Preston, Brian J --- "Beyond Recognition: Realisation of the Right to a Healthy Environment" [2024] UNSWLawSocCConsc 7; (2024) 18 UNSW Law Society Court of Conscience 41

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BEYOND RECOGNITION: REALISATION OF THE RIGHT TO A HEALTHY ENVIRONMENT

Brian J Preston Frsn Sc^*

I Introduction

As the world faces the triple planetary crises of climate change, biodiversity loss and pollution, the human right to a clean, healthy and sustainable environment is being increasingly recognised by states and international institutions. This right consists of three components, a substantive, a procedural and an intertemporal component. However, recognition of this right is only one step towards achieving full implementation of the right; what is required beyond recognition is realisation of the right. Realisation of the right demands a tripartite obligation on the state to respect, protect and fulfil the right. This correlative obligation comprises substantive, procedural and intertemporal components, as well as a special obligation to the vulnerable. While court decisions can go some way towards upholding and enforcing the recognition and realisation of the right to a healthy environment, the judiciary’s role will remain limited without legislative and policy reform to ensure the right is fully realised.

II Recognition Of The Right To A Healthy Environment

A Progress in Recognising the Right

A stand-alone right to a healthy environment has been recognised only comparatively recently. Before this recognition, recourse needed to be had to well-established human rights, such as the right to life, to afford some degree of protection of the environment for people.^[1] However, the protection of the environment provided by these existing human rights fell short of what would be provided by a stand-alone right to a healthy environment.

Recognition of this deficiency has catalysed action internationally and nationally. Internationally, the United Nations Human Rights Council adopted a resolution in 2021 recognising the right to a clean, healthy and sustainable environment.^[2] The United Nations General Assembly in 2022 recognised the right to a clean, healthy and sustainable environment as a human right,^[3] with 161 states voting in favour, eight abstaining and zero votes against. Regional agreements, such as the African Charter on Human and Peoples’ Rights of 1981, also recognise the human right to a ‘satisfactory’ environment’.^[4]

Nationally, states are increasingly recognising in domestic law the right to a healthy environment. Today, a majority of states around the world have recognised in law the right to a healthy environment. As of 2022, 110 states protected the right in their constitution^[5] and in 2019, more than 150 states recognised the right in legislation, agreements or court decisions.^[6]

Australia remains an outlier in this respect, with most jurisdictions not recognising the right to a healthy environment. However, there are some signs of change. The Australian Capital Territory recently passed legislation to amend its human rights legislation to recognise the right to a clean, healthy and sustainable environment.^[7] In New South Wales, the right is indirectly recognised in the Climate Change (Net Zero Future) Act 2023 (NSW), which sets out in its guiding principles that ‘[a]ction to address climate change should be consistent with the right to a clean, healthy and sustainable environment’.^[8] In 2023, the federal Attorney-General requested the Parliamentary Joint Committee on Human Rights to review Australia’s human rights framework. The report, handed down in May 2024, does not go so far as to recommend the adoption of a right to a healthy environment, however it does recommend that:

... further consideration be given to the drafting of the right to a healthy environment, including consultation with Aboriginal and Torres Strait Islander peoples on how best to recognise the relationship between the right to a healthy environment and the rights to culture, health and self-determination for Aboriginal and Torres Strait Islander peoples.^[9]

B Content of the Right

What is the right to a healthy environment that is being recognised? Although jurisdictions vary, generally the right to a healthy environment can be seen to have three separate components: a substantive, a procedural and an intertemporal component.

The substantive component can be viewed as being made up of four distinct human rights, which relate to six physical elements put forward by David Boyd, the previous Special Rapporteur on human rights and the environment.^[10] The four human rights are the right to life, the right to access and enjoy the necessities of life, the right to access and enjoy what is necessary for a quality life, and the right to a functioning, healthy and flourishing biosphere.^[11] Four of Boyd’s six physical elements relate to the necessities of life. These are clean air, safe and sufficient water, healthy and sustainable food, and a non-toxic environment. The human right to a flourishing biosphere requires the remaining two of Boyd’s physical elements, being a safe climate and a healthy ecosystem. Each of these six physical elements – and therefore the four rights – are already being adversely impacted by the triple planetary crises of climate change, biodiversity loss and pollution.

