AN ENVIRONMENTAL BILL OF RIGHTS
Law and Government Division
TABLE OF CONTENTS
INADEQUACY OF CANADAS EXISTING LEGISLATIVE SCHEME
FEDERAL ENVIRONMENTAL BILL OF RIGHTS
AND PROPOSED ENVIRONMENTAL BILLS OF RIGHTS
IN OTHER JURISDICTIONS
TO LEGISLATIVE SOLUTIONS
AN ENVIRONMENTAL BILL OF
RIGHTS FOR CANADA
Since the 1960s, when North
Americans began to express concern about protection of the environment,
one proposal for achieving this has been the formulation of a "right"
to environmental quality. In Canada, environmentalists have been pressing
for an environmental bill of rights since the early 1970s. They reason
that as fundamental as the right to food, shelter or freedom from discrimination
is the right of all members of society to live in a safe physical environment
in which the continued diversity of non-human life is also ensured. The
most recent opinion polls in this country confirm the increasing commitment
of Canadians to the well-being of their natural environment.(1)
As early as 1978, a survey
conducted for Environment Canada found that 89% of Canadians considered
the deterioration of the natural environment to be of major concern.(2)
This finding has been reinforced by subsequent polls, including the December
1990 Gallup Poll, which indicated that more than two-thirds of Canadians
are buying "environmentally friendly" products.(3)
rights is an attractive answer to our need to balance the right of property
holders to develop their properties with societys right to environmental
safety.(4) The formulation
of rights could be a legal mechanism for creating or shifting the balance
between competing interests. Such a right residing in each Canadian would
provide the courts with direction in, for example, determining the strength
of the individual Canadians claim for environmental health in cases
where it competed with the right of another individual or corporation
to develop property.
An environmental bill of
rights would be a law seeking to remove obstacles that prevent individuals
and public interest groups from participating in the environmental decision-making
process and litigating issues of environmental degradation. In recent
years a number of drafts of such a bill have been introduced at the federal
and provincial levels in Canada but have resulted in only one qualified
success, in Quebec.(5)
The creation of a right which would have the desired effect on the quality
of the environment would be difficult; some have suggested that a duty
placed on the state and individuals to avoid harming the natural environment
might be more effective than the vesting of "rights" in each
Concern for the environment
has been increasing around the world since the early 1980s. In 1987, the
Brundtland Report heightened awareness of the need for significant legislative
and other changes, none of which has yet materialized.(7)
Because we have now recognized the direct link between the health of our
environment and our quality of life, we should also recognize the individuals
interest in environmental health, and his or her duty to act to preserve
It is important that an
environmental quality right be a substantive one, which would give the
right-holder status to participate in decisions affecting the protected
right. Holders of a substantive right to a healthy environment could sue;
any injury to them would have to be compensated; and the remedy would
be for their benefit. An environmental bill of rights would be "a
statutory guarantee of the right of each person to a healthy environment,
and the duty of governments to ensure this healthy environment in their
role as the trustees of all public lands, waters and resources for the
benefit of present and future generations."(8)
An environmental bill of
rights is seen as part of an effort to make Canadian environmental law
more democratic. Recognizing a right to a healthy environment, both directly
and indirectly through procedural and substantive reforms, would be an
important part of this effort. More democratic environmental law is necessary
to empower citizens to protect the quality of the natural environment
for their own and future generations.(9)
An environmental right is seen as being similar to a civil liberty, in
that it would constrain government action.
Proponents of the environmental
bill of rights would want it to constrain any potentially harmful uses
of private property by individual owners.(10)
The right would have to be an interest in environmental quality that was
recognized and protected by the law to the same extent as property rights
are protected. Compliance with the environmental right would be a legal
duty, whose contravention would be actionable.
Environmental rights might
also be of indirect benefit in one or more of the following ways:
they might contribute
to higher political visibility for conflicts between environmental
values and other social goals;
they might shift the
burden of proof from those who want to protect the environment to
those whose actions might harm it; and
they might have a subtle
positive moral effect, which might be of more real effect than new
Some have suggested that
the introduction of a substantive environmental right in Canada could
lead to attitudinal change that would eventually encourage improvements
in environmental protection and quality.(11)
Systems of rights might be more flexible environmental protection tools
than specific rules and standards set out in legislation and regulations.
Also, the use of a language of environmental rights might contribute to
the development of more effective environmental rules. Individual Canadians
who became committed to environmental protection might be more effective
as stewards of the environment and agents of change than the courts, regardless
of legislative initiatives.
Other commentators have
suggested that the most important effect of a substantive right to environmental
quality would be the promotion of an "environmental ethic":
"a new way of thinking about [the human] relationship to nature which
could permeate [our] world-view and infuse [our] plans with a new concern
for maintaining the balance and diversity of nature."(12)
This ethic would be effective in leading us toward a better social and
legal climate for environmental protection.
Even in the academic debate
about the efficacy of an environmental bill of rights, doubts have been
expressed. It has been suggested that the energy devoted to this very
legal solution to environmental problems has diverted attention away from
the original goals of the environmental movement, which, without the limitations
of the legal context, would have led to more constructive means of measurably
improving environmental quality. Environmental problems are not legal
ones, nor will legal solution necessarily provide all the answers. Some
writers suggest that the environmental movement should be seeking to develop
an environmental moral code that would lead to world-wide environmental
reform: "the development globally of a whole new perspective on the
interrelatedness of humankind and nature."(13)
A number of writers have
explored this idea. Some have suggested that legislative measures would
not lead to a real difference in environmental quality unless they were
preceded by the widespread adoption of a new ethic. Canadians growing
awareness of environmental issues and increasing public support for measures
to protect the environment may suggest that this environmental ethic is
already being developed in Canada. Whether the ethic should precede the
legislation is an interesting question, but an academic one.(14)
Clearly, legislative initiatives should not be stalled until such time
as there might be sufficient documentation of adherence to an environmental
In spite of any potential
shortcomings, public support for more comprehensive environmental protection
legislation, including an environmental bill of rights, is widespread.(15)
The environmental bill of rights is only one proposal within the new legislative
approach that is being called for to improve the protection of Canadas
Environmental rights legislation
has been enacted by legislators in a number of North American jurisdictions,
most recently the Northwest Territories. The Environmental Rights Act
passed by the Territorial Assembly on 6 November 1990 gives individuals
the right to clean air, water and soil, and the power to sue polluters
if the government fails to act.(16)
Canada has endorsed the
1987 Brundtland Report, one of whose cornerstone principles is sustainable
development. Canada may thus be committing itself to a new legislative
scheme for fulfilling its environmental responsibilities, globally and
locally. One arm of this scheme might be the enactment of an environmental
bill of rights.
