“A Hot Day in Iqaluit”? Environmental Rights in Canada’s Constitutional Cul-de-Sac

Authors

Stepan Wood, Allard School of Law at the University of British ColumbiaFollow

Faculty Author Type

Current Faculty [Stepan Wood]

Document Type

Working Paper

Publication Date

2024

Subjects

Environmental rights; constitutional law; cul-de-sac; right to a healthy environment; Indigenous rights; Canadian Charter of Rights and Freedoms; Section 7; Section 15; Section 35; youth climate litigation; justiciability; negative rights; positive rights; principles of fundamental justice; age discrimination; unwritten constitutional principles; future generations; standing; United Nations Declaration on the Rights of Indigenous Peoples; UNDRIP implementation acts; free, prior and informed consent; cumulative impacts; treaty rights; Canadian Environmental Protection Act; environmental bill of rights; rights of nature

Abstract

Proposals to include an explicit right to a healthy environment in Canada’s constitution have been advanced since the early 1970s, but Canada is stuck in a decades-long impasse that precludes substantial constitutional amendment. This article uses the metaphor of the cul-de-sac to explore the prospects for legal recognition of environmental rights in this situation. It canvasses past efforts to entrench general and Indigenous environmental rights in Canada’s constitution, introduces culs-de-sac metaphorical and real, and highlights the irony of one commentator’s 2005 quip that it will be “a hot day in Iqaluit” when Canada’s constitution undergoes significant amendment. It then surveys current efforts to find a right to a healthy environment in ss 7 and 15 of the Charter; recent developments in the recognition of Indigenous environmental rights via section 35 of the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); incorporation of a right to a healthy environment into federal environmental legislation; and initiatives to recognize the rights of rivers. It concludes that, like a real-world cul-de-sac, Canada’s constitutional one requires advocates of a legally enforceable right to a healthy environment to take longer and more circuitous routes to elusive destinations, and pushes them onto crowded arterial roads of existing constitutional rights and environmental statutes. That said, recent developments suggest some hope that the residents of this cul-de-sac might yet achieve a sense of community (with all beings), neighbourly interaction (of settler-colonial and Indigenous legal orders) and a safer and stabler environment for young people (and future generations).

Citation Details

S. Wood, "'A Hot Day in Iqaluit'? Environmental Rights in Canada’s Constitutional Cul-de-Sac" (November 2024) Working Paper No. 2/2024.