Greening the Constitution ?

[Michael Hardner]

You can have an arm's length body that is still accountable to politicians. What would be a disaster is a constitutionally mandated body that is accountable to no one. If people don't like a law they should be able to elect politicians that have the power to change it.

I don't think that that has happened before, so I don't know why it would happen in the area of environmental law.

Politicians did create a group to implement human rights law, which has come under huge political fire for exactly the reasons you state - is that what you're thinking of ? If so, I can understand your concern as people have expressed concerns over the reach of this group, however - leaving aside the discussion of those concerns - as far as I know they were created by statute and can be removed as well.

The constitutionally enshrined rights should be the minimum required to protect the individual from an over reaching government. They should not be used to mandate stripping rights away from people the name of some poorly defined (and purely subjective) concept.

You should know from your experience here that everything is subjective. And constitutions do more than protect you from your government, they define the individual's rights as a starting point from which laws can be constructed.

As a thought exercise: you are supporting this because you assume you will like the language that gets written in. But what happens if the language is not to your liking? What if you realize that the language is a potential nightmare but you are powerless to stop it because the 'uninformed' public likes the fuzzy feeling of a 'right to a clean environment'?

The public would have a huge say in a constitutional amendment, I think, since it has to be approved by provincial governments (I think... let me check... Googling... well, yes mostly)

[TimG]

Putting a ballot in a box every 4 years is not the full scope of our democratic rights.

Democracy means the ability to change things with your vote. You only put stuff in the constitution that you do not want changed by votes. Environmental policy needs a constant political discussion.

Thought exercise: what if Harper wrote the environmental clause? Would you be OK with it? If not why should I be OK with a clause written by environmental activists?

OK, well there's natural gas under your house. Fracking starts today. You good with that?

Sure if I was properly compensated. What is needed to deal with such things are constitutionally protected property rights.

[TimG]

If so, I can understand your concern as people have expressed concerns over the reach of this group, however - leaving aside the discussion of those concerns - as far as I know they were **created by statute and can be removed as well.**

Exactly - as much as despise the HRT they can be removed by any government and that makes them tolerable.

The public would have a huge say in a constitutional amendment, I think, since it has to be approved by provincial governments (I think... let me check... Googling... well, yes mostly)

But, according to you, the public would not be able to understand the complexities and consequences of the change and would vote based on slogans. A very bad amendment could get passed (we see that in California with voter propositions). That is why a regular law is all that should be discussed. Edited November 29, 2013 by TimG

[Shady]

This idea is ridiculous. Enforce pollution laws, but there's no need to alter the constitution. That's absurd.

[Michael Hardner]

Exactly - as much as despise the HRT they can be removed by any government and that makes them tolerable.

Well, sure, but why would this right enshrine some new form of dictatorial executive group ?

But, according to you, the public would not be able to understand the complexities and consequences of the change and would vote based on slogans.

Well, yes that's right. So, you've half convinced me that this can't move forward as it is. I would still like to see it happen, if there could be an accompanying governance group set up to work with it. Without a good public, then we will always be making errors on some side of the spectrum.

[TimG]

Well, sure, but why would this right enshrine some new form of dictatorial executive group ?

The HRT exists because many complaints are small and made by people who can't afford litigation. With 'environmental rights' the battles would be fought in the courts with deep pocketed plaintiffs and the courts would be tasked with making the trade offs between risk vs. benefit. The courts would become the dictators.

If we look at the example of native rights where the courts have made a complete mess trying to balance competing interests because natives have no respect for the court's attempt to create a balance - they simply take every judgement - re-interpret to suit themselves and start more litigation to try and codify their new interpretation. The same thing would happen with environmental groups and a constitutional protection right.

The result will be less certainty for business and a serious drag to economic development (i.e. businesses need to know a deal is deal - they can't deal with a situation where they will be suddenly on the hook for large sums of money because some court judgement brought by unrelated parties).

My question is: why isn't legislation good enough? You have not really made that case.

Edited November 29, 2013 by TimG

[Michael Hardner]

The result will be less certainty for business and a serious drag to economic development

It seems to me that concentrating the legislation in one place, with a constitutional foundation and some kind of open governance group would be better for all sides than having both reactive legislation and inconsistent and arbitrary standards.

