This post is part of the Lessons from the Aarhus Convention and Escazú Agreement for Procedural Environmental Rights in Canada blog symposium.
Around the world, people who promote human rights relating to the environment, challenge extractive industries, expose environmental crimes, and protect biodiversity and sustainable ecosystems are increasingly subject to threats, violence, and even death. Between 2012 and 2022 alone, nearly 2,000 environmental human rights defenders (EHRDs) were killed, roughly 34% of whom were Indigenous. The current Special Rapporteur on the situation of human rights defenders (of the UN Human Rights Council’s special procedures) presented a report in 2021, which indicated that EHRDs were the group most targeted of all the human rights defenders killed since 2015. In addition to risking their lives, EHRDs face repression through criminalization, strategic litigation against public participation (SLAPP), and state violence, with marginalized individuals and communities such as Indigenous peoples, women, and rural farmers being at heightened risk.
The situation of EHRDs in Canada is no less concerning. Over the past few years, there has been increasing criminalization and violence against EHRDs like the Wet’suwet’en defending their ancestral, unceded territory against the construction of the Coastal GasLink pipeline in British Columbia, the Mi’kmaw Grandmothers protecting land and water against the Alton Gas project in Nova Scotia, and Indigenous land defenders and settler activists protecting old-growth forests on Vancouver Island. Many groups are raising awareness regarding the importance of EHRDs and the risks they face, including Indigenous communities, human rights, and environmental organizations, lawyers’ associations, and climate justice activists – even Canadian businesses, like the Canadian ice cream company Ben & Jerry’s, are supporting the call for an end to violence against Indigenous land defenders.
As the ecological crisis intensifies, protecting ERHDs is crucial to upholding the right to a healthy environment. Research has shown that, over the last decade, resistance of Indigenous land defenders against fossil fuel projects across what is currently known as Canada and the United States has stopped or delayed greenhouse gas pollution equivalent to at least one-quarter of annual U.S. and Canadian emissions. The essential contribution of EHRDs to the enjoyment of human rights, environmental protection, and sustainable development worldwide has also been widely recognized by international organizations and institutions, like the United Nations Human Rights Council.
In this blog post, I explore the protections provided for EHRDs under the Aarhus Convention (“Aarhus”) and highlight other multilateral instruments contributing to a similar goal. I then discuss the state of formal protections Canada offers for EHRDs both domestically and internationally. Ultimately, I identify lessons that Aarhus and other instruments provide for Canada and make recommendations for how Canada can better uphold its obligation to respect, support, and protect the activities of EHRDs.
Aarhus’ Protections for EHRDs
Aarhus is the first international mechanism protecting EHRDs (for an overview of Aarhus, see this earlier post in our series). Article 3(8) requires state parties to ensure that people exercising their rights under Aarhus are not “penalized, persecuted or harassed in any way.”
The small number of decisions of the Aarhus Compliance Committee on alleged violations of Article 3(8) to date shed some light on the meaning of this provision, which arguably broadly protects EHRDs, including people who engage in demonstrations or protests (such as direct action or civil disobedience) connected to environmental issues, even where there is no direct connection to rights under Aarhus. The Compliance Committee decisions show that Article 3(8) may be violated where four conditions are met: (1) member(s) of the public have exercised their rights under Aarhus (thus becoming an ‘environmental defender’); (2) there has been a harmful act (penalization, persecution or harassment); (3) there is a causal link between being an environmental defender and the harmful act; and (4) the relevant state has not taken all necessary measures to redress the harm. Other notable findings from specific cases include: linking Article 3(8) to existing human rights guarantees; identifying even one telephone call from a state authority to an environmental NGO as amounting to prohibited harassment; highlighting that actions of private actors may amount to a harmful act, if the respective state did not take necessary preventative measures; and noting that the pursuit of prohibitive costs against an environmental defender may breach Article 3(8) (for more on costs and access to environmental justice, see this earlier post in our series).
