Constitutionalizing Environmental Protections Under the Charter: Part 3
This post is the third of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.
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How Odours from Heavy Oil Processing in the Peace River Region Can Constitute a s. 7 Infringement
The evidentiary record before the Alberta Energy Regulator inquiry into odours and emissions from heavy oil operations in the Peace River region makes clear that a s. 7 Charter claim asserting environmental protections can be made. The requirements of such a claim, as set out in the previous post, include: (1) government action has led to environmental impacts that (2) have resulted or will result in harm that (3) deprives the individual of their life, liberty or security of the person interests, and (4) that this deprivation is not in accordance with the principles of fundamental justice. Each element will be discussed in light of the factual conclusions that can be drawn from the inquiry’s documentary record and expert testimony.
(1) Government Action the Leads to Environmental Impacts
The Alberta Ambient Air Quality Objective (AAAQO) allows for heavy oil processing operations in the Peace River region to emit chemical compounds into the environment at levels detectable to human populations. There are no odour threshold limits imposed on the majority of hazardous air contaminants regulated by the AAAQO. For those contaminants subject to odour threshold limits, the thresholds imposed are at levels that exceed detection limits. This allows heavy oil processing facilities in the Peace River region to emit chemical compounds at levels that individuals can detect by odour.
(2) Have or Will Result in Harm
Alberta’s odour management framework allows heavy oil processing facilities in the Peace River region to release odours at levels that can cause the types of harms reported. The framework does not protect the public from the harms that can be caused by prolonged exposure to unpleasant odours at low concentrations.
According to Dr. Donald Davies, heavy oil operations in the region are emitting unpleasant odours at low but detectable levels that are triggering irritant nerve receptors, inducing the health symptoms reported by community residents. This position is largely informed by the similarities in the symptoms residents have reported and the type of symptoms discussed in studies assessing the health impacts from prolonged exposure to unpleasant odours. Moreover, it is consistent with evidence from air quality studies that indicate that heavy oil operations are not emitting toxins at levels objectively known to be dangerous to human health.
Even though chemical compounds are not being emitted at levels known to be harmful to human health objectively, community residents are still experiencing harms from the odours. Subjective considerations that are dependent on the individual, such as how irritant nerve receptors react to prolonged exposure to unpleasant odours and underlying health issues, are allowing odours to induce the serious health symptoms reported by community residents. A subjective understanding of harm that considers the impact government action has or will have on an individual given their unique circumstances is sufficient for the purposes of s. 7. In this case, the adverse health effects reported constitute harm, and odours from chemical compounds released by heavy oil processing facilities at low concentrations are responsible.
(3) Deprivation of the Life, Liberty or Security of the Person Interests of an Individual
The nature and extent of the physical and psychological health effects reported by community residents constitute a deprivation of their liberty and security of the person interests.
The deprivation of the liberty interest requires government action to impose restrictions over an individual’s ability to control matters fundamentally or inherently personal. In Godbout v Longueuil (City),  3 SCR 844, the court struck down a municipal bylaw preventing permanent employees of the City of Longueuil from living outside of the municipality. Individuals have a right to determine where to live, free of government action restricting that choice.
In our case, odours and the resulting health effects have forced individuals from their homes. Constant episodes of disorientation, headaches, nausea, nosebleeds and other symptoms are making it impossible to continue to live in the community. This deprives certain residents of their liberty interest under s. 7, as they are faced with the difficult dilemma of either leaving their communities and homes or remaining to endure serious health effects.
Government action that undermines the health and bodily integrity of an individual will constitutes a deprivation of the security of the person interest. Odours released by heavy oil processing facilities in the Peace River region are triggering irritant receptors in individuals exposed to these emissions. Dr. Davies believes that this is causing the underlying health issues and stress of residents to manifest in a variety of physical and psychological health symptoms, ranging from nausea and nosebleeds to disorientation and headaches.
The fact that residents are experiencing serious physical and psychological health effects as a result of the odours clearly constitutes a deprivation of their security of the person interest. Not only are residents being physically harmed, but they are also exhibiting psychological injuries that are serious, and go beyond the consequences that result from ordinary stress or anxiety. The health effects induced by the odours deprive impacted residents of their security of the person interest under s. 7.
(4) Deprivation Not in Accordance with the Principles of Fundamental Justice
There are numerous principles of fundamental justice that are likely breached if odours from heavy oil processing facilities in the Peace River region are leading to the health impacts reported by community residents. For instance, if Alberta’s odour management framework allows odours from heavy oil operations to induce adverse health impacts in community residents, then this would clearly shock the conscience of Canadians. Allowing industrial development to proceed in a manner that inflicts serious harms on individuals would offend commonly held notions of fair practice and justice.
The prohibition against arbitrariness is also likely breached. Arbitrariness refers to whether the government action has a direct connection between the purpose of the law and the effects it has on the individual. The purpose of the AAAQO is to protect public health and the environment by regulating air contaminants in the province. The AAAQO does not include odour threshold limits for most of the air contaminants it regulates. Ambient odour thresholds and measurements are not included for the air contaminants subject to odour threshold limts, and limits are set at thresholds that exceed detection levels. As a result, odours discharged from industrial facilities can meet the limits established by the AAAQO and still induce the types of adverse health effects that Peace River residents experience. Therefore, instead of protecting the public, the AAAQO in this instance is authorizing odour discharges from heavy oil operations that can harm individuals. The effects of the AAAQO’s odour management framework seem to run counter to the purpose of the regulation, making it arbitrary.
As set out above, the requisite elements of a s. 7 Charter claim asserting environmental protections are present in the context of the health impacts heavy oil processing facilities have on residents in the Peace River region. While this public law approach is distinct from private law remedies that may be available, incorporating environmental protections under the Charter would have much broader implications. Constitutionalizing these protections would impose substantive limits on the environmental impacts of state authorized industrial activity.