32 ELR 11407 | Environmental Law Reporter | copyright © 2002 | All rights reserved

The Precautionary Principle in Canada: The First Decade

Ms. Abouchar received her Bachelor of Science in Earth Science at Waterloo University in Waterloo, Canada; her Bachelor of Common Law and Bachelor of Civil Law at McGill University in Montreal, Canada; and her L.L.M. in Environmental Law at the University of London in London, England. Currently she is a Barrister and Solicitor at Birchall Northey in Toronto. She is also Lecturer in Environmental Law at Ryerson University in Toronto. Substantive portions of this Article were previously published in Implementation of the Precautionary Principle in Canada, in REINTERPRETING THE PRECAUTIONARY PRINCIPLE (Tim O'Riordon et al. eds., 2001). Ms. Abouchar is grateful for the assistance of Tracy Richards in the preparation of this Article.

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In June 2001, the majority of the Supreme Court of Canada cited the precautionary principle¹ as a principle of international law and policy and concluded that municipal power to regulate pesticides is consistent with the principle.² This decision marked a decade of growth for the precautionary principle in Canada.

The precautionary principle states that where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.³ Globally, the earliest explicit reference to the precautionary principle is found in the "Vorsorgenprinzip" of West German legislation of the early 1970s.⁴ The earliest international agreement to use an explicit reference to the precautionary principle is the 1985 Vienna Convention on Ozone Depleting Substances wherein parties agree to take "precautionary measures."⁵ It was first given specifics for implementation in the Ministerial Declaration of the Second International Conference on the Protection of the North Sea issued in London in November 1987.⁶ Canada successfully "advocated inclusion of the precautionary principle" during the Bergen Conference negotiations in 1990.⁷ In the late 1980s and early 1990s, while the principle was being endorsed in international agreements,⁸ seeds of precaution were also being planted in Canadian judicial decisions.

The precautionary principle received fresh impetus in Canada as a result of two events. In 1995, following a year of exhaustive research and consultations, the House of Commons Standing Committee on Environment and Sustainable Development recommended that the precautionary principle be a foundation of the renewed Canadian Environmental Protection Act of 1999 (CEPA/99).⁹ As a result, the precautionary principle is featured in CEPA/99 and informs future decisions made by Canada's environmental agency, Environment Canada, to prevent the release of toxic substances.

The second pivotal event was Canada's decision in March 1995 to arrest and charge a Spanish trawler fishing beyond Canada's exclusive economic zone for illegal fishing under Canadian law. The following month, at negotiations for a United Nations (U.N.) Agreement on "straddling fish stocks," Canada argued for the implementation of the precautionary approach to conserve these stocks.¹⁰ In August 1995, Canada and some 50 states committed to the wide application of the precautionary principle in the U.N. Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks (U.N. Fish Agreement).¹¹ As a result, the Federal Department of Fisheries and Oceans incorporates the precautionary principle into domestic fisheries management policy as discussed below.

In addition, the principle is explicitly used by provincial decisionmakers when issuing environmental permits and developing policy in Alberta, British Columbia, New Brunswick, Nova Scotia, and Ontario.

[32 ELR 11408]

Through this activity, Canada is beginning to grapple with some of the difficult questions related to its implementation. These questions include: when is the "serious or irreversible" threshold triggered? What amount of uncertainty triggers the principle? What type of action results from the application of the principle? What weight is to be given to cost considerations? Is the precautionary principle a shield only or also a sword?

This Article reviews Canada's implementation of the precautionary principle in four areas: (1) environmental protection; (2) environmental assessment; (3) wildlife protection; and (4) trade issues. The use of the principle in statutes and its consideration by courts and tribunals are canvassed for each of the four areas.

Environmental Protection

Seeds of Precaution

While not explicitly mentioning the principle, seeds of precaution can be seen in two early decisions by Canadian courts and tribunals that err on the side of caution when protecting the environment.

In R. v. Crown Zellerbach Canada Ltd.,¹² the Supreme Court of Canada was asked to decide whether the federal government's constitutional jurisdiction over marine pollution empowers it to prohibit dumping in provincial waters of substances that are not shown to have a pollutant effect in extra-provincial waters. The Court was asked to address two areas of uncertainty: (1) the effect of the substance on the environment; and (2) the likelihood that the substance would reach extra-provincial waters. The Court took an approach consistent with the precautionary principle.

On the first uncertainty, the Ocean Dumping Control Act (the statute governing marine pollution at the time) was directed at dumping that need not necessarily have a pollutant effect.¹³ It prohibited the dumping of "any" substance, including substances not specified in the Act except in accordance with a permit. The Supreme Court of Canada held that this broad scope was necessary for pollution prevention. The Court stated:

The chosen, and perhaps only effective, regulatory model makes it necessary, in order to prevent marine pollution, to prohibit the dumping of any substance without a permit. The Act is concerned with the dumping of substances which may be shown or presumed to have an adverse effect on the marine environment.¹⁴

On the second uncertainty, the Supreme Court recognized the uncertainty in ascertaining, by visual observation, the boundary between the territorial sea and marine waters of a state. The Court held that this uncertainty made it necessary for the federal government to regulate activities in provincial waters in order to prevent marine pollution.¹⁵

The Supreme Court of Canada's prudent approach to marine pollution in Crown Zellerbach in the face of uncertainty implies that marine pollution would meet the "serious and irreversible" threshold.

In a case decided by Ontario's Environmental Appeals Board (EAB), Uniroyal Chemical Ltd. v. Ontario,¹⁶ the presence of a potentially carcinogenic chemical at low levels of exposure in drinking water triggered an emergency order against a chemical company. Prior to the discovery of the contaminant, there were no provincial or federal drinking water guidelines setting out limits for the chemical. The Ontario Ministry of Environment adopted the U.S. limit as an interim drinking water standard and issued an emergency order to the chemical company based on that standard. The company argued that the order was unjustified on an environmental or technological basis.

At the time, laboratories were not experienced in analysis at low concentrations, and the EAB had insufficient evidence to draw definitive conclusions regarding the risks of the chemical. The EAB articulated a principle that has the same practical effect as the precautionary principle:

The [EAB] is therefore guided by the principle that the natural environment and the public health must be protected, and the more uncertain the evidence is, the more conservative in drawing conclusions the [EAB] must be in favour of environmental protection and public health.¹⁷

The EAB confirmed the actions of the Ministry of Environment, but used the risk assessment evidence presented at the hearing to issue a new order restricting discharges from the chemical company. The EAB's findings were subsequently upheld by the Ontario Court.

In the face of uncertainty, Uniroyal supports a prudent approach that errs on the side of protecting the environment. It implies that drinking water contaminated with chemicals, which at low levels of exposure are potentially carcinogenic, would meet a "serious or irreversible" threshold. Uniroyal also implies that precaution in decisionmaking is warranted where science cannot provide a method of definitively measuring the risk of harm.

Precautionary Principle Applied by Environmental Tribunals

In the late 1990s, specialized tribunals in Alberta and British Columbia (BC) began to apply the precautionary principle.

In Shuswap Thompson Organic Growers Ass'n (STOPA) v. British Columbia,¹⁸ STOPA appealed permits granted to Canadian National Railway and BC Rail to use pesticides to control weed growth along railway lines. The issue before the BC EAB was whether the permits caused an unreasonable "adverse effect" defined in § 1 of the Weed Control Act as "an effect that results in damage to humans or the environment."¹⁹ The BC EAB applied the precautionary principle as worded in § 15 of the Rio Declaration on Environment and Development.²⁰ It stated that in determining whether an [32 ELR 11409] "adverse effect" existed, it did not require proof of "scientific certainty" and that the onus is on the applicant to show that the application of pesticides will not cause damage. The BC EAB allowed the permits to stand with some amendments, including 10 meter pesticide-free buffers near water bodies.

In Resident Advisory Board v. British Columbia,²¹ the BC EAB considered an appeal of a permit issued to the Canadian Food Inspection Agency (CFIA) to allow aerial spraying of a pesticide to combat European Gypsy moth in four residential communities. Again the BC EAB considered whether the proposed spray application would cause an unreasonable "adverse effect." One appellant argued that the precautionary principle is now part of customary international law, and at the very least, the precautionary principle requires the CFIA to show that it carefully assessed the risks to health and biodiversity and chose the least destructive alternative measure to deal with the risk. The BC EAB accepted the residents' and experts' evidence that the aerial spraying may cause a risk to the health of children and others. The BC EAB found that while aerial spraying was most cost-effective and efficient, the spraying as proposed over heavily populated areas was unreasonable. The BC EAB ordered that the permit be amended to allow localized ground spraying only and to prohibit spraying on school properties or open grassy areas used by children for play.

Resident Advisory Board shows that while the precautionary principle involves the consideration of alternatives, it does not require the most cost-effective measure. An unreasonable risk to health or the environment can outweigh cost considerations.

