Human Rights Act 2004 and environment related rights

The EDO argued for a specific environmental right when submitting to the 12-month review of the Human Rights Act 2004 (ACT) (‘Human Rights Act’):

‘The Human Rights Act should provide that everyone has the right to an environment that is not harmful to health or wellbeing, and to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures, that (i) prevent pollution and ecological degradation (ii) promote conservation and (iii) secure ecologically sustainable development and use of natural resources which promote justifiable development’.

The review did not adopt this policy position.

The impact of environmental degradation on human rights is increasingly recognised in international jurisprudence. The European Court of Human Rights has found that environmental degradation can constitute a breach of the European Convention on Human Rights Article 8 which provides for respect for family and private life. Breaches of these rights were found where there was failure by the authorities to respond to contamination on residents by waste water (Lopez Ostra v Spain [1994] ECHR 46; (1995) 20 EHRR 277); failure to provide information to the public about the risks from a nearby chemical factory (Guerra v Italy ([1998] ECHR 7; 1998) 26 EHRR 357); and failure to take action against vandalism and excessive road noise causing ill health (Moreno Gomez v Spain [2004] ECHR 633; (2005) 41 EHRR 40).

A number of countries have adopted environmental protection in a human rights context. For example, section 24 of the Constitution of the Republic of South Africa 1996 states that everyone has the right to an environment that is not harmful to their health or well-being and to have the environment protected for the benefit of current and future generations by means of preventing pollution and environmental degradation, promoting conservation and securing ecologically sustainable development.

The French Charter for the Environment provides for the right to live in a balanced environment which shows due respect for health (Art 1) and the responsibility of all to protect the environment and, in the conditions provided for by law, prevent or avoid environmental degradation (Arts 2-3).

The Constitution of the Kingdom of the Netherlands 2008 provides that the government has a duty to keep the country habitable and to protect and improve the environment (Art 21). It was based on this provision that Urgenda, a Dutch NGO, brought successful proceedings against the Dutch government, for not committing to a stronger greenhouse gas emissions reduction target to address the impacts of climate change. In June 2015, the Hague District Court found that the Dutch authorities had a duty to pursue at least the minimum level of reduction required by the country in order to address the impacts of climate change.

Internationally, the public interest in access to information, public participation and access to justice in environmental matters are recognised, including the right to review procedures to challenge public decisions. For example, these rights are specifically protected under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Aarhus Convention’) which provides for access to information about the environment and related activities or policies; right to participate in environmental decision-making that will affect a person’s interests and/or life; and the right to an effective means of appeal for redress or remedy where a person’s interests have not been adequately considered. Each of these rights are seen as fundamental principles of environmental democracy.

In Australia, there has been limited implementation of these rights within the environmental protection frameworks. It is vital that existing rights are not weakened by regressive laws introduced at the discretion of the government of the day. Rather, these rights should be regarded as foundational and strengthened. Respect for such rights not only demonstrates a commitment towards Australia’s democratic and legal systems – including the government’s openness to public and judicial scrutiny – but reflects Australia’s commitment to its obligations pursuant to international law.