INADEQUACY OF CANADAS EXISTING LEGISLATIVE SCHEME
The details of the local
and global environmental problems Canadians now face, including air pollution,
global warming and concerns about waste management, are becoming better
understood and may even seem overwhelming. Clearly, any single legislative
response cannot allay all of these fears, or establish an omnibus solution.
Those who have called for an environmental bill of rights have claimed
that it would enable individual Canadians to contribute in an active,
concrete way to the protection of their own environment. This particular
solution would not exclude others, but would be central in that it would
put responsibility and control squarely in the hands of individual Canadians.
How has the existing legislative
scheme failed? The following ways have been suggested:
The legal rules of causation
make it difficult for individuals to succeed with tort actions in
cases of environmental negligence or nuisance. For example, in an
attempt to stop, or recover damages from, an industrial polluter,
the onus is on pollution victims to prove that a particular polluter
has caused the alleged environmental damage. In most cases, several
pollution sources could also have contributed to the problem, rendering
it impossible for liability to be located in one polluter, even if
that polluter is the major cause of the problem. For example, in a
situation of lead contamination, it would be difficult to establish
that factory lead emissions were the cause, since car exhaust might
also be largely to blame.(17)
Individuals are discouraged
from court action by the costs of participation in hearings, and the
possibility, if unsuccessful, of having to pay the polluters
by industrial pollution seldom receive notice of applications for
permits for pollution discharge, even if they are directly downwind
or downstream of the source of the emissions. As a result, they cannot
make their own concerns known during the permit-granting process.
Limited access to scientific
evidence often makes it difficult for the public to discharge the
burden of proof when attempting to influence the setting of environmental
Environmentalists and other
advocates of an environmental bill of rights point out that under the
existing legislative scheme the government is not obliged to enforce its
own environmental laws. It can decide at its own discretion whether any
provision will be enforced. In most circumstances, individuals and environmental
groups are unable to compel the government to act to protect the environment,
except through the force of political pressure.
Even where the common law
does afford a remedy to the individual who seeks to litigate an environmental
concern, there are serious obstacles to proceeding or being successful
before the courts. These obstacles are dealt with below under the headings
"Standing" and "Private Prosecutions."
The first hurdle for an
individual attempting to litigate an environmental problem in the public
interest is the question of whether permission will be granted to bring
the case to court; that is, whether the plaintiff will be granted "standing."
Unless the court grants standing to the would-be litigant, the action
cannot proceed. Historically, for an individual to have standing to litigate
a claim, he or she had to establish some private concern that justified
access to the courts. Thus, the standing rule restricted the right to
use the courts to those seeking to protect their own rights, and to the
The basis for the latter was that the government was the sole protector
of the public interest.(19)
The standing barrier has
been the subject of much academic attention, and some judicial attention,
in recent years. In the field of constitutional law, the Canadian courts
have created several openings in the standing barrier,(20)
so that individuals have been granted status to challenge the constitutionality
of certain laws or activities. Similar reasoning has yet to be applied
to environmental litigants before the Supreme Court of Canada.
On a number of occasions,
environmental groups in the United States have sought standing before
the courts to prevent development which members feared would have negative
environmental consequences. In 1972, in response to the case of Sierra
Club v. Morton,(21)
which was then before the U.S. Supreme Court, Professor Christopher Stone
wrote an article called "Should Trees Have Standing?"(22)
In it, he developed a theory for the extension of legal personality so
that a right to standing could be conferred on natural objects, such as
trees or mountain ranges.
Stones argument was
that the judicial system in the past extended legal personality to entities
such as women, slaves and corporations, and that there is no reason why
this status should not be extended to natural objects. Stone claimed that
environmental groups could represent such objects and argue their interests
before the courts.
Although Stones reasoning
was not accepted by the majority of the Court, it clearly influenced the
strong dissent of Mr. Justice Douglas, with which Mr. Justice Blackmun
concurred. Since that decision, Stones article has not been referred
to again by a U.S. court, but it is often cited in legal writing on environmental
rights. This lack of standing to represent the natural environment for
its own sake continues to prevent Canadians from legal recourse for their
environmental protection concerns.
In lawsuits against the
Canadian government for damages in cases of environmental wrongs, the
private law rules of standing apply.(23)
More liberal rules of standing apply where equitable relief, such as injunctive
or declaratory relief, is sought.(24)
The Supreme Court of Canada has confirmed the more liberal standing rule
in such cases.(25) Public
interest standing will be granted where a serious issue is raised, where
the plaintiff has a genuine interest in the issue, and where there is
no other reasonable and effective way for the issue to come before the
The result of these standing
rules is that environmental groups should be granted standing where they
seek prerogative remedies, such as declarations, injunctions and orders
quashing government decisions, unless the relief sought is against a federal
board, commission or other tribunal.(26)
The liberal standing rules developed in the context of constitutional
litigation will be applied in environmental cases involving the Canadian
Charter of Rights and Freedoms.(27)
However, there has been no expansion of the common law standing rule as
regards actions in tort, such as negligence or nuisance actions.
