Environmental Rights

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 52-68

52

CHA PTER 3

ENVIRONMENTAL

R IGHT S

A. HUMA N AND CONSTITUTIONAL RIGHTS

TO ENVIRONMENTAL QUALITY

Debate over a human right to envi ronmental quality, or about whether

constitutional protection of environmenta l rights (or for some level of

environmental qualit y for human or possibly even non-human popula-

tions) does or can exist rais es legal analysis to a high plane of abstraction.

The attraction of rights or const itutional safeguard s for environmental

interests lies in the improved position of environment in the legal hier-

archy in both practical and symbolic ways. Proponents envisage en-

vironmental rights as a philosophical and practical advance that would

not only acknowledge the f undamental importance of environmental

preservation as a public value, but also facilitate enforceability by help-

ing to overcome existing obstacles to environmental protection. These

obstacles include constraints on opportunities for participation i n ju-

dicial and administ rative decision making, broad delegations of discre-

tion conferred upon government off‌icials, and the signif‌icant weight or

priority accorded to property interests in cases of conf‌lict w ith other

values of the community.

While discussion of environment al rights has not been prominent

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

the Law Reform Commis sion of Canad a, 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

Environment al Rights 53

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

vironmental Quality Act dealing with a statutory entitlement to a healthy

environment and to wh ich 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 exe cuted, the Act provides for a

variety of me chanism s for taking action. Various s chemes are e stab-

lished for authorizing and monitoring activities that could t hreaten

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

inants and i mpose obligations to deconta minate.2

Environmental right s are sometimes further classif‌ied on t he basis

of a disti nction between procedural and substantive rights, with the for-

mer being conf‌ined to safeguards for the participation of environment-

al advocates a nd t he latter implying some actu al change in priorities

and therefore in the expected outcome of environmentally signif‌icant

decisions. The d istinction is aptly summar ized in an early Canadian

commentary on environment al rights:

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

confer more than a r ight to part icipate or some re quirement of due

process or n atural justice before env ironmentally harm ful decision s

are ta ken. They w ant a right which will dictate a decision in f avour

of envi ronmental protection in di ff‌icult c ases. They hope this rig ht

will be equivalent to a civil l iberty, on t he one hand, con straining

government action s harmful to the environment, and, on the other,

equivalent to a property right, re straini ng the use of private property

in ways that are i ncompatible with sound ecologic al management.3

A more recent synthesi s of the continuing debate pulls together some of

the uncertain ingred ients of environmental rights while it also identi-

f‌ies direct link ages between environmental rights and the e ssentials of

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

sociated with envi ronmental rights, quest ions along these lines a rise:

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

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

1 Law Reform Comm ission of Canada, Crimes Against the Env ironment (Ottawa:

The Commission, 1985) at 8.

2 Imperial Oil Ltd . v. Queb ec (Minister of the Environment), [2003] 2. S.C.R. 624 at

640.

3 J. Swaigen & R.E. Woods, “A Substantive R ight to Environmental Qua lity” in J.

Swaigen, ed., Environmenta l Rights in Canada (Toronto: Butterworths, 1981) 195

at 200.