CONTENTS I Introduction II Human Rights-Based Environmental Protections A International Environmental Rights B Constitutional Environmental Rights 1 Express Constitutional Recognition 2 Implied Constitutional Protection 3 Constitutional Directives 4 Efficacy of Constitutional Protections III Environmental Rights within the Australian Constitutional Framework A Federal 1 Rights Drawn from International Law 2 Rights Drawn from the Text and Structure of the Constitution B States and Territories IV The Future of Constitutional Environmental Rights in Australia I INTRODUCTION
In 1983, the High Court of Australia held that Commonwealth legislation preventing the proposed construction of a hydro-electric dam on the World Heritage listed Gordon River in Tasmania was valid. (1) Recognised now as 'one of the most significant conservation victories in Australian history', (2) Commonwealth v Tasmania ('Tasmanian Dam Case ') put an end to the politically contentious project and marked the resolution of several years of heated debate in the State and across the country. (3) The case also illustrated Australia's indirect approach to environmental rights protection. Undoubtedly significant to the burgeoning environmental movement in Australia, (4) the decision did not rest on environmental grounds at all. As the Court made clear in an 'unusual' statement preceding the judgment, (5) the Court was 'in no way concerned with the question whether it is desirable or undesirable, either on the whole or from any particular point of view, that the construction of the dam should proceed'. (6) Rather, the 'strictly legal questions' (7) before the Court were focused entirely on the scope of Commonwealth power. Once that issue had been resolved, the inexorable mechanical force of s 109 of the Constitution ensured that Commonwealth legislation would prevail over its Tasmanian equivalent to the extent of any inconsistency.
Environmental protection was not central to the resolution of the Tasmanian Dam Case because environmental protection is not a subject of federal legislative power and no right to a healthy environment is enshrined in the Constitution. (8) Australia increasingly stands apart in this regard. According to the Comparative Constitutions Project, 159 national constitutions around the globe include provisions relating to the protection of the environment, either in their preamble or operative articles. (9)
Constitutional protection of environmental rights is predicated on the understanding that environmental harm 'can and does adversely affect the enjoyment of a broad range of human rights'. (10) This position is not novel. The interdependent relationship between environmental protection and human rights has been recognised in international law since at least 1972, when the 'water-shed' (11) Report of the United Nations Conference on the Human Environment ('Stockholm Declaration') declared that a healthy environment is essential to 'the enjoyment of basic human rights ... [and] the right to life itself'. (12)
Almost 50 years after the Stockholm Declaration, the symbiotic relationship between environmental protection and human rights is of increasing concern. In 2016, the United Nations Framework Convention on Climate Change ('Paris Agreement '), dealing with greenhouse gas emissions mitigation, adaptation, and finance, called upon states 'when taking action to address climate change, [to] respect, promote and consider their respective obligations on human rights'. (13) Yet environmental harm continues apace. Three recent reports of the Intergovernmental Panel on Climate Change ('IPCC') describe the predicted trajectory of the environmental catastrophe that the world will confront over the next century. (14) Under the various scenarios considered by the IPCC, including those in which emissions are significantly reduced, by 2050 low-lying megacities and small islands are projected to experience extreme high sea level events annually. (15) Historically, these events occurred only once a century. (16) Such disasters will create large groups of displaced people, destroy infrastructure, and weaken food supply, directly compromising the most basic of human rights of those affected, including the right to self-determination, the right to life, the right to food and water, the right to housing and shelter, and the right to security. (17) The IPCC's Special Report on the Ocean and Cryosphere in a Changing Climate also highlights the destructive impact that the warming of the oceans will have on ecosystems: threatening food security, income and livelihoods. (18) Scientists predict, for instance, 'that if current fishing practices continue, all commercially targeted fish species will suffer population collapses by 2048'. (19)
Destruction of the natural environment will have a particularly devastating effect on Indigenous communities who rely on natural resources for subsistence and cultural identity. (20) The IPCC's Special Report on the Ocean and Cryosphere in a Changing Climate concluded that the detrimental impacts of marine warming will cause 'potentially rapid and irreversible loss of culture and local knowledge and Indigenous knowledge, and negative impacts on traditional diets and food security, aesthetic aspects, and marine recreational activities. (21) Ocean ecosystem loss will undermine the 'ocean's role in cultural, recreational, and intrinsic values important for human identity and well-being.' (22) Climate change is already affecting Indigenous communities far away from the ocean. Extreme heat and inadequate water security in Australia's centre may displace many Indigenous peoples from their country. (23)
A healthy environment is 'necessary for the full enjoyment of a vast range of human rights,' (24) but environmental harm has become so pernicious and so pervasive that it is now an existential threat to human life. (25) This article explores the relationship between human rights, constitutional rights and environmental rights with the aim of understanding the scope and standard of environmental rights protection at international, comparative and domestic law. Such an understanding may prompt renewed focus on the link between environmental harm and human harm, and encourage law and policymakers in Australia to build on existing law in developing broader environmental rights protection.
The article is divided into several substantive parts. Part II outlines the international environmental rights regime and the various approaches taken at the domestic level to constitutionalise environmental protection. As this Part demonstrates, environmental rights may be a recent phenomenon, but they have gathered significant momentum over the last few decades. (26) Indeed, despite limited express mention in the early global human rights treaties, a multitude of instruments negotiated after the 1970s form the basis for considerable international protection. At the domestic level, many states have followed this lead. States have adopted a wide variety of approaches to constitutionalising environmental protection, ranging from express or implied constitutional rights to constitutionally mandated directive principles. Whether such protection is effective is another question.
Part III turns to the situation in Australia. It explores whether and to what extent environmental rights are protected at the federal and state and territory levels. While a wealth of statutory and regulatory protection exists, the analysis in this Part is limited to a constitutional and human rights framework rather than the entire architecture of environmental protection. At this level, the position in Australia compares poorly to that elsewhere. This conclusion is demonstrated through a typology that assesses three different ways that environmental rights might be constructed in Australia. They are:
1 express or implied environmental rights drawn from international law;
2 extension or inference from the text and structure of the Constitution; and
3 extension or inference from existing human rights protected outside the Constitution.
Although Part III finds that there is no express constitutional provision imposing obligations on the government to protect the environment or empowering citizens and litigants to compel state action, and moreover, that the potential for drawing out constitutional implications appears increasingly remote, the typology demonstrates a model for conceptualising environmental rights in Australia. In a brief Part IV, the future of constitutional environmental rights protection is considered.
Before commencing it is necessary to address the framing of this article. Scholars have criticised approaches that conceive of environmental protection through the prism of human rights. As many commentators have noted, traditional human rights accounts have negatively affected environmental protection, (27) and there is a risk that an anthropocentric approach will continue to posit the impact of environmental harm on humans, rather than the environment itself, as its focal point. (28) The concern is that such an approach results in law and policymakers, not to mention industry, failing to recognise the value and importance of natural ecosystems beyond their use or benefit to humans; the environment is reduced to no more than an 'inanimate machine existing to serve human needs'. (29)
Framing environmental protection through the lens of human rights necessarily shapes law and policymakers' understanding of the environment and its relationship with and to humanity. (30) It may lead to the prioritisation of certain goals (such as industry) over others (such as environmental protection). However, conceiving environmental harm in the language of human rights also carries the potential to realise significant value. The rhetoric of human rights offers a pre-existing, accepted framework from which to pursue environmental goals. Human rights are...
