ENVIRONMENTAL JUSTICE IN POLLUTION HOTSPOTS AND SECTIONS 7 & 15 OF THE CHARTER: THE CASE OF THE AAMJIWNAANG COMMUNITY IN "CHEMICAL VALLEY".

• Author: Guillot, Alexandra

1. INTRODUCTION 275 II. CUMULATIVE IMPACTS OF EXPOSURE TO CHRONIC AIR POLLUTION AND ENVIRONMENTAL JUSTICE 281 A. Environmental Justice Concerns Raised by Risk-Based Canadian Pollution Controls Laws 281 B. Ontario's Air Pollution Permitting Scheme 284 1. Brief Overview of OEPA's Regulatory Scheme 285 2. Environmental Injustices in Pollution Hotspots under OEPA 286 a. Distributive Injustice 287 b. Political Injustice: Procedural and Recognition Justice Concerns 288 III. HOW SECTIONS 7 AND 15 OF THE CHARTER MAY BE USED TO PROMOTE ENVIRONMENTAL JUSTICE IN POLLUTION HOTSPOT CASES IN CANADA 291 A. Pollution Hotspots and State Responsibility under the Charter 291 B. Section 7 of the Charter and (Air) Pollution Hotspots 292 1. Section 7: Proving a Sufficient Causal Connection 293 2. The Government Action Must Interfere with or Deprive the Claimant of Their Life, Liberty, and Security of the Person 293 a. "Sufficient Casual Connection" Test in Environmental Cases 293 b. Liberty, Security, and Life of the Person 296 3. The Deprivation of a Person's Right to Life, Liberty, or Security Must Not Be in Accordance with Principles of Fundamental Justice to Prevail 298 4. Section 15 of the Charter and Pollution Hotspots 299 C. Section 15: Proving a Discriminatory Distinction 300 1. A Distinction Must Be Drawn Based on an Enumerated or Analogous Ground 300 a. Section 15 Protections Cover Aamjiwnaang Community Members 301 b. Comparator Groups are No Longer Required to Draw a Distinction 301 c. Drawing a Distinction Created by Law: OEPA and O Reg. 419/05 302 2. The Distinction Must Be Discriminatory in Its Impact 303 a. The Current Section 15 Causation Standard under Fraser 303 b. Application of Law's Most Relevant Factors to Pollution Hotspot Cases 304 IV. CONCLUSION 306 I. INTRODUCTION

   Although Canada's air quality has been ranked among the cleanest in the world several times in the last decade, (1) not all Canadians have been able to enjoy the benefit of clean air. (2) There is increasing evidence of environmental injustice--that environmental hazards and adverse health impacts resulting from air pollution are not borne equally among individuals or communities. (3) Socially and economically disadvantaged groups, including low-income populations, people of color, and Indigenous communities--referred to in literature as "environmental justice communities," (4) "fenceline communities," (5) and "sacrifice zones" (6)--are disproportionately affected by and exposed to ambient air pollution in countries including Canada and the United States. (7) More specifically, significant disparities persist in the cumulative impacts of exposure to environmental hazards (such as lack of clean air) and social stressors. (8)

   The Canadian Charter of Rights and Freedoms (Charter) (9) is intended to safeguard the rights of all Canadians. It is an important means of protecting the rights of vulnerable individuals and communities. Despite long-standing constitutional protections in the Charter, Canadian courts have not sufficiently interpreted these provisions to prevent or remedy disproportionate environmental and health effects. This Note builds on the work of scholars like Chalifour, Collins, and Boyd, who argue that environmental rights can and should be incorporated into the Charter through judicial interpretation. (10) Adding express language to the Charter would ideally achieve stronger protections for environmental justice claimants in Canada. However, a constitutional law approach to analyzing situations such as the one confronting the Aamjiwnaang community would more likely resolve environmental justice problems. (11) A broader interpretation of sections 7 and 15 of the Charter by Canadian courts will help ameliorate the conditions of the Aamjiwnaang residents in Sarnia and similarly situated communities. This Note will assess how sections 7 and 15 of the Charter can be used to address and remedy environmental injustices to vulnerable populations. It will focus specifically on harms to health resulting from exposure to the cumulative impacts of multiple air pollutants. This Note will use the Aamjiwnaang community, near "Chemical Valley" in Sarnia, Ontario, as a case study because it is a paradigmatic example of environmental injustice in Canada and is widely reported to be one of the most polluted areas in the country. (12)