Some federal environmental
statutes provide legislated standing rules that enhance individuals
access to the courts. An example is the Canadian Environmental Protection
Act (CEPA).(28) CEPA
has little or no effect on standing with respect to civil remedies other
than those specifically provided for in the Act and has no effect on standing
to sue for damages. In Ontario, the Ontario Law Reform Commission has
recommended the elimination of a number of present barriers to standing,
so that the public could have standing in public nuisance cases and litigants
in public interest cases would not face cost penalties should they lose
An environmental bill of
rights would make it possible for Canadians to sue for nuisance in the
civil courts, or to stop any project or program that was not being conducted
legally. It would also grant a right to prosecute environmental wrongdoers
before courts and administrative tribunals, and allow individuals to speak
before the courts on behalf of the environment.
The only means for individual
Canadians to enforce environmental protection statutes is the historical
common law right to launch a private prosecution and thereby gain access
to our criminal justice system, acting in the place of the Crown Attorney
as the prosecutor in enforcing a law. This tool is rarely used, although
some environmental advocates have begun to re-examine its possible usefulness.
Professor Linda Duncan of Dalhousie University has recently written a
guide to using this common law remedy.(29)
There are limitations on
the impact this remedy will have. First, offences may be prosecuted privately
only by summary conviction, for which much less serious penalties are
available;(30) the more
serious indictable offences can be prosecuted only by the Attorney General.
Also, the Attorney General may intervene at any time to take charge of
a private prosecution, or may even stay the case.(31)
An individual who is considering incurring costs, legal and otherwise,
to pursue a prosecution, may be discouraged from doing so on realizing
that he or she may at any time lose control of the action.
Any proceeding in the criminal
law context must be proven by the prosecutor "beyond a reasonable
doubt," which is a more onerous burden of poof than the civil law
standard, "balance of probabilities." Given the obvious difficulty
of proof of causation of environmental damage and risks, this burden makes
the environmental litigants success before the criminal courts even
More serious criticisms
of private prosecutions include the point that such prosecutions are based
upon past actions and cannot prevent future environmental damage. The
criminal law requirement of mens rea, or intention to commit a
crime, may also make success more elusive. Also, the only remedy available
to the criminal courts is the imposition of a fine, which is usually small
in relation to the extent of the environmental damage suffered. As well,
any moneys recovered by the criminal justice system revert to the governments
general revenues and do not go towards the cost of repairing the environmental
damage. There is an exception to this rule in Ontario, where the court
is empowered to order that the polluter must prevent further harm and
restore the natural environment.(32)
Most American environmental
protection statutes provide for individual access to the courts for enforcement
purposes by way of a citizen suit provision.(33)
This allows individuals to enforce any legislative environmental standard,
or to bring an action to compel a government agency to fulfil any statutory
duty. It has been suggested that this mechanism should be considered for
inclusion in Canadas legislative environmental protection scheme.(34)
FEDERAL ENVIRONMENTAL BILL OF RIGHTS
The enactment of an environmental
bill of rights for Canadians should be a start to implementing the principles
of sustainable development conceptualized in the Brundtland Report. These
principles were welcomed by environmentalists worldwide, and embraced
in Canada by the National Task Force on Environment and Economy in a report
to the Canadian Council of Resources and Environment Ministers.(35)
The principles are a source of policy direction for Canadian legislators
as they seek to take legislative action that recognizes the interdependence
of the environment and the economy.
The Brundtland Report encourages
governments to reformulate legislation so as to recognize the rights and
responsibilities of citizens and states with respect to sustainable development.
Governments are reminded of their responsibility as stewards holding resources
in trust for future generations.(36)
Environmentalists have called
for a bill that would create substantive and procedural rights. The substantive
rights would include the following:
The right to a clean,
healthy environment, and the preservation of its natural, historic
and aesthetic values, for present and future generations (there would
be a corresponding duty on governments to ensure the preservation);
A public right to participate
in the regulation process;
The right to sue polluters
for actual or apprehended environmental harm, without having to show
any private interest, and to require the government to enforce environmental
The right to access
to information and adequate intervenor funding.
Procedural rights would
include: reforms of the standing rules, class actions and burden of proof
requirements in environmental litigation; new costs rules; and a law to
protect from reprisal any employees who reported environmentally harmful
conduct by their employers. It has also been suggested that the onus of
proof should be shifted from plaintiffs to defendants, so that polluters
(or alleged polluters) would have to establish the environmental safety
of their activities.(37)
Creating environmental rights
for Canadians would alter the existing balance between the right of individual
property holders to develop their property and the right of the community
to freedom from environmental harm resulting from that development. One
result might be to shift the burden of proof to those who propose to engage
in environmentally harmful activity, that is, on to the party who is doing
the harm, not its victims.
The Canadian Bar Association
(CBA) has recommended that the Canadian government work toward a long-term
strategy of entrenching the right to a healthy environment in the Constitution,
and that, as an interim step, it enact a statute enshrining this right.(38)
The recommendations include: detailed provisions for formalizing public
participation; the enhanced availability of civil and criminal remedies
for citizens in environmental litigation; abolition of the common law
limits on standing in relation to nuisance actions; expanded access for
individuals and environmental groups; and a greater variety of remedies
for environmental harm.
The Canadian Environmental
Law Research Foundation (C.E.L.R.F.) in 1984 produced a Preliminary
Analysis of Elements of a Federal Environmental Bill of Rights for
Environment Canada. This work contained detailed submissions on more than
14 specific elements that could or should be included in an environmental
bill of rights.
In order to be effective
enforcers of environmental protection measures, individuals and public
interest groups need an access-to-information statute requiring government
departments to keep indexes of their materials and to make information
available on request.(39)
have also suggested that an environmental bill of rights provide for an
office of an environmental ombudsman,(40)
or a Parliamentary Commissioner for the Environment. This office exists
in New Zealand, having been established under the Environment Act 1986,
which was introduced on 15 July 1986. The New Zealand Parliamentary Commissioner
has been given various powers that enable her to fulfil her role as the
non-partisan auditor of the governments performance of its environmental
An environmental bill of
rights might also include a provision enabling citizens to bring class
actions in environmental litigation.(41)
A class action allows any citizen to sue for damages on behalf of others
who are similarly aggrieved. This innovation would go beyond the broadening
of the standing rule, to allow the courts to assess and compensate an
injury to the entire community affected by environmental damage, not just
the individual litigant.
