The United Nations Human Rights CouncilRecognized a universal human right to a healthy, clean, and sustainable environment. This could have an impact on Australian courts and decision makers. It is also important for how corporations understand their roles in protecting human rights, and contributing to sustainable business activity.
Snapshot
On 8 October 2021The UNHRC voted in favor of recognizing a universal human rights to a healthy, clean, and sustainable environment.
The UNHRC’s resolution does not have legal binding effect and does no direct alter Australian law. It does highlight the importance of environmental issues. By framing them as a human rights issue it elevates environmental issues in a variety of contexts (such UNHRC’s periodic reviews and complaint processes).
Companies might want to examine how their sustainability and human rights policies and practices relate to each other, taking into account the interdependency of these issues.
The Resolution
On this day, a major global milestone was reached 8 October 2021With the UNHRC officially recognising that “the right of a clean, healthy, and sustainable environment is a human right that is essential for the enjoyment of human freedoms”,1This new resolution is significant because it directly links the environment and human rights. According to the preamble, environmental issues are “some of the most urgent and serious threats to the ability for present and future generations of people to enjoy their human rights”.
The Australian Position
Although the UNHRC resolution may have been a major international breakthrough, only three Australian States and Territories have passed laws officially recognising human right. None of them explicitly mention a right to a healthy and safe environment.
Victoria’sApproach is in Charter of Human Rights and Responsibilities Act 2006The, which protects well-established civil rights and political rights such as the right of life and equality before the law. The Australian Capital Territory QueenslandThey recognize some cultural, social, and economic rights in the country. 2004 Human Rights Act(ACT) and 2019 Human Rights Act (Qld) respectively.
At the federal level AustraliaThere is no bill of rights. Instead, we have a framework that requires all Bills to be accompanied with a Statement of Compliance with human rights and a Parliamentary Joint Committee on Human RightsThis document reviews the human rights impact on new laws, including by reference to Australia’sInternational treaty obligations2
While the UNHRC resolution does not alter the current framework, it recognizes that rights which fall within the purview the parliamentary committee (such the rights in the Convention on the Rights of the ChildThe environment can cause damage to the environment and climate change can affect the health of the body. Indeed, the UN Committee on the RightsThe Child is currently working on a General Comment on Children’s Rights and the Environment, with a special focus upon climate change.3The General Comments provide authoritative guidance for interpreting the Convention on the Rights of the Child. This shows how human right treaties relate to which AustraliaAn example of a party could be used to protect the environment.4
The majority of Australian States and Territories have some form or other of a general environmental duty. This requires that persons undertake their activities in a manner that minimizes damage to the environment. This duty is usually enforced by regulator action. Australian environmental litigation tends to focus on challenges to project approvals or nuisance and negligence claims.
A rising trend in Australiaparties can argue that human right considerations are relevant to government decisions on projects, in particular invoking human Rights arguments relating to climate change.5For example, ongoing human rights litigation has been centered on Waratah Coal’s approval for its thermal coal mine in Queensland.6In a court referral of objections against a limestone mine expansion, human rights were also taken into consideration Queensland.7 However, Australia’sWe may not see decisions like these because of the limitations of human rights laws Hague District CourtJudgment in May 2021That Royal Dutch ShellThe Dutch government has a duty of care to protect the rights of its citizens and reduce its carbon emissions.8
The Future
The UNHRC resolution highlights a global trend to view environmental issues through a “human rights lens”. According to the UNHRC, “more than 150 States have recognized some form of a human right to a healthy ecosystem in, inter alia international agreements or their respective national constitutions, laws, or policies.”
While AustraliaWhile the resolution does not require the implementation of new legislation, it is possible that interpretations of existing human rights agreements could lead to formal obligations for other countries to adopt measures (such a new legislation) in order to ensure that human rights and the environment are protected.
Holistic Approach
International recognition of a human rights to a clean, healthy, and sustainable environment underscores the importance of companies considering ESG considerations. Companies should consider the complex interactions between laws and standards in this area.
Review the sustainability practices and policies of your company.Companies that have implemented sustainability and human rights policies and practices might want to review these and evaluate whether they adequately address the interaction between human rights, environmental issues, and their operations. This might include reviewing how environmental considerations can be addressed in investment and project decisions, examining how public commitments and statements about sustainability and human rights are implemented in practice, and evaluating whether these commitments are appropriate considering their relationship with the UNHRC’s resolution.
Avoid silos in corporate ESG oversight: Companies may delegate environmental management to one function while human rights issues can be managed by other teams. The UNHRC’s resolution serves as a timely reminder that holistic ESG Risk Management integrates both of these aspects. The human rights implications of issues like emissions, pollution, and land clearance are becoming more prominent.
In regulatory decision-making and in the interpretation of legal obligations, environmental considerations are consideredEven though they are not legally implemented in domestic legislation, international environment law and international rights law can influence government decision making and the interpretation of legislation by courts. This could be a powerful tool, especially if the UNHRC relies on it in periodic reviews or in the assessment of complaints. The resolution’s influence could increase if it is used in other international contexts such as the interpretation of existing agreements. This could be in the context climate change, but it could also occur across the entire spectrum of environmental concerns, including loss of biodiversity, clean waters, and remediation.
Footnotes
1 Human right to a clean, healthy, and sustainable environment, HRC Res 48/13 UNDoc A/HRC/RES/48/1318 October 2021, adopted 8 October 2021).
2 See HHuman Rights (Parliamentary Scrutiny).Act 2011 (Cth).
3 See Office of the Human Rights High Commissioner, Draft general comment No. 26 on children’s right and the environment, with a special focus upon climate change (Web Page, undated).
4 International examples of the use of the Convention on the Rights of the ChildIn an environmental context, see Sacchi et al v Argentina et al(Communication with the Committee on the Rights of the Child).
5 Jay Gillieatt’s ‘Youth Verdict and Human Rights Based Climate Litigation in Australia‘ (2021) 35(7&8) Australian Environment Review 160.
6 Waratah Coal Pty Ltdv Youth Verdict Ltd & Ors [2020]QLC 33 Waratah Coal Pty Ltdv Youth Verdict Ltd & Ors (No 2) [2021]QLC 4.
7 Cement Australia (Exploration), Pty Ltdv East End Mine Action Group Inc (No 4) [2021]QLC 22.
8 Vereniging Milieudefensie v Royal Dutch Shell plc (Hague District Court, C/09/571932 / HA ZA 9-379 26 May 2021) [4.1.3]-[4.2.4].
This article is meant to be a guideline for the subject matter. For your particular situation, you should seek specialist advice.
