The Unwritten Constitutional Principle of Ecological Sustainability

Abstract

This Article explores whether recognizing an obligation of ecological sustainability as an unwritten constitutional principle (UCP) would assist government decision-makers and courts in addressing the many competing imperatives raised by the problem of petroleum pipelines. I argue that if the rule of law is the foundation of our society, then ecological sustainability is the bedrock on which it stands. Moreover, an ecological UCP would assist courts hearing pipeline-related disputes in interpreting environmental legislation, supervising the discretionary decisions of environmental regulators, adjudicating environmental claims under the Charter, and/or determining environmental powers under sections 91 and 92 of the Constitution Act, 1867. In particular, the UCP of ecological sustainability strongly militates in favour of upholding environmental legislation where there is even a slight jurisdictional toe-hold for the relevant level of government. The Article will also contrast how a sustainability analysis of pipelines differs from one grounded in the right to a healthy environment – the other major avenue for constitutional environmental protection. The Article concludes that while the right to a healthy environment arguably does not clearly resolve the pipeline puzzle (since such a right could equally be violated by alternative methods of transporting petroleum products, notably train transport), an unwritten constitutional principle of ecological sustainability points clearly to the need to divest from fossil fuel infrastructure and aggressively invest in renewables.