The Unwritten Constitutional Principles and Environmental Justice: A New Way Forward?

• Author: Galloway, Mari
• Position: Canada

CONTENTS I. Introduction 5 II. Canada's UCPs: What Are They and How Are They Used? 7 A. Federalism 10 B. Democracy 11 C. Constitutionalism and the Rule of Law 12 D. Respect for, and Protection of, Minority Rights 14 E. Critiques of UCPs and Their Fluidity 16 III. Existing Proposals for New UCPs and Their Application to 18 Environmental Justice A. The UCP of Ecological Sustainability 18 B. The Public Trust as a UCP 20 C. The UCP of Substantive Equality 21 D. The UCP of Respect for Indigenous Peoples' Relationship to 23 the Land, its Resources, and Other Peoples IV. Applying the UCPs to Current Environmental Case Law 25 A. The Carbon Pricing Reference 25 1. The Saskatchewan AG 26 2. The Intergenerational Climate Coalition 26 3. The United Chiefs and Councils of Mnidoo Mnising 27 4. The Athabasca Chipewyan First Nation 28 5. The Decisions 28 6. What About the UCP of Respect for, and Protection of, 30 Minorities? B. UCPs and the Charter: The Case of Grassy Narrows First 35 Nation V. Conclusion 40 I. INTRODUCTION

The link between exposure to environmental harm and social, economic, and cultural factors is often under-examined in mainstream approaches to regulating the environment. (1) But, as environmental justice scholars and increasing evidence demonstrate, environmental benefits and burdens are not distributed equally across society. (2)

Environmental harm disproportionately occurs where discrimination exists, be it discrimination based on race, gender, age, or socio-economic status. (3) In Canada, the impact of environmental harm is perhaps most severe for Indigenous peoples because of their close connection to the land and water, and the proximity of their communities to resource developments. (4)

Federal and provincial laws often fail to meaningfully prevent or rectify this unequal distribution of environmental harm, and Canadian regulatory bodies repeatedly fail to consider the cumulative effects of their decisions on constitutionally protected Aboriginal and treaty rights. (5) This failure to protect Indigenous peoples from environmental injustice represents a fundamental gap in Canada's constitutional framework. As scholar Deborah McGregor bluntly states: "[c]urrent environmental laws are inadequate for protecting what is important to Aboriginal peoples." (6) It is an inadequacy that needs to be corrected. The purpose of this paper is to explore whether unwritten constitutional principles (UCPs), which breathe life into our Constitution, can play a role in filling constitutional gaps in relation to environmental justice, particularly in the context of Indigenous peoples, and, if so, how.

The paper is structured in three parts. Section II discusses the UCPs that have been recognized as underlying the Canadian Constitution and their application in Canadian courts. Section III explores four UCPs relevant to environmental justice proposed by Canadian scholars:

1) Lynda Collins's proposal for the UCP of ecological sustainability;

2) Harry Wruck's proposal for a Canadian public trust doctrine;

3) Patricia Hughes's proposal for the UCP of substantive equality; and

4) John Borrows's proposal for the recognition of Indigenous peoples' relationship to land, resources, and other peoples as an underlying constitutional value.

Section IV examines how these UCPs, if recognized, could allow us to view two case studies through an environmental justice lens: first, the division of powers analysis in the Alberta, Ontario, and Saskatchewan references on the constitutionality of the federal government's Greenhouse Gas Pollution Pricing Act (GGPPA); second, the Asubpeeschoseewagong Netum Anishinabek's (ANA or Grassy Narrows First Nation) (7) Charter challenge of provincial (in)action regarding long-standing mercury contamination in its territory.

2. CANADA'S UCPS: WHAT ARE THEY AND HOW ARE THEY USED?

   In the Quebec Secession Reference, the seminal case on UCPs, the Supreme Court of Canada established that unwritten principles are fundamental to the Constitution's architecture; they "inform and sustain the constitutional text." (8) Unwritten principles, the Court wrote, represent major elements of the Constitution's architecture--"its lifeblood" (9)--delineating "spheres of jurisdiction [and] the scope of rights and obligations." (10) UCPs also fill gaps in the express provisions of the written text. (11) In the 1998 Quebec Secession Reference, the Court identified the following UCPs: federalism, democracy, constitutionalism and the rule of law, as well as respect for minority rights. (12) However, in the years since this reference, there has been much scholarly debate on exactly when, and how, these principles apply and what they achieve.

