Conservation, Participation and Human Rights

Australasian Conference of Planning and Environment Courts and Tribunals in Sydney

The Honourable Catherine Branson QC, President, Australian Human Rights Commission

1 September 2010

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1 Introduction

First, may I acknowledge the traditional owners of the land on which we meet, the Gadigal people of the Eora nation, and pay my respects to their elders, both past and present.

I have had the advantage of reading the paper to be delivered by Justice Kevin Bell. In the course of that paper his Honour has reviewed an impressive list of authorities touching on human rights and the environment. This has left me free to address the issue from a different perspective. I propose to give consideration principally to the present state of international law in this area.

Increasingly recognition is being given internationally to the interdependence of human rights and the environment. It is no longer possible, assuming that it ever was, to assert, that the human rights community is concerned only with individuals and the environment community is concerned only with the protection of the environment. Such a dichotomy is an oversimplification of what is a complex relationship between two complimentary causes. The truth is that environmental conditions impact on the enjoyment of human rights; in the absence of a healthy environment many human rights cannot be protected and promoted. Moreover, it is important that we protect the dignity of all people living in the present while at the same time preserving the earth for future generations.^[1]

Our ability to meet the needs of the present without compromising the ability of future generations to meet their own needs is captured by the phrase ‘sustainable development’. Sustainable development promotes a strategy for development that seeks to marry environmental protection with economic and social development.^[2] The concept is informed by environmental law, human rights law and international economic law. For the purposes of this speech, I will focus on the intersection of environmental law and human rights.

The link between the environment and human rights was first made nearly 40 years ago in the Stockholm Declaration of 1972 which states:

Man has the 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, and he bears a solemn responsibility to protect and improve the environment for present and future generations.^[3]

In 1994, the United Nations released a report which was among the first to identify clearly the interdependency of human rights and the environment. The report examined the linkages between the right to development, participatory democracy, Indigenous rights, cultural rights, the right to life and the environment.^[4] Then, in 2002, a United Nations’ convened group of experts acknowledged a need to support the growing international movement towards a right to an environment of quality. They also affirmed the indivisibility of the full catalogue of human rights, including those related to and necessary for environmental protection and preservation.^[5]

While international consensus builds around the exact content of a right to a certain standard of environment, existing human rights can be employed to achieve environmental protection.

Any discussion of human rights, including whether to green existing human rights or to recognise an explicit right to a clean and healthy environment, will always require a balancing act. The practical application of human rights law is only rarely about absolutes. It is more often about balancing different rights with one another, with responsibilities and with competing public interests.

What I hope to demonstrate today is the possibility, or perhaps the duty, that exists to make human rights a very real part of decisions made in specialised planning and environment courts and tribunals. In order to do this, I will first examine what is meant by the right to environment. Then I will consider the relationship between the right to environment and other human rights and finally I will reflect on the ways in which specialised planning environment courts can strengthen and improve the protection of human rights in their jurisdictions.

2 What is the ‘Right to Environment’?

Human rights and human rights law are evolving and dynamic concepts. There is no international treaty that expressly states a human right to a clean and healthy environment.^[6] Any discussion of environmental rights must recognise, then, that this area is an emerging area of human rights jurisprudence. The exact content of the right to environment remains to be firmly cemented in international law. There is, however, considerable ‘soft law’ in the area which is likely to guide the process. International declarations and decisions of international, regional and national courts have tended to adopt one of three approaches to framing the relationship between human rights and the environment.

These instruments and decisions tend to recognise either:

• an explicit and substantive right to a clean and healthy environment,
• the right to environment as a part of the body of economic, social or cultural rights, or
• the right to environment as a part of the body of civil and political rights.

I will look at each of these approaches in turn.

