principles have been applied to deny standing to plaintiffs seeking to enforce various environmental laws, including environmental organisations. In particular, courts still prefer for the Attorney General to bring suits that affect the public interest.¹⁰⁶ Additionally, the court tends to look at the terms of the statute to determine the scope of public participation in the enforcement of legislation.¹⁰⁷ This issue is particularly acute because of extensive environmental regulation.

Public Interest Standing

Public interest standing is an aspect of the law of standing which allows individuals and organisations to bring cases of public interest before the courts, even if their own individual rights are not infringed and even if they are not directly involved in the matter.

The Supreme Court established a three-part test (The Downtown Eastside Test) for granting public interest standing set out in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society [2012] SCC 45.

In exercising their discretion with respect to standing, the Courts will consider:

1. Whether the case raises a serious justiciable issue;
2. Whether the party bringing the action has a real stake or a genuine interest in its outcome; and
3. Whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court.

The recent decision on public interest standing is Attorney General of British Columbia v. Council of Canadians with Disabilities [2022].¹⁰⁸ The Court relied on The Downtown Eastside Test set out above, and “cumulatively weight[ed]” the three criteria. On Appeal, the Court of Appeal for British Columbia highlighted an additional two principles that guide courts in applying the three-part test, namely:

1. The Legality Principle: this principle captures the idea that “state action must conform to the Constitution and statutory authority, and that there must be a practical and effective means to challenge the legality of state action in the courts” (Council of Canadians with Disabilities, Court of Appeal for British Columbia, para 73).¹⁰⁹
   

1. Access to Justice: this second principle should guide the Court to consider “the practical realities of providing access to justice for vulnerable and marginalised citizens broadly affected by legislation of questionable constitutional validity” (Council of Canadians with Disabilities, Court of Appeal for British Columbia, para 71).¹¹⁰

The Court held that these two principles were “key components” that “merit particular weight” when deciding whether to grant or deny public interest standing.¹¹¹ Nevertheless, the Courts will not be rigidly strict in its interpretation of these principles if in reality, it would impose an additional obstacle on applicants seeking public interest standing. In Canada, there is a presumption that the Courts will be open and accessible. So the Courts will apply the Downtown Eastside test and the principles of legality and access to justice in a balanced manner and seek to make fair, context-based decisions on whether to grant or deny public interest standing.¹¹²

For example, in Attorney General of British Columbia v. Council of Canadians with Disabilities [2022],¹¹³ the Supreme Court decided that the involvement of a directly affected plaintiff should not be a strict requirement for establishing public interest standing. The Court considered effective alternative options, such as evidence from affected non-plaintiff witnesses and relevant experts, that public interest litigants can rely on to provide the necessary factual setting when pursuing a public interest claim.¹¹⁴

The Federal Court of Canada permits class action lawsuits, as do each of the provinces and territories.¹¹⁵

The Environmental Law Centre surveyed public interest standing in various Canadian jurisdictions, and found that there was a judicial reluctance to grant public interest standing to environmental advocates in Alberta, but the Federal Courts were less reluctant (for more on legislative and judicial trends on environmental protections see part 1.D).¹¹⁶

C. Do these rules of standing differ when children are the complainants and if so in what way?

Children must have a guardian ad litem¹¹⁷ who will be expected to perform all of the functions necessary to ensure the child’s interests are best protected. A child may ask the Court to dispense with the requirement for a guardian ad litem at the Judge’s discretion.

The rules differ in each province/territory:

• In Alberta, individuals under the age of 18 “must have a litigation representative to bring or defend an action or to continue or to participate in an action, or for an action to be brought or to be continued against them”, unless otherwise ordered by a Court.¹¹⁸ In the event that this individual under the age of 18 has been a “spouse or adult independent partner” as defined in the relevant law, the above-mentioned article does not apply.¹¹⁹ The Rules add that: “A child is not considered to be participating in a proceeding for the purposes of rule 2.11(a) merely by virtue of: (a) being the subject of a dispute regarding guardianship, custody, access, parenting time, decision‑making responsibility or contact, or (b) being served with a notice of a proceeding pursuant to an enactment that requires a person under 18 years of age to be served with notice of a proceeding”.¹²⁰ The Office of the Child and Youth Advocate (OCYA) represent children only in matters under the Child, Youth and Family Enhancement Act and the Protection of Sexually Exploited Children Act.¹²¹

• In British Columbia, all “infants'' will have a litigation guardian for property related matters appointed under the Infants Act RSBC (1996) ch. 223; and the Supreme Court Civil Rules, BC Reg 168/2009.¹²² According to section 201 of the Family Law Act, a child has the capacity to make, conduct or defend a proceeding under the Family Law Act without a litigation guardian if the child is: 16 years of age or older, a spouse or a parent. A court may nonetheless appoint a litigation guardian if they think it is appropriate.¹²³

• In Manitoba, children may represent themselves or be represented by a lawyer in criminal and civil cases.¹²⁴ The Manitoba Advocate for Children and Youth is limited to the following matters: child and family, adoption, mental health, addiction, education, disability, justice and victim support.¹²⁵ However, as stated on its website, it also “promote[s] The United Nations Convention on the Rights of the Child (UNCRC) [...], [which] describes more than 40 central human rights specific to children”.¹²⁶

• In New Brunswick, in civil proceedings, “unless ordered otherwise or provided otherwise by an Act, a proceeding by or against a person under disability shall be commenced, continued or defended in the case of a minor, by a litigation guardian [...]”.¹²⁷ Any person without a disability can act as a litigation guardian for a plaintiff or applicant without being appointed by the court.¹²⁸ “A person shall not act as a litigation guardian for a defendant or respondent who is under disability” until this person has been appointed by the court.¹²⁹ According to the law, the litigation guardian or committee “shall [...] take all the proceedings for the protection of [the child’s] interests” and “shall act through a solicitor and shall instruct that solicitor in the conduct of the proceeding”.¹³⁰

• In Newfoundland and Labrador, in civil proceedings, people with disabilities, including children, “may not commence, defend, intervene or appear in any proceeding except by his or her guardian ad litem”, who “shall act by a solicitor”.¹³¹ A person may be a guardian ad litem without being appointed by the court, unless otherwise specified.¹³²

• In the Northwest Territories, according to the law, “a party to a proceeding who is under disability or acts in a representative capacity shall be represented by a solicitor” in civil matters.¹³³ The Office of the Children’s Lawyer will only represent children involved with family and protection matters. For criminal matters, Legal Aid will provide a lawyer, with the exception of cases where children are being sued or want to sue someone and human rights matters, among others.¹³⁴

• In Nova Scotia, for civil matters, legislation provides for the mandatory appointment of legal counsel for persons who require a litigation guardian.¹³⁵

• In Nunavut, “a minor may sue or counterclaim by his or her next friend” and “must defend by [their] guardian ad litem, unless the Court orders otherwise” in civil procedures.¹³⁶

• In Ontario, children under 18 cannot sue or be sued in their own name in civil cases, with the exception of the Small Claims Court for $500 or less.¹³⁷ The Office of the Children’s Lawyer has the mandate to provide children with representation (a litigation guardian) in the area of civil litigation, among others, acting as a litigation guardian where there is no adult willing to represent the child, representing the child “in court applications for appointment of a guardian of property to receive and manage the child’s money from a personal injury or other civil court case” and protecting the interests of the child where there’s there is a litigation guardian other than the Children’s Lawyer.¹³⁸

• In Prince Edward Island, the law states that civil proceedings shall be commenced, continued or defended by a litigation guardian on behalf of a minor, unless the court or the law specifies otherwise.¹³⁹ The law further provides that any person who is not under disability may act as litigation guardian for a child plaintiff, applicant or petitioner without being appointed by the court.¹⁴⁰ However, when the child is a defendant or respondent, generally the litigation guardian must be appointed by the court.¹⁴¹

