Simon's Megalomaniacal Legal Resources

Environment - Precautionary Principle

. Canada (Attorney General) v. Responsible Plastic Use Coalition [precautionary principle]

In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against a successful industry-brought JR against "the GIC’s [SS: Governor in Council's] order and the Minister’s [SS: of the Environment and Climate Change] decision to not constitute a" Board of Review respecting the CEPA listing of plastics as a toxic.

The court considers the 'precautionary principle', here as embodied in the CEPA:

[66] The 1999 amendments expanded the range of substances canvassed by CEPA and introduced Part 4 "“Pollution Prevention,”" which aimed at fortifying CEPA’s ability to pre-empt environmental harm. The precautionary principle was also established as a binding administrative duty under paragraph 2(1)(a) and the "“ecosystem approach”" was embedded in a new paragraph of the preamble. The addition of "“biological diversity”" and "“environment”" in section 64 introduced the assessment of harm to ecosystems and reflected Canada’s increasing obligations under international environmental commitments (see, for example, the 2018 Ocean Plastics Charter, which commits G7 nations to greater plastics stewardship).

....

[74] The precautionary principle is a mandatory consideration in the GIC’s administration of CEPA, 1999 (para. 2(1)(a)), along with the duty to "“act expeditiously and diligently to assess [substances]”" (para. 2(1)(k)). Paragraph 2(1)(a) stipulates that full scientific certainty shall not be a reason to postpone cost-effective measures to prevent environmental degradation where there are threats of serious or irreversible damage. The addition of the word "“may”" throughout section 64 in the 1999 amendments to CEPA infused the precautionary principle into the scheme’s framework for controlling toxic substances, underscoring CEPA, 1999’s risk-based approach to thwarting environmental harm before it occurs.

. Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard)

In Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR dismissal, here brought against "a decision made by the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister) on February 17, 2023, to refuse to re-issue aquaculture licenses to salmon farms operating in the Discovery Islands".

Here the court cites some case-relevant provisions of the Fisheries Act, including the statutory 'precautionary principle':

[32] Of note are the following considerations that the Minister must consider when making decisions in furtherance of the powers conferred by the Act:

Fisheries Act, R.S.C. 1985, c. F-14

Loi sur les pêches, L.R.C. (1985), ch. F-14

2.4 When making a decision under this Act, the Minister shall consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

2.4 Le ministre prend toute décision sous le régime de la présente loi en tenant compte des effets préjudiciables que la décision peut avoir sur les droits des peuples autochtones du Canada reconnus et confirmés par l’article 35 de la Loi constitutionnelle de 1982.

2.5 Except as otherwise provided in this Act, when making a decision under this Act, the Minister may consider, among other things,

2.5 Sauf disposition contraire de la présente loi, dans la prise d’une décision au titre de la présente loi, le ministre peut prendre en considération, entre autres, les éléments suivants :

(a) the application of a precautionary approach and an ecosystem approach;

a) l’application d’approches axées sur la précaution et sur les écosystèmes;

(b) the sustainability of fisheries;

b) la durabilité des pêches;

(c) scientific information;

c) l’information scientifique;

(d) Indigenous knowledge of the Indigenous peoples of Canada that has been provided to the Minister;

d) les connaissances autochtones des peuples autochtones du Canada qui lui ont été communiquées;

(e) community knowledge;

e) les connaissances des collectivités;

(f) cooperation with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement;

f) la collaboration avec les gouvernements provinciaux, les corps dirigeants autochtones et les organismes — de cogestion ou autres — établis en vertu d’un accord sur des revendications territoriales;

(g) social, economic and cultural factors in the management of fisheries;

g) les facteurs sociaux, économiques et culturels dans la gestion des pêches;

(h) the preservation or promotion of the independence of licence holders in commercial inshore fisheries; and

h) la préservation ou la promotion de l’indépendance des titulaires de licences ou de permis dans le cadre des pêches côtières commerciales;

(i) the intersection of sex and gender with other identity factors.

i) l’interaction du sexe et du genre avec d’autres facteurs identitaires.

