David Boyd wants the right to clean air and water enshrined in the constitution. But Emmett Macfarlane says Parliament should be the arbiter of the environmental laws we need.

Enshrine our right to clear air and water in the Constitution

DAVID R. BOYD

It has largely been forgotten in the mists of our constitutional odyssey, but when Prime Minister Pierre Trudeau launched the drive to patriate and amend the country’s founding document in the late 1960s, one demand of the day was to entrench environmental rights in the new constitution. Widespread alarm about the dire effects of pollution had spawned an environmental movement that considered the protection of clean air, clean water and a healthy environment not just a desire, but a fundamental right.

We know how that turned out. The push to entrench environmental rights was subsumed in the maelstrom of national unity, and the lacuna haunts us to this day. If our political leaders had acted at that time upon people’s desires, Canada would have been at the forefront of a global tidal wave of constitutional protection for the environment.

The major question confronting those who advocate for constitutional recognition of environmental rights and responsibilities is whether it would make a practical difference. The answer is yes.

Evidence from around the world shows that constitutional environmental rights and responsibilities are a catalyst for stronger environmental laws, better enforcement of those laws and enhanced public participation in environmental governance. There is a strong positive correlation between superior environmental performance and constitutional provisions requiring environmental protection. Nations with green constitutions have smaller ecological footprints and have reduced air pollution up to 10 times faster than nations without environmental provisions in their constitutions.

Norway presents an interesting example of the effects of constitutional recognition of environmental rights and responsibilities, having added these provisions in 1992. Like Canada, Norway is a wealthy northern nation with a major oil and gas industry. Unlike Canada, Norway has strong environmental laws and has had a carbon tax for over 20 years. The combined effect of these progressive policies has been to reduce emissions, stimulate innovation and deliver excellent environmental and economic performance. Out of 17 large, wealthy, industrialized countries in the Conference Board’s comprehensive index of environmental performance indicators, Norway is ranked 2nd, while Canada is ranked a dismal 15th. Norway has also invested oil and gas revenues in a future fund worth nearly $900 billion, in contrast to Canada’s national debt of over $600 billion.

Critics fear that any move to constitutionalize environmental rights will require reopening and rekindling the struggles that have torn at national unity before. This fear is misplaced. Although Canada’s constitution is silent on environmental protection, the right to a healthy environment is already recognized in five provinces and territories. Quebec put the right into its Environmental Quality Act in 1978 and added it to its Charter of Human Rights and Freedoms in 2006. Ontario enacted a comprehensive Environmental Bill of Rights in 1993. Yukon, the Northwest Territories and Nunavut have modest environmental rights legislation. In 2011, with the unanimous support of the opposition parties, Parliament came very close to passing Bill C-469, the Canadian Environmental Bill of Rights.

While these laws are better than nothing, they are far weaker legally, politically and symbolically than constitutional recognition of the right to a healthy environment would be. The Constitution is our highest and strongest law, as all laws, regulations and policies must be consistent with it. On a deeper level, constitutions reflect the most deeply held and cherished values of a society. As a South African judge once stated in an oft-quoted court decision, ”A constitution is a mirror of a nation’s soul.”

A constitution is a mirror of a nation’s soul.

There are six compelling reasons why Canada needs to modernize its constitution to include the human right to live in a healthy and ecologically balanced environment.

First, Canada trails behind other countries when it comes to protecting the environment. There are the Conference Board’s rankings. As well, Simon Fraser University researchers ranked Canada’s environmental record 24th out of 25 nations in the Organisation for Economic Co-operation and Development. Our magnificent natural heritage is being eroded.

Second, our poor environmental record inflicts a high cost on human health and well-being. The World Health Organization estimates that 30,000 premature deaths and millions of illnesses in Canada each year are caused in whole or in part by environmental hazards. These startling figures are consistent with research done by the Canadian Medical Association estimating that air pollution alone causes tens of thousands of premature deaths and billions of dollars in preventable health care costs annually.

Third, the Constitution’s silence on environmental protection has been acknowledged as problematic for more than 100 years. Back in 1912, Prime Minister Wilfrid Laurier’s Commission on Conservation reported that constitutional uncertainty about environmental protection was undermining efforts to address water pollution. In 1997, the Supreme Court of Canada came within a whisker of striking down critical provisions of the Canadian Environmental Protection Act because of the absence of a clear constitutional basis for the law.

A fourth reason is that environmental rights and responsibilities have been a cornerstone of Aboriginal legal systems for millennia. For the Haida, the Anishinabek, the Mi’kmaq and others, the earth’s sentience creates corresponding rights and obligations for both humans and nature. As our Supreme Court has repeatedly observed, incorporating indigenous law into the Canadian legal system is an important step toward reconciliation with Aboriginal peoples.

Fifth, citizens in more than 110 nations  —  from Argentina to Zambia  —  currently enjoy a constitutionally protected right to a healthy environment. This includes northern industrialized nations such as Finland and France as well as environmental leaders like Norway and Costa Rica.

