The Right to a Healthy Environment Revitalizing Canada’S Constitution

The Right to a Healthy Environment Revitalizing Canada’s Constitution

...... David R. Boyd

“David Boyd helped Vancouver develop our bold plan for becoming the greenest city in the world, and with this authoritative and inspiring book he identifies a prerequisite for making Canada the greenest country. We owe it to ourselves, our children, and future generations to include the right to a healthy environment in the Canadian constitution.” – Gregor Robertson, Mayor of Vancouver, co-founder of Happy Planet

“David Boyd doesn’t just talk about a paradigm shift, he shows us a path to get there. This book will be important to environmentalists, legal scholars, and policy makers, and to everyone who cares about moving from rhetoric to action on climate and the environment. It is also inspiring and a very good read.” – Dr. Alex Himelfarb, Director of the Glendon School of Public and International Affairs, York University, and former Clerk of the Privy Council (2002-06)

“Boyd’s scholarship in environmental human rights is unmatched by any other scholar working in the field worldwide ... This book makes a profoundly important contribution to the fields of environmental law, human rights law, and constitutional law in Canada. The subject touches a matter of universally acknowledged importance to Canadians and the world at large.” – Lynda Collins, Common Law Section, University of Ottawa

“This book highlights that Canada, despite being a wealthy and developed country, lags significantly behind the rest of the world on environmental performance. There is a critical need for Canada to do more, especially from the point of view of protecting human health and well-being. This book explains why environmental rights for Canadians would provide the much-needed impetus for Canada to do more.” – Nickie Vlavianos, Faculty of Law, University of Calgary

• recognize that protection of the environment is a fundamental Canadian value

• understand that a healthy environment is essential to human well-being

• and take the actions necessary to achieve constitutional recognition of the right to live in a healthy and ecologically balanced environment.

– Ken Saro-Wiwa, 1995

We in Canada are fortunate that we can afford to have a civilization of the better rather than a civilization of the more.

– Pierre Elliott Trudeau, 1970

The Constitution is the expression of the sovereignty of the people of Canada. It lies within the power of the people of Canada, acting through their various governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory.

– Supreme Court of Canada, 1998

If we unbalance Nature, humankind will suffer. Furthermore, as people alive today, we must consider future generations: a clean environment is a human right like any other. It is therefore part of our responsibility towards others to ensure that the world we pass on is as healthy, if not healthier, than when we found it.

– His Holiness, the Dalai Lama, 1990

List of Figures and Tables / xi

Preface / xiii

Acknowledgments / xv

List of Abbreviations / xvii

1 Canada Needs Constitutional Environmental Rights / 1

2 The Pros and Cons of the Right to a Healthy Environment / 18

3 The History of Environmental Rights in Canada / 37

4 Green Constitutions in Other Countries / 67

5 Lessons Learned: Implementing Environmental Rights and Responsibilities / 90

6 International Law and Environmental Rights / 122

7 What Difference Would the Right to a Healthy Environment Make in Canada? / 146

8 Pathways for Greening Canada’s Constitution / 170

9 Prospects for Change / 191

Appendices

Contents Index /284 References /245 Notes /216 ...... Charter ofRightsandFreedoms/212 Appendix C:EnvironmentalCasesandSection7ofthe Appendix B:France’sCharterfortheEnvironment(2005)/210 Sample Material © 2012 UBC Press

...... Figures and Tables

FIGURES 4.1 Nations with environmental protection provisions in their constitutions / 69 4.2 Nations recognizing the constitutional right to a healthy environment / 75 4.3 Prevalence of environmental protection provisions in national constitutions / 88 6.1 Nations recognizing the right to a healthy environment / 143

TABLES 4.1 Year environmental provisions first included in national constitutions / 70 4.2 Year right to a healthy environment first included in national constitutions / 77 5.1 Constitutional provisions and ecological footprints / 109 5.2 Constitutions and environmental performance of OECD nations / 111 5.3 Constitutions and the Conference Board of Canada’s environmental rankings / 113 5.4 Constitutions and ratification of international environmental treaties / 114 5.5 Constitutions and changes in nitrogen oxide emissions / 117 5.6 Constitutions and changes in sulphur dioxide emissions / 118 5.7 Constitutions and changes in greenhouse gas emissions / 119 8.1 Canada’s population, by province and territory (2011) / 173 Sample Material © 2012 UBC Press Sample Material © 2012 UBC Press ...... Preface

This book is a sequel to The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press, 2012). The Environmental Rights Revolution represents five years of exhaustive research about the effects of including environmental protection provisions in national constitutions. In recent decades, the majority of the world’s nations have incorporated environmental protection requirements into their highest laws, declared the right to live in a healthy environment a fundamental human right, and thus created legal road maps for a sustainable future. Canada, sadly, is not yet among these nations. Our constitution remains silent on the subject of environmental protection. Nevertheless, I encourage readers to consult The Environmental Rights Revolution for the full (and inspiring!) details regarding the three-quarters of the world’s nations whose constitutions include environmental rights and/or responsibilities. Some readers may be cynical about the prospects of amending the Canadian constitution to recognize environmental rights and responsibilities. Canada’s constitution is notoriously difficult to amend, as the debacles of Meech Lake and the Charlottetown Accord demonstrated. To potential cynics I offer the following plea: Think about the Canada you are passing on to your children. Can we not emulate Sweden and Norway, similar northern nations striving to pass on to the next generation countries in which the most serious environmental problems have been solved? Think about the courageous individuals in Latin America who stood up to military dictatorships and then created bold new constitutions including environmental rights and responsibilities. Think about the brave people of Eastern Europe, who defied the Soviet empire and then rewrote their constitutions to include the right to a healthy environment. Think of the citizens of Africa, who cast aside the shackles of colonialism to gain independence and wrote constitutions that aspire to achieve the right to a healthy environment. Think of people in Egypt, Sample Material © 2012 UBC Press it’s done.” worth doing.AsNelsonMandelawrote,“Italwaysseemsimpossible,until difficult, even daunting, but surely so is almostbe everything that ismay tutional rightsandresponsibilities,wecanbuildtheCanadawant.It then sotoocanCanadians.Byconvertingourhighestidealsintoconsti dependence uponsafewater,cleanair,fertilesoil,andhealthyecosystems, foresight, courage,andintelligencetocreateconstitutionsrecognizingour more than140nations–ineveryregionoftheworldcansummon the righttoahealthyenvironmentandrightsofNature.Ifcitizens lapse andrewrotetheirconstitutionaspartofresponse,incorporating so. Think of the citizens of Iceland, who endured a complete economic col have enshrinedtherighttoahealthyenvironmentorareconsideringdoing of dictatorsandtheirreplacementwithconstitutionaldemocraciesthat fall Libya, Morocco,andTunisia,wheretherecentArabSpringledtodown xiv

