Mois : septembre 2024

Par Ines El Ghnimi, étudiante en droit (Université de Sherbrooke)

Introduction

The worsening environmental issues have prompted companies to pursue the development and marketing of eco-friendly products, yet greenwashing has become the buzzword of our generation, a shiny label that companies slap on their products to appear eco-friendly while often doing more harm than good. But beyond the misleading labels and empty promises lies a far more insidious issue – the impact on First Nation communities. In Canada, where the fight for environmental justice and Indigenous rights is a daily reality, greenwashing is not just a marketing ploy; it’s a threat to livelihoods, cultures, and the very land these communities have guarded for centuries.

As law students, it’s crucial for us to peel back the corporate sustainability claims and scrutinize the actual real-world impacts in relation to transnational and national law and how different legislations hold these corporations accountable and protect the rights of First Nation peoples. If we don’t, who will? This isn’t just about trees and clean water; it’s about justice, equity, and the preservation of cultures and ways of life that are inextricably tied to the environment. So, let’s dive into greenwashing and explore how we can advocate for truth, transparency, and real sustainability in a way that also respects First Nation communities. This analysis will focus on two major issues: (1) greenwashing and the failure of corporate disclosure and transparency and (2) the violation of environmental rights and indigenous land protections and how Canada tends to protect its Indigenous communities.  

1. Unmasking Greenwashing: Failure of Corporate Disclosure and Transparency

Before diving into this, let me explain why I consider greenwashing to be an important concept that isn’t spoken of enough. One day, I was enjoying an iced coffee through a paper straw when it started turning mushy and useless. Frustrated, I vented about how unfair it is that everyday people like us have to shoulder the burden of saving the planet. My friends assumed I didn’t care about the environment, but that wasn’t true. My frustration stemmed from a genuine concern for our planet and our future. Despite our efforts to make small, eco-friendly changes in our lives, the impact feels insignificant when viewed in the grand scheme of things. The real culprits behind climate change aren’t individuals but large corporations, driven by capitalism, that are responsible for the majority of environmental damages.

The intensifying heatwaves that we experience is a harsh reminder of the urgent need for systemic change. This frustration inspired me to write about greenwashing, a deceptive practice where companies falsely promote their products as environmentally friendly. I was further motivated by Me Meritxell Abellan Almenara, a doctoral student and lifelong advocate for environmental Indigenous justice all across the world whose dedication to fighting for the right causes along with doctoral candidate Ms. Camille Lemarié who presented her research and doctoral subject on greenwashing to the class inspired me to further look into the issue.

But what exactly is greenwashing, and why do big corporations find it so appealing? To address these questions, we will first address the failure of corporate disclosure and transparency by (1.1.) defining greenwashing and connecting it to (1.2.) “environmentalism” to better understand why it still persists in an era when climate change threatens the viability of life on our planet. Lastly, we will identify (1.3) two primary forms of this practice: (1.3.1.) vagueness and (1.3.2.) label misrepresentation and different legislations attempting to mitigate its effects.

1.1. What is Greenwashing?

Although some authors view greenwashing as too broad of a concept with no clear-cut definition, we are able to establish a framework to better understand this practice and its impact on the world[1]. By misleading the public into believing that a company or any other entity is doing more to protect the environment than it is, greenwashing promotes false solutions to the climate crisis that distract from and delay concrete action. It can be defined as “disclosing environmentally friendly activities in advertising campaigns to divert attention from environmentally hostile practices[2].” It manifests itself in several ways – some more obvious than others. Tactics include vagueness by being non-specific about operations or materials used and the use of misleading labels like “green” or “eco-friendly” that lack standard definition[3].

1.2 Greenwashing and Environmentalism

So, why do big corporations find greenwashing so attractive? This practice began in the 1960s, a time when environmental awareness began to influence consumer behavior[4]. As green consumers emerged, businesses saw an opportunity to capitalize on this trend. Instead of genuinely adopting sustainable practices, many companies used deceptive green marketing to appeal to these eco-conscious buyers. To simplify, greenwashing’s appeal is literally based on “the rise of environmental movements targeting companies that harm the environment”[5].  Companies are using consumer’s good faith in being willing to pay extra for eco-friendly products!

