Should we include the environment in the Constitution?

As we have discussed, numerous countries have already incorporated environmental rights into their respective constitutions. So, should Canada follow suit?

In this section, we will go through some of the pros and cons that have been raised in debates over the potential amendment of our Canadian Constitution. While you read them, try to see if you can come up with any other arguments for or against the idea.

Pros: Let’s Include Environmental Protection in the Canadian Constitution

1. In 2016, the Conference Board of Canada ranked Canada’s environmental performance as third to last amongst 16 peer countries, awarding it a “D” grade on their Environment Report Card. [1] The inclusion of environmental rights in our constitution would help to improve Canada’s poor environmental rankings by bringing environmental issues to the forefront of Canadian law and policy. This is quite significant due to Canada’s past poor performance in environmental health indicators.

2. Currently, one of the key provisions of the Canadian Charter can be found in Section 7. This section guarantees that, “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.”[2] As of today, this section has not been expanded upon by the Supreme Court of Canada to include the right to a healthy environment. However, there is undoubtedly a connection between Section 7 and the right to a clean environment. “Without such an environment, life itself cannot be supported or at best may be prohibited (and our liberty consequently reduced) from certain areas, for example, entering industrial zones where the environment is so polluted it becomes toxic and dangerous to human health.” [3] Pollution-caused health effects and premature death are still extremely common in our Canadian society. [4] Ideally, an environmental rights section in the Constitution would be able to interact with the current Section 7 in order to protect human health and lower pollution based negative health effects.

3. Since 1982, the Charter has seen tremendous success in the protection of human rights. Often, these battles were fought over the expansion of rights which were not originally included in the Charter. Since the Charter’s inception, the majority of Constitutional litigation or legal battles have focused on defining and expanding the rights listed in the Charter and have been successful in doing so. The incorporation of environmental rights would likely see the same success, success which could be measured in both increasing environmental legislation and a shifting political culture in favour of environmental protection. The Charter is one of the most well-known and well-respected pieces of legislation in all of Canada and with its notoriety it also holds some degree of moral authority. Inclusion in the Constitution and the Charter, in particular, would extend this moral authority to other environmental laws, potentially increasing respect and providing them with more legitimacy. [5]

4. The Supreme Court of Canada has repeatedly called for more incorporation of indigenous law into the Canadian legal system. In fact, the highest court in the land has argued that this would be an important step in the process of reconciliation. Incorporation of environmental protection in the Canadian Constitution could be one proactive and relevant step towards this goal, as many indigenous groups across Canada consider the Earth to be a sentient being and have been involved in the fight for environmental rights countless times. [6]

5. More than 100 nations across the globe have already made this constitutional change and since then, citizens have since been able to rely on these constitutional provisions to fight legal challenges that they would otherwise have been barred from participating in. See the previous page on Norway, Costa Rica, and France, for a few examples.

6. A number of polls and surveys show that the majority of Canadians believe that incorporating environmental rights into the Constitution would be a positive step for Canadian laws. Our legislators work for us, the citizens, and we can push for them to turn this majority opinion into law. [7]

7. Constitutional protection may help in preventing environmental racism, which is defined as, the siting of hazardous waste sites or polluting industries in areas inhabited mainly by Indigenous peoples and other minorities. [8]

To read more about this topic, check out our section on Environmental Justice here.

Cons: The Constitution is not the Proper Place for Environmental Laws and Regulation

1. Courts are reactionary – this means that the courts only act after an infraction has already occurred. They cannot prevent something from happening, rather they can only impose consequences on those who break the rules. Although this can be a significant deterrent because most people do not want to be caught on the wrong side of the law, when it comes to protecting the environment, reaction rather than proactive action may not be enough.

2. India can provide us a with a good example of one of the ways that the incorporation of the right to a healthy environment into a Constitution can go awry. Although countries such as Norway and France have had positive track records since incorporating environmental protection into their constitution, India has not. In India, the section guaranteeing a right to a healthy environment was relegated to a purposive and policy section of the Constitution rather than being included as an enforceable provision. It is non-justiciable, which means that it cannot be dealt with in the courts. [9] This meant that although India could claim to have a constitutionally protected right, it did not provide citizens with any recourse if this right was infringed upon, nor did it in fact improve environmental standards. This demonstrates that in certain instances, there is a disconnect between constitutional principles and enforcement on the ground. This serves to demonstrate that in order to be truly effective, a constitutional right also needs to provide for how it can be enforced and protected.

3. As you know, Canada is a democratic country. This means that we get together to elect our parliamentary leaders – both provincially and federally. However, our judges are appointed not elected. There is some concern that including environmental protection in the Constitution will take the control over environmental laws away from elected officials and put too much power into the hands of unelected judges. This argument stresses that changes to environmental law should come in the form of regulation and legislation, written by elected officials, rather than the constitution. [10]

What do YOU think? Should the Canadian Constitution be amended to include environmental protections?
Now that you have an overview of where and how we get environmental law, check out some of our topical discussions which look more closely at specific areas of environmental law.

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[1] Conference Board of Canada, Press Release, “D” Grade for Canada on New Environment Report Card” (21 April 2016) online: http://www.conferenceboard.ca/press/newsrelease/16-04-21/%E2%80%9Cd%E2%80%9D_grade_for_canada_on_new_environment_report_card.aspx.

[2] Canadian Charter of Rights and Freedoms, supra note 28, s 7.

[3]  Colin P. Stevenson, “A New Perspective on Environmental Rights after the Charter” (1983) 21;3 Osgoode Hall LJ 390 at 413.

[4] David R. Boyd, “The Constitutional Right to a Healthy Environment” (28 February 2013) LawNow online: http://www.lawnow.org/right-to-healthy-environment

[5] David R. Boyd, “The Constitutional Right to a Healthy Environment”.

[6] David R. Boyd, “The Constitutional Right to a Healthy Environment”.

[7] Colin P. Stevenson at 397.

[8] Dr. Benjamin F. Charles Jr., “Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites” (1987) Commission for Racial Justice United Church of Christ at xiii online: https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/legacy_url/13567/toxwrace87.pdf?1418439935.

[9] Kyle Burns, “Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement” (2016) Georgetown Environmental LR, https://www.wmelpr.com/wp-content/uploads/2016/10/VELJ-ELRS-Submission-Fall-2016.pdf.

[10] David R. Boyd & Emmet Macfarlane, “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. Should Environmental Rights be in the Constitution?” (3 March 2014) Policy Options online: http://policyoptions.irpp.org/magazines/opening-eyes/boyd-macfarlane/

 

 

 

The Canadian Constitution And Environmental Law

Lesson Plan: Fundamentals of Environmental Law
Lesson Plan: Canadian Charter of Rights and Freedoms
Lesson Plan: Tragedy of the Commons
Lesson Plan: Climate Litigation

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