Disponible uniquement en anglais.
par Kirsten McCann, lauréate 2022 du concours de dissertation Raconter leur histoire.
INTRODUCTION
The Sixth Assessment Report from the Intergovernmental Panel on Climate Change (IPCC), published on February 28, 2022, warns that current global warming trends will result in unavoidable climate hazards that will endanger the lives of billions of people over the next two decades.1 However, the adverse impacts of climate change will not be felt evenly by everyone. Research from the United Nations found that women and girls are disproportionately impacted by climate change.2 In 1995, the Canadian Federal government promised to apply an intersectional “gender-based plus” analysis (GBA+) to all law, policy, and government directives.3 The “plus” makes the analysis intersectional by considering how decision-making adversely impacts various social, economic, and cultural factors beyond gender, such as age, education, language, geography, culture, and income.4 However, comprehensive GBA+s are not a mandatory federal requirement.5 Not only is the failure to require GBA+s troublesome considering the disproportionate impact of climate change on women, but Canada’s continued expansion of fossil fuel capacity further bolsters environmental inequality in Canada.
The influence of the oil, gas, and resource extraction sector on Canada’s environmental policy regime is not new. However, the rise of ultra-right-wing ideology from the United States has seeped into energy politics in Canada in recent years, leading to the rise of “petro-masculinity.”6 “Petro-masculinity” is a term coined by scholar Cara Dagget referring to a new social identity rooted in misogyny, racism, and climate change denial that poses a threat to Canadian environmental equality.7 A mandatory federal requirement to conduct GBA+s for environmental law and policy could help mitigate the possible effects of “petro-masculinity” and ensure Canada’s environmental laws are both sustainable and equitable.
I will argue in favour of a federal GBA+ requirement by first showing why the threat of “petro-masculinity” and the gendered impact of climate change warrants a gendered analysis of environmental law and policy. Next, I will explain that enacting a federal GBA+ requirement is within Parliament’s legislative power because a mandatory GBA+ regime is a matter of national concern. I will then attempt to apply a GBA+ informed legal analysis to the Canadian Environmental Protection Act (CEPA) to illustrate the benefit of a GBA+ analysis in environmental law.8 Finally, I will provide recommendations for an improved GBA+ regime.
THE THREAT OF “PETRO-MASCULINITY” TO ENVIRONMENTAL LAW
Canada needs a mandatory GBA+ requirement to protect environmental equality from being eroded by “petro-masculiny” in decision-making. “Petro-masculinity” draws on a historically hegemonic understanding of hypermasculinity that shows increasing signs of fragility in the 21st century, having been crippled by the joint rise of feminism and environmentalism.9 Daggett’s research focuses on the climate denial, racism, and misogyny underlining the goals of former United States President Donald Trump and his administration.10 Among the 125 environmental rules and regulations rolled back between 2017 and 2021, the Trump administration withdrew from the Paris Agreement, installed a climate denier to lead the Environmental Agency, replaced the Clean Power Plan, and moved to bring back the coal industry.11 Considering the ample scientific evidence pointing to the catastrophic dangers of climate change, political inaction suggests that underlying value systems and political psyche, like “petro-masculinity,” ultimately drive successful mitigation and adaptation strategies.12
The rise of increasingly influential right-wing voices in Canada since the Trump administration came to power shows Canada is not immune to the effects of populism.13 For example, the distrust of science was mainstreamed throughout the COVID-19 pandemic. Peoples Party of Canada leader Maxime Bernier mirrored Trump’s strategy of capitalizing on the fragile state of hegemonic masculinity in North America to gain support. Not only does Bernier promote scientific misinformation by denying COVID-19 as a real threat, but he extends this information into the environmental realm by making climate change denial the PPC’s first platform policy.14 In return, PPC support increased from 1.6% to 5.1% of the national vote in the 2021 election.15