1.3 Two Faces of Greenwashing

            Greenwashing often shows through various (and very) deceptive strategies. Among the most common ones are (1) vagueness in environmental claims and (2) misrepresentation of eco-labels, both of which can mislead consumers and undermine genuine sustainability efforts. In this section, we will explore these two key forms of greenwashing, examining how they operate and their challenges. We will also discuss how different legislations are stepping in to mitigate the impacts of these practices and protect both consumers and the environment.

1.1.1. Greenwash Vagueness

According to TerraChoice, vagueness, the third sin of greenwashing, is defined as “a claim that is so poorly defined or broad that its real meaning is likely to be misunderstood by the consumer[6]”. One example of being vague would be for a label to say “All-Natural”. This expression is so vague that consumers might just take it for what it says on the product they want to buy. This is a form of greenwashing because the product may appear all-natural because of this expression, but what is all-natural? This tactic makes the consumer believe they’re making a better or safer product choice. These products often evoke nature by using earthy toned colors and sounds of nature in commercials, which is a strategy known as “executional greenwashing[7]”: the use of “nature-evoking elements in advertisements to artificially enhance a brand’s ecological image[8]”.

1.1.2. Label Misrepresentation

            Label misrepresentation, the fourth sin of greenwashing[9] involves companies using misleading certifications to deceive consumers into believing their products have undergone legitimate green certification processes. These false labels are often paired with images of certifications, but they actually create an illusion of environmental responsibility.

Canada addresses greenwashing, particularly in label misrepresentation, through the Competition Act, which prohibits false or misleading representations[10] and deceptive marketing practices. The Act cover both criminal and civil regimes. Under the criminal regime, “knowingly or recklessly making materially false claims” can lead to fines[11] or imprisonment[12]. The civil regime allows courts to impose monetary penalties, require corrective notices or order restitution for consumers misled by deceptive practices. This legal framework will help ensure that companies are held accountable for misleading claims. 

            In the United States, many greenwashing claims have been brought under various Acts in different states. In the state of New York, the New York’s General Business Law which prohibits “deceptive acts or practices in the conduct of any business or any service[13]” in the state. California, home to a large environmentally conscious population, has also taken the necessary steps to making legal actions for greenwashing more impactful. The California Consumer Legal Remedies Act, the Unfair Competition Act, both have provisions on greenwashing. 

If you would like to know more about how Canadian environmental associations tackle this issue : click here!

One thing that really stands out to me is how much more challenging it seems to regulate “all-natural” claims compared to labels that are outright false or misleading. The vague nature of terms like “all-natural” allows for endless interpretations, making it difficult to pinpoint exactly what these claims mean. That’s the power of vagueness – it slips through the cracks, allowing companies to appeal to our desire for healthier, more eco-friendly choices without having to back it up with real facts. On the other hand, false labels are much easier to catch and regulate. When a product blatantly lies about what it contains, the deception is obvious, and governments can step in to hold these companies accountable. This leads me to the critical point of how greenwashing directly impacts First Nations communities while they often bear environmental and social consequences caused by these companies, without the general population knowing of these issues.

2. Green Lies, Indigenous Struggles: The Real Impact of Greenwashing

It’s deeply concerning how greenwashing by large corporations disproportionately harms these communities in Canada, often the guardians of their traditional lands. They’re frequently the first to suffer from the environmental degradation that accompanies corporate activities despite companies’ claims of being environmentally responsible. According to a report by the Canadian Association of Physicians for the Environment (CAPE), oil companies have been some of the worst offenders, using deceptive advertising to craft an image of sustainability while continuing harmful environmental practices that directly impact Indigenous peoples’ health and their lands[14] by polluting both water and land. The dishonest nature of greenwashing allows corporations to evade responsibility for their actions, masking the real environmental costs and making it harder for regulators and the public to hold them accountable[15]. This manipulation poses a threat to the environment, but it also infringes upon the rights of these communities who are often left to deal with the fallout of pollution on their lands and from a legal perspective, it is undeniable that this practice violates environmental laws and undermines the rights of Indigenous peoples guaranteed under treaties and Canadian law.

