by Katherine Lofts & Chloe Rourke, McGill University
This post is part of the Lessons from the Aarhus Convention and Escazú Agreement for Procedural Environmental Rights in Canada blog symposium.
Although environmental harms disproportionately impact persons with disabilities, they have often been excluded from environmental governance processes, reinforcing existing inequities and leading to inaccessible policies and programs that fail to consider disabled peoples’ perspectives and requirements. This blog post adopts a disability rights-based approach to explore the importance of procedural environmental justice for persons with disabilities, examining the vital role that the rights of access to information, public participation, and access to justice play in ensuring a more inclusive and sustainable future. Although Canada has begun to take steps towards including persons with disabilities in environmental decision-making, more can be done to ensure that their procedural environmental rights are upheld.
Persons with disabilities are disproportionately impacted by environmental harm
People with disabilities[1] are amongst those most impacted by environmental harm. In emergencies involving environmental hazards, they are disproportionately affected, facing higher rates of morbidity and mortality, while also being amongst those least able to access emergency support. More indirect impacts of environmental harm, such as climate change-related food and water insecurity and increased strain on healthcare services, will also affect disabled people disproportionately.
The greater vulnerability of persons with disabilities to environmental harm stems from the multiple barriers that hinder their full participation in society, including disabling environments, policies, and cultures, as well as poverty and socioeconomic disadvantage. As a result of these barriers, people with disabilities are exposed to environmental hazards more frequently and are also at higher risk when exposed. For example, disabled people are more likely to reside near sources of chronic pollution, which in turn leads to increased risk of illness and disability.
Critically, people with disabilities have often been excluded from environmental policy processes. This situation has resulted in inaccessible policies and programs that reinforce existing social, economic, and institutional inequities, and hinder the resilience of disabled people in the face of environmental harm. The exclusion of disabled people also extends to efforts to decarbonize the economy and mitigate environmental harms. For example, measures such as bans on plastic straws and greening the transportation sector can disproportionately impact and exclude people with disabilities.
Recognizing people with disabilities as knowers, makers, and doers in the environmental sphere
As environmental crises intensify, extreme weather events’ physical and psychosocial impacts and disruptions to social services and infrastructure will be disabling for many. As Judith Butler writes,
This perspective on interdependence and mutual care aligns with a social understanding of disability, which emphasizes that disability is not an individually embodied experience but rather a product of how our society is structured and operates.
Persons with disabilities are well-positioned to help lead society in navigating hostile environments and to guide us through our collective grappling with the uncertainty and existential risk brought about by the climate crisis and other intersecting environmental calamities. Disability scholars and activists have long argued that we need to move beyond viewing disabled people as merely vulnerable and recognize their unique skills, expertise, agency, and societal contributions. Many people with disabilities have lived experience of interdependency, offering a vital counterweight to the current pervasive ideology of individualism that characterizes the stasis of neoliberal environmentalism.
Nonetheless, some people with disabilities have not felt welcomed or valued within environmental organizations, social movements, or decision-making, or have been excluded by inaccessible practices, procedures, and environments. As Abbott and Porter argue, the underlying refusal to view disabled people “as people with expertise that would benefit all and not just so-called ‘specialised’ or ‘vulnerable’ groups…[is a]…failure of imagination to capitalise on the expertise disabled people offer”.
A disability rights approach to environmental governance
A disability rights approach to environmental governance is vital to redressing this exclusion and
helping to create more just and inclusive societies in the face of intensifying environmental crises. Such an approach draws on a human rights-based understanding of disability, enshrined in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which affirms persons with disabilities as bearers of rights, entitled to legal protection against discrimination and to the achievement of substantive equality with their peers without disabilities. This framework recognizes that physical, mental, intellectual or sensory impairments are part of human diversity and that people with disabilities may require support not only because of these impairments, but also due to socially-constructed barriers that impede their participation in society on an equal basis with others.
A disability rights approach thus requires both the elimination of discrimination and the adoption of measures that address the various physical, social, economic, and institutional barriers that impede the full enjoyment of both procedural and substantive rights by disabled persons. In addition, such an approach recognizes the role that intersecting forms of marginalization and discrimination play in disadvantaging persons with disabilities, such as gender, sexuality, age, ethnicity or socioeconomic status. Finally, a disability rights approach recognizes the unique knowledge and perspectives people with disabilities contribute to society and affirms the agency and capacity of people with disabilities as legal actors.
Disability inclusion in the context of procedural environmental rights
Including persons with disabilities in environmental policies, planning, and programmes is a key aspect of a disability rights approach to environmental governance. It necessitates a fulsome realization of each of the three primary pillars of procedural environmental rights: (1) access to environmental information; (2) public participation in environmental policy and decision-making processes; and (3) access to remedies in cases where rights are violated. Not only are these procedural rights key elements of the right to a healthy environment, but they are also “essential tools for the exercise of other rights, such as the right to life, the right to the highest attainable standard of health, the right to adequate housing and others”.
