This past year, David Suzuki and other like-minded environmentalists toured Canada as part of the Blue Dot Tour, promoting the idea of amending the Charter of Rights and Freedoms to include the right to a healthy environment.
In 2015, the campaign now seeks to mobilize Canadians, encouraging them to push their municipalities to adopt declarations respecting the right to live in a healthy environment. With enough municipalities adopting the framework, the idea is that provincial and territorial governments will follow suit, setting the stage for a constitutional amendment.
While the efforts of the Blue Dot Tour are encouraging, the campaign will likely not achieve its goal. There is no appetite to reopen the constitution in this country. Our most recent attempts, in the form of the Meech Lake and Charlottetown Accords, nearly tore the nation apart.
Moreover, questions related to the constitutional status of aboriginal and francophone rights remain unresolved, and it is difficult to imagine that these issues would be sidelined for an amendment to include the right to a healthy environment in the constitution. The campaign’s reliance on the political process to obtain a constitutional amendment will likely not succeed.
The environment is of paramount importance to Canadians. Public opinion polls consistently confirm the strong attachment Canadians have with nature. The Supreme Court of Canada has even gone as far as referring to environmental protection as “a fundamental value in Canadian society.”
However, legislatures in Canada have failed to live up to this ideal. The past decade has witnessed a significant rollback in environmental protections. It’s time that environmental laws in Canada reflect the value we place on the environment, and not on the whims of the political party in power.
As those behind the Blue Dot Tour recognize, this can be achieved through constitutionalizing environmental rights under the Charter. However, this will require a reliance on the law, not politics. Environmental protections can be read into existing Charter provisions, such as under Section 7, which protects the life, liberty and security-of-the-person interests of all individuals.
By recognizing that Section 7 includes protections from harms that might result from activity that is environmentally damaging, the court would be giving constitutional status to environmental rights, which could be expanded upon with more cases.
This approach is in line with a theory of democratic engagement that has emerged in Canada. Our winner-takes-all electoral system rewards platforms geared toward causes directly and immediately affecting the largest number of voters. This prevents important interests from being advanced in our democratic system.
For instance, addicts, aboriginal communities, feminists and sexual minorities have historically had limited ability to advance their interests through the electoral system. From the failure of legislatures to embrace harm-reduction policies to the slow acceptance of same-sex marriage, these causes have tended to be ignored by politicians due to their limited — or in some instances adverse — impact on their electoral chances.
However, despite their limited ability to exert influence through the electoral process, these groups have had major success in advancing their interests in our democracy through the legal system: forcing the federal government to provide a safe injection facility exemption from drug laws elevated harm reduction to constitutional status; granting aboriginal title provided the Tsilhqot’in exclusive use and occupation of traditional lands; shifting away from misogynistic understandings of consent empowered survivors of sexual assault; and rejecting discriminatory definitions of marriage provided same-sex couples the right to marry.
The legal system has provided these groups and their causes standing, allowing them to successfully advance their interests in the face of political indifference and opposition.
Protection of the environment is similar to these causes. Ignored and unlikely to see real traction in the electoral process, the environmentalists behind the Blue Dot Tour should learn from these successes and develop a legal strategy to entrench the right to a healthy environment in the constitution.
Avnish Nanda is a recent graduate of York University’s Osgoode Hall Law School in Toronto and the executive director of JusticeFundr, a crowdfunding platform for public-interest lawsuits in Canada.