An environmental bill of
rights would also have to provide for intervenor funding if public participation
in litigation is to become a reality. The cost of a civil action is beyond
the means of an individual or an environmental interest group. As well,
awards of funds to cover the litigation costs of deserving litigants or
interest groups might encourage constructive, informed and useful public
participation in hearings and litigation.
AND PROPOSED ENVIRONMENTAL BILLS OF RIGHTS
IN OTHER JURISDICTIONS
Some American jurisdictions,
including Illinois, Massachusetts, Rhode Island, Texas and Pennsylvania,
have implemented constitutional protection of the right to a healthy environment.
Recent constitutions enacted in other countries, including Brazil, have
included guarantees of safe environmental quality.(42)
In Canada, there has been since 1977 a partial environmental bill of rights
in place in Quebec, in the Environment Quality Act (EQA).
Quebec legislation provides
that every person has a right to a healthy environment and to its protection
and gives individuals recourse to the Superior Court, where an injunction
may be granted to prohibit any act that interferes with the right to a
is seen as a "qualified success" by environmentalists.(44)
The right to a healthy environment is only operative to a limited extent,
in that the generally restrictive standing rule is relaxed only when there
is contravention of regulatory provisions in the EQA. The Act does create
an expedited process for groups wanting to enforce environmental laws.
Quebec also has innovative class action law, giving Quebeckers better
access to the courts in environmental matters than other Canadians enjoy.
A more comprehensive environmental
bill of rights was proposed in Ontario in 1987. Bill 13, the Ontario Environmental
Rights Act, was introduced in the Ontario legislature by Ruth Grier of
the New Democratic Party as a Private Members bill. The bill would
have given every Ontario resident a right to a healthy environment, and
would have recognized the government as trustee of all public lands, waters
and resources, for the benefit of present and future generations. It would
have allowed any person to sue to halt potentially harmful activities,
and empowered the court to award damages for harm already done and ordered
the polluter to install pollution control equipment. Bill 13 would also
have provided for environmental class actions; reduced the burden on the
claimant to prove the causal link between the polluter and the environmental
harm; enhanced public participation in the regulation process; granted
intervenor funding; and given improved access to information.
Bill 13 moved through first
and second reading in the Ontario legislature with support from all parties.
It had not been defeated, and was assigned to the Resource Development
Committee, when Ruth Grier introduced and moved second reading of Bill
12, which she hoped would replace the identical Bill 13. Unfortunately,
neither bill had been passed before a provincial election was called.
Indeed, Bill 12 was one of at least eight unsuccessful attempts to introduce
a provincial environmental bill of rights. The current N.D.P government
in Ontario is now studying the issue in committee. Environmental lawyers
for the most part expect that this government will advance environmental
reforms, beginning with an environmental bill of rights.(45)
The first example of a more
comprehensive and successful environmental bill of rights was passed in
the Northwest Territories in November 1989. The Northwest Territories
Environmental Rights Act provides guarantees for:(46)
public access to government information; protection from retaliation for
employees who report their employers environmentally harmful activities;
the right to demand a government inspection of a suspected environmental
problem; the right to prosecute polluters privately; and the diversion
of fines paid by polluters to pay the costs of citizens who have launched
a private prosecution. Commentators expect that this legislation will
be a model for legislation in other Canadian jurisdictions.
A draft Charter of Environmental
Rights will be considered for signing at the 1992 meeting of the Economic
Commission for Europe (ECE).(47)
The Charter would proclaim a number of rights based on the fundamental
principle that "everyone has the right to an environment adequate
for his general well-being."(48)
The Charter would make ECE governments responsible for enforcing its provisions.
A number of American states
have enacted environmental rights legislation, including Michigan and
Minnesota. U.S. constitutional law doctrines related to property law have
had significant impact on the implementation of these statutes and the
evolution of environmental protection law.
The U.S. Constitution
affords protection to individual property owners from economic loss caused
by government interference with their property interests, and this doctrine
is based on the "takings clause." A related doctrine, the "public
trust doctrine," has developed in American case law; it has been
described as a right to a clean or attractive environment.(49)
The public trust doctrine provides that certain kinds of land, such as
shorelands and parks, are the subject of a public trust, and may not be
alienated to private owners or used in such a way as to decrease their
value to the general public. Clearly, if this is a right to a clean environment,
it is a limited one.
The public trust doctrine
gives members of the public standing to challenge government decisions
regarding the subject land, regardless of any pecuniary of proprietary
interests the individual litigant may have. The doctrine is said to have
been rejuvenated for use in the environmental protection context in the
writings of Professor Joseph Sax of the University of Michigan, who was
also the drafter of the Michigan Environmental Protection Act (MEPA),(50)
which was first enacted in 1971.
MEPA provides that an action
may be brought for declaratory or injunctive relief against anyone who
has polluted, or "is likely to pollute, impair or destroy air, water
or other natural resources or the public trust therein."(51)
Subsection 1202(1) grants any member of the public standing to sue other
members of the public and government agencies. Defendants may argue that
they have acted reasonably by complying with government standards, but
these standards are subject to review by the courts, which may impose
a new standard, and direct that it be adopted by the government.(52)
The burden of proof has
been shifted by MEPA to the extent that the plaintiff need only establish
the existence or likelihood of pollution or other damage and need not
establish that the defendants conduct was unreasonable. Once the
plaintiff has proved the likelihood of harm, the burden shifts to the
defendant to show that its conduct was reasonable. Reasonableness can
be proven by establishing that there was no prudent and feasible alternative
to the conduct, which was "consistent with the promotion of the public
health, safety and welfare in light of the states paramount concern
for the protection of its natural resources from pollution, impairment
The implementation of MEPA
is considered to have resulted in a major extension of the public trust
doctrine.(54) The public
trust doctrine, as applied under MEPA, has been used to check and control
development and has not overturned standards set by government agencies
in most instances.(55)
The power of the courts to do so was intended to allow the law that developed
under MEPA to keep pace with technological changes that could not have
been foreseen by the legislature.(56)
Since MEPA was enacted,
at least four studies have reviewed the emerging case law, the first three
between 1970 and 1976,(57)
and the most recent in 1985.(58)
The initial studies arrived at two important conclusions: that the law
had significantly enhanced the opportunities available to individuals
to act in the courts to protect the environment; and that the courts had
not been flooded with frivolous claims. Indeed, the courts have not been
over-burdened with MEPA litigation at any time since its passage. Subsequent
studies confirmed the continuation of these two trends, and also established
that technical issues associated with environmental litigation were not
overwhelming the courts.
