Unnatural Law: Rethinking Canadian Environmental Law and Policy

by David R. Boyd
ISBN: 0774810491

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A Review of: Unnatural Law: Rethinking Canadian Environmental Law and Policy
by David Colterjohn

In May 2000, an outbreak of E. Coli bacteria contaminated the drinking water in Walkerton, Ontario. Seven people died and thousands of others were sickened in an incident that attracted intense national media scrutiny. The ensuing wave of public outrage forced the Ontario provincial government to introduce new legislation, the Safe Drinking Water Act, which binds that province's municipalities to mandatory water safety standards.
Far from being an anomaly, Walkerton's water safety problems are shared by the residents of hundreds of other Canadian communities, where "boil water advisories" are a fact of everyday life. From Kitchener to Kelowna, over the past decade thousands more have become "violently ill" with water-borne illnesses. Some of these have also died. Not only do Canadians lack a constitutionally-protected right to safe drinking water, but "most Canadian provinces and territories have no legal requirement that the public be informed of known water quality problems.
So warns David R. Boyd in his compelling book Unnatural Law, Rethinking Canadian Environmental Law and Policy. Using the lawyer's analytical equivalent of a forensic microscope, Boyd minutely examines the laws, regulations and policies that supposedly protect the health of Canada's citizens and ecosystems. As thorough as he is passionate, Boyd proposes major reconstructive surgery to a sweeping range of international, federal and provincial laws.
Boyd, a professor and environmental lawyer who has argued before the Supreme Court of Canada, uses the image of a doctor examining a patient as his controlling metaphor. With its main sections titled Examination, Diagnosis and Prescription, Unnatural Law shows that the Canadian environmental legal regime is in critical condition and stands in need of drastic legislative treatment. Despite some notable successes, a recent University of Victoria study ranked Canada's overall environmental record in 28th place out of the 29 countries in the OECD, ahead only of the United States.
Unnatural Law is so detailed, comprehensive and closely argued that any attempt to summarize its contents seems glib, if not misleading. In the Examination section, for example, Boyd divides his chapter on water into four subsections that cover drinking water, water pollution, water use and conservation, and bulk water exports. Here, in 52 pages of fact-packed, footnote-anchored text, Boyd proves beyond all reasonable doubt that, "heavily influenced by the enduring myth of endless water .. . . our law and policies generally fail to provide the level water security sought by Canadians."
Though Boyd credits Canada's admirable role in introducing and implementing the Montreal Protocol, his chapter on air quality delivers blunt assessments of the Canadian legislative approach to climate change and air pollution. He contrasts our nation's effective actions on ozone depletion with its indefensible foot-dragging on climate change. Of the first problem he writes, "Canada is recognized as a world leader, and our domestic actions have lived up to our international commitments. With respect to climate change, Canada is regarded as a rogue state, sabotaging international negotiations and violating our obligations under environmental treaties." In 2000, during negotiations to hammer out the final details of the Kyoto Protocol, the Canadian stance was so recalcitrant that a coalition of environmental groups voted Canada "most obstructive" of the 180 nations in attendance.
Boyd sets the vigorous public reaction to the deaths in Walkerton beside our apparent indifference to regional air pollution, which nationwide causes somewhere between 5 and 16 thousand premature deaths each year. Fully 20 percent of Ontario's hospital admissions for infants suffering respiratory problems are attributed to the effects of smog. In Vancouver alone, one study projects that achievable improvements in air quality "would save 2,800 lives and prevent 33,000 hospital emergency room visits by 2020."
Boyd's analysis of the stresses faced by Canadian forests, oceans and biodiversity is just as grim. In his Diagnosis section, he identifies six systemic weaknesses in our legal system that account for many of the problems. First, Canada and its provinces simply lack many of the environmental laws that are commonplace around the world. Unlike the United States, Canada just doesn't have basic legislation like enforceable national air or water quality standards. Always fearful of antagonizing Quebec, Ottawa generally lets provincial governments write and implement-or not-their own environmental laws.
Again comparing Canada unfavorably to the United States, the second weakness Boyd examines is the problem of "excessive discretion", on the part of the politicians and bureaucrats responsible for making and administering the law. Here in British Columbia, he notes that the Vancouver Public Library collects more revenue in fines from its members than the B.C. government does for illegal logging. In legalese, the difference between the words "must" and "may" leaves a gap big enough for the Exxon Valdez to sneak through.
The third major flaw in our environmental laws and policies is that they "fail to reflect contemporary scientific knowledge and principles." One salient example of this failure comes from the recent Species at Risk Act, which purports to protect the "residences" of listed species. The term has no meaning for biologists, who happen to know that real plants and animals live in complex, interconnected ecosystems. The point is reinforced by a photograph of a lone "Wildlife Tree", left bleakly standing amid the desolation of a clearcut. Three remaining systemic weaknesses are weak implementation and enforcement, insufficient public participation, and governments' reliance on "an unduly narrow range of law and policy options."
Those among us who felt self-righteous when U.S. President George W. Bush refused to ratify the Kyoto Protocol may be chagrined to learn that in most cases, American environmental law is superior to Canada's. U.S. legislation is more likely to include mandatory, measurable standards and to be backed up by the budgets and resources needed to enforce them.
Nevertheless, the American attempt to curb environmental degradation through legislation amounts to little more than a "resounding failure." The relative strength of American laws has done nothing to stop individual Americans from having the largest per capita environmental impacts in the world. At the end of the day, the "magnitude and complexity of economic activity overwhelms American efforts to mitigate, through the legal system, the impacts of the economy on the environment."
As Boyd sees it, this is because environmental law is "largely reactive, not proactive. When environmental problems arise, from oil spills to concerns about endangered species, environmental laws are drafted and implemented to address symptoms rather than root causes." He identifies over-consumption in the industrialized nations and population growth in developing countries as the problems that need to be addressed most urgently.
The good news is that Boyd believes the grail of "sustainable development" is achievable, but only if we take a global perspective and use all the tools that human foresight can provide. Not only would our legal system have to be thoroughly revised, we would also have to abandon the growth-driven economic model that dominates our institutions today. Furthermore, the quality and amount of overseas development assistance would have to be radically improved if the millions who now live in poverty are ever to live decent, fulfilling lives.
Unnatural Law is more than an exhaustive (and exhausting!) list of Canadian environmentalists' legal grievances. Meticulous to the end, Boyd embraces the "precautionary principle" and makes use of solid scientific research and the latest developments in economic theory to prescribe new ways of living in the world. "Sustainable solutions to today's problems exist," he concludes, "but in order to get there we must summon unprecedented compassion and tap unused reservoirs of ingenuity. We need to demonstrate humility, not hubris; act on the basis of wisdom, not wishful thinking; and recognize that we are part of, not separate from, nature."

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