By Sara L Seck, Associate Professor, and Meg Williams, JD candidate, Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University, Nova Scotia, Canada.
This is a re-posting of a Blog originally posted on September 5, 2018, on the Dalhousie Environmental Law News blog
In this, my second post on the Dalhousie Environmental Law News blog, I am joined by JD candidate Meg Williams. In my first post, I provided reflections on the way in which environment and climate justice issues were – or were not – incorporated into discussions at the UN Forum on Business and Human Rights, held in Geneva in November 2018. At the time I noted that Mr. Baskut Tuncak, the Special Rapporteur on human rights and hazardous substances, had spoken at length about a 2015 report on the right to information at the Geneva forum. Mr. Tuncak drew attention to the independent responsibility of businesses to undertake human rights due diligence to identify actual and potential impacts of hazardous substances on human rights to life and health. Businesses would then be expected to communicate to governments and the public about the existence of these substances in products and global supply chains. In this post, we will first reflect on the recent work of a different United Nations Human Rights Council Special Rapporteur, the Special Rapporteur on human rights and the environment (officially, the special rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment). We will then consider the implications of this and select contributions by other recent Human Rights Council mandate holders for local environmental justice concerns.
The position of Special Rapporteur on human rights and environment was held until very recently by Mr. John Knox, a US law professor. As of August 1, 2018, the Special Rapporteur is Canadian Mr. David R Boyd, a professor at the University of British Columbia and well known author of inspiring and optimistic books on environmental law. This makes it a particularly good time to turn our attention to the work of UN human rights mandate holders.
In an increasingly globalized and industrialized world, climate change and environmental degradation are a pressing reality. It is widely uncontested that industrialization trends are closely linked with environmental harms. However, for many people, it is unclear how these environmental harms impact human rights, and even less clear how to understand the responsibilities of businesses whose activities contribute to these harms. The mandate of the UN Special Rapporteur on human rights and the environment has been to study human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment and to identify and promote good practices and practical solutions, while also identifying challenges and obstacles.
Mr. Knox’s mandate was established in 2012 and then extended in 2015. During this time he released numerous reports including a Mapping Report (2014, UN Doc. A/HRC/25/53), a Compilation of Good Practices Report (2015, UN Doc. A/HRC/28/61), and an Implementation Report (2016, UN Doc. A/HRC/31/53). More recently, Knox has released focused reports on Climate Change (2016, UN Doc. A/HRC/31/52) and Biodiversity (2017, UN Doc. A/HRC/34/49). During the last year of his mandate, Mr. Knox released two additional reports. The first, Children’s rights and the environment[i], canvasses how environmental harm affects children, and then elaborates upon the rights of children with regard to environmental harm. The report clarifies the environmental dimensions of children’s rights to life, health, development, the right to an adequate standard of living, and the rights to play and recreation, rights that are well accepted in international law, including under the widely ratified Convention on the Rights of the Child (CRC). The report then turns to obligations to protect children from environmental harm, with a focus on educational and procedural obligations, as well as substantive obligations including to ensure the best interests of children, and non-discrimination obligations. While the report is largely focused on state obligations, it also includes a paragraph specifically on the direct responsibilities of businesses (para 62). Here, the report confirms that businesses have a responsibility to protect children’s rights from environmental harm, including through the fulfillment of environmental and human rights impact assessments. Notably, the report asserts that businesses should seek to comply with the 2011 UN Guiding Principles on Business and Human Rights[ii], as well as the 2012 Children’s Rights and Business Principles, among other guidance. There is also a child friendly version of the report, in keeping with the need for children to be empowered to exercise their rights. This theme is further reflected in the attention given in the full report to the need for decision-makers to take into account the views of children, particularly in the context of “long-term environmental challenges, such as climate change and loss of biodiversity, that will shape the world in which they will spend their lives.” (para 48) Finally, the report highlights the need to ensure the rights clarified in the report are respected and ensured to every child in keeping with non-discrimination obligations of states.
