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 “100-year floods”, the ruinous effects are glaring.

So, in 2019, the government announced targets of net-zero GHG emissions by 2050. Achieving net-zero emissions means either emitting no GHGs or offsetting emissions through environmentally friendly practices like afforestation. In April 2021, Prime Minister Justin Trudeau announced plans to enhance emission reduction targets for 2030 to 40-45% below 2005 levels – this constitutes a new NDC target that will soon be communicated to the UNFCCC.

This culminated in the passing of Bill C-12 by the Canadian Parliament. Bill C-12 received Royal Assent on 29th June 2021, making it law – the Canadian Net-Zero Emissions Accountability Act [“the Act”].

A CRITICAL ANALYSIS OF THE ACT

The Act marks the first time a Canadian government has legislated emission reduction targets, obligating the current and future governments of Canada to plan the path to net-zero emissions. Human Rights Watch observed that the Act will help increase transparency and accountability in the effort to meet climate change commitments. The Act enshrines the both the commitment to plan steps to achieving net-zero emissions by 2050, as well as the new NDC target of reducing emissions by 40-45% by 2030. It establishes the Net-Zero Advisory Body, an independent group of experts, to advise the Minister of Environment and Climate Change on achieving net-zero emissions by 2050. It also takes into account indigenous knowledge in the climate accountability process – the Net-Zero Advisory Body must have experience in or knowledge of the same so as to be able to make effective recommendations. Further, to ensure the country is heading on the right track, there are provisions for intermediate targets in 2035, 2040 and 2045, as well as three progress reports submitted latest by the end of 2023, 2025 and 2027. There will also be a comprehensive review of the Act in 2026.

The law was passed after extensive dialogue with stakeholders as well as citizens, and the current form of the legislation has addressed several of the issues with the draft. For example, the draft did not include the interim progress reports, and instead the first review would have been in 2030. This would have made accountability scant, exempting the current government of any real checks. The current legislation also clearly defined the range of the expertise of the Advisory Body, something that the draft lacked.

The Act has even spurred action from the fossil fuel sector, one of the largest contributors of emissions. Companies controlling 90% of Canada’s oilsands production have announced plans to reach net-zero by 2050.

While the strengthened law has been called “ground-breaking”, and rightly so, it has been subject to criticism as well. Critics have pointed to the climate legislations of other countries, like the United Kingdom and New Zealand, as golden standards. The Canadian law falls short.

Firstly, the Act has no effective enforcement mechanisms. If the government misses its self-imposed targets – it simply has to admit it did, and table a report stating why. In short, there is no legal obligation on the government to meet its targets. Especially considering that the 2018 IPCC Report said that we only have 12 years to course correct before climate change wreaks irreversible havoc on the planet and its people, we cannot afford to have delays of the sort this law allows. Secondly, the Advisory Body was targeted for not being truly independent – for the members are appointed by and serve the Environment and Climate Change Minister. Thirdly, the law fails to couple “carbon budgets” (cumulative carbon dioxide emissions allowed in a period of time) with the emissions targets. Opponents of the Act point to the huge success of the United Kingdom’s utilization of carbon budgets. Adequately responding to the criticism, the Advisory Body has been looking into the possibility of enshrining carbon budgets into law, but it is to be seen if anything comes of it.

Fourthly, it has also been criticized as being a top-down mandate that makes climate change a completely federal concern – with no mention of any defined structure for the role Provinces will play in reaching net-zero. And finally, ambitious as the targets are, Human Rights Watch has asserted that they are a far cry from the 60% reduction required for Canada to meet its fair share in global emissions reduction efforts.

THE WAY FORWARD

The Act constitutes a very strong foundation in developing the urgently-required accountability-based framework. The five-year targets will ensure certainty in governmental policies with regards to climate change. The heightened scrutiny the Act places on the commitment to net-zero will spur governmental and private actions (such as the pledge from the fossil fuel sector) in pursuance of the same. The Net-Zero Advisory Body, despite serving the Minister for Environment and Climate Change, is highly experienced, and is therefore expected to give objective recommendations that blend both scientific and indigenous knowledge. Further, the fact that the Advisory Body is looking into carbon budgets shows that the government is committed to delivering a law that meets the needs of the times, and it is hoped that it will look into other shortfalls in the law, including the federal concern as well as the need for enhanced targets. It is expected that if the government comes out with a comprehensive plan to reach net-zero, the country will both boost its economy and meet its commitments under the Paris Agreement. Certainly, the Act is flawed, but it is critical in Canada’s – and by extension, the planet’s – battle against climate change.


Title Image: iPolitics


This article has been written by Revati Sohoni. Revati is a second year law student at NLUJ, Jodhpur.