Two cases illustrate the substantive component. In Argentina, a claim brought by Indigenous communities successfully challenged the issuing of logging permits for native forests on the basis that it contravened Constitutional rights, including the right to a healthy and balanced environment.^[12] In South Africa, the High Court in Pretoria upheld a challenge to the government’s grant of a licence for a new coal-fired power station. The plaintiffs invoked the constitutionally recognised right to a healthy environment, claiming that climate change ‘presents a serious and imminent threat’ to this right’.^[13] The plaintiffs connected the right to the state’s obligation to assess the environmental impacts of projects, including the climate change impacts.^[14]

The procedural component of the right to a healthy environment encompasses three distinct rights: the right of access to information on the environment; the right to be able to participate in decision-making related to the environment; and the right to access the courts to uphold and enforce these and other related rights. These principles are recognised in international and intra-national and regional agreements such as the Aarhus Convention (universal, but Europe in particular),^[15] the Escazu Agreement (Latin America and the Caribbean)^[16] and the Maputo Protocol (Africa).^[17] These procedural rights were identified by John Knox, the Special Rapporteur on human rights and the environment prior to David Boyd, in his Framework Principles on Human Rights and the Environment.^[18]

The third component of the right to a healthy environment is the intertemporal component. This recognises the principle of intergenerational equity, in that not only should current adult generations enjoy the right to a healthy environment, but so should younger generations and future generations. The right of future generations to a healthy environment has been recognised by many courts, including in Colombia^[19] and Germany.^[20] The Australian case of Sharma v Minister for the Environment, led by youth plaintiffs seeking to prevent a coal mine extension on the basis that the federal Environment Minister has a duty of care for young people, succeeded at first instance,^[21] but this decision was overturned unanimously by the Full Federal Court of Australia.^[22] In finding no such duty exists, Allsop CJ stated that ‘A duty that calls up such questions should not be imposed [by the judiciary]: It is one of core, indeed high, policy-making for the Executive and Parliament involving questions of policy’.^[23]

III Realisation Of The Correlative Duty

It is one thing to recognise a right to a healthy environment, it is another to realise the right. Realisation of the right requires identification and implementation of the correlative duty. Indian civil rights campaigner Mahatma Gandhi stated that, ‘The true source of rights is a duty. If we all discharge our duties, rights will not be far to seek’.^[24] American jurist Wesley Hohfeld argued that claim rights, being rights to have things done for or to a person, give rise to a correlative duty on someone else to respect and protect that right.^[25] The correlative duty is what states must do to ensure the right is actually realised. This is a step beyond enshrining the right in legislation or constitutions, or the right being recognised by the courts. The realisation of the right to a healthy environment is, therefore, dependent on the recognition and enforcement of the correlative duty of the state. The correlative duty can be explained by examining both the general tripartite obligation with respect to human rights and the content of the duty.

A Tripartite Obligation

The duty that is correlative to the right to a healthy environment, as for any human right, is the tripartite obligation to respect, protect and fulfil the right.^[26] This tripartite obligation applies to human rights and is explicitly incorporated into international human rights law^[27] and is also contained in Knox’s Framework Principles.^[28] The obligation to respect the right to a healthy environment necessitates states not interfering with individuals’ enjoyment of the right.^[29] The obligation to protect necessitates states preventing any interference with the right. Lastly, the obligation to fulfil necessitates states taking measures to ensure that all individuals enjoy the right. This tripartite obligation can be achieved through legislation, financial measures, judicial decisions and other actions.

B Content of the Duty

As with the content of the right, the content of the correlative duty is comprised of substantive, procedural and intertemporal components. In addition, the duty has a fourth component, being obligations towards the vulnerable.

The substantive component of the duty requires states to uphold their tripartite obligation to respect, protect and fulfil the substantive components of the right, discussed above. At a minimum, this requires states to address Boyd’s six physical elements. States must act by reducing air pollution, ensuring access to safe and sufficient water and to healthy and sustainable foods, taking measures to detoxify the planet, taking action to protect and restore biodiversity, and ensuring a safe climate including by phasing out the use of fossil fuels.

The procedural component of the duty similarly reflects the procedural component of the right: states must ensure people have access to information about the environment; allow the public to participate in environmental decision-making; and ensure there is access to justice and effective remedies for these and other rights.^[30] In Australia, the Federal Court has overturned administrative decisions approving oil and gas exploration on the basis that a statutory requirement for consultation with relevant parties, in these cases Indigenous peoples, were not satisfied. In both cases, this led to the court setting aside the statutory body’s approvals for oil and gas exploration.^[31]

Ensuring access to justice requires tailoring to the specific needs of individuals and groups. For example, in Waratah Coal Pty Ltd v Youth Verdict and Other (No 5),^[32] the Queensland Land Court allowed Aboriginal and Torres Strait Islander witnesses to speak on Country rather than being limited to their written evidence statements. The Court found that not allowing this would limit their cultural rights. In the ongoing climate case of Pabai Pabai & Anor v Commonwealth (‘Pabai Pabai’), the Federal Court allowed evidence of Indigenous witnesses to be given on Country in the Torres Strait.^[33] Such decisions promote access to justice.

The third component of the duty is the intertemporal component, which requires states to act to protect the right of younger and future generations to a healthy environment. In Waratah Coal v Youth Verdict (No 6), President Kingham of the Queensland Land Court discussed the importance of considering younger and future generations in environmental decision-making, stating that:

The intergenerational aspect of climate change risks makes the rights of children paramount. The year 2100 is the reference point for the Paris Agreement long-term temperature goal. My generation of decision makers will be long gone, but a child born this year will be 78 years old in 2100. The principle of intergenerational equity places responsibility with today’s decision makers to make wise choices for future generations. The children of today and of the future will bear both the more extreme effects of climate change and the burden of adaptation and mitigation in the second half of this century. Their best interests are not served by actions that narrow the options for achieving the Paris Agreement temperature goal.^[34]

The final component of the correlative duty is the special obligations of the state to the vulnerable. Certain groups and individuals are more vulnerable to environmental harms, such as children, women, Indigenous people, older people, displaced people and people living in poverty.^[35] Australia’s ‘State of the Environment Report’ (2021) highlighted how vulnerable persons are more likely to experience harm from environmental events, such as heatwaves and air pollution.^[36] The plaintiffs’ statement of claim in Pabai Pabai highlights the vulnerability of Torres Strait Islanders due to the ‘extremely significant’ degree of harm from climate change to the Torres Strait Islands as small and low-lying states.^[37]

IV Reform To Realise The Right

Whilst recognition and realisation of the right to a healthy environment have progressed, in a comparatively short time period, there is still a long way to go. Judicial decisions explicating and upholding a stand-alone right to a healthy environment are important and have encouraged realisation of the right. But they are few and far between. Where the right to a healthy environment is not recognised in law, courts have had to resort to interpreting existing human rights as having some environmental content. But this may be difficult and fall short of full protection of a right to a healthy environment. Realisation of the right to a healthy environment will not therefore be achieved through the courts alone. The legislature and executive must effect changes in law and governance, not only to recognise the right to a healthy environment but also to ensure the correlative obligations to respect, protect and fulfil the right are performed.^[38]

As noted earlier, this needed reform is resisted and slow in Australia. The federal review of Australia’s human rights framework did not recommend the adoption of a right to a healthy environment.^[39] Independent Senator David Pocock (working with Anjali Sharma, the lead plaintiff in the Sharma cases) introduced a Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 to federal Parliament. This Bill proposed to amend legislation to introduce a statutory responsibility for decision-makers, who make decisions on projects which result in greenhouse gas emission, to consider the likely impact of the emissions on the ‘health and wellbeing of current and future Australian children’.^[40] However, a Senate Committee report delivered in June 2024 recommended that the Bill not be passed.^[41] The only progress is the recent amendment of the ACT human rights legislation to add the right to a healthy environment.

Legislative change is a necessary means of states realising the right to a healthy environment, by enshrining the states’ correlative duties in law. States would be compelled to respect, protect and fulfil the right and judiciaries would be granted a stronger basis upon which to enforce such action.

V Conclusion

The right to a clean, healthy and sustainable environment is an inalienable human right which comprises substantive, procedural and intertemporal components. As a claim right, the right to a healthy environment has an inherent reflexive correlative duty. The duty is a tripartite obligation to respect, protect and fulfil the right, which must be fulfilled in order for the right to be realised. The obligation to respect, protect and fulfil the right must be upheld and enforced by the legislature, executive and judiciary. Without this, recognition of the right as a human right only goes part of the way to fully realising the right.

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^* Brian J Preston FRSN SC is the Chief Judge of the Land and Environment Court of New South Wales.

¹ There are examples of court decisions which have recognised the right to life as including or necessitating a healthy environment: Ashgar Leghari v Federation of Pakistan (2015) W.P. No. 25501/2015 (4 September 2015) (Lahore High Court); Subhash Kumar v State of Bihar and others (1991) AIR SC 420 (Supreme Court of India).

^[2] United Nations Human Rights Council, The Human Right to a Clean, Healthy and Sustainable Environment, 48th sess, UN Doc A/HRC/RES/48/13 (18 October 2021, adopted 8 October 2021).

^[3] United Nations General Assembly, The Human Right to a Clean, Healthy and Sustainable Environment, 76th sess, UN Doc A/RES/76/300 (1 August 2022, adopted 28 July 2022).

^[4] African Charter on Human and People’s Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) art 24.

^[5] David R Boyd, Special Rapporteur, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, 77th sess, UN Doc A/77/284 (10 August 2022) 11 [24].

