Constitutionalizing Environmental Protections Under the Charter : Part 4

This is the final post in a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

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The Implications of Constitutionalizing Environmental Protections

On December 6, 2013, federal Environment Minister Leona Aglukkaq approved Shell’s Jackpine Mine expansion project in northern Alberta. The project was approved despite having “significant adverse environmental effects.” According to the minister, these adverse environmental impacts were “justified in the circumstances.” However, no further explanation was provided as to what circumstances or factors informed the minister’s decision to approve the expansion. The minister simply found it “justified in the circumstances” and only those words convey her rationale.

The lack of justification for approving a project that is known to have significant adverse environmental effects is notable for how the decision reflects the nature of environmental law in Canada. As Martin Olszynski writes, “modern environmental law does not consist of hard rules or substantive limits but rather is focused primarily on the process of decision-making.” Environmental law is more concerned with whether a decision was made correctly, rather than whether a decision is correct. This procedural focus makes it unnecessary to provide any meaningful rationale or insight into a decision.

For environmental advocates, the absence of a substantive element to environmental law is concerning. As the Shell Jackpine Mine approval demonstrates, as long as governments deem projects justified through the proper administrative channels, serious environmental harms can be ignored. There are only minor limits imposed on government action in the environmental realm.

Constitutionalizing environmental rights could limit the state’s broad discretionary power over the environment by imposing substantive limits on state imposed environmental activity. The constitution is the supreme law of the land, and all government conduct is subject to the constitution. For laws and actions to have legal force and effect they must be constitutional. Laws and actions deemed unconstitutional are considered void. Constitutionalizing environmental rights would require government conduct to conform to the content of these rights; failure to do so would render such conduct unconstitutional.

For instance, imagine if the court recognized that the s. 7 rights of Peace River residents were violated due to odours from heavy oil processing in the region. Residents would be entitled to a public law remedy, such as the court ordering Alberta to adopt a more comprehensive odour management framework. However, the impacts of the court’s ruling would extend far beyond a new odour management framework in Alberta. In effect, the court would be acknowledging that an individual’s s. 7 right to life, liberty, and security of the person includes protection from state activity in the environmental realm. In order to protect individuals from this harm, the state would have to ensure that any government activity that impacts the environment does so in a manner that does not infringe an individual’s s. 7 interests. This imposes a substantive limit on the type and extent of the activity that states can authorize in the environmental realm.

The constitutional recognition of environmental protections could also lead to governments taking a broader approach to environmental stewardship. For instance, constitutionalizing environmental rights can incentive the adoption of the pre-cautionary approach towards development. In order to insulate themselves from Charter claims, governments may engage in extensive studies to determine the potential environmental impacts of a project. Only when certain that the proposed industrial activity would not lead to adverse impacts that infringe the environmental protections found in the Charter, would governments be confident in approving such activity. Having environmental protections in the constitution would motivate the state to be fully aware of the environmental consequences that flow from activity that is under its purview.

Constitutionalizing environmental rights would result in substantive limits being imposed on government conduct that impacts the environment, and has the potential to lead to broader and more widespread environmental protections. For this reason, environmental advocates should approach situations such as the health concerns raised by Peace River residents in relation to heavy oil processing in the region through the lens of the Charter, in addition to private law and regulatory perspectives. This will help them identify cases that can act as vehicles to entrench environmental protections in the constitution, ensuring that the state has a real and substantive duty towards environmental stewardship.

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