Ring-wing influences hinder progressive environmental policy in the Conservative Party as well. In March 2021, 54% of Conservative members of Parliament voted against recognizing climate change in their election platform.16 As leaders in Canada legitimize “petro-masculinity,” its symptoms become increasingly evident in the electorate. In 2019, former Environment and Climate Change Minister Catherine McKenna had to be assigned RCMP security detail after being sent death threats for trying to pass stringent climate change policies.17
THE IMPORTANCE OF A GENDERED PERSPECTIVE IN CLIMATE CHANGE LAW AND POLICY
i. GENDER EQUALITY LEVELS
Applying a GBA+ lens to mitigation and adaptation is essential because countries with high levels of gender inequality are generally more vulnerable to the negative impacts of climate change.18 For example, a 2019 study found that federal legislative bodies with more women pass more stringent climate policies.19 The study found that lifting female presentation in Bahrain, whose Parliament is only 2% female, to the same level as Denmark’s female representation level, which is 37%, could lead to a 6-point increase in climate change policy stringency in Bahrain.20
A study by Nature Communications conducted in 2020 found that over 70% of women and girls worldwide experience high levels of gender inequality.21 The same study found that gender inequality levels could drop to 25% by 2030 if countries followed a sustainable development path consistent with international targets.22 However, most countries are not on track to meet targets, and Canada is no exception. Climate Action Tracker ranks Canada’s climate policies “highly insufficient” and on track to contribute to a 4-degree Celsius global warming temperature.23 Unfortunately, women and girls are already experiencing the effects of insufficient climate action. The Malala Fund found that in 2021, climate-related events prevented at least four million girls in developing countries from finishing their education.24
ii. BRIDGING THE GENDER GAP IN THE GREEN ECONOMY
Canada’s 2020 “A Healthy Environment and a Healthy Economy Plan” outlines the federal government’s plan to transition to a green economy.25 While the plan lists “GBA+” in its list of annexes, it does not mention how a transition to a green economy will ensure gender and social equality.26 The lack of a comprehensive gendered analysis in the plan is inadequate because women are underrepresented in the fast-growing green economy, making it harder to acquire new jobs, participate in reskilling, and access green-tech start-ups.27 In Canada, a shift to a green economy means there could be 6 million jobs reskilled in the oil and gas sector.28 However, only 22% of reskilled workers will be women. Worldwide, a study from 2021 found the transition to a global green economy means wage inequality will increase as women are streamlined to lower-skilled jobs, translating to a 3%-point decrease in women’s economic participation and opportunity by 2030.29
iii. THE CLIMATE REGUGEE CRISIS IS GENDERED
Canada needs comprehensive climate refugee laws informed by a GBA+. While Canada is 1 of 167 countries that signed the UN’s “Global Compact for Safe, Orderly, and Regular Migration Compact” in 2018, this instrument is not legally binding domestically, meaning there is no Canadian immigration policy for climate change refugees.30 A lack of climate immigration policy is a significant legal shortcoming considering the United Nations estimates that 80% of people displaced by climate change so far are women.31 Women are most displaced by climate change because they bear the brunt of droughts, extreme weather, and famine due to financial insecurity and social unrest, leading to increased gender-based violence.32 According to a 2006 study of 141 natural disasters by the London School of Economics, more women die in natural disasters when women do not enjoy the same economic and social rights as men.33 The percentage of women displaced will grow if adaptation strategies do not consider gender. The International Committee of the Red Cross estimates that 200 million people will need international humanitarian aid by 2050 in 20 countries alone.34
iv. THE LINK BETWEEN RESOURCE EXTRACTION AND SEXUAL AND GENDER-BASED VIOLENCE