My question is: why isn't legislation good enough? You have not really made that case.

I don't have a strong feeling either way but I do feel that business has the ability to lobby for lower standards in some jurisdictions which doesn't make sense. I'm not satisfied with any of the options, I guess, so I'm just looking to hear what others think.

[TimG]

It seems to me that concentrating the legislation in one place, with a constitutional foundation and some kind of open governance group would be better for all sides than having both reactive legislation and inconsistent and arbitrary standards.

Again - this can be done without the constitutional foundation (a.k.a. constitutional straight jacket).

I don't have a strong feeling either way but I do feel that business has the ability to lobby for lower standards in some jurisdictions which doesn't make sense.

It is all about risk management. Business has a right to argument it's level of risk management is sufficient. Governments can disagree. The job of voters is to elect governments that support the level of risk management that they are comfortable with.

BTW - environmental regulation is a provincial jurisdiction so I don't think Quebec will be willing have its laws overturned by a new federal provision.

Edited November 29, 2013 by TimG

[waldo]

BTW - environmental regulation is a provincial jurisdiction so I don't think Quebec will be willing have its laws overturned by a new federal provision.

say what! Look, as much as Harper Conservatives would like to ignore and/or gut much of existing federal regulations/legislation, regulatory bodies, etc.... one can't but highlight your lack of understanding in this regard. Do you personally choose to ignore such things as the federal Environmental Protection Act, as the federal Canadian Environmental Assessment Act, as the Fisheries Act, as the Navigable Waters Act, as the Canadian Nuclear Safety Commission, as the National Energy Board, as Environment Canada, etc., etc., etc..

.

[jacee]

Again - this can be done without the constitutional foundation (a.k.a. constitutional straight jacket).

It is all about risk management. Business has a right to argument it's level of risk management is sufficient. Governments can disagree. The job of voters is to elect governments that support the level of risk management that they are comfortable with.

It is also the job of citizens to take action against businesses whose operations put them and their environment at risk, regardless of what government says.

[TimG]

It is also the job of citizens to take action against businesses whose operations put them and their environment at risk, regardless of what government says.

I take it you also argue that citizens have a duty to liberate TVs from the clutches of evil corporations no matter what the government says.

[Remiel]

I find the idea of altering the Constitution to protect the environment to be a gross misunderstanding of what a "constitution" is for. A constitution is a framework for the orderly conduct of people in a society. The environment is external to society. To add the environment to the constitution would be like trying to add the house to the family.

[eyeball]

To add the environment to the constitution would be like trying to add the house to the family.

Recognizing the environment would be like enabling property owners with the right to be involved with planning the development of land in their neighbourhoods.

The environment is external to society.

That's as crazy as saying it's external to our economy. You can have a natural ecosystem without a human society and it's economy but you cannot have it the other way around.

[Remiel]

That's as crazy as saying it's external to our economy. You can have a natural ecosystem without a human society and it's economy but you cannot have it the other way around.

You can have a society without having a particular environment just like you can have a family without have a particular house.

Also, a bit tangentially, I would hazard a guess that it is within the realm of possibility that any likely scenario in which humans cease to exist the "natural ecosystem" ceases to exist right along with it.

[eyeball]

Also, a bit tangentially, I would hazard a guess that it is within the realm of possibility that any likely scenario in which humans cease to exist the "natural ecosystem" ceases to exist right along with it.

Only in a belief system that embraces duality or the supernatural, something our constitution does ironically enough.

Notwithstanding that however both reality and our planet's environment predates our existence and our constitutions and they will still be here when these are gone.

Edited December 1, 2013 by eyeball

[Remiel]

Only in a belief system that embraces duality or the supernatural, something our constitution does ironically enough.

Notwithstanding that however both reality and our planet's environment predates our existence and our constitutions and they will still be here when these are gone.

What you meant was ambiguous because you placed the unnecessary "natural" in front of "ecosystem" . I was not sure whether you were allowing for post-humanity ecosystems which would be considered "unnatural" .

[eyeball]

Why on Earth I'd need to allow for that escapes me but in any case post-human ecosystems would simply be devoid of humans is all, nothing un-natural about it.

