Environmental Racism and Public Policy in Canada: A Modest Proposal for Social Justice:

2010, Vol. 1, No. 1, 23-37 20100602-1/$12.00

Despite recent growth in research involving environmental issues in Canada, interest in environmental racism remains scant. The deliberate siting of hazardous waste sites, landfills, incinerators, and polluting industries in communities inhabited by First Nations communities represent a social justice issue of considerable magnitude. Through example, identifies the need for changes in environmental policies. A review of current policies, legislation and proposals for reform are provided. It is suggested that education and awareness of environmental racism be promoted at the national level. Amendments to the Canadian Environmental Protection Act, the implementation of a regulatory body and the development of an Environmental Bill of Rights are also considered.

A core tenet of social justice, and a societal expectation, holds that all Canadians have the right to safe air, water and soil. Yet, referring to First Nations people in North American, Mascarenhas observes “whether by conscious design or institutional neglect, Native-American communities face some of the worst environmental devastation in the nation (2007, p.570).” Sarnia, Ontario or Canada’s ‘Chemical Valley’, is the most disconcerting example of environmental injustice. This area has been identified as Canada’s largest concentration of petrochemical industries and associated water and air pollution (Chemical Valley, 2008). With approximately 10 tons of pollutants in the St. Clair River and an average of 100 spills a year, this river is a dangerous source of drinking water for Aamjiwnaang and Walpole Island First Nations (Mascarenhas, 2007). From mercury contamination in Grassy Narrows, to E.coli contamination on Kashechewan Reserve, many communities are beyond the saturation point for exposure to pollutants. The results - high incidences of birth defects, illness and disease - are devastating. Despite considerable evidence of environmental degradation, Canadian governments and citizens alike have, for the most part, failed to recognize this as an important policy problem. Indeed, environmental injustices of these magnitudes represent a legacy of racist practices experienced by First Nations peoples.

While the US environmental justice movement has developed at an exponential rate, Canadian efforts have been far less effective, resulting in uneven attention to and action regarding environmental justice (Draper & Mitchell, 2001). President Clinton’s 1994 Executive Order 12898 required each Federal agency to achieve environmental justice as part of its mission (Draper and Mitchell, 2001). Introducing legislation and creating regulatory bodies, such as the US Environmental Protection Agency have institutionalized environmental justice within the American federal governance system. Canadian legislation that deals directly with the inequalities created by environmental injustice is for the most part non-existent. Draper and Mitchell affirm that “…in Canada, relatively little policy discussion explicitly linked to environmental justice has occurred...political and private sector leaders in Canada generally have not taken strong positions related to environmental justice issues” (2001, p. 96). Improvements and alterations to the dearth of current public policy regarding environmental justice for First Nations people is needed to ensure equal rights to a safe environment for all Canadians, regardless of race and/or economic status. Failure to commit to such change is tantamount to endorsing the continuance of racist practices, a far cry from the goal of a just society.

Given the breadth and scope of environmental justice definitions that have emerged in the US, it is important that Canada recognizes its own areas of concern and allows for a diversity of interpretations of environmental justice to evolve from its political and social contexts. While the terms environmental justice and environmental racism are related, they stem from slightly different literatures. Academics use the terms to refer to “geographic associations between pollution or waste sites and low-income or minority communities; however, researchers continue to disagree about whether the patterns they observe constitute evidence of inequity, injustice, or racism (Holifield, 2001, p.78).” The original goal of environmental justice, as defined in President Clinton's (1994) Executive Order 12829, was to ensure "all people, regardless of race, national origin or income, are protected from disproportionate impacts of environmental hazards" (Holifield, 2001, p.80). The concept now encompasses a diverse range of meanings as different individuals, advocacy groups and governments adapt it to fit their own geographic, historical and political contexts (Holifield, 2001). For example, in the US, while all federal environmental justice programs include provisions for both distributive and procedural justice, different departments have varying interpretations to suit their own needs. The Environmental Protection Agency's policies focus mainly on hazardous waste and pollution concerns, whereas the program of the U.S. Department of Housing and Urban Development addresses problems like lead-based paint in inner-city public housing projects (Holifield, 2001). Finally, environmental justice for the Federal Transit Administration means ensuring that minority and low-income communities benefit proportionally from transit projects (Holifield, 2001). As Szasz observes, "[i]ntegrated in demands for clean and healthy communities are larger assertions for the restructuring of the current relationship between economy and society" (in Mascarenhas, 2007 p. 574). Consequently, Taylor (2000) has posited that environmental justice is as much about civil rights, self-determination and power, as it is about the questions of health and environmental quality (in Mascarenhas, 2007).