The final report from the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) highlighted how Indigenous women and 2SLGBTQQIA people experience heightened instances of sexual and gender-based violence (SGBV) from “man camps.”35 “Man camps” house primarily male transient workers for temporary resource extraction projects.36 Canada’s Impact Assessment Act (IAA) assesses the impacts of major projects carried out on federal lands.37 In response to testimony and pressure from Indigenous women about the violence they experience because of resource extraction projects, Parliament included a GBA+ provision when it passed the IAA in 2019.38 Section 22(s) of the IAA states that impact assessments must consider sex, gender, and other identity factors.39
While the requirement of a GBA+ in impact assessments is a positive development, it is important to note that the IAA’s GBA+s are proponent-led.40 In a study conducted by Oxfam Canada in 2021, women’s advocacy groups and First Nations governments reported relevant issues often get overlooked because they cannot participate in the IAA’s GBA+ process.41 The Government of Canada’s website cites the Kudz Ze Kayah Project as an example where violence against Indigenous women was found to be an adverse effect.42 However, the measures taken to address the predicted effects of the project are not listed.43 Not only this, but the GBA+s for most other impact assessments are not publicly available.44 Therefore, it is unclear whether all GBA+ assessments under the IAA consider SGBV. It is possible that this ambiguity may be to avoid interfering with extraction projects. While this is merely a hypothesis, “petro-masculinity” in legislative debates around the inclusion of GBA+ in impact assessments suggest it may not be unfounded. In 2019, Senator David Tkachuk called the inclusion of a GBA+ provision in the IAA “shameful” because it might stifle the economy by slowing down projects.45 Premier of Alberta Jason Kenney and former Conservative Party of Canada Leader Andrew Scheer also criticized the MMIWG inquiry in 2019 after it called for risk assessments for resource development projects.46
IMPLEMENTING A MANDATORY GBA+ REGIME IS A MATTER OF NATIONAL CONCERN
A possible explanation (among other social, political, and economic constraints) as to why a socially left-leaning federal Liberal government has yet to make GBA+s mandatory in environmental law may pertain to the issue of jurisdiction. Section 92 of the Constitution Act, 1867 gives provinces the power to legislate over non-renewable natural resources, forestry resources, and electrical energy.47 Therefore, it is necessary to determine whether the federal government would have the jurisdiction to enforce a mandatory GBA+ regime for all environmental law and policy in Canada. The national concern doctrine under the residual federal peace, order, and good government powers via s.91 of the Constitution Act, 1867 could support a mandatory GBA+’s constitutionality.48 On March 25, 2021, the Supreme Court of Canada determined that carbon pricing is a matter of national concern and articulated a new national concern test in Re Greenhouse Gas Reference (GGPPA) using the following steps.49
i. THE THRESHOLD QUESTION
In GGPPA, the Court determined the first step of the test was to answer the threshold question by proving why the issue is a matter of national concern.50 The majority found mandatory national minimum standards for carbon pricing to be a matter of national concern because of the urgent and serious nature of the climate crisis.51 The urgency of the climate crisis combined with additional considerations regarding the gendered effects on equality levels, the green economy, the climate refugee crisis, and SGBV suggests that a mandatory gendered analysis of environmental law could also be construed as a matter of national concern.
ii. SINGLENESS, DISTINCTIVENESS, AND INDIVISIBILITY
The Court determined in GGPPA that the matter in question must be qualitatively different from matters of provincial concern.52 The backstop function of the GGPPA convinced the Court that this step was met because provinces are unable to coordinate an enforceable minimum standard of carbon pricing stringency amongst one another.53 Some provinces and municipalities already apply GBA+s in environmental decision-making. For example, British Columbia is working to decolonize the application of GBA+s by incorporating Indigenous traditional knowledge in climate adaptation decisions.54 However, while the provinces are all capable of using a GBA+, they are not capable of holding one another accountable for doing so, making a mandatory GBA+ federal requirement qualitatively different from matters of provincial concern.
