Environmental Discrimination and the Charter’s Equality Guarantee: The Case of Drinking Water for First Nations Living on Reserves

Many First Nations communities living on reserves in Canada do not have consistent access to one of the most essential requirements for life—clean and safe drinking water. This article analyses the Charter’s equality guarantee to determine whether it offers a remedy. The analysis shows that the experience of First Nations communities living on reserve without access to clean water is discriminatory within the meaning of s 15 of the Charter, and that this discrimination would not be saved by s 1. The most significant hurdle to a s 15 claim is the fact that there is no single law which categorically excludes First Nations reserve communities from its protection. While the courts have not considered a case with similar facts, the article argues that the Charter’s equality protections extend to the full range of government action (and inaction) regardless of whether the action stems from one law, regulation or policy, or a set of laws that, acting together, creates discrimination. An interpretation that would limit s 15 protections based on a narrow, formalistic interpretation of the word “law” in section 15 would not only run counter to the interpretations of the section in recent decisions, but more importantly would run afoul of the Charter’s purpose of promoting substantive equality.Plusieurs Premières Nations qui habitant dans des réserves au Canada n’ont pas accès à l’une des ressources les plus importantes pour la vie : de l’eau potable propre et saine. Cet article analyse le droit à l’égalité garanti par la Charte en vue de déterminer si un recours pourrait être fondé sur ce droit. L’analyse démontre que l’expérience des Premières Nations qui habitent dans des réserves sans accès à de l’eau saine est discriminatoire selon l’article 15 de la Charte, et que cette discrimination ne serait pas légitimée par l’article premier. Le plus grand défi posé à une plainte fondée sur l’article 1 réside dans le fait qu’il n’existe pas une seule loi qui exclut catégoriquement de sa protection les communautés des Premières nations vivant dans des réserves. Bien que les tribunaux n’aient pas considéré un cas présentant des faits semblables, cet article soutient que la protection à l’égalité offerte par la Charte s’étend à toutes les actions (et inactions) gouvernementales néanmoins le fait que l’action découle d’une loi, règlement ou politique, ou un cadre de lois qui, dans leurs ensembles, crée de la discrimination. Une interprétation qui limiterait les protections de la Charte en se fondant sur une interprétation rigide et étroite du mot « loi » contenu dans l’article 15 irait non seulement à l’encontre de l’interprétation de l’article 15 dans les décisions récentes, mais, ce qui est plus important encore, serait contraire à l’objectif de la Charte de promouvoir l’égalité substantielle

Taking Flight: Federal Action to Mitigate Canada’s GHG Emissions from Aviation

This is the version of record of an article originally published by the University of Ottawa's Faculty of Law.The 2015 Paris Agreement represents a significant step forward in international cooperation to mitigate greenhouse gas (GHG) emissions. Aviation emissions represent approximately 2 percent of global GHG emissions, a percentage that is predicted to grow rapidly over the next few decades. In spite of their importance, aviation emissions have been essentially left out of the UNFCCC processes, including the recent Paris Agreement. Responsibility for negotiating a plan to mitigate global aviation emissions has been left to the UN International Civil Aviation Organization (ICAO). After years of challenging negotiations, ICAO members recently agreed to establish a global offsetting mechanism. While this is an important step, the program will not begin its voluntary pilot phase until 2021 and its first mandatory phase in 2024. Further, the program only covers international emissions. Given the projected growth in this industry, some jurisdictions are taking steps domestically to mitigate aviation emissions. For instance, the countries of the European Union (EU) included aviation in the EU Emissions Trading Program in 2012, although they offered international flights a hiatus while awaiting the outcome of ICAO negotiations on a market-based mechanism. In the wake of ICAO’s decision to implement an offsetting program, states now need to determine whether and how they will regulate emissions from aviation. This paper examines Canada’s options for mitigating aviation emissions. Under Canada’s division of legislative powers, aviation falls squarely within federal jurisdiction. As such, most provincial climate change policies exclude domestic aviation. We examine the potential for federal action on GHG emissions from domestic aviation as a first step in the broader climate change action program, as well as the possibility of further action on international flights. Since the majority of aviation emissions are a consequence of burning fuel, we first survey the ways in which aviation fuels are currently regulated and then we consider the potential for carbon pricing and other regulations to be applied. We argue that addressing GHG aviation emissions would not only show leadership, but could also ultimately set Canada up to cooperate with the EU in the event it once again includes international flights in the EU ETS. Taking steps to implement a carbon price on international aviation in Canada could ensure that the considerable revenue that would be raised by such a carbon price stays in Canada