In Goeres v. British Columbia,²² the BC EAB heard an appeal of a denial of a permit for discharge of treated sewage from a proposed mobile park development. The permit was refused because the appellants did not provide sufficient information on how local domestic water wells could be protected. Applying the precautionary principle, any possibility that the wells could be affected by the discharge was of serious concern. The BC EAB agreed that the effluent could possibly contaminate and negatively affect the quality of water in the underlying aquifers and upheld the refusal to issue a permit.

Another case involving threats to drinking water is Parksville v. British Columbia.²³ The BC EAB heard an appeal of a decision to allow CP Rail to use pesticides along railway lines on Vancouver Island to control vegetation growth. The area to be sprayed contained important aquifers relied on as drinking water by a large segment of the population. The BC EAB found that the existence of these aquifers called for a precautionary approach to the application of pesticides. The BC EAB upheld the permits but required specific conditions including pesticide-free and buffer zones.

Consistent with the Uniroyal case, these BC EAB cases show that any possibility that drinking water could be negatively affected is "serious" enough to trigger the precautionary principle. The exception to this rule, as the following cases show, is when the measure itself will solve a greater environmental or health risk.

The case of Secord v. British Columbia²⁴ also involved a threat to drinking water. The BC EAB was asked to consider a permit to discharge treated effluent into a creek. The permit was intended to address an existing problem of contaminated runoff and lack of storage capacity. In a preliminary hearing for a stay of the permit, the BC EAB held that this case was different from others in which it had applied the precautionary principle. The BC EAB stated:

While the [EAB] has taken [a precautionary approach] in other cases, the case before us differs from those in a significant way. . . . The subject permit is not creating an entirely new source of pollution or contamination where there previously was none (e.g. a permit for a new pulp mill). As there is an existing health and environmental concern, applying a precautionary approach in this case does not automatically lead one to the conclusion that discharge should be prevented in the interim . . . .²⁵

The BC EAB found the risk of release of untreated water from the tailings pond to be more of a threat to the environment and health than allowing the release of treated water in a controlled manner for the short period until the BC EAB held a hearing. The BC EAB did not grant the stay.

The Alberta EAB applied the precautionary principle to a permit that was also designed to address an existing environmental problem. In Ash v. Alberta,²⁶ the Alberta EAB considered an appeal of two "special use" approvals to allow the city of Calgary to use pesticides within 30 meters of an open water body. The pesticide programs were aimed at a non-native species of plant, Purple Loosestrife, which rapidly invades and chokes wetlands in the North American environment, and other plants deemed "noxious" under Alberta's Weed Control Act.²⁷

The Alberta EAB recognized that a precautionary approach to pesticide use is appropriate given the uncertainty about the magnitude of environmental risks posed by the chemicals. The Alberta EAB considered evidence that the alternative—digging up the large areas containing the plant—disrupts other wildlife and causes erosion and siltation which disrupts fish habitat.

The Alberta EAB disagreed with the appellant's position that banning pesticide use altogether within 30 meters of open water was appropriate given the adverse consequences of failing to control non-native plants altogether and the limitations of nonchemical control methods. The Alberta EAB held that the local application of pesticides as a last resort, together with the additional steps the Alberta EAB recommended, was a "reasonably precautionary" approach. The Alberta EAB amended the special use approvals with several conditions requiring the city to:

a) develop criteria for when some control method must be used; and

b) create a prioritized list of possible control methods, and the circumstances in which each method is most appropriate.²⁸

The Alberta EAB made additional general recommendations, including:

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a) pesticide Regulations to be revised to require that applicants investigate alternatives prior to submitting their applications;

b) the Director of the Department of Environment prepare a study of the variety and feasibility of non-chemical control methods for the zones within 30 metres of water bodies; and

c) the Director prepare policies for pesticide use in special areas (including appropriate buffer zones), and for addressing cumulative impacts.²⁹

The Ash decision provides some guidance in the application of the precautionary principle. A consideration of alternatives and cumulative effects is consistent with the precautionary approach. Ash provides a sense of the range of conditions that might be imposed where prohibiting an activity is not appropriate because the activity itself is designed to address an environmental problem.

The Supreme Court of Canada Considers the Principle

In June 2001, the Canadian Supreme Court gave the green light to a bylaw controlling the use of pesticides for cosmetic purposes in the town of Hudson, Quebec. The majority found that the bylaw was consistent with the precautionary principle. For the first time, the Supreme Court of Canada cited the precautionary principle as a principle of international law and policy.

For most of the past decade, Spray-Tech v. Hudson³⁰ had been winding its way to the Supreme Court. Neither of the lower court decisions in the case referred explicitly to the precautionary principle; however, both the trial and appeal decisions used reasoning that is consistent with it.³¹ In upholding the Hudson bylaw, the court of first instance stated:

The Town Council is recognizing a current apprehension in the citizens in respect of health and the environment. Twenty years ago, there was very little concern over the effect of chemicals such as pesticides on the population. Today, we are more conscious of what type of environment we wish to live in, and what quality of life we wish to expose our children.³²

The Supreme Court was more explicit. The majority concluded its discussion on statutory authority by finding that municipalities have the authority to regulate pesticide use and that such an interpretation is consistent with principles of international law and policy. The Court relied on the rule of statutory interpretation that the legislature is presumed to respect the values and principles enshrined in international law. It relied on its previous decision in Baker v. Canada³³ wherein the Court observed that "the values reflected in international human rights law may help inform . . . statutory interpretation and judicial review."³⁴

The Court adopted the definition of the precautionary principle found in Paragraph 7 of the Bergen Declaration on Sustainable Development³⁵:

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation."³⁶

The Court referenced the use of the precautionary principle in the Canada Oceans Act,³⁷ CEPA/99, and Nova Scotia's Endangered Species Act³⁸ and referred to Canada's support of the precautionary principle during the Bergen Conference negotiations, as evidence of the emergence of the principle as customary international law.

The minority treated the case as strictly one of administrative and local government law. It made no reference to principles of international law.

Canadian Environmental Protection Act

In 1988, the Parliament of Canada passed the Canadian Environmental Protection Act (CEPA/88) aimed at protecting human health and ecosystems.³⁹ CEPA/88 introduced several innovative ways of managing toxic substances, including: (1) the power to regulate toxic substances from cradle to grave; (2) a list of substances that should be given priority in assessing whether a substance is toxic or capable of becoming toxic; (3) the power to request any person to provide the Minister of Environment with information or conduct tests that would permit the Minister of Environment and the Minister of Health to assess whether a substance is toxic; and (4) the requirement that a person wishing to import or manufacture a substance new to Canada must provide the Minister of Environment with information to allow an assessment of whether the substance is toxic or capable of becoming toxic. Further, CEPA/88 defined "toxic" to include substances that may be toxic.

Although these innovations begin to incorporate a preventive and precautionary approach (by shifting the burden of generating information), the House of Commons Standing Committee on Environment and Sustainable Development,⁴⁰ following its review of CEPA/88, concluded that the Act required a shift in emphasis from managing pollution toward preventing pollution. The Standing Committee recommended, among other things, precautionary measures in the face of scientific uncertainty and that the onus be placed on the producer to demonstrate that substances are safe.⁴¹

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Prevention and the precautionary approach are also central to the 1995 federal Toxic Substances Management Policy (TSMP), which calls for the virtual elimination from the environment of toxic substances that result predominantly from human activities and are persistent and bioaccumulative, and the management of other substances throughout their life cycle to prevent or minimize their release into the environment.⁴² The TSMP recognizes "the need to apply a precautionary approach in identifying substances and implementing cost-effective measures to prevent environmental degradation."⁴³ The TSMP, however, does not define "precautionary approach."

Consistent with these trends, pollution prevention is the theme of the renewed CEPA/99, which passed in June 1999 and replaced CEPA/88. CEPA/99 gives the Minister of Environment and Minister of Health seven years to categorize all substances in Canadian commerce for their inherent toxicity.⁴⁴ CEPA/99 then requires the Ministers to screen the substances in order to determine whether they are toxic or capable of becoming toxic and to propose measures for eliminating the most persistent toxic substances from commerce and use.⁴⁵ CEPA/99 also provides a mechanism by which the Ministers consider whether or not to apply another jurisdiction's prohibition of a substance to Canada.⁴⁶ CEPA/99 maintains and expands the shift of the burden of persuasion to the manufacturer or importer of a substance.⁴⁷ CEPA/99 also introduces pollution prevention plans, which may be required of persons involved in the manufacture or import of toxic substances.⁴⁸

CEPA/99 specifically incorporates the precautionary principle and describes the principle as follows: where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.⁴⁹

CEPA/99 provides four references to the precautionary principle: (1) Preamble; (2) administrative duties⁵⁰; (3) National Advisory Committee⁵¹; and (4) substance assessments.⁵² The context and rationale for these four references is examined below.

Preamble

The definition of the precautionary principle in the CEPA/99 Preamble is the same as that found in the 1992 Rio Declaration on Environment and Development. As with the Rio Declaration itself, the English and French definitions of the principle in CEPA are different. While the French version refers to "effective" measures, the English version refers to "cost-effective" measures.