• In Quebec, for civil matters, “representatives, mandataries, tutors and curators and other persons acting on behalf of another person [...]”, guardians and representative plaintiffs, “are required to be represented before the courts by a lawyer in contentious proceedings, and by a lawyer or notary in non-contentious proceedings”.¹⁴² The law further provides that “whether in a contentious or non-contentious proceeding, the court, even on its own initiative, may order representation if the court considers it necessary to safeguard the rights and interests of a minor or those of a person of full age not represented by a tutor, a curator or a mandatary and considered incapable by the court”.¹⁴³

• In Saskatchewan, for civil matters, “a minor may commence, continue or defend a proceeding as if of the age of majority if [...] (b) the minor is represented by a lawyer appointed by The Saskatchewan Legal Aid Commission; (c) before or after commencing the proceeding, the minor obtains the leave of the Court”. The law further states that “[e]xcept where otherwise provided, a minor may commence, continue or defend a proceeding by a litigation guardian”.¹⁴⁴ Unless the Court orders otherwise, “any person who is not under disability may act as a litigation guardian for a minor without being appointed by the Court”.¹⁴⁵

• In Yukon, children shall commence or defend a proceeding by a litigation guardian, who shall be represented by a lawyer unless the litigation guardian is the Public Guardian and Trustee.¹⁴⁷ Unless otherwise ordered by the court, a person can be the guardian of a child without being appointed by the court.¹⁴⁸

D. What is the burden and standard of proof for allegations of personal injury as a result of toxic exposure?

For civil cases at common law in Canada, the burden is on the plaintiff to prove the elements of the tort on a balance of probabilities.¹⁴⁹

E. What limitation periods apply in environmental cases?

For actions in tort, the statute of limitations varies by province. For actions pursuant to a statute, the statute of limitations is ordinarily set by the statute. In Alberta, for example, the Limitations Act 2000, section 3, provides for a two-year limitation period, but under the section 218 of the Environmental Protection and Enhancement Act, a court may extend a limitation period “where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment.” In Ontario, the Ontario Limitations Act 2002 similarly provides that an environmental claim must be commenced within two years of its discovery. In general, the limitation period begins to run when the underlying facts become discoverable or when they ought to have been discovered. Most jurisdictions also have statute of repose and suspend limitations periods for minors.

F. Is legal aid available in environmental cases? If so, under what circumstances?

Legal aid generally refers to funding provided by provincial governments either to lawyers or to legal clinics. Below is a list of various legal aid programs that are available:

• British Columbia
  • Legal Aid BC
  • Law Students’ Legal Advice Program (LSLAP) - University of British Columbia
  • West Coast Environmental Law - Legal Aid

• Alberta
  • Law Central Alberta - centralised base for legal aid clinics across Alberta
  • Public Interest Law Clinic - University of Calgary
  • The Office of the Child and Youth Advocate - may be able to provide support, suggestions and advice about accessing a lawyer.

• Saskatchewan
  • Legal Aid Saskatchewan

• Manitoba
  • Legal Aid Manitoba, Public Interest Law Centre
  • Rights Clinic, University of Manitoba Faculty of Law
  • The Manitoba Advocate for Children and Youth - their work is limited to child and family adoption, mental health, addiction, education, disability, justice and victim support. However, as stated on its website, it also “promote[s] the United Nations Convention on the Rights of the Child (UNCRC) [...], [which] describes more than 40 central human rights specific to children.”

• Québec
  • Centre Québécois Du Droit De L’Environnement - NGO resources/advice
  • Aide Juridique de Montreal - Legal Aid

• Ontario
  • Canadian Environmental Law Association - funding by Legal Aid Ontario
  • The Office of the Children’s Lawyer - their mandate includes providing children with representation (a litigation guardian) in the area of civil litigation, among others.

• New Brunswick
  • Commission des Services D’Aide Juridique du Nouveau-Brunswick

• Nova Scotia
  • Nova Scotia Legal Aid

• Prince Edward Island
  • Pro Bono Legal Advice Clinic for Self-Representing Litigants - advice is limited to civil and family cases before the Supreme Court of PEI and PEI Court of Appeal.
  • Legal Aid Services and Support - Access to Justice programs

• Newfoundland and Labrador
  • Legal Aid Services and Support - focused on family and criminal law

• Yukon/ Northwest Territories/Nunavut
  • Yukon Legal Services Society - Legal Aid
  • Yukon Department of Justice - Aboriginal Court Workers Community Justice Coordinator
  • Council of Yukon First Nations - Justice Programs
  • Legal Aid Commission Northwest Territories/Territoires du Nord-Ouest
  • Community Court Workers
  • Legal Services Board of Nunavut
  • The Office of the Children’s Lawyer will only represent children involved with family and protection matters. For criminal matters, Legal Aid will provide a lawyer, with the exception of cases where children are being sued or want to sue someone and human rights matters, among others.

There are also various NGOs that may be able to provide legal resources, workshops and general support to take on cases in environmental law, but most of them focus on strategic litigation rather than individual representation. For example:

• West Coast Environmental Law provides legal aid grants through the Environmental Dispute Resolution Fund, and funding comes from the Law Foundation of British Columbia.¹⁵⁰

• The Pacific Centre for Environmental Law and Litigation is a non-profit charity focused on environmental litigation, but it does not litigate cases of its own.¹⁵¹

• Ecojustice is an environmental non-profit that solely litigates environmental cases, but it is fully funded by private donations.¹⁵²

• East Coast Environmental Law offers legal information, educational resources, lawyer referrals and other support to community groups, non-profit organisations and members of the public who are navigating environmental law issues.¹⁵³

There are also public interest legal initiatives at most law schools, with some taking on environmental cases, such as Osgoode Hall Law School’s Environmental Justice and Sustainability Clinical Program, the University of Calgary’s Public Interest Legal Clinic, and the University of Victoria’s Environmental Law Centre.

III. Remedies

A. What remedies are courts empowered to impose in environmental cases?

Civil / Common Law Remedies

As mentioned in Part II above, the courts impose financial compensation as a remedy for actions brought in tort law, such as nuisance, trespass and negligence.

Courts are also empowered to award interim injunctions during the course of a civil action, stopping a party from pursuing an activity that may cause, or does cause, damage to the plaintiff seeking the relief. The plaintiff’s common law rights must be affected by the respondent’s actions or omissions in a distinct and particular way. Interim injunctions are, therefore, not often awarded for public interest cases, unless the court exercises its discretion to do so.¹⁵⁴

The court’s willingness to exercise its discretion in this way differs per province; for example, in Quebec, courts have applied the test for interim injunctions to matters of public interest raised by individuals or groups, by using the combined effect of articles 55 and 59 of the Code of Civil Procedure (the “CCP”).¹⁵⁵ Further, article 752 CCP¹⁵⁶ has been used by the courts to provide interlocutory relief when an applicant appears to be entitled to it and it is necessary to avoid an irreparable injury or situation which could not be remedied by the final decision.¹⁵⁷

Constitutional Remedies: Allocation of Powers between Federal Government and the Provinces

Courts are also empowered to uphold or overturn decisions of the federal government to intervene in provincial matters and decide on provincial jurisdiction.¹⁵⁸ For example, the Government of Saskatchewan challenged the constitutionality of the Greenhouse Gas Pollution Pricing Act (GGPPA) enacted by the Federal Government.¹⁵⁹ Similar constitutional challenges were brought in Ontario, and another in Alberta so the Supreme Court of Canada heard the cases together.¹⁶⁰ The Supreme Court of Canada found that the GGPPA is constitutional as a matter of national concern - matters which, by their nature, transcend the provinces - under the peace, order and good government clause in section 91 of Canada’s Constitution. This means that the Federal Government ultimately has the power to step in when a province fails to effectively tackle climate change.¹⁶¹

Constitutional Remedies: Charter Remedies

Courts have the power to strike down laws that are unconstitutional under section 52 of the Charter: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”¹⁶²

The Courts can also provide personal or other remedies under section 24(1) of the Charter for unconstitutional government actions.¹⁶³ An Applicant seeking a remedy under section 24(1) of the Charter should consider the following:

• The Applicant’s own rights must be infringed or denied. This is a stricter requirement of standing than applicable to many common law remedies.

