by Sara L Seck & Erin Dobbelsteyn
The right to a clean, healthy and sustainable environment was formally recognized by member states of the UN General Assembly in July 2022 with 161 states voting in favour, none against, and only 8 abstentions (A/RES/76/300). This followed the recognition of the right by the UN Human Rights Council in 2021 (A/HRC/RES/48/13) (see GNHRE blog symposium). The UNGA resolution recognizes the vital importance of procedural rights, stating: “the exercise of human rights, including the rights to seek, receive and impart information, to participate effectively in the conduct of government and public affairs, and to an effective remedy, is vital to the protection of a clean, healthy and sustainable environment.” The resolution also “recalls” the business responsibility to respect human rights under the 2011 UN Guiding Principles on Business and Human Rights (UNGPs), and takes note of the 2018 Framework Principles on human rights and the environment (FPs) while reaffirming the obligation of states to take extra measures to protect the rights of those most vulnerable to environmental harms. The FPs clarify the content of international law in relation to the component parts of procedural environmental human rights including freedom of expression and association, prior assessment of environmental impacts, education, and the importance of ensuring safe spaces for environmental human rights defenders. They also clarify that vulnerability to environmental harms may arise from human rights violations and highlight the importance of respect for the rights of Indigenous peoples. Further, the FPs confirm that according to the UNGPs, businesses have a responsibility to avoid causing or contributing to adverse human rights impacts through environmental harm, and a responsibility to address such impacts through mitigation and remediation.
Obligations for governments to recognize and implement procedural environmental rights have long been recognized in instruments at the international and various regional levels, notably as Principle 10 of the 1992 Rio Declaration [P10] and the 2011 Bali Guidelines Implementation Guide [Bali], in the 1998 (in force 2001) Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters [Aarhus Convention] and most recently in the Latin American context through the 2018 (in force 2021) Escazú Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean [Escazú]. The Global Network for Human Rights and the Environment (GNHRE) has hosted extensive study of the Escazú agreement, including a blog symposium, summit (workshop and plenary), drafting of implementation principles, and the development of a bibliography (Escazú project). The blog symposium, for example, considered not just the Escazú agreement, but also its relationship with the Aarhus Convention and with the Inter-American human rights system.
Questions remain regarding the recognition and implementation of procedural environmental human rights for the North American context. Canada, for example, has chosen not to become a party to the Aarhus Convention nor its Kiev Protocol on Pollutant Release and Transfer Registries. The federal government nevertheless claims that Canadian laws are equivalent (ECCC on Aarhus).This includes in relation to providing the public with access to environmental information, despite receiving a medium assessment on the Global Right to Information rating (GRI rating). While the structure of the Escazú agreement might be more suitable for Canada given its explicit inclusion of Indigenous rights, its status as a regional instrument means that it is not open to Canada to join. Nevertheless, Canada’s relationship with the Inter-American human rights system suggests that lessons from Escazú may merit exploration. Furthermore, as a federal state, the role of the provinces and territories in supporting access to environmental justice is also critical to interrogate – diverse legislative approaches to procedural environmental issues exist across jurisdictions.
Concerns are frequently raised in Canada about challenges in accessing environmental justice especially for marginalized and racialized communities and those living in poverty (see proposed federal bill to address environmental racism). This includes most notably but not only Indigenous peoples, giving rise to distinct understandings of how to achieve Indigenous environmental justice (see for example McGregor). Attention to intersectional gender dimensions of environmental protection and harms have also raised access to environmental justice concerns, especially for Indigenous women and 2SLGBTQQIA land and water defenders (MMIWG Report; Kairos grandmothers). Other concerns include the lack of anti-SLAPP legislation in many jurisdictions, the failure of class action legislation to facilitate access to justice in environmental matters, and punishing costs regimes that disincentivize environmental justice communities from going to court (Costs; class actions; anti-SLAPP). Overall, concerns have been raised that there are overwhelming challenges facing litigants who seek to raise environmental concerns in Canadian courts, and that while these challenges confront both Indigenous and non-Indigenous litigants, they do so in different ways and to differing degrees.
