Despite past attempts to legally protect environmental rights in Canada, we have yet to see any legislation recognizing the right of all people to live in a healthy environment. Although it wasn’t passed, the proposed Canadian Environmental Bill of Rights (Bill C-438) offers an interesting peek at what environmental rights legislation might look like in Canada. One section of the Bill stuck out to me for its potential ethical implications – Section 19, titled “No action for remedial conduct” (Bill C-438 2019).

While most of Bill C-438 outlines the protective legal actions that an individual can take against environmentally harmful practices, Section 19 describes when such actions cannot be taken. In brief, it says that one cannot take protective action against a given environmentally harmful conduct, if said conduct was done to prevent or reverse damage to “human, animal or plant life or health,” or in the interest of public security, humanitarian needs, peacekeeping, or defending members of the North Atlantic Treaty Organization (Bill C-438 2019). These conditions are valid so long as the alleged conduct was also “reasonable and consistent with public safety” (Bill C-438 2019).

Yet these criteria, which allow potential environmental harm, leave plenty of room for interpretation and ethical uncertainty. To what point, for example, can we act in a way that helps one part of the environment while damaging another? How do we determine when it is justifiable to harm the environment in the interest of public security? Doesn’t environmental degradation itself pose a threat to public safety?

In his opinion piece in Policy Options, Emmett Macfarlane (2014) points out that enshrining environmental rights in the Constitution places responsibility on the Courts to answer such questions as the ones I’ve just raised. Macfarlane insists that judges are not the best suited to answer questions dealing with various economic and social dimensions. I would also argue that rulings on these questions would be subject to each judge’s ethical leanings, whether those leanings are conscious or not.

For example, how would an ecocentrist, a biocentrist, and an animal rights theorist each assess the implications of a conduct that harms one species while generally benefiting the surrounding environment? This might arise if, for instance, a conservation agency decided to eliminate an invasive species for the health of a whole ecosystem. Under Section 19, so long as this process is “reasonable and consistent with public safety,” no one could take legal action against it for the harm it does to one species.

This might get varied responses from ecocentrists, who value whole ecosystems over individual life forms. Most ecocentrists would then support the removal of an invasive species. However, if that species were to go extinct, this would raise concerns for ecocentrists like Rolston (1985), who believe we owe moral duties to whole species as an evolutionary unit.

Biocentrists like Paul Taylor (1981), on the other hand, view each individual life form as intrinsically valuable. So, killing individuals of an invasive species would not be justifiable, even if this was done to save the surrounding ecosystem. A slightly more nuanced biocentrist like Robin Attfield, on the other hand, might be able to justify killing an invasive species if it was lower in terms of moral hierarchy than other individuals in the ecosystem. For example, Attfield (1987) believes that we owe more moral obligation to animal species than we do to plants.

Finally, an animal rights theorist like Peter Singer (1974) would absolutely not support killing or harming animals for the betterment of an ecosystem. If the invasive species were a plant, however, then animal rights theorists likely wouldn’t see a problem with its elimination, especially if it would lead to animal flourishing.

My short review of these various ethical responses highlights the open-endedness of Bill C-438, Section 19. Regardless of whether the judges viewing these cases would consider them in these ethical terms, the vague language in this section of the bill raises some important questions for environmental ethicists. If a law like Bill C-438 is ever passed in Canada, I think a careful ethical review would be in order.

-Mary

 

References

Attfield, Robin. 1987. “Biocentrism, Moral Standing and Moral Significance.” Philosophica 39(1): 47-58. https://www.philosophica.ugent.be/wp-content/uploads/fulltexts/39-5.pdf.

 BILL C-438: An Act to enact the Canadian Environmental Bill of Rights and to make related amendments to other Acts. 2019. https://www.parl.ca/DocumentViewer/en/42-1/bill/C-438/first-reading.

Macfarlane, Emmett. 2014. “Parliament, not the courts, should decide.” https://policyoptions.irpp.org/fr/magazines/second-regard/boyd-macfarlane/

Rolston, Holmes. 1985. “Duties to Endangered Species.” BioScience 35 (11): 718-726. https://sites.google.com/a/rams.colostate.edu/rolston-csu-website/environmental-ethics/ee-chbk/duties-edangered-species-biosci-a-pdf.

Singer, Peter. 1974. “All Animals Are Equal.” Philosophic Exchange 5(1): 103-116. https://digitalcommons.brockport.edu/phil_ex/vol5/iss1/6/?utm_source=digitalcommons.brockport.edu%2Fphil_ex%2Fvol5%2Fiss1%2F6&utm_medium=PDF&utm_campaign=PDFCoverPages.

Taylor, Paul W. 1981. “The Ethics of Respect for Nature.” Environmental Ethics (3):197-218. https://www-pdcnet-org.login.ezproxy.library.ualberta.ca/collection/authorizedshow?id=enviroethics_1981_0003_0003_0197_0218&file_type=pdf.