by Anna Stabb

This post is part of the Lessons from the Aarhus Convention and Escazú Agreement for Procedural Environmental Rights in Canada blog symposium.

Procedural Environmental Rights and Environmental Justice in Canada

Environmental justice is a growing concern in Canada. For example, in 2020, a human rights report by the UN Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes highlighted how flawed procedural mechanisms, such as unequal access to information and limited avenues for legal recourse, impede the achievement of environmental justice in Canada.

Yet, consideration of procedural rights is an underdeveloped area of the environmental justice literature in Canada.[1]  To help address this gap, this GNHRE blog examines the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aarhus Convention.”)

While Canada is not a party to the Aarhus Convention, the federal government’s statement on Canada’s decision not to become a party calls for a closer look at the protections that the Convention offers. Despite the federal government’s claim that Canada complies with most of the provisions and objectives of the Convention, barriers due to insufficient procedural rights continue to impede the public’s ability to advance environmental justice. While some jurisdictions might protect against these concerns, others do not. For example, at the time of writing, British Columbia, Ontario, and Quebec are the only provinces with anti-SLAPP legislation that protects against strategic lawsuits against public participation.

Considering these barriers to advancing environmental justice, the Aarhus Convention offers a potential framework for improving procedural rights in Canada. As the first in the series, this blog provides an overview of the Aarhus Convention and potential areas for further exploration in the Canadian context.

Overview of the Convention

The Aarhus Convention came into force on October 30, 2001 as the first international binding instrument to provide the public with concrete procedural rights in environmental decision making. The preamble recognizes the need to empower the public to protect their right, and the right of future generations, to live in a healthy environment. The Convention pursues this goal through the procedural rights guaranteed under three pillars: access to information, public participation, and access to justice.

Access to Information

The first pillar, access to information, can be understood as the foundation for environmental justice. Without access to the relevant information, adequate public participation and access to justice is off the table.

The Convention addresses access to information under articles 4 and 5. Article 4 outlines the general right of the public to request and access environmental information.  Article 5 sets out the obligation of public authorities to collect and disseminate environmental information without requiring a specific request. The requirements under article 5 place strong positive obligations on the state. For example, article 5(2) includes not only the need to make information “effectively accessible”, but also the requirement for state officials to support the public in accessing information.

Public Participation

The second pillar of the convention concerns public participation in environmental decision-making. Articles 6 through 8 each deal with public participation in specific contexts. Article 6 addresses participation rights where the public may be affected by or has an interest in an activity involved in environmental decision-making. Article 7 concerns public participation in developing environmental plans, programmes, and policies. Article 8 concerns public participation in the preparation of laws, rules, and legal norms.

Article 6(2) is a key requirement of this pillar, as it requires state officials to provide the public with information early in the environmental decision-making process.

Access to Justice

The third and final pillar of the Convention is access to justice. Article 9 governs access to justice in three contexts. First, it gives the public the right to challenge decisions on requests for environmental information and have the case reviewed by an independent and impartial body. Article 9(2) also gives the public the right to challenge decisions, acts, or omissions concerning the activities covered by Article 6. Finally, Article 9(3) provides the public with a right to challenge acts or omissions by public or private parties that contravene provisions of its national law relating to the environment.

In all three cases, the Convention requires there to be adequate and effective remedies, including injunctive relief as appropriate, to be fair, equitable, timely, and not prohibitively expensive. This requirement is laid out in Article 9(4) and warrants consideration in the Canadian context.

The Aarhus Convention Compliance Committee

While one limitation of the Aarhus Convention is that there are no direct enforcement mechanisms, the Aarhus Convention Compliance Committee offers an example of an informal accountability measure that could be effective in a multi-jurisdictional context like Canada.

The Aarhus Convention Compliance Committee (the “Committee”) consists of nine individuals who serve in their personal capacity and are nominated for their role based on their “high moral character and recognized competence in the fields to which the Convention relates, including persons with legal experience.” The Parties to the Aarhus Convention, Signatories, and relevant non-governmental organizations (NGOs) can submit nominations.

