While it may not be well known by many, the precautionary principle has clearly found its way into Canadian law and may impact future management decisions regarding environmental issues.
What is the precautionary principle? Some have said it boils down to better safe than sorry. However, the working definition will depend, in part, on who you ask. In fact, there may be as many as a dozen definitions, but the two main definitions are the Rio Declaration and the Wingspread Statement:
The Rio Declaration of 1992 states, “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason of postponing cost-effective measures to prevent environmental degradation.”
The Wingspread Statement states, “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.”
Both of these statements leave a lot of ambiguity and require significant interpretation.
While environmentalists have expressed support for the precautionary principle, there are others who have expressed concern; but this is not as simple as a political right v. political left issue.
For example, Cass Sunstein (United States Administrator of the Office of Information and Regulatory Affairs under President Barack Obama) said, “A rational system of risk regulation certainly takes precautions. But it does not adopt the Precautionary Principle.”
As to application to Canadian Law, there have been two recent environmental/ecological matters that have leaned heavily on the precautionary principle.
The first matter was a fish farm in British Columbia that had a licence from the Ministry of Fisheries and Oceans (Morton v Canada Fisheries and Oceans). They had transferred diseased salmon smolts from a hatchery to the farm. This was within their permit to do so. However, they were sued by a biologist and the Federal Court invalidated certain conditions of the existing permit unrelated to the precautionary principle. The court did, however, lean on the precautionary principle in their final opinion stating, in part:
More recently, the Supreme Court of Canada considered the interface between the precautionary principle and an environmental regulatory scheme in Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52, at para 20. The Court referred to the principle as an emerging principle of international law, which informed the scope and application of the legislative provision in question.
The second case involved the use of pesticides in a town in Quebec (Canada Lt´ee [Spraytech, Soci´et´ d’arrosage] v Town of Hudson). Quebec law allows towns to enact bylaws to regulate toxic materials. In ruling in favour of the pesticide ban, the Supreme Court of Canada acknowledged that the town had not proven the pesticides were toxic and, nevertheless, allowed the ban. This ruling stated, in part:
The interpretation of By-law 270 set out here respects international law’s “precautionary principle.” In the context of the precautionary principle’s tenets, concerns about pesticides fit well under their rubric of preventive action.
Precautionary Principle and Environmental Regulations
In suggesting that the principle will be more widely applied, the publication OHS insider stated, “Because the decision in the Hudson case comes from Canada’s highest court, it clearly signals judicial acceptance of the precautionary principle. So you can expect the courts of every jurisdiction to give governments at all levels broad discretion to regulate substances and activities that have the potential to harm the environment.”
As it relates to “our world” in assisting the regulated community, we are used to evaluating quantitative data compared to cleanup standards that have been derived through scientific methodology (and evaluated against risk). The regulated community understands this as they aim for a (mostly) clear endpoint. The precautionary principle is obviously very different; it is qualitative and requires case-by-case determination. Additionally, what is to prevent someone from pushing forth their agenda or advocating protectionist policies under the auspices of this principle?
Striving to reduce risk, in general, is laudable and is likely to get widespread support. But is this principle the best approach? Will concern about how this principle might be applied create uncertainty for businesses? As we know, uncertainty, in general, does not portend well for business growth.
Anticipating how the precautionary principle may be applied in the future is anyone’s guess. As to what companies might do to avoid being on the wrong end of a precautionary principle application, perhaps keeping your environmental advising team (technical and legal) close at hand is the best you can do.
If you need assistance with an environmental matter such as permitting, assessment, remediation, etc., contact my colleague, Christopher Paré (firstname.lastname@example.org) at 519-979-7300, ext 114.