Many examples provided in this essay can be classified as incidences of environmental injustice; however, given that First Nations communities are overrepresented in this regard, they can be classified as acts of environmental racism. Environmental racism can be defined as the deliberate or intentional siting of hazardous waste sites, landfills, incinerators, and polluting industries in communities inhabited by minorities and/or the poor (Collins-Chobanian & Wong, 2006). The concept of environmental racism is rights-based and asserts that communities subject to this kind of racism are frequently impoverished, excluded from dominant cultures and are denied full citizenship (Cook, 2006). Draper and Mitchell (2001) observe that this marginalized status leaves communities politically powerless and without representation in the policy-making process. Unfortunately, many First Nations communities know all too well the effects of their marginalized status.

This essay proposes a modest policy solution to confronting environmental injustice and racism in Canada. The suggestions are intended to influence public policy throughout the policy process from problem identification and agenda setting to policy formulation itself. First, specific examples of environmental racism in Canadian aboriginal communities are described. This is followed by an examination and critique of current environmental policy and legislation in Canada. Next, a strategic plan and policy solution to combat the effects of environmental racism is proposed including: increased education and awareness of the general public on the topic of environmental racism; amendments to the Canadian Environment Protection Act (1999); implementation of a regulatory body; and the introduction of a federal “Environmental Bill of Rights.”

Aboriginal communities within Canada have frequently been victims of environmental racism¹. The remote nature of many First Nation communities joined with the special jurisdictional issue associated with them, has led to a lack of clear responsibilities for the health of these communities (Senate of Canada, 2007). The following serve as exemplars of many instances of environmental injustice and environmental racism that occur in Aboriginal communities.

Aamjiwanaang First Nation and residents of Sarnia face a serious environmental problem. There are approximately 850 band members residing on Aamjiwanaang Reserve, an area identified as the St. Clair River Area of Concern by the Canada-US Great Lakes International Joint Commission (Keith et al., 2005). The reserve is surrounded by one of Canada’s largest concentrations of industry, including several large petrochemical, polymer and chemical industry plants (Keith et al., 2005).

Canada’s National Pollutant Release Inventory (NPRI) is the central public registry that tracks the quantities of chemicals released into the environment each year. In 2005, the NPRI facilities in the Sarnia area released 5.7 million kilograms of “Toxic Air Pollutants” – pollutants which have been associated with reproductive and developmental disorders and cancer among humans (MacDonald & Rang, 2007). Quantities of emissions released in the Sarnia region are greater than any other community in Ontario and more than the entire provinces of Manitoba, New Brunswick and Saskatchewan (MacDonald & Rang, 2007). Yet, air pollution is just one aspect of the environmental problems affecting this community. The St. Clair River, a source of drinking water for Aamjiwanaang First Nation, also poses environmental danger. “Between 1974 and 1986, a total of 32 major spills and 300 minor spills have contributed to approximately 10 tons of pollutants in the St. Clair River” (Mascarenhas, 2007, p.567). On average 100 spills a year have been recorded since 1986 by Environment Canada (Mascarenhas, 2007). Furthermore, an abundance of agricultural runoff of pesticides and fertilizers enter the river every year (Mascarenhas, 2007).

Growing evidence suggests that the health of Aamjiwanaang First Nation and their local environment have been severely compromised (MacDonald & Rang, 2007). In 2006, a survey conducted by the Aamjiwnaang Environment Committee revealed that many residents had serious health implications related to air pollution. About 40 per cent of band members required an inhaler, and 17 per cent of adults and 22 per cent of children reported to have asthma (MacDonald & Rang, 2007). Furthermore, a concerning birth ratio of 2 girls to 1 boy is a clear indicator that something is wrong in Sarnia (Chemical Valley, 2008). A study conducted in 2005 confirms that the proportion of male live births of the Aamjiwnaang First Nation has been declining continuously from the 1990’s to 2003 (Keith et al.., 2005). Releases of chemicals have also interfered with the community’s cultural life, affecting hunting, fishing, medicine gathering and ceremonial activities (MacDonald & Rang, 2007).