[Michael Hardner]

That's as crazy as saying it's external to our economy. You can have a natural ecosystem without a human society and it's economy but you cannot have it the other way around.

I was counting on you to come in and say that.

I'd like there to be a special acknowledgement of the constitution as well as the definition of a public, and a process to deal with environmental problems.

[TimG]

I'd like there to be a special acknowledgement of the constitution as well as the definition of a public, and a process to deal with environmental problems.

An "environmental problem" is a purely subjective judgement and has no place in the constitution since there is no consensus on what constitutes a "problem" and there is no way to get a consensus because the same words mean different things to different people. Edited December 1, 2013 by TimG

[cybercoma]

I find the idea of altering the Constitution to protect the environment to be a gross misunderstanding of what a "constitution" is for. A constitution is a framework for the orderly conduct of people in a society. The environment is external to society. To add the environment to the constitution would be like trying to add the house to the family.

I thought the Constitution was how we recognize when laws are valid or not.

[eyeball]

An "environmental problem" is a purely subjective judgement and has no place in the constitution since there is no consensus on what constitutes a "problem" and there is no way to get a consensus because the same words mean different things to different people.

There's nothing subjective about the problem with spawning channels being paved with logging debris or the distant government and corporate mismanagement that allowed these ecosystems to be so damaged as to ruin the local fishing economy.

[TimG]

There's nothing subjective about the problem with spawning channels being paved with logging debris

Actually there is. Are you arguing that hydro dams should be unconstitutional? That is the inevitable consequence of a 'environment damage' clause that prevented fish habitat from being disturbed. Even if you happen to think that is a good idea a lot of people would disagree (hence no consensus). The trade off between protecting the environment and economic development has to be a political discussion and any clause in the constitution would shutdown development and enrich lawyers as every attempt to do anything is challenged in court. There is a miniscule chance that after 20-30 years the case law would clarify the rules enough to allow development to move forward but even then it is a perversion of democracy to let unelected judges decide what those rules should be. Edited December 1, 2013 by TimG

[Bonam]

Seems to me that a constitution is something that defines the relationship between people and government. That is, the rights and responsibilities of citizens, the extents and limitations of the power of government, how government power is divided between its different levels, the way in which government officers are selected and removed, etc.

How we deal with land, resources, environment, infrastructure, health, education, etc, are all matters of legislative law. Certain environmental protections certainly should be codified in the law (and many already are). I don't see what is wrong with the current situation that would warrant making environmental law a constitutional rather than legislative matter.

Laws in regards to these issues are based heavily on the current situation, which changes from year to year and decade to decade, and there should be the flexibility to modify them as needed to adapt to changing conditions and changing scientific understanding. In contrast, constitutional law is based on the lessons of history and on philosophical concepts, rather than conditions that change on a continual basis, and thus ideas codified in the constitution are intentionally much more difficult to add, remove, or modify.

Anyway, the only environmental protection that needs to be in the constitution is already in there:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The right to life means the right not to be killed by government action. That is, the government cannot through its actions knowingly allow the environment to become so damaged as to endanger the lives of Canadians.

[Remiel]

I thought the Constitution was how we recognize when laws are valid or not.

I think Bonam covered things fairly well above but I will still address this: From a purely logical standpoint a constitution cannot be the means by which we judge whether laws are valid because the constitution is itself a kind of law. A constitution cannot tell you what kind of constitutional laws are valid, because that would be circular. And whatever means we use to determine whether a constitutional law is itself valid must be equally applicable to all non-constitutional laws.

[Moonlight Graham]

The problem with "greening the constitution" is that you would have to be extremely specific on the environmental rights put in place. The reason of this is because ultimately it is Canadian judges, and to some extent lawyers, who have to apply the Charter/Constitution in legal cases and make subjective interpretations of it. The Charter of Rights/Freedoms is not black and white at all, there's lots of grey area up for interpretation based on different situations (cases), so vague environmental rights could be made by judges and argued by lawyers to mean a myriad of things. Especially so if you consider the "reasonable limits" clause in the Charter.

Example being: if there's "a right to clean water" then you must define exactly what "clean water" really means, ie: how "clean" does "clean water" have to be? (is there a specific threshold # of man-caused pollutants by ppm?)