By Sean Kheraj
This is the second in a series of posts originally presented as part of a roundtable entitled “What’s the Use of History? Citizenship and History in Canada’s Past and Present,” held in Toronto on October 16th 2012. The event was organized by the People’s Citizenship Guide Project.
In 2009, many historians criticized the federal government for its publication of a new citizenship guide titled, Discover Canada: The Rights and Responsibilities of Citizenship. The new guide represented a significant shift in the portrayal of Canadian history when compared to the previous guide, published in 1997. Ian McKay’s 2011 lecture at the 15th Annual New Frontiers in Graduate History conference at York University in Toronto offered one of the sharpest rebukes of the new citizenship guide in which he argued that the guide attempts to re-conceptualize Canada as a conservative, militant nation.
In addition to reconstructing Canadian history with a remarkable (and sometimes absurd) emphasis on military history and the British monarchy, Discover Canada takes a peculiar approach to its definition of citizenship, which implies that Canadian citizens have a responsibility to protect the environment. Under the section on “Citizenship Responsibilities,” the guide reads: “Every citizen has a role to play in avoiding waste and pollution while protecting Canada’s natural, cultural and architectural heritage for future generations.” The language is reminiscent of the Canada National Parks Act, which stipulates that “[t]he national parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment… and the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.” Discover Canada explicitly suggests that the protection of the environment is one of six responsibilities of citizenship along with “Obeying the law,” “Taking responsibility for oneself and one’s family,” “Serving on a jury,” “Voting in elections,” and “Helping others in the community.” The reason that this approach to the definition of citizenship is peculiar is that Canadian citizenship does not, in fact, include any responsibilities.
Citizenship in Western democracies is typically defined by a set of constitutional rights, not responsibilities. These rights are usually composed of a combination of codified rights and rights associated with jurisprudence. In Canada, the broad rights of citizenship are defined in the Charter of Rights and Freedoms, which is part of the Constitution Act of 1982. Canadian citizens also possess rights associated with the common law, the collective body of custom and judicial precedent inherited, in part, from the English common law and further developed since Confederation. The word “responsibility” appears nowhere in the Charter of Rights and Freedoms. In fact, the word only appears three times in the current Citizenship Act. For example, section 5 (e) of the act permits a Minister of the Crown the power to grant citizenship to a person who “has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship.” Yet nowhere in the act itself are those responsibilities defined. The reason is that citizenship in Canada does not include responsibilities. Discover Canada, however, implies that Canadian citizenship requires citizens to abide by a core set of responsibilities, including environmental protection. This, of course, is fallacious.
Citizenship in Canada is not contingent upon any of the responsibilities listed in Discover Canada. In fact, Canadian citizens are free to disregard all of the responsibilities included in this guide. For example, no Canadian citizen is required to vote. In fact, Canadians possess the right not to vote (and the majority of Canadians now exercise this right in federal elections). Similarly, citizenship is not contingent upon the responsibility to obey the law. Canadians citizens who are convicted of violating the law can have some of their rights temporarily suspended, but the Crown cannot revoke one’s citizenship for breaking the law. Finally, Canadians are not required, as a responsibility of citizenship, to protect the environment. No government can revoke the citizenship of an individual who fails to adequately safeguard “Canada’s natural, cultural and architectural heritage for future generations.” If, however, Canadian citizenship does not include any responsibility to the environment, does that citizenship include any environmental rights?
The short answer to this question is, not really. Within all of the codified rights of the Charter, including the “Fundamental Freedoms,” “Democratic Rights,” “Mobility Rights,” “Legal Rights,” and “Equality Rights,” there are no explicit environmental rights of citizenship in Canada. Section 7 of the Charter might be construed to mean that Canadians possess a fundamental right to a healthful environment because, according to that section “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” However, this argument has yet to be fully explored by the Supreme Court.
