By Ruby Pyke
What if there was a provision in the Constitution that protected the right to a healthy environment for all Canadians? In “The Right to a Healthy Environment,” Professor David R. Boyd argues that Canada could hugely benefit from the right to a healthy environment. This right would follow the example of many countries around the world (94 countries are cited as of the book’s publication in 2014) that have adopted a provision to this right in their constitutions.
In its basic form, the right to a healthy environment would include the right to clean air, water, and food (i.e., through healthy soils). In practice, this would include both substantive and procedural rights to ensure the quality of the environment as well as safeguards so that it is fulfilled. The right to a healthy environment would stimulate stronger environmental laws, help fill in gaps in environmental legislation, and protect current environmental laws and regulations from rollbacks by future governments. Boyd addresses some common criticisms to the provision (for instance, that it is too vague and a potential threat to the economy), but he points out that many of the concerns raised could be applied to all existing human rights.
In particular, the discussion and analysis of how this right affects other countries is thought provoking and inspiring. The ubiquity of green constitutions around the world reflects a shared evolution of values. Canadians do, on the whole, value and cherish the natural environment. An amendment to the Constitution for a right to a healthy environment would be a crucial step towards acting on these values. Boyd discusses some ways to enshrine the right into the Constitution, including direct amendments, litigation, or a judicial reference. For example, a direct amendment could involve clarifying that section 7 of the Canadian Charter of Rights and Freedoms (the right to “life, liberty, and security of the person”) includes the right to a healthy environment. In several cases, plaintiffs have put forward this argument, although so far, the courts have rejected it. More recently, in the Reference re Impact Assessment Act, the Supreme Court acknowledged that courts have an important role to play in protecting the “right to a safe environment” (citing Ontario v Canadian Pacific Ltd (at para 55)), however it was purely obiter (not determinative). These examples show that Canada is, hopefully, edging towards a more definitive acknowledgement of the right to a healthy environment. Yet the pace towards this acknowledgement is lagging. As climate change, which is intimately linked to a degrading environment, becomes more present and unavoidable around the world, it is more urgent than ever to be assertive in our actions to protect the environment.
To answer my initial question, if there was a provision in the Constitution that protected our right to a healthy environment, I believe that we would be better equipped to tackle the environmental crisis. Professor Boyd’s book offers insight, evidence, and inspiration to hope, and work towards, such a goal.
