The interests of future generations must be protected in any constitution, argues Professor Jonathan Boston, but we can’t afford to wait for constitutional reform before tackling environmental challenges.
Any entrenched, justiciable constitution should be appropriately future-focused. In particular, it should include provisions which protect the interests not only of current citizens but also of future citizens – for many generations to come. Put differently, a constitution should have proper regard to citizens’ needs, rights and interests both in the near-term and over the long-term: it should protect their ‘future selves’ and also those who are as yet unborn.
But the problem is how best to pursue such goals. Many future needs and interests are unknown or uncertain. Policy-makers also face genuine intertemporal trade-offs. How should short-term and long-term interests be balanced if and when they clash? Aside from this, there is the challenge of which particular long-term interests – economic, social, cultural and environmental – should be protected by means of a constitution and how should such interests be framed and specified? If the wording is too narrow and precise, it may provide inadequate protection for new or emerging interests. Yet if the wording is too broad and generalised it may be open to multiple and competing interpretations, thereby potentially offering little real protection. Another issue relates to the question of legal standing: who should have the right to bring proceeding before the courts to protect the interests of future generations and should public resources be available to those pursuing such cases?
Many drafters of constitutions around the world have grappled with such issues over recent decades. Thus far, no consensus has emerged on the best way forward. Having said this, efforts to protect long-term interests, including those of future generations, have often focused on humanity’s interests in a safe, healthy and sustainable environment. The Constitution of Bolivia, for example, provides that the state is responsible, amongst other things, for the ‘use of natural resources, the promotion of industrialisation, and the conservation of the environment for the welfare of current and future generations’. Similarly, the Constitution of Ecuador requires the state to ‘exercise sovereignty over biodiversity, whose administration and management shall be conducted on the basis of responsibility between generations’. Both provisions are worded to encourage positive action on behalf of the state; but they provide no guarantee of specific environmental rights. By contrast, the South African Constitution states that, everyone has the ‘right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures’. Similarly, the Andorran constitution guarantees ‘an environment fit for life for the coming generations’.
It is uncommon for constitutions to protect the interests of future generations independent of any specific reference to environmental considerations. While a small number of constitutions contain such protection, the relevant provisions are typically worded as statements of policy, not as fundamental or specific rights. In Estonia, for instance, the Constitution’s Preamble declares that ‘[the state] shall serve to protect international and external peace and provide security for the social progress and general benefit of present and future generations’. This provides a positive direction for governmental policy, but it has little practical or judicial value – there is no scope for judicial enforcement.
In relation to protecting long-term interests, the approach taken by Geoffrey Palmer and Andrew Butler in their proposed constitution for Aotearoa-New Zealand closely parallels the South African model. Hence, it focuses on environmental rights. To quote from their draft Article 105:
Everyone has the right –
(a) to an environment that is not harmful to his or her health or wellbeing; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –
(i) reduce pollution and ecological degradation;
(ii) promote conservation;
(iii) pursue ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
Several points deserve brief comment.
First, the proposed wording is more specific, comprehensive and demanding than is typically the case in other constitutions. For instance, the reference to measures that ‘reduce pollution and ecological degradation’ recognises that much ecological damage has already been inflicted by human activity, and that such damage should be repaired and rectified – at least where this is technically possible (and presumably affordable). Similarly, the proposed provision grants all citizens ‘the right … to an environment that is not harmful to his or her health or wellbeing’. If ‘harm’, ‘health’ and ‘wellbeing’ are all broadly interpreted, then this would represent a significant new legal right. An interesting question, of course, is whether the negative framing of the proposed provision – i.e. the right not to be harmed – provides stronger constitutional protection than an alternative, positive framing – e.g. ‘the right to a healthy, safe and sustainable environment’. But this is certainly possible.
Second, the proposed provision attempts to balance the competing interests of conservation and environmental sustainability with those of ‘justifiable economic and social development’. This begs many questions, not least the issue of what constitutes ‘justifiable’ development: what, for instance, might be the appropriate tests and thresholds? Equally, how willingly might the courts question the judgements reached by law makers, regulators and other policy-makers? Balancing economic development and environmental protection are deeply political and controversial matters. Is it reasonable to expect the courts to take a very different view from citizens’ elected representatives?
One matter, however, is abundantly clear: New Zealanders have been poor stewards of their amazing environmental inheritance. Our nation’s rate of biodiversity loss is amongst the highest in the world. Many of our lakes, rivers and streams have been badly polluted, some almost irreversibly. Our per capita greenhouse gas emissions are high by international standards. And we are losing soil at about ten times the global average rate. Improving our environmental management is thus critically important. And we cannot wait for an entrenched and justiciable constitution to achieve this goal, however helpful this might be. We must start now.
Professor Jonathan Boston is the director of Victoria University’s Institute for Governance and Policy Studies. His most recent book is Safeguarding the Future: Governing in an Uncertain World (Bridget Williams Books, 2017).