In a ground breaking decision on Friday, October 8, 2021 the United Nations Human Rights Council recognized the right to a clean, healthy and sustainable environment.
Resolution 48/13 calls on the countries throughout the world to work cooperatively in the implementation of this new right to a healthy environment. The text of the regulation was proposed by Costa Rica, the Maldives, Morocco, Slovenia and Switzerland and passed with 43 favourable votes with Russia, India, China and Japan abstaining.
Following the passing of resolution 48/13 a second resolution was passed, Resolution 48/14, to focus on human rights impacts of client change through the establishment of a Special Rapporteur1 dedicated to the issue. The passing of these resolutions came only a couple of weeks prior to the UN climate change summit, COP26 in Glasgow.
The mandate of the Special Rapporteur on human rights and the environment includes, among other things, to:
- Continue to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment;
- Continue to identify, promote and exchange views on good practices relating to human rights obligations and commitments to inform, support and strengthen environmental policy making, especially in the area of environmental protection;
- Promote and report on the realization of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and to disseminate his findings by, inter alia, continuing to give particular emphasis to practical solutions with regard to their implementation;
- Work on identifying challenges and obstacles to the full realization of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment and protection gaps thereto, including in the context of sustainable development;
- Continue to contribute to and participate in conferences and meetings relevant to the mandate, including at the United Nations Environment Assembly;
- Develop a dialogue with all relevant stakeholders to enhance public awareness of the human rights obligations relating to the enjoyment of an environment;
- Conduct country visits and to respond promptly to invitations from States.
The World Health Organization has reported that approximately 24% of all global deaths (and 28% of deaths among children under five), being approximately 13.7 million deaths annually, are linked to the environment, due to matters such as air pollution and other chemical exposures among others. These deaths are considered to be the result of modifiable environmental factors.
The first formal recognition of environmental rights occurred in 1972 in the Stockholm Declaration. Principle 1 of the Stockholm Declaration recognized our “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.”
The recognition of a right to a healthy environment is long overdue as more than 90 countries explicitly recognizes environmental rights in their constitutions and the courts of approximately 20 other countries have ruled that that the right to life includes an implied right to a healthy environment. Section 64 o the Canadian Environmental Protection Act incorporates a limited recognition that substances entering the environment are toxic if they “constitute a danger to the environment on which life depends.”
In Ontario, the Environmental Bill of Rights recognizes the right to a healthful environment. The Preamble in the EBR states: The people of Ontario recognize the inherent value of the natural environment. The people of Ontario have a right to a healthful environment.” However, despite acknowledging the right to a healthy environment, the Preamble itself does not create a substantive right to a healthy environment although it is recognized that the preamble is an important interpretative tool in understanding the scheme and purpose of the statute.
Other provincial laws that mention a right to a healthy or healthful environment, include Quebec’s Environment Quality Act, the Northwest Territories’ Environmental Rights Act (also applicable in Nunavut), and the Yukon’s Environment Act. While these laws do create procedural rights, they do not create substantive rights to any particular quality of air, water or land.
Over the course of the last several years there have been numerous cases claiming an individual right to a “healthy environment”. These cases indicate that environmental rights are appropriately being considered as a “human right” as people’s health and at times their very existence depend on the quality of, and access to, a healthy environment.
The UN’s Declaration may result in further opportunity to bring cases before the courts on the basis of a right to a clean and healthy environment. The right to a healthy environment has been discussed in Siskinds’ earlier blogs set out below. The courts are increasingly being faced with Charter cases relating to a right to a clean and healthy environment.
It is notable that Canada has historically been one of 16 holdouts throughout the world in refusing to recognize substantive environmental rights however, Resolution 48/13 may prompt change in the recognition of these rights moving forward.
1 The Human Rights Council established the mandate for the Independent Expert on human rights and the environment in 2012 (resolution 19/10). Mr. John Knox was appointed the first Independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment for a three year term. His mandate was further extended in March 2015 as a Special Rapporteur for another three years (resolution 28/11). In March 2018, the Human Rights Council further extended the mandate (resolution 37/8) and appointed Mr. David. R. Boyd as the Special Rapporteur for three years. In March 2021 the Human Rights Council extended the mandate for another three years (resolution 46/7).