Countless individuals made valuable contributions to this book. I am particularly indebted to three outstanding Canadians, each of whom has extensive expertise in the fields of constitutional law and environmental protection. Dale Gibson wrote a white paper on Canada’s constitution and the environment in 1970 as well as several pioneering articles on the constitutional right to a healthy environment in the 1980s. Jim MacNeill worked in the Privy Council Office in the early 1970s under Prime Minister Trudeau, publishing a comprehensive study on environmental management and its constitutional implications before going on to write the Brundtland Commission’s land- mark report on sustainable development, which emphasized the need to extend constitutional status to the right to a healthy environment. Barry Strayer was Pierre Trudeau’s constitutional advisor for fifteen years and is a retired Federal Court judge. I also benefited from enlightening conversations with environmental law experts who have written about the right to a healthy environment, including Will Amos, William Andrews, Lynda Collins, Stewart Elgie, Paul Muldoon, John Swaigen, Margot Venton, and Toby Vigod. I would like to thank some of the protagonists directly involved in the development and repatriation of Canada’s Constitution Act, 1982, for sharing their reflections and insights, including Lloyd Axworthy, Tom Axworthy, Jean Chrétien, Marc Lalonde, Svend Robinson, and Roy Romanow. My research also benefited from the assistance of P.G. Forest, Ron Graham, Leah Harms, Toby Heaps, and Sarah Miller. I genuinely appreciate the support provided by Jim Boothroyd, Lisa Gue, Tony Maas, Tim Morris, Carol Newell, Devon Page, Peter Robinson, and Terre Satterfield. To David Ohnona, Ken Rempel, Paul Richardson, and Ethan Smith, thanks for listening. I would also like to thank three anonymous peer reviewers who provided helpful suggestions and encouragement. Thanks again to the hard-working Sample Material © 2012 UBC Press book benefitedfromtheexpertiseofatalentedgroupfree Rielly, KerryKilmartin,LaraineCoates,andHarmonyJohnson.Finally,the tionship, includingRandySchmidt,PeterMilroy,AnnMacklem,Emily folks atUBCPress,withwhomIhavealong-standingandwonderfulrela xvi Martyn Schmoll. ing DeborahKerr,CherylLemmens,JennaNewman,IrmaRodriguez,and

CELA Canadian Environmental Law Association CEPA Canadian Environmental Protection Act EBR Environmental Bill of Rights, 1993 (Ontario) EC European Community ECHR European Court of Human Rights ENGO environmental non-governmental organization EU European Union GHGs greenhouse gases IACHR Inter-American Commission on Human Rights ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IUCN International Union for the Conservation of Nature MP Member of Parliament NDP New Democratic Party NGO non-governmental organization NOx nitrogen oxides OECD Organisation for Economic Co-operation and Development PCBs polychlorinated biphenyls SARA Species at Risk Act UK United Kingdom UN United Nations UNECE United Nations Economic Commission for Europe

All human beings have the fundamental right to an environment adequate for their health and well-being. – World Commission on Environment and Development, Our Common Future

Among the myriad responses to the mounting environmental challenges of the twentieth century and in particular their damaging effects on people’s health and well-being was the emergence of a new human right. The right to a healthy environment is intended to ensure that everyone has access to clean air, safe water, fertile soil, and nutritious food, as well as the conservation of biological diversity and ecosystem functions. Rachel Carson, author of Silent Spring, first suggested the concept in the early 1960s. Carson testified before President John F. Kennedy’s Scientific Advisory Committee, urging it to consider “a much neglected problem, that of the right of the citizen to be secure in his own home against the intrusion of poisons applied by other persons. I speak not as a lawyer but as a biologist and as a human being, but I strongly feel that this is or ought to be one of the basic human rights.”1 The first formal articulation of the right to a healthy environment came in the 1972 Stockholm Declaration, which emerged from the inaugural global environmental conference in Sweden: “Principle 1: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” Human rights are intended to recognize our most cherished values and express our moral identity as a people.2 A human right must possess three defining characteristics, in that it must be universal (held by all persons); moral (existing whether or not a particular nation, government, or legal Sample Material © 2012 UBC Press of humandignityandwelfare,tothefulfillmentotherrights.” the environmentasabasicconditionoflife,indispensabletopromotion of therighttoahealthyenvironment“wouldrecognizevitalcharacter human rights. “unpolluted air, unpolluted water, [and] adequate food” are among the basic of allhumanbeings). system recognizesit);andessential(ensuringthedignityqualityoflife 2 healthy environment needstobeenforceable tobeeffective.Alsolike all ing theprovisionofsafedrinking water.Likeallhumanrights,therighttoa right involvestakingpositive stepstoensurethatitisfulfilled,suchasensur ments totakestepsprevent thirdpartiesfromviolatingit.Fulfillingthe cannot takeactionsthatviolate theright. Protecting the right requiresgovern to respect,protect,andfulfillit.Respectingtherightmeans thatgovernments violations. Therightestablishesacorrespondingobli the right. to restbythewidespreadrecognition,implementation,andenforcementof vironment isalegitimatehumanrightappearstohavebeenconclusivelyput good ideatotakewishesforreality.” tempting to say that this is a right to which we are all entitled. But it is not a objective achieved–acleanandhealthyenvironment,forexampleitis their healthandwell-beingis...unimpeachable.” human beingshavethefundamentalrighttoanenvironmentadequatefor Environmental Rights,assertsthat“asamoralproposition,theclaimall systems forlife,health,andwell-being.TimHayward,authorof requirements. Asabiologicalspecies,allhumansdependonhealthyeco treaties anddeclarations(seeChapter6). ment, throughtheirconstitutions,laws,courtdecisions, orinternational world’s countries(177outof193)recognizetherightto ahealthyenviron environment hassteadilyincreased.Asof2012,atleast 92percentofthe recognition of the essential connection between human rights and a healthy right. air, likeotherwelfareaspirations,isbestunderstoodasagoal”ratherthan a fewscholarsquestionthelegitimacyofthisright.Millerclaimsthat“clean in decision making, and to seek remedies for past, present, or anticipated ensure thatitisfulfilled,includingtherightstoinformation, toparticipate tive righttoenvironmentalqualityandasuiteofprocedural safeguardsto The philosophicalquestionofwhetherornottherighttoahealthyen In practice, the right to a healthy environment includes both a substan 7 Similarly, Robertson and Merrills argue that “if one wishes tosee some ...... Canada Needs Constitutional Environmental Rights 9 Sincethedawnofmodernenvironmentalerain1960s, Sample 5 According to Birnie and Boyle, constitutional acknowledgment AccordingtoBirnieandBoyle,constitutionalacknowledgment 3 Therighttoahealthyenvironmentmeetsthesethree Material 8 © 2012 UBC 4 HenryShuewritesthat gation ongovernments Press Constitutional 6 Only ------...... 3 Fundamental 11 One can search 13 Press UBC The response, although long, evasive,long, although response, The 2012 12 © The logical argument for according constitutional The logical argument for according constitutional 10 Material Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada Sample Why is it important for the right to a healthy environment to be en- for the right to a healthy environment Why is it important Do Canadians have a constitutional right to live in a healthy environ healthy a in live to right constitutional a have Canadians Do ment? The answer, if you asked Canadians, would probably be yes. If you ment? The answer, if you asked Canadians, their bets, responding that thoughasked lawyers, they would probably hedge in the constitution, it may be implicit the right is not explicitly mentioned in another right, such as the right to life. What about the Canadian govern ment’s position? In 2006, a petition was filed with the federal commissioner the “Does asking, development, sustainable and environment the of Government of Canada recognize that Canadians have a right to clean water, environment?” healthy a and air, clean and convoluted, can be summarized in a single word: No. trenched in the constitution? A constitution is the supreme or highest law of A constitution is the supreme trenched in the constitution? it. It establishes the all other laws must be consistent with a nation, meaning relationships the defines powers, constrain government and guide that rules rights. A constitution also reflectsbetween institutions, and protects individual most cherished values, acting as a mir and reinforces a society’s deepest and human rights, it is not absolute but must be balanced with competing rights. with competing but must be balanced it is not absolute human rights, categories traditional confounds environment healthy a to right the Finally, individ- used to protect negative (liberty) right, rights. It is both a of human (welfare) and a positive interference, unwarranted government uals from resources. It is both the state to take action and expend right, which requires a procedural right. a collective right, a substantive and an individual and about its mean have led to some scholarly confusion These multiple aspects ing and scope, but as this book will demonstrate, citizens, legislatures, and legislatures, citizens, demonstrate, will book this as but scope, and ing applying, and have had little trouble in defining, courts in many countries enforcing it. ror of a country’s soul. human rights should enjoy the strongest legal protection available in today’s today’s in available protection legal strongest the enjoy should human rights and that they are respected ensure to – constitutional protection society – environment meets the test for recogni fulfilled. The right to live in a healthy moral importance, universal, tion as a fundamental human right (significant Even constitution. Canada’s by protected be should it Therefore, practicable). evidence, based on the experiences more importantly, there is now empirical entrenchment constitutional that indicating nations, hundred than a more of contributes to stronger laws, of environmental rights and responsibilities for citizens, and improved environ increased enforcement, an enhanced role mental performance. status to the right to a healthy environment is straightforward. is environment a healthy to right the to status Each ofthesereasonsisdiscussedindetailthischapter. the textofCanada’sconstitution,including 4 Respecting theEnvironmentalValues ofCanadians • • • • • future well-being: ognition oftherighttoahealthyenvironmentisimperativeforCanada’s must berectified.Therearefivecompellingreasonswhyconstitutionalrec constitution ismorethanamereoversight;itfundamentaldefectthat that theomissionofenvironmentalrightsandresponsibilitiesfromCanada’s ment, itisstrikingthatourconstitutionmakesnoreferencetoit. scientific evidenceestablishesourbasicdependenceonahealthyenviron Nature isanintegralelementofournationalidentity,andinerawhere in vainforanyreferencewhatsoevertotheenvironment.Inacountrywhere largest nation on Earth,Canadaishome to 20percentoftheworld’s fresh network ofparksandprotected areas,anduniquelandscapes.Asthesecond- forests, untamedwilderness, thousands of riversandlakes, a wonderful Canada is blessed with an extraordinary abundance of natural wealth – vast