   Writing extra-judicially, then-Chief Justice McLachlin has said that the UCPs "refer to unwritten norms that are essential to a nation's history, identity, values and legal system... best understood as providing the normative framework for governance." (13) They are rooted in conceptions of natural law that "transcend the exercise of state power" and give the law a "minimum moral content." (14) They espouse an understanding that there are certain fundamental norms that no law on the books can legitimately violate.

   To illustrate, then-Chief Justice McLachlin gives this example: "if a state were to pass a genocidal law... it would clearly be the duty of the judges to deny the law's validity on the ground that it offended the basic norm that states must not exterminate their people." (15) As Justice McLachlin (as she then was) states in New Brunswick Broadcasting, the UCPs derive their normative force from being "part of the fundamental law of our land." (16) These sentiments are echoed in the Manitoba Language Reference in the context of the rule of law, where the Supreme Court states:

   Additional to the inclusion of the rule of law in the preambles of the Constitution Acts of 1867 and 1982, the principle is clearly implicit in the very nature of a Constitution. The Constitution, as the Supreme Law, must be understood as a purposive ordering of social relations providing a basis upon which an actual order of positive laws can be brought into existence. (17) In this vein, courts have found that UCPs can, and do, guide statutory interpretation and the exercise of judicial and executive discretion. The UCPs may also, in certain circumstances, give rise to substantive obligations that have "full legal force." (18) These obligations can be abstract and general in nature or more specific and precise, depending on the case. (19) However, they cannot directly contradict the written text. The Constitution, written and unwritten, must be read as a whole. (20)

   In trying to characterize the application of these obligations, scholars such as Robin Elliot and Mark Walters argue that there are two types of UCPs. First, there are those UCPs that "can fairly be said to be generated by necessary implication from the text of the Constitution." (21) These have been referred to as "text-emergent unwritten constitutional norms." (22) Second, there are UCPs that do not arise from the text by implication but are said to underlie the Constitution. (23) These are "free-standing unwritten constitutional principles," whose normative force is derived from outside the written Constitution itself, whether common, customary, or natural law. (24) The former are on par with the written text and may create obligations, while the latter are better understood as interpretive guides, providing a basis for a purposive approach to constitutional provisions. (25)

   Throughout the case law, the UCPs have played a key role in the "development and evolution of our Constitution." (26) The UCPs have been used to delineate jurisdiction (Provincial Judges Reference), (27) fill gaps in the written text (Quebec Secession Reference), (28) and guide the exercise of statutory discretion (Babcock v Canada (AG)), (29) but have not yet been used as a sole basis for invalidating legislation.

   Rather, in applying UCPs, courts have grounded their analyses in the text of the Constitution. For example, the Supreme Court of Canada refused to strike down provisions of the Tobacco Damages and Health Care Costs Recovery Act (30) solely on the basis of the UCP of rule of law in British Columbia v Imperial Tobacco Canada Ltd. (Imperial Tobacco), (31) discussed in more detail below. And this past year, in the Reference re Greenhouse Gas Pollution Pricing Act, the Saskatchewan Court of Appeal held that the Act could not be struck down on the basis of the UCP of federalism alone. (32) To the contrary, as interveners to the GGPPA Reference argued, there may be potential for UCPs to expand environmental protections in the Constitution by guiding the interpretation of certain provisions according to environmental justice principles, providing one avenue of hope to end the environmental discrimination faced by Indigenous peoples.

   Courts have used the unwritten principles to aid in interpreting the constitutionality of statutes and governmental actions. (33) In this vein, recognizing an environmental justice-oriented UCP could help to link environmental protection--which the Supreme Court of Canada has stated has "emerged as a fundamental value in Canadian society" (34)--with section 35 Aboriginal and treaty rights and Charter protections, including the section 7 protection of "life, liberty and security of the person" (35) and the equality guarantee under section 15. Such a link may provide a foundation within the Constitution from which to prevent environmental inequality.

   1. Federalism

      In the Quebec Secession Reference, the Supreme Court grappled with the question of Quebec's secession from Canada on the basis of the outcome of a majority "leave" referendum vote, an issue not dealt with in the written text of the Constitution. To develop a constitutional framework around this hypothetical, the Court relied upon the aforementioned UCPs: federalism...