2.1 A substantive right to the environment

The strongest formulation of the right to environment is that of a substantive right to a clean and healthy environment. There are growing numbers of countries that recognise the right to a certain standard of environment as an explicit constitutional or statutory right.^[7] However, while there are now 119 countries that have incorporated constitutional protection of the environment, ^[8] the specific content of that protection and corresponding responsibility is incredibly diverse.^[9]

There are some constitutions that create a ‘negative’ right by, for example, imposing an obligation on the state and individuals to prevent harm to the environment or by formulating the right as being to an environment that is not harmful to health and well-being. ^[10]

Others contain both a right and a duty – for example the Spanish Constitution which asserts the right to a standard of environment suitable to the development of the person as well as a duty to preserve it.^[11]

Others go even further, by recognising the right to have the environment protected for the benefit of future generations.^[12] The Philippines Supreme Court has found that the constitutional right to ‘a balanced and healthful ecology in accord with the rhythm and harmony of nature’^[13] implies the right of the current generation of youth to assert a right to preserve the environment for future generations.^[14]

There is also a difference between those countries that recognise an individual right to a certain quality environment and those that create a general public right to protection.

While the variety in formulation makes it difficult to speak confidently of the specific details of any right to environment, I do not hesitate to say that state and international practice shows an emerging consensus around the indivisibility of human rights and the environment.

2.2 The relationship between the right to the environment and economic, social and cultural rights

One emerging area of consensus is that a quality environment is a precondition to the enjoyment of other economic, social and cultural rights.^[15] This approach focuses on protecting and preserving the environment because of its inherent value to dignity and humanity.^[16] Our decisions about how and when to use and protect the environment have implications for the full range of economic, social and cultural rights including the right to work, the right to economic development, the right to privacy and family life, the right to adequate food and even the right to life.

This was most clearly expressed in a decision of the International Court of Justice, in which Judge Weeramantry stated:

The protection of the environment is ... a vital part of contemporary human rights doctrine.... It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.^[17]

I would like to illustrate the relationship between the right to the environment and economic, social and cultural rights by looking particularly at the cultural rights of Indigenous peoples. In Australia, this approach has particular resonance for Aboriginal and Torres Strait Islander communities.

Recognition of the enhanced rights of Indigenous peoples in relation to culture and the environment is gaining momentum at the international level, most recently in the United Nations Declaration on the Rights of Indigenous Peoples.^[18] The Declaration recognises the right of Indigenous peoples to the conservation and protection of the environment and to the productive capacities of their lands, territories and resources.^[19]

The Declaration also enhances the procedural protections of Indigenous peoples. The Declaration obliges States to consult and cooperate in good faith with Indigenous peoples.^[20] The Declaration requires ‘effective’ participation as opposed to consultations designed as public relations tools or to rubber-stamp official policy.^[21] The duty to consult applies whenever a State decision may affect Indigenous peoples in ways not felt by others in society and is aimed at reversing the historical pattern of exclusion from decision-making. ^[22] The obligation for consultation is consistent with and complementary to a State’s obligations under other international human rights treaties.^[23]

Earlier this year, the United Nations Expert Mechanism on the Rights of Indigenous Peoples released a report on Indigenous peoples and the right to participate in decision-making.^[24] The report emphasised the importance of free, prior and informed consent of Indigenous peoples to any decision that will affect them, including the approval of any project affecting their lands and territories and other resources. The principle of ‘consent’ is not designed to give Indigenous people a veto power over development projects. Rather, it is designed to build dialogue in which State and Indigenous peoples work in good faith towards consensus.^[25]

It is in this area of participatory and procedural rights that the environment community and the human rights community have reached the strongest agreement.

2.3 The relationship between the right to the environment and civil and political rights

The procedural rights to information, to participation and to access to justice are of fundamental importance to the protection and enforcement of all human rights. This is reflected in developing international reliance on existing civil and political rights to give access to environmental information, judicial remedies and political processes.^[26]

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, known as the Aarhus Convention and widely ratified in Europe, focuses entirely on procedural rights in an environmental context.^[27] It does so in recognition of the fact that public participation will enhance the quality as well as the implementation of decisions about the environment.^[28]

This approach can be particularly helpful in jurisdictions, like Australia, that do not have an express right to a clean and healthy environment.

