E.H.P. v. Canada

This communication was filed by the chairperson of the Port Hope Environmental Group on behalf of the residents of Port Hope, Ontario, Canada.

From 1945 to 1952, Eldorado Nuclear Ltd., a federal Crown Corporation, disposed of nuclear waste in dumpsites within Port Hope, a town of 10,000 people. In 1975, large-scale pollution of residences and other buildings was discovered. The Atomic Energy Control Board (AECB), a licensing and regulating agency of the federal government, began removing the nuclear waste and relocating it to dumpsites outside of the town. At the time of the claim, these alternative dumpsites had been closed and the federal government was unwilling to assist in finding new locations to store the waste. As a result, approximately 200,000 tons of radioactive waste remained in Port Hope and was being stored in eight ‘temporary’ disposal sites near or directly beside residences.

The claimant argued that the presence of the waste was a threat to the life of present and future generations of residences in Port Hope because high level of exposure to radioactive material can cause cancer and genetic defects. They argued that the further removal of the waste by the AECB was being hampered by the failure of the Federal Government to make alternative dumpsites available.

The federal government responded that the removal of the nuclear waste was the responsibility of the owners of the eight disposal sites where the waste remained and therefore any cause of action should be launched against those parties. The government argued that the claimants had not exhausted all domestic remedies since they could have sought injunctive relief against the owners of the sites, which would be a speedy remedy, yet no legal proceedings had been launched at all by the claimant. They argued that since Article 5(2)(b) of the Optional Protocol to the International Covenant on Civil and Political Rights requires the exhaustion of all domestic remedies, the claimant’s case was inadmissible.

The petitioner contended that intervention from the United Nations Human Rights Committee was necessary to compel the Federal Government to remove the waste because domestic remedies were ineffective or impossible. Specifically, they claimed that litigation would be ineffective since the progressive onset of diseases from nuclear waste exposure made it difficult to prove that an injury occurred, there would be no way to compel the Federal Government to take action even if a claim succeeded, litigation would be impossible on behalf of future generations, and the drawn out process of litigation would mean that the waste would still remain in Port Hope for years.

The Committee held that the petitioner did have standing to submit the claim on behalf of the residents of Port Hope. The Committee treated the claimant’s reference to “future generations” as an illustration of the importance of the issues raised.

While the Committee held that the presence of nuclear waste was a serious issue, they concluded that the claimant had not exhausted all domestic remedies and the case was therefore inadmissible. The Committee found that the claimant could bring an action against the private owners of the dumpsites and Eldorado Nuclear Ltd. for compensation and a mandatory injunction. The claimant could also invoke Section 7 of the Canadian Charter of Rights and Freedoms which protects the “right to life, liberty and security of the person.” Therefore, the communication was inadmissible.

“The length of proceedings should not, in the submission of the State Party, be confused with ‘undue prolongation’. Whether, in a given case, proceedings would be unduly prolonged is a question of fact, not speculation. Only after having examined the particular circumstances of a case should the Committee pronounce itself on whether or not the application of domestic remedies has been unduly exhausted.” (Paragraph 4.5)

“The Committee observes that the present communication raises serious issues, with regard to the obligation of State parties to protect human life (Article 6.1). Nonetheless, before considering the merits of the case, the Committee has to determine, (a) whether the author of the communication has the standing to submit the communication and (b) whether the communication fulfills other admissibility criteria under the Optional Protocol, in particular the condition relating to the exhaustion of domestic remedies set out in article 5 (2) (b) of the Optional Protocol.” (Paragraph 8)

“The question as to whether a communication can be submitted on behalf of ‘future generations’ does not have to be resolved in the circumstances of the present case. The Committee will treat the author’s reference to ‘future generations’ as an expression of concern purporting to put into due perspective the importance of the matter raised in the communication.” (Paragraph 8(a))