A provincial inability to address the matter also goes to proving its singleness, distinctiveness, and indivisibility.55 Provincial inability in GGPPA was established because without national minimum standards, it only takes one provincial outlier with insufficient pricing to jeopardize the success of the whole scheme.56 Mirroring the Court’s reasoning, one province without GBA+ considerations in environmental law and policy could put the environmental equality of all Canadians at risk because the effects of climate change transcend provincial boundaries. While it is beyond the scope of this paper, an additional s.15 Charter argument could be made here. The equality rights of social groups who are disproportionately impacted by climate change could be triggered in provinces without adequate GBA+ considerations in adaptation policies.
iii. SCALE OF IMPACT OF PROVINCIAL JURISDICTION
The Court in GGPPA found the last step of the test needed to balance the previous factors with the potential impact on provincial jurisdiction.57 The Court determined the GGPPA’s impact on provincial powers was sufficiently limited because it only applies to the extent necessary to fix deficiencies in provincial regulation.58 For example, the GGPPA does not prevent any province from enforcing stronger carbon pricing standards, nor does it regulate how provinces should reduce their greenhouse gas emissions through pricing. Similarly, a mandatory requirement to conduct GBA+s in environmental decision-making would not prevent provinces from using an analysis tailored to their specific environmental concerns. There is also no specific formula for applying a GBA+.59 Therefore, the inherently flexible nature of the analysis likely balances out any idea of intrusion on provincial autonomy.
The Court provided an additional check to the proper division of powers when they found that the double aspect doctrine applies to issues of national concern.60 The double aspect doctrine recognizes that the same fact situations can be regulated from different perspectives. One may relate to a provincial power and the other to a federal power.61 Therefore, if a mandatory GBA+ requirement can be framed as a matter of national concern necessary to tackle the climate crisis from an equality standpoint, the double aspect doctrine provides additional assurance that the federal government has jurisdiction to enforce it.
IMPROVING THE APPLICATION OF GBA+s IN ENVIRONMENTAL LAW
i. THE STATE OF GBA+ IN CANADA
The findings from a 2015 report by the Auditor General of Canada suggest that the current use of GBA+s may be more symbolic than a practical step in creating law.62 Women and Gender-Based Equality Canada (WGBEC) is the organization that helps implement a GBA+ analysis in federal departments and agencies by providing training, guidance, and tools.63 WGBEC does not have the authority to enforce the application of a GBA+.64 In the Auditor General’s report, 6/25 departments that committed to conducting GBA+s never did.65 The remaining departments either failed to finish any GBA+ or conducted inadequate and inconsistent ones.66 The report also found departments did not provide evidence to support conclusions of no gender-specific impacts of legislation.67
In 2015, the Privy Council Office made the consideration of a GBA+ a requirement for memorandums to cabinet.68 In 2018, the Privy Council Office introduced a mandatory annex presenting the findings of GBA+ for memorandums to cabinet.69 However, a GBA+ requirement for memorandums to cabinet confines a GBA+ to the policy proposal stage. Since memorandums to cabinet are confidential, the public cannot assess whether GBA+’s are conducted adequately, if at all.
ii. APPLYING A GBA+ TO CANADIAN STATUTE: THE CANADIAN ENVIRONMENTAL PROTECTION ACT
On April 13, 2021, Bill C-28, also known as An Act to amend the Canada Environmental Protection Act (CEPA), was introduced in the House of Commons.70 CEPA regulates the use of toxic chemicals in Canada. I chose to assess Bill C-28 through a GBA+ lens because certain identity factors analyzed using a GBA+ increase vulnerability to adverse impacts of toxic chemical exposure. In turn, a comprehensive GBA+ provision in CEPA could help reduce the effects of environmental racism in Canada. Environmental racism refers to the institutional policies and practices that subject racialized and vulnerable minority groups to the worst effects of climate change, pollution, and environmental degradation.71 For example, the 15-mile-long area outside Sarnia, Ontario, dubbed "Chemical Valley," houses over 60 chemical plants and oil refineries and was built in the backyard of the Aamjiwnaang First Nation (AFN). In 2021, The AFN community found they are losing approximately one member a month to a pollution-related illness by looking at funeral records.72 In 2019, the United Nations Special Rapporteur on Human Rights and Hazardous Substances, Baskut Tuncak, described environmental racism in Sarnia when he stated that pollution in the AFN community would be deemed unacceptable anywhere else in Canada.73
A GBA+ analysis for Bill C-28 should have been articulated in a memorandum to cabinet. While the Canadian Environmental Law Association filed an “Access to Information Request” on June 4, 2021, to assess the evidence of a GBA+ in the memorandum to cabinet, my research suggests that the information is still not public.74 Therefore, the following analysis is an attempt to consolidate social equality concerns stemming from Bill C-28 based on independent research and the completion of the GBA+ training course available online at the Government of Canada’s website.75 It is important to note that a complete GBA+ analysis of the entirety of Bill C-28 is beyond the scope of this paper. Therefore, the following analysis will focus on strengthening CEPA against the effects of “petro-masculinity” in future environmental decision-making.
