Five Takeaways from the UN Climate Change Conference (COP26)

By the end of 2019, more than 80 percent of United Nations (“UN”) Member States recognized the right to a healthy environment in law, with more than 110 countries recognizing the right to a healthy environment in their national Constitutions.[1]

Last fall, after many years of advocacy by civil society organizations, the UN Human Rights Council (“HRC”) adopted a landmark resolution which recognized the right to a clean, healthy and sustainable environment.[2] Following the HRC decision, Costa Rica, Morocco, Maldives, Switzerland and Slovenia presented a draft resolution recognizing the right to a healthy environment before the United Nations General Assembly (“UNGA”) in June 2022.[3] The UNGA is expected to vote on the resolution by the end of July 2022.

In this post, we will outline what the right to a healthy environment encompasses, provide examples of the right being applied by judiciaries around the world, explore the status of this right in Canada, and outline other legal avenues to protect the environment.

What is the right to a healthy environment?

The right to a healthy environment recognizes and applies existing human rights obligations in an environmental context. In 2018, then-UN Special Rapporteur John Knox presented 16 framework principles to the HRC which clarified the human rights obligations of states relating to a healthy environment as reflected in actual or emerging international human rights law.[4]

Substantively, the right to a healthy environment includes the following elements:

  • clean air;
  • a safe climate;
  • access to safe water and adequate sanitation;
  • healthy and sustainably produced food;
  • non-toxic environments in which to live, work, study and play; and
  • healthy biodiversity and ecosystems.[5]

The right to a healthy environment also encapsulates three procedural elements: access to information, public participation, and access to justice and effective remedies.[6]

The right to a healthy environment in action

In countries where the right to a healthy environment is constitutionally protected, courts can apply this right to protect against gaps and violations of statutory laws and improve access to justice.[7]

South Africa

In March 2022, the Pretoria High Court held that the failure to meet national air quality standards was a prima facie violation of the constitutional right to a healthy environment.[8] Section 24 of South Africa’s Bill of Rights states that:

Everyone has the right:

  1. to an environment that is not harmful to their health or well-being; and
  2. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:
    1. prevent pollution and ecological degradation;
    2. promote conservation; and
    3. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.[9]

The court ordered the government to implement and enforce regulations to protect air quality in the affected region.

Brazil

In July 2022, the Supreme Court of Brazil held that the federal government’s failure to implement the National Climate Fund, established as part of its national climate policy plan, was a breach of the government’s constitutional obligation to protect the environment for current and future generations.[10] The court ordered the executive branch to execute and allocate the climate funds to mitigate climate change.

In this decision, the Supreme Court also clarified that environmental law treaties are a particular form of human rights treaty that have “supranational” legal status (or rise above national laws), also making Brazil the first country to recognize the Paris Agreement as a human rights treaty.[11]

Courts in Argentina, Chile, the Philippines, Thailand, and Mexico have also enforced constitutionally-protected environmental rights and obligated government actions to address environmental injustices.[12]

The status of the right to a healthy environment in Canada

Canada has yet to formally recognize the right to a healthy environment in its constitution or other legislation. While several instances of alleged environmental degradation have been brought before the courts to seek recognition of the right to a healthy environment through existing rights under the Canadian Charter of Rights and Freedoms (“Charter”), no such case has been successful to date.

Recognition through existing Charter rights

In 2011, Ecojustice brought an application for judicial review on behalf of two members of Aamjiwmaang First Nation, an Indigenous reserve located near what is now called Sarnia, Ontario. This area contains many industrial facilities and refineries: in 2016 to 2017, 45,357 tonnes of pollution was emitted from industries within a 25 kilometer radius of Aamjiwnaang First Nation.[13]

The cumulative effects of the pollution resulting from all of the approved permits in this area have reportedly had devastating health impacts on the Aamjiwmaang First Nation.[14] The judicial review application challenged the Ontario Minister of Environment’s decision to allow a company to increase production at a sulfur plant without first requiring a cumulative effects assessment, seeking a declaration that, amongst other things, the Minister’s decision infringed on their rights to life, liberty and security, as well as their right to equality, under sections 7 and 15 of the Charter, respectively. This lawsuit was withdrawn in 2016 before a decision was reached.

More recently, youth litigants in two cases have attempted to rely on the court to extend sections 7 and 15 of the Charter to the right to a healthy environment. As we discussed in a previous post, in La Rose v Canada, a group of 15 Canadian youth brought a claim arguing that the cumulative effects of greenhouse gas emissions resulting from Canada’s actions (and inactions) on climate change infringed on their s. 7 and s. 15 Charter rights.[15] The federal government brought a successful motion to strike the statement of claim and dismiss the claim on the grounds that the claim raised no reasonable cause of action, however, an appeal of this decision is underway.

