By: Sophia Stavropoulos
This past year at the annual United Nations Climate Change Convention (COP26) – where over 100 countries come together to discuss how to tackle climate change and biodiversity loss – Canada agreed to the Glasgow Climate Pactwhich aimed to push global efforts to address climate change to new levels. Despite this ‘achievement’ many critique COP26 as not going far enough to ensure the protection of our environment. With the inherent non-binding nature of international agreements, it is difficult to rely solely on the goodwill of the political elite to enact policies to ensure a safe and habitable environment for citizens. As we currently stand, to achieve the target of limiting warming to 1.5 degrees, established at COP21 in Paris in 2015, “unprecedented transformations of energy, land, infrastructure and industrial systems are necessary.” These conditions thus support the growing argument to enshrine the right to clean water and air, and a safe environment into the Canadian Constitution as a human right.
By no means is this a radical idea. In 1971, Pennsylvania adopted its Environmental Rights Amendment into its Constitution. As of January 2022, New York’s Constitution now guarantees that “each person shall have a right to clean air and water, and to a healthful environment.” Conversely, in 2011 Bill C-469, which if passed would have been the Canadian Environmental Bill of Rights, did not pass a third reading in the House of Commons.
Despite this, corresponding actions are emerging in Canada, where four recent legal actions have been taken against federal and provincial governments on the claim that inaction towards climate change has infringed Canadians’ section 7 and section 15 Charter rights. In Mathur et. al. v. Her Majesty in Right of Ontario, for example, a group of young environmental activists are contesting the Government of Ontario’s decision to introduce the Cap and Trade Cancellation Act of 2018 and enact weak climate policy. This case argues that “the right to life, liberty, and security of person” under section 7 of the Charter includes the right to a safe environment and a “stable climate system.”
The decisions in these cases will influence the path of Canada’s future climate policy, and whether the courts will emerge as an avenue for dissatisfied citizens to force climate action on the basis that inaction infringes Charter rights. The potential for court involvement however, is seen by some as a danger in which the courts will dictate Canada’s climate change policy as a result of a “perceived failure” by politicians to enact stringent climate policy. This has become a strong critique against amending the Constitution to include environmental rights.
Further opposition to enshrining this right is the discussion in the legal community of whether the Charter guarantees positive social and economic rights. A large majority of the Constitution is comprised of negative liberties which means the government must “refrain from interfering with the individual rights holder;” for example, the right to freedom of expression. In contrast, positive liberties “require others to take action to realize the individual rights holder’s liberty,” and thus would include action on climate change for a safe environment.
However, one issue with the current path of legal challenges is that each claim targets the federal or provincial level of government – not both. As a result, requiring one level of government to ensure the right to a healthy environment will most likely be poorly realized if such policies are not integrated and collaborated amongst all levels of government.
An international foundation for integrating environmental rights as a human right in Canada is already established. The United Nations has identified that “[a] safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation.” However, the lack of binding authority of international organizations has tended to lower the practical power such a declaration could have.
As such, will imperatives of international coordination help drive the adoption of domestic legal protection for human rights?
On June 18th, 2019, a motion was passed in the House of Commons that declared a climate emergency in Canada. But what did this declaration of a climate emergency really do? In truth, this resulted in more civic engagement and the creation of plans, rather than concrete, immediate action. The almost insubstantial nature of such a declaration is another reason to support arguments to amend the Charter of Rights and Freedoms to cement environmental rights in legal doctrine. In the latter half of the twentieth century when Prime Minister Pierre Trudeau was working to repatriate Canada’s Constitution, “one demand of the day was to entrench environmental rights in the new constitution.” While these rights did not end up being included in the final Charter, it is important to recognize the historical underpinnings of such calls to action.
It would seem naive to perceive this path of action as one that would immediately solve Canada’s ecological challenges. However, by placing a human rights perspective on these environmental issues, this “perspective changes everything, because governments have clear, legally enforceable obligations to respect, protect, and fulfill human rights.”
There is strong evidence across the globe that demonstrates the impact of enshrining environmental rights in the Constitution. International lawyer David Boyd, who serves on the UN Special Rapporteur on Human Rights and the Environment points to Norway to highlight this consecration of environmental rights as “a catalyst for stronger environmental laws, better enforcement of those laws and enhanced public participation in environmental governance.”
A prime example can be found in Chile where 155 citizens have been elected to write a new Constitution that puts the “climate and ecological emergency” at the forefront of guaranteed legal rights. Importantly, this constitutional change and the debates surrounding environmental rights in Chile is a reflection of the broader notion that solutions to climate change and biodiversity may “require re-examining humanity’s relationship to nature itself.”
There is a clear and current legal movement to invoke the ‘living tree’ principle of the Constitution and include the right to a safe and healthy environment, because the state of our planet is not the same as it was when our Constitution was written. While the critiques are valid, there seems to be an immediate prediction that the Courts will decide in favour of environmentalists and thus force the government to perform concrete action to mitigate the impact of climate change. This seems to point to the notion that the opposition both understands and acknowledges government failure to provide strong climate policy, and that if there was a legal requirement, governments would have to act, no longer placating us with promises of net zero futures.
Relying on myriad climate-based court challenges will not protect all Canadians from the harms of environmental degradation – consecrating environmental rights may not either but it is a necessary step forward.
Sophia Stavropoulos is a Master of Public Policy candidate with a Collaborative Specialization in Environmental Studies at the University of Toronto’s Munk School of Global Affairs and Public Policy. Her research interests include environmental policy, Indigenous issues, and American cultural & political history. Sophia holds a Bachelor of Social Sciences, Joint Honours in Political Science and History from the University of Ottawa.