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

Abstract

Environmental benefits and harms are unequally distributed in Canada. Environmental harms tend to disproportionately impact Indigenous peoples and people of colour as well as those who experience discrimination on the basis of gender, age, or socio-economic status. As it stands, this country’s constitutional framework does not provide adequate protection against such environmental inequality. This paper explores how Canada’s unwritten constitutional principles (UCPs) could play a role in filling this gap, and reduce the environmental injustices faced by Indigenous peoples. To do so, it explores how the UCPs have been applied by the courts to date. It also considers legal scholarship on environmental justice-oriented UCPs, including the proposed UCPs of ecological sustainability, substantive equality, the public trust doctrine, as well as the recognition of Indigenous peoples’ relationship to land, resources, and other peoples as an underlying constitutional value. To demonstrate how the UCPs may let us look at constitutional questions through an environmental justice lens, the principles are applied to two contemporary case studies: the references on the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act, and the Asubpeeschoseewagong Netum Anishinabek’s (ANA or Grassy Narrows First Nation) Charter challenge regarding mercury contamination in its territory.