By including the principle in the Preamble, the federal government has made the precautionary principle an aid to interpreting various statutory provisions. Further, recent Supreme Court of Canada jurisprudence on the application of international conventions to domestic situations suggests that the Preamble gains additional interpretive weight because it incorporates the Rio Declaration language.⁵³ However, since the majority of international conventions do not refer to cost-effectiveness,⁵⁴ Canadian courts might also apply alternative definitions of the precautionary principle found in applicable international conventions, depending on the circumstances.

Administrative Duties

Section 2 of CEPA/99 makes it a duty of the Canadian government to apply the precautionary principle when it administers the Act. The terms describing the precautionary principle in this section are the same as those set out in the Preamble. The application of this duty to the government of Canada suggests that this duty applies to all federal decisionmakers, including the federal Cabinet, when it makes decisions and regulations under CEPA/99.

National Advisory Committee (NAC)

The NAC has a major role in CEPA/99. It is to be consulted on virtually all CEPA/99 matters, including regulations and intergovernmental arrangements. By statute, NAC members must include representatives from the provinces and aboriginal governments.

CEPA § 6 requires that the NAC apply the precautionary principle when giving advice and making recommendations to the Minister of Environment. Since NAC members are not part of the government of Canada and therefore fall outside [32 ELR 11412] the scope of the § 2 duties, this section complements § 2 by applying a similar duty on "nonfederal" persons or bodies who advise the Minister of Environment. In this way, both the Minister of Environment and the NAC are subject to the same duty to apply the precautionary principle.

Substance Assessments

Section 76.1 of CEPA/99 deals with three circumstances, namely conducting and interpreting: (1) a screening assessment; (2) a review of whether to apply another jurisdiction's decision to prohibit a substance to Canada; and (3) an assessment whether a substance is toxic or capable of becoming toxic. This section requires that the precautionary principle and a weight of evidence approach be applied in each of these circumstances. This is the sole mention in CEPA/99 of the "weight of evidence" approach, but no definition is provided.

The weight of evidence approach as recommended in the Environment Canada Guidance Manual means that where scientific studies conflict, greater weight is given to lines of evidence that are most relevant to exposure in Canada; toxicity tests that closely mimic field conditions; data of high quality and estimation techniques that adhere to protocols, appropriate experimental designs, and associated estimates of statistical power; and lines of evidence that provide likely effects.⁵⁵

However, another expression of the weight of evidence approach was described to the Standing Committee by the co-chair of the International Joint Commission (IJC) as follows:

This approach . . . means taking into account a variety of studies across a range of circumstances and, then, if there is a strong tendency or probability of linkages between the substance(s) and injury, taking action to stop the in-put of those substances to the environment without waiting for absolute proof that a specific chemical has caused injury to humans. It can be contrasted to, but also can subsume, the more demanding "cause-effect" model which requires a rigorous proof of the specific cause or source of a pollution which is leading to a specific injury by a specific chemical, an approach that in the case of human health, may mean that human illness must necessarily precede action.⁵⁶

The weight of evidence approach as understood by the IJC complements the precautionary principle because it provides a threshold for action: it prescribes action when there is a "strong tendency" of cause and effect. By contrast, the weight of evidence approach as described in the Environment Canada Guidance Manual simply guides scientists in giving weight to differing lines of evidence.

Provincial Environmental Protection Laws Incorporate the Principle

In Canada, both the provincial and federal levels of government have the authority to pass legislation to protect the environment. While CEPA/99 is the primary piece of legislation to regulate toxins, the provinces regulate air and water emissions through licences that incorporate federal and provincial standards. The provinces of Nova Scotia and New Brunswick have the precautionary principle in their environmental protection legislation. In addition, Ontario's Ministry of the Environment provides the precautionary principle in its Statement of Environmental Values.

Nova Scotia

The Nova Scotia Environment Act provides for the protection, enhancement, and prudent use of the environment in Nova Scotia.⁵⁷ The Act includes the precautionary principle as a purpose and goal of the Act, which are described, in part, as follows:

The purpose of this Act is to support and promote the protection, enhancement and prudent use of the environment while recognizing the following goals . . . (b) maintaining the principles of sustainable development, including:

. . . (ii) the precautionary principle will be used in decision-making so that where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation . . . .⁵⁸

The precautionary principle in the Nova Scotia Environment Act is similar to the CEPA/99 principle, except that it refers simply to "measures," not "cost-effective" or "effective" measures. It is to be used in decisionmaking and is triggered where there are threats of serious or irreversible harm and a lack of full scientific certainty. Since the Act binds the province, agents, administrators, servants, and government employees, it appears that a purpose of the Act is to apply the principle to decisionmaking of each of these bodies and individuals. However, it is unclear how this principle would be implemented by all of these parties.

The Environment Act makes it an administrative duty of the Nova Scotia Minister of Environment to promote sustainable development.⁵⁹ This duty is owed only by the Minister of Environment, not the provincial cabinet. The duty includes the precautionary principle, as the Act provides that it is a principle of sustainable development. Whereas the duty in CEPA/99 is to apply the precautionary principle, the duty in Nova Scotia is to promote it. The principle appears to be both a sword and a shield in Nova Scotia.

The Act thus places sustainable development and its principles, as articulated in the Act, above the other goals of the Act. Elsewhere, the Act adds an additional requirement to consider the entire purpose of the Act. For example, § 52(1) of the Act provides that the Minister, having regard to the purpose of the Act, may decide not to approve a proposed activity. Legally this requirement adds to the administrative duty regarding sustainable development the requirement to consider the purpose, including all the goals of the Act.

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New Brunswick

The New Brunswick Clean Air Act provides for the protection, restoration, enhancement, and wise use of the environment in New Brunswick.⁶⁰ Currently it only addresses releases of contaminants into the air. The Act includes the precautionary principle, without calling it such, in its purpose:

The purpose of this Act and the regulations is to support and promote the protection, restoration, enhancement and wise use of the environment in keeping with the following principles:

scientific information should be a fundamental part of the decision-making in the administration of this Act and the regulations, but lack of full scientific certainty should not delay or deter the implementation of measures to prevent the release of contaminants or the spread of contamination where there are threats of serious or irreversible damage to the environment.⁶¹

The principle in New Brunswick is also triggered by the threat of serious or irreversible harm and a lack of full scientific certainty. It differs from the CEPA/99 formulation of the precautionary principle in several ways: (1) it refers simply to measures, not "cost-effective" or "effective" measures; (2) it specifies that the measures are to prevent the release of contaminants or the spread of contaminants rather than environmental degradation; and (3) it uses the words "delay or deter" rather than "postpone."

The Act contains a general duty that the government of New Brunswick "should" consider the principles set out (including the precautionary principle) in the development and implementation of all of its regulations, policies, programs, and practices.⁶² In addition, the Act requires the Minister of Environment to consider the precautionary principle when considering the issuance, amendment, transfer, suspension, cancellation, renewal, or reinstatement of a registration, permit, or approval⁶³; and making, amending, or revoking an order to: control, reduce, eliminate, or alter the release of any contaminant into the air; install, replace, or alter equipment; conduct an investigation; or clean up land or property.⁶⁴

Ontario

The Ontario Ministry of Environment commits itself to the precautionary principle in its Environmental Bill of Rights' Statement of Environmental Values (SEV) as follows:

The Ministry will exercise a precautionary approach in its decision-making. Especially when there is uncertainty about a risk presented by particular pollutants or classes of pollutants, the Ministry will exercise caution in favour of the environment.⁶⁵

The Ontario Environmental Bill of Rights⁶⁶ requires the Minister of Environment to take every "reasonable step" to ensure that the Ministy of Environment's SEV is considered whenever decisions that "might significantly affect" the environment are made by the Ministry of Environment.⁶⁷

The precautionary principle as formulated in the SEV is triggered at a lower threshold than the principle in CEPA/99. It assumes that precaution will be exercised in all of the Ministry of Environment's decisionmaking, but especially when there is uncertainty. The principle does not require serious harm to be triggered. The principle, however, is a sword as well as a shield because it requires the Ministry of Environment to exercise caution in favor of the environment.

Environmental Assessment

Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act provides a federal environmental assessment process.⁶⁸ The Act contains no explicit reference to the precautionary principle. Nonetheless it incorporates precaution through a duty on decisionmakers to proceed with caution where there is uncertainty.

Sections 20 and 23 of the Act require the decisionmaker to refer a project to a mediator or review panel if the screening or comprehensive study report shows that it is uncertain whether the project, taking into account mitigation, is likely to cause significant adverse environmental effects. The review panel can recommend that the project not proceed or that it proceed with conditions. The panel review includes participant funding to enable members of the public to seek independent expert opinion and make submissions to the panel.

Review Panel Application of the Precautionary Principle

Two review panels have applied the precautionary principle to their deliberations: the Sable Gas Projects Review and the Voisey's Bay Mine and Mill Project Review.

