Canadian Environmental Law Association at 50: Battling for liveable planet, equity

Theresa McClenaghan

The year 1970 was auspicious for environmental protection. The public was becoming aware of the devastation being caused to our natural environment from toxic chemicals like DDT, and the travesty to the community at Grassy Narrows, Ont., arising from mercury contamination of the fish and water on their traditional lands from unregulated emissions from pulp and paper mills.

Use of chemicals had exploded as industry pivoted in the post-war years to find new consumer uses for the substances that had been invented to fight a war. The idea of “picture-perfect” green lawns arose as an ambition for many and pesticide use spread rapidly for both cosmetic and agricultural uses. Rachel Carson’s book Silent Spring galvanized the environmental movement in 1962 with her lyrical, scientifically impeccable spotlight on the impacts that widespread chemical use, particularly pesticides, were having on insects, songbirds and the natural food web. In 1970 the first Earth Day was celebrated and by 1970 the first environmental laws that were not only focused on conservation and parks began to be adopted across North America. Ontario’s Ministry of the Environment was established that year. 

In the meantime a group of law students at the University of Toronto gathered together to discuss forming an environmental law clinic that could help the groups that were arising to fight some of the environmental injustices that people were starting to see. Many of those visionaries who constituted Canadian Environmental Law Association’s (CELA) early staff and board members continue to strongly support CELA’s work today. CELA was one of the original clinics funded by Legal Aid Ontario at the time that the clinic system across Ontario was being established.

Originally under pilot funding, CELA then became permanently funded in 1978 as a legal aid clinic. From their original perch in a basement room in a university building (that was ironically found to be contaminated itself) CELA moved to new quarters, eventually finding itself housed in locations around the city of Toronto on Queen Street, College Street, Spadina Avenue and University Avenue. Occupying recycled buildings was always CELA’s ethic, most often old warehouses that had been reclaimed for offices, but most latterly with those buildings achieving a current cachet and needing more space to co-locate with other legal aid specialty clinics, we are now part of recycling a ’60s office building.

Today CELA has staff in various regions of Ontario, leading outreach in those areas to ensure that communities everywhere in the province can access our services. A few years ago, in a “back to the future” move, CELA established a permanent position for a northern services counsel, echoing the early days when CELA had an office in Sudbury. 

Looking at CELA’s archival material discloses the strong role CELA had as not only a pilot legal aid clinic in Ontario, but also as a pioneer of environmental law clinic work across Canada and in building the foundations of the environmental movement in Canada.

CELA’s efforts in western and eastern Canada eventually gave way to independently incorporated West Coast Environmental Law Association and the East Coast Environmental Law Association, both of whom are national leaders today in their own right. Similarly, other efforts revealed the need for an independent environmental think tank, giving rise to the Canadian Institute for Environmental Law and Policy, which existed for several decades. The CELA Foundation now houses its archives.

Another effort gave rise to the Canadian Environmental Defence Fund, which was established to help groups find and fund experts and lawyers for their cases; today Environmental Defence Canada is a renowned leader in fighting for environmental protection. While we claim no role in helping to establish the Sierra Legal Defence Fund which is now known as Ecojustice, we have collaborated closely over the years since they were founded, complementing each others’ work, as we do with environmental law centres at universities across the country. 

Over the years, CELA has been incredibly important in pushing for major improvements to environmental protection supported by law. Sometimes we have had to wait a long time to see the results of our early efforts. CELA called for a safe drinking water law in Ontario beginning in the 1980s; only after the Walkerton tragedy occurred 20 years ago did Ontarians get binding drinking water standards and a strong framework to protect most municipal drinking water. CELA called for laws to prevent “SLAPP” lawsuits for decades before the persistent work of our staff and others paid off in the adoption of an anti-SLAPP law a few years ago, better enabling the right of the public to participate in decisions that affect their environment without fear of meritless reprisals by proponents. Our cases and our law reform work often help local citizens groups, individuals and First Nations protect their drinking water and their air quality on site-specific issues. We pay attention to environmental safety issues, leading for example to the efforts for legal requirements that potassium iodide be pre-distributed around Canada’s nuclear power plants to protect children from some of the impacts of a potential accident.

Over the years CELA has taken a lead role in many cases of national import. Often as interveners, CELA’s work has frequently helped shape the ultimate outcomes and establish important precedents in cases such as the Supreme Court’s Hydro-Québec decision upholding federal constitutional jurisdiction over toxic chemicals, or in the Supreme Court’s SprayTech decision, supporting the ability of municipalities to act in favour of the health and well-being of their citizens under municipal jurisdiction (R. v. Hydro-Québec [1997] 3 S.C.R. 213; 114957 Canada Ltee (Spraytech) v. Hudson (Town) [2001] 2 S.C.R. 241).

Occasionally, CELA lawyers find themselves getting up to speed on an area of practice not on our usual plates, such as the interventions at the Federal Court of Appeal and the Supreme Court of Canada in the Harvard College matter, in which we raised the environmental impacts of patents on life forms, and argued that life forms are not patentable in Canada (Harvard College v. Canada (Commissioner of Patents) [2002] 4 S.C.R. 45). Today we are representing environmental and social justice organizations in arguing that the federal government has jurisdiction to act on one of the most pressing issues humanity faces, that of climate change, in the carbon pricing constitutional challenges. 

Our work brings a focus to the environmental health and justice aspects of environmental issues, often highlighting issues that decision makers and other actors do not appreciate are arising from our usual way of doing things. Our collaborative work with our sister clinic, the Advocacy Centre for Tenants of Ontario, on energy poverty through the Low Income Energy Network, and with public health agencies and other clinics on indoor environmental health for tenants through our RentSafe work are current examples of this focus on environmental justice.

As CELA reflects on turning 50, in the context of a global pandemic that is revealing the faults and fractures of our society in terms of our most vulnerable citizens, we are reflecting on how interconnected the planet is. All of our actions affect the environment, and environmental protection is essential to ensure that we maintain a liveable planet for people and for the rest of the ecosystem. CELA will continue focusing on how law helps achieve those goals, with a particular focus on the needs of the communities we represent to strive for ever-greater environmental equity.

Theresa McClenaghan is executive director and counsel Canadian Environmental Law Association.

Photo credit / Olga Turkas ISTOCKPHOTO.COM

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