By Dr. Douglas Schmeiser
4/10/2015

(Photo credit: Mark Hodson)

Constitutional law expert Doug Schmeiser is a recipient of Saskatchewan’s Order of Merit and professor emeritus at the University of Saskatchewan, where he specialized in constitutional law over a 40-year teaching career. Prof. Schmeiser served as an advisor during the Meech Lake and Charlottetown constitutional conferences, and has consulted on legal matters all over the world. He also served as the board secretary for Nature Canada for six years.

From 2006 to 2008 Schmeiser was engaged as constitutional advisor by the Parliament of the Maldives and the United Nations to help the Maldives write its constitution, which includes recognition of environmental rights. He contacted the David Suzuki Foundation after reading about the Blue Dot goal of achieving legal recognition for the right to a healthy environment. Schmeiser shared his experiences and thoughts with us in a conversation from his home in Saskatoon, excerpted here.

Environmental rights in the Maldives

Adding environmental rights to the Constitution of the Maldives was an easy sell, in a way, because the country’s income is primarily based on the tourism industry, and secondly on fishing, and that’s about it. They were receptive because they realized they were living in a very unusual and beautiful spot, and it was in their interest to protect it, not only economically but for other reasons as well. So Section 22 states:

The State has a fundamental duty to protect and preserve the natural environment, biodiversity, resources and beauty of the country for the benefit of present and future generations. The State shall undertake and promote desirable economic and social goals through ecologically balanced sustainable development and shall take measures necessary to foster conservation, prevent pollution, the extinction of any species and ecological degradation from any such goals.

However, there’s a challenge in trying to put economic and social rights into a constitution. You can state your goals, but unless the state has the resources to do it, it will not happen. To get around that and still make a compelling argument that hopefully will influence future political development, we put an obligation on the state to “progressively realize” these rights within its ability and resources to do so. Section 23 states:

Every citizen has the following rights pursuant to this constitution, and the State undertakes to achieve the progressive realization of these rights by reasonable measures within its ability and resources.

Then there’s a list of rights. The first item on the list is “adequate and nutritious food and clean water” and further down it includes “a healthy and ecologically balanced environment.”

Citizens’ responsibilities and duties

Another challenge with a charter of rights (and we experience this in Canada) is that people often talk about their rights and complain when they allege their rights are violated, but spend less time protecting the rights of others, forgetting that rights and duties are inseparable.

To meet that challenge, I thought one should point out that citizens have obligations, too. So there is a clause that reads, “The exercise and enjoyment of fundamental rights and freedoms is inseparable from the performance of responsibilities and duties.” Then it describes the responsibilities of every citizen, which include “to preserve and protect the natural environment, biodiversity, resources and beauty of the country, and to abstain from all forms of pollution and ecological degradation.” Including that was a bit unusual; it parallels the obligations on the state to do those things as well.

(Access the full Constitution of the Republic of the Maldives.)

Challenges in Canada

I think it would be wonderful to see environmental rights enshrined in the Canadian constitution. But, knowing how the political process works in Canada, I think it will take an enormous amount of background work. I would say that there are two fundamental challenges here.

First, environmental control comes under both federal and provincial authority, so it’s very hard to say, “We’re going to control the environment,” because there’s no single jurisdiction in Canada that has that authority. It’s even more complicated in some cases because it’s a matter of overlapping jurisdiction. The federal government, for example, could use its criminal law power to expand its jurisdiction in the area, but certainly the control of business and the control of personal life are usually provincial matters. On top of that you have exceptions like parks, which, if national, the feds would control.

It also has been the general approach of the provinces to oppose any economic provisions in the charter because of the loss of control over being able to exercise what they think are legitimate political interests in good government, and a feeling that the courts should not have a final say on how to control these matters because they should be left to the provinces. Similarly, I think most corporations would oppose it.

I’m not saying that I accept these concerns, but I am saying that there are some difficulties to be faced. I think it’s more a process of long-term information and long-term education. We’re living in a country where I’m appalled by how many do not believe that there is any form of climate change; there’s a lot of strength to the people who would oppose it. If you ask people generally if they think this is a good idea, they will say “yes.” But often, if you ask them whether their plastic water bottle should be taken away, they can be very much opposed.

A second challenge is that there’s a notion in Canada that we want to stay away from re-opening constitutional negotiations, because whenever you do, it becomes a form of log-rolling. The provinces will say, “Well, I’m interested, as long as you put my pet interest in it.” Quebec will immediately come up with distinct society arguments. So there are some built-in barriers against constitutional change.

The path forward

What is great is that so many municipalities have already supported the idea of environmental rights. There, you don’t get involved in the same kind of legal concepts or legal arguments, and you also don’t get involved in jurisdictional concepts; that’s very important as a place to start.

So it’s important to recognize the difficulties that lie ahead. Meanwhile, anything that one can do to promote environmental rights, to write about it, and educate people — I’m all for it. Although achieving constitutional reform in Canada can be a formidable task, I hope that the cause is advanced by learning how another country (albeit very small) achieved the inclusion of environmental protection provisions in its constitution.