During the last year of his mandate the Special Rapporteur also released the Framework Principles on Human Rights and the Environment[iii] (official text of UN Doc A/HRC/37/59 available here), which summarize Mr. Knox’s findings from his five years as the Special Rapporteur. The Principles outline the fundamental obligations of states under human rights law in relation to the enjoyment of a safe, clean, healthy and sustainable environment. The obligations within the Principles are derived from treaties and binding decisions of human rights tribunals as well as statements of human rights bodies, and an illustrative list of sources relied upon is provided here. The 16 Principles range from procedural environmental rights to substantive ones as well as principles calling for the protection of vulnerable groups. Two framing principles are set out at the beginning on the Framework. According to Principle 1: “States should ensure a safe, clean, healthy, and sustainable environment in order to respect, protect and fulfil human rights”; while Principle 2 provides: “States should respect protect and fulfil human rights in order to ensure a safe, clean, healthy and sustainable environment.” Notably, even before the enunciation of these principles, the Framework begins with recognition that “Human beings are part of nature” and that “our human rights are intertwined with the environment in which we live.” (para 1) Also of importance is that the third principle of the Framework highlights environmental justice intersections, focusing on the need for states to prohibit discrimination and ensure equal and effective protection against discrimination in relation to environmental human rights. More generally, procedural principles outlined in the Framework include state obligations to promote and protect freedom of expression, education and public awareness (Principles 5, 6, & 7), public participation in the decision making process (Principle 9), access to effective remedies (Principle 10), the prior assessment of potential impacts of proposed projects or policies (Principle 8), and the provision of a safe and enabling environment in which individuals can operate free from threat while working on human rights and environment issues (Principle 4). Substantive principles outlined in the Framework include the state obligation to “establish and maintain substantive environmental standards that are non-discriminatory, non-retrogressive, and otherwise respect, protect, and fulfil human rights” (Principle 11); and to ensure that enforcement of standards are effective against both public and private actors (Principle 12). In recognition of the reality that the world is interconnected and environmental harms cross borders, the Principles call on states to cooperate in implementing and maintaining international frameworks to prevent transboundary and global environmental harm (Principle 13). Principles 14 and 15 revisit the importance of non-discrimination, with Principle 14 asserting the obligation of States to take special measures to protect the rights of vulnerable populations who are most at risk, including women, children, persons with disabilities, persons living in poverty, and Indigenous communities. Additionally, Principle 15 recognizes State obligations to Indigenous peoples and “members of traditional communities”, including with regard to free, prior and informed consent.
Similar to the approach taken in the report on the rights of the child, Mr. Knox confines his discussion of the business responsibility to respect rights to a single paragraph within Framework Principle 8 and a single paragraph with Principle 12. Within Principle 8, on prior impact assessment, Knox provides that business enterprises “should conduct human rights impact assessments” in keeping with the UN Guiding Principles on Business and Human Rights, “which provide that businesses ‘should identify and assess any actual or potential adverse human rights impacts with which they may be involved either through their own activities or as a result of their business relationships’, include ‘meaningful consultation with potentially affected groups and other relevant stakeholders’, ‘integrate the findings from their impact assessments across relevant internal functions and processes, and take appropriate action’ (see Guiding Principles 18–19).” (paragraph 22) Under Principle 12, which is concerned with enforcement, he confirms that the responsibility under the UN Guiding Principles extends to adverse human rights impacts that arise through environmental harm, and that the conduct of human rights due diligence by businesses should “identify, prevent, mitigate and account for how they address their environmental impacts on human rights”, as well as “enable the remediation of any adverse environmental human rights impacts they cause or to which they contribute.” (para 35) However, he does highlight in the body of the official report (para 18) that there is need for more work to clarify how human rights norms relate to business responsibilities in the area of human rights and the environment, as well as “obligations of international cooperation in relation to multinational corporations and transboundary harm.” It is anticipated that these issues will be taken up by Mr. David Boyd as part of his mandate as the newly appointed Special Rapporteur.
The importance of these issues is evident when looking at the larger picture as other Special Rapporteurs and emerging international institutions have already begun to focus on business responsibilities. For example, the Global Pact for the Environment, formed in June of 2017, is a working group that seeks to strengthen global environmental governance by calling for action by States as well as non-State actors such as business enterprises. A resolution was adopted by the United Nations General Assembly in 2018 to open negotiations towards such a Global Pact for the Environment. Article 14 of the draft Pact specifically recognizes the vital role of non-State actors in environmental protection, while Article 2 contemplates that every person, legal or natural, has a duty to take care of the environment. In a European Journal of International Law discussion by Dr. Margaret A Young, the Global Pact is described as having the potential to mobilize non-State actors and could help to “provide much needed integration of environmental issues into international law”. This is in keeping with the recognition of the business responsibility to respect human rights in the UN Guiding Principles, even though the Guiding Principles make no explicit reference to environmental responsibility.
