from Law Now
by David R. Boyd, Ph.D., J.D.
Fifty years ago, the concept of a human right to a healthy environment was viewed as a novel, even radical, idea. Today it is widely recognized in international law and endorsed by an overwhelming proportion of countries. Even more importantly, despite their recent vintage, environmental rights enjoy constitutional protection in over 100 countries. These provisions are having a remarkable impact, including stronger environmental laws, better enforcement of those laws, landmark court decisions, the cleanup of pollution hotspots, and the provision of safe drinking water.
Canada, unfortunately, is a holdout. Our constitution does not mention the environment, and Canada is one of a dwindling number of countries that refuse to recognize the right to a healthy environment. There are six compelling reasons why Canada needs to modernize its constitution to include this fundamental human right.
First, Canada trails behind other countries when it comes to protecting the environment. According to the Conference Board of Canada, we rank 15th out of 17 large, wealthy, industrialized countries on a comprehensive index of environmental performance indicators. A study done by Simon Fraser University researchers ranked Canada’s environmental record 24th out of 25 nations in the Organization for Economic Cooperation and Development. Our magnificent natural heritage is at risk.
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 in Canada each year are caused in whole or in part by environmental hazards. This eye-opening figure is 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 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.
Fourth, environmental rights and responsibilities have been a cornerstone of Indigenous legal systems for millennia. For the Haida, the Anishinabek, and the Mi’kmaq, the Earth’s sentience creates corresponding rights and obligations for both humans and Nature. As the Supreme Court of Canada has repeatedly observed, incorporating Indigenous law into the Canadian legal system is an important step toward reconciliation with Aboriginal people.
Fifth, as of 2012, 177 of the world’s 193 UN member nations recognize this right, either through their constitution, environmental legislation, court decisions, or ratification of an international agreement. The only remaining holdouts are the US, Canada, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia. The rapid spread of this right is remarkable, given that its first formal articulation came just 40 years ago in the Stockholm Declaration that emerged from the first global earth summit. Today, citizens in 108 nations – from Argentina to Zambia – enjoy a constitutionally protected right to a healthy environment. In more than 100 countries, the right is explicitly recognized in environmental legislation. As well, 120 countries – in Europe, Latin America, Asia, and Africa – have signed legally binding human rights treaties that include the right to a healthy environment.
Sixth, an overwhelming majority of Canadians – over ninety percent – believe that governments should recognize their right to a healthy environment. Indeed, a majority of Canadians erroneously believe that the right to a healthy environment is already included in the Charter of Rights and Freedoms.
Would constitutional recognition of environmental rights and responsibilities make a difference in Canada? Based on our own experience with advances in respect for human rights since repatriation of the constitution in 1982, and the experiences of other nations where the right to a healthy environment enjoys constitutional status, the answer is definitely yes. There has been tremendous progress in protecting certain human rights in Canada since 1982, as demonstrated by the sea change in respect for Aboriginal rights and the affirmation – both legal and more importantly cultural – of same-sex marriage.