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By Sara L Seck<\/a>, Associate Professor, and Meg Williams, JD candidate, Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University, Nova Scotia, Canada.<\/p>\n\n\n\n This is a re-posting of a Blog originally posted on September 5, 2018, on the Dalhousie Environmental Law News blog<\/a><\/strong><\/p>\n\n\n\n In this, my second post on the\nDalhousie Environmental Law News blog, I am joined by JD candidate Meg\nWilliams. In my first\npost<\/a>, I provided reflections on the way in which environment and climate\njustice issues were \u2013 or were not \u2013 incorporated into discussions at the UN\nForum on Business and Human Rights, held in Geneva in November 2018. At the\ntime I noted that Mr. Baskut Tuncak, the Special\nRapporteur<\/a> on human rights and hazardous substances, had spoken at length\nabout a 2015\nreport<\/a> on the right to information at the Geneva forum. Mr. Tuncak drew\nattention to the independent responsibility of businesses to undertake human\nrights due diligence to identify actual and potential impacts of hazardous\nsubstances on human rights to life and health. Businesses would then be\nexpected to communicate to governments and the public about the existence of\nthese substances in products and global supply chains. In this post, we will\nfirst reflect on the recent work of a different United Nations Human Rights\nCouncil Special Rapporteur, the Special\nRapporteur<\/a> on human rights and the environment (officially, the special\nrapporteur on the issue of human rights obligations relating to the enjoyment\nof a safe, clean, healthy and sustainable environment). We will then consider\nthe implications of this and select contributions by other recent Human Rights\nCouncil mandate holders for local environmental justice concerns. <\/p>\n\n\n\n The position of Special\nRapporteur on human rights and environment was held until very recently by Mr.\nJohn Knox<\/a>, a US law professor. As of August 1, 2018, the Special Rapporteur\nis Canadian Mr.\nDavid R Boyd<\/a>, a professor at the University of British Columbia and well\nknown author of inspiring and optimistic books on environmental law. This makes\nit a particularly good time to turn our attention to the work of UN human\nrights mandate holders.<\/p>\n\n\n\n In an increasingly globalized and\nindustrialized world, climate change and environmental degradation are a\npressing reality. It is widely uncontested that industrialization trends are\nclosely linked with environmental harms. However, for many people, it is unclear\nhow these environmental harms impact human rights, and even less clear how to\nunderstand the responsibilities of businesses whose activities contribute to these\nharms. The mandate<\/a>\nof the UN Special Rapporteur on human rights and the environment has been to\nstudy human rights obligations relating to the enjoyment of a safe, clean,\nhealthy, and sustainable environment and to identify and promote good practices\nand practical solutions, while also identifying challenges and obstacles.<\/p>\n\n\n\n Mr. Knox\u2019s mandate was established\nin 2012<\/a>\nand then extended in 2015<\/a>.\nDuring this time he released numerous reports including a Mapping\nReport<\/a> (2014, UN Doc. A\/HRC\/25\/53), a Compilation\nof Good Practices Report<\/a> (2015, UN Doc. A\/HRC\/28\/61), and an Implementation\nReport<\/a> (2016, UN Doc. A\/HRC\/31\/53). More recently, Knox has released\nfocused reports on Climate\nChange<\/a> (2016, UN Doc. A\/HRC\/31\/52) and Biodiversity<\/a>\n(2017, UN Doc. A\/HRC\/34\/49). During the last year of his mandate, Mr. Knox\nreleased two additional reports. The first, Children\u2019s\nrights and the environment<\/a>[i]<\/a>, canvasses\nhow environmental harm affects children, and then elaborates upon the rights of\nchildren with regard to environmental harm. The report clarifies the\nenvironmental dimensions of children\u2019s rights to life, health, development, the\nright to an adequate standard of living, and the rights to play and recreation,\nrights that are well accepted in international law, including under the widely\nratified Convention\non the Rights of the Child<\/a> (CRC). The report then turns to obligations to\nprotect children from environmental harm, with a focus on educational and\nprocedural obligations, as well as substantive obligations including to ensure\nthe