• Section 24(1) has been used as a remedy where it is feared that infringement might occur in the future. In R v Demers,¹⁶⁴ the Supreme Court of Canada gave Parliament a one-year period to replace provisions in the Criminal Code relating to accused persons unfit to stand trial.¹⁶⁵ It is also significant that this remedy was used against Parliament. In this case, the court also declared certain provisions of the Criminal Code invalid. Whilst not an environmental case specifically, this points to the powers under the Charter given to the Court to provide such cases.

• The Superior Courts of each province have jurisdiction to hear section 24(1) applications, though there is the question of competency for other courts. The Court will need to consider if the application accords with its mandate, function and structure.¹⁶⁶

• Damages may be awarded where they would serve a functional purpose in remedying a Charter violation. An Applicant would have to show that the damages would further one or more of the general object of the Charter:
  • Compensation – remedying personal loss by the Applicant;
  • Vindication – showing the importance of upholding the Charter rights; and/or
  • Deterrence (of further breaches).¹⁶⁷

• Declaratory relief is also available under section 24(1) – such as above, where legislation may be declared as invalid with the Charter.¹⁶⁸

• Injunctive relief is also available under section 24(1), described in Doucet-Boudreau v. Nova Scotia (Minister of Education)¹⁶⁹ as central to the section 24(1) remedies.¹⁷⁰

Statutory Remedies

Under the Canadian Environmental Protection Act 1999 (“CEPA”)¹⁷¹, the court may impose as a penalty for breach a fine of up to one million Canadian dollars for each day an offence continues. The court may also sentence the offender up to five years’ imprisonment, taking into account the sentencing criteria included in CEPA. Further, the court can levy a fine equal to any profits earned as a result of the offence or order a payment for clean-up costs.¹⁷²

B. What remedies have courts ordered in environmental cases to date?

The environmental case law in Canada does not often show the courts providing punitive or remedial damages, but is more focused on the delegation of federal and provincial powers in environmental regulation.

The Canadian courts seem more willing to decide on cases which are focused on the delegation of federal and provincial powers in environmental regulation, rather than those awarding punitive or remedial damages, clean-up orders or injunctions.

The Supreme Court has notably stayed silent in recent cases relating to the delegation of federal and provincial powers in environmental regulation. For example, by deferring to the Court of Appeal for British Columbia in Reference re Environmental Management Act 2020.¹⁷³ A further example of this can be seen in Canadian Plastic Bag Association v. Victoria (City).¹⁷⁴ In this case, the City of Victoria appealed to the Supreme Court after the Court of Appeal of British Columbia held that a bylaw forbidding grocery stores from offering or selling plastic bags to shoppers needed to be approved at a provincial level. The Supreme Court denied the City of Victoria’s application for leave to appeal, though as is customary, it did not give a reason for the ruling.¹⁷⁵ The provincial courts generally have shown a willingness to intervene in such cases. In Reference re Greenhouse Gas Pollution Pricing Act, the Court declared the Greenhouse Gas Pollution Pricing Act constitutionally valid.¹⁷⁶ The Act, amongst other measures, established minimum national standards of price stringency for greenhouse gas emissions.

To date the Canadian courts have not awarded punitive or remedial damages, clean-up orders or injunctions in environmental cases. However, current ongoing cases, once decided, may shed some light on the Canadian courts’ approach to such remedies.

C. Are there any administrative authorities empowered to act on environmental complaints and if so, how are they empowered to respond to complaints?

Under CEPA, the Minister of Environment and Minister of Health are empowered to give notices, orders and permits.¹⁷⁷ Complaints can be given by email or telephone to the relevant body of Environment and Climate Change Canada¹⁷⁸ within each province. For example:

• Québec: Ministère du Développement durable, de l’Environnement et de la Lutte contre les changements climatiques (MDDEP) - Centre de contrôle environnemental du Québec (CCEQ);¹⁷⁹
• Alberta: Environment and Parks (AEP) - Energy & Environmental Response Line;¹⁸⁰
• British Columbia: B.C. Ministry of Health and Ombudsman for complaints relating to health¹⁸¹ and Conservation Officer Service for broader environmental issues.¹⁸²

The Standing Committee on Environment and Sustainable Development conducts review of environmental legislation. The committee took into account written briefs from groups and individuals for its review of CEPA in 2016.¹⁸³

The National Advisory Committee (NAC) under CEPA is the main intergovernmental forum for the purpose of enabling national action and avoiding duplication in regulatory activity among governments. The Committee communicates with the public on its measures, for example, by teleconference.

IV. Civil and political rights

Freedom of peaceful assembly

A. How is children’s right to engage in peaceful assembly, including protests, protected in national law?

Under section 2 (c) of the Charter, children have the right to freedom of peaceful assembly. Though further protections have not been developed through case law, the Supreme Court has referred collectively to the section 2 freedoms as rights fundamental to Canada’s liberal democratic society.¹⁸⁴

Article 15(1) of United Nations Convention on the Rights of the Child, as ratified by Canada on 12 December 1991, (the “CRC”) states “States Parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly.”

B. Are there any legal limitations on the right of children to engage in peaceful assemblies?

There are no references to age limits or further restrictions in the Charter nor the CRC. The CRC, article 15 (2) states “[n]o restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” This area has not been developed by case law in Canada.

C. What penalties can be imposed on children for engaging in school strikes?⁹⁵

Truancy laws differ by province, though by law in Canada all children must go to school from the age of 5 or 6 until they reach the ages between 16 and 18. Canadian schools and authorities, however, seem to have taken an encouraging approach to children engaging in climate-related school strikes. During strikes for climate change in 2019, schools, colleges and universities suspended all or some classes for the day, and the Toronto city government had encouraged staff to take the day off.¹⁸⁵

Freedom of expression

A. How is children’s right to freedom of expression protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Under section 2(b) of the Charter, children have the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.¹⁸⁶ The values underlying section 2(b) are threefold: (i) seeking and attaining the truth; (ii) encouraging participation in social and political decision-making; and (iii) cultivating diversity in individual self-fulfilment and human flourishing in a tolerant and welcoming environment.¹⁸⁷

Section 2(b) protects “activity that conveys or attempts to convey meaning”.¹⁸⁸ Therefore, “expression” is not limited to words. It includes physical activity that is used to convey or attempt to convey a meaning.¹⁸⁹ Case law has confirmed that the expression protected under section 2(b) includes common activities associated with children’s environmental protesting and campaigning: for example, marching with banners;¹⁹⁰ displaying and distributing signs,¹⁹¹ leaflets,¹⁹² posters (including posters on public property);¹⁹³ and noise being emitted by a loudspeaker.¹⁹⁴

The Supreme Court has adopted a three-part test for determining whether expression falls within the protections under section 2(b) of the Charter: (1) does the activity have expressive content, thereby bringing it prima facie within the scope of section 2(b); (2) is the activity excluded as a result of the location or method of the expression; and (3) if the activity is protected, does an infringement of the protected right result from either the purpose or the effect of government action?¹⁹⁵

The right to freedom of expression is further protected under article 13 of the CRC.¹⁹⁶ Article 13 recognises a wider right to freedom of expression which includes “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.” Section 1(d) of the Bill of Rights¹⁹⁷ and international legal instruments binding upon Canada, such as the International Covenant on Civil and Political Rights¹⁹⁸ and the American Declaration of the Rights and Duties of Man, further provide for the individual’s right to freedom of expression.¹⁹⁹

B. Are there any legal limits or restrictions on the right to freedom of expression that specifically apply to children?

There do not appear to be express limitations on the right to freedom of expression that specifically apply to children. The rights enshrined in the Charter apply equally to children,²⁰⁰ as age is not a limiting factor. Any limitation on the individual’s rights under section 2(b) must be justified under section 1, which provides that the rights and freedoms guaranteed in the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.²⁰¹ Further, as the protections under the Charter apply to all Canadians, there exists the potential for conflict between the rights of the child (i.e. a child’s right to partake in an expressive activity) and the rights of the parent to make decisions on behalf of the child.