Sable Gas Project Review

The Sable Gas Project concerned the drilling for natural gas off the coast of Nova Scotia for delivery through a buried pipeline to markets in the Canadian Maritime provinces and New England states. Following a comprehensive study, the project was referred to a panel for a public review. Although the review panel's terms of reference did not include the precautionary principle, it was argued by some interveners in support of their request for a "zero-discharge" condition on drill cutting discharges and waste-water. Other interveners and the Department of Fisheries and Oceans recommended that the proponents should design and implement a monitoring program to investigate the fate and sublethal effects of produced water on fish habitat. The proponents did not intend to monitor possible effects of produced water discharges.⁶⁹

The panel report defined the precautionary principle as set out in the Rio Declaration and noted that the principle [32 ELR 11414] was included in various international instruments, the Nova Scotia Environment Act, the federal Oceans Act, and at the time was recommended for inclusion in the renewed CEPA/99.

The review panel summarized the arguments regarding uncertainty of the effects of wastewater discharge and recommended that the proponents develop a monitoring program as proposed by the Department of Fisheries and Oceans and some interveners. Another recommendation was that the proponents consider and implement new waste treatment during the lifetime of the project that is proven to be environmentally and technically superior to the initial technology.⁷⁰

The Sable Gas Review shows that the precautionary principle can apply to environmental assessment hearings, whether or not it is included in a panel's terms of reference, and that the potential for chronic impacts after long-term exposure is "serious or irreversible." The Sable Gas Review also provides some guidance about the type of preventive measures that result from the precautionary principle. The review panel chose to require an environmental effects monitoring program and improved waste treatment rather than zero-discharge.

Voisey's Bay Project Review

The Voisey's Bay Mine and Mill project involved the development of a nickel mine and mill in Labrador, Newfoundland. The Voisey's Bay memorandum of understanding provided a list of factors that were to be considered in the panel review. These factors included the "extent of application of the precautionary principle to the Undertaking."⁷¹

The Voisey's Bay Panel Report adopted the Rio Declaration definition of the precautionary principle. The panel used the following factors to determine whether the project could lead to serious or irreversible damage:

(a) the degree of novelty of the interaction in similar environments;

(b) the degree of uncertainty about potential effects;

(c) the magnitude and duration of potential effects and the extent to which they might be irreversible;

(d) the extent and scale at which potential effects could impair productivity and ecosystem health.⁷²

The panel stated that it considered that the precautionary principle requires a proponent to demonstrate that its actions will not result in serious or irreversible harm. Specifically, the panel asked the proponent to show that it had:

(a) designed the Project to avoid adverse effects wherever possible;

(b) developed mitigation measures, or contingency or emergency response plans, of proven effectiveness;

(c) designed monitoring programs to ensure rapid response and correction when adverse effects are detected (or would design these in cooperation with others, where appropriate); and

(d) developed adequate systems to remediate any residual accidental or unplanned adverse effects of the Project and demonstrated sufficient financial resources to compensate for such effects.⁷³

The panel asked the proponent to take a conservative approach to its predictions by, for example, using worst-case scenarios where appropriate. Where there was great uncertainty about the seriousness or irreversibility of a component of the project, the panel also asked the proponent to provide a viable alternative to that component.

In its conclusions, however, the panel appeared to reverse its requirement on the proponent to demonstrate that its actions will not result in serious or irreversible harm: the panel concluded that it was not presented with plausible hypotheses that the project would cause serious or irreversible damage.

Judicial Consideration of the Precautionary Principle in Environmental Assessment

The case of Ontario Ltd. v. Metropolitan Toronto & Region Conservation Authority⁷⁴ dealt with an appeal of a Mining and Lands Commissioner (the Commissioner) order that denied permission for a company to dump fill near a creek. The Commissioner had authority to deny such permission if "in the opinion of [the Commissioner] the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of the fill." In denying the appeal, the Commissioner stated:

No model was presented at the hearing to indicate a threshold for intrusion into the watershed beyond which development should not be allowed. In the absence of such a model, the tribunal finds that it is appropriate to apply a precautionary principle to development involving first order and intermittent streams within the headwaters of a watercourse, so that, in the absence of calculation of a threshold or demonstration of no net impact, development within such land should not proceed. This precautionary principle is applied in recognition of the integral role of water in environmental and human health.⁷⁵

The company argued that the Commissioner erred because she imposed an onus on the company to irrefutably prove that the downstream watershed will not be significantly altered. The court rejected this argument and stated that the Commissioner reasonably inferred from the evidence placed before her that the river system would be degraded by the placing of fill in any of its streams, and as a result the evidential burden shifted to the company to counter this proposition, which it did not do.

In Thompson v. Ontario,⁷⁶ local property owners sought leave to appeal an amendment to an approval issued to the Ridge Landfill Corporation that allowed the landfill to receive industrial, commercial, and institutional waste from all across Ontario. Under the amendment, the corporation would not have to submit the expansion of capacity to the environmental assessment process. The Ontario EAB found that neither the corporation nor the Ministry of Environment addressed the potential environmental impacts of the proposed amendment. It applied the precautionary principle [32 ELR 11415] and opined, "if there could be significant harm resulting from the decision then give the benefit of the doubt to the environment and allow another look through an appeal."⁷⁷ The Ontario EAB allowed the residents leave to appeal the land-fill approval.

In In re Notre Development Corp.,⁷⁸ a corporation applied to use part of a decommissioned mine as a landfill for solid wastes. The Ontario EAB was required to determine whether the proposed "hydraulic containment" design of the landfill was an effective solution for containment and collection of the leachate generated by the operation of the landfill. The majority of the EAB stated:

The [EAB], in the case of groundwater levels in the deep borehole beneath the South Pit, felt constrained to apply the precautionary principle. The doubt arising from the alignment of opposing views leads the [EAB] to a prudent conclusion . . . .⁷⁹

The majority considered the precautionary principle to have been applied by approving the landfill with a number of conditions. However, the dissenting member applied the precautionary principle and opposed the project. The dissenting judge concluded:$=S(NEWLINE)

When I weigh the totality of the evidence presented on all the above concerns . . . I come to the conclusion that enough concerns have been raised that a proper exercise of the precautionary principle would lead us to say no to this project.⁸⁰

Notre Development Corp. underlines a challenge in implementing the precautionary principle. The principle itself does not determine the specific action that should result from its application. The measures dictated by the principle in the environmental assessment context may be stricter conditions or a denial of the approval. In Notre Development Corp., only the minority would have denied the approval. However, in another case, a unanimous Ontario EAB held that it "might refuse to approve an undertaking as a result of significant doubt or uncertainty."⁸¹

Wildlife Protection and Management

Canada is beginning to implement the precautionary principle in the conservation of marine living resources and protection of endangered species.

Fisheries Management Law and Policy

The federal Department of Fisheries and Oceans started to implement the precautionary principle after Canada committed to in the U.N. Fish Agreement.⁸² Article 6 of the U.N. Fish Agreement requires states to apply the precautionary principle "widely." It provides in part: "the absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures."⁸³ The U.N. Fish Agreement includes Guidelines for the Application of the Precautionary Reference Points in Annex II of the agreement.

The federal Oceans Act provides for the management of marine resources over which Canada has jurisdiction in international law.⁸⁴ The preamble of the Act states that:

Whereas Canada promotes the wide application of the precautionary approach to the conservation, management and exploitation of marine resources in order to protect these resources and preserve the marine environment.⁸⁵

Section 29 of the Act directs the Minister of Fisheries and Oceans to "lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal, and marine ecosystems in waters" within Canada's jurisdiction. Section 30 requires that the national strategy be based articulated principles, including "the precautionary principle, that is, erring on the side of caution." The Oceans Act does not define the precautionary principle, other than "erring on the side of caution."

The federal Coastal Fisheries Protection Act implements the U.N. Fish Agreement.⁸⁶ It empowers the cabinet to make regulations for the implementation of the U.N. Fish Agreement. Thus, the Coastal Fisheries Protection Act implicitly incorporates the precautionary principle through its regulatory making power to implement the agreement.

The precautionary principle incorporated in the Coastal Fisheries Protection Act differs from the principle in CEPA/99. It is triggered by the absence of "adequate scientific information" rather than "full scientific information," and is to be applied "widely," not just where there are threats of serious or irreversible damage. There is no reference to effective or cost-effective measures, simply to "conservation and management measures."