In 2006, Trudeau Scholar and author of The Right to a Healthy Environment: Revitalizing Canada’s Constitution, David Boyd, attempted to get the Canadian government to explicitly answer the following question: Does the Government of Canada recognize that Canadians have a right to clean water, clean air, and a healthy environment? In his first petition to the Auditor General of Canada and the Commissioner of the Environment and Sustainable Development, Boyd argued that “Section 7 of the Charter, by virtue of its references to the right to life and the right to security of the person, incorporates an implicit right to a healthy environment.” He noted that at least seventy nation-states recognized a right to a healthy environment within their constitutions, including the most recent addition of a “Charter for the Environment” to the French constitution in 2005. Unfortunately, the federal government failed to provide a direct answer to Boyd’s fundamental question in his first petition and in his follow-up petition. The federal government rejected the proposal to amend the Charter to include an explicit right to a healthy environment and it refused to answer the question of whether or not it recognized an implicit right to a healthy environment for Canadian citizens. As such, the matter remains unresolved.
For the Aboriginal peoples of Canada, the Constitution Act offers something closer to constitutional environmental rights. Part II of the act outlines the rights of Aboriginal peoples, defined as “Indian, Inuit and Métis peoples of Canada.” These rights include, according to section 35 (1), “existing aboriginal and treaty rights of the aboriginal peoples of Canada.” This provision of the Constitution Act has been tested in a handful of important Supreme Court cases that have dealt with the right of Aboriginal peoples to hunt and fish within treaty territories. In particular, the Supreme Court rulings in R. v. Marshall (1999) were some of the first to recognize that the rights within treaties signed between Britain, Canada, and First Nations were now considered constitutional rights. These environmental rights, however, are still significantly limited and do not guarantee a right to live in a healthy environment. The impact of R. v. Marshall was important, but it has not resulted in broad-scale environmental rights for Aboriginal peoples of Canada. In fact, Aboriginal peoples are often exposed to environmental hazards, particularly on reserve lands. For example, the Grassy Narrows and White Dog First Nations in Ontario still suffer from the effects of mercury contamination in the waters of the English-Wabigoon River System, which a Reed Paper Company chemical and pulp mill poisoned in the 1960s.
In the absence of any explicit codified constitutional environmental rights, Canadians have traditionally relied on environmental rights associated instead with the common law. For example, the English common law once granted Canadians open access rights to hunt wild animals on unoccupied lands and fish in open waters and streams. Riparian rights under the common law granted Canadian land owners some ability to resist river pollution in the nineteenth century. However, these common law rights could easily be overridden through statutory law. Hunting and fishing rights were very quickly circumscribed by provincial and federal game conservation laws. The riparian rights of Canadian land owners were similarly nullified through federal and provincial statutes. The most explicit example was the passage of the Northwest Irrigation Act (1894), which eliminated the riparian rights of private property owners and transferred authority and control over water in the Northwest Territories to the federal government.
Since 1867, Canadians have sought to expand their environmental rights through the courts and through arbitration, particularly over matters relating to industrial pollution. One of the earliest international cases of transboundary environmental pollution involved the lead and zinc smelter in Trail, British Columbia. This international dispute was preceded by a number of lawsuits between the Consolidated Mining and Smelter Company and local British Columbian farmers who alleged that their crops were being ruined by the smoke emissions from the nearby smelter. The subsequent international dispute regarding transborder emissions and pollution led to the application of the “polluter pays principle” through the arbitration that ultimately settled the case.
These ad hoc lawsuits and others, however, did not necessarily guarantee the right of Canadian property owners to protection from industrial pollution. This was especially evident in the extraordinary 2004 case of Percy Schmeiser, a Saskatchewan farmer who was sued by Monsanto Canada Inc. for growing an unlicensed breed of canola which Monsanto had genetically modified and patented (Monsanto Canada Inc. v. Schmeiser). Schmeiser claimed that the canola seeds he used had been harvested from plants that grew from seeds that had been blown onto his land. The Supreme Court ruled that Schmeiser had violated Monsanto’s genetic patent on the seeds of this particular breed of canola by planting the seeds without a license agreement with the company. The court did not accept Schmeiser’s argument that he had a right to plant seeds that were produced by plants that grew on his land.