The CRC provides that Article 13 may be restricted only insofar as provided by law and necessary to respect the rights or reputations of others or to protect national security, public order, or public health or morals.²⁰²

Freedom of association

A. How is children’s right to freedom of association protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Children’s right to freedom of association is provided as a “fundamental freedom” under section 2(d) of the Charter²⁰³ and is recognised under article 15 of the CRC.²⁰⁴ There are also a range of international legal instruments binding on Canada to further protect the individual’s right to freedom of association.²⁰⁵ Freedom of association is often associated with freedom of peaceful assembly which is protected under section 2(c) of the Charter (see discussion on freedom of peaceful assembly at Part IV above).

The scope and purpose of section 2(d) has been developed through case law.²⁰⁶ In 2015, the Supreme Court concluded that section 2(d) of the Charter protects three classes of activities. Firstly, the “constitutive” right to form associations. Secondly, the “derivative” right to associational activity in pursuit of other constitutional freedoms. Thirdly, the “purposive” right to collective activity that enables “those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”.²⁰⁷ This formulation of the right to freedom of association has been the subject of some academic and judicial criticism. However, it is generally accepted that the right to freedom of association protects the freedom of individuals to form associations in furtherance of common goals.²⁰⁸

Section 2(d) of the Charter recognises “the profoundly social nature of human endeavours” and “protect[s] the individual from State-enforced isolation in the pursuit of his or her ends”.²⁰⁹ This right functions to “advance the collective action of individuals in pursuit of their common goals”,²¹⁰ thereby allowing individuals to “prevent more powerful entities from thwarting their legitimate goals and desires” and empowering vulnerable groups to right imbalances in society.²¹¹ Its purpose is to “allow the achievement of individual potential through interpersonal relationships and collective action”.²¹²

B. Are there any legal limits or restrictions on the right to association that specifically apply to children?

There do not appear to be express limitations on the right to association that specifically apply to children. As stated, the rights enshrined in the Charter apply equally to children, and age is not a limiting factor. The right to freedom of association protects political association, and it includes the right to be free from compelled association.²¹³

However, while the State is prohibited from interfering with the individual’s right to meet or form associations, the State can interfere with the activities pursued by the associations that individuals form.²¹⁴ For example, associational activity that constitutes violence will be prohibited.²¹⁵ In any event, any interference with an individual’s rights under section 2(d) must be justified under section 1 of the Charter.²¹⁶ Likewise, article 15(2) of the CRC states that no restriction may be placed on a child’s right to freedom of association other than restrictions which conform with the law and are necessary for the interests of national security, public safety, public order, protection of health or morals, or the protection of the rights and freedoms of others.²¹⁷

Access to information

A. How is children’s right to access information protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

The Access to Information Act provides a general right of access for individuals to information and records held by the government.²¹⁸ However, the Act is quiet regarding any child-specific right of access to information.

Article 17 of the CRC recognises that children have the right to “access information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health”. Article 17 places responsibility on the State to: encourage the dissemination of information that is of social and cultural benefit and supports the child’s education; encourage the production and dissemination of children’s books; and develop appropriate guidelines to protect children from information and material that may be harmful to their wellbeing.²¹⁹

Article 28 of the CRC recognises the child’s right to education,²²⁰ and per Article 29(e) of the CRC, Canada has agreed that children’s education shall be directed to, amongst other things, the development of respect for the natural environment.²²¹

The right to education and the requirement to attend school is also recognised at the provincial/territorial level.²²²

B. Are there any legal limits or restrictions on the right to access information that apply specifically to children?

There do not appear to be express limitations on the right to access information that apply specifically to children.

C. Does the national curriculum for schools include environmental education?⁹⁹

Education is administered at the provincial and territorial government level. However, similar efforts to implement environmental education into school curricula can be observed across the provinces and territories. The sections below detail some of the ways in which environmental education has been integrated into school curricula.

Ontario

The Government of Ontario developed an Environmental Education resource guide for the high school level curriculum.²²³

For the Arts, teachers are encouraged to take students out of the classroom and into the natural environment, allowing students to observe, explore, and investigate nature. Teachers are encouraged to design activities that allow students to integrate natural materials into their creative projects and to facilitate performances and installations that take place in the natural environment. The Government of Ontario recognises that the Arts can be a powerful medium through which students articulate the social and political impact of environmental issues.²²⁴

The Business Studies curriculum identifies “the understanding and/or determination of social and environmental consequences of business practices on the local, national, and global levels”, particularly within an environmental context, as one of the critical areas of learning in relation to environmental education.

In Economics, students are encouraged to analyse the environmental impact of economic growth as well as issues related to scarcity of natural resources. The Geography curriculum covers environmental topics such as resource management, population growth, urban sprawl, and the impact of human activity on the natural environment, as well as how environmental stewardship can be improved. In World History to the End of the Fifteenth Century, students explore how the environment affected settlement and contributed to differentiation between societies and regions. In Law, students examine the concept of “justice” for animal species and other living things and consider how human rights legislation and environmental legislation are connected. Similarly, in Canadian and International Law, the students evaluate the effectiveness of environmental protection legislation, both domestically and internationally.²²⁵

In Politics, students learn that the responsibilities of citizenship include protection and stewardship of the global commons (e.g. air and water) on the local, national, and global scales. Further students have the opportunity to explore various environmental issues of political importance.²²⁶

Guidance and Career Education classes explore careers related to the environment, how current environmental concerns may affect jobs and the labour market, and what workplace practices have been adopted to protect the environment.²²⁷

The Science curriculum includes an increased emphasis on technology, society, and the environment to provide meaningful contexts for students to apply what they have learned about the environment, and for thinking critically about environmental issues and considering the personal action that can be taken to protect the environment. Teachers have opportunities to take students out of the classroom to observe, explore, and investigate nature.²²⁸

Climate change education has been incorporated into the curriculum in response to the anxiety felt by many young people about the state of the environment and the effect of climate change on cities and communities. Examples of climate change and environmental education that have been implemented in practice include: in Language Arts, researching and creating podcasts and exploring solutions for social injustice and the extinction of animals; and in Environmental Studies, testing the pH levels in water samples from the local watershed.²²⁹

Manitoba

The Manitoba Department of Education, Citizenship, and Youth has established a Sustainable Development Initiative; Education for Sustainability Action Plan; and an Education for Sustainable Development working group.²³⁰

Teachers are encouraged to integrate sustainable development concepts into various areas of the curriculum. The learning outcomes for Grade 10 Science include describing scientific and technological developments and appreciating their impact on individuals, societies, and the environment, both locally and globally; and identifying and demonstrating actions that promote a sustainable environment, society, and economy, both locally and globally.²³¹

In Global Issues: Citizenship and Sustainability, students apply concepts related to sustainability; learn about the interdependence of environmental, social, political, and economic systems; and develop competencies for thinking and acting as ecologically literate citizens committed to social justice. The course curriculum recognises that education plays a key role in informing both personal and social change. The declining environmental state of the planet was part of the rationale behind the course.²³²

Nova Scotia

Nova Scotia has developed a teaching companion for educators to encourage integrating climate change education into school curricula.²³³

Prince Edward Island

As part of the Grade 10 to Grade 12 curriculum, Environmental Science promotes an appreciation and understanding of environmental and sustainable development. The curriculum allows for flexible course content, which gives teachers and students the opportunity to select local topics or areas of interest to them. A portion of the course is dedicated to Project Based Learning, which engages students’ critical thinking, problem solving, and decision-making skills.²³⁴

Environment-related topics are also covered in courses such as Science,²³⁵ Canadian Studies,²³⁶ and Geography.²³⁷

