Week #12 part #1: Environmental rights and compliance

Question 1

Environmental rights are sometimes classified on the basis of a distinction between procedural and substantive rights.

What is the nature of procedural rights?

Answer 1

Procedural rights encompass safeguards for effective participation in environmental decision making.

Question 2

Environmental rights are sometimes classified on the basis of a distinction between procedural and substantive rights.

What is the nature of substantive rights?

Answer 2

Substantive rights imply some acknowledged change in priorities and in the expected outcome of environmentally significant decisions.

Question 3

What is a Human Right, according to the Canadian Human rights commission?

Answer 3

Human rights have been described as all the things we are entitled to be, to do or to have simply because we are human.
• Human rights describe how we instinctively expect to be treated as persons.
• Human rights define what we are all entitled to — a life of equality, dignity, and respect.
• A life free from discrimination.
• You do not have to earn your human rights. You are born with them. It’s the
same for every man, woman and child on earth.
• Nobody can give them to you. But they can be taken away.
• This is why countries have human rights laws that make sure that people and
governments are held accountable if your human rights are not respected. In Canada, your human rights are protected by provincial, territorial, federal and international laws.

Question 4

Name stuff you cannot discriminate on according to the human right charter

Answer 4

Gender, race, ethnicity, religion, gender expression, national origin, sexual orientation.

Question 5

What does the African Bill of rights states?

Answer 5

Everyone has the right . .. to an environment that is not harmful to their health or well-being; and to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation, promote conservation, and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Question 6

What are the goals of the European Union policy regarding the environment?

Answer 6

• preserving, protecting, and improving the quality of the environment;
• protecting human health;
• utilizing natural resources prudently and rationally; and
• promoting measures at the international level to deal with regional or worldwide environmental problems.

Question 7

What does the constitutional framework of the EU requires that it’S policy follow?

Answer 7

“Shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Environmental protection requirements must be integrated into the definition and implementation of other Community policies”

Question 8

What is the environmental right state in the Pennsylvania constitution?

Answer 8

“[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment.”

Question 9

What did Norway do to protect its country (and the world) from pollution coming from the oil and gas industry?

Answer 9

They instaured an 80% tax on the profit of the oil and gas companys and put that money in a fund dedicated to environment protection.

Question 10

Which is the first country to establish an environmental right in its constitution?

Answer 10

Portugal

Question 11

What principle does the constitution of Portugal force companys to follow?

Answer 11

The precautionary principle.

Question 12

Which Act grants standing to private individuals to seek injunctive relief, a remedial order, or compensation for breaches of the law in the Northwest Territories?

Answer 12

Pursuant to the Environmental Rights Act of 1990, “the people of the Northwest Territories have the right to a healthy environment and a right to protect the integrity, biological diversity and productivity of the ecosystems in the Northwest Territories.
• The legislation confirms the right of any person resident in the territories “to protect the environment and the public trust from the release of contaminants”

Question 13

Ontario Environmental Bill of Rights, 1993 (OEBR) noted “the inherent value of the natural environment” and the people’s “right to a healthful environment.”

What rights does this bill create for the people of Ontario?

Answer 13

• the right to get notice of, and to comment on, proposed policies, Acts, regulations, and instruments that may affect the environment;
• the right to seek leave to appeal certain ministry decisions;
• the right to ask a minister to change or eliminate existing environmental policies, Acts, regulations, and instruments;
• the right to ask a ministry to investigate contraventions of environmental Acts, regulations, and instruments;
• the right to sue those responsible for harming a public resource; and
• the right to sue for damages in the case of direct economic or personal loss resulting from an environmentally harmful public nuisance.

Question 14

Is there mention of the Environment in the Canadian Charter?

Answer 14

• There no express recognition of a right to environmental quality or protection exists in Canadian constitutional instruments. Yet the absence of an explicit reference to the environment has not precluded argument that environmental rights exist implicitly
within other constitutional provisions.

