Enshrining a right to healthy environment
In Canada it would be a challenge to agree to a constitutional amendment. But it may be the only path forward.
It was a move 50 years in the making, but last July, the United Nations’ General Assembly adopted a historic resolution, declaring that people’s access to a clean, healthy and sustainable environment is a universal human right.
The resolution received near unanimous support, and calls on member states, international organizations and businesses to enhance their efforts to ensure a healthy environment for everyone.
UN Secretary-General António Guterres said the move would help states accelerate the implementation of their environmental and human rights obligations and commitments.
The idea goes back to 1972 in Stockholm during the UN Conference on the Environment, where member states declared that people have a fundamental right to "an environment of a quality that permits a life of dignity and well-being," and called for action to recognize this.
Since then, 156 of 193 United Nations member states have recognized the right to a healthy environment.
Among member states, more than 100 have entrenched the right in their constitutions. In about a dozen, the courts have recognized it as implicit in the constitution and an essential part of the right to life. In Greece, Argentina and Costa Rica, the courts deemed it part of the right to life, which led to constitutional amendments to include it. Even Russia has recognized this right in its constitution and legislation.
But what does it mean now that the UN General Assembly has also recognized it?
That will be the topic of a panel discussion later this week at the CBA Environmental, Energy and Resources Law Summit, which will be guided in part by a new paper co-authored by Marc McAree, partner at Willms & Shier Environmental Lawyers, and Franz Lopez, the firm's former articling student.
For his part, McAree believes the UN resolution will strengthen environmental recognition and enforcement, and serve as a catalyst in several ways, including providing the impetus for further constitutional and legislative changes by governments.
It will also enhance awareness of the overall need to address environmental issues, specifically climate change, biodiversity loss and pollution — and do better.
“I think it will generally increase our understanding about how environmental harm affects people and the notion that better environmental protection is not an option,” McAree says.
“It will also strengthen environmental enforcement and should provide leverage for NGOs and grassroots movements to take steps to make change both legally and socially. It can help empower people to hold governments to account. ”
While he notes this will not happen overnight, there is also no time like the present for governments to get going on making changes and for polluters to change their ways. The world is at a point where people are starting to clue into the urgency of taking action. There will be less and less forgiveness of failure do so by governments and businesses, he says. “There is a recognition that changes are, if not necessary, perhaps even critical.”
Canada is one of the few industrialized countries that has yet to formally recognize the right to a healthy environment, keeping company with the likes of North Korea. However, legislation is working its way through Parliament to amend the Canadian Environmental Protection Act for the first time in 20 years. Bill S-5. which recognizes the right to a healthy environment, has passed in the Senate and is nearing the end of the legislative process in the House of Commons.
Dr. David Boyd, an environmental lawyer in British Columbia and the UN Special Rapporteur on human rights and the environment, sees inclusion in CEPA as a step in the right direction. But the most “transformative” environmental change has occurred in countries that have entrenched the right into their constitutions, he says.
He points to Costa Rica as a leader on this front, having rolled the right to a healthy environment into its constitution in 1994. It had been losing forest cover for decades — down to less than 25% of the country at one point. Today, it's grown to over 50% of the country, with 30% of the country protected as national parks. The country's embrace of renewable energy sees 99% of its electricity come from solar, wind, hydroelectric and geothermal.
The country has also passed laws banning environmentally destructive activities like open-pit mining and offshore oil and gas extraction. Revenue from the country's longstanding carbon tax pays Indigenous people and farmers to restore and reforest their land.
France is another leader, having entrenched the right in its constitution in 2004. France has since become the first country to ban fracking and bee-killing neonicotinoid pesticides. They were also the first country in the global North to ban the export to the South of any pesticide not permitted in France or the European Union.
Entrenching such a right in Canada's s constitution would be challenging given our complicated amending formula, says Heather McLeod-Kilmurray, the co-director at the Centre for Environmental Law and Global Sustainability at the University of Ottawa.
“It's interesting because there's the big push for putting it in the constitution, but once it's in there, how effective is it? That's the thing we're still learning about — what the impact of these various approaches are,” she says, noting that whether the recognition comes through a constitutional amendment, legislative reform or judicial interpretation, the discussion about which is best is still percolating.
But time is not a luxury we have, given the small window the world has to act on climate change. Taking the hard road may be the fastest.
