Introduction

All around the world, humans are experiencing the effects of environmental change, including global warming and pollution. The human race is growing while destroying animals, forests, and ecosystems (David R. Boyd, The Rights of Nature, A Legal Revolution That Could Save The World (Toronto: ECW Press, 2017) at Intro [Boyd, Rights of Nature]). In Rights of Nature, (at Intro), David R. Boyd suggests three main beliefs that are attributed to the reason human beings mistreat animals, species, and nature. The first is the belief that humans are superior and separate from other species, the second is that nature is the property of human beings, and the third is that humans have the right to and should pursue economic growth without limitations, and this is usually the goal of the community (Boyd, Rights of Nature at Intro). Economic growth is the main intention for businesses and governments and it usually takes precedence over environmental concerns (Boyd, Rights of Nature at Intro). For example, laws and contracts are set in place to protect property rights of individuals and businesses instead of protecting the environment (Boyd, Rights of Nature at Intro).

The notion of nature as a rights holder acknowledges that humans are not above nature; animals, oceans, forests, mountains, and so on, should all be granted the same legal rights as human beings. In western legal systems, humans are considered a separate species from ecosystems and animals (Boyd, Rights of Nature at Intro). The majority of legal systems treat animals and the environment as “property” (Boyd, Rights of Nature at Intro). Most rights and protections that exist in legal systems are not granted to animals and where legal protections apply to include animals, reptiles and farm animals are excluded and seen as property to be used by the meat industry (Boyd, Rights of Nature at Intro). As well, little protection is given to animals in regards to research or agriculture (Boyd, Rights of Nature at Intro). This reinforces the concept that human beings do not see nature as their equal, but as property. The environment and ecosystems are not awarded legal standing (that is, they are not recognized as legitimate parties by courts). Further, environmental protection laws legalize environmental damage by placing a limit on damage or regulating how much pollution corporations can cause within the law (Global Alliance for the Rights of Nature, “What is Rights of Nature?” online: Global Alliance for the Rights of Nature [Global Alliance]). The Rights of Nature involves a universal approach to the relationship between humans and nature. Human beings, as well as other species, are all intertwined and a balance between them should be maintained (Global Alliance).

Taking a holistic approach to nature also enhances environmental justice. Environmental Justice is defined in the proposed Canadian Environmental Bill of Rights as: “the principle that there should be a just and consistent distribution of environmental benefits and burdens among Canadians, without discrimination on the basis of any ground prohibited by the Canadian Charter of Rights and Freedoms” (David R. Boyd, “Elements of an Effective Environmental Bill of Rights” (2015) 27 J. Env. L. & Prac. 201 [Boyd, “Elements”] at 223). The concept of environmental justice means that the benefits of, harms of, and access to the environment should be equally shared between all members of a community (Boyd, “Elements” at 222). However, in Canada, socially and economically marginalized communities are exposed to more environmental harm and likely will not have equal access to natural resources from the environment (Boyd, “Elements” at 222). It is asserted that recognizing the legal standing of the environment would increase access to justice. Access to justice allows individuals to ensure that they are consulted and able to participate in decision-making on environmental matters. It empowers groups and brings about equality, enables individuals to seek redress from courts and tribunals, and increases society’s ability to prevent environmental harm (Boyd, “Elements” at 237).

This paper discusses the Rights of Nature and the human right to a healthy environment. We use the terms “environment” and “nature” to describe mountains, ecosystems, rivers, oceans, trees, lakes, and other elements of nature. (We have decided to leave a discussion about animal rights to the future.) When analyzing environmental laws, it is important to think about why these issues are important and how environmental protection will have long-term effects; not just for our generation, but for future ones.

Section III, History, describes human rights and the Canadian Charter of Rights and Freedoms in Canada. As well, it discusses the relationship between Canadian law and international law. Canadian lawmakers are allowed to consider and refer to international law when making decisions if there is no conflicting domestic law or if the domestic law is ambiguous and unclear. This section will also provide a brief overview of environmental rights in Canada and internationally.

The Human Right to a Healthy Environment, Section IV, focuses on international law and the right to a healthy and clean environment from a human rights perspective. The human right to a healthy and clean environment has been recognized in legislation and constitutions all over the world. The focus will be on legal materials from the following countries: India; Bolivia; Ecuador; and New Zealand. As well, it will briefly discuss the Inter-American Commission on Human Rights. In Canada, the right to a healthy environment is not recognized in legislation or in the Constitution. However, Canadians feel strongly about changing this and about enhancing environmental safeguards.

Section V discusses the meaning of legal standing in Canada and provides an overview of what the Rights of Nature are. The concept of the Rights of Nature encompasses the entirety of the environment and grants the environment the same legal rights as human beings. The environment should have its own rights instead of being thought of as property and only used for human consumption. This section will discuss countries where the Rights of Nature have been recognized—including India, Ecuador, Bolivia, and New Zealand. For example, New Zealand has granted a river and a national park their own legal rights and acknowledged them to be their own legal entities. This section then moves on to discuss Indigenous communities and their relationship with nature. Although Canada has not granted legal rights to the environment, Indigenous rights are based on the relationship between Indigenous (Aboriginal) people and the environment. These rights have been incorporated into the Canadian Constitution. This section also provides examples of Aboriginal* rights through Canadian case law.

The current Canadian and international environmental laws are discussed in Section VI. This section discusses the International Tribunal for Environmental Claims, protection of the environment and its processes. In addition, it discusses Canadian environmental legislation, specific to each province/territory.  

Finally, Section VII discusses recommendations for incorporating international environmental principles into Canadian domestic law, enforcing these laws and granting protection to the environment.

*A note re terminology: While the current preferred term among many Canadians is “Indigenous”, where our Charter, Constitution Act, legislation or caselaw use “Aboriginal” or “Indian”, we use that terminology.