The studies of MEPA demonstrated,
however, that its proponents hopes for improved environmental quality
have not been realized. The cases have been relatively few, and the costs
of litigation seem to be discouraging private individuals from litigating
environmental claims (although the contingency fee system of legal fees
in the U.S. should make representation more accessible than it is in Canada).
The 1985 study determined that costs are stimulating a large number of
settlements of MEPA cases.(59)
Although settlements may represent a positive result in some instances,
it is also possible that they are an undesirable compromise caused by
financial pressure. To the extent that individuals cannot afford to make
real the environmental rights created by MEPA, the statute will have failed
to accomplish its drafters objectives.
Particularly scarce have
been cases in which the courts have interfered with pollution standards
set by government agencies, the most important innovation in MEPA. It
may be that its use will be expanded as the case law evolves and litigants
and judges become more prepared to interfere with agency discretion.
At the federal level in
Canada, the first motion for the adoption of an environmental bill of
rights was made unsuccessfully by Charles Caccia, then Minister of the
Environment, in the House of Commons on 9 July 1981.(60)
Since then, the federal N.D.P. has advocated an environmental bill of
rights, but has made no specific proposals.(61)
Some environmental advocates
have expressed their preference for a constitutional guarantee of environmental
health, rather than the statutory guarantee that would be created by an
environmental bill of rights. Indeed, during the 1981 negotiations leading
to the Canadian Charter of Rights and Freedoms, environmentalists
recommended that a fundamental right to safe environmental quality be
entrenched in the Canadian constitution. A constitutional guarantee would
have given Canadians a right to good environmental quality that would
have prevailed over all federal and provincial legislation, and would
have constrained government action. Every statute in Canada, existing
or future, would have been required to protect the constitutional right
to a healthy environment.
The constitutional protection
of environmental quality is still the long-term goal of most advocates
of an environmental bill of rights. There is some suggestion that this
right may be judicially interpreted as already being protected by one
of the existing Charter provisions. This would render it unnecessary to
add any amendment to the Charter to create such a constitutional guarantee.
The long process of litigating the cases that could lead to such an interpretation
by the Canadian courts, or, alternatively, the lengthy period necessary
for any constitutional amendment, have led proponents to conclude that
a statutory guarantee is desirable in the interim. Indeed, statutory protection
of the right to a healthy environment may have some advantages over a
The disadvantage of a Charter
right is that it would be effective only against the government, and not
against private polluters. A statutory bill of rights would provide recourse
against both governmental and non-governmental polluters. Also, a statutory
scheme would be more useful in terms of altering the procedural hurdles
to enforcement of environmental protection legislation, to adjusting the
onus of proof, and to changing the system of cost recovery so as to reduce
its dampening effect on citizen participation in litigation.
A statutory guarantee of
environmental protection in an environmental bill of rights would, if
it so provided, take precedence over all federal legislation except the
Charter. However, it would not be binding upon provincial legislation,
as the Charter is. Only a Charter guarantee can create a right to environmental
quality that is of the same force as the other guaranteed rights.
Linking a constitutional
guarantee of environmental protection to the Charter would ensure that
the "reasonable limits" qualification set out in section 1 of
the Charter would be applicable, as would the courts remedial powers
under section 24 of the Charter.(62)
The section 1 limit would allay the fears of those who suggest that a
constitutional guarantee might prevent governments from acting effectively
to respond to issues that in some instances might override environmental
concerns. Also, section 33 of the Charter would allow any legislature
expressly to opt out of the Charter guarantee in cases of unforeseen emergencies.
There are several ways in
which a right to environmental quality might be linked to the Charter,
including a declaration in the Preamble of the Charter, the expansion
of existing Charter rights (by judicial interpretation), or the establishment
of an entirely new right.(63)
Ultimately it may be necessary to resort to the last, although it would
be the most politically difficult to achieve. It would, however, be preferable
to a preambular declaration, which would likely be effective as a guide
to judicial interpretation only, and might be of uncertain effect.
If a constitutional guarantee
of environmental health can be interpreted as being already contained
within one of the Charters existing provisions, its discovery awaits
only the process of judicial interpretation and application. Some consider
this possibility to be a "long shot,"(64)
though several Charter provisions have been identified as possibly enshrining
some right to environmental protection.
A measure of constitutional
protection for the environment may be afforded by section 35, which affirms
aboriginal peoples treaty rights that existed at the time the Charter
was passed. The wording of section 35 has given aboriginal peoples hope
that environmental rights may be included in their negotiations of land
claims with the federal government.(65)
This may provide an indirect route to environmental protection for one
segment of Canadas population, but its effectiveness has yet to
Case law arising under the
Charters equality guarantee, section 15, has suggested that geographic
discrimination may be prohibited by this section, although it is not a
specifically prohibited ground of discrimination. This protection might
lead a court to set aside pollution laws that provided for uneven standards
of environmental protection across Canada. Given that the provinces have
exclusive jurisdiction to legislate in the field of property and civil
a certain amount of provincial disparity is probably inevitable. Even
if section 15 were effective in the field of environmental protection,
it would apply only in cases of inequality, and could not provide a general
guarantee to a healthy environment.
