The human right to a clean, healthy and sustainable environment

The United Nations Human Rights Council has recognised a universal human right to a clean, healthy and sustainable environment. This may influence Australian courts and decision-makers. It is also relevant to how corporates understand their role in protecting human rights and contributing to sustainable economic activity.

Snapshot

• On 8 October 2021, the UNHRC voted to recognise a universal human right to a clean, healthy and sustainable environment.
• The UNHRC’s resolution is not legally binding and does not directly change Australian law. However, it underscores the importance of environmental issues and, by framing them squarely as a human rights issue, it elevates environmental matters as relevant in a range of additional contexts (such as the UNHRC’s periodic review and complaint processes).
• Companies may wish to consider how their human rights and sustainability policies and practices interact, having regard to the interdependency of these matters.

The Resolution

A major global milestone was achieved on 8 October 2021 with the UNHRC formally recognising “the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights”.¹ The new resolution is significant in how it directly links human rights and the environment. As the preamble says, environmental issues are now “some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights”.

The Australian Position

The UNHRC’s resolution may be an international breakthrough, but there are only three Australian States or Territories that have passed laws formally recognising human rights. None of them explicitly include a right to a healthy environment.

Victoria’s approach is in the Charter of Human Rights and Responsibilities Act 2006, which protects well-established civil and political rights like the right to life and the right to equality before the law. The Australian Capital Territory and Queensland go slightly further — they also recognise some economic, social and cultural rights in the Human Rights Act 2004 (ACT) and the Human Rights Act 2019 (Qld) respectively.

At a federal level, Australia does not have a bill of rights. Instead, we have a framework where all Bills must be accompanied by a Statement of Compatibility with human rights, and a Parliamentary Joint Committee on Human Rights which reviews the human rights impact of new laws including by reference to Australia's international treaty obligations.²

The UNHRC’s resolution does not change how this framework currently works, but it demonstrates a recognition that rights which are within the purview of the parliamentary committee (such as those in the Convention on the Rights of the Child) can be affected by environmental damage and climate change. Indeed, the UN Committee on the Rights of the Child is currently drafting a General Comment on children’s rights and the environment with a special focus on climate change.³ General Comments set out authoritative guidance on interpreting the Convention on the Rights of the Child. This shows how human rights treaties to which Australia is already a party may come to be interpreted in ways that protect the environment.⁴

Most Australian States and Territories also have some form of ‘general environmental duty’, which requires persons to undertake their activities in a way that minimises harm to the environment. However, this duty is typically enforced through regulator action and Australian environmental litigation has tended to focus instead on challenges to project approvals, or nuisance and negligence claims.

A nascent trend in Australia is for parties to argue that human rights considerations are relevant to government decision making on projects, in particular invoking human rights arguments relating to environmental damage from climate change (such as the right to life and the rights of Indigenous peoples).⁵ For example, there has been ongoing human rights litigation over the approval of Waratah Coal’s thermal coal mine in Queensland.⁶ Human rights were also considered in a court referral of objections to a limestone mine extension in Queensland.⁷ However, Australia’s limited human rights laws mean that we may not see decisions like the Hague District Court’s judgment in May 2021 that Royal Dutch Shell has a duty to protect the human rights of Dutch citizens by reducing its carbon emissions.⁸

The Future

The UNHRC’s resolution highlights a global trend towards viewing environmental issues through a ‘human rights lens’ — as the UNHRC notes, “more than 155 States have recognised some form of a right to a healthy environment in, inter alia, international agreements or their national constitutions, legislation or policies”.

While Australia is not obliged to implement new legislation to reflect the resolution, interpretation of existing human rights treaties could lead to formal obligations for countries to adopt measures (such as new legislation) to ensure that human rights are protected in the context of climate change and other environmental concerns.

A Holistic Approach

International recognition of a human right to a clean, healthy and sustainable environment underlines that companies addressing ESG considerations should have regard to the complex interactions between laws, policies and standards in this area:

• Review company sustainability policies and practices: Companies that have developed human rights and sustainability policies and practices may wish to review these and consider whether the interaction of human rights and environmental issues is appropriately addressed in their operations. For instance, this may include considering how environmental considerations are addressed in investment and project decisions, reviewing how public commitments and statements on sustainability and human rights are operationalised in practice, and considering whether these commitments are appropriate in light of how they interact with the UNHRC’s resolution.
• Avoid silos in corporate ESG oversight: Some companies may delegate environmental management to a specific environment function, while human rights issues are managed by other teams. The UNHRC’s resolution is a timely reminder that holistic ESG risk management integrates both aspects. Issues like emissions, pollution and land clearance are increasingly viewed as having both short and long term human rights implications too.
• Framing of environmental considerations in regulatory decision-making and interpretation of legal obligations: Even where not formally implemented through domestic legislation, international environmental law and international human rights law can influence government decision-making and the interpretation by Courts of legislation or legal obligations. The UNHRC’s resolution could be influential in this regard, particularly if relied on in UNHRC periodic reviews or the assessment of complaints. The resolution may also increase in influence if explicitly given effect in other international contexts, such as via the interpretation of existing treaties. This may occur in the context of climate change, but also across the spectrum of environmental concerns including loss of biodiversity, clean water and air, and rehabilitation / remediation.

By Heidi Asten, Partner, Antony Crockett, Partner, and Henry Materne-Smith, Solicitor

_{1     Human Right to a Clean, Healthy and Sustainable Environment, HRC Res 48/13, UN Doc A/HRC/RES/48/13 (18 October 2021, adopted 8 October 2021).
2    See Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).
3    See Office of the High Commissioner for Human Rights, Draft general comment No. 26 on children’s rights and the environment with a special focus on climate change (Web Page, undated).
4    For an international example of using the Convention on the Rights of the Child in an environmental context, see Sacchi et al v Argentina et al (Communication to the Committee on the Rights of the Child).
5    See generally Jay Gillieatt, ‘Youth Verdict and Human Rights-Based Climate Litigation in Australia’ (2021) 35(7&8) Australian Environment Review 160.
6    Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33; Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) [2021] QLC 4.
7    Cement Australia (Exploration) Pty Ltd v 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 19-379, 26 May 2021) [4.1.3]-[4.2.4].}