Many will agree that Canada needs to do more about our lackluster environmental laws. Boyd, in his piece ‘Enshrine our right to clear air and water in the Constitution’, points out that countries with constitutionalized environmental rights appear to have greater success in environmental protection. I agree with Boyd in that constitutional recognition of a healthy environment is something that we as Canadians must strive for. Boyd lists three possibilities for achieving this: “direct amendment of the Constitution, litigation resulting in a court decision that there is an implicit right to a healthy environment in section 7 of the Charter (which states the right to life, liberty and security of the person), or judicial reference resulting in a court decision that there is an implicit right to a healthy environment in section 7” (2014). It is my opinion that as cumbersome as a constitutional amendment may be it is more realistic than attaining a guaranteed constitutional right to a clean environment via judicial interpretation of section 7. 

As Boyd mentions, there is currently a case before the courts arguing that a refinery in their community is causing pollution which is putting their health in jeopardy (2014). This in turn, they argue, violates their section 7 right to life, liberty and security of person. This will not be successful in court. There is a reason polluting industries are not all being sued up and down town endlessly. This is because even if we were to operate under a judicial interpretation that any action that could threaten your life on any scale was unconstitutional under section 7, it would still be near impossible to prove. Even if you develop a cancer and feel it is a result of living in a polluted community from a nearby refinery it is hard to articulate in court that you developed the illness as a direct cause of industry. The sun gives cancer, how can you confirm in court that your cancer is a result of the pollution and not something else? Pollution is obviously harmful to human health, it therefore seems obvious then that it is violating our section 7 charter right, but to quote Trump: ‘sounds good, doesn’t work’. It is too much of a legal challenge to prove that a life threatening condition was caused directly and exclusively from industrial pollution. Thus legal challenges are not the answer for securing environmental rights. I believe that, as messy as it will be, we have to fight to open the constitution to change if we want to get serious about protecting our air and water.

I also find flaws in the idea that section 35 dealing with Aboriginal rights could be used to secure environmental rights. This would guarantee clean air and water but for only a fraction of the population. “The environment is a cornerstone of [Aboriginal] rights, given that the content of Aboriginal rights is intrinsically tied to the land and to traditional customs and activities like hunting and fishing” (Boyd, 2014). This line of reasoning also seems arbitrary to me. Hunting and fishing is ancestral to every culture. More, culture is fluid so I don’t see why Aboriginal culture would be seen as fixed in time, while every other peoples cultures remain fluid and ergo would not be privileged to the environmental rights being sought as an addon to section 35. I think if we are to have environmental rights it must be for all Canadians, new and old, and not just for a certain demographic, so again I believe the only course of action is to open the constitution. 

David R. Boyd, E. M. (n.d.). Should environmental rights be in the constitution? 3 March 2014. Retrieved from https://policyoptions.irpp.org/fr/magazines/second-regard/boyd-macfarlane/