Recommendations for Canada

In the article “Elements of an Effective Environmental Bill of Rights” (at 207) David Boyd suggests that legal recognition of environmental rights can be enforced and strengthened in four different ways. These include:

1. Inclusion in a constitution;

2.  Inclusion in human rights codes;

3. Inclusion in existing environmental legislation; or

4. Stand-alone legislation.

Human Rights Law aims to protect equality and fight against discrimination. This usually involves human rights commissions, tribunals or courts dealing with complaints regarding violations of human rights; these provide a venue where rights violations can be heard, as well as, complainants can find remedies (Boyd, “Elements” at 210). These laws could be amended to include protections for environmental rights.

The Alberta Bill of Rights, RSA 2000, c A-14 currently recognizes the following:

(a)   The right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b)   The right of the individual to equality before the law and the protection of the law;

(c)    Freedom of religion;

(d)   Freedom of speech;

(e)   Freedom of assembly and association; and

(f) Freedom of the press.

Again, it could be amended to include the right to a clean environment.

Constitutional Amendment

The Charter is part of the Canadian Constitution. It has been entrenched, meaning it is very difficult to change and is legally protected. Constitutional protection for the right to a healthy environment has been incorporated in many other countries as seen above; this has inevitably lead to strengthening environmental laws, improved enforcement, and increased public participation (Boyd, “Elements” at 207). There are only a few ways to change the Canadian Constitution; one of the ways is through the Political Amendment Process (Boyd, “Elements” at 208). This process requires the approval of Parliament and the approval from at least seven provinces or territories, which represents the majority of Canada (Boyd, “Elements” at 208). Amending the Constitution and adding the right to a healthy environment under s 7 of the Charter would inevitably place protections on nature, ecosystems, and our environment along with improving our health; conflicting legislation and regulations would have to change to conform to this constitutional amendment.

Amending the Constitution to grant nature its own rights and standing would have huge impacts on the protection and preservation of our ecosystems and forests, rivers, trees and mountains. Other countries have set rules and regulations in place to work towards nature’s protection and the protection of human being’s health and wellness.

Interpretation of Charter Rights

The right to a healthy environment is recognized in international law. All human rights are connected and intertwined. Although the SCC has not yet recognized it, the concept of legal standing for the environment can be and should be included as a human right to a healthy environment, under Charter s 7 – the right to life, liberty and security.

Even though the SCC has dealt with cases regarding some aspects of environmental protection, it has not yet dealt with the issue of the right to a clean and healthy environment under s 7 of the Charter. However, there have been academics who strongly argue that Charter s 7 can play a significant role in environmental litigation (See, for example: Avnish Nanda, “Heavy Oil Processing in Peace River, Alberta: A Case Study on the Scope of Section 7 of the Charter in the Environmental Realm” (2015) 27 J Env L & Prac 109; Nickie Vlavianos, “The Applicability of Section 7 of the Charter to Oil and Gas Development in Alberta” (2008) 17(3) Constitutional Forum Constitutionnel 123; Catherine Jean Archibald, “What Kind of Life? Why the Canadian Charter's Guarantees of Life and Security of the Person Should Include the Right to a Healthy Environment” (2013) 22 Tulane Journal of International & Comparative Law 1; Lynda Collins and David Boyd, “Non-Regression and the Charter Right to a Healthy Environment (2016) 29 J Env L & Prac 285).

In addition to Charter s 7, other Charter sections ( e.g., s 2(b) – freedom of expression; s 15(1)—equality) have been argued in environmental cases. In one case arising from Alberta, the SCC was asked to address the role of the Charter in environmental cases. In Ernst v EnCana Corporation, 2013 ABQB 537 (CanLII); appeal dismissed: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (CanLII), Ernst brought an action against the EnCana Corporation for damage to her water well and the Rosebud aquifer caused by construction, drilling, and other fracking activities from the company. The action also claimed Alberta Environment [now Environment and Sustainable Resource Development] and the ERCB [now the Alberta Energy Regulator] owed the applicant a duty to protect her water supply and had failed to address her complaints about EnCana. The applicant claimed for damages against the Energy Resources Conservation Board (ERCB) for breaches of her Charter s 2(b) right to freedom of expression. The ABQB and the ABCA agreed that the claim against the ERCB should be struck. Unfortunately, the SCC, in a split decision (4:4:1) in Ernst v Alberta Energy Regulator, [2017] 1 SCR 3, 2017 SCC 1 (CanLII), eventually agreed that Ernst’s claim for Charter damages should be struck, with the “tie breaking” justice ruling it was because she had not given proper notice of the Constitutional challenge.

In a separate case, another party, Alberta Environment, was not successful in getting all of Ernst’s claims against it struck (Ernst v Encana Corporation, 2014 ABQB 672).

Including environmental rights in a jurisdiction’s environmental legislation would be easier to incorporate and add changes to a law that already exists, instead of implementing new laws (Boyd, “Elements” at 212). The Yukon Territory and Quebec are the only provinces/territories in Canada where the right to a healthy environment is incorporated into the main environmental statute (Boyd, “Elements” at 212).

Including legal provisions which make an Environmental Bill of Rights paramount over other laws would improve its strength and enforcement (Boyd, “Elements” at 239). Boyd notes that this has happened in legislation in some Canadian provinces and territories. For example, “The Human Rights Acts of both Nunavut and the Yukon contain the following provision: this Act supersedes every other Act, whether enacted or made before or after this Act, unless it is expressly declared by the other Act that it shall supersede this Act” (Boyd, “Elements” at 239). As well, Boyd notes that in “Quebec’s Charter of Human Rights and Freedoms includes a clause that makes some of its provisions superior to existing and future laws unless those laws explicitly state that they apply despite the Charter.” (Boyd, “Elements” at 239). Paramountcy would enable an environmental law to supersede other laws and guarantee enforcement of environmental laws and environmental protection and preservation.