wealth, andbiodiversity. formance andpreservethiscountry’smagnificentlandscapes,natural All Canadianslovetheland. toward reconciliationwithAboriginalpeople. Indigenous law,andacknowledgingthemwouldmarkan importantstep sustainable andthereforeneedstobeclarified. environmental protection has undermined effortstomake Canada more as airpollution,contaminatedfoodandwater,toxicchemicals. the overwhelmingmajorityofCanadians. Environmental rightsandresponsibilitiesarefundamentalelementsof Uncertainty regardingtheresponsibilityofalllevelsgovernmentsfor It isvitaltoprotectCanadians’healthfromenvironmentalhazardssuch There isanurgentneedtoimproveCanada’spoorenvironmentalper Environmental protectionhas evolved intoa Does thisconstitutionallacunamatter?Absolutely.Thisbookwillargue

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- - - - 5 15 ...... 16 20 Press UBC Canadians overwhelmingly say 21 2012 Canadian woodlands represent one- woodlands represent Canadian 14 © Nine out of ten are concerned or seriously 18 19 Additional statistics show that 22 Material As the Supreme Court of Canada has repeatedly observedCanada has repeatedly Supreme Court of As the Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada 17 Sample Our vast, beautiful, and diverse landscapes are at the heart of who we are and diverse landscapes are at the heart Our vast, beautiful, More than 95 percent of Canadians agree that access to clean water is a According to public opinion polls, nine out of ten Canadians worry aboutAccording to public opinion polls, nine tenth of the world’s forested area, one-quarter of its temperate rainforests, of its temperate rainforests, area, one-quarter world’s forested tenth of the forests. conifer-dominated) boreal (northern, than one-third of its and more that our most valuable natural resource is water, more precious than oil and valuable natural resource is water, more precious than oil our most that gas, forests, or minerals. as a people and are a source of tremendous national pride. As the Molson As the pride. national tremendous of source a are and people a as more have We other. any unlike is land “This says, commercial beer Canadian than any other nation on Earth. It’s square feet of awesomeness per person forests, rivers, and streams. We knowwhy we flock towards lakes, mountains, And we get out there every chance we have the best backyard in the world. caribou on coins to the Vancouver we get.” From polar bears, loons, and Canada’s currency, flags, and hockey Canucks and Toronto Maple Leafs, from our natural heritage. Even jerseys are emblazoned with images drawn increasingly diverse, Nature has re as the country’s population has grown There are more than seventy-two thousand identified species in Canada, and seventy-two thousand identified species There are more than species. it is home to thousands of as-yet unidentified scientists expect that of iconic wildlifeof the world’s last strongholds for a range Canada is also one caribou, and wild whooping cranes, mountain goats, including grizzly bears, Canada is also the Pacific, Arctic, and Atlantic Oceans, salmon. Bounded by mass. land huge our than larger even area marine a with nation, maritime a uni and multiculturalism with along value, unifying a as constant mained care. health versal water, 20 percent of the remaining wilderness, 25 percent of the world’s world’s 25 percent of the wilderness, percent of the remaining water, 20 and the longest coastline. wetlands, concerned about climate change, the loss of biodiversity, and pollution. Nineconcerned about climate change, the loss be a national priority, and eight out of ten believe that sustainability should laws and regulations to protect the out of ten agree that we need stricter nations for whom recent data are avail environment. Among the fifty-seven able from the World Values Survey, Canadians rank behind only the citizens able from the World Values Survey, Canadians en favouring terms of and Switzerland in of Andorra, Norway, Argentina, vironmental protection over economic growth and job creation. in decisions spanning the past fifteen years, environmental protection is a in decisions spanning the past fifteen fundamental value for Canadians. basic human right, and it seems likely that a similar proportion would endorse the right to live in a healthy environment. the impacts of environmental degradation on their health and the health of the impacts of environmental degradation their children and grandchildren. • • • 6 Development (OECD). wealthiest nationsintheOrganisationforEconomic Co-operationand environmental performancerankstwenty-fourthoutofthetwenty-five performance. AccordingtoresearchersatSimonFraserUniversity,Canada’s doubt thatCanadalagsbehindothernationsintermsofenvironmental leadership totheworld,ahugepileofstudiesprovesbeyondreasonable Contrary tothemythofapristinegreencountryprovidingenvironmental Improving Canada’s EnvironmentalRecord an essentialCanadianvalue,justasthe of environmentalrightsandresponsibilitieswouldbothreflectreinforce sibility toprotecttheenvironment(142nations).Constitutionalrecognition ment (94nations)orexplicitlydescribesgovernment’sfundamentalrespon- the constitutioneitherentrencheseveryone’srighttoliveinahealthyenviron tutional vacuum stands in stark contrast to 147 nations worldwide, where peoples’ fundamentalvalues,issilentontheenvironment.Canada’sconsti- Thus itisanomalousthatCanada’sconstitution,thehighestexpressionof • and reinforcesourcommitmenttoequality. vironmental performance. World EconomicForumranked forty-fivenationsaheadofCanadainen- research projectinvolvingYale University,Columbiaandthe strong environmentalprotectionandeconomicprosperity. Acollaborative ness andinnovation,debunkingthemyththatthereis a trade-offbetween Scandinavian nationsalso outstrip Canada in terms of economic competitive and Norwaytopthe rankings. Accordingto the Conference Board, these economy-environment trade-offs. top fifteenfor globalcompetitiveness,again underminingthenotion of Economic Forum’stopfifteen forenvironmentalperformancearealsointhe industrialized nationsonenvironmentalperformance. Board ofCanadarankedfifteenthoutseventeen large,wealthy tries, andpoorenvironmentalperformance. Canada’s weaklawsandpolicies,perversesubsidiesforunsustainable indus-

