Panel 6C: Environmental Assessment, Territory and Sovereignty
November 19, 2014
UBC Faculty of Law
School of Environment, Enterprise and Development, University of Waterloo
Faculté de droit, Université de Sherbrooke
Western University Faculty of Law
2018 JD/MA Candidate
The chair, Natasha Affolder, opened by stating that this panel would reflect on the transnational elements of Canadian environmental assessments in terms of shaping theory and doctrine of other countries. When we have few concrete tools in an area like environmental law, there is a tendency to replicate them quickly, creating a reductionist exercise that does not give environmental assessment the depth it deserves. Academics also tend to glorify best practices and outstanding examples or focus on the disaster stories, therefore ignoring the extensive middle ground. The danger of simplification of environmental assessments and this ‘middle ground’ should be taken into account when establishing best practices.
The first speaker, Derek McKee, spoke about environmental assessments of projects outside of Canada as an example of Canadian legislation being applied extraterritorially and changing ideas about territory and sovereignty. The case study of the Canadian Environment Act was used in particular. When looking at environmental assessments of site-specific projects, there is an ambiguity between a procedural approach and a substantive approach, and between an approach based on scientific research conducted by experts as opposed to gathering perspectives of those affected by projects and allowing them to participate in decision-making. There are different policy arguments as to why Canadian environmental assessment policies should or should not be applied to projects abroad, depending on how one characterizes environmental assessment.
The second speaker, Neil Craik, discussed the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay) focusing on the remedy the court provided for the finding of Uruguay’s breach of its procedural obligations. In so holding, the court made a sharp distinction between procedural obligations and substantive obligations, maintaining that a procedural breach required nothing more than satisfaction in the circumstances. There was an underlying assumption of the court in the Pulp Mills case that Argentina did not really lose anything since it could not be proven that the pulp mill created a significant harm. This breach was not inconsequential, however, an, as highlighted by the separate opinion of judges Simma and Al Khasawneh, the substantive obligations can only be understood in through adherence to the procedural obligations. Thus, Argentina was denied its opportunity to impact the outcome of the assessment process, and to have its views fully accounted for in the citing of the mill.
The third speaker, Sara Seck, spoke to the impact of assessments on environmental human rights. First, an explanation was given for environmental human rights. This includes substantive rights (e.g. right to life and water), procedural rights (e.g. right to information, to participate in decision-making, and access to justice in event of harm) and rights of vulnerable people (e.g. rights of indigenous peoples or children). Second, contexts where international imposes obligations on states to conduct impact assessment of environmental human rights. These include obligations that states do not cause harm to common areas both within and outside of their territory, as well as extraterritorial obligations to enforce environmental human rights, which has started to be seen in practice in terms of export credit agencies in the Organization of Economic Coordination and Development (OECD). Finally, obligations of non-state actors such as businesses to perform environmental impact assessments EIA were explored. In theory, there are supposed to be EIA processes for businesses and greater guidance has been created in this respect, although they tend to blur indigenous people into ‘local communities’.