^[6] John H Knox, ‘The Global Pact for the Environment: At the Crossroads of Human Rights and the Environment’ (2019) 28(1) Review of European, Comparative & International Environmental Law 40, 42.

^[7] Human Rights (Healthy Environment) Amendment Act 2023 (ACT). See Chief Minister, Treasury and Economic Development Directorate (ACT), ‘Right to Healthy Environment Now Enshrined in the ACT’s Human Rights Act’ (Media Release, 28 August 2024).

^[8] Climate Change (Net Zero Future) Act 2023 (NSW) s 8(5).

^[9] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (May 2024) 22 [9.42].

^[10] United Nations Human Rights Special Procedures and United Nations Environment Programme, Right to a Healthy Environment: Good Practices (Report, 19 October 2020) 23–45 (‘UN Report’).

^[11] Brian Preston, ‘The Nature, Content and Realisation of the Right to a Clean, Healthy and Sustainable Environment’ (2024) 36(2) Journal of Environmental Law 159, 164.

^[12] Salas, Dino and others v Salta Province (2009) CSJN (Arg), S1144.XLIV (26 March 2009) (Supreme Court of Argentina).

^[13] ‘Founding Affidavit’ Earthlife Africa NPC v The Minister of Environmental Affairs (High Court of South Africa, 22 August 2016), cited in Pau de Vilchez and Annalisa Savaresi, ‘The Right to a Healthy Environment and Climate Litigation: A Game Changer?’ (2023) 32(1) Yearbook of International Environmental Law 3, 9.

^[14] Ibid 8–9.

^[15] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, opened for signature 25 June 1998, 2161 UNTS 447 (entered into force 30 October 2001) (‘Aarhus Convention’). Although the Aarhus Convention is a European regional Convention, accession is open to all United Nations member states with the approval of the Meeting of the Parties to the Convention: art 19(3).

^[16] Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, adopted 4 March 2018, 3397 UNTS 195 (entered into force 22 April 2021).

^[17] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted 1 July 2003, OAU Doc CAB/LEG/66.6 (entered into force 25 November 2005).

^[18] John Knox, Special Rapporteur, Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc A/73/188 (19 July 2018).

^[19] Future Generations v Ministry of the Environment and Others [2018] STC4360-2018 (Justice Luis Armando Tolosa Villabona) [Supreme Court of Colombia].

^[20] Neubauer et al. v Germany [German Constitutional Court], 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20 (24 March 2021) (‘Neubauer’).

^[21] Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; (2021) 391 ALR 1; Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774.

^[22] Minister for the Environment v Sharma [2022] FCAFC 35; (2022) 291 FCR 311 (‘Minister for the Environment v Sharma’).

^[23] Minister for the Environment v Sharma (n 22) 320.

^[24] Mahatma Gandhi quoted in Rene Provost, International Human Rights and Humanitarian Law (CUP 2002) 11.

^[25] Wesley Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23(1) Yale Law Journal 16, 31.

^[26] Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (Oxford University Press, 2017) 130.

^[27] General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant), UN CESCR, 20th sess, UN Doc E/C.12/1999/5 (12 May 1999) [15]; see also Adam McBeth et al, The International Law of Human Rights (Oxford University Press, 2nd ed, 2017) 139.

^[28] John Knox, Special Rapporteur, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc A/HRC/37/59 (24 January 2018) annex [4]–[6].

^[29] Ibid.

^[30] Preston (n 11) 164.

^[31] Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193; (2022) 296 FCR 124; Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121; (2022) 406 ALR 41; Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158.

^[32] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4.

^[33] Isabelle Reinecke, ‘A Court Among the Coconut Palms: When Justice Came to Visit the Torres Strait’, The Guardian (online, 9 October 2023) <https://www.theguardian.com/environment/2023/oct/09/climate-change-class-action-world-first-australia-torres-strait-boigu-island>.

^[34] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, [1603].

^[35] Neubauer (n 20) [251]–[255], [261].

^[36] Kathryn M Emmerson and Melita D Keywood, Australia State of the Environment 2021: Air Quality (Report, Commonwealth of Australia, 2021); Daniel J Metcalfe and Oliver Costello, Australia State of the Environment 2021: Extreme Events (Report, Commonwealth of Australia, 2021) 28.

^[37] Plaintiffs’ Further Amendment Statement of Claim, Pabai Pabai & Anor v Commonwealth of Australia, VID 622/2021, 15 March 2021.

^[38] Minister for the Environment v Sharma (n 22) 320.

^[39] UN Report (n 10).

^[40] Explanatory Memorandum, Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth).

^[41] Senate Environment and Communications Legislation Committee, Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Commonwealth of Australia, Report, 2024).