Australia is, as many of you will know, the only western democracy without overarching legislative or constitutional protection of human rights. In Australia and other countries which have limited express protection of human rights, the role of the judiciary in protecting and enforcing access to justice principles, which correspond closely to accepted human rights norms and values, is all the more important.

In the context of decisions about complex environmental policy, the European Court of Human Rights has held that a human rights framework requires certain procedural safeguards to be met, including:

• appropriate investigation and study to predict and evaluate in advance the effect of activities in relation to the environment and individuals’ rights
• providing members of the public access to those studies and to information which would allow them to assess the damage to which they are or may be exposed
• rights of appeal where an individual considers his or her interests have not been given sufficient weight in the decision-making context.^[29]

While this framework accords with the existing principles of procedural fairness, affording procedural fairness to all who are negatively affected by a decision is a challenging concept for those working in the field of environmental law. How do you determine exactly which class of person is affected by a decision that relates to the environment, the use of resources or the protection of an endangered species? As evidenced by those countries that have applied the right to a clean and healthy environment to future generations of unborn children, one may have to cast the net very far and very wide when determining who is negatively affected by a decision that impacts on the environment.

Procedural rights can be of great importance in safeguarding the rights of those who may be adversely affected by land use decisions. Even where it exists, a substantive right to a clean environment is meaningless without ‘the procedural (and related) rights necessary to pursue respect, protection and promotion of that right’.^[30]

3 The role of Land and Environment Courts and Tribunals in strengthening human rights promotion and protection

So what does this mean for members of specialised planning and environment courts and tribunals?

I return to one of my first observations – about the delicate balancing act required where judgments must be made that impinge on the environment. The exercise of discretion invariably involves a certain degree of normative judgment. I believe that where there is a judicial discretion to be exercised, it is preferable that it be exercised in accordance with internationally accepted human rights principles rather than by reference to the, sometimes unconscious, subjective values or opinions of the decision-maker.

The importance of this approach is illustrated by the following observation from the judgment of the Constitutional Court of South Africa in Government of the Republic of South Africa v Grootboom 2001(1) SA 46 (CC). In that case the court said: The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality and freedom. It is fundamental to an evaluation of the reasonableness of a State action that account be taken of the inherent dignity of human beings.

4 Conclusion

I began by speaking about the growing recognition of interdependence between human rights and the environment. Given the demonstrable strength of that relationship, it is useful to ask ourselves what the international human rights regime requires from governments, judges, lawyers and individuals when developing environmental law and policy.

As a first step, we must recognise and strengthen the growing international practice, however articulated, of encouraging respect for the right to a clean and healthy environment.^[31]

We would also do well to remember that human rights discourse depends not only on the law conferring adequate legal rights and entitlements, both substantive and procedural, but also on effective legal, political, economic and cultural systems to make those entitlements meaningful.

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^[1] Speech by Mary Robinson, High Commissioner for Human Rights, Civil Society Workshop on Human Rights, Sustainable Development and Environmental Protection, 1 September 2002, available at http://www.unhchr.ch/huricane/huricane.nsf/view01/A551686D4B5905D0C1256C28002BF3D6?opendocument^[2] Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner at the International Sustainability Conference, Academic Forum of Regional Government for Sustainable Development, 17-19 September 2003.

^[3] Declaration of the United Nations Conference on the Human Environment (the Stockholm Declaration), UN Doc A/Con/48/14/Rev.1 1973, principle 1.

^[4] Final report prepared by Mrs Fatma Zohra Ksentini, Review of Further Developments in Fields with which the Sub-Commission Has Been Concerned, Human Rights and the Environment, UN Doc number E/CN.4/Sub.2/1994/9, 6 July 1994.