The Charter provision expected
to be most effective in affording environmental protection is section
7, which enshrines the right to "life, liberty and security of the
person." Environmental hazards that threaten human life or health
may well conflict with this guarantee. The possibility that section 7
may protect against government actions that endanger the lives or personal
security of Canadians was suggested in the Operation Dismantle Inc.
v. The Queen case.(67)
The Supreme Court of Canada in that case was considering the plaintiffs
claim for a declaration that cruise missile testing in Canada would endanger
Canadian lives by increasing the risk of nuclear war. The action was dismissed
because the Court found that the plaintiff could not establish the causal
connection between testing and an increased risk of nuclear war. However,
the Court did not deny that section 7 could be relevant where "a
deprivation of life and liberty of the person could be proven to result
from the impugned government act."(68)
Even if section 7 does contain
a constitutional right to a healthy environment, however, it will be applied
only to risks created by a government. Its significance will also be limited
by the absence of substantive and procedural provisions to make the guarantee
more than a simple declaration of a principle.
A number of American states
have included guarantees of environmental health in their constitutions.
Their experiences have demonstrated that the advantages of constitutional
protection include the creation of a higher authority and the enhanced
permanence of the provision.(69)
Constitutional provisions are more difficult to repeal or amend than are
The American experience
has also made it clear that a constitutional provision that is a mere
statement of policy does not narrow the powers of government, nor does
it make environmental protection a concrete governmental obligation. Only
where the provision is "self-executing"(70)
(i.e., where it is operative as a basis for judicial action without the
need for further legislation), does it expand peoples substantive
The source of this limitation
on the effectiveness of constitutional guarantees is, in part, the constitutional
law background of the U.S.. State legislatures are not granted powers
by their constitutions. Indeed, they are granted jurisdiction by the U.S.
Constitution over any area of legislative competence that is not foreclosed
by the federal government and the provisions of the U.S. Constitution.
State constitutions can limit jurisdiction only within the fields of competence
left open by the federal governments actions and the areas of jurisdiction
expressly conferred on the federal government by the Constitution.
A number of the states
constitutional provisions establishing environmental rights are of limited
scope, where they apply only to a few, or even only one, resource. The
effect is that any resource not specifically mentioned in the Constitution
cannot be protected by state legislation.(71)
Of the 16 states that have
broad constitutional provisions, 11 have mere policy statements.(72)
The five states whose constitutional provisions may create significant
environmental rights are Illinois, Massachusetts, Pennsylvania, Rhode
Island and Texas. Pennsylvanias "environmental rights amendment"
appears to provide an independent basis for citizens to constrain both
government action and that of private landowners. However, judicial resistance
to the recognition of a substantive right to environmental quality seems
to have weakened the amendments effectiveness.(73)
The American courts seem
to have treated a possible substantive environmental right as merely a
formal right to procedures;(74)
the constitutional protection has been limited to a right to be balanced
against other rights. Commentators have concluded that environmental rights
are more likely to be treated as substantive when they are set out in
detailed statutes, rather than when they are created by constitutional
Another shortcoming of the
constitutional approach is that it is almost wholly dependent on human
beings to trigger litigation enforcing or implementing environmental laws.
It may not adequately incorporate the need to protect non-human environmental
values, since no action will commence without human motivation, effort,
and financial commitment.(75)
It would seem to be in the
interests of the environment to consider both statutory and constitutional
approaches to environmental rights. An environmental quality right in
the Charter would give the Courts a mandate to place substantive limits
on governments and to examine legislative policy.(76)
The effectiveness of this type of measure would be dependent on judicial
interpretation. Statutory measures might prevent the weakening of the
environmental protection scheme and inhibit any judicial erosion of its
There is an international
declaration of the right to environmental quality in the 1972 Stockholm
Declaration on the Human Environment, which provides that "Man
has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of quality that permits a life of dignity and
This declaration is not strictly binding on states; international instruments
of a binding nature contain only certain elements of this right. The
International Covenant of Economic, Social and Cultural Rights (ESC)
is binding on Canada, however; it provides a right to physical and mental
health, and includes an obligation to prevent air, water and land pollution.(78)
Canada is at least obliged
to implement measures to meet its obligations under the ESC Rights
Covenant, which, as long as they make up the customary international
law, are part of the law of Canada. Canadas constitutional provisions
and statutes must be interpreted in accordance with the right to environmental
In June 1986, the Experts
Group on Environmental Law of the World Commission on Environment and
Development (WCED) submitted its report to the Brundtland Commission.
It underlined new imperatives for nations co-operation in environmental
protection, citing the permeable nature of international boundaries when
confronted with environmental hazards. The Report recommended the significant
strengthening of the international legal framework in support of sustainable
development. It said that gaps left by the 1972 Declaration must
be overcome in the move toward sustainable development. Rights and responsibilities
of both states and individuals were said to require recognition and respect.
The WCED recommended that
the General Assembly of the United Nations commit itself to preparing
a Universal Declaration and later a Convention on Environmental Protection
and Sustainable Development.(79)
These recommendations were put forward with an urgency that cannot be
overstated. In the words of the Report, "if man does not heed the
warnings given by nature he will not only put an end to his very existence,
but will destroy all life on earth."(80)
In fact, there is already
a rising trend in the number of existing international agreements on environmental
protection; more than 140 international treaties are now in place and
are having some impact.(81)
On the other hand, increasing environmental degradation is at least as
visible. Existing environmental agreements have been uncoordinated and
piecemeal. A more comprehensive system is needed at the international
level. Any such system cannot be effective until it has been implemented
and adopted by most of the states, and has developed a widespread cultural
base. Both international law and customary norms are necessary to create
a global sense of responsibility that will enable us to preserve the natural
environment for the world as a whole.
TO LEGISLATIVE SOLUTIONS
The fears of those opposed
to or uncertain about an environmental bill of rights take several forms.