   Canada's record of inadequate environmental protection has resulted in substantial disparities in the cumulative impacts of exposure to ambient air pollution and in adverse health outcomes between individuals and groups. Notably, the Aamjiwnaang community, made up of approximately 900 Anishinabek people living on a First Nation reserve near Sarnia, Ontario, known as "Chemical Valley," is overly burdened by air pollution from one of Canada's largest concentrations of industry. (13) The area is home to sixty-two large petrochemical, polymer, and chemical industrial facilities within twenty-five kilometers of the reserve, which emitted 5.7 million kilograms of toxic air pollutants on the Canadian side of the border alone in 2005. (14) A study in that same year confirmed that the community's sex ratio (the number of baby boys compared to the number of baby girls) was dramatically declining, and posited that chronic exposure to toxic chemical pollution was responsible. (15) Moreover, the community experiences "increased risks of death from cardiovascular and respiratory diseases, lung cancer, diabetes, and heart attacks." (16) For instance, the asthma rate in Aamjiwnaang children living near Chemical Valley is more than double the national average rate. (17) Defined by "the experience of concentrated levels of environmental risks or harms in a particular geographical space[,]" Chemical Valley is an example of a "pollution hotspot." (18) The existence of the hotspot and the consequent environmental degradation and health impacts in the Aamjiwnaang community illustrate the inadequacy of current approaches to environmental protection and equity in Canada.

   The adverse health impacts in Chemical Valley are a product of environmental inequality and highlight the need for Canada--and particularly, Ontario--to take action to achieve environmental justice. In an effort to prompt such action, Aamjiwnaang residents Ada Lockridge and Ron Plain filed a lawsuit against the Ontario Ministry of Environment and Climate Change (MOECC or Ministry) in 2011, alleging that the province's failure to account for the cumulative effects of pollution from the industrial activity around the community was a violation of their rights under sections 7 and 15 of the Charter. (19) They discontinued the lawsuit when the Ontario government began to address the issues the claimants raised. (20) However, in 2017, MOECC's proposed emissions policy fell short of adequately measuring the cumulative impacts of air pollution and "essentially amount [ed] to business as usual." (21) Though the Lockridge v. Ontario (22) lawsuit was discontinued, its use of Charter-based claims may still be employed as a tool to achieve environmental justice in similar pollution hotspot cases.

   Two important tenets of environmental justice are the "fair treatment" and "meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." (23) "Fair treatment" means that environmental harms and benefits "should be equitably distributed without discrimination on the basis of socio-economic status, race," ethnicity--or, in the Canadian context, members of First Nations living on reserves. (24) "Meaningful involvement" is the need for affected communities to have an adequate opportunity to participate in "environmental policy development and decision-making, including in identifying concerns and in developing" solutions to address disproportionate environmental burdens, and the ability to take actions to produce environmental justice for themselves. (25)

   Alice Kaswan, an environmental justice scholar, distinguishes two forms of justice raised by the environmental justice movement: (1) justice in the existing distribution of environmental benefits and burdens (distributional justice); and (2) justice in the decision-making processes that determine the distribution of environmental benefits and burdens (political justice). (26) Political justice can be understood to consist of: (1) procedural justice--meaning "fair access to process;" (2) recognition justice--meaning "acknowledgment of and respect for all peoples;" and (3) restorative justice--meaning addressing "issues of past harms." (27)

   Several provisions in the Constitution, which embeds the Charter, could be used to address and remedy environmental injustices. For instance, section 35, protecting fundamental rights of Indigenous peoples in the country, or section 36, requiring federal and provincial governments to provide "essential public services of reasonable quality to all Canadians," are both potential avenues. (28) This Note looks only at sections 7 and 15, because section 7 is the most probable vehicle for a "right to a healthy environment" to protect environmental rights under the Charter, and because section 15 embodies the principles of equal protection and nondiscrimination, which are essential to environmental justice. (29) Though tensions exist between environmental laws and justice, (30) dignity rights such as the "right to a healthy environment" can serve an important constitutional role and provide an opportunity to bridge the gap between traditional, risk-based environmental regulations and environmental justice. (31)

   This Note examines the potential for the Charter's sections 7 and 15 to address and remedy the environmental health injustices impacting the Aamjiwnaang community due 10 the cumulative impacts of social stressors and exposure to air pollution from multiple...