Safeguarding the Longue Durée: Environmental Rights in the Canadian Constitution

Abstract

Before 1982, the only environmental right that could be found in the Canadian Constitution was the right to regulate, and even that was ambiguous.1 The absence of an explicit environmental protection power in the Constitution has created much confusion,2 but Canadian courts have consistently stepped in to fill the breach. In case after case, the Supreme Court of Canada has affirmed federal,3 provincial4 and even municipal5 governments’ powers to regulate for environmental protection. The question left unanswered is when (or whether) Canadian governments have an obligation to do so.6 Is there a right to environmental protection in the Canadian Constitution and, if so, what is its locus and content? Is a constitutional amendment necessary to bring Canada in line with the majority of modern democracies around the world, which enjoy constitutional environmental protection? This article will argue that Canada’s Constitution does provide protection for the environmental rights of its citizens. There is nothing to prevent courts from recognizing environmental deprivations of the existing rights enshrined in our Canadian Charter of Rights and Freedoms7 and much authority in support of this approach. Moreover, a broader right to a healthy environment may be found in Aboriginal rights under section 35 and/or as an unwritten constitutional principle. Part II defines environmental human rights, contrasting the “existing rights” approach with the concept of a free-standing right to environmental quality. Part III addresses the threshold question of state action in environmental rights claims. In Part IV, the article evaluates the environmental rights of Aboriginal peoples under section 35 of the Constitution, and explains that courts have already recognized the environmental content of section 35 and will continue to do so. Part V evaluates the viability of environmental claims under the Charter and discusses ongoing litigation on this question. Part VI proposes the recognition of the right to a healthy environment as an unwritten constitutional principle. The author argues that there is no value more fundamental than that of a healthy environment and if it is not mentioned in the Constitution, then this must be because the requirement of environmental protection is so fundamental as to be self-evident. Part VII outlines the argument for explicit constitutional recognition of the right to a healthy environment and Part VIII presents a brief conclusion.