Members of Aamjiwaang First Nation have lost confidence in the abilities of their provincial, and federal governments to protect their community from environmental harm (MacDonald & Rang, 2007). This form of environmental degradation is one of selective victimization in which First Nations communities are deprived of critical resources and a healthy environment.

High levels of mercury contamination are typically found in Aboriginal communities near pulp mills or hydro developments (Assembly of First Nations, 2005). As early as 1970, mercury contamination from a Dryden paper mill was discovered in the English-Wabigoon River system (Indian and Northern Affairs Canada, n.d. hereafter referred to as INAC). “In a single stroke, the people of Grassy Narrows lost their two main sources of employment (guiding and commercial fishing), and their confidence in the safety of their food and water” (INAC, n.d.). Citizens of Grassy Narrows have faced relentless and on-going health problems as a result of consuming fish contaminated by pulp mill effluent (Assembly of First Nations, 2005). The Government of Canada has contributed more than $9 million dollars in compensation to the First Nations affected by mercury contamination of the English-Wabigoon River; yet little can be done to remove the fact that a community has struggled with serious health and social problems for over 25 years (INAC, n.d.).

Environmental contamination has been a long-standing concern for First Nations people; in particular, more recent incidences of water contamination on First Nations’ reserves indicate that environmental injustices may only be getting worse. In 2001, an assessment carried out by the Department of Indian Affairs and Northern Development (DIAND) and Health Canada revealed that almost three quarters of drinking water systems located on reserves posed significant risk (National Aboriginal Health Organization, 2002, hereafter referred to as NAHO). Additionally, in March 2007, DIAND released a progress report on First Nations drinking water indicating that the water systems of 97 First Nations communities are classified as high risk (NAHO, 2002). The following examples substantiate that water conditions on First Nation’s reserves in Canada are a product of environmental racism.

In 2003, Maura Hanrahan’s research, revealed unacceptable water conditions for the remote fly-in Metis community of Black Tickle, Labrador. The small community of 268 individuals has limited access to water through community wells in the summer and running brooks in the winter (NAHO, 2002). In addition, its 366 shallow ponds are vulnerable to contamination from animal waste (Hanrahan, 2003). The complete lack of sewage treatment, and limited capacity to adequately test drinking water, combine to turn Black Tickle into a “sick community”(NAHO, 2002).

Not surprisingly, the level of water Black Tickle residents use is much lower than that of Canadians in general; with the average person in Black Tickle using 112 litres of water daily, compared to the 326 litres used by the average Canadian (Hanrahan, 2003). The Terms of Union between the Dominions of Newfoundland and Canada in 1948 did not contain any reference to the islands or to Labrador's Indigenous people; the result is that funding of Indigenous programs and recognition of Indigenous rights has been minimal to non-existent (Hanrahan, 2003). Yet, unequal access to potable water is just one dimension of environmental injustice and racism experienced by Indigenous people in Canada. To be sure, homes in Black Tickle are among the hundreds in Indigenous Canada without running and/or safe water (Hanrahan, 2003). In the next example, appalling water conditions on Kashechewan Reserve in Ontario, illustrate how problems extend beyond water supplies to include First Nations housing, sewage and waste management, and exposure to toxins (Senate of Canada, 2007).

On 25 October 2005, the Minister of Aboriginal Affairs for the province of Ontario ordered the evacuation of nearly 1,000 residents of the Kashechewan reserve (Senate of Canada, 2007). The evacuation was in response to positive tests for Escherichia coli (E. coli) bacteria in the reserve’s drinking water (Kashechewan, 2006). Kashechewan First Nation had been under a boil water advisory for 2 years and about 1,900 people on the reserve have for years battled skin infections and chronic illness blamed on the poor water quality (Senate of Canada, 2007). Bacteria levels in the water required that the community try to combat the E. coli by over-chlorinating the water. However, the chlorine in the water reached “shock” levels making matters worse as the high chlorine intensified skin irritations, causing burns (Kashechewan, 2006).