The common law and jurisprudence established by lawsuits, such as the Trail smelter suits and Monsanto Canada Inc. v. Schmeiser illustrate the limitations of the environmental rights of Canadian citizens. In the absence of codified constitutional environmental rights, Canadian citizens have very limited legal recourse to assert a right to live in a healthy environment. This disempowerment of citizens has, in the past, led to instances of extrajudicial vigilantism. Such was the case in the 1990s with Alberta farmer, Weibo Ludwig, who was convicted and sentenced to prison for sabotaging oil wells in northwestern Alberta in an effort to protect his family and his land from what he believed to be harmful toxins associated with sour gas extraction. Before his death in April 2012, Ludwig was suspected to have been involved with a series of gas pipeline bombings in Northern British Columbia near Dawson Creek in 2008.
Perhaps more significantly, however, these limited environmental rights threaten the right of Canadians to basic subsistence. Rosemary E. Ommer and Nancy J. Turner contend that regulations associated with industrial capitalism in Canada in the nineteenth and twentieth centuries restructured economic life in the country, rendering traditional economic subsistence activities “increasingly obsolete and certainly put them outside the boundaries of formal economic behaviour.” They suggest that informal economic activities have persisted in Canada (and throughout the industrialized world) in combination with the formal market economy through a form of what they term “ecological pluralism” in rural environments. These informal subsistence activities also persist in urban environments in Canada, but in both cases, the right of Canadians to engage in informal subsistence activities has been severely circumscribed by the law. For example, Toronto residents are prohibited from raising domestic livestock animals in the city. Advocate groups have thus far been unsuccessful in their attempts to eliminate the municipal restriction on keeping chickens in Toronto. Both Ontario and British Columbia have passed so-called “Safe Streets” acts, which limit and, in some cases, prohibit panhandling. For many years, trespass laws have placed restrictions on where Canada’s homeless population can take shelter.
In each instance above, the law has circumscribed the ability of Canadians to meet their subsistence and survival needs outside of the boundaries of the formal market economy. As such, Discover Canada implies that in order to “[t]ake responsibility for oneself and one’s family” a Canadian citizen must engage in the formal market economy by “[g]etting a job.” It leaves open no other options for subsistence, rendering the market economy as the normative form of basic survival. Without clear constitutional environmental rights, the relationship between Canadians and the natural environment has been left impoverished and structured mainly by the precepts of industrial capitalism.
Sean Kheraj is an assistant professor in the Department of History at York University. He writes at http://seankheraj.com.
 For case study examples, see Bill Parenteau, “A ‘very Determined Opposition to the Law’: Conservation, Angling Leases and Social Conflict in the Canadian Atlantic Salmon Fishery, 1867-1914.” Environmental History 9, no. 3 (2004): 436-463; John Sandlos, “Federal Spaces, Local Conflicts: National Parks and the Exclusionary Politics of the Conservation Movement in Ontario, 1900-1935.” Journal of the Canadian Historical Association 16, (2005): 293-318; John Sandlos, Hunters at the Margin: Native People and Wildlife Conservation in the Northwest Territories (Vancouver: UBC Press, 2007).
 See Lawrence B. Lee, “The Canadian-American Irrigation Frontier, 1884-1914” Agricultural History 40, no. 4 (1966): 271-283.
 John D. Wirth, “The Trail Smelter Dispute: Canadians and Americans Confront Transboundary Pollution, 1927-14” Environmental History 1, no. 2 (1996): 34-51.
 Rosemary Ommer and Nancy J Turner. “Informal Rural Economies in History.” Labour/Le Travail 53 (2004): 127.
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