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We may already have 'green rights' under the Charter

Image: Flickr/Kate Ausburn

Here's a new reason to be proud of Canada's Charter of Rights and Freedoms. Environmentalists are inviting the courts to look at Section 7's guarantee of life, liberty and security of the person -- and read into that section, recognition of "green rights," the right to a healthy planet. Although Canada and the U.S. are not among the 180 nations that legally recognize environmental rights, their court decisions are already leaning that way. And that, says author and filmmaker Silver Donald Cameron, could be the key to saving the earth, and all our lives. 

"A stable climate system is quite literally the foundation of society," wrote US Appeals Court Judge Ann Aiken on November 9, 2016, "without which there would be neither civilization nor progress." Therefore, she ruled 21 U.S. youth have standing to sue the U.S. government, the fossil fuel industry, and a number of U.S. agencies, to order them to remediate the damage of climate change. The Eugene, O.R. judge's decision gives leave for the lawsuit to proceed, despite Obama administration and fossil fuel industry arguments that the case should be dismissed.

According to Our Children's Trust, which organized the action, "The young plaintiffs sued the federal government for violating their constitutional rights to life, liberty, and property, and their rights to vital public trust resources, by locking in a fossil-fuel based national energy system for  more than five decades with full knowledge of the extreme dangers it posed." Moreover, Our Children's Trust is supporting youth legal actions in several states and countries, seeking to stabilize the climate system through science-based action by governments.

"[The defendants and intervenors] are correct," wrote Judge Aiken, "that plaintiffs likely could not obtain the relief they seek  through citizen suits brought under the Clean Air Act, the Clean Water Act, or other environmental laws. But that argument misses the point. This action is of a different order than the typical environmental case. It alleges that defendants' actions and inactions -- whether or not they violate any specific statutory duty -- have so profoundly damaged our home planet that they threaten plaintiffs' fundamental constitutional rights to life and liberty."

While court victories are sweet, "what matters is that you go into court and you tell your story," said Silver Donald Cameron. He cited Philippine lawyer Tony Oposa's major victories, won by suing government agencies to force them to enforce their mandates. Oposa successfully sued the Philippine Secretary of Environment and Natural Resources on behalf of 43 children, forcing the Secretary to cancel all existing and future timber concessions, and saving what was left of the Philippines' rain forest. Other major victories include a massive clean-up of Manila Bay.

Tony Oposa's strategy confers more power with every court appearance. "If you lose," said Cameron, "you appeal and you get a chance to tell your story again. You get to put all your evidence on the record, and that means that you get your issue on the policy agenda in an evidence-based way." Also, a court case leaves a permanent record, unlike a publicity campaign or news conference. Once a judge has accepted and weighed all the evidence about climate change -- as Judge Aiken did -- usually the only question is about how remediation will proceed. 

Mind you, strong environmental laws help. Section 16 of Philippine's 1987 Constitution requires that the State "shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature."

One hundred nations adopted environmental legislation following the 1972 Stockholm Declaration, which put forward 26 environmental principles intended to guide future government decisions. In 2016, environmental rights are embedded in the constitutions of 110 countries, and in the legislation of 180 out of 193 countries in the United Nations -- not including Canada or the US. 

Judge Aikens' reading environmental rights into the US guarantee of life and liberty is a real legal breakthrough. Which goes to prove another of Cameron's favourite sayings, that "you go to war with the army you have." That is, sometimes you have to take action with the legislation that's available.

For Canadians, the army we have is Section 7 of the Charter of Rights, which protects life, liberty, and security of the person. In 2010, two members of the Aamjiwnaang First Nation sued the province of Ontario for allowing polluted air from neighbouring Sarnia to affect their health. They argued that "security of the person" includes the right to breathe. They told their story in court but did not receive a court decision. Rather, a new provincial minister brought in regulations in 2016 that responded to many of their concerns.

Other First Nations have taken the same tack. Perhaps the highest profile case is led by Saskatchewan lawyer Larry Kowalchuck. He is citing Section 7 too, on behalf of the Elsipogtog Nation in New Brunswick, which has vigorously and successfully opposed fracking in their traditional territory.                        

Silver Donald Cameron spent six years interviewing environmental movement leaders, for his website The Green Interview. In 2011, he interviewed activist and legal scholar David Boyd, who had just published a scholarly book titled The Environmental Rights Revolution. By that time, Cameron and Chris Beckett had some experience with "documentary activism." "We like to say that I do everything in front of the camera, and Chris does everything behind it," said Cameron. With support from organizations like Ecojustice, the David Suzuki Foundation and especially the Sierra Club Foundation, they completed the first version of Green Rights in August 2016.

Cameron has spent the autumn bringing Green Rights: The Human Right to a Healthy Planet to the east coast, central Canada and the Prairies. He'll spend early 2017 showing the film in B.C. and western U.S. states. You can see the trailer here, and the entire film is available on The Green Interview -- viewable by those who sign up for the one month free trial membership. As well, his new book Warrior Lawyers (also available on Amazon) offers practical tips along with inspiration, in interviews with 15 of the lawyers from around the world who are pursuing climate justice through the courts -- like Our Children's Trust in Oregon.  

Speaking of which, Cameron remarked, "this is an opportunity for President Obama to make a settlement [on climate change] and leave it for Donald Trump to handle. It is now legally established in the U.S. courts that climate change is human caused. That's a settled fact. President Obama could negotiate a settlement and leave it for the courts to administer." If Trump wanted to goose the economy by rebooting the coal industry, or starting a war, he said, "the courts could make him stop."

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Image: Flickr/Kate Ausburn

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