Question 15

Which sections of the charter could potentially be used to protect the environment?

Answer 15

• Section 7: “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”
• Section 15: “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”
• People whose property or perhaps livelihoods suffer because of environmental contamination or degradation resulting from the decisions of an institution subject to the Charter’s application will have limited recourse
under the Charter, whereas those exposed to health risks in the same circumstances might envisage a Charter claim.
• The prospects of success in each case are dependent on satisfactory proof of a causal connection between the injury alleged and the impugned decision or official action

Question 16

How can section 7 of the Charter protect the environment?

Answer 16

Section 7 – “life, liberty and security of person” incorporates:
• freedom from threats to one’s physical integrity, including risks to health (R v Morgentaler, (1988] 1 SCR 30.)
• But excludes property and economic interests.
• Manicom v Oxford - resident landowners in the vicinity of a site that had been approved by the Ontario Cabinet for waste disposal challenged the decision
on several grounds, including the assertion that the approval violated their interest in life, liberty, and security of the person and was not made in
accordance with the “principles of fundamental justice” as required by section 7.
• The Divisional Court rejected the plaintiffs’ claim on the grounds that property interests were not protected under section 7 of the Charter.
• Section 7 - As underlined by the Supreme Court of Canada: “Claimants whose life, liberty or security of the person is put at risk are entitled to relief only to the extent that their complaint arises from a breach of an identifiable principle of fundamental justice.”….. litigants invoking section 7 of the Charter must also show that their deprivation was contrary to the principles of fundamental justice.
• Fundamental Justice: it must be a legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or
security of the person.
• Moreover, even where infringement of section 7 interests can be shown to have taken place in a manner contrary to “principles of fundamental justice,” the government will have the opportunity to justify that infringement under section 1 of the Charter as being a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

Question 17

Name a few principles of fundamental justice

Answer 17

• Arbitrariness.
• Vagueness.
• Overbreadth.
• Gross disproportionality.
• Requirement of mens rea.
• Shocks the conscience.
• Right to make full answer and defence.
• Right to silence.

Question 18

What are some example of compliance and administrative enforcement?

Answer 18

• Reporting obligation
• Inspection power
• Control Order
• Stop Order
• Preventive Order/corrective measures
• Remedial order

Question 19

What are inspections?

Answer 19

• Inspections are an additional mechanism available to administrative officials seeking information on the compliance status of businesses that are operating within the framework of an environmental permit and regulatory system.
• Inspections may be: targeted, random, and the authority to conduct an inspection is statutory based.

Question 20

What are control orders?

Answer 20

• Permit statutorily appointed officials to require designated parties to implement measures to control the illegal discharge of a contaminant into the natural environment where that discharge has been established on the basis of a written report.
• It is a precondition of any control order that a prohibited contaminant has been discharged into the natural environment. Monitoring obligations, equipment installation or replacement, and operational procedures are among the types of measures typically included in
such orders.
• Orders of this nature may be directed to the owner or previous owner of the source of the contaminant, to a person who was or is in occupation of the source of contaminant, or to a person who has or had “charge management or control” of the source of contaminant.

Question 21

What are stop orders?

Answer 21

• Such orders, also written and accompanied by reasons, require immediate compliance on the part of the person to whom they are served. Yet the preconditions of a stop order are more restrictive than those of a control order, and for this reason, stop orders have been used comparatively infrequently.
• Before issuing a stop order a Director must — on reasonable and probable grounds — be of the opinion that an existing discharge of contaminant is
occurring in such a way that it constitutes an immediate danger to human life, health, or property

Question 22

What are preventive orders/corrective measures?

Answer 22

• In the absence of statutory contraventions, but in anticipation of pollution, administrative orders may also be used to prevent or minimize environmental damage. Orders of a preventive nature require reasonable and probable grounds.

Question 23

What are remedial orders?

Answer 23

Remedial orders are now also commonly in place to require cleanup and restoration measures.