Tuesday, June 2, 2015

The Right to a Healthy Environment in Canada. It sounds good, but what does it mean? We consulted a legal scholar to find out.


David Suzuki Foundation and Ecojustice have teamed up to
campaign for a Canadian 'Right to a Healthy Environment'.
A major new movement is hitting Canada, causing municipalities across Canada to formally support a Canadian 'Right to a Healthy Environment'. But what would such a right achieve, and how do the municipal declarations contribute to the campaign? We took the opportunity to ask an expert questions on our minds, and hopefully on yours too.

David Boyd pictured with his daughter. (c) David Boyd.
David Boyd graduated from IRES in 2010. His thesis examined the experiences of 92 countries with the right to a healthy environment. His work has not only led to contributions towards drafting new constitutional provisions related to environmental protection in other countries (from Tunisia to Grenada), it helped inspire the David Suzuki Foundation’s Blue Dot Movement, which is a campaign for Canada to include the right to a healthy environment in our Constitution. As part of the campaign municipalities are signing individual commitments, and we had an opportunity to ask David a few questions about the implications of the right for a healthy environment at both the municipal and national scale, and how such a movement could help change both the legal and natural landscape in Canada. Thanks, David, for your time and insights!

Q: Environmental laws seem to get most attention at the provincial and national scales, so what’s the role of the municipal declarations? Do they have any teeth of their own, or are they merely symbolic?
Municipal declarations do not have direct legal effect but are proving to be more than symbolic. They highlight the importance of the right to a healthy environment and reflect the overwhelming support of Canadians for recognition of this right. The 45+ municipalities that have passed declarations are reviewing their environmental bylaws, policies and programs and looking actively for ways to improve. Among our next challenges (besides making progress at the federal and provincial levels) is helping local governments identify and adopt best practices in protecting the health of their citizens and ecosystems. Municipalities are already seeking advice about how best to do this.

Q: I’m no constitutional lawyer, but my basic understanding is that it is a very high-level legal document—the highest. That would make it the ultimate authority, but perhaps also not prescriptive in any detail, so perhaps it’s good and bad as an enabler of change. What level (constitutional, national, provincial, etc.) of legal changes are you aiming for in R2HE, and why?
The protection of human rights in constitutions is necessarily vague—think of the right to freedom of expression as a classic example. Legislatures then have the primary responsibility of respecting, protecting, and fulfilling those rights that enjoy constitutional recognition. Respecting the right to a healthy environment means government actions cannot directly threaten or violate it. Protecting the right means passing and enforcing laws to ensure that third parties like corporations don’t violate the right. Fulfilling the right means taking positive actions to guarantee clean air, safe drinking water, fertile soil, and healthy ecosystems, such as cleaning up contaminated sites, implementing recovery plans for endangered species, etc.
Recognition of the constitutional right to a healthy environment would have a domino effect on all levels of government in Canada, pushing us to catch up with other wealthy nations in terms of the strength of our environmental laws and standards. My forthcoming book Cleaner, Greener, Healthier: A Prescription for Stronger Canadian Environmental Laws and Policies (UBC Press) demonstrates how far Canada lags behind the legal rules in other wealthy industrialized countries.
Constitutional recognition of the right to a healthy environment would also have non-legal effects on Canadian values and attitudes. For example, look at the way the inclusion of the right to equality in the Canadian Charter of Rights and Freedoms has contributed to widespread support for same-sex marriage.

Q: And once there’s a change in the law, then what? Who has to do what in order for the Right to a Healthy Environment movement to be successful? Does someone have to sue someone else, or will change happen without that? And who would be likely to be suing? NGOs? Or also private citizens, municipalities, First Nations, etc.?

Once environmental laws, policies, and standards are strengthened, then implementation begins, with governments doing their job. Imagine that recognition of the right to a healthy environment led to a Canada Clean Air Act, national standards for ambient air quality, and fees for emissions of air pollutants such as particulate matter, nitrogen oxides, sulphur dioxide, benzene, etc. Emissions of these pollutants would be reduced, preventing premature deaths, reducing respiratory illnesses, cardiovascular disease, and cancer, avoiding unnecessary health care expenditures, and improving the health of ecosystems. Lawsuits would only be needed in cases where the law was being violated or the right to a healthy environment would be violated. Lawsuits could come from any of the above individuals or organizations.

Q: I’m starting to sound like my daughter Tiva when I tell a story, but “Then what happens?” Once we’ve got new laws, and it’s clear how the courts are interpreting them, then what might we expect in terms of real change on the ground? Who might do what differently? What kinds of loopholes might we expect to be constructed for whom to sneak through?
I think I answered the first part of this question in my previous response. The evidence from other countries experiences are that the ultimate outcome of constitutional protection of the right to a healthy environment is improved environmental performance—faster reductions in emissions of air pollutants, faster reduction of greenhouse gas emissions, and better protection for endangered species.

Here are a couple of tangible examples. Norway, like Canada, is a major oil and gas exporter. Unlike Canada, Norway added the right to a healthy environment to its constitution in 1992. Several years later Norway passed a law requiring the petroleum industry to achieve zero discharge of toxic, persistent, and bioaccumulative chemicals into the ocean. At the time discharges measured millions of kilograms annually. After a transition period of some years, the industry has now achieved the legislated target of zero.

Over the past decade two similar oil spills happened in coastal waters in Newfoundland and Brazil. In the Canadian case, PetroCanada was fined a paltry $350,000 and in the Brazilian case, Chevron was fined $170,000,000. To put these numbers in context, the Chevron fine is larger than the total of all environmental fines in the history of environmental law in Canada. The difference is because the Brazilian right to a healthy environment led to stronger laws and policies such as the Environmental Crimes Act and a dramatic increase in the stringent enforcement of environmental laws.

I have not looked at whether the right to a healthy environment can act as a shield, but loopholes are always a possibility!


However, the constitutional right to a healthy environment has led to the emergence of a new principle of environmental law called "non-regression" which prevents governments from weakening existing environmental laws, regulations, and standards. Under this principle, recent changes by the Harper government that weakened the Canadian Environmental Assessment Act, Fisheries Act, Species at Risk Act and other environmental laws would have been rejoiced as unconstitutional. The right to a healthy environment is an idea whose time is now.

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