Alberta

The Alberta Council for Environmental Education in collaboration with a Task Force of representatives from education and industry put forth a proposal for implementing environmental and sustainable education into the provinces’ curriculum. The proposal identified key environmental concepts across the various subject areas. For example, through Science, students develop an understanding of how humans are part of nature and are dependent on ecosystems and on the interactions among organisms and within and among ecosystems.²³⁸ In Social Studies, students consider the economic, societal, and environmental impacts of decision-making and action at the personal, local, national, and global levels in order to create a sustainable future.²³⁹ In Wellness, students’ experiences with nature develop their emotional, mental, psychological, behavioural, and physical wellbeing.²⁴⁰

In response to the 2019 climate strikes, the Alberta Council for Environmental Education published tips for educators on how to teach climate issues. Suggestions include reframing the climate issue to teach solutions, not only problems; helping students take action on both personal and public levels; and encouraging students to think beyond themselves to future generations and to be global citizens.²⁴¹

British Columbia

The British Columbia high school curriculum includes a Sustainable Resources course at Grades 11 and 12, which examine major British Columbia resource industries such as agriculture, energy, fisheries, forestry, and mining. The Province has developed a Sustainability Course Content Framework with modules that can be used individually or as an entire course. The modules include environmental ethics and social development; environmental challenges and sustainable solutions; and balancing ecology and economics.²⁴²

British Columbia has developed an Environmental Learning and Experience curriculum guide, mapping desired environmental learning outcomes for students from Kindergarten up to Grade 12. At the elementary level, the learning outcomes include describing ways to reduce, reuse, recycle and demonstrating responsible behaviour in caring for the immediate environment. At the high school level, the outcomes include designing and conducting an experiment to identify and compare properties of household products and demonstrating an awareness of the health, safety, economic, and environmental issues related to their use.²⁴³

Northwest Territories

In Experimental Science, students are encouraged to develop attitudes that support the responsible acquisition and application of scientific cultural and technological knowledge to the mutual benefit of self, society, and the environment. The curriculum includes activities that encourage reasonable action toward “living” things and the environment. Further, local traditional Aboriginal knowledge is incorporated into the course. Students are encouraged to “know” the land, be observant and ensure a safe working environment for all.²⁴⁴

Social Studies provides opportunities for students to demonstrate consciousness for the limits of the natural environment, stewardship for the land, and an understanding of the principles of sustainability.²⁴⁵

In Northern Studies, environmental stewardship is identified as one of the guiding principles amongst the First Nations communities.²⁴⁶

End notes

¹ Canadian Charter of Rights and Freedoms, available here.

² Ibid, s. 1.

³ Although the Charter grants rights to all persons in Canada, some rights are restricted to Canadian citizens, for example, the right to vote under Section 3.

⁴ TThe Charter does not explicitly protect the rights of children, but the rights of children have been recognised through Charter case law. For example, 'Jordan’s Principle' makes sure all First Nations children living in Canada can access the products, services and supports they need, when they need them. More information regarding 'Jordan's Principle' and how to submit a request under this principle can be found here. Also see, "Legal Status of Child Rights in Canada” (The Canadian Bar Association) available here, and Preamble to the Youth Criminal Justice Act available here.

⁵ Lynda M. Collins, Safeguarding the Longue Durée: Environmental Rights in the Canadian Constitution, (2015) 71 Supreme Court Law Review 519, (2015) CanLIIDocs 5180, availablehere.

⁶ Ibid.

⁷ Chaoulli v. Quebec (Attorney General), [2005] S.C.J. No. 33, [2005] 1 S.C.R. 791 (S.C.C.) available here.

⁸ Godbout v. Longueuil (City), [1997] S.C.J. No. 95, [1997] 3 S.C.R. 844, [66]-[68] (S.C.C.) availablehere.

⁹ Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, [2018] SCC 17 (CanLII) here; and Centrale des syndicats du Québec v Quebec (Attorney General), [2018] SCC 18 (CanLII) available here.

¹⁰ Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] S.C.R. 76, [53] here, and Gosselin v. Quebec (Attorney General) [2002] S.C.C 84, [2002] 4 S.C.R. 429,here, and Wynberg v. Ontario [2006] CanLII 22919 (ON CA), available here.

¹¹ Section 10(1), Ontario Human Rights Code: defines age as “an age that is 18 years or more”. Note: there is a small exception for 16 and 17 year olds in the context of rental housing.

¹² Arzem v Ontario (Community and Social Services), [2006] HRTO 17 (CanLII) available here.

¹³ For additional discussion of environmental rights in the context of the constitution, see: Lynda M. Collins, An Ecologically Literate Reading of the Canadian Charter of Rights and Freedoms, (2009), Windsor Review of Legal and Social Issues Vol. 26; Lynda M. Collins, Security of the person, peace of mind: a precautionary approach to environmental uncertainty, (2013), Journal of Human Rights and the Environment, Vol. 4, No.1, 79-100; Lynda M. Collins & Meghan Murtha, Indigenous Environmental Rights in Canada: The Right to Conservation Implicit in Treaty and Aboriginal Rights to Hunt, Fish, and Trap, (2010), Indigenous Environmental Rights in Canada, Vol.47, No.4, 959-992.

¹⁴ Lynda M. Collins, Safeguarding the Longue Durée: Environmental Rights in the Canadian Constitution, (2015) 71 Supreme Court Law Review 519, (2015) CanLIIDocs 5180, available here. Reference re Secession of Quebec, [1998] S.C.J. No. 61, [1998] 2 S.C.R. 217, [49]-[52] (S.C.C.), as cited in Collins, Id., at page 534.

¹⁵ R v. Hydro-Quebec [1997] 3 SCR 213, 124 available here.

¹⁶ Ontario v. Canadian Pacific Ltd. [1995] S.C.J. No. 62, [1995] 2 S.C.R. 1031 (S.C.C.) available here.

¹⁷ Ontario v. Canadian Pacific Ltd. [1995] S.C.J. No. 62, [1995] 2 S.C.R. 1031 (S.C.C.) available here.

¹⁸ Maracle, Lee. The Operation was Successful, But the Patient Died, Walkem, Ardith and Halie Bruce, eds. Box of Treasures or Empty Box? Twenty Years of Section 35. Vancouver: Theytus, (2003). 309-315.

¹⁹ Tsawout Indian Band v. Saanichton Marina Ltd., [1989] B.C.J. No. 563, 57 D.L.R. (4th) 161 (B.C.C.A.). Halfway River First Nation v. British Columbia (Ministry of Forests), [1997] B.C.J. No. 1494, 39 B.C.L.R. (3d) 227 (B.C.S.C.) [hereinafter “Halfway”]. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2001] F.C.J. No. 1877, 214 F.T.R. 48 (F.C.T.D.).

²⁰ Mikisew Cree First Nation v. Canada (Governor General in Council) [2018] SCC 40, 2 S.C.R. 765 available here.

²¹ EcoJustice Canada, Defending the Rights of Chemical Valley Residents Charter Challenge, Lockridge and Plain v. Director, Minister of Environment et al. available here; and here.

²² Grassy Narrows v. Ontario, Ontario Superior Court of Justice Court File No. 446/15, online here.

²³ Amnesty International, Environnement Jeunesse (ENJEU) v. Attorney General of Canada: Legal Briefing, (26th February 2020), availablehere.

²⁴ Environnement Jeunesse (ENJEU) v. Attorney General of Canada, No. 500-06-000955-183, [127] and [136]: Decision dated 11th July 2019, available here.

²⁵ Environmental Law Centre, Climate Change Litigation in Canada: Environnement Jeunesse v. Canada, available here.

²⁶ Climate Case Chart, Environnement Jeunesse (ENJEU) v. Attorney General of Canada, available here.

²⁷ Ecojustice, Mathur et. al. v. Her Majesty in Right of Ontario, Overview of Notice of Application, available here.

²⁸ Climate Case Chart, Mathur, et al. v. Her Majesty the Queen in Right of Ontario, available here.

²⁹ La Rose v. The Queen, [2020] FC 1008, available here.

³⁰ Climate Case Chart, La Rose v. Her Majesty the Queen, available here.

