Still advocating for Environmental Rights as Human Rights. Evidence from Alberta, and innovative proposals for Nova Scotia

The Pembina Institute recently compiled three case studies related to energy development in Alberta, in an effort to document the adverse effects on individuals, communities and regions that result from weak environmental laws or regulatory enforcement.  The Environmental Law Centre in  Alberta also  published a series of reports in late 2016, including a module, Substantive Environmental Rights , which discusses environmental rights as a human right. Since 2014, the Blue Dot campaign, led by the David Suzuki Foundation and Ecojustice ,  has been advocating for environmental rights to be enshrined in the Canadian Charter of Human Rights and Freedoms.

Now, from the Pembina Institute comes The Right to a Healthy Environment: Documenting the need for environmental rights in Canada.  It consists of:  Case Study #1:  Individual impacts of intensive hydraulic fracturing activity in rural Alberta   ;  #2 Community impacts of air pollution in urban central Alberta (related to coal-fired electricity plants), and #3 Regional impacts of oilsands development in northern Alberta   (which examines the rights of First Nations).

In Nova Scotia, the Nova Scotia Environmental Rights Working Group of the East Coast Environmental Law Association  released their proposed and innovative  Nova Scotia Environmental Bill of Rights  on April 21 2017.  The bill states that the people “have a right to a healthy and ecologically balanced environment”, and that the “primary responsibility” to protect and conserve that environment falls to the province.  It also states that “there is a history of environmental racism in Nova Scotia that has disproportionately and negatively affected historically marginalized, vulnerable, and economically disadvantaged individuals, groups or communities, particularly Indigenous People and African Nova Scotians”.  The bill is based on the Precautionary Principle, the Polluter Pays Principle, the Non-Regression Principle, the Intergenerational Equity Principle, and the Principle of Environmental Justice and Equity.  Nova Scotians go to the polls in a general election on May 30; a guide to the policy positions of the Liberal, Conservative and NDP parties is here at the CBC website.  According to the Ecology Action Centre in Halifax, the provincial NDP party has pledged to support an Environmental Bill of Rights .

 

 

 

 

Case studies of Community and human rights impacts of Renewable energy companies, and a ranking of multinationals in Ag/Food, Apparel and Mining

renewable energy investor briefing coverAn April 2017 report from the London-based advocacy group,  Business and Human Rights Resource Centre asks,  “What adverse impacts can renewable energy projects have on communities around the world?”   Renewable Energy investor briefing: Managing risks & responsibilities for impacts on local communities  (April 2017) is directed at financial and investment professionals who are considering investment in renewable energy projects- in this report, comprised of wind and small-to-medium hydro, but excluding solar .  It starts from the premise that Just Transition principles are essential, then explains the international human rights responsibilities of companies.  The report also provides examples of the kinds of questions that should be asked in shareholder meetings and before investment decisions are made, and gives examples of best practice policies – for example, inclusion of community benefits agreements.  One of the main issues it discusses is the right to free, prior and informed consent of Indigenous peoples, which is an ongoing topic monitored by the BHRC.

The report provides case studies, including  six positive examples, including: the Ixtepec community-owned wind project in Mexico; the Jeffreys Bay Wind Farm in South Africa; and  a cluster of wind projects in Jämtland, Sweden, for which OECD guidelines are being used in negotiations between the company and affected Indigenous people.  The full suite of case studies is presented in a searchable database which allows searching by company name, issue, country, and more.  There are no Canadian projects included in the 2017 report, although a profile of Ontario Power Generation  is available as part of the Centre’s ongoing database  of human rights in the energy sector  .

In March 2017, the Centre also launched an updated and expanded  Corporate Human Rights Benchmark website , which ranked 98 of the world’s largest publicly traded companies, from the  Agriculture, Apparel, and Extractive industries. The Benchmark is intended to drive a “race to the top” and is directed at business, government, and “ to empower civil society, workers, communities, customers, and the media with better public information to reward, encourage, and promote human rights advances by companies and make well-informed choices about which companies to engage with.”  A 50 page summary report is here .  There are six thematic measurement categories, including “ Company Performance: Human Rights Practices”  which  includes rankings related to living wage, freedom of association and right to bargain collectively, health and safety, amongst others.