a) The Principle of Non-Regression in CEPA Needs Baseline Standards
I believe establishing the principle of non-regression in a provision of CEPA is a crucial tool to mitigate “petro-masculinity” in decision-making by preventing environmental regulations from being watered down by future governments. Alberta’s Environmental Law Centre defines the principle of non-regression as adding a baseline standard of environmental protection into legislation that future amendments or decisions cannot reduce.76 Bill C-28 incorporates the principle of non-regression under section 5.1(2)(a): “the principles to be considered in the administration of this Act, such as principles of environmental justice – including the avoidance of adverse effects that disproportionately affect vulnerable populations – and the principle of non-regression.”77 While including this principle is a step in the right direction, it is not effective unless a baseline standard is set out in CEPA to prevent future governments from weakening environmental protection.78 No such standard is mentioned in Bill C-28.79 Therefore, it is impossible to know if the principle of non-regression will be a symbolic or effective measure to strengthen the right to a healthy environment.
b) The “Right to a Healthy Environment” in CEPA is not Substantive
Ideally, a legal right to a healthy environment would mitigate the effects of “petro-masculinity” in environmental decision-making by allowing citizens to vindicate their right in a court of law. The “right to a healthy environment” proposed in Bill C-28 is the first right of its kind to be considered in Canadian federal law. The United Nations Special Rapporteur on Human Rights and the Environment has stated that legislation must include both a substantive right to environmental quality and procedural environmental rights to give practical meaning to environmental rights.80 The House of Commons defined a substantive right to environmental quality in their 2017 reports as a “right to clean air and water and a healthy and ecologically balanced environment.”81 This definition does not appear in Bill C-28, leaving what a “right to a healthy environment” means up to the future discretion of the government. Environmental scholars have warned that leaving terms such as “clean,” “healthy,” and “balanced” undefined in legislation makes it difficult to link complex epidemiological evidence of health impairment to humans and environmental impact.82 Without binding national standards defining what a “healthy” environment means, it is unlikely that a right to a healthy environment will be of much force or effect.
The House of Commons Special Standing Committee defined procedural rights as rights to access to information, access to justice, and public participation in environmental decision-making.83 Several amendments strengthen procedural aspects of CEPA. For example, Bill C-28 allows any person to request that a Minister assess a potentially toxic substance via section 76(1).84 However, some procedural amendments advocated for by environmental organizations that would strengthen the right to a healthy environment were excluded. For example, the Canadian Environmental Law Association (CELA) proposed Part 2 of CEPA (public participation) to be amended to allow any person, regardless if they are affected by the activity, to vindicate their right to a healthy environment in a federal court.85 This amendment was not included, leaving ambiguity about who can claim that their right to a healthy environment has been infringed.
