About the Post

Author Information

Public Health Ethics, Legitimacy, and the Challenges of IWT’s: The Case of Ontario, Canada

by Martin Shain on behalf of the National Association for Science, Technology & Society

Used with permission from the author

(part 4 — continuing from yesterday)

The Precautionary Principle

It was imported into Canadian law via the Supreme Court case of Spraytech v. Hudson (Town) [2001] 2 S.C.R. 241 from international law where it was originally approved by Canada in the Bergen Declaration of 1990. Subsequently, this doctrine has been embedded in several pieces of Canadian legislation including the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a); Endangered Species Act, S.N.S. 1998, c. 11, ss. 2 (1)(h) and 11(1).  It means the following: When scientific evidence concerning the harm potential of a given industrial activity leaves room for doubt, that activity should not be undertaken.

Proposed mitigating measures are not an adequate response, because if you do not know the nature or degree of risk you cannot prepare for its eventuation.   Some doubt surrounds the standard of care required by this principle. For example, how much harm could or should be reasonably foreseen if a risk eventuates? How big must the risk be to activate the principle?

Currently, this principle is being tested in Ontario’s legal and quasi-legal systems as it may be applied to IWT licensing. Such testing is likely to go on for some time. A recurrent issue appears to be the extent to which the Precautionary Principle that may be embedded in governing or parent statutes (such as Environmental Protection Acts) evaporates as delegated legislative vehicles such as regulations and administrative orders are created under its supposed authority. 2

The Least Impactful Means Test

Evident from recent decisions of the Ontario Municipal Board, which is an administrative tribunal similar to many others in North America and the United Kingdom, this test means the following: State issuers of licenses should approve only those proposed methods of operation that will have the smallest social and environmental impact in pursuit of legitimate industrial objectives.

The Least Impactful Means Test is generically related to the Proportionality Test, which has currency in many countries including Canada. This test requires a form of ends-means analysis in which the requirement that the government provide justifications for statutes that infringe on protected rights is front and center (Beatty, 2004). In Canada, the Supreme Court case of R. v. Oakes [1986] 1 S.C.R. 103 is usually seen as the source of the proportionality test, which was stated as follows: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.  Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or  freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for  limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance.”

As is apparent from the wording above, the test was developed to deal with infringements of the Canadian Charter of Rights and Freedoms by government actions such as law enforcement (as in the Oakes case) and law enactment (in other cases). Beatty (2004) shows convincingly, however, that in a number of countries, proportionality analysis is treated as a general principle of public law, applicable not only to constitutional law but also to administrative and even to international law questions.

However, Beatty is not alone in relating the proportionality test to the integrity of the rule of law. Harlow (2006) makes a similar connection in her consideration of the question whether or to what extent we can observe the emergence of a global administrative law with common principles and values. Central to such considerations is the question of when the State or its agencies can be held to be acting “ultra vires”—that is, beyond its legitimate powers and therefore unconstitutionally.

The marriage between the emerging jurisprudence of administrative tribunals in Ontario and the jurisprudence of the Supreme Court and the international community has not yet taken place. But the courtship is in progress and awaits only the brokerage and determination of creative lawyers to firm up the bond.

The Neighbor Principle

Also evident by deduction from recent Municipal Board decisions, this is a common law legal doctrine that until recently applied only to claims of negligence in civil courts.  It means the following: basically, there is a legal duty of care to know enough about your neighbors to avoid doing predictable harm to their legitimate interests. A neighbor in this context is anyone who could be foreseeably affected by your acts or omissions. The standard of care is that of the reasonable person in the same situation.

However, the neighbor principle is now being referred to by implication in environmental cases where the expectation is raised that “reasonable” developers should know what social and environmental interests of their neighbors are foreseeably affected by their operations.

The relatively new concept of a “social impact zone” in municipal board jurisprudence (see examples of such decisions in Note 3) arguably requires developers to consider the foreseeable impact of their operations in certain defined areas. Ultimately, the Neighbor Principle takes its place within the framework of the Good Planning Test that pulls together all the expert information available to determine the extent to which proponents have discharged their duty to demonstrate no unacceptable or, in some cases, no negative impacts from their proposed operations.

This means that they should be aware of not only the commercial and business interests of neighbors but also of their reasonable social expectations of privacy, freedom from nuisance, and enjoyment of property. These are all “legitimate” interests.

It can be seen that all three aforementioned doctrines are allied to the Rawlsian concept of fairness as the recognition and reasonable accommodation of the legitimate interests claims and rights of others. Indeed, it is this very concept of fairness that has the potential to unite the three doctrines into a coherent jurisprudence of social and environmental stewardship.

The Polluter Pay Principle

This well-established common law principle is evident from many Canadian cases including the Supreme Court case of St. Lawrence Cement Inc. v. Barrette [2008] SCC 64 and Smith v.Inco (2010) ONSC 3790 (CanLII).  

It is also enshrined in various forms of legislation. It means that when an industrial operator is found to have caused loss to its neighbors it must compensate them for such loss regardless of whether there was negligence or not. This strict liability rule (a feature in many common law jurisdictions) has most recently been applied in a class action suit involving nickel contamination. The impact zone within which such losses will be considered varies from case to case.

Essentially, the polluter pay principle is a generic way of describing a class of private civil remedies that includes nuisance, trespass, and negligence. These are legal tools that are used in most cases after damage has been done except where injunctions and other interlocutory measures are used to stop harmful actions before they begin or while they are in  progress.  They really represent the failure of prevention.

Conclusion

A public health ethics analysis of how IWTs should be licensed and installed if the health of the few is to be balanced with, traded off or sacrificed for the health of the many, leads to the conclusion that the present methods of proposal evaluation need to be critically reviewed.

The only type of test that present methods would easily pass is “strong paternalism”—the argument that the State knows best. But this justification for public health measures enjoys little support in a free and democratic society. With regard to the broader issue of governmental legitimacy and IWTs we are confronted with an even more profound problem. State actions that do not enjoy the active consent of the people—particularly of those whose health may be adversely affected by IWTs—are fundamentally suspect.

Administrative law systems that stray from the principles of natural justice held to underlie them are also suspect because such departures are in conflict with the Rule of Law. Unfortunately, we do not find ourselves in this situationa as a result of any one remediable action or default on the part of government but rather as a result of a gradual erosion of our collective capacity to hold government accountable.

IWT licensing procedures in whatever jurisdiction are a bellwether of the fate of democracy itself and therefore should be closely examined against the criteria suggested in this article, and in particular against the criterion of procedural fairness and active consent advocated by Rawls.  Several tools present themselves as proactive means of addressing perceived threats to procedural fairness and active consent: the Precautionary Principle, the Least Impactful Means Test (supported by the more general jurisprudence of the Proportionality Test), and the Neighbor Principle (drawn from the more specific requirements of the Social Impact Zone Test).

Converted into criteria for evaluation of IWT license applications, these principles and tests represent a formidable array of protections against arbitrary governmental action. That said, conversion into practical evaluative tools will require creative thinking and benign intent if we are to emerge with a more robust spine to our system of governance and administrative law.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Bio

Martin Shain S.J.D. is trained in law and social sciences.  He is principal and founder of the Neighbour at Work Centre® and assistant professor at the Dalla Lana School of Public Health, Occupational and Environmental Health Division, University of Toronto.

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: