Symposium: The Unwritten Constitutional Principle of Ecological Sustainability: A Lodestar for Canadian Environmental Law?

Lynda Collins

University of Ottawa Faculty of Law

Environmental law in Canada and around the world has achieved many significant victories – saving countless human lives, bringing species back from the brink of extinction and improving quality of life for millions of people. However, when assessed against the crucial parameter of sustainability (ie our society’s ability to survive and thrive over the coming decades) environmental law as we know it has failed to live up to its potential. Collectively we have failed to manage marine and terrestrial ecosystems and – crucially – the climate, in ways that can ensure the long-term wellbeing of present and future Canadians.  Leclair suggests that this failure to achieve sustainability may be traceable to the absence of an environmental ethic at the very foundation of our legal system – the Constitution.  Perhaps the answer then, is to recognize ecological sustainability as an Unwritten Constitutional Principle (UCP) – a foundational, binding norm to provide guidance to courts and legislators as we navigate the difficult waters of our current environmental crisis.

Whether framed as “ecological sustainability”, “respect for the environment” or “environmental protection”, some concept of environmental obligation undoubtedly meets all of the criteria the Supreme Court has set out for Unwritten Constitutional Principles. Sustainability is the “lifeblood” of our Constitution (and indeed our society as a whole); it is a “vital unstated assumption” underlying the Canadian state, and it functions in “symbiosis” with all other constitutional principles. Environmental protection is judicially and socially recognized as fundamental to Canadian society, and it is obviously essential to the evolution ¾ indeed the survival ¾ of our Constitution as a living tree. Environmental protection is thus an “unwritten principle without which the law would become contradictory and self-defeating”.

Moreover, environmental stewardship has an ages-old place in the lineage of Canadian law. Indeed as far back as 1217, the Charter of the Forest guaranteed to British subjects rights of access to vital natural resources, which reinforced the civil and political rights contained in its companion document, the Magna Carta.  In the civil law tradition, governmental obligations to steward the natural environment date back to Roman law under the Justinian Code. Importantly, respect for the environment is also a defining feature of “Indigenous legal traditions [which] are among Canada’s unwritten normative principles and, with common and civil law, can be said to ‘form the very foundation of the Constitution of Canada’”. Recognition of an environmental UCP would reflect Indigenous law, thus simultaneously advancing the goals of Reconciliation and sustainability.

Although it has not yet recognized a UCP relating to the environment, the Supreme Court of Canada has described environmental protection in terms that are commensurate with constitutional protection. The Court summarized its own holdings on this point in British Columbia v. Canadian Forest Products Ltd:

As the Court observed in R. v. Hydro-Québec…, legal measures to protect the environment ‘relate to a public purpose of superordinate importance’…. In Ontario v. Canadian Pacific Ltd. ... ‘stewardship of the natural environment’ was described as a fundamental value ... Still more recently, in 114957 Canada Ltée (Spray-Tech, Société d’arrosage) v. Hudson (Town)… the Court reiterated, at para. 1:

...Our common future, that of every Canadian community, depends on a healthy environment....This Court has recognized that ‘(e)veryone is aware that individually and collectively, we are responsible for preserving the natural environment ... environmental protection [has] emerged as a fundamental value in Canadian society’ ....

It seems clear from the relevant caselaw that ecological sustainability merits constitutional protection and is almost certainly latent within our existing unwritten constitution.  Indeed, if rule of law is the foundation of our Constitution, then ecological sustainability may be viewed as the bedrock on which the constitutional edifice rests.

Recently an intervener in the BC Pipelines Reference has argued that the UCP of ecological sustainability strongly militates in favour of upholding provincial environmental legislation even where there is overlap with federal regimes (particularly where federal regulation is not achieving the goal of sustainability).  This is the first time such an argument has ever been made in Canadian litigation, and the case may lead to greater clarity regarding the existence, extent and effect of ecological sustainability as a constitutional principle. 

What would be the significance of an ecological UCP? In addition to assisting courts in division of powers cases regarding the environment, an ecological UCP could provide an important constraint on the discretionary decisions of environmental regulators, and would assist in resolving environmental claims under the Charter. Perhaps most importantly, the recognition of ecological sustainability as a foundational principle (indeed the foundational principle) of our constitution could help to inform crucial legal analysis and public debates about environmental decision-making in the twenty-first century. If applied by judges and respected by legislators, the UCP of ecological sustainability could arguably provide the conceptual lodestar to re-orient Canadian environmental law towards a more sustainable path to the future.

Lynda Collins is a Full Professor at the University of Ottawa Faculty of Law - Common Law Section.

Suggested Citation: Lynda Collins, ‘The Unwritten Constitutional Principle of Ecological Sustainability: A Lodestar for Canadian Environmental Law?’ IACL-AIDC Blog (5 June 2019) https://blog-iacl-aidc.org/unwritten-constitutional-principles/2019/5/25/the-unwritten-constitutional-principle-of-ecological-sustainability-a-lodestar-for-canadian-environmental-law