Unnatural Law - Rethinking Canadian Environmental Law
and Policy
by David R. Boyd. Vancouver: UBC Press, 2003, 469 pp. (including notes, references
and index)
When I first picked up Unnatural Law - Rethinking Canadian Environmental
Law and Policy, I turned to the back cover to sample the praise bestowed
on the book by various Canadian notables in the environmental law world.
That praise included the suggestion by a well-known environmental activist
and lawyer that the book has laid bare the "Myth of Canadian Environmental
Superiority". Before even cracking the cover, I could not help but wonder
whether the average Canadian actually does believe that our grandchildren
will thank us for looking after the abundant wealth of natural resources
with which this country has been blessed. I suspect that most of us are
quietly aware that if environmental stewardship was our day job, we would
be fired in short order. But if any of you have any doubt as to whether
you will be held in high regard by future generations, please do pick up
a copy of Unnatural Law. David Boyd has some bad news for you -
unless we mend our ways, we are not going to be a popular bunch around
the dining
room table in years to come.
In Unnatural Law, Boyd, known to many British Columbia lawyers as the former executive director of the Sierra Legal Defence Fund, and presently a Senior Associate with the University of Victoria's POLIS project on ecological governance, has donned a white coat and stethoscope in an effort to examine the present state of Canadian environmental law and policy, provide a diagnosis, and finally, write a prescription for the years to come. For lawyers working too many hours in a high stress job with inadequate diet and exercise, Boyd's advice will be eerily familiar - we Canadians need a fundamental change in lifestyle.
The first five chapters of Unnatural Law are devoted to his examination of the patient, and Boyd covers the field in comprehensive and detailed manner, canvassing environmental law and policy pertaining to water, air, land and biodiversity. As soon as the reader walks into the examining room in chapter one, she is presented with a wealth of statistics on Canada's environmental record. Suffice it to say, according to a number of sources, including the Organization for Economic Co-operation and Development (OECD), Canada ranks at or near the bottom in most key indicators of environmental performance.
But Boyd is careful to provide a more balanced perspective in these early chapters, and does not just focus on our failures and weaknesses. Past successes are also highlighted, and Boyd usefully spends some time examining the contributing factors to those successes. For example, using a combination of strong federal and provincial regulations, Canada cut production of ozone-depleting substances by 95 percent in less than a decade, despite dire warnings from industry about economic impacts and a decline in the quality of life. Surely we can learn some lessons for our ongoing debate over the Kyoto Protocol and the reduction of greenhouse gases?
Part two of the book deals with Boyd's diagnosis. Boyd is again detailed and generally balanced in this section. Not surprisingly, our present economic structure is identified as the first (and arguably the largest) obstacle for the type of change for which Boyd is advocating in this book. As Boyd points out in chapter nine, despite much celebration of the "new economy", Canadians are still primarily "hewers of wood" and "drawers of water". Canada's eight largest exports are natural resource commodities, and it is the extraction of those resources which accounts for a substantial proportion of the environmental damage in this country.
In concluding that Canada is not doing a good job in protecting its environment, Boyd looks to what he terms the "root causes" of environmental degradation - population growth and over-consumption. As he moves into the final chapters of the book containing his "prescription", Boyd makes it clear that, in his view, more US style laws and regulations are not the answer insofar as they do not address those root causes of our current problems. Boyd ultimately suggests that we have two fundamental alternatives - to follow the American model of "enacting increasingly complex laws and regulations in an effort to mitigate the environmental impacts of an energy and resource-intensive industrial economy" - or to follow the model adopted by Sweden (and other European countries) by restructuring our economy to accommodate ecological limits and principles.
I take no issue with Boyd's examination and diagnosis, and am of the view that his detailed synthesis represents a useful contribution to the field. It is Boyd's "prescription" that raises questions for me.
I understand the philosophical appeal of a call for fundamental change, and do not disagree that stricter laws and regulations cannot achieve a truly sustainable future unless underlying problems such as over-consumption are addressed. But the fact remains that Canada is a country of evolution, not revolution. I wonder about the practical appeal of Boyd's stark alternatives beyond the traditional activist crowd. To be fair, Boyd does spend some time addressing practical tools for change (eg. "smart subsidies"), but his conclusion drifts away from that focus into a philosophical discussion about the need to "change values".
And perhaps I do join issue with Boyd's diagnosis to the extent that he labels the American approach a "failure" - in my opinion, there is much to be learned from the laws enacted south of the border; laws which have kept the most heavily industrialized country in the world from becoming a complete wasteland. I am also of the view that, in light of the fact that we have immersed ourselves in a free market economy, we should not be afraid to think about ways in which we can use the marketplace to effect environmental change. It is that type of incremental change which Canadians will ultimately embrace.
These concerns are particularly important because, in my view, this book will primarily be read by environmental lawyers, law students and academics. Unnatural Law falls somewhere in the grey area between textbook and popular work, and I suspect that the average citizen will not make his or her way through this book. For lawyers (and would-be lawyers) looking to effect change, a call for a change in values is of limited utility to them - they need to focus on specific ways in which to employ the tools available to them. As Unnatural Law makes clear, there will be no shortage of work for them in the years ahead.