            However, Canada has been taking steps to address these issues, particularly by establishing partnerships that recognize Indigenous leadership in protecting the environment and combating climate change. According to the Government of Canada, Indigenous peoples are essential partners in climate action and this partnership is crucial if we want to uphold the very important legal duty our country has to consult and accommodate Indigenous communities in decisions affecting their lands and resources[16]. Section 35 of the Constitution Act of 1982[17] guarantees these rights*, but as discussed previously, greenwashing practices by corporations often bypass meaningful consultation, allowing for harmful projects to proceed on the name of sustainability[18]. For example, as explained by The Hill Times, Canada’s top banks have been financing fossil fuel projects that impact these communities’ lands while simultaneously branding themselves as leaders in sustainable finance[19]. Despite these legal frameworks, it is evident that we need stronger enforcement to make sure that the rights of Indigenous communities of Canada (and all around the world!) are respected and that we hold accountable these companies. It is important to note that this issue is not only isolated to Canada either. As discussed by Oil Change International, global oil companies have continued to increase their production while relying on carbon capture and other greenwashed methods to appear as though they are contributing to the energy transition while in reality, they are actually perpetuating harm to these lands and communities[20].

*During their first year of law school, all law students at the Faculty of Law at the University of Sherbrooke are required to take Constitutional Law II in which they have to read and analyze one particular decision[21] related to the principle of consent and negotiations between Indigenous communities and our Canadian government. If you would like to read it, here is the link.

Conclusion

Greenwashing isn’t just deceptive marketing – it perpetuates environmental harm and disproportionately affects First Nations communities. Corporations mask their unsustainable practices for money, leaving Indigenous people to suffer the consequences of environmental degradation and despite Canada’s legal frameworks, such as Section 35 of the Constitution Act, enforcement still remains weak, allowing these very harmful practices to continue.  While partnerships between the government and Indigenous communities are, yes, vital, they do fall short without any stronger regulatory oversight! In advocating for the truth and transparency, it is clear that law students, like myself and my peers, must continue to hold accountable any corporate practices and push for legal reforms that prioritize environmental justice, but only if it means protecting our Indigenous communities simultaneously, their traditions, their lands and their dignity.

In a world where corporate interests often overshadow environmental integrity, how long can we continue to ignore the deep scars of colonization and the enduring trauma inflicted on First Nations peoples before we truly reconcile with our past and honor their inherent rights to land, culture and justice?

A Final Reflection: Honoring the Strength Amidst Indigenous Trauma

It is no secret that Indigenous communities worldwide have endured countless atrocities due to mass colonialism – from Oceania (Australia and New Zealand) to Africa, from Canada to the remotest regions of Siberia, Russia. These communities have faced systemic racism (news flash: they still do – and if you’re curious to learn more, I’ve added articles on each of the regions mentioned), high suicide rates, substance abuse, low education and employment rates, and poverty[22]. Yet, despite their generational trauma, their resilience is inspiring. Their unwavering love, respect and commitment to protecting the nature they live in is truly a force to be reckoned with.

As Stephanie Joe from Pipikwan Pêhtâkwan public agency wrote:

“It’s important to remember that reconciliation cannot happen without the truth. When we speak of the truth in truth and reconciliation, it refers to the truth of how Indigenous Peoples have been treated by settlers and the Canadian government since the colonization of what is known as Canada”[23]. There is no reconciliation without truth and the process of amending years of colonization trauma starts with exposing corporations hidden behind greenwashing.

