A project of the Environmental Law Centre (Alberta)

Rights of Nature

Home
/
/
/
Decision Making: Corporate Rights

DECISION MAKING:
CORPORATE RIGHTS

Another way to understand the rights of nature is to compare them to the rights that we already award to corporations. Corporations are a non-human entity that has been assigned legal personhood. This means that they have certain rights separate and apart from the human persons involved in the corporation. In this section, we consider some of the rights awarded to corporations and how they could be extended to rights of nature. For another look at how legal personhood is already being assigned to nature, check out our section on Emerging Legal Approaches.

Corporations as Legal Persons

In Canada, corporations are considered ‘legal persons.’ This comes from the English decision of Salomon v Salomon, in which the Court confirmed that a corporation has a distinct legal identity from its shareholders. 1We learned from the Salomon decision that, once incorporated, a corporation must be treated like any other independent person with its rights and liabilities appropriate to itself. This idea was reaffirmed in the Supreme Court of Canada decision of Kosmopoulos v Constitution Insurance Co. 2

This idea is also supported by statute. In Alberta, the Business Corporations Act states that a “corporation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.” 3 For example, corporations can enter into contracts, sue and be sued, and take on liability. In fact, a recent Supreme Court of Canada decision was even called upon to rule on the limits of a corporation’s Charter rights. 4

The idea of corporations as distinct legal persons is interesting to consider in light of the rights of nature. For example, what if a river had the same legal rights and was deemed a legal person just like a corporation?

Limits

There are certain limits on the rights of a corporation – particularly in comparison with natural persons. In particular, corporations do not have full rights under the Canadian Charter of Rights and Freedoms. As an example, there is Supreme Court of Canada caselaw that considers the rights of corporations (or lack thereof) in relation to section 2(a) and 12 of the Charter.

In the decision of R v Big M Drug Mart, the respondent Big M Drug Mart was charged with violating section 4 of the Lord’s Day Act which prohibited the sale of goods on Sunday. 5 However, Big M Drug Mart argued that this violated their section 2(a) rights to freedom of religion. At trial, the Judge found that the statute was inconsistent with section 2(a) of the Charter thereby violating the Charter rights of Big M Drug Mart. 6  Eventually the decision was appealed up to the Supreme Court of Canada.

The Supreme Court of Canada held that “whether a corporation can enjoy or exercise freedom of religion is… irrelevant.” 7 They concluded that a “law which infringes religious freedom is, by that reason alone, inconsistent with s.2(a) of the Charter and it matters not whether the accused is… an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue.” 8  While not specific, this seems to suggest that it is the law in general, rather than the corporation’s rights that are at issue.

However, in a later decision, the Supreme Court went further when Chief Justice Dickson (as he then was) stated that he had “no hesitation in remarking that a business corporation cannot possess religious beliefs.” 9

It seems, therefore, that the Charter right to freedom of religion does not apply to corporations.

Most recently, in the Supreme Court of Canada decision of Attorney General of Quebec v 9147-0732 Quebec Inc., the Court held that corporations cannot be subject to cruel and unusual punishment. The Court considered whether section 12 of the Canadian Charter of Rights and Freedoms would protect corporations from cruel and unusual treatment or punishment but found that “cruel and unusual denotes protection that only human beings can enjoy.”10 The SCC found that corporations are excluded from section 12 of the Charter as it was “marked by the concept of human dignity.” 11

Clearly, not all Charter rights apply to corporations, despite being legal persons. It is likely that this would be the same for nature.

Different Rights for Different Parts of Nature

The rights of nature will look different depending on which part of nature we are referring to. For example, it is likely that the rights awarded to an animal would differ from those awarded to a river. For example, protection from cruel and unusual treatment or punishment could apply to an animal and any legal framework would need to ensure that animals have a means of enforcing these rights. On the other hand, the rights of a mountain or waterbody may be limited to the right to exist, the right to continue to exist, and the right to be restored. Thus, the tools needed to protect each of these aspects of nature may be different. We explain the reason behind these rights in our section on Nature and Rights.
  • Another way to understand the rights of nature is to compare them to the rights that we already award to corporations. Corporations are a non-human entity that has been assigned legal personhood.

Footnotes

  1. Salomon v Salomon & Co, [1897] AC 22
  2. Kosmopoulos v Constitution Insurance Co, [1987] 1 SCR 2
  3. Business Corporations Act, RSA 2000, c B-9, s 16
  4. Attorney General of Quebec v 9147-0732 Quebec Inc., 2020 SCC 32 at para 2
  5. R v Big M Drug Mart, [1985] 1 SCR 295 at para 4
  6. R v Big M Drug Mart, [1985] 1 SCR 295 at paras 17-18
  7. R v Big M Drug Mart, [1985] 1 SCR 295 at para 40
  8. R v Big M Drug Mart, [1985] 1 SCR 295 at para 41
  9. R v Edwards Books and Arts Ltd., [1986] 2 SCR 713 at para 153
  10. Attorney General of Quebec v 9147-0732 Quebec Inc., 2020 SCC 32 at para 2
  11. Attorney General of Quebec v 9147-0732 Quebec Inc., 2020 SCC 32 at para 2