CELA Annual Report, 2005 - excerpted article

Access to Justice and Protecting Environmental Rights

One of the pillars of any legal aid clinic is the profound belief that everyone has the right to be heard and access to fair and accountable procedures where the wrongs against them can be addressed.  CELA remains committed to furthering access to justice principles in every aspect of its work. 

 Access to the Courts
Recent years have witnessed traditional and new challenges.  Despite some positive steps, it remains difficult for Ontarians to participate in environmental decision-making. Without intervenor funding, groups and individuals seeking to protect the environment are at an incredible disadvantage before tribunals such as the Ontario Municipal Board or the Environmental Review Tribunal.  By comparison, lawyers and experts for industry, developers and municipalities have an open cheque book. Environmentalists pass hats and hold bake sales to get an unequal seat at the table.  Access to the courts is also challenging. Courts appear not to hesitate to give adverse cost awards to even the most well intentioned, although unsuccessful, public interest litigants.  The prospect of adverse costs continues to send a chill to test case and other litigation to serve the public interest.

Access to Information and Decision-Making
But access to justice is broader then using legal tools before courts and tribunals. It is equally about access to information and decision-making and requires full and fair participation in consultations on new laws, policies or programs. The same power imbalances occur. Environmentalists have far less access to decision-makers compared to polluters or their industry associations. Since many of the issues are inherently complex and riveted with scientific uncertainty, final decisions contain many value judgements. Final decisions are often inherently political demanding careful and broad public scrutiny. Yet, it is often a struggle to ensure that the public is at the table in the first place, and if so, whether they have the resources and capacity comparable to those that stand to benefit from a weaker policy or program. 

We see frequent examples of provincial and federal government reluctance to use strong legislative measures to deal with air pollution, toxics in consumer products or other issues. It is sad but true that the environmental and health policy regimes throughout Canada are still hampered by the legacy of severe budget cuts and deregulation that occurred throughout the mid to late 1990s.  The reluctance to now move ahead with progressive regulatory measures in part has fuelled the right to know movement – that is, the disclosure of information on the performance of industry and government as a means to promote positive action.

Public Health Dimensions
Increasingly, environmental issues have public health dimensions such as smog and asthma or toxics and cancer. CELA has had the privilege of both joining and leading an exciting trend of partnering with health groups from across Canada on these issues.  For example, CELA has been instrumental in the Canadian Partnership for Children’s Health and Environment. These partnerships link environmental protection and health promotion goals as well as furthering access to justice. Children living in poverty are at greater risk for environmental exposures for many reasons. They need adults to make responsible decisions on their behalf.  The voice of Canada’s vulnerable people must be heard with respect to those issues that affect their environment and health.