In Mathur v Ontario, a group of 7 Canadian youth brought a claim against the Ontario government arguing that the Province’s 2030 emissions reduction target violates their s. 7 and s. 15 Charter rights. As the Ontario government was not successful in its motion to strike the case (and its request to appeal the ruling was dismissed), this case will be proceeding to trial.[16]

Reforming Canada’s environmental laws

In April 2021, Minister Jonathan Wilkinson (then the Federal Minister of Environment and Climate Change) tabled Bill C-28 to, among other things, amend the Canadian Environmental Protection Act, 1999 (“CEPA”) to recognize that every individual in Canada has a right to a healthy environment, mandate the federal government to protect that right, and require the development of an implementation framework to set out how to consider the right in the administration of CEPA.[17] After completing the first reading, however, this bill was not further discussed in the House of Commons and failed to pass before Parliament dissolved in advance of the 2021 federal election.

This past February, the text of Bill C-28 was re-introduced in the Senate (as Bill S-5) by the Honourable Senator Marc Gold. The Standing Senate Committee on Energy, the Environment and Natural Resources made several amendments to strengthen Bill S-5 before passing the bill on June 22, 2022.[18] The bill will now return to the House of Commons for its first reading when Parliament resumes in September 2022. If passed as presently written, this bill would see the long-awaited entrenchment of the right to a healthy environment in Canada.

Recognition through international law

Canada was not a member of the UN HRC when it passed the 2021 resolution recognizing the right to a healthy environment and thereby did not vote on the resolution. As a member of the UNGA, Canada will have to vote (or choose to abstain from voting) on the UNGA resolution recognizing the right to a healthy environment when it comes to a vote this July. Given that Canada has already recognized this right in Bill C-28 and Bill S-5, barring any drastic changes in position, it is likely that Canada will vote for and endorse this resolution.

Other avenues for protecting environmental rights

Entrenching the right to a healthy environment in law is one of several legal mechanisms available to promote greater environmental protection.

Recognizing the rights of nature

While many Indigenous legal orders have always recognized the rights of nature, some common law and civil law systems are now beginning to recognize natural features as legal subjects as well. In 2021, the Mutehekau Shipu (also known as the Magpie River) in Quebec became the first river in Canada to receive legal personhood under the Canadian common-law system. The nine rights granted to the river include the rights to evolve naturally and be protected, to be free of pollution, and to sue.[19]

In 2008, Ecuador passed a new constitution, making it the first country to constitutionally acknowledge the rights of nature. Articles 71 and 72 of its constitution state that nature “has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes” and that nature “has the right to be restored.”[20]

Criminalizing environmental destruction

International environmental treaties and other “soft law” instruments (like resolutions) are limited in their ability to ensure compliance through enforcement measures, incentives and deterrence. There is growing momentum for the Rome Statute to be amended, however, to include “ecocide” as an international crime under the International Criminal Court (“ICC”). Presently, the ICC has jurisdiction to investigate and try individuals charged with genocide, war crimes, crimes against humanity, and the crime of aggression.

The Independent Expert Panel for the Legal Definition of Ecocide, co-chaired by lawyer and professor Philippe Sands QC and UN jurist and former prosecutor Dior Fall Sow, defines ecocide as follows:

“unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”[21]

Examples of destructive activities which could constitute ecocide include ocean damage, deforestation, land and water contamination, and air pollution.[22] Presently, claims challenging the environmental and human impacts of such activities are launched in domestic courts around the world, and often face jurisdictional challenges. While adding ecocide to the ICC’s jurisdiction may prove to be a challenging task, it would allow for such claims to be tried in an international forum.

Conclusion

A safe climate is a vital component of the right to a healthy environment. The Supreme Court of Canada has acknowledged that the climate crisis “poses a grave threat to humanity’s future.”[23]

While limiting average global warming temperatures to 1.5°C above pre-industrial levels would lessen climate-related risks for natural and human systems, the UN Intergovernmental Panel on Climate Change warned the international community in 2018 that achieving this goal would require “large, immediate and unprecedented global efforts” to mitigate greenhouse gases.[24]

A UNGA resolution recognizing the right to a healthy environment as a fundamental human right would help reinforce the urgency of implementing this right and encourage governments to entrench the right in their constitutions as well as other legislation and policies.

Whether recognized in international or domestic law, ultimately the right to a healthy environment provides an additional tool to ensure that governments, businesses and people do a better job of taking care of the planet we all share.[25]

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