CLIMATE CHANGE, HUMAN RIGHTS AND CANADA’S CLIMATE LAW

Introduction

Recently, Canada, recognizing the deleterious effects of climate change, passed the Canadian Net-Zero Emissions Accountability Act. The legislation formally includes Canada among the 120-odd countries that have pledged to become carbon-neutral before 2050. For a country that has consistently missed its climate targets, the law is the not only the first step in ensuring its human rights obligations of reducing emissions, but also in the larger frame it protects people and the planet from the serious harm that climate change poses. Even as it has come under fire from both opposition leaders and a few environmental groups, the consensus is that the Act is necessary. This article discusses the interplay between human rights and climate change, before critically analysing the Canadian law with reference to Canada’s history with climate targets.

HUMAN RIGHTS AND CLIMATE CHANGE

Climate change is one of the greatest threats to humanity, with wide ranging impacts on the fundamental human rights to life, health, food, livelihood and an adequate standard of living. A clean environment is paramount for the effective enjoyment of these rights. The Intergovernmental Panel on Climate Change [“IPCC”], an intergovernmental body under the aegis of the United Nations, has released reports which describe the effects of climate change on billions of people and their ecosystems. These effects are both sudden-onset events threatening human life, such as storms, hurricanes and floods, and gradual forms of environmental degradation – devastating freshwater resources, terrestrial ecosystems, coastal and low-lying regions and oceans.

Even as this link between human rights and climate change is clear, it is only recently that United Nations bodies and governments have accepted it. Various international human rights treaties, including the Universal Declaration of Human Rights [“UDHR”], the International Covenant on Civil and Political Rights [“ICCPR”] and the International Covenant on Economic, Social and Cultural Rights [“ICESCR”] have recognized this link between climate change and the violation of human rights – the spewing of greenhouse gases into the atmosphere has a direct connect to extinction of species and the destruction of ecosystems. Further, the UDHR and the ICCPR are considered customary international law, and therefore are binding on all States regardless of whether or not the treaty has been ratified. States have an obligation to respect, protect and fulfil human rights for all people – and this includes an obligation to protect people from foreseeable harm arising out of climate change.

In 2007, the Malé Declaration on the Human Dimension of Global Climate Change was adopted by the Small Island Developing States [“SIDS”], which was the first intergovernmental statement to unequivocally recognize that “climate change has clear and immediate implications for the full enjoyment of human rights.” In 2008, the Human Rights Council adopted Resolution 7/23, the first on climate change and human rights, which noted that climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights. The Human Rights Council has since passed several other resolutions that deal with the climate change-human rights connect, including Resolutions 10/4, which recognized the implications that climate change has on the effective enjoyment of a range of human rights and 26/27, which again dealt with human rights and climate change

The adoption of the Paris Agreement [“the Agreement”] in 2016 was the crescendo in the international community’s fight against climate change. It is a legally binding international treaty under the United Nations Framework Convention on Climate Change [“UNFCCC”], which calls on signatories to set emissions targets to control global warming. These targets, also referred to as Nationally Determined Contributions [“NDCs”], are contributions each country has pledged to make to achieve the worldwide goal of keeping the rise in global warming well below 2 °C (ideally 1.5°C) above pre-industrial levels. NDCs seek to make the planet climate neutral by the middle of the century, and therefore habitable for the coming generations. While the Agreement does not create obligations on Parties that have not signed it, it binds signatories to provide NDCs that represent a progression from earlier targets – in short, the Agreement makes it obligatory for signatories to enhance their targets every five years.

The adoption of the Agreement shows that States are, rightly, looking at climate change as a global problem requiring a global response, in the spirit of international cooperation. However, international cooperation does not mean that each state must necessarily take the same actions – in the words of the UNFCCC, such actions must be taken “in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions”. It is in this context the Canada’s new law dealing with climate change is to be understood.

HISTORY OF THE ACT

Under the Paris Agreement, Canada pledged to reduce its greenhouse gas emissions [“GHGs”] by 30% from 2005 levels. It unveiled its first NDC in 2016 – the “Pan-Canadian Framework on Clean Growth and Climate Change”, with the additional goals of growing the economy and building resilience to changing climate. Later in 2020, a more robust plan called “A Healthy Environment and a Healthy Economy” was released, which was intended to help the country to exceed its targets under the first plan. Further, Canada has two policies in place to combat climate change – carbon pricing, which helps industry and individuals make cleaner choices, and the clean fuel standard, which seeks to lower emissions by regulating greenhouse gas intensity in fuels.

However, Canada’s efforts were classified “insufficient” by Climate Action Tracker, an independent environmental monitoring project. Federal government data from 2019 showed that Canada was on track to miss its 30% reduction target by roughly 35%. The country is among the top 10 global emitters and one of the largest developed world per capita emitter of GHGs. Further, Canada has the shameful distinction of being the only G-7 country whose emissions increased after signing the Agreement. Climate change took its toll – from the increase in heatwaves and wildfires to the speedier melting of the Arctic and increased instances of “