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[1] Naseem, Sarfaraz et al., “Greenwashing: A Threat to Sustainable Development”, Sustainability, 14:8 (2022), 4431, online: MDPI. https://www.mdpi.com/2071-1050/14/8/4431.

[2] United Nations, “Greenwashing”, United Nation, (2023), online: https://www.un.org/en/climatechange/science/climate-issues/greenwashing

[3] Ibid.

[4] Green Business Bureau, “The Seven Sins of Greenwashing”, Green Business Bureau, (2023), online: https://www.greenbusinessbenchmark.com/archive/7-sins-of-greenwashing.

[5] TerraChoice Yilmaz, M.B. & Baybars, B., “A Critical Perspective on Greenwashing Under the Roof of Corporate Environmentalism” in E. Mogaji et al., eds., Green Marketing in Emerging Economies, Palgrave Studies of Marketing in Emerging Economies, (Cham: Palgrave Macmillan, 2022), online: https://doi.org/10.1007/978-3-030-82572-0_6.

[6] TerraChoice, The Six Sins of Greenwashing, (2007), online: TerraChoice.

[7] Parguel, Béatrice, Florence Benoit-Moreau & Cristel Antonia Russel, “Can evoking nature in advertising mislead consumers? The power of ‘executional greenwashing’”, International Journal of Advertising, 34:1 (2015), 107-134.

[8] Ibid.

[9] TerraChoice, The Six Sins of Greenwashing, (2007), online: TerraChoice.

[10] Competition Act, RSC 1985, c. C-34, s. 52(1).

[11] Ibid. s.52(5)(b).

[12] Ibid. s. 52(5)(a).

[13] General Business Law, Deceptive acts and practices unlawful, NY Gen Bus L § 349(a) (2024).

[14] Canadian Association of Physicians for the Environment (CAPE), Report highlights greenwashing practices from Big Oil and Gas harming health, climate and affordability, (February 2024), online: CAPE. https://cape.ca/press_release/report-highlights-greenwashing-practices-from-big-oil-and-gas-harming-health-climate-and-affordability/.

[15] Earthjustice, “For Big Oil and Gas, Greenwashing is the New Climate Denial”, (12 July 2023), online: Earthjustice. https://earthjustice.org/blog/2023-july/for-big-oil-and-gas-greenwashing-is-the-new-climate-denial.

[16] Government of Canada, Indigenous Partnership for Climate Action, (last updated 28 April 2023), online: Government of Canada. https://www.canada.ca/en/environment-climate-change/services/climate-change/indigenous-partnership.html.

[17] Constitution Act, 1982, c. 11, s. 35.

[18] The Narwhal, “Competition Bureau investigates Greenwashing Practices by Major Corporations’, (10 june 2024), online: The Narwhal. https://thenarwhal.ca/competition-bureau-greenwashing-investigations/.

[19] Hill Times, “This Indigenous History Month, it’s time to hold Canada’s top bankers accountable”, (10 june 2024), online: The Hill Times. https://www.hilltimes.com/story/2024/06/10/this-indigenous-history-month-its-time-to-hold-canadas-top-bankers-accountable/424785/.

[20] Oil Change International, Big Oil Reality Check: Oil and Gas Companies Failing on Climate, (March 2024), online: Oil Change International. https://priceofoil.org/2024/03/01/big-oil-reality-check/.

[21] Tsilhqot’in Nation v. British Columbia, 2014, SCC 44, [2014] 2 SCR 257, online: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14246/index.do

[22] Statistic Canada, “Serious problems or disputes experienced by First Nations people living off reserve, Métis and Inuit living in the provinces”, Government of Canada, (March 2023), online: https://www150.statcan.gc.ca/n1/pub/41-20-0002/412000022023003-eng.htm

[23] Stephanie Joe, “What does Truth and Reconciliation mean to you?” pipkwan pêhtâkwan, (28 September 2022), online:  https://pipikwanpehtakwan.com/2022/what-does-truth-and-reconciliation-mean-to-you-1033