Access to information permits persons with disabilities to understand issues impacting their environment in both the immediate and long-term. For example, access to information is vital in situations of risk and environmental hazard, as disabled people often face barriers to receiving information in a timely manner and an accessible format. Access to information also facilitates the informed participation of people with disabilities in environmental decision-making processes. Participation includes engagement with formal participation mechanisms, such as public consultations, as well as mobilization outside of these processes – for example, through protests and other social movements. These modes of participation are interconnected and vital to ensuring that the requirements and interests of disabled people are taken into account by policymakers in measures to mitigate environmental harms and efforts to adapt to a changing environment. The participation of people with disabilities also provides an opportunity to develop environmental interventions that enhance the resilience of disabled people and society at large, building synergies between environmental governance and the realization of human rights. Finally, access to justice for disabled people in the context of environmental governance is vital to ensuring the enforcement of their rights, challenging the legality of decisions, acts, or omissions that discriminate against, fail to consider, or otherwise harm persons with disabilities.
Despite the importance of procedural environmental rights for persons with disabilities, it is notable that neither of the two primary multilateral instruments addressing procedural environmental rights – the Aarhus Convention and the Escazú Agreement – refer to disability explicitly. Nevertheless, the Escazú Agreement includes provisions that oblige States to provide support to, and address barriers experienced by, vulnerable persons or groups to ensure equal access to procedural environmental rights (see Articles 5(3), 5(4), 6(6), 7, 8).
Although Canada is not eligible to join the Escazú Agreement, it could become a party to the Aarhus Convention. It has chosen not to do so, however, stating that “Canada complies with most of the provisions and objectives of the Convention, thus acceding to the Convention would have limited benefit to existing processes in Canada.” Nevertheless, Canada’s accession to the Convention would present certain advantages, particularly for groups who have been historically marginalized in environmental decision-making. Joining the Convention could raise awareness in Canada around gaps in procedural environmental rights for people with disabilities. Critically, it could also serve as an additional means of recourse for members of the public in cases where procedural environmental rights have not been upheld. The Convention’s compliance mechanism allows members of the public – including individual citizens and civil society organizations – to make communications concerning a Party’s compliance with their obligations under the convention, providing a valuable public tool for access to justice.
Developments in Canadian law and policy
Although not a Party to the Aarhus Convention, Canada has obligations under international and domestic law to uphold each of the pillars of environmental procedural rights for persons with disabilities. For example, under the UNCRPD, Canada must ensure access to information for disabled people (Article 9(2)(f), Article 21); ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others (Article 29); and ensure effective access to justice (Article 13). At the federal level, Canada has implemented its commitments under the UNCRPD by enacting the Accessible Canada Act (ACA), which came into force in 2019. Canada also has obligations to support the equality of persons with disabilities under the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.
Although none of the above-mentioned frameworks address procedural environmental rights explicitly, this topic has nonetheless begun to receive some attention. Under the 2019 Impact Assessment Act,the federal government introduced a requirement to consider “the intersection of sex and gender with other identity factors” including disability, in federal impact assessments (section 22(1)(s)). Known as Gender-Based Analysis Plus (GBA+), this requirement “recognizes that historical and current power structures (e.g., laws, policies, governments and other institutions) have shaped society and contributed to inequalities”. GBA+ benefits the impact assessment process by improving public participation, leading to better research and better evidence to support decision-making. Canada has also shown leadership in the inclusion of persons with disabilities in planning for climate change adaptation and the transition to a green economy.
These emerging practices around the recognition and inclusion of disability and other intersecting identity factors in environmental decision-making can and should inform other areas of environmental law and policy in the Canadian context. While Canada is taking steps in the right direction, work remains to ensure inclusive procedural environmental rights and justice for disabled people.
Conclusion
Building a sustainable future will require restructuring our societies around new paradigms of living together with each other and the natural world, and people with disabilities are uniquely positioned to be leaders in this transition. Disability inclusion is critical to moving us towards resonant outcomes that further both disability and environmental justice while enabling a greater share of the population to contribute to environmental sustainability. The voices of people with disabilities must, therefore, be centred in environmental decision-making and governance. Upholding and strengthening inclusive procedural environmental rights in line with a disability rights approach to environmental governance – whether through accession to the Aarhus Convention or other legislative and policy tools – is one key step in this process, alongside other transformative efforts to dismantle barriers to inclusion.
[1] Within the disability community, some prefer the term “People with Disabilities” while others prefer “Disabled People.” In recognition of these preferences, we use both terms throughout this post.