best interests of children, and non-discrimination obligations. While the\nreport is largely focused on state obligations, it also includes a paragraph\nspecifically on the direct responsibilities of businesses (para 62). Here, the report\nconfirms that businesses have a responsibility to protect children\u2019s rights\nfrom environmental harm, including through the fulfillment of environmental and\nhuman rights impact assessments. Notably, the report asserts that businesses\nshould seek to comply with the 2011\nUN Guiding Principles on Business and\nHuman Rights<\/a>[ii]<\/a>, as well as the 2012 Children\u2019s Rights and Business Principles<\/a>, among other guidance. There is also a child friendly version<\/a> of the report, in keeping with the need for\nchildren to be empowered to exercise their rights. This theme is further\nreflected in the attention given in the full report to the need for\ndecision-makers to take into account the views of children, particularly in the\ncontext of \u201clong-term environmental challenges, such as climate change and loss\nof biodiversity, that will shape the world in which they will spend their\nlives.\u201d (para 48) Finally, the report highlights the need to ensure the rights\nclarified in the report are respected and ensured to every child in keeping\nwith non-discrimination obligations of states. <\/p>\n\n\n\n During\nthe last year of his mandate the Special Rapporteur also released the Framework\nPrinciples on Human Rights and the Environment<\/a>[iii]<\/a> (official text of UN Doc\nA\/HRC\/37\/59 available here<\/a>), which summarize Mr. Knox\u2019s findings\nfrom his five years as the Special Rapporteur. The Principles outline the\nfundamental obligations of states under human rights law in relation to the\nenjoyment of a safe, clean, healthy and sustainable environment. The\nobligations within the Principles are derived from treaties and binding\ndecisions of human rights tribunals as well as statements of human rights\nbodies, and an illustrative list of sources relied upon is provided here<\/a>. The 16 Principles range from procedural\nenvironmental rights to substantive ones as well as principles calling for the\nprotection of vulnerable groups. Two framing principles are set out at the\nbeginning on the Framework. According to Principle 1: \u201cStates\nshould ensure a safe, clean, healthy, and sustainable environment in order to\nrespect, protect and fulfil human rights\u201d; while Principle 2 provides: \u201cStates\nshould respect protect and fulfil human rights in order to ensure a safe,\nclean, healthy and sustainable environment.\u201d Notably, even before the\nenunciation of these principles, the Framework begins with recognition that\n\u201cHuman beings are part of nature\u201d and that \u201cour human rights are intertwined\nwith the environment in which we live.\u201d (para 1) Also of importance is that the\nthird principle of the Framework highlights environmental justice intersections,\nfocusing on the need for states to prohibit discrimination and ensure equal and\neffective protection against discrimination in relation to environmental human\nrights. More generally, procedural\nprinciples outlined in the Framework include state obligations to promote and\nprotect freedom of expression, education and public awareness (Principles 5, 6,\n& 7), public participation in the decision making process (Principle 9),\naccess to effective remedies (Principle 10), the prior assessment of potential\nimpacts of proposed projects or policies (Principle 8), and the provision of a\nsafe and enabling environment in which individuals can operate free from threat\nwhile working on human rights and environment issues (Principle 4). Substantive\nprinciples outlined in the Framework include the state obligation to \u201cestablish\nand maintain substantive environmental standards that are non-discriminatory,\nnon-retrogressive, and otherwise respect, protect, and fulfil human rights\u201d\n(Principle 11); and to ensure that enforcement of standards are effective\nagainst both public and private actors (Principle 12). In recognition of the reality that the world\nis interconnected and environmental harms cross borders, the Principles call on\nstates to cooperate in implementing and maintaining international frameworks to\nprevent transboundary and global environmental harm (Principle 13). Principles 14 and 15 revisit the importance of\nnon-discrimination, with Principle 14 asserting the obligation of States to take special\nmeasures to protect the rights of vulnerable populations who are most at risk,\nincluding women, children, persons with disabilities, persons living in\npoverty, and Indigenous communities. Additionally, Principle 15 recognizes\nState obligations to Indigenous peoples and \u201cmembers of traditional\ncommunities\u201d, including with regard to free, prior\nand informed consent.