Each fishery is expected to have unique criteria for determining what is a precautionary approach. The first policy to specifically implement the precautionary principle is the draft New (Emerging) Fisheries Policy.⁸⁷ The policy states as a guiding principle that "conservation will not be compromised—a precautionary approach will guide decision making."⁸⁸

Endangered Species Protection

The federal Parliament recently introduced endangered species legislation that has undergone extensive hearings before the Standing Committee on Environment and Sustainable Development and was reported to the House as Bill C-5, An Act Respecting the Protection of Wildlife Species at Risk in Canada (referred to as the Species at Risk Act or SARA).⁸⁹ Its preamble states:

Recognizing that . . . the Government of Canada is committed to . . . the principle that, if there are threats of serious or irreversible damage to wildlife species, cost-effective [32 ELR 11416] measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty.⁹⁰

Despite the preambular paragraph, SARA does not represent development of the principle. It lacks the administrative duty of CEPA/99. The proposed Act does not require that the precautionary principle be applied to decisions to list species as endangered. However, once listed, it requires that a Minister "consider" the precautionary principle when s/he prepares a recovery action or management plan for an endangered species.⁹¹ The binding nature of the recovery plans is discretionary.

The Committee on the Status of Endangered Wildlife in Canada, an advisory scientific body, is required to carry out its functions under the proposed Act "on the basis of the best available information on the biological status of the species at risk, including scientific knowledge, community knowledge and aboriginal traditional knowledge."⁹²

Endangered species legislation in Nova Scotia better incorporates the principle. The Endangered Species Act of Nova Scotia provides for the protection of species at risk withinthe province of Nova Scotia.⁹³ Section 2(h) recognizes that

the precautionary principle that a lack of full scientific certainty must not be used as a reason for postponing measures to avoid or minimize the threat of a species at risk in the Province.⁹⁴

The precautionary principle as incorporated into Nova Scotia endangered species legislation is triggered at a lower threshold than the proposed SARA. In Nova Scotia, "the threat of a species at risk" rather than a threat of serious or irreversible damage triggers the precautionary principle. In addition, where there is a threat to the survival of a species, the species may be listed as endangered or threatened on a "precautionary basis" regardless of whether scientific information is available.⁹⁵ Where a species is listed on a precautionary basis, the Minister of Environment may also make any order that is necessary to control, restrict, or prohibit activities that may adversely affect the core habitat of the endangered or threatened species.⁹⁶

Judicial Application of the Precautionary Principle to Wildlife Protection

The precautionary principle has been applied—and survived challenge—in at least one case involving wildlife management in Canada. Two appeals of decisions by the BC Regional Wildlife Manager regarding grizzly bear quotas for the 1998-1999 season were heard by the BC EAB.⁹⁷ The BC EAB was asked whether the Regional Manager acted arbitrarily in coming to his decision regarding grizzly bear quotas for two appellants. The Regional Manager considered the precautionary principle to be warranted in the absence of detailed inventory data. He did not have a detailed scientific inventory of grizzly bears. Rather, he arrived at the initial numbers using a model to estimate grizzly bear populations. The model uses habitat classification of the province combined with estimated grizzly bear densities and is constantly refined by radio-collaring and deoxyribonucleic acid (DNA) sampling. He then "tweaked" the numbers coming out of the model by looking at other factors such as changes to habitat and the distribution of kill to arrive at a quota. The BC EAB found his approach to be appropriate, given the vulnerability of the grizzly bear population.

Trade Issues

MMT

In 1997, the government of Canada passed the Manganese-based Fuel Additives Act (MFAA), which banned the import and interprovincial trade of methylcyclopentadienyl manganese tricarbonyl (MMT).⁹⁸ The ban responded to growing concerns about the environmental and long-term health effects of MMT. A number of car manufacturers complained that this gasoline additive interfered with on-board diagnostic (OBD) systems, thereby increasing exhaust emissions and potential health risks.

In addition, a number of health studies released in the early 1990s indicated potential health effects in workers exposed to airborne manganese. Notwithstanding this, a 1994 study carried out by Health Canada showed there to be no evidence that MMT posed a health risk. Because of the uncertainty of the health effects, the Canadian government believed that it could not regulate MMT directly under CEPA/88. Instead it regulated the trade in MMT through the MFAA.

The Minister of Environment gave the precautionary principle as a rationale for introducing the federal legislation to Parliament.

But for me, as Minister of the Environment, the driving force behind this bill is that a fuel additive with the potential to hinder the proper operation of pollution control systems will have indirect negative effects on the health of Canadians. We cannot take chances with people's health. We cannot take chances with the air we breath. This is the precautionary principle that I and our government stand by strongly . . . .⁹⁹

The bill was contentious in Canada as it pitted two of the largest industrial sectors against each other: the automobile industry against the petroleum industry and Ethyl Corporation, the American company that exported MMT gasoline to Canada. While the automobile industry provided expert opinions that the MMT additive could have a negative impact on human health, the petroleum industry and Ethyl Corporation provided reports to the contrary.

The industries' arguments were well-aired during the Standing Committee's consideration of the bill. Tony Clark, Assistant Deputy Minister, Environment Protection Services of Environment Canada, testified to the Senate Standing [32 ELR 11417] Committee on Energy, the Environment and Natural Resources that the precautionary principle justified the bill:

Mr. Clark: Bill C-29 is in line with the national approach to improve fuel quality and to limit harmful emissions from vehicles . . . .

The Government decided to be prudent and to err on the side of caution, the environment and human health. This is an excellent example of the precautionary principle that this government signed onto at Rio, with Agenda 21, back in 1992.

I have worked in the environmental field for 30 years and my work has been simply one of reaction. We wait for problems to occur and then we fix them. We give lip service to the precautionary principle, but we never pay any attention to it.

These are two giants in Canada who are unable to resolve this matter voluntarily. Recognizing that vehicles are coming into the marketplace; that any further studies in this area would take probably several years more to complete; and that there is no solution in the near future, the government chose to act on the basis of available information.¹⁰⁰

When asked by the committee what to believe in the face of conflicting studies, Mr. Clark replied in support of the precautionary principle:

Mr. Clark: What is the truth? As far as the government is concerned, the truth is that MMT can gum up the OBD systems. That can cause more air pollution, which is bad for the health of Canadians. It will disrupt the marketplace in terms of the consumer. Using the precautionary principle in terms of erring on the side of human health and the environment, MMT should be banned.

Senator Kenny: Upon what do you base this truth?

Mr. Clark: The truth is based on the precautionary principle that it can be bad for human health and the environment. . . . That is why we come back to the precautionary principle. The EPA in the United States lost its court battle on a technicality. The EPA is very concerned about MMT. On their behalf, Ethyl is running a battery of tests on health and the automobile people are running a battery of tests on the OBD systems. They continue to say that they do not want to use the American people as guinea pigs for MMT and gasoline. Some of these things must be taken into consideration in the precautionary principle.¹⁰¹

After the Act was passed, Ethyl Corporation filed a $ 251 million (U.S.) claim against the Canadian government under Chapter 11 of the North American Free Trade Agreement (NAFTA), alleging that the Canadian prohibition was discriminatory and tantamount to expropriation.¹⁰² Despite its reliance on the precautionary principle to justify the Act domestically, Canada did not rely on the precautionary principle in its Statement of Defence.¹⁰³ Negotiations between Ethyl and the Canadian government resulted in the matter being settled.¹⁰⁴ Canada agreed to withdraw the ban and to pay Ethyl US$ 13 million (U.S.) in lost profits and legal fees.

Although the MFAA was passed on the basis of the precautionary principle, the settlement suggests that Canada did not consider that it would stand up to a NAFTA challenge. Since CEPA/99 includes the precautionary principle, future regulation of a suspected toxic substance could occur under environmental laws rather than requiring a separate Act regulating import.

Canada Versus European Community Concerning Meat and Meat Products (Hormones)

The precautionary principle was a central argument in the World Trade Organization (WTO) complaint by Canada against the European Community (EC).¹⁰⁵ Canada claimed that the EC had acted inconsistently with the Sanitary and Phytosanitary Measures Agreement (SPS Agreement)¹⁰⁶ when it enacted directives that prohibited the import of animals and meat from animals to which certain hormones had been administered. The SPS Agreement provides that the relevant international standards, guidelines, and recommendations relevant for food safety are those established by the Codex Alimentarius Commission.

Canada claimed, in part, that the EC measures were not based on an appropriate risk assessment and failed to take into account international standards.¹⁰⁷ The EC claimed that the measures were based on scientific principles as required by the SPS Agreement, and a risk assessment had been performed that established the scientific basis for regulatory action. The EC noted that the SPS Agreement did not require absolute scientific evidence, but that sanitary and phytosanitary measures be based on "scientific principles" and "sufficient" scientific evidence.¹⁰⁸ The EC further claimed that its measures were based on the precautionary principle.¹⁰⁹ The WTO Dispute Panel concluded that by adopting measures not based on risk assessment and not based on international standards, the EC had acted inconsistently with the SPS Agreement. The Dispute Panel further concluded that the precautionary principle would not override the explicit language of the SPS Agreement.

The EC appealed the decision to the WTO Appellate Body where the status of the precautionary principle in international law was discussed.¹¹⁰ The EC argued that the precautionary principle was already a general customary rule of international law or at least a general principle of law that applies to the assessment and management of risk. [32 ELR 11418] Therefore, the EC argued, the Dispute Panel had erred in law in stating that the application of the precautionary principle would not override the SPS Agreement.