³¹ Misdzi Yikh. v. Canada [2020] FC 1059 (CanLII), available here.

³² Ibid. [77]

³³ Climate Case Chart, Lho’imggin et al. v. Her Majesty the Queen, available here.

³⁴ The Law Review, Environment and Climate Change Law Review: Canada, (2020), available here.

³⁵ Lynda M. Collins, Safeguarding the Longue Durée: Environmental Rights in the Canadian Constitution, (2015) 71 Supreme Court Law Review 519, 2015 CanLIIDocs 5180, available here.

³⁶ The Law Review, Environment and Climate Change Law Review: Canada, (2020), available here.

³⁷ R. v. Crown Zellerbach Canada Ltd., [1988] S.C.J. No. 23, [1988] 1 S.C.R. 401 (S.C.C.); R. v. Hydro-Québec, [1997] S.C.J. No. 76, [1997] 3 S.C.R. 213 (S.C.C.).

³⁸ Ontario v. Canadian Pacific Ltd. [1995] S.C.J. No. 62, [1995] 2 S.C.R. 1031 (S.C.C.), available here.

³⁹114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] S.C.J. No. 42, [2001] 2 S.C.R. 241 (S.C.C.), available here.

⁴⁰ Lynda M. Collins, Safeguarding the Longue Durée: Environmental Rights in the Canadian Constitution, 2015 71 Supreme Court Law Review 519, (2015) CanLIIDocs 5180, available here.

⁴¹ Practical Law, Environmental Law and Practice: Canada Overview, available here.

⁴² Ibid.

⁴³ United Nations Framework Convention on Climate Change, The Paris Agreement, (22nd November 2017), online, available here.

⁴⁴ Climate and Clean Air Coalition, Short-Lived Climate Pollutants (SLCPs), available here.

⁴⁵ Environment and Climate Change Canada, Engagements in International Environmental Agreements, available here.

⁴⁶ North Western Territories, Environmental Rights Act (2019), available here.

⁴⁷ Nunavut, Environmental Protection Act (1988), available here.

⁴⁸ Yukon, Environment Act (2002), available here.

⁴⁹ Parliament of Canada, Bill C-438, available here.

⁵⁰ Parliament of Canada, Bill C-438, Legislation Info, available here.

⁵¹ Government of Canada, Government of Canada delivers on commitment to strengthen the Canadian Environmental Protection Act, 1999 and recognizes a right to a healthy environment (2022), available here.

⁵² Ibid.

⁵³ Ibid.

⁵⁴ Ibid.

⁵⁵ New Brunswick Environmental Network, available here.

⁵⁶ Government of Northwest Territories, GNWT Adopts Statement of Environmental Values, (2022), available here.

⁵⁷ Blakes, Blakes 26th Annual Overview of Environmental Law and Regulation in British Columbia (2021), available here.

⁵⁸ Government of British Columbia, Declaration on the Rights of Indigenous Peoples Act, available here.

⁵⁹ Coastal GasLink Pipeline Ltd. v. Huson [2019] BCSC 2264, available here.

⁶⁰ BC Hydrogen Office, available here.

⁶¹ O.C. 871-2020, Environment Quality Act, (chapter Q-2), Gazette Officielle Du Québec, (2nd September 2020), Vol. 152, No. 36A, available here.

⁶² Canadian Environmental Law Association, available here.

⁶³ O. Reg. 79/15: Alternative Low-Carbon Fuels, available here.

⁶⁴ Supra 51.

⁶⁵ John Tidball, Aaron Atcheson, Bryan Buttgieg, Tamara Farber, Luc Gratton and Sarah Hansen, Environmental law and practice in Canada: overview, Thomson Reuters Practical Law (2009), available here.

⁶⁶ Reference re Greenhouse Gas Pollution Pricing Act 2021 SCC 11, available here.

⁶⁷ Chambers and Partners, Environmental Law Canada, (2021), available here.

⁶⁸ Rebeca Kauffman, The Canadian Constitution, the Environment, and the Misguided Notions of Provincial Sovereignty, Environmental Law Centre (2022), available here.

⁶⁹ See for example article 15.6.1 Flemish Decree of 5 April 1995 containing general provisions regarding environmental policy; Article D.131 of the Walloon Environmental Code of 27 May 2004; article 14 of the Royal Decree of 3 August 2007 regarding the prevention and remediation of environmental harm in relation to the trade in genetically-modified organisms or products.

⁷⁰ Ibid.

⁷¹ Ibid.

⁷² Ibid.

⁷³ Ibid.

⁷⁴ R v Hydro-Quebec, [1997] 3 SCR 213 at para 112, available here.

⁷⁵ Kathleen Cooper, Toxic Substances - Focus on Children. Developing a Canadian List of Substances of Concern to Children’s Health, Canadian Environmental Law Association and Pollution Probe (2004), available here.

⁷⁶ Government of Canada, List of Toxic Substances managed under Canadian Environmental Protection Act (2022), available here.

⁷⁷ Government of Canada, National Pollutant Release Inventory, (2022), available here.

⁷⁸ Canlii Connects, Forum Non Conveniens, In a Nutshell, available here.

⁷⁹ See, for example, Martin Olszynski, Environmental Laws as Decision-Making Processes (or, Why I am Grateful for Environmental Groups this Earth Day), (22nd April 2015), available here.

⁸⁰ Government of Canada, About the Environmental Enforcement Act (2021), available here; see also William Amos, John Lammey, Meredith Cairns and Ceyda Turan, Getting Tough on Environmental Crime? Holding the Government of Canada to Account on Environmental Enforcement, Ecojustice (2011) here.

⁸¹ Bennett Jones, A Summary of Canadian Environmental Law for Non-Canadian Practitioners, (2013), available here.

⁸² For example, under Alberta’s Environmental Protection and Enhancement Act, RSA (2000), c E-12 Section 234(1) also allows for “Creative Sentencing” by the courts, which includes, in addition to any penalty, the possible of posting bonds, directing the publication of facts, ordering actions necessary to remedy or prevent additional harm, performance of community service. Shaun Fluker, Let’s Shine Some Light into Creative Environmental Sentencing, (21 June, 2017), online: ABlawg, available here. See also Chilenye Nwapi, Environmental Sentencing Policy in Alberta: A Critical Review, (January 2015): here.

⁸³ Yukon Environment Act R.S.Y. (2002), c.76.s.8.

⁸⁴ Yukon Environment Act R.S.Y. (2002), c.76.s.8.

Ibid. at s.40.

⁸⁶ North West Territories and Nunavut Environmental Rights Act, RSNWT 1988, c 83 (Supp), Ss.5 & 6

⁸⁷ Supra 51.

⁸⁸ Supra 51.

⁸⁹ David R. Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy, The University of Chicago Press, (2011) at p247.

⁹⁰ Ibid.

⁹¹ Ibid.

⁹² Eg, see, Hollick v. Toronto (City), [2001] SCC 68 (CanLII), [2001] 3 SCR 158, where the Supreme Court of Canada found that 30,000 plaintiffs seeking certification, under Ontario’s Class Proceedings Act, 1992, complaining of noise and physical pollution from a landfill owned and operated by the respondent city were unable to demonstrate the required commonality. “The appellant has not shown that a class action is the preferable means of resolving the claims raised here. With respect to judicial economy, any common issue here is negligible in relation to the individual issues. While each of the class members must, in order to recover, establish that the landfill emitted physical or noise pollution, it is likely that some areas were affected more seriously than others, and that some areas were affected at one time while other areas were affected at other times. Once the common issue is seen in the context of the entire claim, it becomes difficult to say that the resolution of the common issue will significantly advance the action. Nor would allowing a class action here serve the interests of access to justice.” (paras 30-32), available here.

⁹³ Smith v Inco Ltd. Smith v. Inco Limited, [2011] ONCA 628 (CanLII), available here.

⁹⁴ Ibid. para 35.

⁹⁵ Ernst v. Alberta (Energy Resources Conservation Board), [2014] ABCA 285, available here.