^[5] Office of the High Commissioner for Human Rights Meeting of Experts on Human Rights and the Environment (2002), available at http://www2.ohchr.org/english/issues/environment/environ/conclusions.htm^[6] See Preston, B, ‘The environment and its influence on the law’, 82 Australian Law Journal 180, 2008

^[7] See for example the Constitutions of South African (article 24), Spain (article 45), Russia, Hungary (article ), Korea (article ), Portugal (article ), East Timor (section 61), France (Environment Charter article 1) and the Philippines (article II s 16).

^[8] Earthjustice, Environmental Rights Report on Human Rights and the Environment (2008) 37.

^[9] See for example, Justice Susan Glazebrook, ‘Human Rights and the Environment’, (2009) 40 VUWLR.

^[10] See for example, Then Constitution of the Republic of Algeria Title I, Chapter V, Article 66; the Constitution of Argentina article 41; the Republic of the Kingdom of Cambodia article 59; the Constitution of the Kingdom of the Netherlands article 21; the South African Constitution article 24. For a full list of constitutional provisions, see Earthjustice, Environmental Rights Report on Human Rights and the Environment (2008).

^[11] Article 45

(1) Everyone has the right to enjoy an environment suitable for the development of the person as well as the duty to preserve it.

(2) The public authorities shall concern themselves with the rational use of all natural resources for the purpose of protecting and improving the quality of life and protecting and restoring the environment, supporting themselves on an indispensable collective solidarity.

(3) For those who violate the provisions of the foregoing paragraph, penal or administrative sanctions, as applicable, shall be established and they shall be obliged to repair the damage caused.

^[12] Article 24: 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.

^[13] Constitution of the Republic of the Philippines, 1987, Art II, s16.

^[14] Allen, T, ‘The Philippines Children’s Case: Recognising Legal Standing for Future Generations’, The Georgetown International Environmental Law Review, Volume 6, Issue 713, 1993- 1994.

^[15] Alan Boyle, Human Rights and the Environment? A Reassessment’, (2007) Fordham Environmental Law Review Vol XVIII.

^[16] S James Anaya, ‘Human Rights, Environment & Community: A Workshop: Conference held at University of Buffalo Law School, April 17 & 18, 1998: Environmentalism, Human Rights and Indigenous People: A Tale of Converging and Diverging Interests’, 7 Buffalo Environmental Law Journal 1, Fall 1999/Spring 2000.

^[17] See Australian Centre for Environmental Law, ‘Greening the Proposed Australian Capital Territory Bill of Rights’, Submission to the Bill of Rights Consultative Committee in deliberations on whether the Australian Capital Territory ought to establish a Bill of Rights,; also United Nations Declaration on the Rights of Indigenous Peoples.

^[18] United Nations Declaration on the Rights of Indigenous Peoples article 29.

^[19] United Nations Declaration on the Rights of Indigenous Peoples, article 32.

^[20] United Nations Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, Third session, Study on indigenous peoples and the right to participate in decision-making, 12-16 July 2010.

^[21] James Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Promotion and Protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, UN Doc A/HRC/12/34, 15 July 2009.

^[22] Committee on the Elimination of Racial Discrimination, UN Doc CERD/C/RUS/CO/19, 20, 2008 para 24; Committee on Economic, Social and Cultural Rights, General Comment No. 21, E/C. 12/GC/21, para 37.

^[23] United Nations Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, Third session, Study on indigenous peoples and the right to participate in decision-making, 12-16 July 2010.

^[24] James Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Promotion and Protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, UN Doc A/HRC/12/34, 15 July 2009.

^[25] Alan Boyle, Human Rights and the Environment? A Reassessment’, (2007) Fordham Environmental Law Review Vol XVIII.

^[26] Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), 38 ILM (1999) 517. In force 29 October 2001.

^[27] Aarhus Convention, Recitals.

^[28] Taskin v Turkey [2006] 42 EHRR 50 at [118]-[119].

^[29] Marie Soveroski, ‘Environmental Rights versus Environmental Wrongs: Forum over Substance?’ (2007) 16 Review of European Community and International Environmental Law261, 261.

^[30] Earthjustice, Environmental Rights Report on Human Rights and the Environment (2008).