As we get deeper into our constitutional korero, it is fitting that we draw on the experiences of other countries especially other democracies with strong constitutional cultures.
Our Chief Executive, Wendy McGuinness, has just attended a conference facilitated by the European Sustainable Development Network. The conference was held in Austria, a country that has had constitutional safeguards for the environment since 1984.
On June 13 2013, the Austrian Parliament adopted a constitutional law on sustainability. Para 1 of the law says: ‘The Republic of Austria (the federal, regional and municipal level) commits itself to the principle of sustainability in the use of natural resources in order to enable the highest quality of life for future generations.’
In Austria, the constitutional court can review the decisions of the executive if they don’t comply with the environmental charter of the constitution known as the Staatszielbestimmung. This was tested recently when the court threw out a statute granting permits to shipping companies. The Austrian Constitutional Court decided that the constitution ‘sufficiently guaranteed the consideration of environmental interest in the decision making process.’
They even have an environmental ombudsman who is charged with defending the interests of the environment, acting as a mediator between the public and the government in relation to environmental issues.
This sort of thing isn’t uncommon in Europe or worldwide for that matter. Environmental provisions are included in the constitutions of more than 90 countries, with Canada, China, Japan, New Zealand and the United States being some of the most notable hold outs. But environmental provisions have been more effective in some countries than others. Critics argue that at the end of the day constitutions are just words on a page without the cultures and institutions that support them. North Korea, for example, has provisions securing human rights and prosperity for all of its citizens, and we all know how that’s working out.
In the book Environmental Rights Revolution, David Boyd (one of Canada’s leading environmental lawyers) measures the effectiveness of environmental provisions in national constitutions. He does so by analysing 193 constitutions and the court decisions of more than 100 states. Those countries with environmental protections in their constitution, he concludes, have stronger environmental laws, enhanced enforcement, greater government accountability, more access to information and public participation. Subsequently, they have smaller ecological foot prints and are reducing pollution at a much faster rate.
In 2004, France amended their constitution by adding an environmental charter. The preamble states ‘Decisions made responding to today’s needs should not compromise the capacity of future generations and other populations to satisfy their own needs,…’ Most notable in the Charter’s components is Article 5, which raises the ‘precautionary principle’ to constitutional status, trumping ordinary legislation. This shifts the onus and restricts the introduction of sprays, chemicals and genetically modified foods until scientists have proved that they are safe.
Besides the clean green image that is the foundation of our international brand, the environment is at the heart of our sense of national identity and constitutions are a good place to express such sentiments. As the historian Michael King pointed out, it was the unique environment more than anything else that made Polynesians Maori and Europeans Pakeha. We have a responsibility to protect this for future generations.
Photo by Chris Gregory.