A major cause for contamination was the intake pipe for Kashechewan’s water treatment plant had been installed downstream from a sewage lagoon (Senate of Canada, 2007). Furthermore, inadequate training and lack of on-going maintenance were cited as the main reasons for repeated contamination of the water supply. Simple improvements could have been implemented to prevent the large-scale health emergency that occurred, which now currently involves relocating an entire community at a great expense and with further negative social impact on the community (Senate of Canada, 2007).

Environment Canada is the department within the federal government responsible for coordinating environmental policies and programs as well as promoting preservation of the natural environment and wildlife (Government of Canada, n.d.). In addition, responsibility for environmental management in Canada is a shared responsibility between the federal government and provincial/territorial governments. For example, in regards to waste management, the federal government regulates international and inter-provincial/territorial movements, while provincial/territorial governments regulate intra-provincial movements of hazardous waste and hazardous recyclable material (Environment Canada, n.d.). The provinces/territories are also responsible for establishing controls for licensing hazardous waste generators, carriers and treatment facilities within their jurisdiction (Environment Canada, n.d.).

Updated in 1999, Canada’s current federal legislation dealing with environmental concerns is the Canadian Environmental Protection Act (1999). The goal of the Act is “to contribute to sustainable development through pollution prevention and to protect the environment, human life and health from the risks associated with toxic substances (CEPA, 1999).” While this legislation claims to protect human life from toxic hazards, equal opportunity to this protection from harm has not been mandated. In order to promote equality and prevent Aboriginal and other minority groups from being marginalized and targeted for environmentally unjust/racist practices, equality of protection must be explicitly written in statute. The following discussion identifies and critiques several provisions found within CEPA in terms of their applicability to environmental racism.

If a violation of CEPA has occurred, under sections 22 and 38 of the Act, the public can initiate an Environmental Protection Action if the Minister has failed to conduct an investigation and report within a reasonable time or if the Minister’s response to the investigation was unreasonable (CEPA, 1999). Plaintiffs have an opportunity to obtain a remedy if a violation occurs, but this is very much a reactive approach (See Appendix A). A proactive approach would ensure that regulations should be implemented which prohibit unjust environmental actions before hand. Individuals would not be obligated to wait until the damage is done before they can try to obtain a remedy, for instance, the plaintiff may seek a declaratory order or an order requiring the defendant to refrain from conducting himself in a way which may constitute as an offence under CEPA (CEPA, 1999). Additionally, section 185(2) of CEPA provides that the Minister has authorization to decline permits if he/she believes that the waste or material will be managed inadequately (1999) (See Appendix B).

Although this safeguard is in place, it is also true that government decisions are widely impacted by economic considerations, and thus will rarely halt activities if they jeopardize economic growth. Other regulatory bodies, specifically targeting incidences of environmental injustice, need to be introduced to enforce provisions such as section 185(2).

Part 9 of CEPA discusses government operations pertaining to federal and Aboriginal lands. It attempts to close any gap between federal and provincial environmental jurisdictional requirements by ensuring that federal operations, and works and undertakings on federal lands, meet or exceed equivalent provincial provisions for emissions, effluents, waste handling and disposal, and environmental emergency or the accidental release in contravention of regulations of a substance into the environment (CEPA, 1999). It outlines a lengthy list of regulations, from respecting establishment of environmental management systems, to pollution prevention plans which the Minister may decide to recommend. However, before recommending to the Governor in Council a regulation under this section, the Minister is required to consult with the government of a territory to determine if such regulations apply to that territory (See Appendix C).

In many cases, Aboriginal governments have not been consulted or warned about risks associated with developmental plans such as the construction of mines, mills, landfills and toxic waste disposal sites on Aboriginal lands. In the case of northern Saskatchewan’s uranium mines, consultation and public hearings of the matter took place two years after the Rabbit Lake mine began operating (York, 1990). More recently, the development of Alberta Tar Sands has resulted in litigation by the Beaver Lake Cree Nation against the Province of Alberta. The action alleges breach of constitutional duty to consult with the Nation regarding Phase 3 of the Christina Lake Project headed by MEG Energy Corporation (Dene Sues Alberta). Moreover, development of the Tar Sands has led to extreme degradation of the Athabasca River Basin rendering the river unusable for drinking or fishing by Dene, Cree, and Métis populations (Thoma-Müller, 2008).

