Environmental Rights

AuthorJamie Benidickson
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.
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.

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