⁹⁶ Canadian Western Bank v. Alberta [2007] SCC 22, [2007] 2 SCR 3 (31st May 2007), available here.

⁹⁷ Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., [2015] SCC 53 (CanLII), available here.

⁹⁸ Coastal First Nations v. British Columbia (Environment), [2016] BCSC 34 at paras. 55-56, available here.

⁹⁹ Reference re Environmental Management Act (British Columbia), [2019] BCCA 181.

¹⁰⁰ For more information, see Lynda M Collins and Meghan Murtha, Indigenous Environmental Rights in Canada: The Right to Conservation Implicit in Treaty and Aboriginal Rights to Hunt, Fish, and Trap, (2010) CanLIIDocs 297, available here.

¹⁰¹ Friends of the Earth v. The Governor in Council and Others, [2008] FC 1183; [2009] FCA 297, available here.

¹⁰² For more information on the justiciability doctrine in Environmental cases, available here.

¹⁰³ Kelly v. Alberta (Energy Resources Conservation Board), [2009] ABCA 349 (CanLII).

¹⁰⁴ Kelly v. Alberta (Energy and Utilities Board), [2008] ABCA 52 (CanLII), available here.

¹⁰⁵ Ibid, para 12.

¹⁰⁶ Zoocheck Canada Inc v Alberta (Minister of Agriculture and Forestry), [2019] ABCA 208, available here, and where the Alberta Court of Appeal denied standing to an NGO seeking to litigate the legality of confinement of Lucy the Elephant at the Edmonton zoo by challenging the zoo’s permit; compare with Alberta’s Free Roaming Horses Society v Alberta, [2019] ABQB 714, available here, Alberta Court of Queen’s Bench granted standing to an NGO seeking to litigate on behalf of wild horse by challenging a land designation.

¹⁰⁷ Shiell v. Amok Ltd. [1987], 1987 CanLII 4563 (SK QB) (Court denied plaintiff public interest standing where the legislation included its own enforcement); see also Cassells v. University of Victoria, [2010] BCSC 1213, where the British Columbia Supreme Court denied standing to a private citizen arguing that the University of Victoria was violating environmental laws because the citizen was not challenging the actions of the government.

¹⁰⁸ British Columbia (Attorney General) v. Council of Canadians with Disabilities [2022] SCC 27, available here.

¹⁰⁹ Council of Canadians with Disabilities v. British Columbia (Attorney General), [2020] BCCA 241, available here.

¹¹⁰ Ibid.

¹¹¹ Ibid.

¹¹² Joey Jang, British Columbia v Council of Canadians with Disabilities: Deciding Public Interest Standing, The Court (2022), available here.

¹¹³ British Columbia (Attorney General) v. Council of Canadians with Disabilities [2022] SCC 27, available here.

¹¹⁴ Supra. 113.

¹¹⁵ All Canadian jurisdictions can support class actions as a result of the Supreme Court of Canada’s decision in Western Canadian Shopping Centres v Dutton, [2001] 2 SCR 534 (Dutton), available here, which authorised class proceedings in all Canadian jurisdictions. Most provinces have provincial class proceedings statutes (or, in the case of Québec, class action provisions in its Code of Civil Procedure), and those that do not can rely on the Dutton decision. The federal court system has class action procedures enshrined in its Rules of Court. See, eg, BLG, A Summary of Canadian Class Action Procedure and Developments, (September, 2018).

¹¹⁶ Environmental Law Centre, Standing in Environmental Matters, (December 2014) available here.

¹¹⁷ Government of Canada, Legal Representation of Children in Canada, available here.

¹¹⁸ Alberta Rules of Court, Alta Reg 124/2010, Section 2.11 (a), available here.

¹¹⁹ Ibid, Section 12.6(1).

¹²⁰ Ibid, Section 12.6(2).

¹²¹ Debra Lovinsky and Jessica Gagne, Legal Representation of Children in Canada, The Family, Children and Youth Section Department of Justice Canada (2015) at 37, available here.

¹²² Supreme Court Civil Rules, available here.

¹²³ Family Law Act, SBC 2011, ch. 25, section 201, available here.

¹²⁴ Manitoba Association for Rights & Liberties and The Manitoba Law Foundation, The Under 18 Handbook, available here.

¹²⁵ Office of the Children’s Lawyer, Ontario Ministry of the Attorney General, Annual Update 2014-2015. (July 2015), Ch.3, available here.

¹²⁶ Manitoba Advocate, available here.

¹²⁷ Rules of Court of New Brunswick, N.B. Reg. 82-73, Rule 7.01(a).

¹²⁸ Ibid, Rule 7.02(1).

¹²⁹ Ibid, Rule 7.02(1).

¹³⁰ Ibid, Rule 7.04(2) and 7.04(3).

¹³¹ Rules of the Supreme Court, (1986) SNL (1986), c 42 Sch D, Rule 8.01(1) and Rule 8.01(3), available here.

¹³² Ibid, Rule 8.02(1).

¹³³ Rules of the Supreme Court of Northwest Territories, N.W.T. Reg 101-96, Rule 7(1).

¹³⁴ Government of Northwest Territories, Legal Aid, available here.

¹³⁵ Nova Scotia Civil Procedure Rules, Rule 34.02(a), available here.

¹³⁶ Rules of Court of Nunavut, R-010-96, Rule 79(1) and 79(2), available here.

¹³⁷ Office of the Children’s Lawyer, available here.

¹³⁸ Ibid.

¹³⁹ Rules of Civil Procedure of Prince Edward Island, Rule 7.01(1), available here.

¹⁴⁰ Ibid, Rule 7.03(1).

¹⁴¹ Ibid, Rule 7.04(1).

¹⁴² Code of Civil Procedure of Québec 2014, c. 1, a. 87; I.N. 2016-12-01, available here.

¹⁴³ Ibid, a. 90.

¹⁴⁴ Queen’s Bench Rules, Rule 2-14(1), available here.

¹⁴⁵ Ibid, Rule 2-14(3).

¹⁴⁶ Ibid, Rule 2-15(1).

¹⁴⁷ Supreme Court Rules of Yukon, Rule 6(2) and 6(4), available here.

¹⁴⁸ Ibid, Rule 6(5).

¹⁴⁹ Snell v. Farrell, [1990] 2 S.C.R. 311, 323–30 (Can.); F.H. v. McDougall, 2008 SCC 53; Allan E. Ingleson (Ed.), Environment in the courtroom, University of Calgary Press, (2019), available here. For a robust discussion, see Lynda M. Collins, Material Contribution to Risk in the Canadian Law of Toxic Torts, 2 Chicago-Kent Law Review 91, 567, (16th May 2016).

¹⁵⁰ West Coast Environmental Law, EDRF Legal Aid Fund, available here.

¹⁵¹ Pacific Centre for Environmental Law and Litigation, available here.

¹⁵² Ecojustice, available here.

¹⁵³ East Coast Environmental Law, available here.

¹⁵⁴ Claude Martine, Interlocutory injunctions and the Environment: Comparing the Law Between Quebec and Other Provinces, (2004) 13 J Env. L & Prac. 359.

¹⁵⁵ Code of Civil Procedure, art 55, art 59, available here.

¹⁵⁶ Ibid, art 752.

¹⁵⁷ Supra 74.

¹⁵⁸ Paul Muldoon, Richard D. Lundgren, The Hydro-Quebec Decision: Loud Hurray or Last Hurrah?, (1997) Canadian Environmental Law Association, Law Times.

¹⁵⁹ Reference re Greenhouse Gas Pollution Pricing Act [2019] SKCA 40 (CanLII), available here.

¹⁶⁰ Reference re Greenhouse Gas Pollution Pricing Act [2021] SCC 11, available here.

¹⁶¹ Saskatchewan v. Canada re Greenhouse Gas Pollution Pricing Act; Bill C-74, Part 5 [2019] SKCA 40, available here.

¹⁶² Canada Act 1982, s 52(1), available here.

¹⁶³ Charter of Rights and Freedoms, s24(1), available here.