qualities forthempersonally. to beveryimportant 82 percentofCanadianssaythatNaturehasveryimportantspiritual 85 percentofCanadiansparticipateregularlyinnature-relatedactivities 90 percentofCanadiansconsidertimespentinnaturalareasaschildren 98 percentofCanadiansviewnatureasessentialtohumansurvival

...... Canada Needs Constitutional Environmental Rights Sample 24 Material TheOECDhaspublishedblisteringcriticismsof 27 Nine of the countries ranked inthe World 23 © CharterofRightsandFreedoms 2012 25 TheconservativeConference UBC 26 Press Sweden,Finland, reflects ------...... 7 Press UN Framework Convention UBC and the Canada had built a strong reputation 2012 31 © If all 7 billion people on Earth consumed If all 7 billion people on Earth consumed 30 Material Yet today Canada is a notorious saboteur at international international at saboteur a notorious is Canada today Yet Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada Along with countries such as Kazakhstan, Kyrgyzstan, and 29 32 A 2010 survey of over five thousand experts – from government, from – experts thousand five over of survey 2010 A Canada, along with Russia and the USA, fought USA, fought Kyoto Protocol. Canada, along with Russia and the Sample 28 Once internationally renowned as an environmental leader, Canada “is Once internationally renowned as an and 85 percent rated Canada’s efforts to address climate change as poor as change climate address to efforts Canada’s rated percent 85 and 60 percent rated Canada’s performance in protecting Canadians from performance in protecting Canadians 60 percent rated Canada’s water as poor performance in protecting fresh 65 percent rated Canada’s Canada is the only industrialized nation that exports asbestos and pro or very poor. the health impacts of pollution as poor or very poor the health impacts or very poor Published in 2009, a comprehensive comparison of nations with federal comparison in 2009, a comprehensive Published UN Convention on Biological Diversity

motes its use, despite the World Health Organization’s call for the end of all motes its use, despite the World Health Organization’s call for the end of all uses of asbestos. academia, business, non-governmental organizations, and other institutions non-governmental organizations, and academia, business, – found that now a laggard in both policy innovation and environmental performance, now a laggard in both policy innovation known for inaction and obstruction.” resources and produced waste at the prodigious rate of Canadians, we would resources and produced waste at the prodigious require three additional planets. Zimbabwe, Canada has repeatedly blocked proposals to add asbestos to the Zimbabwe, Canada has repeatedly blocked proposals to add asbestos to the logical footprint in the world. Another measure of environmental performance is the ecological footprint. Another measure of environmental performance eco capita per seventh-largest the basis, individual an on have, Canadians • • • over decades by demonstrating leadership on issues such as acid rain, ozone over decades by demonstrating leadership rules governing the world’s oceans. depletion, protection of the Arctic, and the first industrialized nation to ratify As recently as the early 1990s, it was the against the extension of the global regime for reducing greenhouse gas gas global regime for reducing greenhouse the extension of the against emissions. In Canada earned the Dodo Award for obstructing inter 2010, on Climate Change. Canada Harper, Stephen Minister Prime Under negotiations. change mate to turn its back on legal obligations became the only country in the world under the national biodiversity negotiations. environmental forums. For years we have garnered countless “fossil of the have garnered countless “fossil of the environmental forums. For years we progress at international cli day” and Colossal Fossil awards for blocking governance systems concluded that “Canadian environmental quality and environmental quality that “Canadian systems concluded governance wealthy expect in a relatively than one might policy are worse environmental country.” life, asnationswithenvironmentalprovisionsintheirconstitutions have apositiveeffectonenvironmentalperformanceand people’squalityof environmental record is among the best in the world.” Canada’s environmental performance. mental rights and responsibilitieswould spur significantimprovements in it ishighlylikelythatamending Canada’sconstitutiontorecognizeenviron- got bigproblems.” performance is,bymostmeasures,theworstindevelopedworld.We’ve 2006, PrimeMinisterHarperacknowledgedthat“Canada’senvironmental admit thatitisanenvironmentallaggard.Duringayear-endinterviewin political leaders,whousuallydefendthecountrycomehellorhighwater, nation maskssomestartlinglypoorbehaviour.” “Canada’s generallypositiveforeignreputationasaprogressive,scientific government’s policyofmuzzlingenvironmentalscientists,statingthat journals, entific Rotterdam Convention, 8 some strongerapproaches.” cited aboutthemovetorights-based environmentalism.Lordknowsweneed Gus Speth,formerdeanofthe YaleSchoolofForestry,stated“Iamveryex • • • • • in protectingtheenvironment. been unusually frank in criticizing Canada’s failure to live up to expectations Pachauri (headoftheIntergovernmentalPanelonClimateChange),have Manuel Barroso(presidentoftheEuropeanCommission),andRajendra than 80percent. national TradeinEndangeredSpecies, block theprotectionofAtlanticbluefintunaunderConventiononInter structive fishingpracticeofbottomtrawling.In2010,it sidedwithJapan to ous substances.In2006,CanadarejectedaUNagreementtolimitthede

