Environmental Rights? Not in our Constitution!

Having recently started law school, I made the bold decision to expand my podcast listening tastes beyond “exclusively basketball.” Googling around for “law blog” (imaginative), I uncovered a podcast series called Sui Generis Radio. This series had particular appeal, being local to Halifax and small-scale (i.e. possibly student-run), I figured the issues would probably be ones of general interest, hopefully avoiding the kind of specialized analysis that would be beyond me.

The first podcast I listened to was on environmental rights. Podcast host Kyle Ereaux opened with the explanation that among the rights established in the 1982 Canadian Constitution, under the Charter of Rights and Freedoms, Canadians actually do NOT have the “right to a healthy environment.”

I was actually somewhat surprised to hear this. Obviously, law isn’t based on my personal intuition of what is right and moral, but nonetheless, a healthy environment does seem like something of which the collective consciousness of Canadians would approve. And I, perhaps, overvalued the degree to which “shared values of Canadians” would be enshrined in the Constitution. SO – this right doesn’t exist. Why not, and what to do?

The first person Ereaux interviewed was Kaitlyn Mitchell, a staff lawyer at EcoJustice, a national environmental law charity. Mitchell explained that the political culture of 1982 didn’t have the same level of environmental understanding and concern that we do today, which could have led to the omission of the right to a healthy environment.

Mitchell went on to note that while it is quite common today for countries to recognize their citizens’ rights to a healthy environment (over 100 countries have it explicitly, another 12 have it “implicitly” – more on that later) , that was not the case in 1982. So – How could we get it done?

Ereaux went on to invoke the “living tree” description of the Constitution. “It should be able to adapt with the times, and as we learn more things, address those issues.”

Mitchell described how some countries have explicit Constitutional protection (i.e. it’s written out clearly), but others have implicit protection. Essentially, a series of legal cases have been (relatively) consistently interpreted in favour of the opinion that the protection afforded by the right to a healthy environment is important.  That establishes a precedent, and so even if the right isn’t explicitly written out, it still exists in defence of Canadians.

In Canada, these challenges are often put forth under section 7 of the Charter of Rights and Freedoms, which guarantees “…life, liberty and security of the person.” Theoretically, a challenge could be made to a polluting corporation, or against a municipal/provincial/federal jurisdiction who is not upholding a certain degree of environmental standards, that they are negatively impacting the “life” of the individual or a group of individuals and therefore infringing upon their Constitutional rights.

Instinctively, I don’t favour this approach. From the very little I’ve learned so far, section 7 seems often invoked in Torts, essentially non-criminal civil disputes between an individual and a corporation, or between individuals. It seems almost like trying to leverage a technicality into creating a much bigger change. Just to my first glance, it doesn’t seem like the right tool to use.

There’s also the risk that each different challenge, even if successful, could be incredibly incremental. From what I understand, the Supreme Court, even if they support a challenge, can expressly articulate that their ruling shouldn’t be interpreted as broad precedent. They can specify that only cases with extremely similar fact situations should use the case as precedent, which would prevent successful challenges from creating an “implicit” right to a healthy environment, unless the Supreme Court diverged from its path to date, and heartily endorsed that right.

Are there other means?

The baseline for an explicit Constitutional amendment is known as the 7/50 formula. This means that at least seven provinces must be on board for the change, representing at least 50% of the population. However, getting seven provinces to concur could be a serious challenge. Granted, a Constitutional change is an unwieldy thing whose repercussions will echo in unpredictable ways. What impacts would a newly established right to a healthy environment have on construction, agriculture, transport, trade? Even if the right didn’t actually restrict those areas, might projects grind to a glacial pace under a flurry of legal challenges?

I can see how a change which grants environmental rights might receive particular pushback. There would be some obvious concerns voiced about how it might affect the functionality of a country’s economic viability. (My response to that would be to inquire whether other countries who’ve embedded the right have uniformly crashed and burned? But there is nonetheless a legitimate concern for both the predictable, and unpredictable economic impacts.) In light of this context, the likelihood of the provinces to agree on this seems low – if the federal government were even to suggest it.

The final interviewee on Ereaux’s podcast was a man named Silver Don Cameron, a long-time author and environmental activist. He proposed an interesting idea, although he wasn’t sure to whom it should be attributed.

“You could go to municipalities, and municipalities could make a declaration to environmental rights themselves [in their bylaws], and if you eventually got the momentum going across the country, it would, in fact, percolate up to provincial levels, and probably ultimately to the federal level at some future point.”

Municipalities, owing to their smaller size, sometimes have the freedom and desire to pioneer new ideas and see their effects. (A great compilation of creative municipal ideas can be found in Charles Montgomery’s book Happy City.) If a province like Nova Scotia or Manitoba saw three or four of its largest urban centres successfully implementing some kind of legislation around healthy environments, the province might consider adopting it for itself. Obviously, the legislation would have different effects and impacts depending on the level of government. If provinces – with larger populations and economies with more moving parts – were then able to implement the legislation in a positive way, some of the fear around the legislation might fade away.

As it stands, there is presently nothing in the Canadian Constitution giving us the right to a healthy environment, which actually makes us an exceptional country (and not in the good way). Rights could be granted through legal challenges on the basis of certain aspects of the Constitution, in the hopes that the Supreme Court will eventually stitch together an implicit recognition of that right. However, an explicit change to the Constitution could be made more palatable if this issue was raised and voted through the democratic process, from our smallest units of governments on up to the top. With one of his final remarks, Cameron summed it up well:

“The explicit, expressed will of the Canadian people. That’s the ultimate authority in any legislation.”




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