Are Climate Change Policies Fair to Vulnerable Communities? The Impact of British Columbia\u27s Carbon Tax and Australia\u27s Carbon Pricing Policy on Indigenous Communities

This paper compares carbon pricing policies in British Columbia and Australia in order to identify differences between carbon taxes and emissions trading schemes (ETS) from a fairness perspective. We examine how taxes and trading systems impact indigenous communities in both jurisdictions. While the regressivity of carbon pricing is a critical part of any fairness assessment, we argue that socioeconomic and cultural factors must also be taken into consideration. We discuss the importance of accompanying carbon pricing with policies that mitigate not only distributional impacts, but also additional impacts. These may be funded by the revenue generated by the policy or byother sources of government revenue. We argue in favour of devoting at least some portion of revenues generated by the instruments to climate change mitigation, versus tax cuts, since vulnerable communities are often disproportionately impacted by climate change. We conclude that carbon pricing policies have the potential to be designed in a way that is fair to indigenous communities. The devil is in the details. Both ETS and carbon taxes have cost implications for disadvantaged groups such as indigenous peoples, but they can both be designed in a way that compensates fairly for these impacts. Ultimately, it is a political choice

Are Climate Change Policies Fair to Vulnerable Communities? The Impact of British Columbia\u27s Carbon Tax and Australia\u27s Carbon Pricing Policy on Indigenous Communities

This paper compares carbon pricing policies in British Columbia and Australia in order to identify differences between carbon taxes and emissions trading schemes (ETS) from a fairness perspective. We examine how taxes and trading systems impact indigenous communities in both jurisdictions. While the regressivity of carbon pricing is a critical part of any fairness assessment, we argue that socioeconomic and cultural factors must also be taken into consideration. We discuss the importance of accompanying carbon pricing with policies that mitigate not only distributional impacts, but also additional impacts. These may be funded by the revenue generated by the policy or byother sources of government revenue. We argue in favour of devoting at least some portion of revenues generated by the instruments to climate change mitigation, versus tax cuts, since vulnerable communities are often disproportionately impacted by climate change. We conclude that carbon pricing policies have the potential to be designed in a way that is fair to indigenous communities. The devil is in the details. Both ETS and carbon taxes have cost implications for disadvantaged groups such as indigenous peoples, but they can both be designed in a way that compensates fairly for these impacts. Ultimately, it is a political choice

Constitutional Cases 2024 (Pt 2) | Environmental Regulation and the Constitution

As recognized by the Supreme Court, environmental protection is one of the most pressing challenges of our times. Nevertheless, the Supreme Court recently declared ultra vires the majority of the most comprehensive federal impact assessment scheme developed to date. Panelists will analyze the Reference re Impact Assessment Act, and the possibility of robust environmental impact assessment policy under the current division of powers jurisprudence. Panelists will discuss the social and reconciliation-based aspects of environmental assessment that formed part of the federal scheme, and the relationship between this Reference and the GGPPA. Panelists: Dayna N. Scott (Osgoode Hall Law School) Deborah Curran (University of Victoria) Anna Johnston (West Coast Environmental Law) Nathalie Chalifour (University of Ottawa) Chair: Emily Kidd White (Osgoode Hall Law School) The 27th iteration of the Constitutional Cases conference was held on Friday, April 12, 2024. Osgoode Hall Law School’s Annual Constitutional Cases Conference, recognized as the leading constitutional law conference in Canada, brings together many highly respected constitutional scholars, lawyers, students, and experts for an insightful and practical analysis of the Supreme Court’s significant constitutional judgments of the past year