Bill C-28 does not include any provisions that indicate how a violation of a right to a healthy environment may be actionable. CELA included several proposals for articulating how the right should be enforced. A main proposal included amending Part 2 of CEPA to include a government duty to protect the right to a healthy environment by acting as trustee of the environment to benefit present and future generations.86 Scholars have suggested that incorporating a public trust doctrine into federal environmental legislation could introduce stronger fiduciary obligations on the government to protect public rights to a healthy environment where private rights and public rights conflict.87
Bill C-28 amends subsection 2(1) of CEPA to read that the government shall “protect the right of every individual in Canada to a healthy environment as provided under this Act, which may be balanced with relevant factors, including social, economic, health and scientific factors.”88 “Petro-masculine” decision makers often prioritizes economic interests over ecological factors and human health.89 Adding a government duty to act as a trustee for future generations could potentially curtail “petro-masculinity” by encouraging judicial interpretation that considers the role of the government as a public trustee.90
CELA proposed that Part 2 of CEPA be amended to expand procedures that allow any person to vindicate the right to a healthy environment in Federal court.91 No such provision appears in Bill C-28. CELA also advocated for a provision that would state that environmental action can still be commenced or continued regardless of if the government has authorized the activity if the activity results in significant environmental harm.92 This provision would have also clarified that it could not be a defense that CEPA authorized such an activity unless no reasonable alternative was possible.93 The exclusion of this provision may leave more room for a “petro-masculine” government to erode environmental protection and subsequently insulate itself from legal action.
It is worthwhile to note how the rights found in Ontario’s Environmental Bill of Rights (EBR) have been treated in judicial decisions to predict how enforceable a right to a healthy environment may be on a national scale.94 For example, the Court in Greenpeace Canada v Minister of the Environment (Ontario) in 2019 recognized that the Ontario government’s decision to axe Ontario’s cap and trade program without consulting the public first constituted a failure to comply with the EBR’s right to public participation.95 However, Greenpeace’s application was still dismissed because the Court found the EBR’s procedural rights are modest in their legal enforceability.96 Having already established that CEPA’s right to a healthy environment is primarily procedural, Greenpeace may indicate how future courts might weigh CEPA’s right to a healthy environment against decisions made by elected officials.
c) Protection for Vulnerable Populations in CEPA
Bill C-28 will require the federal government to consider the cumulative effects of toxic substances on vulnerable populations for the first time under CEPA.97 The term vulnerable population appears ten times throughout Bill C-28.98 It is defined as: “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, maybe at an increased risk of experiencing adverse health effects from exposure to substances.”99 This definition is broad enough to include any marginalized community at greater risk of adverse effects that disproportionately affect marginalized communities.100
More specifically, Bill C-28 allows the Ministers of Environment and Health to consult with representatives of Indigenous governments when making decisions that may affect them in accordance with the principles of the United Nations Declaration on the Rights of Indigenous Peoples.101 However, it is worthy to note that provision 3(a), the “Consultations and considerations” section, uses the word ‘may’ instead of ‘shall’ to describe the Ministers duty to consult with Indigenous peoples.102 This language could indicate consultation with Indigenous peoples is a choice and not a requirement, thereby weakening protection against “petro-masculinity” in decision-making under this provision.
While a future framework that considers the risks to vulnerable populations is in line with what environmental advocates have been asking for, mention of vulnerable populations is confined to the preamble of the bill and framework implementation sections. Scientist Elaine Macdonald for EcoJustice Canada noted that it would be more authoritative to place protections for vulnerable populations in the operational sections of CEPA.103
RECOMMENDATIONS FOR A NEW GBA+ REGIME
The proposal for a federal GBA+ requirement is not a novel idea. In 2016, former Minister of the Environment and Climate Change Catherine McKenna and former Foreign Affairs Minister Dion recognized that national climate policies must be gender-responsive and that a GBA+ should be required.104 In an interim report on the implementation of GBA+ published in 2017, M.P. Maryam Monsef and Chair of the Standing Committee on the Status of Women Marilyn Gladu found that regardless of increased funding, training, and departmental desire for GBA+s, the optional nature of GBA+ regime is the biggest hurdle in their application.105 I believe all environmental legislation should have a GBA+ provision within the act like the IAA has. However, as previously identified by Oxfam Canada, the application of the GBA+ provision in the IAA is far from perfect. Therefore, I propose the following recommendations for a mandatory and comprehensive federal GBA+ regime for environmental law.
