First Nation people’s rights compromised

A letter from Dayna Nadine Scott, in The Observer

Sir: Can the chronic chemical pollution experienced by members of the Aamjiwnaang First Nation constitute a violation of their Charter rights?

The cumulative impact of the relentless release of pollutants into the air from Canada’s “Chemical Valley” affects the members of Aamjiwnaang in a way that is fundamentally unfair, and is now argued to be unconstitutional.

How did it get to this?

The Ontario Ministry of the Environment has known for a long time that its air pollution regulation fails miserably when it is applied to several large, high-emitting facilities clustered together. That regulation allows the Minister to hand out Certificates of Approval (CofAs) or “pollution permits” to individual facilities without taking into account the background, or “ambient,” levels of pollution already present. For pollution hotspots like Sarnia, the regime is completely inadequate to protect the health of residents downwind, and the Ministry acknowledges this.

The mantra of the environmental justice movement that “some of us live more downstream than others” is a stark and obvious truth in the Chemical Valley. This area houses one of Canada’s largest concentrations of industry, including several large petrochemical, polymer and chemical industrial plants, as well as coal-fired utilities on both sides of the border. Talfourd Creek gathers its waters in an industrial corridor home to more than 40% of Canada’s chemical production before it winds its way through the Aamjiwnaang reserve and empties into the St. Clair River.

Aamjiwnaang members Ron Plain and Ada Lockridge launched litigation claiming that the chronic exposures to pollution, and the Ministry’s failure to assess the cumulative effects on their health, constitutes a violation of their constitutional rights to life, liberty and security of the person (section 7) and equality (section 15). Specifically, the applicants challenge the Ministry’s granting of a pollution permit to Suncor that allows it to increase its refinery operations and thus its release of air pollutants, without any assessment of the cumulative impacts on the health of affected residents. Despite prevalent rhetoric that “lifestyle factors” are to blame for health impacts, which include, but are not limited to, high rates of cancer, respiratory illness, cardiovascular disease, neurological and developmental disabilities, in addition to a declining birth ratio, it is undeniable that the location of this reserve matters.

When we consider this pollution and its effects on the health of residents in the context of their status as First Nations people on the reserve, that the violation of their constitutional rights comes into sharp relief. The First Nation is tied to the land, confined to a small portion of their traditional territory. To this legacy of colonialism, they add the legacy of a century of petrochemical production. That they should be expected to endure these threats to their well-being, perpetuated by the Ministry’s failure to enact an effective, health-protective air pollution regime, is unconscionable. That they should be forced to choose between subjecting themselves and their families to these risks or leaving the reserve at great social, economic and cultural cost, demonstrates that their equality rights are clearly infringed.

— Dayna Nadine Scott Associate Professor Osgoode Hall Law School

Co-Director National Network on Environments and Women’s Health

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