The Committee works to hold states accountable by conducting compliance reviews. There are four circumstances that trigger these reviews: (1) a party makes a submission about another party; (2) a party makes a submission about its own compliance, or to seek clarification on the Convention; (3) the Secretariat makes a referral to the Committee; or (4) a member of the public makes a submission regarding a party’s non-compliance with the Convention.

If the Committee finds that a state is in non-compliance, their report will include recommendations for the state. A finding of non-compliance also initiates an ongoing review process where the communication remains open until the state complies with the recommendation (See for example the Convention’s Compliance Committee communication regarding Austria: ACCC/C/2011/63).

The Aarhus Convention alone, while successful in prompting legislative changes to procedural rights across member states, has seen inconsistent implementation. In cases where a state fails to comply with the Convention, it is often left to the public to report their non-compliance to the Committee. In some states, improvements have followed Compliance Committee reports after a finding of non-compliance with the Convention.[2] However, other Committee recommendations remain stalled due to obstacles in applying the Aarhus Convention or the apparent lack of political will within the non-compliant state.

The Compliance Committee’s status as a non-judicial, non-adversarial body may also account for some states’ ongoing non-compliance. The Convention does not specify the legal weight of Committee findings. This has sparked discussions within the Aarhus literature on whether legally binding rulings would promote greater compliance.[3] However, the soft-law function of the Compliance Committee may still provide lessons for the Canadian context.

Aarhus Convention and the Escazu Agreement

The Aarhus Convention is often credited with setting the stage for the Escazú Agreement. The Escazú Agreement is the Latin American and Caribbean agreement on human and environmental procedural rights that came into force on April 22, 2021. The enshrined protections for environmental defenders under Article 9 and the explicit inclusion of Indigenous rights sets the Escazú Agreement apart from the Aarhus Convention.

However, the Aarhus Convention provides grounds for protecting environmental defenders under Article 3(8), which states that parties shall ensure that persons exercising their rights in conformity with the provisions of the Convention shall not be penalized, persecuted, or harassed in any way. Drawing on this provision, the parties to the Convention established a Special Rapporteur on environmental defenders in June 2022. A future blog post in this series will explore the role of the new Special Rapporteur and potential lessons for the Canadian context.

Due to its status as a regional instrument, Canada cannot join the Escazú Agreement. However, it is essential to acknowledge that Escazú may be better suited for the Canadian context, given its explicit inclusion of Indigenous rights. A future post in this series will consider Escazú, Canada, and its relationship with the Inter-American system.  Additionally, the GNHRE companion project on the Escazú Agreement includes two posts comparing the Aarhus Convention and Escazú: Theme and Variations: The Aarhus Convention and Escazú Agreement, and Aarhus and Escazú: The two sides of the Atlantic in the field of public participation in environmental matters.

Conclusion

Advancing environmental justice requires identifying and improving upon procedural rights concerns in Canada. This might involve innovative strategies that bridge the gap between different government levels. The Aarhus Convention, particularly its Compliance Committee, presents a potential framework for achieving this goal.

Given that the Aarhus Convention Compliance Committee can be and has been a meaningful tool for the public to hold states accountable, Canada should consider becoming a party to the Aarhus Convention. Doing so could encourage dialogue about the quality of procedural environmental justice at all levels in Canada, through engagement with the Compliance Committee and increased engagement with the public as a result. While there is no guarantee that the various levels of government would comply, awareness that Canadian governments are out of step with international norms could draw much needed attention to the ongoing shortcomings and procedural environmental rights violations and, hopefully, enhance the political will to implement solutions.  

[1] Exposure, access, and inequities: Central themes, emerging trends, and key gaps in Canadian environmental justice literature from 2006 to 2017 The Canadian Geographer / Le Géographe canadien 2022, 66(3): 434–449

[2] Samvel G. Non-Judicial, Advisory, Yet Impactful? The Aarhus Convention Compliance Committee as a Gateway to Environmental Justice. Transnational Environmental Law. 2020;9(2):211-238 at 235.

[3] Ibid at 217.