i) MORE POWER AND INDEPENDENCE TO WOMEN AND GENDER EQUALITY CANADA
Women and Gender Equality Canada (WGEC) should be able to enforce the application of GBA+s. Shifting their training and advisory role to an enforcement role means individuals with intersectional gender-based expertise would oversee the process. It is important to note that numerous scholars have critiqued a “gender-first” analysis of the environment because it can remain primarily focused on women.106 Gender-first analyses thus often fail to address other identities, such as masculinity, non-binary identities, race, and experiences of disability.107 However, a Canadian study of international and community literature in 2020 found that gender-responsive analyses to law offered the closest thing to an intersectional approach.108 The capacity of WGEC would likely have to expand if given the additional role of enforcing GBA+ compliance. Therefore, hiring a diversity of perspectives to conduct GBA+’s should be prioritized as an additional check on intersectionality.
ii) GBA+s SHOULD BE TRANSPARENT AND PUBICLY PUBLISHED
GBA+s should not be confined to memorandums to cabinet because the confidential nature of cabinet documents means GBA+s are not transparent. The lack of transparency is especially troublesome, considering there is no prescribed formula for how to conduct a GBA+. Without transparency, it is impossible to know what factors are considered. Instead, GBA+s should be made public to hold the government and industry actors accountable.
iii) INCREASED OPPORTUNITY FOR PUBLIC PARTICIPATION
Mandatory GBA+ provisions in environmental legislation should have a mechanism to ensure the public can participate in the GBA+ analysis. Meaningful public participation could ensure that “petro-masculine” voices are not the only ones heard in decision-making. A significant impediment to the IAA’s GBA+ provisions’ success is that the analysis is industry-led, meaning that concerns of nearby communities are not always considered in the analysis.109 A strategy worth looking into might be to incorporate a community-based impact assessment (CBIA) within a GBA+ regime.110 Sweden and Papua New Guinea use a CBIA model to fill gaps in the official regulatory process if issues and impacts important to specific communities fall outside the scope of assessment and expertise.111 CBIAs could also serve the additional purpose of holding industry and the government accountable by acting as evidence in court to assert failures to meet consultation and human rights obligations.112
A GBA+ provision should also include a funding mechanism to realize meaningful public participation. For example, both the IAA and CEPA include provisions for public participation. However, the lack of adequate funding in both makes participation inaccessible to many members of lower socio-economic status communities impacted most by environmental projects. While CEPA includes no mention of funding, the IAA provides a maximum of $12,300 for public participation in an environmental assessment.113 Lawyers are often needed to facilitate assessments. However, the Law Society of Ontario estimates the average hourly cost of retaining senior counsel is $350/hour.114 Someone relying on IAA participant funding could only afford 35 hours of a lawyer’s time even though an average environmental assessment can last up to 600 days.115
CONCLUSION
The surge of “petro-masculinity” in environmental decision-making in North America, combined with the climate crisis’s urgent nature, suggests that environmental inequality in Canada is at risk of being perpetuated. Having looked at the impact of climate change on gender equality, economic opportunity, displacement, and sexual and gender-based violence, it is evident that climate change is gendered. Therefore, the gendered impact of climate change likely constitutes a matter of national concern that warrants the creation of a federal GBA+ requirement. Assessing CEPA using GBA+ considerations shows that an intersectional gendered analysis of environmental legislation could expose equality concerns and could in turn strengthen Canada’s environmental and climate change regime, if addressed. A complete reconfiguration of the current GBA+ regime was beyond the scope of this paper. However, at minimum, I believe all federal environmental law and policy should include a GBA+ provision that Women and Gender Equality Canada enforces, publishes publicly, and collaborates on with the public.
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Endnotes
3 Canada, Auditor General of Canada, “Implementing Gender-Based Analysis”, report 1, (Ottawa: Office of the Auditor General of Canada, 2015) at 1.