The Dispute Panel summarized Canada's view to be that

the precautionary principle had not yet been incorporated into the corpus of international law; however, [Canada] concedes that the precautionary approach or concept is an emerging principle of law which may in the future crystallize into one of the general principles of law recognized by civilized [nations] . . . .¹¹¹

The Appellate Body decided that the EC measures were contrary to trade disciplines; however, it was of the view that it did not have to decide whether the precautionary principle was a principle of international law. Significantly, it held that the precautionary principle is incorporated explicitly in other provisions of the SPS Agreement of the WTO parties.

Canada was of the view in 1997 that the precautionary principle was not yet customary international law. Although the federal government has since begun to implement the precautionary principle in CEPA/99, the Oceans Act, and the proposed SARA, it still does not yet consider the principleto be customary international law.¹¹²

Freshwater

A growing concern in Canada has been the pressure to export bulk quantities of water, and the concern that if bulk water export began, trade rules would make it difficult to "turn off the tap." This concern led to the proposed Accord for the Prohibition of Bulk Water Removal From Drainage Basins.¹¹³

The Bulk Water Accord provides a Canada-wide approach to the protection of Canadian waters by prohibiting bulk removal of surface and groundwater from Canadian portions of major drainage basins. Provinces agree to prohibit the bulk removal of water from Canadian drainage basins and are enacting their own legislation in response to the export of bulk water. The Bulk Water Accord recognizes that "sound science, the precautionary principle and an integrated response across disciplines and jurisdictions, regionally, nationally and internationally must be the basis for water resource management policies and strategies."¹¹⁴

Meanwhile, BC has developed a Freshwater Strategy that also includes the precautionary principle.¹¹⁵ The Freshwater Strategy notes that one of the pressures on the province's freshwater resources is the increasing pressure, nationally and internationally, to export its water. The Freshwater Strategy provides that the precautionary principle is one of the overarching principles used to guide all freshwater activities and initiatives. The principle is defined in the Freshwater Strategy as follows: "The precautionary principle holds that where there is a possibility that a practice may cause serious or irreversible damage to the environment the practice should be modified or curtailed."¹¹⁶

The precautionary principle is triggered at a low threshold for activities involving freshwater in British Columbia. It requires merely the "possibility" of "serious or irreversible damage." The threshold of uncertainty is a "possibility." This principle can be used as a sword—the result of its application is a positive duty to modify or curtail an activity rather than to simply neutralize scientific uncertainty as a reason for inaction.

Applying the Precautionary Principle Today

Implementation of the precautionary principle requires a new optic on environmental matters. However, since the late 1980s, beginnings of the principle were present in Canada, where courts supported erring on the side of caution in favor of the environment and CEPA/88 placed the onus on users and importers of toxic substances to generate toxicity tests that prove that the substances are safe.

Since the late 1980s, the precautionary principle has been given legal recognition in at least eight different pieces of legislation across Canada and has been endorsed by the Supreme Court of Canada. The formulation of the principle in Canada varies. Principle 15 of the Rio Declaration is referenced in CEPA/99 and three other administrative tribunal decisions.¹¹⁷ The U.N. Fish Agreement formulation of the precautionary principle is the basis for decisionmaking by the Department of Fisheries and Oceans. Other jurisdictions and tribunals have incorporated variations of the Rio principle. The Supreme Court referenced the Bergen Declaration definition of the principle.

Environmental protection legislation requires either that the principle be applied in decisionmaking or promoted by Ministries. Through this activity, Canada is beginning to address the challenges of implementation.

The current site of activity to implement the precautionary principle is in the assessment of toxic substances under CEPA/99. Key implementation issues will include trigger issues such as: when is the "serious or irreversible" threshold triggered? What amount of uncertainty triggers the principle? Implementation also raises results issues such as: what type of action results from the application of the principle? What weight is to be given to cost considerations? And is the precautionary principle a shield only or also a sword?

Trigger Issues

In the recent report of the Walkerton Inquiry, Justice Dennis R. O'Connor applied the precautionary principle to drinking water contamination.¹¹⁸ He recommended that "although this prudent approach must still take into account costs, [32 ELR 11419] when the potential consequences of the hazard in question are large, the precautionary principle has a role to play in practical risk management and should be an integral part of decisions affecting the safety of drinking water."¹¹⁹

This recommendation reflects the Canadian approach that the precautionary principle is triggered by serious potential consequences. Although some Canadian legislation cited within this Article applies a lower trigger,¹²⁰ CEPA/99 provides that the threshold for triggering the principle is a threat of serious or irreversible harm.

The CEPA/99 threshold for "serious" includes potential immediate or long-term harmful effect on the environment or its biologicaldiversity, potential danger to the environment on which life depends, or potential danger to Canada to human life or health.¹²¹ In addition, the categorization of a substance as inherently toxic implies that there is at least a threat of serious damage.

The jurisprudence reviewed above suggests that harm serious enough to trigger the principle includes:

a) threats to drinking water¹²²;

b) drinking water contaminated with potential carcinogens at low levels of exposure¹²³;

c) threats to vulnerable species¹²⁴;

d) substances which may be toxic or capable of becoming toxic¹²⁵;

e) activities which may have long-term effects on the environment¹²⁶;

f) marine pollution¹²⁷; and

g) pesticide application near populated areas and water bodies.¹²⁸

Guidance for interpreting "serious or irreversible" may also come from international conventions, which provide more specific thresholds depending on the circumstances.¹²⁹ Where a convention applies to the particular substance or activity, Canadian courts, following Baker, would use the international standard to aid the interpretation of "serious or irreversible."

A second trigger issue is the meaning of "full scientific certainty." The jurisprudence reviewed above suggests that the onus is on the proponent to provide certainty.¹³⁰ However, the meaning of full scientific certainty may be the most complex issue raised in the implementation of the principle. Does "full" imply that the truth is known? Or does "full" mean that scientists have reached consensus? How is the term to be applied to different scientific disciplines in which varying standards of certainty trigger a response? Does it apply to factual uncertainty as well as uncertainty in scientific method? The CEPA/99 power to regulate regarding the laboratory practices for analyzing, testing, or measuring properties or characteristics of a substance could be used to provide discipline specific guidance on scientific uncertainty and the precautionary principle.¹³¹

The issue of scientific uncertainty is further complicated by the CEPA/99 requirement in certain cases to apply the precautionary principle with the "weight of evidence approach." While undefined, one can assume that weight of evidence means 51%. Circumstances may arise when 51% of studies support a conclusion that would result in a substance not being prohibited. However, 51% does not represent full scientific certainty, thus, the precautionary principle would apply and may support a conclusion that the substance should be prohibited.

Results Issues

The jurisprudence reviewed above shows that the precautionary principle may result in a variety of actions, including requiring the proponent to: take additional steps to protect the environment¹³²; assess alternatives¹³³; prove no harm¹³⁴; monitor the activity¹³⁵; assess cumulative effects assessment¹³⁶; or prohibit the activity.¹³⁷

[32 ELR 11420]

The role of cost considerations in determining results varies within Canada. The Nova Scotia and New Brunswick formulations of the principle do not require a considerations of cost. Even where cost is considered, Resident Advisory Board directs that unreasonable risk to health or the environment can outweigh cost considerations. Within the federal government, cost is not an explicit consideration in marine conservation, but is in the proposed endangered species legislation. This matter is complicated by the differences between the French and English translations of CEPA/99. Since the French translation of CEPA/99 requires that measures be effective, and the English requires that measures be cost-effective, must the measure be both "effective" and provide for the least cost? Is a measure effective if it prevents new degradation but not past degradation that already burdens the environment? Must the measure be cost-effective to all parties—the public, the proponent, as well as government? In this regard, what is the relevance of the adoption of the "polluter-pays" principle in the preamble of CEPA/99? How are benefits to be weighed? Is a consideration of all alternatives triggered by the cost-effective requirement?

A final matter is whether the precautionary principle is a sword or shield: does it advocate action or simply negate uncertainty as a grounds for inaction? It may be that the principle is offensive or defensive depending on whether the action being contemplated is discretionary or mandatory. Where an action is discretionary, the principle neutralizes uncertainty by providing that ". . . uncertainty shall not be used as a reason for postponing" the action. However, the principle as formulated in CEPA/99 does not itself advocate action.

The situation is different where the measure to prevent environmental degradation is a mandatory duty, and uncertainty suggests that there is no need to take action. The precautionary principle would then advocate taking the preventive measure.

Conclusion

It has been a decade since countries embraced the precautionary principle at the 1992 Rio Conference on Sustainable Development.

Internationally, at times Canada has pushed for the principle, and other times it has pushed back. For example, following the arrest of the Spanish trawler in 1995, it supported the principle in the U.N. Fish Agreement negotiations. It also used the principle to justify a ban of imports of MMT in 1996 but did not rely on the principle in its submissions to the NAFTA panel. This appears consistent with Canada's view that the principle is not yet customary international law.