One argument is that the court system and administrative tribunals would
be flooded with numerous frivolous or undeserving cases. Of course, as
the purpose of such a law would be to improve citizen access, even its
proponents hope it would increase the number of environmental cases before
the courts. An increased number of cases should be a drawback only if
the cases currently before the courts have more social merit than would
cases under the environmental bill of rights. The enactment of an environmental
bill of rights would reflect a legislative commitment to the worthiness
of environmental issues for adjudication, and recognition that environmental
protection concerns are deserving of judicial time and resources; these
advantages would presumably outweigh any possible cost factor.
Courts would continue to
have tools to discourage the frivolous litigant. The enactment of an environmental
bill of rights would not stop the courts from applying the rule that the
losers in litigation generally pay the costs of the winners, nor would
it prevent courts from ordering those who seek to advance unworthy cases
to post security for costs. The courts could strike out such claims, and
order unsuccessful litigants to pay especially high costs where their
cases were shown to have been without merit.
The Michigan experience
under MEPA establishes that an environmental bill of rights would not
"submerge the court system in an uncontrollable deluge of litigation."(82)
MEPA neither inspired the quantity of litigation hoped for by its proponents,
nor overloaded the courts as anticipated by its detractors. The legislation
did not lead to vexatious litigation, nor did it cause unnecessary delays
in approvals or the construction of development proposals.(83)
The drawbacks of a legislative
scheme that seeks to create an environmental right in the absence of a
constitutional provision have been discussed. In order to accomplish all
the objectives that have been linked to the concept of an environmental
bill of rights, a two-pronged approach would be required. A scheme incorporating
both the statutory and constitutional environmental rights components
would avoid many of the potential disadvantages associated with either
Any legislative or constitutional
approach to the entrenchment of environmental rights will only be as good
as the clearness of the direction it gives the courts.(84)
Given the conservatism with which American judges have applied the legislative
and constitutional measures adopted in the U.S., and the possibility that
Canadian judges might be even more conservative,(85)
Canadian legislators would have to be explicit about the substantive nature
of the environmental right being created in any proposed environmental
bill of rights. Any discretion left to the courts must be the discretion
to impose more, and not less, stringent environmental standards than those
Some have questioned the
utility of law as a solution to environmental problems. Law is perhaps
unavoidably concerned with human interests like ownership and sovereignty.
Law is concerned with those elements of the natural environment that can
be used by human beings, and it seeks to resolve disputes between human
users of natural objects.(87)
Thus, law can grasp only some of the components of an ecosystem that is
an unseverable whole.
It has been said that an
injury to nature itself will almost never be considered an injury that
could or should be repaired in law.(88)
For the natural environment to be adequately protected, there has to be
a recognition in law and among human resource-users, that biological diversity
is in itself of value. The human interest in biological diversity is at
least equivalent to other human interests that are protected by law. Any
attempt to protect the natural environment that is based only on a human-oriented
right to a healthy environment is bound to fail.(89)
Indeed, science is making it clearer that a natural environment capable
of supporting human life is dependent on the preservation of all the elements
of the complex worldwide ecosystem.
On a more practical level,
enabling individuals and interest groups to act through the courts to
protect the natural environment raises questions about the legitimacy
of environmental organizations and their ability to reflect the interests
of natural objects.(90)
It is certain that, as human observers, their ability to supply precise
evidence about present and future environmental effects will be limited.
The legitimacy of the groups is an issue that will arise on a case-by-case
basis; the courts in Canada and the U.S. are developing experience with
environmental advocacy groups who seek to intervene in litigation. Already,
environmental groups in both countries have represented their members
in litigation and have been successful in the interests of the natural
environment in constraining government action. Also, in Canada the courts
are developing rules to allow them to determine which interest groups
in general are proper parties to Charter litigation.
An environmental bill of
rights that provided extensive substantive and procedural provisions should
overcome the potential difficulty of judicial resistance to procedural
innovation. New legislation that left too much room for discretion, or
did not provide special procedures for emergency remedies, might lead
the courts to hesitate to substitute their discretion for that of a government
agency.(91) This could
reduce the measures overall contribution to a healthy environment.
Given our growing understanding
of and sense of responsibility for the escalating risks to environmental
health, Canadians and others around the world are expressing a desire
for access to legal means to protect the environment. The concept of an
environmental bill of rights is attracting international interest as a
legal tool to enable individuals and groups to participate in this area.
Much academic thought has been given to developing the idea, and now more
and more practical energy is going toward its implementation. An environmental
bill of rights has been promoted by the environmental movement for several
decades; environmentalists hope that it will soon find a place on the
"Les Canadiens se préoccupent de plus en plus de leur environnement,"
La Presse, 15 January 1991.
Canadian Environmental Law Research Foundation, Preliminary Analysis
of a Federal Environmental Bill of Rights, Toronto, 1984, p. 7.
," La Presse, 15 January 1991.
John Swaigen and Richard E. Woods, "A Substantive Right to Environmental
Quality," in Environmental Rights in Canada, Butterworths,
Quebec, Environment Quality Act, R.S.C., c. Q-2, 1977.
Swaigen and Woods (1981), p. 199.
World Commission of Environment and Development, Our Common Future,
("the Brundtland Report"), Oxford University Press, London,
Paul Muldoon, "The Fight for an Environmental Bill of Rights,"
Alternatives, Vol. 15, No. 2, 1988, p. 35.
Franklin Gertler, Paul Muldoon and Marcia Valiante, "Public Access
to Environmental Justice," in Sustainable Development in Canada:
Options for Law Reform, Canadian Bar Association, Ottawa, 1990, p.
Swaigen and Woods (1981), p. 200.
Ibid., p. 201.
Ibid., p. 202
Cynthia Giagnocavo and Howard Goldstein, "Law Reform or World Re-form:
The Problem of Environmental Rights," McGill Law Journal,
Vol. 35, 1990, p. 345.
Swaigen and Woods (1981), p. 235.
"The Environment and Environmentalism: Our Progress, Problems and
Prospects," Probe Post, Vol. 11, Winter 1989, p. 14.