In light of these outstanding questions, concerns and challenges regarding procedural environmental justice and environmental human rights in Canada, we are launching a new research project on procedural environmental justice issues in Canada in collaboration with the GNHRE. This project builds upon the work that the GNHRE has already undertaken on procedural environmental rights, with a focus on the Escazú agreement. We plan to host a blog series that explores whether lessons could be learned for Canada from the Aarhus Convention or Escazú agreement or other international instruments for improving access to environmental justice in Canada, with attention also to business responsibilities for human rights under the UNGPs.
We will be accepting blog submissions on a rolling basis, beginning in June 2023. After review and editing, submissions will be posted on the blog beginning in June/July 2023 and continuing up to December 2023. The full blog will be hosted on the GNHRE’s website; with select cross-posting on Dalhousie’s environmental law news blog and other Canadian blog sites chosen by contributors.
Please send your submissions and any questions regarding the project to: proceduraljustice.gnhreblog@gmail.com
We ask contributors to consider any of the following questions in their blog post submissions, and to explicitly draw attention to existing literature that could be added to a bibliography of resources that will be posted on the GNHRE website at the completion of the blog series to guide future research into law & policy reform proposals. We also welcome standalone contributions to the bibliography of resources.
Understanding the Problem:
- What challenges do diverse Canadians face in accessing environmental justice? Are there unique challenges in particular provinces/territories that merit special attention? What challenges face non-Canadian plaintiffs seeking justice from Canadian-based corporate actors?
- What multi-jurisdictional challenges, opportunities and lessons might arise for access to procedural environmental justice from different jurisdictions in Canada whether federal, provincial, territorial or Indigenous?
International Law Solutions:
- What might be the benefits of Canada being a party to the Aarhus Convention, including for access to environmental justice? Disadvantages? Challenges?
- What lessons might Canada learn from the Escazú Agreement regarding access to environmental justice?
- Could Canada enhance its relationship with the Inter-American human rights system and in this way increase access to environmental justice?
- What responsibilities do businesses have under the UNGPs, and related guidance such as that of the UN Working Group on Business and Human Rights, the OECD MNE Guidelines or UN Global Compact (etc.), to support the exercise of the procedural dimensions of environmental human rights in Canada including access to information, prior assessment, participation and justice, and to support a safe space for environmental human rights defenders, including but not only Indigenous peoples?
- What obligations does Canada have to ensure that businesses respect the procedural dimensions of environmental human rights?
Domestic Law Solutions:
- Are there opportunities for law reform in Canada, whether federal, provincial, or territorial to support procedural environmental human rights, including changes to class actions legislation, costs rules, anti-SLAPP legislation, etc.?
- Is there a role for human rights commissions in Canada to support the exercise of the procedural dimensions of environmental human rights, including Indigenous rights?
- How might the recognition and respect of Indigenous ontologies and epistemologies, laws and sovereignties reduce barriers to meaningful access to environmental justice?
- Are there particular lessons for, or approaches to, procedural environmental rights that would help to address environmental racism concerns of communities such as peoples of African descent (e.g. the African Nova Scotian community)?
- Are there intersectional environmental justice concerns that require tailored approaches in the context of procedural environmental rights (e.g. race, disability, gender, socio-economic status, age, etc.)?
- What is the relationship between access to procedural environmental justice and attention to cumulative environmental impacts? (see, for e.g., Narwhal Blueberry River explainer)
- Are there procedural environmental dimensions to constitutional environmental rights protections and/or rights of nature protections that could help to advance procedural environmental justice in Canada?
- Could integration of human rights due diligence expectations in federal and/or provincial/territorial impact assessment laws help to enable access to environmental justice? Are there other Canadian laws in which human rights due diligence obligations could be embedded to further uphold procedural environmental rights?