[33] One of the responsibilities of the Minister, as head of the DFO, is to regulate aquaculture operations. The department is responsible for issuing all aquaculture licenses for marine finfish, including aquaculture licenses necessary for the operation of salmon farms. According to subsection 7(1) of the Act, the Minister may, "“in his absolute discretion”", issue such licenses. The breadth of that discretion is obviously not unlimited, and it must be exercised in keeping with the Minister’s overarching duties to manage and conserve fisheries. Operators also require introduction and transfer licences to transfer fish into or between aquaculture sites, pursuant to section 56 of the Fisheries (General) Regulations, SOR/93-53 (the Regulations). It is worth noting that receiving a licence pursuant to that provision does not imply or confer any right to be issued a licence in the future: see subsection 16(2) of the Regulations; Anglehart v. Canada, 2018 FCA 115 at paras. 28 and 44-46.

. Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard)

In Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR dismissal, here brought against "a decision made by the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister) on February 17, 2023, to refuse to re-issue aquaculture licenses to salmon farms operating in the Discovery Islands".

Here the court considers the statutory 'precautionary principle' set out in the Fisheries Act (and elsewhere):

[83] I agree with the Federal Court that these reasons are more than sufficient and adequate to explain why the Minister decided not to adopt DFO’s recommendations. As previously mentioned, the Minister was explicitly entitled to consider the application of a precautionary approach in making her decision to renew Mowi’s licences or not (see ss. 2.5(a) of the Act). This principle, which is derived from environmental law, has been codified in many domestic statutes, including the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6), the Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, para. 2(1)(a), Federal Sustainable Development Act, S.C. 2008, c. 33, subpara. 5(a.1)(iii), Canada National Marine Conservation Areas Act, S.C. 2002, c. 18, ss. 9(3), Pest Control Products Act, S.C. 2002, c. 28, ss. 20(2), Endangered Species Act, S.N.S. 1998, c. 11, para. 2(1)(h) and ss. 11(1), Health Protection and Promotion Act, R.S.O. 1990, c. H.7, ss. 77.7(2). This principle is to the effect that "“when there is a risk of serious or irreversible environmental damage, one should err on the side of caution even when there is not full scientific certainty with respect to the risk”": Bergen Ministerial Declaration on Sustainable Development (1990), as cited in 114957 Canada Ltée (Spraytech Société d’arrosage) v. Hudson (Town), 2001 SCC 40 at para. 31. The more serious the risk is, the earlier a decision maker may intervene to prevent its occurrence. It stands to reason that when a risk is particularly threatening and could have dramatic impacts were it to materialize, less will be required in terms of probabilities to justify offsetting measures.

. 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)

In 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) (SCC, 2001) the Supreme Court of in an historic environmental case, considered the international 'precautionary principle' where a Quebec town by-law restricting pesticide use to non-cosmetic purposes:

30 To conclude this section on statutory authority, I note that reading s. 410(1) to permit the Town to regulate pesticide use is consistent with principles of international law and policy. My reasons for the Court in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 70, observed that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. As stated in Driedger on the Construction of Statutes, supra, at p. 330:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]

31 The interpretation of By-law 270 contained in these reasons respects international law’s “precautionary principle”, which is defined as follows at para. 7 of the Bergen Ministerial Declaration on Sustainable Development (1990):

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Canada “advocated inclusion of the precautionary principle” during the Bergen Conference negotiations (D. VanderZwaag, CEPA Issue Elaboration Paper No. 18, CEPA and the Precautionary Principle/Approach (1995), at p. 8). The principle is codified in several items of domestic legislation: see for example 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).

32 Scholars have documented the precautionary principle’s inclusion “in virtually every recently adopted treaty and policy document related to the protection and preservation of the environment” (D. Freestone and E. Hey, “Origins and Development of the Precautionary Principle”, in D. Freestone and E. Hey, eds., The Precautionary Principle and International Law (1996), at p. 41. As a result, there may be “currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law” (J. Cameron and J. Abouchar, “The Status of the Precautionary Principle in International Law”, in ibid., at p. 52). See also O. McIntyre and T. Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997), 9 J. Env. L. 221, at p. 241 (“the precautionary principle has indeed crystallised into a norm of customary international law”). The Supreme Court of India considers the precautionary principle to be “part of the Customary International Law” (A.P. Pollution Control Board v. Nayudu, 1999 S.O.L. Case No. 53, at para. 27). See also Vellore Citizens Welfare Forum v. Union of India, [1996] Supp. 5 S.C.R. 241. In the context of the precautionary principle’s tenets, the Town’s concerns about pesticides fit well under their rubric of preventive action.