The Charter's environmental challenge
The right to a healthy environment must align with human rights by gaining constitutional recognition.
Parliament is considering legislating the right to a clean environment for all Canadians. It shouldn't have to; it's already inherent in the Charter of Rights and Freedoms. The courts, however, must recognize that the right to a clean environment is a prerequisite for other human rights and, therefore, constitutionally protected by inference.
Although novel in Canadian law, this approach has found success internationally and avoids both the pitfalls of the regular legislative process and the sticky problem of a constitutional amendment. The importance of the environment hardly needs to be mentioned. It supports life on Earth, including human life. And yet we don't acknowledge that Section 7 of the Charter, guaranteeing the right to life, liberty, and security of person, is inherently implicated in environmental law decisions?
Instead of seeking constitutional protection for the right to a clean environment, we have Bill S-5 under review in the House of Commons. If passed, the preamble to the Act will recognize that every individual in Canada has a right to a healthy environment and require the government to protect that right.
However, Bill S-5 will not be granted the primacy and intractability of constitutional law. This is problematic; environmental protections should not be subject to political pressure. They must not be mere policy preferences to be changed at the whim of a particular government. Constitutional fortification would provide a more robust legal basis for environmental protection and properly arm the legal system to protect the human rights of Canadians. The most constitutionally feasible approach to achieve that is getting the courts to recognize the right to a clean environment under the Charter through interpretation by the courts. It has already succeeded in other jurisdictions, where the courts have interpreted the right to a healthy environment as a constitutionally protected fundamental right.
Internationally, the interdependence of the environment and human rights is acknowledged. The preamble to the Paris Agreement states parties "should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights."
Climate change litigation increasingly relies on human rights. In Marangopoulos, the European Committee of Social Rights recognized the link between the right to health, under Article 11 of the European Social Charter, and the right to a healthy environment. In a landmark decision, the Inter-American Court noted an "undeniable relationship between the protection of the environment and the realization of other human rights."
Of course, there must be. Human rights rely on the possibility of human existence within a social structure that respects fundamental human attributes such as dignity, equality and liberty.
The World Bank, hardly an alarmist voice in climate politics, warned in a report that 4°C of warming was likely by the century's end, which, according to scientist Kevin Anderson of the Tyndall Centre for Climate Change Research is "incompatible with any reasonable characterization of an organized, equitable and civilized global community."
Recognizing the connection between human rights and the environment is logically unimpeachable and equally applicable to Canadian jurisprudence. What's more, it would allow for the right to a clean environment to evolve over time as new environmental challenges emerge and new scientific knowledge becomes available.
Climate justice is essential for our survival. The judiciary must adapt to the existential threat that climate change poses. Human rights, legal systems, and the very existence of ordered human society are under threat, and Canadian courts need to ready themselves to protect Canadians against this risk. Acknowledging the inherent connection between human rights and the environment is a necessary first step to enforcing environmental protections for the benefit of all.