The Power of Constitutional Rights in Resource Conflicts

Water is essential to all life and yet never has anthropogenic activity posed a greater risk to our water resources. This book explores legal mechanisms utilized by communities to protect water resources within the context of protracted mining conflicts, focusing on oil sands development in the Canadian boreal forest and gold mining in ecologically sensitive, glacier-rich areas of Argentina. This book highlights constitutional approaches to environmental rights protection in such conflicts. Despite the incorporation of substantive environmental rights into many domestic constitutions, questions remain about the efficacy and functioning of constitutional methods and how constitutional entrenchment may contribute directly to better environmental outcomes within specific contexts. In addition, though a considerable body of ground-breaking work on constitutional environmental rights has emerged in recent years, there has been very little examination of the implications for natural resource projects, which generate some of the greatest environmental impacts. The book seeks to contribute to the literature on constitutional environmentalism by exploring the value of constitutional environmental rights against the backdrop of controversial mining disputes over water impacts.
Because they engage a broad cross-section of public and private actors and institutions, mining projects offer a unique opportunity to investigate a range of sociolegal phenomena and lend well to more holistic research of human rights issues. An examination of mining conflicts can demonstrate the interplay between underlying contextual realities and the legal mechanisms that are utilized by individuals seeking to assert their environmental rights. Mining projects are often tied heavily to economic interests, job and infrastructure creation, and national development policies, and yet they are also associated with serious environmental impacts, conflict with local populations, and power imbalances with marginalized, rural communities and Indigenous peoples. These projects are frequently plagued with human rights complaints, comprising some of the most difficult conflicts of our time. Domestic constitutions are well-situated to address precisely these concerns because of their role in limiting the exercise of government power and binding governments to a set of normative values.

This book offers a novel perspective on environmental rights, engaging in a comparative constitutional analysis informed by ethnographic and contextual approaches from other disciplines. It builds upon existing literature by exploring the complex ways in which the laws and institutions that interact with environmental rights are formed and embedded within wider social processes. Case studies drawn from oil sands development in Alberta, Canada and gold mining in San Juan, Argentina, provide insight into how community stakeholders pursue environmental rights claims in jurisdictions that differ in their treatment of environmental rights. A qualitative assessment of these case studies yields a deeper understanding of the strategies that promote the best outcomes for communities seeking to protect their water resources, and allows for some generalizations to be formulated about the value of incorporating environmental rights into domestic constitutions. These case studies demonstrate how constitutional rights can address inadequate participatory processes and increase accountability and transparency in environmental decision-making, thereby significantly improving access to justice and providing a more equitable means of resolving resource conflicts. By taking a contextual approach, this book contributes to the development of theory relating to environmental constitutionalism and its practical implications for the protection of water resources in contentious mining conflicts.