In addition, some Aboriginal Peoples have also sought to protect the environment by advancing their economic, social, and cultural rights. Do these different approaches support each other, or are they in conflict? In order to answer this question, it is useful to survey the objectives of the two main areas of law and review the points of convergence between human rights and the environment.
Human rights law seeks to preserve individual rights related to dignity of the person from the power of the democratic majority. There is broad agreement across all nations that these rights, enumerated in the Universal Declaration of Human Rights, include the strands of civil and political rights, as well as economic, social, and cultural rights, and that these rights generally limit the power of the state.
In contrast, the goals of environmental law are less clear. In some cases environmental legislation seeks to preserve the environment for the sake of human beings. In other cases it seeks to preserve nature for the sake of nature, and the welfare of human beings is secondary — or even in conflict — with this view. Where environmental rights have been constitutionally incorporated, they are usually not rights of the environment, but rather the human right to a healthy environment. In those areas where the primary aim is the preservation of human well-being there is no conflict between human rights and environmental rights.
Dinah Shelton writes: “In reality, the apparent conflict between human utility and intrinsic value of the environment does not exist because it is impossible to separate the interests of mankind from protection of the environment ... However, potentially conflicting differences of emphasis still exist: the essential concern of human rights law is to protect existing individuals within a given society, while the purpose of environmental law is to sustain life globally by balancing the needs and capacities of the present with those of the future. Therefore, the protection of nature at times may conflict with the preservation of individual rights.”
Political scientist Sylvie Paquerot identifies a number of connections between efforts to protect the environment and specific human rights: the procedural dimension of civil and political rights; the interdependence of rights and the direct and indirect effects on recognized rights; the right to equality and environmental justice; the right of people to control their own resources; and the duty to share resources equitably in the present and for the future.
At the international level environmental rights are advanced through procedural guarantees of civic participation, which one can view as being a reiteration of recognized civil and political human rights. The focus here is for states to provide citizens with access to information about the environment, the opportunity to participate in decision-making regarding the environment, and effective forms of judicial redress. These kinds of mechanisms are found in national environmental legislation around the world. Paquerot notes that while the institutionalization of public participation has led to a greater number of well-informed citizen groups that have enriched the public debate, it has also led to reaction from developers to create procedural roadblocks by trying to exempt projects from the scrutiny of environmental review, limit access to information, reduce time for consultation, or silence opponents through strategic lawsuit against public participation lawsuits. In some countries the attack on civil and political rights goes much further. Environmental defenders can be the subjects of harassment, arbitrary detention, forced removal, denial of legal rights, and death.
Environmental degradation can have an effect upon more than just one human right. Often a number of recognized human rights are affected at the same time including the right to life, the right to health, the right to housing, the right to food, and the right to education. Sometimes projects can create a number of nuisances such that the individuals affected can no longer enjoy their rights, such as the situation of noise pollution created by airports, or sour wells that emit noxious odours and toxic fumes.
Environmental risks are not suffered by everyone equally. Those who suffer from projects that degrade their environment are often the vulnerable and the marginalized. Dr. Robert Bullard, recognized as the father of the U.S. environmental justice movement, has clearly demonstrated that disadvantaged groups are more often subjected to risks from contaminants that affect health and quality of life. Toxic waste sites are located in their backyard. Since many of these backyards are in racialized communities, the term environmental racism has also evolved.
The right of peoples to control their own resources is the heart of the argument of Aboriginal Peoples to resist development on their lands. This right to say no is now also being claimed by groups in developed countries, as was done by Quebecers in relation to recent efforts to develop shale gas.
Finally, an important aspect of the philosophy of Aboriginal Peoples and a concern of many is intergenerational equity. From a human rights standpoint, human rights are universal not just for now, but also for future generations.
The bifurcation of legal approaches to protect the environment is neither good nor bad. Rather, it is a reflection of our understanding of our relationship with the planet. We are grappling with a desire to continue to do business as usual, while at the same time coming to grips with the understandings that we are part of the environment, that the planet that sustains us has a limited capacity to adapt to the changes we impose upon it, that we have an obligation to share its resources equitably, and that we have an obligation for intercultural and intergenerational equity. However, in order to effect the social change that will lead to international and national regulatory change, all sides will need to work together to create a common perception or vision of how the law can be used to arrive at a common goal.
Note: The University of Ottawa will be hosting a conference entitled “Environmental Justice and Human Rights: Investigating the Tensions, Exploring the Possibilities,” Nov. 8-10, 2012.