"Environmental Rights Act Approved," National, Vol. 17,
No. 10, Dec./Jan, 1990, p. 8.
Muldoon (1988), p. 34.
David Estrin and John Swaigen, Environment on Trial: A Handbook of
Environmental Law, Revised Edition edited by Mary Anne Carswell and
John Swaigen, Canadian Environmental Law Research Foundation, Toronto,
1978, p. 460.
Muldoon (1988), p. 35.
405 U.S. 727 (1972).
Christopher D. Stone, "Should Trees Have Standing?" (1972) 45
Southern California Law Review, 450.
Gertler, Muldoon and Valiante (1990), p. 86.
Energy Probe v. Atomic Energy Control Board,  2 F.C.
227 (T.D.), affd.  1 F.C. 563 (C.A.).
See Finlay v. Canada (Minister of Finance) (1986), 2 S.C.R.
607; and, most recently, The Canadian Council of Churches v.
Canada, 23 January 1992 (S.C.C.) (unreported).
Gertler, Muldoon and Valiante (1990), p. 87.
R.S.C. 1985, c. 16 (4th Supp.).
Linda F. Duncan, Enforcing Environmental Law: A Guide to Private Prosecution,
Environmental Law Centre, Edmonton, 1990.
Section 787 of the Criminal Code, R.S.C. 1985, c. C-46, limits
of the penalty upon conviction by summary conviction to a fine of not
more than $2,000, or six months imprisonment, or both.
Gertler, Muldoon and Valiante (1990), p. 90.
Muldoon (1988), p. 37.
Gertler, Muldoon and Valiante (1990), p. 91.
Richard D. Lindgren, "Future Directions for Environmental Law: Implementing
the Brundtland Report," Paper given at Workshop on Environmental
Law and Practice, Canadian Bar Association Ontario, Toronto, 1989,
Ibid., p. 9.
Muldoon (1988), p. 35.
Gertler, Muldoon and Valiante (1990).
Estrin and Swaigen (1978), p. 469.
Ibid., p. 472.
Ibid., p. 473.
Cyril de Klemm, "The Conservation of Biological Diversity: State
Obligations and Citizens Duties," Environmental Policy and
Law, Vol. 19, No. 2, 189, p. 53.
Quebec, Environmental Quality Act, R.S.C., c. Q-2, 1977, sections
19.1 and 19.2.
Muldoon (1988), p. 33.
"Legislative Reform to Quicken under NDP Government, Experts Predict,"
Law Times, 17-23 September 1990, p. S-1, S-8.
"Environmental Rights Act Approved," National, 1990,
"A Charter of Environmental Rights?" Brundtland Bulletin,
Issue 9/10, Sept./Dec. 1990, p. 6.
"ECE Charter on Environmental Rights and Obligations," Brundtland
Bulletin, Issue 9/10, Sept./Dec. 1990, p. SF-10.
Swaigen and Woods (1981), p. 208.
Frank P. Grad, Treatise on Environmental Law, Vol. 2, Matthew Bender &
Co., New York, 1989, p. 10-315.
Swaigen and Woods (1981), p. 214.
Grad (1989), p. 10-316.
Ray v. Mason County (1975), 224 N.W. 2d. 883 (Sup. Ct. Mich.),
cited in Grad (1989), p. 10-316.
Referred to in Swaigen and Woods (1981), p. 214.
Daniel K. Stone, "The Michigan Environmental Protection Act:
Bringing Citizen-Initiated Environmental Suits into the 1980s," Ecology
Law Quarterly, Vol. 12, 1985, p. 271.
Ibid., p. 291.
House of Commons, Hansard, 9 July 1981, p. 11385.
New Democratic Task Force on the Environment, "Toward a Sustainable
Future," Report, June 1989.
Dale Gibson, "Constitutional Entrenchment of Environmental Rights,"
Le droit à la qualité de lenvironnement: un droit en devenir,
un droit à définir, Proceedings of the Fifth International Conference
on Constitutional Law, Montreal, Quebec, 1988, p. 285.
Ibid., p. 286.
Ibid., p. 275.
John U. Bayly, "Section 35 of the Constitution Act, 1982, and Collective
Aboriginal Rights to Environmental Quality," Le droit à la qualité
de lenvironnement: un droit en devenir, un droit à définir,
Proceedings of the Fifth International Conference on Constitutional Law,
Montreal, Quebec, 1988, p. 256.
Pursuant to the constitutional division of powers between the federal
and provincial levels of government in Canada set out by sections 91 and
92 of the Constitution Act, 1867.
(1985) 18 D.L.R. (4th) 481 (S.C.C.).
Ibid., p. 491.
Swaigen and Woods (1981), p. 221.
Ibid., p. 222.
Ibid., p. 223.
Ibid., p. 226.
Ibid., p. 232.
Gertler, Muldoon and Valiante (1990), p. 83.
Mary Hatherly, "Constitutional Amendment," Environmental
Protection and the Canadian Constitution, Proceedings of the Canadian
Symposium on Jurisdiction and Responsibility for the Environment, Environmental
Law Centre, Edmonton, 1987, p. 130.
Declaration of the United Nations Conference on the Human Environment,
adopted 16 June 1972, cited in Gertler, Muldoon and Valiante (1990), p.
Cited in Gertler, Muldoon and Valiante (1990), p. 81.
Experts Group on Environmental Law of the WCED, Environmental Protection
and Sustainable Development, Graham & Trotman/Martinus Nijhoff,
London, 1986, p. xx.
Patricia M. Mische, "Ecological Security and the Need to Reconceptualize
Sovereignty," Alternatives, XIV, 1989, p. 402.
Estrin and Swaigen (1978), p. 462.
Swaigen and Woods (1981), p. 214.
Ibid., p. 234.
Ibid., p. 233.
Ibid., p. 234.
Cyril de Klemm (1989), p. 51.
Ibid., p. 52.
Ibid., p. 53.
Ibid., p. 54.
Ibid., p. 55.