In recent years other UN Special Rapporteurs have begun to focus on the environmental aspect of human rights and related business responsibilities, perhaps most notably Mr. Tuncak in his role as the Special Rapporteur on hazardous substances. This mandate originates from 1995 and has been held by five different Special Rapporteurs. Although initially focused upon the dumping and movement of hazardous substances, the mandate was strengthened in 2011 to take a “whole life-cycle” approach to hazardous products, while in 2017 the mandate was further extended to consider “the issue of the protection of the environmental human rights defenders.” Numerous reports have been released over the years clarifying the relationship between environmental harms associated with toxic substances and human rights. In 2017, the current Special Rapporteur, Mr. Tuncak, released Guidelines for Good Practices[iv], designed to assist States and businesses, among other actors, to identify and address human right issues arising from toxics. The Guidelines outline the duties of States, the responsibilities of businesses, and the importance of access to justice and remedy. Attention is devoted to the need to protect the rights of the “most vulnerable”, including communities that are low-income, children, workers, women, older persons, Indigenous peoples, minorities, and post-conflict communities (paras 24-44). State duties are described as extending beyond borders, and include non-discrimination and substantive equality (para 5). The business responsibility to respect human rights is described as extending to those “implicated” by business “activities, supply chains, products, policies, procedures, and business relationships, including their investments” (para 81). Human rights due diligence is seen as fundamental to the business responsibility “in the area of toxic chemicals, pollution and waste”, and businesses “need to conduct such due diligence on toxics produced, used, released, stored and disposed of in the course of their activities, the life cycle of their products and their business relationships” (para 82). General business responsibilities are further elaborated in six paragraphs, while the particular responsibilities of specific industry sectors receive further attention (paras 89-95). (We will consider more recent reports by Mr. Tuncak in another blog post).
While Mr. Tuncak’s work appears notable in its attention to business responsibilities, an earlier Special Rapporteur with a different mandate considered the role of businesses a decade ago: Mr. Paul Hunt, the Special Rapporteur on the right to health from 2002-2008. His 2008 Report to the General Assembly highlights the importance of effective, transparent, accessible and independent accountability mechanisms in the right to the highest attainable standard of health. Specifically, he discusses the importance of working with corporations (in his case, pharmaceutical companies) in communicating and improving the human rights obligations of businesses (paras 26-30, 34). The annex of the report articulates these obligations in it’s “Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines”. Within the preamble of these guidelines, it is stated that companies, “have human rights responsibilities in relation to access to medicines” (p. 15, para i) and that along with these they have obligations “regarding freedom of association and conditions of work” (p. 16, para m) though these are not directly addressed within the guidelines. The Guidelines then give concrete guidance to companies with regards to transparency, management, monitoring, accountability, corruption, quality, patents and licensing, and other issues (pp. 16-25). This same guidance for corporate responsibility could be applied to businesses responsibilities in the human rights and environment context.
While the work of the Special Rapporteurs may seem abstract and distant, the influence of their work can be seen in recent human rights activity here in Canada. Numerous UN special procedure mandate holders including Working Groups have made country visits to Canada to examine the situation of human rights in different contexts. For the purpose of this post, there are two that are of key importance. The Working Group on the issue of human rights and transnational corporations and other business enterprises released a report on their 2017 mission to Canada in April, 2018. The purpose of the country visit was to assess the efforts made to address human rights impacts of businesses following the UN Guiding Principles (see background report, here). After meeting with a range of stakeholders from different sectors across Canada, but not in Atlantic Canada, the Working Group identified numerous issues (see earlier blog post critiquing the preliminary report for its failure to consider climate change dimensions of human rights impacts).These included the many adverse impacts of extractive industries on human rights, the difficulties facing victims in accessing effective remedies, the disproportionate effects felt by Indigenous communities, and the need to strengthen Canada’s corporate social responsibility strategy to include more robust human rights due diligence mechanisms. The Working Group report ultimately provided recommendations for both State and business actors. Recommendations for Canada included the need to strengthen environmental assessment processes, to seek free, prior and informed consent of Indigenous peoples in consultation processes, and the need to address access to justice issues. Meanwhile, recommendations for businesses focused on the need to implement all aspects of the business responsibility to respect rights under the UN Guiding Principles, such as the development of policy commitments to respect human rights, and to strengthen human rights due diligence. The need for Canadian business associations to play a role in capacity building of members in the area of business and human rights was also highlighted, along with the importance of businesses themselves initiating “informed and meaningful consultations with affected communities as early as possible” and consulting widely within communities about proposed business activities (paragraph 80, 80-84). The Working Group recommendations seem particularly on point, given the recent Federal Court of Appeal decision on the Trans Mountain pipeline (see here and here) – it would seem that both the Canadian government and industry would benefit from closer attention to the recommendations of UN special procedures mandate holders.
A second visit to note is that of the Working Group of Experts on People of African Descent, who released a report on their mission to Canada in August, 2017. The Group visited Ottawa, Toronto, Montreal, and Halifax from October 17th-21st in 2016. The report outlined the strong legal and policy frameworks, both international and domestic, that Canada currently has in place to combat racial discrimination. However, the report did take notice of the lack of special measures taken in response to the disparities and systemic anti-Black racism and discrimination that African Canadians face in violation of their social, economic, and cultural rights. One environmental racism example raised in the report was concern that environmentally hazardous activities, such as landfills, waste dumps, and polluting industries, are disproportionality located near African descent communities. A specific example that was mentioned by the report was that of the African Nova Scotian community of Lincolnville (para 63).
