Lawyers at Ecojustice plan to argue in front of the Supreme Court this week that environmental protection is an underlying principle of the Constitution, just like democracy, human rights and the rule of law.
The environmental law charity is one of many intervenors making arguments on Jan. 16, in a hearing that will decide whether the B.C. government can block heavy oil from flowing through the expansion of the Trans Mountain pipeline.
But while the case has important ramifications for the fate of that fossil fuel project, Ecojustice’s approach has much more profound implications.
If the constitutional status of the environment is recognized, that could ensure its protection beyond the whims of the government of the day. In other words, like issues surrounding human rights, future governments could be constrained in what they could do to the environment.
“The Supreme Court has said over and over again that these sort of matters are so fundamental to our existence, to our society that, even though they’re not written explicitly in the Constitution, they still exist and they inform the analysis that’s before the Court,” said Ecojustice staff lawyer Kegan Pepper-Smith, in an interview Jan. 15 in his Ottawa office.
“And we say, although environmental protection isn’t written into the Constitution, it’s so fundamental that it should also be considered one of those principles.”
Pepper-Smith, who has been with Ecojustice since 2016, said it’s rare for cases with such significant environmental impact to get to the Supreme Court, so it presents a unique opportunity. He will be joined by his colleague, lawyer Harry Wruck.
The two lawyers are prepared to defend against accusations that they are asking the Supreme Court to step on the toes of duly elected governments. The decision on assisted suicide, said Pepper-Smith, provides a recent example where it took the Court to find that illegal assisted suicide violated the Charter.
Ecojustice has gone through 30 years’ worth of Supreme Court jurisprudence and has found what Pepper-Smith calls a “common thread” through each decision that touched on the environment — a respect for environmental protection as a fundamental value to society.
In a 1997 decision, for example, the Court described the “all-important duty of Parliament and the provincial legislatures” to protect the environment. That word, “duty,” implies that such protection is more than just a right of Canadians, argued Pepper-Smith.
"We say now that, in recognition of that jurisprudence, over and over recognizing how fundamental it is to society and to Canadians and what that truly means, is that it has this constitutional status, and it should be finally recognized as such."
What’s more, Canada’s courts have often respected what’s known as the “living tree doctrine,” which says the Constitution must be reinterpreted as the times change and society evolves.
In a 1985 decision on Manitoba language rights, for instance, the rule of law was described as a “fundamental principle of the Canadian constitutional order.”
More famously, its 1998 decision on Quebec secession states that the Constitution “is more than a written text,” and in fact “a superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.”
The case on Thursday will hear the federal government defend its constitutional authority over transportation projects that cross provincial boundaries. Ottawa says that letting a province regulate what flows through the pipeline is tantamount to tearing up that constitutional authority.
B.C. had asked the provincial court of appeal to decide whether it can regulate the flow of heavy oil with a permit system. The panel unanimously ruled that it was not within the authority of the legislature to throw up those boundaries — that it went beyond provincial jurisdiction.
Jan. 16 is the only day for submissions in the case, officially called Attorney General of British Columbia v. Attorney General of Canada. Ecojustice will be making arguments alongside First Nations, municipalities, industry representatives and others. The Supreme Court could then take six months to a year to come to a decision.
If the Court doesn’t recognize that environmental protection is an underlying principle of the Constitution, said Pepper-Smith, then the status quo prevails. What that really means, however, is that Canadians are increasingly at risk.
“With the existential issue of climate change and environmental degradation, there is this underlying foundation, this architecture, a lifeblood, of environmental protection. Without that...none of the other enumerated powers in the Constitution matter,” he said.