<\/p>\n\n\n\n Similar\nto the approach taken in the report on the rights of the child, Mr. Knox\nconfines his discussion of the business responsibility to respect rights to a\nsingle paragraph within Framework Principle 8 and a single paragraph with\nPrinciple 12. Within Principle 8, on prior impact assessment, Knox provides\nthat business enterprises \u201cshould conduct human rights impact assessments\u201d in\nkeeping with the UN Guiding Principles on Business and Human Rights, \u201cwhich\nprovide that businesses \u2018should identify and assess any actual or potential\nadverse human rights impacts with which they may be involved either through\ntheir own activities or as a result of their business relationships\u2019, include \u2018meaningful\nconsultation with potentially affected groups and other relevant stakeholders\u2019,\n\u2018integrate the findings from their impact assessments across relevant internal\nfunctions and processes, and take appropriate action\u2019 (see Guiding Principles\n18\u201319).\u201d (paragraph 22) Under Principle 12, which is concerned with\nenforcement, he confirms that the responsibility under the UN Guiding\nPrinciples extends to adverse human rights impacts that arise through environmental\nharm, and that the conduct of human rights due diligence by businesses should\n\u201cidentify, prevent, mitigate and account for how they address their\nenvironmental impacts on human rights\u201d, as well as \u201cenable the remediation of\nany adverse environmental human rights impacts they cause or to which they\ncontribute.\u201d (para 35) However, he does highlight in the body of the official report\n(para 18) that there is need for more work to clarify how human rights norms\nrelate to business responsibilities in the area of human rights and the\nenvironment, as well as \u201cobligations of international cooperation in relation\nto multinational corporations and transboundary harm.\u201d It is anticipated that\nthese issues will be taken up by Mr. David Boyd as part of his mandate as the newly appointed Special Rapporteur.\n <\/p>\n\n\n\n The\nimportance of these issues is evident when looking at the larger picture as\nother Special Rapporteurs and emerging international institutions have already\nbegun to focus on business responsibilities. For example, the Global\nPact<\/a> for the\nEnvironment, formed in June of 2017, is a working group that seeks to\nstrengthen global environmental governance by calling for action by States as\nwell as non-State actors such as business enterprises. A resolution was adopted\nby the United Nations General Assembly in 2018 to open negotiations towards\nsuch a Global Pact for the Environment. Article 14 of the draft Pact\nspecifically recognizes the vital role of non-State actors in environmental\nprotection, while Article 2 contemplates that every person, legal or natural,\nhas a duty to take care of the environment. In a European Journal of\nInternational Law discussion<\/a> by Dr. Margaret A Young, the\nGlobal Pact is described as having the potential to mobilize non-State actors\nand could help to \u201cprovide much needed integration of environmental issues into\ninternational law\u201d. This is in keeping\nwith the recognition of the business responsibility to respect human rights in\nthe UN Guiding Principles, even though the Guiding Principles make no explicit\nreference to environmental responsibility. <\/p>\n\n\n\n In\nrecent years other UN Special Rapporteurs have begun to focus on the\nenvironmental aspect of human rights and related business responsibilities, perhaps most notably Mr.\nTuncak in his role as the Special Rapporteur on hazardous substances. This mandate<\/a> originates\nfrom 1995 and has been held by five\ndifferent Special Rapporteurs. Although initially focused upon the dumping and\nmovement of hazardous substances, the mandate was strengthened in 2011 to take\na \u201cwhole life-cycle\u201d approach to hazardous products, while in 2017 the mandate\nwas further extended to consider \u201cthe issue of the protection of the\nenvironmental human rights defenders.