Following a meeting of the Aarhus parties in which the decision was made to strengthen Article 3(8) by creating a rapid response mechanism for the protection of EHRDs, Michel Forst was elected in June 2022 as the first Special Rapporteur on Environmental Defenders and tasked with the role of taking steps to protect any person experiencing – or at imminent threat of – penalization, persecution, or harassment for seeking to exercise their rights under Aarhus. His mandate gives him the authority to issue immediate and ongoing protection measures, release public statements, use diplomatic channels, attend trials in domestic courts to monitor legal proceedings, bring the matter to the attention of and coordinate efforts with other relevant human rights bodies, organizations, and government institutions, and proactively raise awareness of the rights of ERHDs under Aarhus. Any member of the public, including individuals or groups of EHRDs, can submit a complaint to the Special Rapporteur even if they haven’t exhausted domestic remedies. While Article 3(8) does not directly refer to EHRDs, nor specifically define who is entitled to protection, Mr. Forst has stated that the protection of Indigenous defenders is an essential part of his role as Special Rapporteur.
Formerly the UN Special Rapporteur on the situation of human rights defenders (2014-2020), Mr. Forst has already conducted several country visits, published several reports and position papers, and released public statements in his new role. His February 2024 position paper highlighted the threat that state repression of civil disobedience regarding environmental issues poses to human rights. The Special Rapporteur has also made recommendations to the Council of Europe on new measures to counter SLAPPs. Most recently, he issued a statement criticizing a UK court decision in which a Just Stop Oil activist was sentenced to four years in prison for participating in a Zoom call during which a peaceful protest was planned, noting that it “marked a dark day for peaceful environmental protect, the protection of environmental defenders and indeed anyone concerned with the exercise of their fundamental freedoms in the United Kingdom of Great Britain and Northern Ireland.” Under Aarhus, a sentence must be reasonable, proportional, or serve a legitimate public purpose to comply with Article 3(8). Concerning the four-year sentence for the Just Stop Oil protester, the Special Rapporteur claimed it fell “strikingly short” of this standard and was “beyond comprehension.”
Certainly, Aarhus and its compliance mechanisms contain significant potential for the protection of EHRDs, but one specific example illustrates that its ultimate impact depends largely on state engagement, compliance, and enforcement. In 2014, the Compliance Committee found Belarus non-compliant with Article 3(8). Seven years later, the Compliance Committee followed up with Belarus, noting that the state had not yet addressed the recommendations in the 2014 decision and expressed grave concern that the situation for EHRDs was rapidly deteriorating in the country. Later that same year, the Committee suspended Belarus’ special rights and privileges under Aarhus. Belarus swiftly withdrew from the Convention, an action that drew criticism from many UN experts.
Protections for EHRDs under Other Multilateral Instruments
Aarhus is only one of several instruments at the global and regional levels that recognize and aim to protect EHRDs. The list below is not exhaustive but provides a snapshot of different mechanisms for addressing the risks EHRDs face.
The Escazú Agreement is the first regional treaty to mandate the protection of EHRDs explicitly and to recognize the importance of their advocacy in environmental protection and decision-making. The rights afforded to EHRDs and the obligations placed on state parties to Escazú are arguably more comprehensive than those set out in Aarhus. Specifically, Article 9 requires state parties to: guarantee a safe and enabling environment for EHRDs free from threat, restriction, and insecurity; take measures to recognize, promote, and protect EHRDs’ rights (including access rights); and take timely measures to prevent and punish attacks and threats against EHRDs. The state obligations mandated under Escazú were informed by Aarhus, but also largely by the Inter-American Human Rights System, and specifically the work of the Inter-American Court and Commission of Human Rights.
As binding legal instruments, both Escazú and Aarhus expand upon the non-binding 2018 Framework Principles on Human Rights and the Environment, particularly Principles 4 & 5, which highlight the importance of ensuring EHRDs can operate free from threats, harassment, intimidation, and violence. The Framework Principles were developed by the former Special Rapporteur on the human right to a healthy environment and submitted to the Human Rights Council and referenced in the United Nations General Assembly resolution on the right to a healthy environment.
