David Suzuki and the plea for a constitutional right to a healthy environment

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Dr. David Suzuki, that famous Canadian scientist who has used the media to advance his arguments for the protection of the environment, is up to it again. As part of his recently concluded “Blue Dot Tour”, he has pressed for the amendment of the Canadian Charter of Rights and Freedoms to include a “right to a healthy environment” (Newfoundland & Labradaor, TheIndependent.Ca, September 24, 2014). He states that virtually all Canadians would support such an objective.

While I agree with Dr. Suzuki’s overall objectives, I think other types of constitutional reforms may be more effective in achieving the ultimate goal of a clean and healthy environment.

David Suzuki explained the reasoning behind his proposal in an interview on September 24, 2014 with Justin Brake of <em>TheIndependent.Ca as follows:

“And I think the Blue Dot Tour really focuses in on that frame, saying that our very health and well-being are absolutely tied to the quality of the air, the water and the soil that gives us our food. So those ought to be guaranteed in our legal system, in our Charter, in the same way that we guarantee the rights of gay people, or Asians and African Canadians, and women.

These are all things that at one time weren’t enshrined in our Charter, our constitution. But a lot of people fought for them and got them enshrined. And what they reflect are the values of the society we live in.”

In response to the question as to how David Suzuki would see a constitutional right to a healthy environment working, he explained that people would actually be able to sue on behalf of the environment to make government protect it in the correct circumstances:

I think that what it does is it reverses everything. Right now we’re left with having to counter a proposal for some kind of development by proving that it is ecologically destructive and then harmful to us. But now the responsibility, if we have this enshrined, would be any proposed development to prove very strongly that they are not going to harm the things that keep us alive: clean air, clean water, clean soil. It is a reversal of responsibility, and if they abrogate that responsibility then we have a very powerful tool to take them to court and enforce what it a guaranteed right of all Canadians.

So let me give you an example. Ecuador has enshrined the rights of Pachamama, which is Mother Earth, in their newly written constitution. And because of that — there’s a river in southern Ecuador called Vilcabamba, and it’s considered by many to have special powers; if you live there and drink that water you live longer, [so] there are a lot of Americans as a result living down there. And this American couple noticed that a road-building company was coming along the valley and dumping all their crap as they were bulldozing the side of a cliff into the river. And so they sued the company and the government on behalf of the Vilcabamba River. Now, a river doesn’t need money so you can’t sue for money. But they sued on behalf of the river that it had a right to exist as it always did, and they won their case and forced the road building company to restore that river to what it originally was.

So when you have that kind of a tool available it really is incumbent on the developers to consider the ecological impact of what they’re doing before they even come in to make their proposals.

While a free-standing right to a healthy environment may be an excellent goal, I believe that institutional reform would have much greater effect on the overarching objective of environmental protection and enhancement. The environment requires that one think long term. Climate change is so slow and incremental that many of us mortals will not really be able to perceive the changes that it is having on our planet over time. Moreover, the responses to climate change and to environmental issues requires reliance on those who have the greatest knowledge and experience in the area. In other words, it requires reliance on our scientists. So it means that our political leaders need time to be educated by scientists and need to be able to take a very long term view of the challenges being imposed by that dossier entitled “Environment”.

Right now, we have a Parliament that is divided between a House of Commons elected about every four years on a “first-past-the-post” system and an Upper House, the Senate, that is appointed by Prime Minister (the Governor General on the Prime Minister’s advice). The decision-making power resides theoretically in the House of Commons, with the Senate being a place of “second sober thought”. In practice, the power to make decisions, legislatively or on an executive basis, is almost entirely in the hands of the Prime Minister. A Prime Minister and a government that has cut the ranks of our public service scientists (in the realm of the environment at least) and who have muzzled these men and women from speaking publicly or indeed even in internal documentation about these issues.

As our experience over the last number of years has shown, the power to govern has been increasingly concentrated in Prime Minister Stephen Harper’s hands. He controls absolutely the majority of the Members of Parliament in the House of Commons. A majority of appointees in the Senate are now Conservative appointments. Prime Minister Harper rules Canada from the Prime Minister’s Office and rare is the person in Conservative caucus or the public service who would dare to contradict him.

If protection of the environment is your principal objective, then we need to put in place reforms to our institutions so that would prevent this sort of concentration of power and that would favour the consideration of environmental issues. So some ideas as to what we can do to change the nature of our central legislative and executive institutions would include reforms of our electoral systems and our two houses of Parliament.

The principal focus must be the House of Commons and how it is elected. An electoral system that is based on proportional representation would mean that parties such as the Green Party would have much greater representation in the House and parties such as the Conservative Party would have a much smaller representation. It would be from a democratic perspective a much better representation of the will of the people.

To proportional representation should be added a staggered electoral process (whereby the House’s members would have staggered electoral terms) and longer electoral terms for individual members of Parliament (for example, there may be elections every 3 years for a third of the House, but members would elected for a term of 9 years). This would mean that the House as a whole could operate with greater institutional memory. Majority governments would be unlikely in these circumstances and the executive would have to govern from a middle point, not from one extreme or another.

Our House of Commons would change composition partially with each successive electoral cycle. And with proportional representation, there would be a greater push towards coalition governments that would evolve and mutate over time. In this process, there would be a greater chance for elected officials to take the longer term view of environmental issues. They would have more time to learn the importance of the environmental portfolio and to be educated by an engaged body of public servant scientists.

Of course, the Senate is an entirely different subject. It is a different beast. Its need for reform cries out in so many different ways. I will simply note that reforms to allow senators to take the long term view of legislative initiatives, while creating some need for them to be accountable, will assist in ensuring legislation that are more environmentally and democratically sound. I will deal with my thoughts on the Senate and how we can reform that institution in a subsequent series of posts.

(I note parenthetically that another important change may not require “constitutional amendment” at all. Rather, Parliament could choose to require that any legislative or program initiative be subjected to three levels of internal review and approval: the Department of Justice to ensure compliance with the Constitution; if there are any financial implications to the initiative, Treasury Board to ensure compliance with budgetary requirements; and Department of Environment to ensure that compliance with environmental concerns. Of course, Canadian governments would need to develop respect for these departmental reviews. That requires a cultural change in our institutions. Some of the reforms discussed above would lend themselves well to increased deference to this sort of review and approval process.)

I think that David Suzuki has raised an important point. What can we do to our Constitution to improve Canada’s chances of dealing more effectively with the biggest challenges that this planet has ever seen His Blue Dot Tour has the right general objective. We all need to work towards that ultimate end: a sustainable world for us and future generations.

I remain,

Constitutionally yours,

Arthur Grant

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