Environmental Rights

• Author: Jamie Benidickson
• Pages: 55-73

55

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 environ-

mental interests lies in the improved position of environment in the

legal hierarchy in both practica l and symbolic ways. Proponents envis-

age environmental rights a s a philosophical and practical advance t hat

would not only acknowledge the fundamental importance of environ-

mental quality as a public value, but also f acilitate enforceability by

helping to overcome existing obstacles to environmental protection.

These obstacles include constraints 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 accorde d to economic con siderations or sim ilar com-

peting interests in cases of conf‌lict with 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 fundamen-

tal and widely shared va lue is indeed seriously contravened by some

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

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

1 Law Reform Comm ission of Canada, Crimes Against the Environmen t (Ottawa:

The Commission, 1985) at 8.

ENVIRONMENTAL L AW56

Environment Quality Act dealing with a statutory entitlement to a

healthy environment and to which we wi ll shortly refer, the Supreme

Court of Canada 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 thre aten

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 cl assif‌ied on the basis

of a distinction between procedural and 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 decision s. The distinction was aptly su mmarized 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 rights while it also iden-

tif‌ies direct li nkages between environmental rights and the essentials

of ecological management. With regard to matter s of scope and design

associated wit h environmental rights, questions along the se lines arise:

Is such a right indiv idual or collective? Is it a positive or a nega-

tive right? Can we conceptual ize such rights as anthropoce ntric (i.e.,

human rights t o environmental quality) or ecocentric (anim al rights,

2 Imperial Oil Ltd v Q uebec (Minister of the Environment), [2003] 2 SCR 624 at 640.

3 J Swaigen & RE Woods, “A Substantive Ri ght to Environmental Qua lity” in

J Swaigen, ed, Environmental Rights in Canada (Toronto: Butterworths, 1981)

195 at 200.