Sometimes protest from the community has been victorious in preventing such sites from being developed but in other cases, corporations and government agencies have found methods to get around these objections and continue with their own agendas regardless of who has been affected. As an example, Manitoba Hydro began the planning of its Grand Rapids project in 1957, four years before the people of Chemawawin were informed of the plans (York, 1990). There is clear evidence that both federal and provincial governments were in full knowledge that building the hydro dam would cause serious damage to the Chemawawin community, and yet the dam continued to be built (York, 1990). Similarly, First Nations concerns over Tar Sands development voiced to both Albertan and Federal governments in 2008 have fallen on deaf ears. Treaties 8 and 11 have failed to provide adequate protection to First Nations from uncontrolled and massive development of the Tar Sands, which threatens their “…fundamental right to exist as an indigenous peoples.” (Thoma-Müller, 2008)

Although it appears that some safeguards are in place which would promote environmental justice and equality as specified in sections 22 and 185(2) of CEPA, it also appears that a breakdown occurs upon implementation and regulation of the law. The case of First Nations underscores the importance of the adequately implementing this statute and monitoring its enforcement.

The following recommendations provide a means to battle the environmental injustice/racism within Canada. The first involves increasing knowledge and awareness of environmental racism for the general public to promote community activism against environmental injustices. The remaining recommendations involve policy implications with the cornerstone being implementation of a federal “Environmental Bill of Rights.”

In Canada, there has been relatively little policy recognition of community voices raised in concern of environmental issues. If environmental justice is to be achieved, community activism must address these issues. Politicians and even community advocates may not have environmental equality as a priority on their agendas, as witnessed in the water situation of Black Tickle Metis. Communities must therefore advocate on their own behalf for environmental equality. Through this advocacy, communities will be able to influence policy design, as the first step in problem identification (Pal, 2006). If there is sufficient concern among the public regarding issues of environmental racism, policy-makers will be required to address issues of an environmental nature and report their progress to the community.

In order to promote education and awareness of environmental protection methods, individuals and public interest groups need an “access-to-information” statute that requires governmental departments to keep indexes of materials such as brochures, pamphlets, reports, and fact sheets and to make information available on request (Government of Canada, n.d.). Although many people continue to hope that governments will show leadership and commitment toward the challenges of sustaining our environment and attaining environmental justice, the responsibility for reaching these goals must be shared by all Canadians. Public participation is essential for guiding political will to areas of concern. Ultimately, such actions will likely enhance population health through reductions in exposure to environmental hazards for already vulnerable groups (Buzzelli & Jerret, 2004).

A second recommendation would be to include additional provisions to CEPA which would incorporate a focus on reducing cases of environmental injustice. As noted, sections 22, 185(2) and part 9 of CEPA would be able to accommodate the principles of environmental justice.

A third recommendation is to increase responsibilities of the current regulatory body of environmental assessment to include regulation of environmental justice issues. An example is the Canadian Environmental Assessment Act which is administered by the Canadian Environmental Assessment Agency (CEAA.) The CEAA is an independent agency that reports directly to the Minister of the Environment. The Act requires federal departments, including Environment Canada, agencies, and Crown corporations to conduct environmental assessments for proposed projects where the federal government is the supporter. It also requires environmental assessments when the project involves federal funding, permits or licenses. The infrastructure is already in place, but it requires expansion to include topics of environmental racism.

In Canada, environmentalists have been pressing for an environmental bill of rights since the early 1970s with little success (Government of Canada, n.d.). With the exception of provincial statutes of environmental rights in Quebec and Ontario, the majority of Canada has not benefited from any protection². A federal environmental bill of rights would be an effort to make Canadian environmental law more democratic. More democratic environmental law is necessary to empower citizens to protect the quality of the natural environment for their own and future generations.

