Environmental Rights

• Author: Jamie Benidickson
• Pages: 52-69

52

CHA PTER 3

ENVIRONMENTAL

R IGHT S

A. HUMAN AND CONSTITUTIONAL RIGHTS

TO ENVIRONMENTAL QUALITY

The attraction of human rights or constitutiona l safeguards for en-

vironmental interest s lies in the improved position of environment in

the legal hierarchy in both practical and symbolic ways. Proponents

envisage environmenta l rights as a philosophical and practical advance

that would not only acknowledge the fundamental import ance of en-

vironmental qual ity as a public value, but also facilitate enforceability

by helping to overcome existing obstacles to environmental protection.

These obstacles include constraint s on opportunities for participation

in judicial and admin istrative decision making, broad delegations of

discretion conferred upon government off‌icial s, and the signif‌icant

weight or priority accorded to property or similar competing interests

in cases of conf‌lict w ith other values of the community.

While discussion of environmental rights has not been prominent

in Canada, the subject ha s certainly not been ignored. In the words of

the Law Reform Commis sion of Canada, for example, “a fundamental

and widely shared value is indeed ser iously contravened by some en-

vironmental pollution, a value which we wil l refer to as the right to a

safe environment.”1 Recently, in discussing a prov ision of Quebec’s En-

1 Law Reform Comm ission of Canada, Crimes Against the Environme nt (Otta wa:

The Commission, 1985) at 8.

Environment al Rights 53

vironment Quality Act dealing with a statutory entitlement to a healthy

environment and to which we will short ly refer, the Supreme Court of

Canad a stated:

To ensure that this r ight may be effectively exerc ised, and that the

duties created to give ef fect to it are executed, the Act provides for a

variety of mecha nisms for taki ng action. Various schemes are est ab-

lished for authorizi ng and monitoring activit ies that could threate n

the environment. Ot hers prohibit or restrict the em ission of contam-

inants a nd impose obligations to dec ontaminate.2

Environmental right s are sometimes further classif‌ied on the basis

of a distinction between procedural a nd substantive rights. The for-

mer encompass safeguards for effective participation in environmental

decision making while t he latter imply some acknowledged change in

priorities and therefore in the ex pected outcome of environmentally

signif‌icant decisions. The di stinction is aptly summar ized in an early

Canadian commentary on environmental rights:

Those who search for a right to env ironmental qualit y hope it will

confer more than a right to p articipate or some requirement of due

process or natura l justice before environment ally harmf ul decisions

are taken. They want a r ight which will dict ate a decision in favour

of environmental protect ion in diff‌icult cas es. They hope this right

will be equiv alent to a civil libert y, on the one hand, constraining

government actions ha rmful to the env ironment, and, on the other,

equivalent to a property r ight, restraining the u se of private property

in ways that are i ncompatible with sound ecological m anagement.3

A more recent synthesis of the continuing debate pulls together some

of the uncertain ing redients of environmental right s while it also iden-

tif‌ies direct linkages between environmenta l rights and the essentials

of ecological management. With regard to matters of scope and design

associated wit h environmental rights, questions along thes e lines arise:

Is such a right indiv idual or collective? Is it a positive or a negative

right? Can we conceptuali ze such rights as a nthropocentric (i.e., hu-

man rights to e nvironmental qual ity) or ecocentric (animal right s,

species’ right s or rights for natur e)? Do these rig hts extend to future

generations? Are there duties t hat accompany the rights . . . ?4

2 Imperial Oil Lt d v Quebec (Minister of the Environment), [2003] 2 SCR 624 at 640.

3 J Swaigen & RE Woods, “A Substantive R ight to Environmental Q uality” in J Swai-

gen, ed, Environmental Rights in Canada (Toronto: Butterworths, 1981) 195 at 200.

4 E Hughes & D Iyalomhe, “Subst antive Environmental R ights in Canada” (1998–