7 Cara Daggett, “Petro-masculinity: Fossil Fuels and Authoritarian Desire” (2018) 47:1 Millennium: Journal of International Studies at 1.
8 Canadian Environmental Protection Act, SC 1999, C-33. [CEPA]
12 Johannes Persson, Nils-Eric Sahlin & Annika Wallin, “Climate change, values, and the cultural cognition thesis” (20 May 2015) 1:5 Environmental Science & Policy at 2.
18 Ayesha Tandon, “
Tackling gender inequality is crucial for climate adaptation” (15 December 2020), online: Carbon Brief. Climate change vulnerability is measured using various factors, such as access to food, water, and healthcare.; “
Gender Inequality Index (GII)” (2021), online: United Nations Development Programme. Gender inequality can be measured using the United Nation's Gender Inequality Index (GII) which measures gender inequality in 162 countries using three main dimensions to analyze female development and freedom of choice: health, empowerment, and the labour market.
19 Astghik Mavisakallyan & Yashar Taverdi, “Gender and climate change: Do female parliamentarians make a difference?” (2019) 56:1 European Journal of Political Economy at 154.
23 Climate Action Tracker, “
Canada” (2022), online: Climate Action Tracker.
32 Patricia Kameri-Mbote, Climate Change and Gender International Law and Global Governance (1
st ed, Nomos Verlagsgesellschaft, 2013), ch 9 at 328.
35 “Executive Summary of the Final Report” (2019) Final Report
: National Inquiry into Missing and Murdered Indigenous Women and Girls at 584.
37 Impact Assessment Act, SC 2019, c 28, s 1. [
IAA]
39 Supra note 38 a s 22(s).
47 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91 reprinted in RSC 1985, Appendix II, No 5 at s 92.
49 References re Greenhouse Has Pollution Pricing Act, 2021 SCC 11. [GGPPA]
55 Supra note 49 at para 106.
60 Supra note 49 at para 197.
61 Désgagnés Transport Inc v Wartsila Canada Inc, 2019 SCC 58 at para 125.
70 Bill C-28,
An Act to amend the Canada Environmental Protection Act, 2
nd Sess, 43
rd Parl, 2021 (first reading 13 April 2021).
71 Nathalie J Chalifour & Dayna N Scott, “Environmental Justice” in Alastair Lucas et al,
Environmental Law and Policy, 4
th edition (Edmond Publishing, 2019) at 68.
77 Supra note 70 at cl 5.1(2)(a).
79 Supra note 70 at cl 5.1(2)(a).
82 Jason Unger, “Environmental Rights in Alberta: Module 1: Substantive Environmental Rights” (2016) Environmental Law Centre at 8.
84 Supra note 70 at cl 76(1).
85 Letter from the Canada Environmental Law Association to Ministers Catherine McKenna and Ginette C Petitpas Taylor (15 October 2018),
Amending the Canada Environmental Protection Act at 3.
87 Andrew B Gage, "Public Environmental Rights: A New Paradigm for Environmental Law?" (2007) 9:1 Environmental Law Conference 1 at 10.
88 Supra note at 70 cl 2(1).
94 Environmental Bill of Rights, SO 1993, c 28, Preamble.
95 Greenpeace Canada v Minister of the Environment (Ontario), 2019 ONSC 5629 at para 87. [Greenpeace]
97 Supra note 70 at cl 3(1).
102 Supra note 70 at cl 3(a).
104 Nathalie J Chalifour, “How a Gendered Understanding of Cliate Change Can Help Shape Canadian Climate Policy” in Marjorie Griffin Cohen, Climate Change and Gender in Rich Countries, 1
st Ed, (Routledge, 2017) at 239.
110 Supra note 105 at 56.
111 Ibid. Papa New Guinea and Sweden also hold separate discussion groups for men and women because they found it allows women's voices to be heard more fully. Participants reported both frameworks were more accessible and successfully incorporated genuine equality-based concerns.