phur dioxide. Constitutional recognitionoftherighttoahealthyenvironmentcan In thepast,manyCanadianssubscribedtoillusionthat“Canada’s and haveachieveddeepercutsinemissionsofnitrogen oxides andsul have beenmoresuccessfulinreducinggreenhousegasemissions are morelikelytohaveratifiedinternationalenvironmental agreements rank higheroncomprehensiveindicesofenvironmental performance have smallerpercapitaecologicalfootprints Global leaders,includingBanKi-moon(UNsecretary-general),José

...... Canada Needs Constitutional Environmental Rights Sample Nature, publishedanunprecedentedcritiqueofthefederal 37 36 aninternationalagreementthatlimitstradeinhazard Material 38 Inlightoftheexperiences othercountries, 33 In2012,oneoftheworld’sleadingsci despite population declines of more © 2012 34 UBC 35 Today even Canada’s Press - - - - - - - - - - 9 The

...... 44 Another study esti- Press 49 On a per capita basis, On a per capita basis, 40 UBC 2012 © 46 Material Despite well-established evidence of deaths and illnesses of deaths and evidence Despite well-established Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada Permissible levels of pesticide residues on food in Canada Permissible levels of pesticide residues 39 47 43 Contradicting the perception that air quality is improving, En perception that air quality is improving, Contradicting the 41 Sample Thousands of Aboriginal people living on reserves in Alberta, Mani in Alberta, reserves living on of Aboriginal people Thousands Canadian industries in the heavily populated Great Lakes region region in the heavily populated Great Lakes Canadian industries As well, Canada allows the use of antibiotics and hormones to make As well, Canada allows the use of antibiotics 45 42 48 Canada’s weak rules and poor environmental performance have substan Canada’s weak rules and poor environmental Canada also lags behind other wealthy nations in rules governing food Canada also lags behind other wealthy Unlike the USA and Europe, Canada has no national standards for ensur Unlike the USA and Europe, Canada has ides, sulphur dioxide, and carbon monoxide – than any other nation in and carbon monoxide – than any ides, sulphur dioxide, ing the safety of drinking water, choosing instead to rely on unenforceable ing the safety of drinking water, choosing others. not but provinces some by law in enshrined are that guidelines tory illness, cancer, and congenital afflictions (birth defects) – environmental hazards contributed to as many as twenty-five thousand deaths and 1.5 million mated that for just four categories of illness – cardiovascular disease, respira we pump out more air pollution – volatile organic compounds, nitrogen air pollution – volatile organic compounds, we pump out more livestock grow faster, practices that are banned in Europe because of adverse livestock grow faster, practices that are effects on human health and the environment. discharge twice as much cancer-causing pollution per facility as their American their as facility per pollution cancer-causing much as twice discharge competitors. are, in some cases, hundreds of times higher than in comparable European comparable in than higher times of hundreds cases, some in are, rules. ganization, exposure to environmental hazards (such as air pollution, pollution, (such as air hazards exposure to environmental ganization, contaminants in water and food, and toxic substances in consumer products) contributes to thirty-six thousand premature deaths in Canada annually and approximately 13 percent of all illnesses and injuries. tial negative effects on human health. According to the World Health Or tial negative effects on human health. toba, Ontario, and Quebec lack access to running water, resulting in elevated resulting water, running to access lack Quebec and toba, Ontario, levels of waterborne illnesses. vironment Canada reports that average levels of smog are up 13 percent since reports that average levels of smog are vironment Canada 1990. ox the OECD. Canada has surprisingly weak rules governing air pollution, drinking water drinking pollution, air governing rules weak surprisingly Canada has produced used in and and toxic substances in our food, safety, contaminants by our economy. Protecting Canadians’ Health from Environmental Hazards from Environmental Health Canadians’ Protecting national patchwork of drinking water laws and regulations puts people’s laws and regulations puts people’s national patchwork of drinking water communities, rural areas, and re health in jeopardy, particularly in smaller serves. safety. Hundreds of pesticides sold in Canada – formulated with active in safety. Hundreds of pesticides sold in paraquat, and trifluralin – are banned gredients including atrazine, carbaryl, about their impact on human health in other nations because of concerns and ecosystems. caused by air pollution, Canada has no legally binding national air quality Canada has no legally binding caused by air pollution, the USA, Australia, and Europe. standards – unlike ancy fortoday’sCanadianchildrenwillbeshorterthantheirparents. think-tank notknownforalarmistprognostications,warnsthatlifeexpect resources. sponsible for managing forests,electricity generation, andnon-renewable stitutional changesmadein1982clarifiedthatprovinces areprimarilyre and civilrights,law,agriculture,mattersoflocal concern.Thecon- environmental policiesbasedonownershipofnatural resources, property negotiation and signing of treaties. Provincial governments defend their forthegeneraladvantageofCanada,taxationandspending, andthe takings works, thepeace,order,andgoodgovernmentofCanada, worksorunder- fisheries, navigationandshipping,agriculture,federallands, interprovincial its constitutional authority related to criminal law, trade and commerce, and preventpeoplefrombeingexposedtotoxicsubstances. a patternattributed,inpart,toitspioneeringeffortsreducepollution tions, experienced the slowest rise in health care costs among industrialized na tions. Renownedasagloballeaderinenvironmentalprotection,Swedenhas to pursueahealthyenvironmentforthebenefitofpresentandfuturegenera are bestillustratedbySweden,whoseconstitutionmandatesthegovernment days inhospitalannually. 10 of transparencyandaccountability. mental lawsandregulations.Constitutionalambiguityalsoresultsinalack provincial governments’ willingness and ability to enact and enforce environ of responsibilityinthisfield.Thisuncertaintysabotagesbothfederaland tioned intheconstitution,thereisextensiveuncertaintyaboutallocation federal governmentandtheprovinces.Becauseenvironmentisnotmen Canada’s constitutiondividesjurisdictionovervariousmattersbetweenthe the Environment Clarifying theResponsibilityofAllGovernmentstoProtect problems. has nonationalenvironmentalhealthstrategytosystematicallyaddressthese Unlike Australia,theUSA,andallnationsinEuropeanUnion,Canada dictional uncertainty. Commission of Conservationidentifiedthe problemsassociatedwith juris- In 1912,apaperonwaterpollution publishedbyPrimeMinisterLaurier’s stitutional arrangementisinadequate fortacklingenvironmentalproblems. For atleastahundredyears, ithasbeenunderstoodthatCanada’scon Ottawa justifiesitsenvironmentallaws,policies,andprograms basedon The potential health benefits ofstrong environmental lawsandpolicies