Domestically, Canada has been quick to incorporate the principle into legislation and judicial decisions. The Supreme Court has cited the principle with approval. At the federal and provincial level, government has applied the precautionary principle to environmental protection and the management of toxic substances. The federal government has applied it to fisheries management. The federal environmental assessment process provides that uncertainty of the impacts can result in additional scrutiny through a panel review.

The principle in Canada is generally triggered by serious or irreversible harm, which has included threats to drinking water and threats to populations from pesticide application. The results of applying the principle vary depending on the severity of the threat. Proponents of potentially harmful activities have been required to take additional steps to protect the environment, assess alternatives, prove no harm, monitory the activity, assess cumulative effects, or prohibit the activity.

This experience provides Canada and other countries with a starting point for answering further questions of implementation as we move into the second decade of the precautionary principle.

1. The author uses the words precautionary "principle" and "approach" interchangeably. For the status of the principle/approach in international law, see James Cameron & Juli Abouchar, The Status of the Precautionary Principle in International Law, in THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW 52 (David Freestone & Ellen Hey eds., Kluwer Law International 1996); Owen McIntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law, 9 J. ENVTL. L. 221, 241 (1997).

2. 114957 Canada Ltee. (Spraytech, Societe d.arrosage) v. Hudson (Town), [2002] C.E.L.R. (N.S.) 1.

3. Bergen Ministerial Declaration on Sustainable Development in the United Nations Economic Commission for Europe (ECE) Region, U.N. Doc. A/CONF.151/PC/10 (1990), 1 Y.B. INT'L ENVTL. L. 429, 4312 (1990) [hereinafter Bergen Ministerial Declaration]. The ECE has 55 member states including European countries, Canada, the United States, and countries in central and western Asia.

4. For an early review of the precautionary principle in international law and policy, see James Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 B.C. INT'L & COMP. L. REV. 1 (1991).

5. Convention on the Protection of the Ozone Layer, Mar. 22, 1985, Vienna, 26 I.L.M. 1529 (1987).

6. Second International Conference on the Protection of the North Sea, London, England, Nov. 24-25, 1987, available at http://odin.dep.no/md/nsc/declaration/022001-990245/index-dok000-b-n-a.html (last visited June 11, 2002) ("in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence").

7. David VanderZwaag, Environment Canada, CEPA and the Precautionary Principle/Approach, CEPA Issue Elaboration Paper No. 18, at 8 (1995).

8. By 1990, the U.N. Secretary General was able to report that the precautionary principle "has been endorsed by virtually all recent international forums" in the Annual Report on the Law of the Sea, Nov. 1990, U.N. Doc A/45/721, cited in David Freestone, International Law and Sea Level Rise, in INTERNATIONAL LAW AND GLOBAL CLIMATE CHANGE (David Freestone & Robin Churchill eds., Graham & Trotman/Martinus Nijhoff 1991).

9. Canadian Environmental Protection Act, R.S.C., 1999 (received Royal Assent on Sept. 14, 1999, and was promulgated on Mar. 31, 2000) [hereinafter CEPA/99].

10. 7 EARTH NEGOTIATIONS BULL. 3 (International Institute of Sustainable Development) (Apr. 3, 1995).

11. Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Sept. 8, 1995, U.N. Doc. A/CONF.164/37 [hereinafter U.N. Fish Agreement].

12. [1989] 3 C.E.L.R. (N.S.) 1. Provincial waters refers to water within the boundary of a province, whereas extra-provincial waters refer to water outside the territorial limits of a province.

13. Ocean Dumping Control Act, S.C. 1974-75-76, ch. 55.

14. Crown Zellerbach, 3 C.E.L.R. (N.S.) at 21.

15. Id. at 36.

16. [1994] 15 C.E.L.R. (N.S.) 83 (Gen. Div), affirming [1992] 9 C.E.L.R. (N.S.) 85 (Ont. Envtl. App. Bd.).

17. Uniroyal, 9 C.E.L.R. at 134.

18. [1998] B.C. Envtl. App. Bd. No. 24 QL (QuickLaw).

19. Weed Control Act, R.S.B.C. ch. 487 (1996).

20. Rio Declaration on Environment and Development, U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/5/Rev. 1, 31, I.L.M. 874 (1992) [hereinafter Rio Declaration].

21. [1998] B.C. Envtl. App. Bd. No. 19 QL.

22. [1996] B.C. Envtl. App. Bd. No. 64 QL.

23. [1999] B.C. Envtl. App. Bd. No. 24 QL.

24. [1998] B.C. Envtl. App. Bd. No. 78 QL.

25. Id. P77.

26. [1998] Alta. Envtl. App. Bd. No. 20 QL.

27. Weed Control Act, R.S.A., 1980, ch. W-5.

28. Ash, P71.

29. Id.

30. [2001] S.C.C. 40.

31. John Swaigen, The Hudson Case: Municipal Powers to Regulate Pesticides Confirmed by Quebec Courts, 24 C.E.L.R. (N.S.) 162, 173 (2001).

32. 114957 Canada Ltee (Spray-Tech, Societe d.arrosage) v. Hudson (Ville), [1993] 19 M.P.L.R. (2d) 224 (Que. S.C.).

33. [1999] 2 S.C.R. 817.

34. Id. at 861.

35. Bergen Ministerial Declaration, supra note 3.

36. Baker, P31.

37. S.C. 1996, ch. 31.

38. N.S. Endangered Species Act, 1998, ch. 11, § 1.

39. Canadian Environmental Protection Act, S.C. 1988, ch. 22.

40. The committee was composed of Members of Parliament representing all political parties heard from some 150 organizations including governments (provincial and federal), industry, nongovernmental organizations, and aboriginal groups during its five-year review of CEPA/88.

41. IT'S ABOUT OUR HEALTH! TOWARDS POLLUTION PREVENTION xxii, 54-56, 69 (Report of the House of Commons Standing Committee on Environment and Sustainable Development, June 1995).

42. GOVERNMENT OF CANADA, TOXIC SUBSTANCES MANAGEMENT POLICY (1995).

43. Id. at 4.

44. Inherent toxicity is not defined in CEPA/99. The Standing Committee recommended this approach, which is compatible with the precautionary principle because it does not require proof of harm to human health or the ecosystem. According to Health Canada, witnesses to the Standing Committee, inherent toxicity is the "inherent capability of a substance to cause harm, which does not take into account exposure." IT'S ABOUT OUR HEALTH!, supra note 41, at 66.

45. CEPA/99, § 74.

46. Id. § 75.

47. Id. §§ 46, 71, 81(3) & (4), 84(1), 85(1).

48. Id. pt. 4.

49. Id. pmbl.

50. Id. § 2.

51. Id. § 6.

52. Id. § 76.1.

53. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,861. The Supreme Court of Canada in Baker concludes that international conventions ratified by Canada may provide an aid to interpreting provisions of domestic legislation.

54. Conventions not using the phrase "cost-effective measures": Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, Dec. 19, 1972, London, 11 I.L.M. 1294 (Canada ratified) [hereinafter London Dumping Convention] ("appropriate preventative measures"); Convention on Biological Diversity, June 5, 1992, Rio de Janerio, 31 I.L.M. 822 ("measures"); Convention on the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, Paris, 32 I.L.M. 1069 (1993) (Canada not ratified) [hereinafter Convention on the Protection of the North-East Atlantic] ("preventative measures"); Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, Washington, 12 I.L.M. 1085 ("not be used as a reason for failing to act"); U.N. Fish Agreement, supra note 11 ("conservation and management measures"); Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992, available at http://www.helcom.fi/helcom/convention.html (last visited June 14, 2002) ("preventative measures"); Ministerial Declaration of the Second International Conference on the Protection of the North Sea, Nov. 24-25, 1987, London ("action"); Ministerial Declaration of the Third International Conference on the Protection of the North Sea, Mar. 8, 1990, The Hague ("action"); and the Bergen Ministerial Declaration, supra note 3 ("measures"). Conventions referring to "cost-effective measures": the U.N. Framework Convention on Climate Change, May 9, 1992, New York, 31 I.L.M. 849; Rio Declaration, supra note 20 (English version); and the Seoul Declaration on Environmental Ethics, 1997, Ministry of Environment, Korea.

55. ENVIRONMENTAL ASSESSMENTS OF PRIORITY SUBSTANCES UNDER THE CANADIAN ENVIRONMENTAL PROTECTION ACT, GUIDANCE MANUAL VERSION 1.0 1-4 (Environment Canada 1997).

56. Claude Lanthier, Chairman, Canadian Section of the International Joint Commission, Statement to the Standing Committee on Environment and Sustainable Development, Nov. 22, 1994, cited in ITS ABOUT OUR HEALTH!, supra note 41, at 55.

57. An Act to Reform the Environmental Laws of the Province and to Encourage and Promote the Protection, Enhancement, Enhancement and Prudent Use of the Environment, S.N.S. 1994-1995 ch. 1, § 1 (amended 1998, ch. 18, § 557).

