You Say You Want an Environmental Rights Revolution?: Try Changing Canadians' Minds Instead (of the Charter)

Abstract

The well-intentioned argument for constitutionalizing the right to a healthy environment in the Charter is misconceived legally, politically, and as a matter of progressive environmental strategy. Arguments for constitutionalizing environmental rights unjustifiably privilege and assign causal efficacy to the constitution’s text, and exaggerate the transformative potential of case-by-case litigation. Moreover, proposals for top-down constitutional amendment pay insufficient attention to the bottom-up normative foundations that generate effective policies. Not only do arguments in favour of establishing a Charter right to a healthy environment either grossly underestimate or ignore altogether the political price tag of such a constitutional amendment, they likewise ignore the irony inherent in the proposal itself – would that it were politically possible to reach “7/50” and entrench the right to a healthy environment in the Charter, such an amendment would hardly be necessary in the first place, for the same political will would already be reflected in progressive federal and provincial environmental laws and policies.

In the short and mostly regrettable history of Canadian environmental law, however, governments have generally been unwilling to pursue environmental protection save for brief periods of exceptional public concern. As a matter of policy, scholars should concentrate on the bottom-up drivers of greater public engagement in polycentric environmental governance. An emerging body of research suggests that advocates focus on communicating the economic development and community resilience co-benefits of pursuing climate change mitigation and sustainability policies.