Many UN Special Rapporteurs (in addition to Environmental Defenders) have recognized the rights of EHRDs and addressed violations, including the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur on the rights of Indigenous Peoples, and the Special Rapporteur on human rights and the environment (e.g., in a 2020 report, the former Rapporteur, David Boyd, emphasized that “a crucial aspect of public participation involves the protection of environmental human rights defenders, who are often harassed, intimidated, criminalized or even murdered”). Last year, in its General Comment on children’s rights and the environment, the UN Committee on the Rights of the Child noted the risks faced by children EHRDs and the requirement that states protect their rights, “including by providing a safe and empowering context for initiatives organized by children to defend human rights in schools and other settings.”
Beyond multilateral instruments, certain countries have their own domestic mechanisms for protecting EHRDs, which differ in their reported effectiveness (see, e.g., Colombia). Where does Canada stand in this regard?
Canada’s (Lack of) Protections for EHRDs
Canada is not currently a party to Aarhus. Limited protections for EHRDs exist through a patchwork of laws and policies at the federal and provincial levels. Still, no federal or provincial legislation directly links EHRDs to environmental protection nor any formal monitoring or accountability mechanisms for violations of the rights of EHRDs in Canada. In terms of the rights of Indigenous peoples to protect the environment and their traditional lands, territories, and resources, Canadian governments and courts have been dragging their feet on embracing and implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), despite enacting the UNDRIP Actand an Action Plan for the implementation of UNDRIP. Neither the Action Plan nor UNDRIP Act explicitly provide for the protection of EHRDs – though the Action Plan does recognize Indigenous peoples’ central role in biodiversity conservation, water and environmental conservation, and climate change action.
While Canada appears committed to the protection of human rights defenders domestically and internationally (e.g., as a signatory to the UN Declaration on Human Rights Defenders and in its publication of Voices at Risk: Canada’s Guidelines on Supporting Human Rights Defenders), these commitments have not translated into the same kinds of procedural environmental rights protections for EHRDs, such as an independent complaints mechanism, that are available under Aarhus (as illustrated above). Processes available under Aarhus could have a significant impact both within Canada and abroad, where Canadian extractive companies have a shameful history of violating human rights and failing to protect ERHDs. The Special Rapporteur’s jurisdiction includes harmful acts against EHRDs within the member states of Aarhus, but also those committed outside of a country by any corporations, as well as their subsidiaries and contractors, that are headquartered domestically within a member state. In other words, Mr. Forst’s mandate allows him to intervene when corporations operating out of a country that is party to Aarhus threaten, harass, or otherwise harm local EHRDs.
Conclusion: Ameliorating the Protection Dearth for EHRDs and the Earth
While Canada has publicly recognized the critical role of human rights defenders in other countries, it has yet to do so for EHRDs at home and to meaningfully address the intersecting forms of discrimination and oppression that many EHRDs face domestically and abroad. The protections for EHRDs mandated through Aarhus and other multilateral instruments extend far beyond those currently available in Canada’s piecemeal measures.
Further research is needed on the challenges facing EHRDs in Canada and the potential benefits of adhering to procedural environmental rights treaties or other multilateral instruments. Preliminary consideration of these issues points toward a need for Canada to develop and implement federal and provincial laws, policies, and mechanisms for the protection of EHRDs and to ensure that all threats and attacks against EHRDs are addressed rapidly and effectively. This would include compliance monitoring by an independent body, in consultation with Indigenous peoples, communities, and civil society groups. Ratification of Aarhus would go a long way towards these aims and provide EHRDs with one avenue for keeping Canada accountable. Ideally, safeguarding the rights of those who protect the environment will one day be understood as an indispensable component of environmental sustainability and upholding the right to a healthy environment.