The case for constitutional environmental rights
Nine in 10 Canadians believe the Canadian Charter of Rights and Freedoms should protect their right to live in a healthy environment. It doesn’t, and the question is whether it’s worth the effort to try to amend the Constitution to include it.
Everyone knows changing the Charter is a huge challenge. But as is often the case, the hardest things are the most worth doing. Efforts to expand the scope of human rights often seem almost impossible in the beginning. Ask abolitionists, suffragettes or other civil rights activists.
The right to live in a healthy environment enjoys constitutional protection in more than 100 countries, from Norway and Finland to Brazil and Costa Rica. Empirical evidence demonstrates that this can be a game-changer. Adding environmental rights and responsibilities to a constitution leads directly to enactment of stronger environmental laws, improved enforcement of those laws, increased public participation in environmental decision-making and preventing roll-backs of key environmental laws. Most importantly, it also leads to better environmental outcomes.
For example, industrialized countries with constitutional environmental rights and responsibilities have reduced air pollution and greenhouse gas emissions faster than their counterparts. They perform better on comprehensive indices of environmental performance. Recent peer-reviewed articles by American economists conclude there is a cause-and-effect relationship between the constitutional right to a healthy environment and improved environmental performance.
France represents a particularly compelling example. For hundreds of years, the French Constitution was silent on the environment. When President Jacques Chirac proposed a constitutional Environmental Charter in 2001, people scoffed. But after adding the Environmental Charter to its constitution in 2005, France passed world-leading laws on fracking, pesticide use and disposable plastic items. In the Conference Board of Canada’s environmental performance rankings, France has climbed from the middle of the pack a decade ago to the top (while Canada still languishes near the bottom).
Norway offers useful lessons since it is a major oil and gas exporter like Canada. Environmental rights and responsibilities were added to the Norwegian Constitution in 1992. Since then, Norway’s oil and gas industry has flourished despite facing the world’s strongest environmental regulations. In the mid-1990s, the Norwegian petroleum industry was dumping millions of kilograms of toxic chemicals into the ocean. Norway proposed a law requiring the industry to achieve zero marine discharge of those chemicals. There was a predictable outcry about job losses and economic harm. The government pushed forward with the tough new rules. A decade later, the oil and gas industry was meeting the targets. On the economic side, Norway’s tax and royalty regime directs a much larger share of oil and gas revenue to the public purse, enabling the development of a sovereign wealth fund now worth more than $1.2 trillion.
There is no doubt that constitutional environmental rights and responsibilities are a potentially powerful catalyst for environmental progress. Would they benefit Canada?
International comparisons show that Canadian environmental laws, policies and performance lag behind other wealthy industrialized countries on a wide range of indicators. The World Health Organization and Canadian Medical Association report that environmental risk factors — including air pollution, contaminated food and water, and toxic chemicals in consumer products — cause a surprisingly high burden of death and disease in Canada. Stronger environmental laws and policies could prevent thousands of premature deaths and millions of illnesses, and save billions of dollars.
Experience from other countries indicates that the primary beneficiaries of constitutional environmental rights are vulnerable communities that currently bear an unfair share of the pollution burden. In Canada, likely beneficiaries include Indigenous people, children and the one million low-income Canadians whose health is at risk because they live less than one kilometre from one or more major sources of industrial air pollution.
That brings us to the question of whether these potential advantages are worth fighting for despite the political difficulties inherent in changing the Charter. We believe so, even if it takes years to convince provincial and federal governments to collaborate in recognizing environmental rights. What better way to advance Canadian unity than the common goal of protecting the air, water, soil and ecosystems we depend on for our health and well-being? In the meantime, we continue working hard to build political support for stronger climate action, improved protection for nature and reductions in pollution and waste.
In response to the Blue Dot campaign led by the David Suzuki Foundation and Ecojustice, 150 Canadian municipalities have, over the past three years, passed declarations recognizing their residents’ right to live in a healthy environment. From Victoria and Vancouver to Toronto, Montreal and St. John’s, these communities represent more than 15 million Canadians.
A new generation of political leaders is rising in Canada. To them, environmental protection is a fundamental value, and recognizing the right to a healthy environment is a logical and practical step in the evolution of environmental and human rights law. Many of the mayors, councillors and citizens at the forefront of the municipal environmental rights campaign have bright futures in provincial and federal politics.
Establishing such rights in the Charter could also protect them from the whims of sort-sighted politicians. The recent U.S. election shows how quickly the political tide can turn and how a new administration can jeopardize decades of progress in a matter of months.
Protecting the people and places we love from environmental degradation is at the heart of who we are as Canadians. Amending the Charter to include constitutional environmental rights and responsibilities would strengthen our ability to achieve these vital goals. The mountain may be steep, but we have the will to climb it.
David R. Boyd is an environmental lawyer, professor, author; Alaya Boisvert is the manager of government relations at Blue Dot; Lynda M. Collins is a professor of law at the University of Ottawa; Kaitlyn Mitchell is a barrister & solicitor at Ecojustice.