Greening the Charter? Why trying to constitutionalize a right to a healthy environment is misguided

By Jason MacLean February 28, 201728 February 2017

Greening the Charter? Why trying to constitutionalize a right to a healthy environment is misguided

 

We live in a new and increasingly unstable climate reality. How should we respond?

Traditional environmental law and policy has failed to elevate environmental protection above economic priorities, and existing constitutional rights are limited to impacts on human health and protected Aboriginal rights. The time has come, some prominent environmental lawyers and activists argue, to green the Charter by including an explicit, stand-alone right to a healthy environment to better protect non-human environmental values along with the rights of future generations.

Given the exigencies of climate change and the maturity of the Charter, surely this is an open-and-shut case? Not really. The argument in favour of constitutionalizing the right to a healthy environment suffers from three difficulties.

The first is constitutional feasibility. Advocates of a Charter right to a healthy environment tend to frame their argument in terms of including or recognizing such a right when what they really mean is amending the Charter to add that right. Their avoidance of the A-word is telling. Amending the Constitution is hard, and rare. Since 1982, only minor amendments have succeeded. The Charter itself has never been amended — not surprising, given that it would trigger the general constitutional amending formula of “7/50” (i.e., the consent of Parliament plus two-thirds of the provinces having at least 50 per cent of the population). 

The second difficulty, which underlies the first, is the absence of political will. Even without the challenges of Charter reform, if the political will required to “green” the Charter actually existed it would already be reflected in progressive environmental laws and policies properly implemented and enforced at the federal, provincial, and territorial levels. The very raison d’être of constitutionalizing a right to a healthy environment – the absence of political will to prioritize environmental protection – is the very obstacle to amending the Charter. Call it the catch-22 of environmental law reform.

The final flaw is the most important. It confuses the textual provisions of the Constitution with the vast territory of underlying norms and values that make the Constitution more than what James Madison, in the U.S. context, long ago called a mere parchment barrier. Maybe its impolitic to point out on the Charter’s 35th anniversary – and the Constitution’s 150th – that while the Charter is powerful, it’s not a panacea. Its power and force depend, not on its express wording, but rather its underlying normative pre-commitments.

Nowhere is this conceptual mistake more apparent than in Latin America, which some environmental advocates see as a leader in greening constitutional rights and protecting the environment. The reality on the ground, however, departs significantly from the constitutional rhetoric. Ecuador, for example, is often congratulated for amending its constitution in 2008 to give “nature” the "right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution" and to direct the government to take "precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles." And yet Ecuador has nonetheless proceeded with oil drilling in the Yasuní National Park, one of the world’s most bio-diverse regions, along with open-pit mining in El Condor Mirador, home to multiple endemic species.

Environmental rights advocates similarly celebrate a 2008 ruling of the Supreme Court of Argentina drawing on the country’s constitutional right to a healthy environment – added in 1994 – to order the clean-up of the severely polluted Matanza-Riachuelo River running through Buenos Aires. But in a hearing before the court in the fall of 2016 reviewing the government’s compliance with the order, authorities disclosed that while $5.2 billion has been spent on remediation, scant progress has been made. An investigation into possible government corruption is likely.

In Brazil, more than 20 legislative proposals have recently been tabled in its Congress aiming to loosen constitutionalized environmental protections to clear the way for rapid development of energy facilities, mines, and agriculture, including in the Amazon. Mere parchment barriers indeed: So much for the leadership of Latin America. And, to add injury to insult, The Economist recently reported that “Latin America is the deadliest place for environmentalists.”

So what is the best response to our new climate reality? Time is short and resources are scarce. Rather than spending both on quixotically trying to change the text of the Charter, environmental advocates should focus on changing Canadians’ political priorities.

Jason MacLean is an assistant professor at the Bora Laskin Faculty of Law, Lakehead University.

As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National will be regularly featuring leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ upcoming conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032.

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