Canada’s Constitution should include right to healthy environment, argues new book

Through the Canadian Charter of Rights and Freedoms, Canadians are guaranteed rights including life, liberty and equality for all. But what about the right to a healthy environment?

It’s something University of Ottawa environmental law professor Lynda Collins would like to see added to the Constitution, and she has created a clear roadmap in her new book, The Ecological Constitution: Reframing Environmental Law.

She says environmental law has seen big successes, in some cases bringing species back from the brink of extinction and reducing air pollution. But despite a complex web of environmental regulations at federal, provincial and municipal levels, we haven’t achieved a sustainable environment — largely because those laws are subject to the shifting stances of politicians and regulators.

“For example, the federal government can make regulations about fish, and waters where fish live, but no level of government is actually required to protect our environment,” Collins said in an interview with What on Earth host Laura Lynch. “Governments could, and kind of are, leading us down a path to catastrophe without ever violating the Constitution, which I think is really strange.”

In the book, Collins outlines some of the key elements of an ecological constitution — among them the principle of sustainability, which would protect against laws or government actions that harm the environment. It also includes the human right to a safe, clean, healthy and sustainable environment as well as the rights of nature, which grant fundamental rights to things like rivers and forests.

“Sometimes, serious environmental pollution doesn’t obviously violate the rights of existing humans,” said Collins. “So it can be more honest and more straightforward just to say, ‘Look, you’re violating the rights of this river’ or ‘You’re violating the rights of this mountain ecosystem.'”

Collins’s constitutional plan also emphasizes intergenerational equity — that is, the idea that society has a legal obligation to future generations — as well as the precautionary principle, which says that if there’s a real potential for something to do irreversible harm to the environment, society shouldn’t wait for definitive science before drawing the line.

“If we are waiting for scientific certainty before we’re regulating for sustainability, we could easily wait until it’s too late,” said Collins.

Collins’s ecological constitution would also rely heavily on Indigenous knowledge, law, science and leadership.

Darcy Lindberg, an assistant professor and specialist in Nêhiyaw (Plains Cree) constitutionalism at the University of Alberta, says Collins’s approach is one that Indigenous nations have long been advocating.

Under the current Canadian model, Lindberg argues, Indigenous peoples regularly have to go to court to fight environmental harms. A constitution that starts from a place of protection would fundamentally shift that position.

Indigenous nations are also revitalizing their own laws and writing their constitutions, he said, and the natural world plays a central role.

“This always includes their relationship with their land,” said Lindberg, who hopes the Indigenous constitutions will put additional pressure on non-Indigenous governments. “It’s something that is just so innate that it would almost seem like a violation when we think about ourselves as constituting peoples if we’re not considering our relationship with lands, waters, animals, plants — all those things that are around us.”

Collins admits that reopening the Constitution to add environmental protections is no small matter, but she says we know it can be done because more than 100 countries around the world have done it — from New Zealand to EcuadorPakistan to the Netherlands.

“These laws of ecology, they’re not negotiable. So you can, to a certain extent, download your debts to your kids and your grandkids, but you can’t avoid them,” said Collins. 

“It’s really a question of whether you want to leave it to your kids to put back together the ecological foundations of our society, or whether you want to do the hard work of figuring that out now.”

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