Attention to environmental racism is a growing concern, especially when framed within the broader context of international mechanisms that emphasize state obligations and business responsibilities to ensure vulnerable groups, such as minorities, are protected from human rights violations arising from environmental harm. Both Mr. Tuncak and Mr. Knox note in their reports that vulnerable populations are disproportionately effected by environmental harms yet remain in the weakest position to address them. In the Framework Principles, Mr. Knox embeds principles of non-discrimination throughout, both by prohibiting discrimination in protection against environmental harm (Principle 3) and calling for non-discriminatory environmental standards (Principle 11). Additionally, Principle 14 specifically recognizes heightened State obligations for vulnerable populations. At a local level, such as here in Nova Scotia, issues of environmental racism could be guided by the international frameworks and recommendations discussed above.
Issues of environmental racism are in no shortage in Nova Scotia, as discussed by Dalhousie Associate Professor Ingrid Waldron is her 2018 book, There’s Something in the Water: Environmental Racism in Indigenous and Black Communities[v]. Drawing on settler colonialism, neoliberalism, and racial capitalism, Ms. Waldron frames environmental racism as yet another form of violence against Indigenous and Black communities in Nova Scotia. She points to both state and non-state actors, public and private, in fueling environmental racism when prioritizing profit over minority communities (p.49) and in turn, racializing space (p. 54). To support these claims, Ms. Waldron uses Chapter 4 of her book to describe numerous case studies of environmental racism in Nova Scotia. These include the cases of Pictou Landing First Nation and the contamination in Boat Harbour (p.75), the Sipekne’katik Band of the Mi’kmaw First Nation and the development of a brine discharge pipeline into the Shubenacadie River (p.76), and the African Nova Scotian community of Lincolnville located next to first and second generation landfills (p.85). These are just a handful of cases that Ms. Waldron uses to illustrate the existence of environmental racism in the province.
Ms. Waldron also makes clear that issues of environmental racism are not unique to the Nova Scotia landscape and are in fact a Canadian problem. She cites cases across Canada, including hydrofracking near Elsipogtog First Nation in New Brunswick, E. coli bacteria in the water of the Kashechewan First Nation in Ontario (p.81), and Ontario’s “Chemical Valley” located near Aamjiwnaang First Nation (p.82). There are unfortunately many more.
However, steps can be taken, including implementation of legislative reforms such as Nova Scotia’s proposed Environmental Bill of Rights which recognizes that the Government of Nova Scotia has the obligation to protect, preserve, and restore the environment and act as a trustee of the environment for citizens of Nova Scotia. The purpose of the Act is to “safeguard the right of all present and future generations” to a healthy and balanced environment and to protect the people of Nova Scotia from environmental hazards. (s2) Procedural purposes of the act include fostering “transparency, inclusiveness, and accountability” as well as access to information and justice. The substantive purposes, apart from the aforementioned ones, are to guarantee the fundamental environmental needs necessary for health, well-being, dignity, and social equity for people of Nova Scotia. Additionally, Nova Scotia’s proposed Environmental Racism Prevention Act, seeks to create a panel with the sole purpose of addressing the issue of environmental racism in Nova Scotia and provide recommendations to mitigate such issues. Clearly these are important tools for the protection of human rights and to overcome historic legacies of environmental racism. Beyond statutory tools, there is clearly a need for both more guidance on business responsibilities for human rights in relation to environmental harm, and for Canadian businesses and business associations to start taking seriously their own independent responsibilities in relation to human rights and the environment. The work of the UN Human Rights Council special procedures mandate holders provides a useful illustration not only of what is possible, but of what is essential if we are to achieve environmental justice in today’s world.
[i] UN HRC, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John Knox: Report on the rights of children and the environment, OHCHR, 37th Sess, UN Doc A/HRC/37/58 (2018).
[ii] UN HRC, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UNGAOR, 17th Sess, UN Doc A/HRC/17/31 (2011).
[iii] UN HRC, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John Knox: Framework principles on human rights and the environment, OHCHR, 37th Sess, UN Doc A/HRC/37/59 (2018).
[iv] UN HRC, Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, Baskut Tuncak: Guidelines for good practices in relation to the human rights obligations related to the environmentally sound management and disposal of hazardous substances and wastes, OHCHR, 36th Sess, UN Doc A/HRC/36/41 (2017).
[v] Ingrid R.G. Waldron, There’s Something in the Water: Environmental Racism in Indigenous and Black Communities (Halifax & Winnipeg: Fernwood Publishing, 2018).
Feature image: Dina Townsend