Environmental Rights and Canada’s Constitution

Our Conservative government’s recent penchant for gutting several decades’ worth of environmental rules all at once using the stealthy technique of omnibus legislation is no secret. Given this depressing reality, some Canadian environmentalists yearn to ground conservation in something more stable, more permanent, than mere statutory law.

Enter environmental rights.

Environmental lawyer David Boyd, author of The Environmental Rights Revolution and The Right to a Healthy Environment, makes a powerful case for directly and explicitly enshrining environmental rights into national constitutions. He notes that over 140 countries in all parts of the world now have constitutions that feature some form of environmental protection, finds a correlation between these provisions and strong environmental performance, and provides examples of these tools being put to work by regular people and enforced by the courts.

Unfortunately, Canada finds itself on the wrong side of this divide, making no mention of the environment in any of its constitutional documents. Accordingly, and contrary to our self-image, we tend to find ourselves situated near the bottom of OECD rankings on environmental measures. It is for this reason that David Boyd and many other Canadian environmentalists support some kind of green amendment to Canada’s Charter of Rights and Freedoms.

Three possible objections to this approach spring immediately to mind. First, it is often claimed that human beings ought to regard their relationship to the natural world from a perspective of duties, whereas national constitutions more often than not speak the language of rights. Would environmental rights take us in the wrong direction?

I prefer not to get bogged down too much in such symbolic considerations, as it is a well-known truism that every right has a corresponding responsibility. If Canada were to confer upon its citizens a constitutional right to a healthy environment, this would entail enforceable responsibilities to respect this right on the part of individuals, industrial polluters, and all levels of government. But if semantics are a concern, I would certainly not object to a constitutional amendment that characterizes sustainability as both a right and a duty.

Second, not everyone has equal access to the institutions of justice. Could it be that the environmental rights approach would provide remedies only for those who can afford to take the government to court?

The legal system’s inaccessibility is a serious problem for many poor people, but it is a problem that is neither created nor exacerbated by the idea of constitutionally enshrining protection of the environment. Much environmental destruction is so widespread and indiscriminate that virtually everyone suffers (although the poor are without doubt more vulnerable). However, even in those unjust cases where the cries of poor communities go unheard, the solution is not to prevent a potentially useful environmental remedy from coming into being, but to work all the more strenuously to reduce inequality and make the benefits of the legal system more widely available.

The third possible objection is that environmental laws are best left in the hands of democratically elected governments. To allow unelected judges to overturn any aspect of environmental governance put in place by Parliament, according to this argument, is anti-democratic.

This objection is routinely trotted out every time someone disagrees with a court decision, and in fact was commonly heard during the original debate over the adoption of the Charter of Rights and Freedoms. But if it is granted that the courts ought to be able to overrule the government on at least some occasions — and the majority of Canadians who support the Charter’s existence must believe this — then we should ask ourselves what makes it acceptable.

For me, it comes down to the issue of majority rule. In certain situations, even in a democracy, majority rule is not the appropriate way to settle things. Take individual and minority rights, for instance. Freedom of speech, freedom of religion, marriage equality, and Aboriginal rights are a few of the many areas widely considered to be none of the majority’s business, and hence offered explicit or implicit constitutional protection. I believe that the well-being of the natural world is entitled to the same protection, because not all relevant stakeholders are included in a democratic majority. Particularly glaring in their absence from the electorate are future generations and other species — entities who, it might be argued, have even more to lose from environmental destruction than the current generation of human voters.

Yes, for practical reasons it is necessary to secure the consent of the majority and its representatives in dealing with many environmental questions, but that should not give elected governments unlimited authority. For future generations and other species, as well as for ourselves, we must to some extent keep the long-term health of the natural world out of reach from the frivolous, short-term machinations of this or that government, to bestow upon the environment the same aura of almost inviolate importance as constitutionally protected civil liberties.

If only such environmental rights existed already, whining about foreign-backed radicals might be the extent of a government’s attack on the natural world, rather than a mere opening salvo.