The Government of Canada has outlined several substantive and procedural rights which should be included if Canada was to adopt an Environmental Bill of Rights. Substantive rights would include:

Procedural rights would include: reforms of the standing rules; class actions and burden of proof requirements in environmental litigation; and a law to protect retaliation against employees who report environmentally harmful conduct by their employers. As well, it has been suggested that the onus of proof should be shifted from plaintiffs to defendants, so that polluters would have to establish the environmental safety of their activities (Government of Canada, n.d.).

The bill of rights should also mandate that every federal agency make environmental justice a part of its mission. One suggestion may require federal agencies to identify and address environmental health effects of its programs on communities inhabited by minorities and/or the poor.

After examining the current legislation regarding environmental injustice and making recommendations to smooth disproportionate levels of environmental racism among aboriginal groups, a policy solution is still not as clear as initially desired. Policy design is very much an interconnected web, and we can rarely fix one problem without it having an effect on another activity (Pal, 2006). While the recommendations suggested in this paper will provide some relief from the harms of environmental racism, other factors need to be addressed simultaneously. For example, inhibiting factors which prevent the recommendations from being successful must be considered. Some examples include: a reluctance to engage in ‘race talk’ in Canada and the fact that governments will unlikely pursue environmental equality if economic growth and benefit are jeopardized. In addition, other policy areas may be affected; and these must be considered. Clearly, effective environmental policy requires an interdisciplinary approach; a task beyond the scope of this paper. Despite the fact that an all encompassing approach is best, the recommendations suggested in this paper would be a good starting point to battle the current problem of environmental racism in Canada and the development of socially just policies for First Nations communities.

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Buzzelli, M., & Jerrett, M. (2004). Racial gradients of ambient air pollution exposure in Hamilton, Canada. Environment & Planning, 36, 1855-1876.

Collins-Chobanian, S., May, L., & Wong, K. (2006). Environmental Racism, and Monitored Retrievable Storage Sites for Radioactive Waste. Applied Ethics: A Multicultural Approach 4^th Ed. Upper Saddle River: Pearson.

Draper, D., & Mitchell, B. (2001). Environmental justice considerations in Canada. Canadian Geographer, 45, 93-98.

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Holifield, R. (2001). Defining Environmental Justice and Environmental Racism. Urban Geography, .22 (1), 78-90.

Keith, M., Lockridge, A. & Mackenzie, C. (2005). Declining Sex Ratio in a First Nation Community. Environmental Health Perspectives, 113 (10) 1295-1298.

MacDonald, E. & Rang, S. (2007). Exposing Canada’s Chemical Valley: An Investigation of Cumulative Air Pollution Emissions in the Sarnia, Ontario Area. Toronto, ON: Ecojustice.

Mascarenhas, M. (2007). Where the waters divide: First nations, tainted water and environment justice in Canada. Local Environment. 12, (6), 565-577.

Pal, P.A. (2006). Beyond policy analysis: Public issue management in turbulent times. Toronto, ON: Nelson.

York, G. (1990). The Dispossessed: Life and Death in Native Canada. London: Vintage U.K.

In the action, the plaintiff may claim any or all of the following in regards to an environmental violation:

(b) an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute an offence under this Act;

(c) an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent the continuation of an offence under this Act;

(d) an order to the parties to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations within a time set by the court; and

(e) any other appropriate relief, including the costs of the action, but not including damages (CEPA, 1999).

(2) if the Minister is of the opinion that the waste or material will not be managed in a manner that will protect the environment and human health against the adverse effects that may result from that waste or material, the Minister may refuse, in accordance with the criteria set out in the regulations, to issue a permit even if the relevant authorities have given their authorization.

(3) Before refusing under subsection (2) to issue a permit to import, the Minister shall consult with the government of the jurisdiction of destination.

	(3) Before recommending to the Governor in Council a regulation under this section, the Minister
	(a) shall offer to consult with the government of a territory if the regulation applies to that territory, and with the members of the Committee who are representatives of aboriginal governments if it applies to aboriginal land over which an aboriginal government has jurisdiction…

Environment Canada. (n.d.). Retrieved September 2, 2007, from http://www.ec.gc.ca/default.asp?lang=En&n=F3622FE4-1