\u201d Numerous reports have been released over\nthe years clarifying the relationship between environmental harms associated\nwith toxic substances and human rights. In 2017, the current Special\nRapporteur, Mr. Tuncak, released Guidelines\nfor Good Practices<\/a>[iv]<\/a>, designed to assist States and businesses, among other\nactors, to identify and address human right issues arising from toxics. The\nGuidelines outline the duties of States, the responsibilities of businesses,\nand the importance of access to justice and remedy. Attention is devoted to the\nneed to protect the rights of the \u201cmost vulnerable\u201d, including communities that\nare low-income, children, workers, women, older persons, Indigenous peoples,\nminorities, and post-conflict communities (paras 24-44). State duties are\ndescribed as extending beyond borders, and include non-discrimination and\nsubstantive equality (para 5). The business responsibility to respect human\nrights is described as extending to those \u201cimplicated\u201d by business \u201cactivities,\nsupply chains, products, policies, procedures, and business relationships,\nincluding their investments\u201d (para 81). Human rights due diligence is seen as\nfundamental to the business responsibility \u201cin the area of toxic chemicals,\npollution and waste\u201d, and businesses \u201cneed to conduct such due diligence on\ntoxics produced, used, released, stored and disposed of in the course of their activities,\nthe life cycle of their products and their business relationships\u201d (para 82). General\nbusiness responsibilities are further elaborated in six paragraphs, while the\nparticular responsibilities of specific industry sectors receive further attention\n(paras 89-95). (We\nwill consider more recent reports by Mr. Tuncak in another blog post).<\/p>\n\n\n\n While Mr. Tuncak\u2019s work appears\nnotable in its attention to business responsibilities, an earlier Special\nRapporteur with a different mandate considered the role of businesses a decade\nago: Mr. Paul Hunt, the Special Rapporteur on the right to health from\n2002-2008. His 2008 Report\nto the General Assembly<\/a> highlights the importance of effective,\ntransparent, accessible and independent accountability mechanisms in the right\nto the highest attainable standard of health. Specifically, he discusses the\nimportance of working with corporations (in his case, pharmaceutical companies)\nin communicating and improving the human rights obligations of businesses (paras\n26-30, 34). The annex of the report articulates these obligations in it\u2019s \u201cHuman\nRights Guidelines for Pharmaceutical Companies in relation to Access to Medicines\u201d.\nWithin the preamble of these guidelines, it is stated that companies, \u201chave\nhuman rights responsibilities in relation to access to medicines\u201d (p. 15, para\ni) and that along with these they have obligations \u201cregarding freedom of\nassociation and conditions of work\u201d (p. 16, para m) though these are not\ndirectly addressed within the guidelines. The Guidelines then give concrete\nguidance to companies with regards to transparency, management, monitoring,\naccountability, corruption, quality, patents and licensing, and other issues\n(pp. 16-25). This same guidance for corporate responsibility could be applied\nto businesses responsibilities in the human rights and environment context. <\/p>\n\n\n\n While the work of the Special\nRapporteurs may seem abstract and distant, the influence of their work can be\nseen in recent human rights activity here in Canada. Numerous UN special\nprocedure mandate holders including Working Groups have made country visits to\nCanada to examine the situation of human rights in different contexts. For the\npurpose of this post, there are two that are of key importance. The Working\nGroup on the issue of human rights and transnational corporations and other\nbusiness enterprises released a report<\/a>\non their 2017 mission to Canada in April, 2018. The purpose of the country\nvisit was to assess the efforts made to address human rights impacts of\nbusinesses following the UN Guiding Principles (see background report, here<\/a>).