The idea of enshrining rights to nature is finding more and more followers. In Quebec, a first initiative in this direction was carried out in February 2021 with regard to the Magpie River and many voices are raised to do the same with the St. Lawrence River. This approach is based on the premise that environmental law, as we know it, places people at the center of concerns, whereas a right to nature represents more of an integrated and holistic vision of all life and all ecosystems.
Posted at 12:00 p.m.
I can only welcome this approach which seeks to understand and find solutions to the current environmental crisis, the scale of which tends to confirm that our legal systems have failed miserably. I nevertheless question the proposed solution in that it implies, in my opinion, an in-depth overhaul of our legal regimes, in a context where the environmental emergency rather requires very short-term solutions, especially since several of the questions which will result from it have already found answers in our laws.
Indeed, once the legal personality of a river, then of a river, then possibly of a wooded area, a wetland, a park and, one day soon, the entire environment, it will be necessary to specify the elements that we intend to protect there, between its waters, its bed, its tributaries, its shores and its wetlands (for what remains), its faunal and floristic species, the resources that are exploited there… However, rather than redefining the scope of these rights, it would be in our interest to rely on the current law which already covers, by its definition of the environment, “water, atmosphere, soil, environment with which living species maintain dynamic relationships”.
Subsequently, it will be necessary to determine who will be the people entitled to be the guardians of each element of this newly protected nature, their respective roles, their responsibilities and, finally, to reformulate the rights, obligations and remedies that will guarantee their protection. Once again, isn’t it preferable to avoid taking 10 to 20 years to redefine these parameters, at the risk of ending up in substantially the same place as today?
In law, recognizing a legal personality to nature would first imply giving its guardians the interest of taking legal action to ensure the protection of this nature. However, since 1978, the legislator has already democratized the application of the law by “allowing each citizen to have the possibility of being the defender of the collective wealth of Quebecers”, to paraphrase the minister at the time, Marcel Léger . To do this, the law has recognized that all people, without distinction, have a right to environmental protection and has created a special injunction to implement it. These unique measures Environment Quality Act, were audacious for the time and remain so. Above all, they avoid questioning who will be able to defend the new rights granted to nature; an exercise that would even risk, in the long term, reducing the already wide scope of the current law.
I am not saying that our laws are perfect, quite the contrary. Let us take advantage of these legislative achievements to improve them if necessary and attack the heart of the decision-making mechanisms at the political, administrative and judicial levels.
For example, in terms of government action, let us make the State accountable for its decisions, whether with regard to the loss of biodiversity, the disappearance of wetlands, the protection of essential habitats for threatened species, non-compliance with GHG reduction targets… Let’s close the loopholes allowing, sometimes with the complicity of the State, to bypass the BAPE process or avoid having to obtain environmental authorizations, as was the case the case recently with the tree frog in Longueuil. Let us grant citizens the right to contest authorizations to pollute, when they turn out to be erroneously issued by the minister, contrary to the current situation which grants this privilege only in cases where an authorization is refused by the minister to who demands deliverance…
Let’s reform the Regulatory Relief Policy under the Executive Council, which for more than 20 years has limited the adoption of environmental standards that would impede economic development. Let’s use the same mechanism, moreover very effective for businesses, to transform it into a policy to strengthen environmental standards… Avoiding subjecting so-called “sustainable” economic development to the support capacity of ecosystems only maintains the disillusionment of population faced with the hypocrisy of current environmental commitments.
On the judicial level, let’s strengthen citizens’ means of action by adding, for example, recourse for compensation for ecological damage or for the restoration of degraded environments. Let us facilitate the exercise of recourses for judicial review of the decisions of the State, in particular in order to compensate for its laxity in the application of its own laws…
Finally, access to justice also requires the allocation of adequate funding to ensure compliance with environmental standards. If the federal government has been funding access to the courts for decades to defend Canada’s official languages, why not draw inspiration from this mechanism to fund the actions of those who want to protect the “voiceless” from our planet ?
Nature already has rights and its protectors are all citizens. Let’s start from there and mobilize the supporters of a more ecocentric law, around reform proposals aimed rather at correcting the shortcomings of our current legal mechanisms. The magnitude of the changes needed to drastically and quickly reverse our devastating behavior will require a good dose of political courage; a courage that essentially depends on our will, individual and collective, to really prioritize the environment and assume the price.