- - - 11 ...... 58 Press In 2007, Stewart Elgie 65 UBC Fisheries Act have been struck In 1969, Prime Minister Pierre Prime Minister Pierre In 1969, 57 2012 In 1992, the Supreme Court ruled that ruled Court Supreme the 1992, In © 66 63 was challenged by the Canadian Metal was challenged by the Canadian Metal 59 Material In 1996, Kathryn Harrison criticized Ottawa’s tendency In 1996, Kathryn Harrison criticized Ottawa’s In 1991, lawyer Paul Muldoon asserted that the federal In 1991, lawyer Paul Muldoon asserted 64 62 Provisions of the federal Clean Air Act Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada 67 In 1978, the Canadian Environmental Law Association Association Law Environmental Canadian the 1978, In 60 Sample In 1984, J.P.S. MacLaren argued that “the spectre of constitutional In 1984, J.P.S. MacLaren argued that “the 61 The federal Another major problem caused by constitutional uncertainty is that uncertainty is that Another major problem caused by constitutional Passing the buck for environmental responsibility between federal and environmental responsibility between Passing the buck for lenges, such as climate change. 68 down in cases involving environmental damage inflicted by logging compan ies. the environment “is a constitutionally abstruse matter which does not com- the environment “is a constitutionally challenge” prevented Ottawa from effectively implementing or enforcing implementing or enforcing challenge” prevented Ottawa from effectively environmental laws. In 1970, Dale Gibson, one of Canada’s leading constitutional law experts, one of Canada’s leading constitutional In 1970, Dale Gibson, about the en were required to dispel doubts concluded that amendments for improved of both levels of government and to provide vironmental powers environmental management. concluded that the ongoing uncertainty about the scope of jurisdiction sabo concluded that the ongoing uncertainty taged the federal government’s ability to address modern environmental environmental modern address to ability government’s federal the taged chal lap and uncertainty.” fortably fit within the existing division of powers without considerable over of powers without considerable fortably fit within the existing division Trudeau said, “This challenge of pollution of our rivers and lakes, of our and lakes, rivers of our of pollution challenge “This Trudeau said, be met effectively and of the very air we breathe, cannot farmlands and forests, clarification.” or reforms constitutional some without state our federal in constitutional lawyers, civil servants, and academics held as part of the the of part held as academics and servants, civil lawyers, constitutional were jurisdictional problems warned that for Tomorrow conference Resources in the future. more critical likely to become government’s constitutional powers were inadequate to support a strong were inadequate to support a strong government’s constitutional powers role protection. environmental in to defer to the provinces on environmental policy. to defer to the provinces on environmental concluded that the constitution’s silence “led to jurisdictional buck-passing concluded that the constitution’s silence laws, needed pass to failure governments, provincial and federal the between of existing legislation, and pollution erratic and haphazard enforcement havens.” corporations often challenge Canadian environmental laws – both provincial that passed of the government the jurisdiction beyond as being federal – and Manitoba a down Canada struck of Court Supreme the them. For example, discharges mercury whose polluters industrial upon liability imposed that law harmed fisheries. provincial governments was decried as early as 1971. A witness testifying was decried as early as 1971. provincial governments of Commons Committee of the Senate and the House before the Special Joint “Everyone says ‘Oh dear it is a pity. on the Constitution of Canada observed, after it.’ Meanwhile things get grubbierBut perhaps some other level will look grubbier.” and River, in violation of the when Hydro-QuébecwaschargedwithdumpingPCBs into theSt.Maurice regulate toxic pollution because of a constitutional challenge. The case arose of toxicchemicals. emissions, andthemanufacture,import,sale,use,releaseofthousands is Canada’sprimarypollutionlaw,regulatingindustrialairpollution,vehicle upheld bytheSupremeCourtin1988. Control Act Court. was challengedbytheGovernmentofAlbertabutupheldSupreme Dam, theconstitutionalityoffederalenvironmentalassessmentprocess Company in1982butupheldbyaManitobacourt. 12 • • • the boundariesbetweenthoseroles. have aparttoplayinenvironmentalprotection,althoughitdidnotclarify to regulatepesticides.TheSupremeCourtruledthatalllevelsofgovernment lawn-care companiessued,arguingthatmunicipalitieshadnojurisdiction (Quebec) bannedtheuseofpesticidesforcosmeticornon-essentialpurposes, was also the subject of a constitutional challenge. When the town of Hudson down the impugned sections of Hydro-Québec wassuccessfulbeforetheQuebectrial court, whichstruck diction. AlthoughmostCanadianswouldrejectsuchadefence asnonsense, was alocalmatterfallingwithintheprovincialgovernment’sexclusivejuris thority toregulatetoxicsubstances.AccordingHydro-Québec,pollution was unconstitutional–thatthefederalgovernmentlackedrequisiteau the three Quebec courts sided with the polluter, striking down key provisions of Superior CourtandtheQuebecofAppealbutlost bothappeals.All could withahandfulofsub-optimaloptions: environmental law,lawyersdefending lay withCanada’shighestcourt,theSupremeCourt.

Canadian EnvironmentalProtectionAct. good government” powertolegislaterespecting mattersofnational In the1990s,Ottawacamewithinahair’sbreadthoflosingitsabilityto Hydro-Québec’s defencetothechargeofdumpingPCBswasthat and Parliament’s residual jurisdiction under the vague “peace, order, and its criminallawpower the tradeandcommercepower ofthefederalgovernment Faced withtheabsenceofaclearconstitutionalmandate forfederal 71 ...... Canada Needs Constitutional Environmental Rights Theabilityofmunicipalgovernmentstoprotecttheenvironment was attacked by logging company Crown Zellerbach and narrowly Sample Canadian EnvironmentalProtectionAct Material CEPA. 72 © CEPA werelefttodothebestthey 70 2012 Ottawa appealed to the Quebec ThelasthopeforCEPA’ssalvation InacaseinvolvingtheOldman UBC 69 TheOcean Dumping Press

(CEPA).

