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Do governments owe us clean air and clean water? Many Canadians expect our government to protect us from contamination and other environmental harms in outdoor air, water and land. But is this a legal right?

The first formal recognition of environmental rights is found in the Stockholm Declaration, signed in 1972. Principle 1 recognizes our “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.” But this is international law, more of a statement of aspiration than a legal requirement.

David Boyd, one of Canada’s leading academics on environmental law and policy, argues that most countries in the world have followed the Stockholm Declaration, and do recognize a formal right to a healthy environment. He reviewed the place of environmental rights in 193 constitutions and related laws and court decisions. (Professor Boyd summarized his findings here). More than 90 countries explicitly recognize environmental rights in their constitutions, he says. In at least twenty others, the courts have ruled that the right to life includes an implied right to a healthful environment.[1] Altogether, 177 of the world’s 193 UN member nations recognize the right to a healthy environment through their constitution, environmental legislation, court decisions, or ratification of an international agreement.

So why not Canada? Many environmental activists want substantive environmental rights accepted as a part of Canadian law. Some are focused on expanding such rights to include the right to a healthy climate. How could this be done?  It’s a long, long, long-shot, but the best possibilities are the Canadian Charter of Rights and Freedoms, aboriginal law, and the concept of public trust.

Environmental rights and the Charter

Ecojustice is in the midst of litigation on behalf of two members of Aamjiwnaang First Nation near Sarnia’s Chemical Valley. They argue that the Ministry of the Environment’s decision to approve additional air pollutant releases infringes their clients’ right to life, liberty and security of the person, guaranteed under section 7 of the Charter, because of the cumulative effect of all the Chemical Valley pollution on their health:

The Applicants have been deprived of personal choices that most Canadians take for granted, such as not living in a constant state of fear for their health and safety, being able to work and engage in recreation outdoors, and not being forced to choose between their culture and community connections, and their own health and safety.

They also argue that the decision infringes equality rights guaranteed under section 15(1) of the Charter:

As a result of the cumulative effects of pollution approved in Chemical Valley, and the economic and cultural barriers to relocation off-reserve, the Applicants bear a disproportionate burden of the significant adverse health impacts resulting from the pollution approved by the Director.

Their claim is bolstered by links between environmental rights and the right to life in other countries around the world.

Ecojustice expects their case to be heard in early 2014. Meanwhile, they continue to campaign with the David Suzuki Foundation to amend the Charter to explicitly recognize the right to a healthy environment. That would be a big change!

Environmental rights and treaty rights

In January, the Mikisew Cree First Nation and Frog Lake First Nation filed applications for judicial review of two federal omnibus Budget Bills, Bill C-38 and C-45, in Federal Court. These Bills slashed federal environmental protections, such as the Fisheries Act, the Canadian Environmental Assessment Act, and the Navigable Waters Protection Act.

They argue that these amendments are a breach of the Crown’s obligation to manage and protect their traditional territories to ensure they are able to meaningfully exercise their treaty rights, and were made without the required consultation.

The Treaties signed by the Mikisew and Frog Lake First Nations promised that the Crown would protect First Nations’ traditional way of life and, in particular, their rights to hunt, trap and fish throughout lands outside their reserves. The Budget Bills significantly reduce federal oversight of environmental assessment and protection of lands and waters in the First Nations’ traditional territory. Thus, say the applicants, these changes endanger their treaty rights.

Public trust

The public trust doctrine is based on the principle that certain resources must be preserved for public use, and is generally applied to navigable waterways and beachfront land. The US-based group Our Children’s Trust (OCT) has launched lawsuits across the US and internationally to argue the doctrine also applies to the atmosphere. As they explain:

The government has a legal obligation to preserve these trust resources and to manage them for the benefit of everyone, not just for the benefit of the wealthy and politically-connected corporations. The government cannot allow the privatization of the atmosphere

The doctrine stretches all the way back to Roman times, long before anyone understood how important and fragile the atmosphere truly is. Fifteen hundred years ago the Emperor Justinian wrote, “The things which are naturally everybody’s are: the air, flowing water, the sea, and the seashore.” The legal actions apply this deep-rooted doctrine to our modern understanding of the atmosphere, demanding that the government recognize and protect our collective right to a stable, livable climate.

The lawsuits seek a declaration that the governments, in allowing greenhouse gas emissions at current and increasing levels, are in breach of their fiduciary trust to protect the atmosphere. The federal lawsuit also seek an injunction requiring the national government to take all necessary steps to reduce CO2 emissions by at least 6% each year, beginning in 2013.

Although most of the lawsuits were dismissed without being heard on their merits, the action was allowed to proceed in New Mexico. In Texas the court found that all natural resources are protected under the public trust doctrine and the state constitution.

OCT is now looking for Canadian partners. After all, our Supreme Court has recognized that we have some public rights in the environment held in trust for us all by the Crown, in British Columbia v. Canadian Forest Products, Ltd. (Canfor). They also went back to Roman times: “The notion that there are public rights in the environment that reside in the Crown has deep roots in the common law…  Indeed, the notion of “public rights” existed in Roman law: “By the law of nature these things are common to mankind — the air, running water, the sea…””

But don’t we already have environmental rights?

Some provincial environmental laws do mention a right to a healthy or healthful environment, such as Ontario’s Environmental Bill of Rights, 1993 (EBR), Quebec’s Environment Quality Act, the Northwest Territories’ Environmental Rights Act (also applicable in Nunavut), and the Yukon’s Environment Act. However, these laws create primarily procedural rights, not substantive rights to any particular quality of air, water or land. For example, Ontario’s EBR gives the public rights to notice and consultation on some government decision-making, rights to request investigations and reviews, and whistle-blower protection.

Attempts to expand these procedural rights into substantive ones have been consistently rejected by both courts and governments. In Clean Train Coalition Inc. v. Metrolinx, for example, neighbours tried to force Ontario to purchase electric, rather than diesel, locomotives for the new rail link to the Toronto airport. The court concluded:

The applicant argues that the decision affects legal rights because the preamble of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 (“EBR”) recognizes the right to a healthy environment. However, the preamble does not confer any legal right. Moreover, s. 2(1)(c) of the EBR limits its purposes to protecting the right to a healthful environment “by the means provided by this Act.”  The EBR provides specific mechanisms to address environmental complaints, which do not include judicial review.

 Where do we go from here?

According to Professor Boyd, Canada remains one of just 16 holdouts across the world in refusing to recognize substantive environmental rights. If so, it is obvious that merely recognizing substantive environmental rights has not banished climate change, air pollution, or any other major environmental ill. Still, environmental rights could be a powerful tool – particularly in a country like ours where the courts wield substantial power. And it is precisely because the courts do wield such power that we might see substantive environmental rights recognized.

Keep an eye on these long-shot lawsuits launched by hard-working environmental groups against all odds. Sometimes, they change the world.

Meredith James and Dianne Saxe

This article was originally published in SLAW

[1]  Section 64 of the Canadian Environmental Protection Act contains limited recognition that substances entering the environment are toxic if theyconstitute a danger to the environment on which life depends.

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