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The Constitution of Canada guarantees its people important rights, such as freedom of religion, freedom of expression, fair trials, free elections, and language rights. But the effective exercise of these rights is impossible without safe water to drink, wholesome food to eat, and clean air to breathe. The right to a clean and healthy environment - arguably the most fundamental right of all - is conspicuously absent from our Charter of Rights and Freedoms, despite being a feature of the constitutions of many other nations.

When one considers the sorry state of our environment and the fact that 16 U.S. states and 56 other nations have adopted a "green amendment" to their constitutions, it is apparent that the Green Party of Canada's recent promise to amend the Charter "to enshrine the right of future Canadians to ... breathable air and drinkable water" deserves serious debate at the very least.

Given its pedigree, it is surprising that this is the first time any political party in Canada has espoused a constitutional right to environmental quality. The idea took root in the activism of the 1960s and '70s, and has continued to grow, albeit haltingly. What is thought to have been the first proposal to create a constitutional right to a clean and healthy environment was made in the United States in 1968 by senator Gaylord Nelson.

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Since then, 16 states, ranging from Alaska to Hawaii, have amended their constitutions to protect the environment. The citizens of nations as large as China and India and as small as Papua New Guinea and Vanuatu have constitutional rights to protection of natural resources, the environment and human health. Last year, France became the most recent nation to include an "environmental charter" in its constitution.

In 1978, the Canadian Environment Law Association told the joint Senate/House of Commons committee on the Constitution: "The new Constitution is the ideal place to firmly entrench a commitment to the individual's right to a clean environment. The right to environmental quality should be recognized as an inalienable right, for without an environment capable of supporting the human race, all other rights are meaningless."

In 1980, The Globe and Mail published an article by Paul Aird, a University of Toronto forestry professor, arguing in favour of adding preservation of natural resources and maintenance of ecological stability to the constitution reform agenda.

Is constitutional protection for the environment a solution, or just another make-work project for lawyers? Some will ask, "Don't we have enough laws already? Wouldn't we be better off to focus on enforcing the ones we already have?"

The reality is that, in the past three decades, we have passed a multitude of statutes and regulations and established a plethora of departments, boards, commissions, agencies and committees intended to protect the environment and natural resources. But this approach is just not working. There are holes in the ozone layer; global warming may have already started to wreak its havoc; the eastern cod fishery has been destroyed; we are running out of oil and gas; our drinking water contains E. coli and pharmaceuticals; and species, including Western Canada's spotted owl, are disappearing from the Earth at an alarming rate.

Perhaps something more basic than more "ordinary" laws is needed. A constitution expresses the fundamental assumptions and values of a people. In it are enshrined those principles that we recognize to be immutable. The Supreme Court of Canada has stated in several decisions that environmental protection is a "fundamental value" of Canadian society. In other words, it is the kind of value that fits naturally into a constitutional charter of rights and freedoms.

Constitutional provisions are difficult to repeal, amend or ignore. A change in government or a temporary economic downturn can easily result in governments weakening or failing to enforce ordinary environmental statutes, regulations and bylaws.

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The other important thing about a constitution is that it establishes a standard for measuring the acceptability of all other laws and actions of governments. Statutes, regulations and policies that are inconsistent with the constitution are of no effect. Environmental laws that don't measure up would be invalid.

What would a constitutional right to environmental quality accomplish? This depends on the precise wording of the amendment and how the courts interpret it. But a green constitution has the potential for some or all of the following results:

A duty to consult the affected community before approving potentially harmful developments.

A duty to conduct a full environmental impact assessment before approving such projects.

A duty to assess the impacts of new technologies on the environment and human health before these technologies enter the market.

A requirement when setting standards for the discharge of chemicals into the environment to adopt ones that will protect human health and the ecosystem.

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Preventing areas of Canada from competing for more industrial development by relaxing environmental-protection and resource-preservation requirements.

Preventing "pollution havens" and resource depletion by promoting uniform standards across the country.

When the Fathers of Confederation drafted the Constitution in 1867, they did not mention the environment. Environmental protection was not a pressing concern in a country that seemed to have endless natural riches.

Today, conservation is an issue of central importance to our survival. Should we amend our Constitution to protect the environment? It's at least worth serious consideration by all parties, both during this election and after the new government is formed.

John Swaigen is a former chair of Ontario's Environmental Appeal Board, a director of the Sierra Legal Defence Fund and the editor and author of several books on environmental protection, including "Environmental Rights in Canada" and "Environment on Trial".

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