CEPA CEPA - -

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...... judg- 74 Endangered Québec - s constitutionality. constitutionality. s Hydro Press as “subsidized voluntary CEPA’ UBC SARA 2012 © s provisions prohibiting the release of toxicCEPA’s provisions prohibiting was passed in 2002. Whereas the American law was passed in 2002. Whereas the American Material Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada Sample Had one more judge joined their opinion, it would have blown an joined their opinion, it would have Had one more judge 73 In part by playing the constitutional card, provinces and industries 75 Fortunately, five Supreme Court judges upheld upheld judges Court Supreme five Fortunately, Canada’s constitutional gap is also used to delay, block, or water down Canada’s constitutional gap is also used concern, as provided for in the introductory paragraph of section 91 of of section introductory paragraph provided for in the concern, as Act, 1867. the Constitution To do so, however, required some judicial creativity, as they relied on the they relied on creativity, as judicial required some however, do so, To the constitution’s silenceof Because federal government’s criminal law power. the courts and Ottawa are forced to regarding environmental protection, its role in protecting the environ perform jurisdictional gymnastics to validate century, Canada’s Parliamentment. The notion that, today, in the twenty-first on the basis of its power to enact must justify environmental legislation and good government power is, criminal laws or its residual peace, order, immense hole in Canadian environmental law. immense hole in Canadian opposed to SARA delayed the law and eventually secured “federal legislation environ Canadian of vision decentralized more a cement to help would that ment as “the jurisprudential equivalent of a serious spill of toxic waste” waste” toxic of spill a serious of equivalent jurisprudential “the as ment previous court decisions. because its logic deviated so widely from to protecting species on federal lands and waters, thus excluding huge swaths of provincial and private land. Experts describe applies to endangered species wherever they may live, Canada’s law is lim applies to endangered species wherever stewardship,” in contrast to the stronger regulatory model relied upon in the USA. frankly, absurd. In an article called “Polluting the Law to Protect the En frankly, absurd. In an article called “Polluting Supreme Court’s vironment,” David Beatty described the proposed environmental legislation and regulations. A classic example is and regulations. A classic example is proposed environmental legislation The USA passed a strong federal endangered species legislation. in the early 1970s, yet three decades of prolonged effort from prolonged effort of decades three yet 1970s, early the in Species Act weak the before required in Canada were environmentalists and scientists Species at Risk Act (SARA) By the narrowest possible margin (five to four), the Supreme Court upheld the Supreme Court (five to four), possible margin By the narrowest law. The of Canada’s most important environmental the constitutionality Hydro-Québec with agreed justice, chief the by led judges, dissenting four that and the Quebec courts substances into the environment were unconstitutional. According to these environment were unconstitutional. substances into the had no impact on that affected groundhogs but that judges, a substance federal regu “toxic” and made subject to wholesale people could be labelled of division balanced carefully constitution’s the undermining thus lation, powers. constitutional TreatyofRome was originallyinasimilarposition,asitsfoundingdocument,thequasi- record alsoprovethattheUSAisalaggard. mental responsibilities.” 14 munity), wasenactedin1957withoutanymentionoftheenvironment. at all.” objects, suchasendangeredspeciesorisolatedwetlands,arenotincommerce as protectinginterstatecommerce,causingconsiderableconfusionwhenthe “still clingstotheconstitutionalnotionthatenvironmentallawsarejustified by constitutionalsilenceonthisissue.AsOliverHouckpointsout,theUSA Canada’s environment. constitutional jurisdiction in order to emasculate the federal role in protecting Prime MinisterStephenHarperwasexploitingaverynarrowperspectiveof forward thing”and“droppedthefiction.” legislation withenvironmentalobjectives,theEuropeans “didastraight economic, ratherthanecological,objectives. European Community environmental laws were ostensibly based on achieving parities (byharmonizingnationalenvironmentalrules). Inotherwords, Environmental lawswerejustifiedonthebasisofpreventing economicdis of nationalgovernments,meaningthatanyrecalcitrantcountryheldaveto. air and water quality guidelines). EC laws required the unanimous consent states to develop programs and monitor progress (similar totoday’s Canadian Most earlyECenvironmentallawswereweakdirectivesthatsetgoalsbutleft years. legislation invadedtheirjurisdictionanddelayeditspassagefortwenty governing theuseofnuclearenergy.Provincesobjectedthatproposed Administration Act,introducedin1977toreplaceabadlyoutdatedlaw progress inshifting tocleanenergyandreducing greenhousegasemissions, ated theuseofdozenspesticides andotherhazardouschemicals,made in actions. Europe has dramatically reduced air and water pollution, elimin to global environmental leadership, bothin words, and more importantly, rationales forenvironmental laws.AndtheoutcomeforEurope?Ascendance legislatures and courts to tie themselves in knots to create convoluted ing protect theenvironment. in 1987isaquasi-constitutionallawthatexplicitlyauthorizes legislationto The EuropeanUnion(formerlyknownastheCommunity) The USA, once regarded as an environmental leader, is similarly hampered The USA,onceregardedasanenvironmentalleader,issimilarlyhampered In ordertoovercometheuncertaintycausedbyEC’sinability topass 77 78 ...... Canada Needs Constitutional Environmental Rights In 2012, it became clear that the Conservative government led by The studies cited earlier to demonstrate Canada’s poor environmental ThestudiescitedearliertodemonstrateCanada’spoorenvironmental Sample 76 Material 82 AnotherexamplewastheNuclearControland Nomoregames,nolinguisticgymnasticsrequir (Treaty EstablishingtheEuropeanEconomicCom © 2012 81 79 TheSingleEuropeanAct UBC Press passed 80 - - - -

