Environmental Rights

• Author: Jamie Benidickson
• Pages: 52-69

52

CHAPTER 3

ENVIRONMENTAL

R IGHT S

A. HUMAN AND CONSTITUTIONAL RIGHTS

TO ENVIRONMENTAL QUALITY

The attraction of human rights or constitutional safeguards for en-

vironmental interests 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 importance of en-

vironmental quality as a public value, but also facilitate enforceability

by helping to overcome existing obstacles to environmental protection.

These obstacles include constraints on opportunities for participation

in judicial and administrative decision making, broad delegations of

discretion conferred upon government off‌icials, and the signif‌icant

weight or priority accorded to property or similar competing interests

in cases of conf‌lict with other values of the community.

While discussion of environmental rights has not been prominent

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

the Law Reform Commission of Canada, for example, “a fundamental

and widely shared value is indeed seriously contravened by some en-

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

safe environment.”1 Recently, in discussing a provision 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 Rights53

vironment Quality Act dealing with a statutory entitlement to a healthy

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

Canada stated:

To ensure that this right may be effectively exercised, and that the

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

variety of mechanisms for taking action. Various schemes are estab-

lished for authorizing and monitoring activities that could threaten

the environment. Others prohibit or restrict the emission of contam-

inants a nd impose obligations to decontaminate.2

Environmental rights are sometimes further classif‌ied on the basis

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

mer encompass safeguards for effective participation in environmental

decision making while the latter imply some acknowledged change in

priorities and therefore in the expected outcome of environmentally

signif‌icant decisions. The distinction is aptly summarized in an early

Canadian commentary on environmental rights:

Those who search for a right to environmental quality hope it will

confer more than a right to participate or some requirement of due

process or natural justice before environmentally harmful decisions

are taken. They want a right which will dictate a decision in favour

of environmental protection in diff‌icult cases. They hope this right

will be equivalent to a civil liberty, on the one hand, constraining

government actions harmful to the environment, and, on the other,

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

in ways that are incompatible with sound ecological m anagement.3

A more recent synthesis of the continuing debate pulls together some

of the uncertain ingredients of environmental rights while it also iden-

tif‌ies direct linkages between environmental 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 individual or collective? Is it a positive or a negative

right? Can we conceptualize such rights as anthropocentric (i.e., hu-

man rights to environmental quality) or ecocentric (animal rights,

species’ right s or rights for nature)? Do these rights 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–