Finally, 9 in 10 Canadians polled by Angus Reid believe that governments should recognize their right to a healthy environment. Indeed, the same poll found that a majority of Canadians erroneously believe their right to a healthy environment is already included in the Charter of Rights and Freedoms.

Constitutional change is perceived as difficult in Canada, if not impossible after the Meech Lake and Charlottetown debacles. Yet there have been 11 amendments since 1982, including 2 revisions of the Charter. Narrow, focused changes that enjoy high levels of public support (like the right to a healthy environment) appear to have the best prospects. However, given the position of the current majority government, an environmental amendment is unlikely in the short term.

There are three ways that the right to a healthy environment could gain constitutional recognition in Canada:

  • direct amendment of the Constitution, requiring Parliament’s approval and the support of 7 of the 10 provinces, secured within a three-year period;
  • litigation resulting in a court decision that there is an implicit right to a healthy environment in section 7 of the Charter (which states the right to life, liberty and security of the person); and
  • judicial reference resulting in a court decision that there is an implicit right to a healthy environment in section 7.

Legal steps are already being taken along the constitutional path. A case is before the courts in Ontario in which Ada Lockridge and Ron Plain, members of the Aamjiwnaang First Nation, argue that the Ontario government’s decision to allow additional pollution from a Suncor refinery near their community violates their rights to ”life, liberty and security of the person” and equality under the Charter. In essence, their argument is that the Charter contains an implicit right to a healthy environment. Although they face an uphill battle, their case is buttressed by the fact that courts in at least 20 other nations have concluded that the right to life includes an implicit right to a healthy environment.

The judicial reference is a uniquely Canadian legal process through which governments have the power to ask courts to answer important legal questions. The process has been used over a hundred times to address controversial issues, including the ownership of offshore natural resources, the legality of Quebec secession and same-sex marriage.

One of the most famous judicial references is the landmark 1928 Persons’ Case, in which the federal government asked the Supreme Court to determine whether women were persons for purposes of being eligible for appointment to the Senate. The Court, infamously, said no. Following an appeal to the Judicial Committee of the Privy Council in the United Kingdom, common sense prevailed. Women were recognized as persons, and the case marked a watershed moment in the battle for women’s rights in Canada.

The lesson is clear: Any government  —  federal, provincial or territorial  —  can ask the courts whether the right to a healthy environment is implicit in the right to life. An affirmative answer would result in constitutional recognition of this fundamental human right, consistent with the stated values of the people of Canada.

In light of the remarkable international developments, broad public support and compelling reasons for Canada to move in this direction, now is the time to work toward securing constitutional recognition of environmental rights and responsibilities. Stepping stones toward the ultimate goal of constitutional reform may include environmental rights legislation or declarations at the federal, provincial, territorial and municipal levels.

Enshrining environmental rights and responsibilities in the Constitution is not a magic wand that would instantly solve Canada’s complex ecological challenges. But doing so would force Canadians and our governments to make sustainability a genuine priority, resulting in a greener, healthier, happier future. Its time has come.


Parliament, not the courts, should decide

EMMETT MACFARLANE

David Boyd presents a forceful and interesting argument in favour of enshrining environmental rights in the Constitution. However, the idea poses a litany of problems that ultimately call into question both its desirability and the legitimacy of some of his proposals for achieving it.

In making his case Boyd cites two key arguments. One calls out Canada’s poor environmental record relative to those of other industrialized nations; the other notes the health care burden associated with the impact of pollutants and environmental hazards. These are important points, making clear that Canada’s substantial environmental problems need to be addressed.

But it is not clear from these facts why rights are the appropriate solution. After all, Canada faces many important policy problems, including many that have significant implications for the health care system, such as an aging population, relatively high levels of obesity (Canada ranks sixth among OECD countries’ obesity levels) and poverty. By what standard do we determine when a given set of policy problems requires entrenching new rights in the Constitution?

Boyd’s answer is that constitutionalizing environmental rights will compel Canadian governments to improve their policies. It is a highly questionable assertion, for a number of reasons.

First, entrenching rights effectively transfers the decision-making authority to the courts. With respect to positive rights like the right to a healthy environment, there are good reasons to question whether judges have either the legitimacy or the competence to delve into the relevant policy issues. Determining what must be done to combat climate change, for example, involves weighing a host of factors like economic interests, the basic structure of the tax system and local versus national concerns, to name a few. This balancing act is more appropriately settled in democratic rather than legal forums.

Substantive policy debates should be conducted through state-society mechanisms of representative institutions and electoral politics. Courts are not well equipped to examine or understand the various policy instruments that might be brought to bear to ensure effective environmental policy, nor do they have the expertise to evaluate the medium- and long-term consequences of various policy options. By contrast, the elected branches have the resources of the bureaucracy at their disposal, as well as the time to engage in long-term policy analysis through legislative committee work and broader policy consultation processes.

Boyd notes that most nations (more than 110) enjoy a constitutionally protected right to a healthy environment. But it is unclear whether this is meaningful. These countries differ wildly with respect to their records on the environment. He points to Norway as a success story, but it is impossible to tell from his brief analysis whether Norway’s policies are derived from constitutionally entrenched rights or are simply derived from a political commitment to strong environmental policy.

