Most Canadians believe they have the right to a healthy environment.
Although 156 of the 193 member states of the United Nations have recognized the right, Canada is one of the few developed countries in the world that has not, keeping company with countries like North Korea.
More than 100 UN member states have the law enshrined in their constitutions. In about a dozen, the courts have recognized it as implicit in the constitution and as an integral part of the right to life. In Greece, Argentina, and Costa Rica, courts considered it part of the right to life, leading to constitutional changes to include it. Even Russia recognized this right in its constitution and legislation, but you won’t find it in the books here.
In February, the federal government presented Bill S-5 updating Canada’s Environmental Protection Act (CEPA), something that hasn’t happened in 20 years. It includes recognition of the right to a healthy environment, but there are still two years of deliberations to clarify how it will work.
Given Canada’s weak environmental laws and the rate of environmental degradation, Devon Page, executive director of Ecojustice, Canada’s largest environmental law charity, would have preferred the law to be enshrined in the constitution or in separate legislation.
“The constitution is ideal because it would then also apply to state action. It would be the highest form of recognition of a substantive right,” he says.
“But even substantive recognition in a federal law would be broader than what is in CEPA and could serve as a precedent that could be applied at the provincial level.”
While CEPA refers to the recognition of Canadians’ right to a healthy environment, it also contains language that potentially anticipates a balance between the law and economic factors that could undermine it.
“It’s classic Canadian,” says Page. “Weighing the environment against the economy…means that rights are compromised. The concern is that they create a policy-based framework that has no legal effect. They want to be seen as taking the issue seriously without committing to anything.”
On the other hand, a clear and defined constitutional recognition of the right to a healthy environment would give someone the opportunity to protect themselves when the right is violated.
“You would see the ecological equivalent of freedom of speech,” he says.
dr David Boyd, Environmental Advocate in British Columbia and UN Special Rapporteur on Human Rights and the Environment, sees the inclusion in CEPA as a step in the right direction. “But if it’s a human right and Canada is serious about protecting human rights, then it should be in the Charter of Rights — where a lot of people already assume it is.”
He believes it will be there within 10 years, possibly 20. In countries that have enshrined the law in its highest and strongest law, a “transformative” shift has followed.
Boyd points to Costa Rica, which incorporated the law into its constitution in 1994. It had been losing forests for decades, and forest cover had fallen to less than 25% of the country. Today it has grown to over 50% of the country with 30% of the land protected in national parks. The country relies on renewable energy as 99% of its electricity comes from solar, wind, hydroelectric and geothermal sources.
Costa Rica has also passed laws prohibiting environmentally destructive activities such as open pit mining and offshore oil and gas exploration. Proceeds from the country’s longstanding carbon tax pay tribal peoples and farmers to restore and reforest their land.
“There are so many ways Costa Rica is leading the world and showing what can be done,” says Boyd.
France is another frontrunner. The right was enshrined in her constitution in 2004 by conservative President Jacques Chirac at the urging of his environmentally conscious daughter.
Boyd says “amazing things” followed.
France was the first country to ban fracking and neonicotinoids used to kill bees pesticides. They were also the first country in the Global North to ban the export to the South of pesticides not authorized in France or the European Union.
France and Costa Rica are also co-leaders of the High Ambition Coalition for Nature and People, which seeks to create the strongest possible post-2020 global biodiversity framework, as well as core members of the Beyond Oil and Gas Alliance of states that have said , they would not allow additional exploitation of fossil fuel reserves.
“You keep your word. They do exceptional things domestically,” says Boyd.
And they are not alone. In Argentina, the government has spent billions to clean up the Riachuelo River, build new drinking water and sanitation infrastructure, and a new waste management system, following a Supreme Court ruling upholding the right to a healthy environment.
“It completely transformed this community that was once one of the most polluted places in South America,” says Boyd. “It happens all over the world. In these places of high pollution, the courts agree with the citizens that this cannot be tolerated by governments.”
A similar court ruling was recently issued in South Africa, one of the most polluted countries on the African continent.
“The air has been terrible there for decades. Eventually, some citizens got together, filed a lawsuit based on their right to a healthy environment, and the court agreed with them that this is totally unacceptable,” says Boyd. “She told the government it must introduce new regulations to improve air quality within six months.”
Ongoing judicial oversight and accountability, which requires governments to report to the court on their progress, has proven effective, Boyd says. In the Philippines, the Supreme Court upheld the law, invoking “continued Mandamus” as part of its oversight of plans to restore Manila Bay, and established a panel of judges and scientists to oversee the government’s efforts.
“I have been an environmental advocate for 30 years and there is no other step that can be taken to create such a cascade of positive change,” says Boyd of enshrining the right to a healthy environment.
Last October, the UN Human Rights Council passed a resolution on the right to a clean, healthy and sustainable environment, which was the first formal recognition at the global level. A similar resolution is due to be presented to the UN General Assembly soon, and Boyd says he is “cautiously optimistic it will be passed overwhelmingly.”
Page says this will change the ball game.
“Then it is clearer that Canada is on a very short list of nations that have not recognized the right to a healthy environment.”
Boyd says the irony is Canada could have been a leader. Back in the late 1960s, when Prime Minister Pierre Trudeau began consultations with Canadians about what should be included, transcripts of the hearings show that many said the right to a healthy environment should be included. In 1981, former NDP MP Svend Robinson made a last-ditch effort to have it included in the charter, but was dismissed by then-Justice Minister Jean Chretien.
“Canada would have been one of the first countries in the world to recognize the right to a healthy environment. Now we have a charter that is very difficult to change,” says Boyd.
But he’s confident that will change with time and will ultimately happen a lot easier than people expect. Recognizing the right to a healthy environment in the Constitution should be a catalyst for cleaner air, cleaner water, more action on climate change, and the protection and restoration of biodiversity. It can also block attempts to reverse environmental laws.
Meanwhile, Boyd believes inclusion in CEPA has the potential to be useful if it ultimately includes stronger language.
“It can change the way governments make decisions on all sorts of issues,” he says.
And ideally, force them to avoid decisions that make people scratch their heads, like the recent approval of the new Bay Du Nord offshore oil exploration in Newfoundland. This announcement came just days after The UN released its somber report yet by the Intergovernmental Panel on Climate Change, commenting on UN Secretary-General Antonio Guterres that investing in new fossil fuel infrastructure was “moral and economic madness”.
“I don’t see how you can reconcile such a decision with people’s right to a healthy environment in the midst of a climate catastrophe,” says Boyd.
“My hope is that this (including the right to a healthy environment in CEPA) would be something that would change the course of government in making decisions about air, climate, water and biodiversity.”