In the next few columns I am going to talk about some concepts that are important to understanding environmental law. The first is the idea of sustainable development. A quick search of the CANLII website shows the phrase appears in Canadian federal and provincial legislation 359 times and in published court decisions 237 times.
In 1987 an important United Nations commission (the “Brundtland Commission”) defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” This definition is often used more or less word for word in legislation (in federal statutes it appears in the Sustainable Development Act, the Auditor General Act, the Department of Natural Resources Act and the Canadian Environmental Protection Act among others).
Another aspect of sustainable development is the idea of promoting “inter-generational equity” – making sure that enough of the earth’s resources are left to allow future people to meet their needs. What sustainable development means to a regulator, to an industry or to a member of the public depends to a great deal upon whether the emphasis is on the first word or the second. One view is that there is meant to be a great deal packed into the simple phrase. The other view is that the phrase is malleable to the point of being meaningless because it tries to achieve an impossible balance between anthropocentric (people come first) and ecocentric (the natural world comes first) visions for the world.
The definition emphasizes that there is a relationship between sustainability and development. Early on, discussions were often about trade-offs and about whether striking a balance between economic and environmental goals was even possible. More recently, discussions have emphasized the complex and interconnected nature of everything on earth. If fish populations disappear because of overfishing or destruction of habitat, then the tourism industry will suffer. If we farm in ways that ruin the soil, farmers will fail, and people won’t be fed. If even the more modest climate change predictions come true, many economies will suffer. The Brundtland Commission report states, “the ‘environment’ is where we live; and ‘development’ is what we all do in attempting to improve our lot within that abode. The two are inseparable”. One of the purposes of using the language of sustainable development is to remind us of that inseparability. Those seeking to use the earth’s resources are reminded that they are not infinite. On the other side, people are reminded that economic activity is needed for human survival.
What is to be developed and what is to be sustained? One early study titled “Our Common Journey: A Transition Toward Sustainability” identified development possibilities such as child survival, life expectancy, education, equity, equal opportunity, wealth, production, consumption, societal institutions and society. Things to be sustained included the earth, biodiversity, ecosystems and the services they provide, resources, our communities and cultures. In 2000 the United Nations marked the millennium by adopting eight goals (the “Millennium Goals”) including ensuring environmental sustainability (goal 7) and developing a global partnership for development (goal 8). In Canada, federal (and some provincial) departments must have regularly updated sustainable development strategies. There have been many other efforts to develop general goals, specific targets and methods of measurement. Some have been very local (for example, reducing water use in a community) and some have been on a grand, world-wide scale, such as eliminating hunger.
What sustainable development means to a regulator, to an industry or to a member of the public depends to a great deal upon whether the emphasis is on the first word or the second.Another aspect of sustainable development is the idea of promoting “inter-generational equity” – making sure that enough of the earth’s resources are left to allow future people to meet their needs. This is a quite profound idea – creating obligations to human beings who don’t yet exist and thereby giving them rights. For many people in society, this feels like the proper thing to do, especially thinking about our own children or grandchildren. It is, however, philosophically complex. Thinking about sustainable development gives us the opportunity to think about what rights are, where they come from and who can hold them. There are no easy answers.
An obvious link between sustainable development and environmental law is that implementing policies, strategies, goals and targets most often requires legislation or regulation of some sort. There are many different views about how much should be done by regulation and how much should be left to market forces, but it is probably safe to say that no one would seriously suggest that sustainable development will just happen on its own.
A somewhat less obvious link is the role that environmental lawyers can and do play in creating the kind of world we want to have. Society and the environment are both infinitely complex systems. Creating regulation that has the intended impacts and minimizing unintended impacts is a difficult task. Whether they are working in government, at universities, for non-profit environmental organizations or in industry, highly skilled people trained in environmental law are important players in debating and creating policies, laws and regulation for sustainable development.
Next time, we will explore another concept that is important to environmental law – the “precautionary principle”.