The Women’s March was a huge success. Next up – Sustained Resistance

toronto women's march jan 2017.jpgUnionists were among the hundreds of thousands of Canadians who joined in the Sister Marches for the Women’s March in Washington on January 21, 2017 .  The Canadian Labour Congress statement of “Why we March” is here  .  Unifor’s President Jerry Dias  endorsed the March and called for a “united mobilization effort” against the Trump agenda.  The March was an undeniable success,  and the Washington organizers, quoted in a Globe and Mail report,  recognized:   “This is more than a single day of action, this is the beginning of a movement – to protect, defend and advance human rights, even in the face of adversity. ”

Jeremy Brecher of Labor Network for Sustainability tackles this issue for U.S.  labour unions in “How Labor and Climate united can trump Trump” . After cataloguing some of the worst threats under a Trump administration , he calls  for “an alliance of unions and allies willing to fight the whole Trump agenda”  and states: “Such a “big tent” needs to include unions that are not part of the AFL-CIO, such as SEIU, Teamsters, and National Education Association. Some unions may choose not to join because they are unwilling to take a forthright stand against the Trump agenda; it would be both absurd and catastrophic for that to prevent the rest of the labor movement and its allies from taking on a fight that is about the very right of unions to exist.”

The United Resistance, led by the  NAACP, Greenpeace USA, and the Service Employees International Union, is chief among these new alliances, pledging to “stand together”  on the issues of civil rights, immigrants, women’s reproductive rights, social equality, action on climate change, public health and safety, public dissent, and access to information. Their inspirational video is here , as well as a list of the alliance members. The AFL-CIO is not listed as a member of the United Resistance, though their recent blogs oppose Trump’s nominees, and they promoted the Women’s March.   For more about the United Resistance, see  “More than 50 Organizations Launch United Resistance Campaign as Trump’s Cabinet Hearings Begin”  in Common Dreams (Jan.10).

In a second article , SOCIAL SELF-DEFENSE: Protecting People and Planet against Trump and Trumpism ,  Jeremy Brecher borrows a term from the Solidarity movement in Poland 40 years ago, and takes a larger, more global focus.  He writes that “Social Self Defense includes the protection of the human rights of all people; protection of the conditions of our earth and its climate that make our life possible; the constitutional principle that government must be accountable to law; and global cooperation to provide a secure future for people.”  “Social Self-Defense is not an organization – it is a set of practices to be engaged in by myriad organizations, hopefully in close coordination with each other.”  Although the article highlights a number of examples, such as the growing Sanctuary movement in the U.S.,  and case studies of alliances, including  Vermont Labor Council Initiates Social Self-Defense ,  the overriding impact is to emphasize the scale of the task: “These actions appear to be on the way to being the greatest outpouring of civil resistance in American history.”

International Criminal Court expands its priorities to include cases of environmental destruction

The International Criminal Court in The Hague, normally associated with war crimes of violence, on September 15  issued a new Policy Paper  which expands the terms of its case selection and prioritization  to include cases relating to “the destruction of the environment and the illegal exploitation of natural resources or the illegal dispossession of land.”  The Guardian summarized developments on September 15:  “ ICC widens remit to include environmental destruction cases” in The Guardian (Sept. 15) , and Global Witness issued a press release: “Company executives could now be tried for land grabs and environmental destruction”. The policy change comes as the  Prosecutor of the ICC considers whether to investigate a 2014 case filing that catalogues mass human rights abuses linked to systematic land seizures in Cambodia.  Global Witness, an advocacy group, published On Dangerous Ground in  June 2016,  documenting the extent of the problem:   “More than three people were killed a week in 2015 defending their land, forests and rivers against destructive industries. … we documented 185 killings across 16 countries – by far the highest annual death toll on record and more than double the number of journalists killed in the same period.”

berta-caceres-770x4702015 was also the year of the murder of Berta Cáceres,  the 2015 Goldman Environmental Prize-winner for her decade-long opposition to the Agua Zarca hydroelectric dam on her community’s land in Honduras.

