Canadians are overwhelmingly in favor of a healthy environment.
They don’t.
Although 193 of 193 United Nations member nations have recognized the right, Canada is one the few industrialized countries that hasn’t, keeping company the likes North Korea.
More than 100 UN member countries have established the right in their constitutions. It has been recognized by courts in about a dozen countries as an integral part of the right-to-life and implicit in the constitution. The courts of Costa Rica, Argentina, Greece and Greece recognized it as part of the rights to life. Constitutional amendments were made to include it. Even though Russia has recognized this right in both its constitution and its legislation, it won’t be on the books.
The federal government introduced a new law in February. Bill S-5The Canadian Environmental Protection Act (CEPA) is being updated by the, something that hasn’t happened in 20 year. It recognizes the right to a healthy ecosystem, but there are still two years of consultations to figure out how it will work.
Devon Page, executive director at Ecojustice, Canada’s largest environmental law charity and executive director, would prefer to see the right legislation incorporated into the constitution.
“The constitution would be ideal if it could have been applied to provincial action. He says it would be the highest form recognition for a substantive rights.”
“But even substantive recognition in federal bills would be more thorough than what’s found in CEPA and could serve to be a precedent that could potentially be applied provincially.”
CEPA refers not only to the recognition of Canadians’ rights to a healthy environment but also to language that could foreshadow the need to balance economic factors with the right, which could make it less so.
Page says, “It’s classically Canadian.” “Weighing the environment versus the economy… it means rights are compromised. They create a policy-based framework without legal effect. This is a concern. They want to be seen to take the issue seriously, but not commit to anything.
A clear and specific recognition of the constitutional right to a healthy atmosphere would, however, give someone the ability to defend themselves against any infringement.
“You’d find the environmental equivalent of freedom to speech,” he said.
Dr. David Boyd, an environment lawyer in British Columbia and UN Special Rapporteur on Human Rights and the Environment, sees inclusion in CEPA as a step in the right direction. “But if it’s a human right and Canada’s serious about protecting human rights, then it should be in the Charter of Rights – where a lot of people already think it is.”
He believes that it will be within 10 years, or possibly 20. “Transformative change” has always followed in countries that have established the right to their highest and most important law.
Boyd points out Costa Rica, which in 1994 incorporated the right into its constitution. It had been losing its forests for decades, and its forest cover was at 25%. It now covers more than 50% of the country with 30% of it protected in national parks. Because of its embrace of renewable energy, 99% of the country’s electricity comes from solar, wind and hydroelectric.
Costa Rica also passed laws that prohibit environmentally harmful activities such as open-pit mining, offshore oil and gas extraction, and other forms of mining. The long-standing carbon tax in Costa Rica funds Indigenous people and farmers to restore their land.
Boyd states, “There are many ways that Costa Rica leads the world and shows what can be achieved.”
France is another leader. The right was enshrined in the constitution of France in 2004 by President Jacques Chirac (conservative), at the request his daughter, an environmentalist.
Boyd said that “amazing things” happened.
France was the first country to ban fracking, and bee-killing neonicotinoid. pesticides. They were also the first to ban the South from any pesticide that was not allowed in France or the European Union.
France and Costa Rica are co-leaders in the High Ambition Coalition for Nature and People. This coalition is working to create the strongest post-2020 global biodiversity framework. It also includes core members of Beyond Oil and Gas Alliance, which consists of states that have stated they will not allow additional extraction of fossil fuel reserves.
They live up to their promises. Boyd states that they do outstanding things domestically.
They’re not the only ones. After a Supreme Court decision upholding Argentina’s right to a healthy environment, the government of Argentina spent billions cleaning up Riachuelo River, and creating new drinking water infrastructure and waste management systems.
Boyd states that the project has “totally transformed this community, which was once one of South America’s most polluted places.” “This is happening all over the globe. High levels of pollution are being acknowledged by courts in these areas.
South Africa, one the most polluted African countries, recently made a similar court decision.
“The air quality has been horrible for many decades. Boyd says that finally, some citizens came together and brought a lawsuit on the basis of their right to a healthy atmosphere. The court agreed with them that this was unacceptable. “It told government that it needed to introduce new regulations to improve the air quality within six months.”
Boyd believes that judicial oversight and accountability have been effective in requiring governments for reports to the court about their progress. The Supreme Court of the Philippines upheld the right to continue mandamus and required that governments report back to the court on their progress. It also created a panel consisting of scientists and judges to monitor government efforts.
Boyd said that 30 years of experience as an environmental attorney has shown him that there are no other steps that can be taken to create a healthy environment.
The UN Human Rights Council approved a resolution in October on the right of everyone to live in a clean, healthy, sustainable environment. This was the first official recognition at the global level. Boyd stated that he is “cautiously optimistic” it will pass with an overwhelming majority.
Page claims that this will change the game.
“It’s even more clear that Canada is on a very small list of countries that have not recognized the right for a healthy environment.”
Boyd believes that Canada could have been a leader. The late 1960s saw Pierre Trudeau launch consultations with Canadians on what should be in the Charter. Transcripts of the hearings show that many agreed that the right to a healthy atmosphere should be included. Jean Chretien, then the Justice Minister, rejected an attempt to include it in the Charter by Svend Robinson (an NDP MP).
“Canada would have been the first country to recognize the right of healthy environment. Boyd says that the Charter is now very difficult to amend.
He is optimistic that things will change over time, and that they will be easier than people imagine. Recognizing the constitutional right to a healthy environment should be a catalyst to cleaner air, cleaner water, and protection and restoration for biodiversity. It can also block efforts to repeal environmental legislation.
Boyd believes that including it in CEPA is a good idea, provided it includes stronger language.
He says, “It could change the way governments make decisions about all manner of topics.”
They should also force them to avoid decisions that leave people scratching the heads, such as the recent approval of Bay Du Nord offshore oil exploration in Newfoundland. The announcement came just days following the UN releases its most bleak report yet from the Intergovernmental Panel on Climate Change and comments from UN Secretary General Antonio Guterres that investing in new fossil fuel infrastructure would be “moral and economic madness.”
Boyd states, “I don’t know how you can reconcile that decision with people’s right to a healthy climate in the midst a climate emergency.”
“My hope is that (including the right to a healthy environment in CEPA) would be something that changes the government’s course on decisions related to air, climate, water and biodiversity.”