¹⁶⁴ R v Demers [2004] 2 SCR 489, available here.

¹⁶⁵ Peter W. Hogg, Constitutional Law of Canada, (2019) Thomson Reuters 5.

¹⁶⁶ R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, available here.

¹⁶⁷ Department of Justice, Section 24(1) Charterpedia (17th June 2019), available here.

¹⁶⁸ Ibid.

¹⁶⁹ Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, available here.

¹⁷⁰ Supra 80.

¹⁷¹ Canadian Environmental Protection Act (1999), available here.

¹⁷² Department of Justice Canada, Guide to understanding the Canadian Environmental Protection Act, Chapter 14, (4th July 2019), available here.

¹⁷³ Reference re Environmental Management Act, [2020] SCC 1, available here.

¹⁷⁴ Canadian Plastic Bag Association v. Victoria (City), [2019] BCCA 254, available here.

¹⁷⁵ Damstra, Jacob R. W., Supreme Court of Canada Silent on Environmental Regulation Cases, Lerners Lawyers, (5th February 2020), available here.

¹⁷⁶ Reference re Greenhouse Gas Pollution Pricing Act, [2019] ONCA 544, available here.

¹⁷⁷ Government of Canada, Canada Environmental Protection Act Registry, (16th May 2019), available here.

¹⁷⁸ Government of Canada, Contact Environment and Climate Change Canada, 19th July 2019), available here.

¹⁷⁹ Gouvernement du Québec, Environmental Complaint Procedure, Environment et Lutte contre les changements climatique Québec (2020), available here.

¹⁸⁰ Alberta Government, Energy and Environmental Response Line, (2020), available here.

¹⁸¹ British Columbia Government, Complaints and Inquiries, (8th January 2016), available here.

¹⁸² British Columbia Government, Report All Poachers and Polluters (RAPP), (8th January 2016), available here.

¹⁸³ Government of Canada, Canadian Environmental Protection Act review,” (29th November 2018), available here.

¹⁸⁴ Mounted Police Association of Ontario v. Canada (Attorney General) [2015] 1 S.C.R. 3 [48], available here.

¹⁸⁵ “Some Canadian schools, colleges move to accommodate climate strikes” CTV News (Paulo Loriggio, The Canadian Press, September 18, 2019), available here.

¹⁸⁶ Canadian Charter of Rights and Freedoms, s 2(b), available here.

¹⁸⁷ See Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927, 976, available here.

¹⁸⁸ Ibid, 969, available here; Libman v Quebec (Attorney General) [1997] 3 SCR 569, [31], available here;

¹⁸⁹ Weisfeld v Canada [1994] CanLII 9276 (FCA) available here.

¹⁹⁰ Ibid.

¹⁹¹ R v Guignard [2002] 1 SCR 472, available here.

¹⁹² Allsco Building Products Ltd v U.F.C.W., Local 1288P [1999] 2 SCR 1136, available here; U.F.C.W., Local 1518 v Kmart Canada Ltd [1999] 2 SCR 1083, available here.

¹⁹³ Ramsden v Peterborough (City) [1993] 2 SCR 1084, available here.

¹⁹⁴ Montreal (City) v 2952-1366 Quebec Inc. [2005] 3 SCR 141, available here.

¹⁹⁵ Canadian broadcasting Corp. v Canada (Attorney General) [2011] 1 SCR 19, [38], available here.

¹⁹⁶ Convention on the Rights of the Child, art 13, available here, While the CRC is not directly incorporated into domestic Canadian law by means of enabling legislation, it is expressly referenced in legislation (e.g. Preamble to the Youth Criminal Justice Act), and Canada maintains the position that its laws, policies, and practices comply with the CRC. See Introduction’ (The Canadian Bar Association), available here.

¹⁹⁷ Canadian Bill of Rights, s 1(d), available here.

¹⁹⁸ International Covenant on Civil and Political Rights, s 19(2), available here.

¹⁹⁹ American Declaration of the Rights and Duties of Man, art iv, available here.

²⁰⁰ The Canadian Bar Association, Legal Status of Child Rights in Canada, available here, and Preamble to the Youth Criminal Justice Act, available here.

²⁰¹ Canadian Charter of Rights and Freedoms, s. 1, available here.

²⁰² Convention on the Rights of the Child, art 13, available here.

²⁰³ Canadian Charter of Rights and Freedoms, s. 2(d), available here.

²⁰⁴ Convention on the Rights of the Child, art 15, available here.

²⁰⁵ See International Covenant on Civil and Political Rights, art 22, available here; American Declaration of the Rights and Duties of Man, art 22, available here.

²⁰⁶ See ‘Section 2(d) – Freedom of association’, Charterpedia (Department of Justice, June 17, 2019), available here.

²⁰⁷ Mounted Police Association of Ontario v Canada (Attorney General) [2015] 1 SCR 3 [51]-[54], [66], available here.

²⁰⁸ Kate Scallion, Freedom of Association and Indigenous Governance, (2019) 40 W.R.K.S.I. 113, [114].

²⁰⁹ Supra 207, [54], [66], available here.

²¹⁰ Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, [253], available here.

²¹¹ Supra 207, [58], available here.

²¹² Dunmore v Ontario (Attorney General) [2001] 3 SCR 1016 [17], available here.

²¹³ Supra 208 [117].

²¹⁴ Supra 207, [52], available here.

²¹⁵ Ibid, [59].

²¹⁶ Supra 208, [120].

²¹⁷ Convention on the Rights of the Child, art 15, available here.

²¹⁸ Access to Information Act, available here.

²¹⁹ Convention on the Rights of the Child, art 17, available here.

²²⁰ Ibid, art 28.

²²¹ Ibid, art 29(e).

²²² See, for example, the Manitoba Public Schools Act and the Ontario Education Act.

²²³ Environmental Education Resource Guide, Ontario Curriculum Grades 9 – 12, [2017], available here.

²²⁴ Ibid, 5.

²²⁵ Ibid, 35.

²²⁶ Ibid, 35.

²²⁷ Ibid, 111.

²²⁸ Ibid, 141

²²⁹ David Israelson, Climate change compels schools to improve environmental literacy, The Globe and Mail, (October 15, 2019), available here.

²³⁰ Canadian Environmental Grantmakers’ Network, Environmental Education in Canada, (October 2006), [3], available here.

²³¹ Manitoba Curriculum Framework of Outcomes, Senior 2 Science, Appendix: General Learning Outcomes, [4.3], available here.

²³² Manitoba, Grade 12 Global Issues: Citizenship and Sustainability, Introduction, [3-4], available here.

²³³ Taking on Climate Change, A teaching companion for educators in Nova Scotia, (March, 2013), available here.

²³⁴ Prince Edward Island, Science Curriculum, Environmental Science, [3], available here.

²³⁵ Prince Edward Island, Science Curriculum, Science 431A, [18], available here.

²³⁶ Prince Edward Island, Canadian Studies Curriculum, [4-7], available here.

²³⁷ Prince Edward Island, Social Studies Curriculum, Geography 521 A, see e.g. 18, available here.

²³⁸ Excerpt from Curriculum for a Sustainable Future (as revised, January 2020), [5], available here.

²³⁹ Ibid, 9.

²⁴⁰ Ibid, 12.

²⁴¹ Alberta Council for Environmental Education, After the climate strike! See what we’ve got for teachers…, available here.

²²⁴ British Columbia Ministry of Education, Sustainability Course Content: A Curriculum Framework, available here.

²⁴³ British Columbia Ministry of Education, The Environmental Learning & Experience Curriculum Maps, (2008/2009), [13 and 44], available here.

²⁴⁴ Northwest Territories Department of Education, Culture and Employment, Experiential Science, (2006), [8-9], available here.

²⁴⁵ Northwest Territories Department of Education, Culture, and Employment, Social Studies Kindergarten to Grade 12, (2005), [2], available here.

²⁴⁶ Northwest Territories Department of Education, Culture and Employment, Northern Studies 10: Module 4: Living Together, [44], available here.

< Back to country reports