Much of the law is concerned with balancing rights to some degree. For instance, criminal law restricts individual rights in order to avoid harm to others, property rights are sometimes subject to regulation to protect the environment, and employment law juggles employee and employer rights. With respect to the rights of nature, it is easy to see how they might also come into tension with other rights. Enshrining the rights of nature could potentially impact one’s ability to exercise property rights, environmental rights, pursue economic development, and more.

Given that balancing is an inherent part of our existing legal system, legislatures and the courts have developed various techniques to manage and resolve conflict. With respect to rights in tension, courts and tribunals have had (and continue to have) opportunity to work out how to resolve these incongruities. For instance, the Supreme Court of Canada (SCC) has had occasion to develop a balance between competing Charter rights such as the right to freedom of expression and the right to full answer and defence ¹, the right to freedom of religion and the right to equality ², and the right to privacy and the right to full answer and defence, to name a few ³.

In general, the SCC in Canada has firmly rejected a hierarchy of rights. In Dagenais v Canadian Broadcasting Corporation the SCC stated that “[a] hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law” ⁴. Instead, “Charter principles require a balance to be achieved that fully respects the importance of both sets of rights” ⁵. It is likely that this same reasoning (i.e. avoidance of hierarchy) would apply to any balancing of the rights of nature.

As previously discussed, there are many different types of rights, such as human rights, property rights, environmental rights, and more. These rights can also take different forms, as they may originate from different sources such as the Canadian Charter of Rights of Freedoms, legislation and the common law. It is not yet clear what form the rights of nature may take in Canada. Depending on how they are enshrined in law (i.e. in legislation, the Constitution, etc.) different methods of balancing may be applicable.

Courts use various methods to balance rights and there is no one correct method. In Canada, one of the most oft-discussed types of balancing occurs when the courts try to balance or reconcile intersecting constitutional rights. The Canadian Charter of Rights and Freedoms sets out the rights and freedoms that are protected by our constitution, including the right to freedom of expression, the right to “life, liberty and security of the person” and the right to equality before and under the law. On occasion, these rights can come into tension with each other, and when they do, the courts must seek to balance or reconcile these rights with each other. Two of the techniques or methods that are used by the courts to manage these differences include the concept of “reconciling rights” espoused by the Honourable Justice Frank Iacobucci and the balancing method described in a constitutional test called the “Oakes test”. Note that not all aspects of these methods would likely apply to the rights of nature (unless of course the rights of nature were enshrined in the Charter). However, it is useful to consider them nonetheless as they can provide guidance and instruction going forward. A brief discussion of these methods follows below.

Balancing and/or Reconciling Constitutional Rights

The concept of “reconciling rights” was popularized by the Honourable Justice Frank Iacobucci in his article ““Reconciling Rights” the Supreme Court of Canada’s Approach To Competing Charter Rights” ⁶. Although the concept was developed in the context of competing Charter rights, Iacobucci noted that these “techniques…are analogous to those used in various other areas of constitutional analysis, and indeed, legal analysis more generally” ⁷.

Justice Iacobucci argued that “[t]he exercise…[of] defin[ing] the content and scope of rights in relation to one another, more closely approximates rights “reconciliation” than rights “balancing”” ⁸. While the terms have sometimes been used interchangeably, in his view, “balancing” involves assigning primacy to one right over another (such as in the Oakes test, discussed below) whereas “reconciling” implies harmonizing seemingly contradictory things so as to render them compatible ⁹.

In his view, the act of reconciling is best suited for when “a court seeks to reconcile the constitutionally guaranteed rights of one individual with those of another” ¹⁰.

Justice Iacobucci reviewed select Charter jurisprudence and came up with the following principles on rights reconciliation:

• Rights reconciliation is guided by context – the relationship between various Charter rights can vary from case to case as it is context that determines where the line should be drawn between competing rights in a given case ¹¹;
• Rights reconciliation usually requires a proportionality-type analysis – similar to the Oakes test (discussed below), reconciling rights requires a consideration of the deleterious effects of the measures which limit the rights in question and the objective sought to be achieved by the limitation, as well as the deleterious and salutary effects of the measures themselves. A hierarchical approach to rights must be avoided. This is referred to as a Dagenais-type framework and it is attractive, in part, because “it allows courts to make case-specific determinations without sacrificing legal precedent” ¹²;
• Avoid “clashing rights” imagery – the idea of “clashing rights” is inappropriate and does not lend itself to giving proper recognition of both rights when dealing with rights reconciliation. Moreover, conflict can sometimes be resolved by properly defining the scope of the rights in the first place ¹³;
• The exercise is flexible and therefore able to be adapted and applied to various circumstances ¹⁴.

These concepts, while developed in the context of competing Charter rights, are also likely applicable in the context of competing rights generally. Guiding principles such as context, proportionality, flexibility and avoiding tropes about “clashing rights” can all be imported to reconciling the rights of nature with other rights.

Another type of balancing that occurs in the context of constitutional rights is the use of the Oakes Test. The Oakes Test was developed by the Supreme Court of Canada in R v Oakes to assist with interpreting section 1 of the Canadian Charter of Rights and Freedoms. Section 1 of the Charter states that rights are guaranteed, “subject only to such reasonable limits…as can be demonstrably justified in a free and democratic society”. Accordingly, the government must be able to show that any legislation that violates a Charter right is justified and that its benefits outweigh the negative impact ¹⁵.

The Oakes test consists of two steps. Step one requires the government to establish that the impugned law’s goal is both “pressing and substantial” (i.e. important and necessary). Step two involves a three-part proportionality analysis:

1. The law must be rationally connected to the law’s purpose;
2. The law must only minimally impair the violated Charter right;
3. The law must be proportionate to its goals ¹⁶.

The government must be able to satisfy the test in order for the legislation at issue to stand. For example, in R. v. Keegstra the SCC considered whether legislation criminalizing hate speech violated the freedom of expression guaranteed by s. 2(b) of the Charter. The government was able to satisfy the majority of the SCC that the “narrowly drawn parameters” of the law was justifiable under section 1 of the Charter ¹⁷.

Note that the Oakes test is considered by some to be an example of “balancing” rights – it weighs the relevant considerations and then assigns primacy to one right over another right ¹⁸. Of course, not everyone agrees there is actually a difference between the “balancing” and “reconciling”. Law professor Errol Mendes argues that both balancing and reconciling are searching for the “contextual equilibrium” between two rights, that is, “an equilibrium depending on what particular interests are at stake in any particular fact situation” ¹⁹. Thus, the terms balancing rights, reconciling rights or “contextual equilibrium” could be used inter-changeably ²⁰.

Regardless, the Oakes test is unique in that it was developed to assess whether the state can justify a violation of an individual’s Charter right. An individual has to show that the law encroaches on a Charter right, and then the onus shifts to the state to justify the encroachment. This is distinguishable from a situation where two private parties are involved in a civil suit, and the onus rests with the claimant ²¹. For this reason, the Oakes test is not directly transferable to a situation where the rights of nature may need to be balanced with another right.