Can the establishment of the right to a clean, healthy and sustainable environment in Canadian law improve the chance of success with climate action court claims?

First, a very quick chronology.  For more than a decade law professor David R. Boyd has advocated for establishing an enforceable right to a healthy environment (RTHE) in Canadian law.  His 2012 book is entitled “The Right to a Healthy Environment – Revitalizing Canada’s Constitution” (UBC Press).  The David Suzuki Organization took up the cause as well and collaborated with Boyd.  For example, a 2013 paper written by him and titled “Constitutional Recognition of the Right to a Healthy Environment: Making a Difference in Canada” is but one of a few that are posted on the Suzuki website HERE.

The RTHE has gained more public attention and traction in recent years.  In 2018 Boyd was appointed as the United Nations Special Rapporteur on Human Rights and the Environment.  In 2022 the United Nations General Assembly recognized this principle, with Canada voting in support.  And finally, in June 2023, the RTHE was incorporated into the Canadian Environmental Protection Act (CEPA).  It defines a healthy environment as being one that is “clean, healthy, and sustainable.”

Climate litigation brought by Canadian youth and Indigenous peoples has also engaged the principle of the RTHE.  Among other things, these cases have invoked related human rights enshrined in the Canadian Charter of Rights and Freedoms.  SCAN has posted articles discussing three civil cases at the appellate level in the Canadian judicial system: Mathur v. Ontario, now pending in the Ontario Court of Appeal and La Rose v. Canada and Dini Ze’ Lho’Imggin et al. v. Canada, which were the subject of a significant decision by the Federal Court of Appeal in December 2023.

 In April 2024 SCAN made written submissions to the federal government and argued that implementation of the RTHE within CEPA must focus primarily on the catastrophic crisis of climate breakdown. Read the RTHE submission HERE.

 Fortunately, a concise and helpful overview connecting the RTHE, climate breakdown and court proceedings, from a Canadian perspective, has now been published by the Library of Parliament.  Robert Mason’s impressive 16-page report, “Climate Change and the Right to a Healthy Environment: International and Canadian Developments” (January 15, 2024) provides valuable and timely instruction.  It covers both Canadian and international developments and includes discussion of leading court decisions. 

 Mason, an analyst in the International Affairs and Integrated Services Division of the Library of Parliament, observed that recognizing the RTHE “appears to have resulted in seemingly stronger environmental laws in some countries, as well as greater scrutiny from courts in decisions that have climate impacts” (p.12).  Let’s hope that his optimism is well founded.  His paper is definitely well worth reading.

 

Alan D. Levy is a member of SCAN!’s Legal Group.