\nAfter meeting with a range of stakeholders from different sectors across\nCanada, but not in Atlantic Canada, the Working Group identified numerous issues\n(see earlier blog\npost<\/a> critiquing the preliminary report for its failure to consider climate\nchange dimensions of human rights impacts).These included the many adverse\nimpacts of extractive industries on human rights, the difficulties facing\nvictims in accessing effective remedies, the disproportionate effects felt by\nIndigenous communities, and the need to strengthen Canada\u2019s corporate social\nresponsibility strategy to include more robust human rights due diligence\nmechanisms. The Working Group report ultimately provided recommendations for both\nState and business actors. Recommendations for Canada included the need to\nstrengthen environmental assessment processes, to seek free, prior and informed\nconsent of Indigenous peoples in consultation processes, and the need to\naddress access to justice issues. Meanwhile, recommendations for businesses focused\non the need to implement all aspects of the business responsibility to respect\nrights under the UN Guiding Principles, such as the development of policy\ncommitments to respect human rights, and to strengthen human rights due\ndiligence. The need for Canadian business associations to play a role in\ncapacity building of members in the area of business and human rights was also highlighted,\nalong with the importance of businesses themselves initiating \u201cinformed and\nmeaningful consultations with affected communities as early as possible\u201d and\nconsulting widely within communities about proposed business activities\n(paragraph 80, 80-84). The Working Group recommendations seem particularly on\npoint, given the recent Federal Court of Appeal decision on the Trans Mountain\npipeline (see here<\/a>\nand here<\/a>)\n\u2013 it would seem that both the Canadian government and industry would benefit\nfrom closer attention to the recommendations of UN special procedures mandate\nholders.<\/p>\n\n\n\n A second visit to note is that of\nthe Working Group of Experts on People of African Descent, who released a report<\/a>\non their mission to Canada in August, 2017. The Group visited Ottawa, Toronto,\nMontreal, and Halifax from October 17th-21st in 2016. The report outlined the\nstrong legal and policy frameworks, both international and domestic, that Canada\ncurrently has in place to combat racial discrimination. However, the report did\ntake notice of the lack of special measures taken in response to the\ndisparities and systemic anti-Black racism and discrimination that African\nCanadians face in violation of their social, economic, and cultural rights. One\nenvironmental racism example raised in the report was concern that\nenvironmentally hazardous activities, such as landfills, waste dumps, and\npolluting industries, are disproportionality located near African descent\ncommunities. A specific example that was mentioned by the report was that of\nthe African Nova Scotian community of Lincolnville (para 63). <\/p>\n\n\n\n Attention to environmental racism\nis a growing concern, especially when framed within the broader context of international\nmechanisms that emphasize state obligations and business responsibilities to\nensure vulnerable groups, such as minorities, are protected from human rights violations\narising from environmental harm. Both Mr. Tuncak and Mr. Knox note in their\nreports that vulnerable populations are disproportionately effected by\nenvironmental harms yet remain in the weakest position to address them. In the\nFramework Principles, Mr. Knox embeds principles of non-discrimination\nthroughout, both by prohibiting discrimination in protection against\nenvironmental harm (Principle 3) and calling for non-discriminatory\nenvironmental standards (Principle 11). Additionally, Principle 14 specifically\nrecognizes heightened State obligations for vulnerable populations. At a local\nlevel, such as here in Nova Scotia, issues of environmental racism could be\nguided by the international frameworks and recommendations discussed above. <\/p>\n\n\n\n Issues of environmental racism are in no shortage\nin Nova Scotia, as discussed by Dalhousie Associate Professor Ingrid Waldron is\nher 2018 book, There\u2019s Something in the\nWater<\/em>: Environmental\nRacism in Indigenous and Black Communities<\/em>[v]<\/a>. Drawing on settler colonialism, neoliberalism, and