Debating Bill 23: An Act Respecting the Right to a Healthy Environment

On March 26, MLAs will vote on Bill 23, An Act Respecting the Right to a Healthy Environment. Bill 23 is a private member’s bill introduced by Green Party leader David Coon and shaped over nearly two decades by health advocates and environmental organizations.

During committee hearings, presenters from government, industry and the legal community argued the bill may duplicate or conflict with the Clean Air Act, Clean Water Act, and Clean Environment Act, suggesting reform should proceed through amendments to those statutes rather than recognizing a distinct statutory right — framing the issue as refinement, not structural change.

That argument sounds persuasive — until you examine how those laws operate in practice.

The real question is not whether New Brunswick regulates pollution. It does. The deeper question is whether residents have a recognized legal right to a healthy and ecologically balanced environment — and what happens when disputes reach the courts.

To answer that, look at how the statutes function: they regulate pollution, government enforces them, and courts step in after harm or to review ministerial decisions.

Start with the Clean Air Act. In R. v. Fraser Papers Inc., a pulp mill in Edmundston released pulp and liquor into the air after a mechanical failure, spraying 19 homes and businesses. The company pleaded guilty. The case was brought by the Crown — the provincial government— not by neighbours or residents. On appeal, the issue was whether the $1,200 fine was too low. The structure was simple: harm occurred, government laid charges, and the court imposed a penalty.

Now consider the Clean Water Act. In R. v. Potacan Mining Co., a ruptured brine pipeline discharged concentrated salt water into the Hammond River, killing roughly 1,700 fish. The company pleaded guilty. Again, the prosecution was initiated by government. The court imposed a $3,000 fine, required monitoring improvements and ordered a $12,000 payment toward fish rehabilitation. The case focused on sentencing after a spill — not on enforcing a resident’s right to clean water.

Under the Clean Environment Act, the focus remains government centered. In Mr. Shredding Waste Management Ltd. v. New Brunswick (Minister of Environment and Local Government), the court reviewed a decision made by the Minister under the Act. The issue was not pollution charges but whether the Minister had acted within statutory authority. The court’s role was to assess reasonableness — not to determine whether a resident’s environmental right had been violated.

Across all three Acts, the pattern is clear: the laws regulate pollution, government enforces them, and courts intervene after harm occurs or to review ministerial decisions. Residents do not have a statutory right to a healthy environment they can assert in court.

That is the gap Bill 23 is designed to address.

Think of it this way. Imagine a province with traffic laws: speed limits, stop signs, fines for reckless driving. When someone breaks the rules, police lay charges and a judge imposes a penalty. That is how New Brunswick’s environmental statutes operate — they regulate conduct and authorize government enforcement.

But traffic rules regulate behaviour; they do not declare that residents have a legal right to safe roads.

Now imagine a statute recognizing such a right. It would not replace speed limits. It would change the framework. If a highway were built without guardrails along a dangerous cliff, a resident could argue that the design violates a legal right — not merely that a regulation was misapplied.

That is the structural difference Bill 23 would introduce.

When residents challenge an environmental decision, they encounter a gatekeeping rule called standing — the court’s threshold question: do you have the legal right to bring this case? Under current statutes, enforcement is channeled through government, not residents. The Clean Air Act allows any two adult residents to request that the Minister investigate an alleged offence, but the Minister decides whether anything proceeds. The Clean Water Act likewise keeps the key levers in government hands, including court actions that can only be started by the Minister. In practice, residents can complain — government controls the response.

Bill 23 would alter that structure. Section 24(1) would give any New Brunswick resident standing to seek judicial review where their statutory right to a healthy and ecologically balanced environment is alleged to have been infringed — even if they are not directly affected. Instead of persuading a court they meet the legal test for standing, residents would assert a legislated right. That does not guarantee success, but it changes the starting point.

New Brunswickers have seen how this framework operates in real life. In Richibucto, residents complained for years that odors from the Coastal Shell Products facility were affecting homes and a nearby school. The issue was addressed through the regulatory system: complaints were filed, inspections conducted, operating conditions adjusted, and decisions made by the Minister under the Clean Air Act. Some residents turned to private nuisance lawsuits. But throughout, the legal question was whether the company was complying with its approvals — not whether residents could assert a statutory right to clean air. Bill 23 would not predetermine outcomes but would change the legal lens through which such disputes are assessed.

So is Bill 23 redundant? Only if recognizing a legal right is the same as issuing permits or laying charges. It is not. The Clean Air Act regulates emissions. The Clean Water Act regulates discharges. The Clean Environment Act governs approvals and enforcement. Bill 23 would add something different: a statutory right to a healthy and ecologically balanced environment that frames how those laws are interpreted and applied. It would not replace the regulatory system. It would give it a rights-based foundation. On March 26, MLAs must decide whether environmental protection in New Brunswick should remain solely a matter of regulatory enforcement — or whether residents should also hold a recognized legal right that shapes future decision-making.

Jean Louis Deveau recently completed his law degree at the Université de Moncton and writes on environmental and Indigenous law.