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As well, Similarly, Similarly, Although 87 89 85 And yet, as the And yet, as 86 Press and continue to oper which Canada endorsed UBC Because of their central importance Because of their central importance 88 2012 91 © 83 Constitution Act, 1867, Act, Constitution Material 90 Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada Sample Indigenous law can be defined as “those procedures and substan be defined as “those procedures and Indigenous law can 84 Borrows concludes that “only through a pluralistic, multi-juridical Borrows concludes that “only through a pluralistic, multi-juridical One of the bedrock elements of Indigenous law common to many Ab One of the bedrock elements of Indigenous Canada’s constitution, rather than requiring governments to protect the to protect than requiring governments constitution, rather Canada’s UN Declaration on the Rights of Indigenous Peoples, UN Declaration on the Rights of Indigenous in 2010, refers repeatedly to the importance of recognizing and respecting in 2010, refers repeatedly to the importance Indigenous laws and legal institutions. the tive respect, and teachings that reflect, create, values, principles, practices, relationships within it.” enhance, and protect the world and our in First Nations’ culture and law, incorporating environmental rights and in First Nations’ culture and law, incorporating environmental rights and Supreme Court has acknowledged, the ongoing project of reconciliation with reconciliation of project ongoing the acknowledged, has Court Supreme integration of Indigenous the requires Canada of the Aboriginal peoples legal“aborig that wrote example, the court Canadian law. For into concepts presumed to survive the assertion of inal interests and customary laws were the common law as rights.” sovereignty, and were absorbed into Mi’kmaq law is rooted in ecological relationships, extending legal personal Mi’kmaq law is rooted in ecological relationships, ityon legal obligations imposing and rocks, and animals, plants, insects, to Mi’kmaq persons. original societies is the idea of a living Earth, with a set of rights and respon original societies is the idea of a living sibilities governing the relationships between humans and the natural world.sibilities governing the relationships between sentience is a fundamental prin As John Borrows has written, “The land’s ciplecitizenship of multiplicity “a to contributes it and law,” Anishinabek of Earth.” the and people Anishinabek for responsibilities and rights Indigenous, English, and French legal systems existed for centuries in Can and French legal systems existed for Indigenous, English, of the ada prior to the passage today. Recognizing Indigenous Law Recognizing Indigenous and slashed both water and electricity use through aggressive conservation aggressive conservation electricity use through both water and and slashed and full-cost pricing. measures framework can we fully respect the place of Indigenous legal thinking” in the of Canadian legal traditions. shaping environment by imposing a responsibility upon them, constrains their action. them, constrains their upon by imposing a responsibility environment would clarify of the right to a healthy environment Constitutional recognition to respect, a duty upon all levels of government the situation by imposing this right. protect, and fulfill great strides have been made in integrating common law and civil law, far great strides have been made in integrating of finding an appropriate place for less progress has been made in terms incomplete. system legal Indigenous law, leaving Canada’s with oursocietyasawhole.” and improveCanada’slegalsystembenefitAboriginalpeoplesalong toward theintegrationofIndigenousandCanadianlaw.Thiscould“expand into Canada’s constitution would mark asignificant stepresponsibilities 16 without severelydamaging ourselves.” beings are an inseparable part of Nature and that we cannot damage it severely “Our behavioristheresult of abasicfailuretorecognizethathuman ity, cluded intheirbook human beings.Asmedical doctors EricChivianandAaronBernsteincon We liveinaneraofunprecedentedenvironmentaldamage atthehandsof Conclusion constitutional framework. assesses theprospectsforincorporatingsuchadocument intoCanada’s a draftCanadianCharterofEnvironmentalRightsandResponsibilities and judicial interpretationofexistingconstitutionalprovisions. Chapter9offers the dauntingprocessofdirectamendmentandalternatives involving ing constitutionalrecognitionoftherighttoahealthyenvironment, including have inCanada.Chapter8exploresthepoliticalandlegal avenuesforachiev constitutional recognitionofenvironmentalrightsandresponsibilitieswould other nations,Chapter7describesthespecifictypesoftangibleimpactsthat identifies theimplicationsforCanada.Extrapolatingfromexperiencesof the evolutionofrighttoahealthyenvironmentininternationallawand and mostimportantly,environmentalperformance.Chapter6traces sions, to whichtheseprovisionshaveinfluencedenvironmentallaws,courtdeci- rights andresponsibilitiesintotheirconstitutionsexaminetheextent Chapters 4and5identifythecountriesthathaveincorporatedenvironmental by assessingthe practicaleffectsofrecognizingtheserights.Therefore, ated ents andopponentsofconstitutionalenvironmentalrightsshouldbeevalu the federallevel.Ultimately,validityofargumentsmadebypropon by ahandfulofprovincesandterritoriesdebatedbutnotenactedat examines legislativeenvironmentalbillsofrights,whichhavebeenpassed environmental rightsandresponsibilitiesinCanada’sconstitution.Italso Chapter 3reviewsthehistoryofproposals,datingbackto1969,include against entrenchingtherighttoahealthyenvironmentinconstitution. Chapter 2explores,fromaCanadianperspective,theargumentsforand Overview oftheBook

...... Canada Needs Constitutional Environmental Rights Sample Sustaining Life:HowHumanHealth DependsonBiodivers Material 92 © 93 Canadians love this country’s beauty, Canadians love thiscountry’sbeauty, 2012 UBC Press - - - - ...... 17 is cherished Charter may Yet Canada’s Yet Canada’s 95 Charter Press UBC Today, the 94 2012 Canadian Charter of Rights and Freedoms Canadian Charter of © Material Canada Needs Constitutional Environmental Rights Rights Environmental Constitutional Needs Canada Sample A similar gap used to exist with respect to social values. Prior to 1982, to exist with respect to social values. A similar gap used by an overwhelming majority (88 percent) of Canadians. by an overwhelming majority (88 percent) not have reflected who we were as a country then, but it is those values which not have reflected who we were as a country have created who we are as a country today.” have contributed to significant advances in women’s, gay, and Aboriginal significant advances in women’s, have contributed to rights for all the protection of civil and political rights, and have enhanced in the Mendelsohn wrote, “The values Canadians. As Matthew Canadians thought of themselves as tolerant, compassionate, and egalitarian. of themselves as tolerant, compassionate, Canadians thought reality. Since was true, but the perception outstripped To some extent this the the new constitution and 1982, immense landscapes, and diverse wildlife. We express deep concerns about express deep concerns wildlife. We landscapes, and diverse immense ecological health and their effect on human problems and environmental wealthy compared to other performance, Yet our environmental integrity. record Our dismal embarrassment. nations, is an international industrialized our magnificent values, jeopardizing our health, contradicts our fundamental our legacy for future generations. natural heritage, and constitution fails to reflect the strong environmental values held by most constitution fails to reflect the strong built is that constitution a with century twenty-first the in live We Canadians. constitution could force us to for the twentieth century. Greening Canada’s live up to our ideals. Law and Society Series

W. Wesley Pue, General Editor

The Law and Society Series explores law as a socially embedded phenomenon. It is premised on the understanding that the conventional division of law from society creates false dichotomies in thinking, scholarship, educational practice, and social life. Books in the series treat law and society as mutually constitutive and seek to bridge scholarship emerging from interdisciplinary engagement of law with disciplines such as politics, social theory, history, political economy, and gender studies.

A list of titles in the series appears at the end of the book.

Library and Archives Canada Cataloguing in Publication

Boyd, David R. (David Richard), 1964- The right to a healthy environment [electronic resource] : revitalizing Canada’s constitution / David R. Boyd.

(Law and society) Includes bibliographical references and index. Electronic monograph. Issued also in print format. ISBN 978-0-7748-2414-9 (PDF); ISBN 978-0-7748-2415-6 (HTML)

1. Environmental law – Canada. 2. Constitutional law – Canada. 3. Human rights – Canada. 4. Environmental ethics – Canada. I. Title. II. Series: Law and society series (Vancouver, B.C. : Online)

KE5110.B69 2012 344.7104’6 C2012-903439-8 KF3775.ZA2B69 2012

UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada (through the Canada Book Fund), the Canada Council for the Arts, and the British Columbia Arts Council.

This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Award to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada.

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