racial capitalism,\nMs. Waldron frames environmental racism as yet another form of violence against\nIndigenous and Black communities in Nova Scotia. She points to both state and\nnon-state actors, public and private, in fueling environmental racism when\nprioritizing profit over minority communities (p.49) and in turn, racializing\nspace (p. 54). To support these claims, Ms. Waldron uses Chapter 4 of her book\nto describe numerous case studies of environmental racism in Nova Scotia. These\ninclude the cases of Pictou Landing First Nation and the contamination in Boat\nHarbour (p.75), the Sipekne\u2019katik Band of the Mi\u2019kmaw First Nation and the\ndevelopment of a brine discharge pipeline into the Shubenacadie River (p.76),\nand the African Nova Scotian community of Lincolnville located next to first\nand second generation landfills (p.85). These are just a handful of cases that\nMs. Waldron uses to illustrate the existence of environmental racism in the\nprovince. <\/p>\n\n\n\n Ms.\nWaldron also makes clear that issues of environmental racism are not unique to\nthe Nova Scotia landscape and are in fact a Canadian problem. She cites cases\nacross Canada, including hydrofracking near Elsipogtog First Nation in New\nBrunswick, E. coli bacteria in the water of the Kashechewan First Nation in\nOntario (p.81), and Ontario\u2019s \u201cChemical Valley\u201d located near Aamjiwnaang First\nNation (p.82). There are unfortunately many more.<\/p>\n\n\n\n However, steps can be taken, including\nimplementation of legislative reforms such as Nova Scotia\u2019s proposed Environmental\nBill of Rights<\/a> which recognizes that the Government of Nova Scotia has the\nobligation to protect, preserve, and restore the environment and act as a\ntrustee of the environment for citizens of Nova Scotia. The purpose of the Act is\nto \u201csafeguard the right of all present and future generations\u201d to a healthy and\nbalanced environment and to protect the people of Nova Scotia from\nenvironmental hazards. (s2) Procedural purposes of the act include fostering \u201ctransparency,\ninclusiveness, and accountability\u201d as well as access to information and\njustice. The substantive purposes, apart from the aforementioned ones, are to\nguarantee the fundamental environmental needs necessary for health, well-being,\ndignity, and social equity for people of Nova Scotia. Additionally, Nova\nScotia\u2019s proposed Environmental\nRacism Prevention Act<\/a>, seeks to create a panel with the sole purpose of\naddressing the issue of environmental racism in Nova Scotia and provide\nrecommendations to mitigate such issues. Clearly these are important tools for\nthe protection of human rights and to overcome historic legacies of\nenvironmental racism. Beyond statutory tools, there is clearly a need for both\nmore guidance on business responsibilities for human rights in relation to\nenvironmental harm, and for Canadian businesses and business associations to\nstart taking seriously their own independent responsibilities in relation to\nhuman rights and the environment. The work of the UN Human Rights Council special\nprocedures mandate holders provides a useful illustration not only of what is\npossible, but of what is essential if we are to achieve environmental justice in\ntoday\u2019s world.<\/p>\n\n\n\n <\/p>\n\n\n\n [i]<\/a> UN HRC, Report of the Special Rapporteur on the issue\nof human rights obligations relating to the enjoyment of a safe, clean, healthy\nand sustainable environment, John Knox: Report on the rights of children and\nthe environment<\/em>, OHCHR, 37th\nSess, UN Doc A\/HRC\/37\/58 (2018). <\/p>\n\n\n\n [ii]<\/a> UN HRC, Report of the Special Representative of the\nSecretary-General on the Issue of Human Rights and Transnational Corporations\nand Other Business Enterprises, John Ruggie: Guiding Principles on Business and\nHuman Rights: Implementing the United Nations \u201cProtect, Respect and Remedy\u201d\nFramework<\/em>, UNGAOR, 17th Sess, UN Doc A\/HRC\/17\/31 (2011). <\/p>\n\n\n\n [iii]<\/a> UN HRC, Report of the Special Rapporteur on the issue\nof human rights obligations relating to the enjoyment of a safe, clean, healthy\nand sustainable environment, John Knox: Framework\nprinciples on human rights and the environment<\/em>,\nOHCHR, 37th Sess, UN Doc A\/HRC\/37\/59\n(2018). <\/p>\n\n\n\n
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