By contrast, positive rights that many countries have entrenched in their constitutions — including welfare, housing and environmental rights — are far from successful. Despite attention-grabbing judicial decisions on these rights by courts in countries like South Africa or India, policies on the ground to actually enforce and protect them have proven illusory or entirely dependent on government action.

Environmentalists should focus on convincing governments, political parties and the public to pursue policies that will ensure environmental protection.

Second, a rights framework limits our capacity for meaningful political debate and compromise. Rather than focusing on policy issues and the balancing of interests, we find rights being increasingly invoked by one side or another, employed as a trump card. Other considerations are deemed less legitimate in the face of a claim that someone’s rights are being violated.

Moreover, this leads to inflationary calls for the expansion of rights. Progressive legal scholars argue that social welfare rights ought to be included in the Charter. Conservatives demand that property rights receive constitutional protection. Others propose that animal rights be considered.

These new rights often come into conflict with existing ones. And because constitutional rights are the purview of courts (at least in the eyes of some), the courts are increasingly called upon to resolve our most important political, social and policy disagreements. Politicians encourage this tendency by passing the buck. After all, why take political heat when the courts can be held accountable for tough decisions? This constant appeal to unelected arbiters is unhealthy in a democracy, where it should be expected that such challenges be addressed in the political sphere.

Boyd argues that the Constitution’s current lack of clarity on the environment is a significant problem, and he sees this opaqueness as an argument for entrenching rights. But the evidence he cites — a 1912 federal Commission on Conservation report and a 1997 Supreme Court case that ”came within a whisker of striking down critical provisions of the Canadian Environmental Protection Act because of the absence of a clear constitutional basis for the law” — is predicated not on the lack of constitutional rights but on the ambiguity of federal versus provincial jurisdictions over environmental policy. The 1997 Court decision Boyd refers to is a division of powers case. Indeed, even if environmental rights were a part of the Charter, this jurisdictional confusion would remain.

Yet the most problematic element of Boyd’s argument is the suggestion that courts ought to read environmental rights into the right to ”life, liberty and security of the person” section (section 7) of the Charter, through either a Charter case or a reference opinion.

Section 7 is the first provision in the ”Legal Rights” section of the Charter. It was originally intended to be limited to infringements relating to procedural aspects of the criminal justice system, and while the Supreme Court quickly determined that it applied to substantive issues, the justices have limited its application to the administration of justice, specifically those subject to a criminal process. The Court has, fortunately, refused (so far) to apply section 7 to positive social or economic rights, in part because some of the justices recognize the limitations inherent in their roles.

Legal scholars who would like to see a more expansive interpretation of the right to life, liberty and security of the person rely heavily on the idea of the Constitution as a ”living tree” — something that can grow and adapt to changing social realities. This makes sense when it means applying existing rights to new contexts. (It is why we can expect that freedom of expression will be protected on the Internet, even though home use of the Web did not become common until over a decade after the Charter’s entrenchment.) But a version of the living tree metaphor that allows judges to add entirely new rights to the Charter is unacceptable because it completely flouts the need for a supermajoritarian (and democratic) approval process for amending the Constitution.

Notably, one area of the Constitution where environmental rights may more reasonably be said to have been (indirectly) established is section 35’s Aboriginal and treaty rights. As Boyd notes, there are strong reasons to favour seeing indigenous understanding of the law as a part of broader constitutional interpretation in Canada, particularly as it relates to the rights of indigenous peoples. The environment is a cornerstone of those rights, given that the content of Aboriginal rights is intrinsically tied to the land and to traditional customs and activities like hunting and fishing. Nevertheless, even environmental rights that might emerge from a broad application of section 35 would necessarily be confined to the context of policies affecting indigenous peoples.

The only principled and legitimate way a new, broad right to a healthy environment might be added to the Charter would be through formal constitutional amendment, which is a very difficult process requiring substantial provincial consent (Parliament plus seven provinces representing at least 50 percent of the population).

Boyd notes that there have been 11 amendments to the Constitution since 1982, including two relating to the Charter, but these were all relatively minor changes (all but one were minor enough to fall under the less demanding formula of the amending process, requiring only Parliament’s approval or Parliament’s approval in conjunction with that of one other province). Adding new rights to the Charter would be a significant amendment and would likely precipitate wider demands from various provinces relating to constitutional reform, resulting in an unwieldy process unlikely to generate the sort of consensus that would be required for success.

None of this is to deny that Canada faces enormous environmental challenges. Successive governments have failed to address them in a resounding manner. The country’s size and diversity, the relative importance of its natural resource sector to the overall economy, and political culture and public attitudes are but a handful of factors that complicate decision-making when it comes to setting environmental policy.

However, none of these are sufficient reasons to effectively replace ordinary policy-making and political debate with judicial review of constitutional environmental rights. Rather than mobilizing for constitutional change, environmentalists should focus their energies on convincing governments, political parties and the public to commit to the pursuit of policies that will ensure environmental protection.

If they cannot do that, then how do they expect to convince these governments to enshrine those same commitments in the Constitution?


Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. He is the author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role (University of British Columbia Press, 2013).