58. Id.

59. Id. § 8(2).

60. Clean Air Act, S.N.B., ch. C-5.2 (1997), (assented to Feb. 28, 1997).

61. Id. § 2(h).

62. Id. § 2.

63. Id. § 15(3).

64. Id. § 17(4).

65. The Environmental Bill of Rights' Statement of Environmental Values is available from the Ontario Ministry of the Environment's Environmental Bill of Rights Homepage at http://www.ene.gov.on.ca/envision/env_reg/ebr/index.htm (last visited May 16, 2002).

66. Environmental Bill of Rights, S.O. 1993, ch. 28.

67. Id. § 11.

68. Canadian Environmental Assessment Act, S.C. 1992, ch. 37.

69. Joint Public Review Panel Report, Sable Gas Projects, at 32 (Oct. 1997) [hereinafter Sable Gas Review].

70. Id. at 33, recommendation 4.

71. Report on the Proposed Voisey's Bay Mine and Mill Project, Annex to Sched. 1 (Environmental Assessment Panel 1999) [hereinafter Voisey's Bay Review].

72. Id. at 9.

73. Id.

74. [1996] 20 C.E.L.R. (N.S.) 1.

75. Id. at 11.

76. [1998] O. Envtl. App. Bd. No. 23 QL.

77. Id. P26.

78. [1998] 28 C.E.L.R. (N.S.) 1.

79. Id. at 31.

80. Id. at 53.

81. In re West Northumberland Landfill, [1996] 19 C.E.L.R. (N.S.) 181, 211.

82. U.N. Fish Agreement, supra note 11.

83. Id.

84. Oceans Act, S.C. 1996, ch. 31.

85. Id. pmbl.

86. S.C. 1999, ch. 19.

87. DEPARTMENT OF FISHERIES AND OCEANS, NEW (EMERGING) FISHERIES POLICY (2001).

88. Id. at 2.

89. Bill C-5, An Act Respecting the Protection of Wildlife Species at Risk in Canada, as reported to the House on Dec. 3, 2001.

90. Id. pmbl.

91. Id. § 38.

92. Id. § 15(2).

93. Endangered Species Act, S.N.S. ch. 11 (1998) [hereinafter Nova Scotia Endangered Species Act].

94. Id. § 2(h).

95. Id. § 11.

96. Id. § 18(1).

97. Gutfrucht v. British Columbia, [1999] B.C. Envtl. App. Bd. No. 27 QL.

98. S.C. 1997, ch. 11.

99. House of Commons Debates, Sept. 25, 1996 (Hansard).

100. Proceedings of the Standing Committee on Energy, Environment and Natural Resources, Issue 5, Evidence, Feb. 4, 1997.

101. Id.

102. Statement of Claim, Ethyl Corp. v. Canada (Oct. 2, 1997), available at http://www.dfait-maeci.gc.ca/tna-nac/ethyl3.pdf (last visited June 11, 2002).

103. Statement of Defence, Ethyl Corp. v. Canada (Nov. 27, 1997), available at http://www.dfait-maeci.gc.ca/tna-nac/ethyl14.pdf (last visited June 11, 2002).

104. Chantal Blouvin, North-South Institute, NAFTA Goes Too Far on Investor Protection (Aug. 31, 2001), at http://www.nsi-ins.ca/ensi/news_views/oped26.html.

105. EC Measures Concerning Meat and Meat Products (Hormones) Complaint by Canada, WTO Dispute Settlement Panel, 2 T.T.R. 2d 691; 1997 T.T.R. LEXIS [hereinafter Hormone Dispute Settlement].

106. Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments, Results of the Uruguay Round (1994). For more information on the SPS Agreement, see Deepa Badrinarayana, To Trade or Not to Trade. . ., 32 ELR 10512 (Apr. 2002).

107. Hormone Dispute Settlement, supra note 105, P3.1.

108. Id. P4.50.

109. Id. P3.6.

110. EC Measures Concerning Meat and Meat Products (Hormones) WTO-Appellate Body Panel, 3 T.T.R. 2d 523; 1998 T.T.R. LEXIS 10 [hereinafter Hormone Appellate Report].

111. Id. P6.3.

112. PRIVY COUNCIL OFFICE, GOVERNMENT OF CANADA, A CANADIAN PERSPECTIVE ON THE PRECAUTIONARY PRINCIPLE, DISCUSSION DOCUMENT (2001).

113. Accord for the Prohibition of Bulk Water Removal From Drainage Basins, Nov. 30, 1999 (signed by all Canadian provinces except Quebec), available at http://wws.scics.gc.ca/pdf/accord.pdf.

114. Hormone Appellate Report, supra note 110, P4.

115. A FRESHWATER STRATEGY FOR THE PROVINCE OF BRITISH COLUMBIA (Ministry of Environment, Lakes and Parks 1999) [hereinafter BC Freshwater Strategy].

116. Id. at 7.

117. Shuswap Thompson Organic Growers Ass'n v. British Columbia (Minister of Environment Lands and Parks), [1998] B.C. Envtl. App. Bd. No. 24 QL; Sable Gas Review, supra note 69; Voisey's Bay Review, supra note 71.

118. HON. DENNIS R. O'CONNOR, PART TWO REPORT OF THE WALKERTON INQUIRY: A STRATEGY FOR SAFE DRINKING WATER (Ontario Ministry of the Attorney General 2002). The Walkerton Inquiry was a judicial inquiry into the events that lead to a waterborne outbreak in Walkerton, Ontario, that resulted in seven deaths and thousands of people to become ill from drinking water contaminated with a toxic strain of e-coli.

119. Id. at 77.

120. Nova Scotia Endangered Species Act, supra note 93; Ontario Statement of Environmental Values, Environmental Bill of Rights, supra note 65; BC Freshwater Strategy, supra note 115.

121. CEPA/99 § 64 provides that:

except where the expression "inherently toxic" appears, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that:

(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;

(b) constitute or may constitute a danger to the environment on which life depends; or

(c) constitute or may constitute a danger to Canada to human life or health.

122. Uniroyal Chemical Ltd. v. Ontario (Ministry of Environment), [1992] O. Envtl. App. Bd. No. 6 QL; Goeres v. British Columbia, [1996] B.C. Envtl. App. Bd. No. 64 QL; Parksville v. British Columbia (Ministry of Environment Lands and Parks), [1999] B.C. Envtl. App. Bd. No. 24 QL.

123. Uniroyal.

124. Nova Scotia Endangered Species Act, supra note 93; Gutfrucht v. British Columbia, [1999] B.C. Envtl. App. Bd. No. 27 QL.

125. CEPA/99, § 76.1.

126. CEPA/99 definition of toxic; Uniroyal; Sable Gas Review, supra note 69.

127. R. v. Crown Zellerbach Canada Ltd., [1989] 3 C.E.L.R. (N.S.) 1; Sable Gas Review, supra note 69.

128. 114957 Canada Ltee (Spraytech, Societe d.arrosage) v. Hudson (Town), [2001] S.C.C. 40; Resident Advisory Board v. British Columbia, [1998] B.C. Envtl. App. Bd. No. 19 QL; Shuswap Thompson Organic Growers Ass'n v. British Columbia (Minister of Environment Lands and Parks), [1998] B.C. Envtl. App. Bd. No. 24 QL, Ash v. Alberta, [1998] Alta. Envtl. App. Bd. No. 20 QL.

129. For example, London Dumping Convention, supra note 54: "likely to cause harm"; Protocol on Substances That Deplete the Ozone Layer, Sept.16, 1987, Montreal, 26 I.L.M. 1550 (1987) (Canada ratified): "substances that deplete the ozone layer"; Convention for the Protection of the North-East Atlantic, supra note 54: "may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea"; Cartegena Protocol on Biosafety to the U.N. Conventions on Biological Diversity, 39 I.L.M. 1027 (2000), available at http://www.biodiv.org/biosafety/protocol.asp (Canada signed on Apr. 19, 2001, but has not yet ratified the agreement): "may have adverse effect on the conservation and sustainable use of biological diversity."

130. Shuswap; Goeres v. British Columbia, [1996] B.C. Envtl. App. Bd. No. 64 QL.

131. CEPA/99 § 67.

132. Shuswap; Resident Advisory Board; Parksville v. British Columbia (Ministry of Environment Lands and Parks), [1999] B.C. Envtl. App. Bd. No. 24 QL; Ash.

133. Ash; Shuswap; Resident Advisory Board.

134. Shuswap; Voisey's Bay Review, supra note 71.

135. Sable Gas Review, supra note 69.

136. Ash.

137. Goeres v. British Columbia, [1996] B.C. Envtl. App. Bd. No. 64 QL; Gutfrucht v. British Columbia, [1999] B.C. Envtl. App. Bd. No. 27 QL.

32 ELR 11407 | Environmental Law Reporter | copyright © 2002 | All rights reserved