The State of Climate Change Litigation: Can Canada and the U.S. follow Urgenda?

The landmark Urgenda decision in the Netherlands  in June 2015 has ignited and re-ignited activity around the world, around the prospect of using litigation to fight climate change . “Unlawful or Above the Law? ” in the CCPA Monitor (Nov/Dec. 2015) reviews the Urgenda decision in detail, and puts it in the context of Canadian policy and historical legal cases which have challenged Canada’s withdrawal from the Kyoto Protocol.   A fuller treatment of the article, titled Canada’s Failure to Reduce Greenhouse Gas Emissions (October 31, 2015) appears on the Lawyers’ Rights Watch Canada website . The authors advocate a legal challenge to Canada’s GHG emissions reduction policies. Much of the legal argument is based on the concept of environmental rights as human rights; a Canadian pioneer on this issue is David R. Boyd, whose article “ The Constitutional Right to a Healthy Environment” appeared in Environment Magazine in 2012  . (a fuller treatment appears in his book The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (2012)).   A more recent publication by Ecojustice, The Right to a Healthy Environment: Canada’s Time to Act    (2015) , acknowledges a large debt to Boyd’s work, and the BlueDot movement  of the David Suzuki Foundation works in practical ways towards the goal. In December 2015, Toronto became the 100th municipality in Canada to pass a declaration supporting its residents’ right to a healthy environment . Climate Change: Tackling the Greatest Human Rights Challenge of our Time (Feb. 2015) by the Center for International Environmental Law and CARE considers how to address the issue within the UNFCCC process.

Regarding liability for climate change damages, West Coast Environmental Law in B.C. and the Vanuatu Environmental Law Association released Taking Climate Justice into our own Hands  on December 8, 2015  “which explains the legal basis for climate-impacted countries to set the rules for climate damages lawsuits and how those rules can be enforced against international fossil fuel polluters.” Further, the authors propose language for a Climate Compensation Act, based on common law and thus adaptable to in any country in the world. (Vanuatu released a Statement for Climate Justice in June 2015  ).  A newly-launched blog series by the Alberta Environmental Law Centre promises “to provide updates on climate change law developments and include insights from our related law reform research.”

The Sabin Center for Climate Change Law at the Columbia Law School, New York, publishes compendium of cases in the U.S. and non-U.S. , and maintains a database called Climate Change Laws of the World . In 2015, the Center published Climate Change in the Courts: An Assesment of non-U.S. climate litigation , as well as Climate Change and Human Rights 2015  (in cooperation with UNEP). The introduction states: “The question is no longer whether human rights law has anything to say about climate change, but rather what it says and how it can best be brought to bear. This report is the most detailed and comprehensive study yet undertaken of those questions”.

In a November 2015 blog, “Failure to take climate action is not only morally wrong, it’s illegal” Michael Burger discusses the Urgenda and Ashgar Legari case in Pakistan, and links them to current climate change cases in the United States.   Most high profile of these have been led by Our Children’s Trust, arguing for the right of children to live in a healthy environment. In November in Washington State  , Judge Hollis Hill ruled in favour of youth, stating that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.” Other cases are being pursued by Our Children’s Trust in Massachusetts, North Carolina, Pennsylvania, and Colorado. In August 2015, Our Children’s Trust filed a landmark constitutional climate change lawsuit against the federal government in the U.S. District Court of Oregon; plaintiffs include 21 young people and climate scientist Dr. James E. Hansen, serving as guardian for his granddaughter and for future generations. The complaint document is here; the plaintiffs request a court order requiring the President to implement a national plan to decrease CO2 to a safe level, defined as 350 ppm by the year 2100. In January 2016, a judge granted intervenor status  in the case to the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers ,the American Petroleum Institute, and other energy industry groups. To watch for: March 9, 2016: the first oral arguments will be heard in a Eugene Oregon court.

Internationally, cases claiming damages from climate changes are underway in the Philippines and Peru .  To keep up to date internationally, follow eLaws News by the Environmental Law Alliance Worldwide (ELAW) , who have also published Holding Corporations Accountable for Damaging the Climate (2014)   . The Center for International Environmental Law  also focuses on climate liability and climate justice.