The UN says access to a healthy environment is a human right. Here’s what it means for Australia

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The United Nations recently declared that access to a clean, healthy and sustainable environment is a universal human right.

The statement was the culmination of a hard-fought global campaign that followed last year’s recognition of the right by the UN Human Rights Council. It’s been a long road to get here as right was first recognized 50 years ago in the historic Stockholm Declaration.

You may hear this news and wonder what it will mean. After all, UN member states do not have to comply with the resolution. But in fact, it’s better news than it sounds.

When the UN passed a resolution recognizing the human right to water in 2010, countries around the world working to change their constitutions and introduce new programs to improve water management.

So will Australia join the rest of the world and introduce the law?

These resolutions are catalysts

Such as David Boyd, the UN independent expert on human rights and the environment explains

“These resolutions may seem abstract, but they are a catalyst for action and they empower ordinary people to hold their governments to account in a very powerful way.”

While most countries have already legally recognized the right to a healthy environment, Australia is one of the last 37 holdouts.

While Australia voted in favor of the statement, the government has not yet released an official statement in response or mentioning the right under the new Climate Change Act 2022.

If Australia refuses to implement the right under national law, it becomes even more of a global outlier.

It will also be in the international spotlight, again, the failure of the government to federal human rights law – and leave the government with the difficult task of reporting to the international community on the lack of progress.

Australia’s track record of environmental and human rights protection is already the subject of global scrutiny, thanks to the UN Human Rights Commission’s recent finding that Australia failed to protect Torres Strait Islanders from the effects of climate change and violated their human rights.

With the UN now supporting the right to a healthy environment, it will be much harder for the government to justify its exclusion, especially in light of the increasingly apparent impacts of climate change and the latest damning State of the Environment report.

What would it take to legally recognize the right?

While the federal government could try to enshrine the law in the Constitution, it would be highly unlikely to pass in a referendum. That is because constitutional amendment is very difficult. It has succeeded only eight times since 1901, and no new express human rights have ever been introduced.

Since recognition at the federal level would be challenging in the absence of a national charter of rights, the best bet is through state and territory human rights law.

At present, the Australian Capital Territory is: consult on whether or not to add the law to its human rights law. Queensland missed the opportunity to include the law under its law a few years ago, so the ACT will be the first Australian jurisdiction to do so.

Recognition would mean that law should be considered part of government decision-making in the ACT. It would provide people with a legal opportunity to sue government agencies for failing to take due account of or act in accordance with the law. And it would give courts the power to declare laws “incompatible” with the law.

Not only that, but any new legislation should include accompanying details about the legal implications. For example, if the ACT government were to attempt to pass laws that would lead to increased water pollution or increased greenhouse gas emissions, it would have to formally justify those consequences.

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Of course, this wouldn’t stop parliament from passing legislation that violates the law, but it would ensure lawmakers would focus on the issue before a bill became law.

As others have noted, the ACT and Victorian rights charters make it more likely that human rights issues will be addressed and resolved before a law is passed.

Giving environmental protection teeth

Obviously, this is not a panacea for Australia’s environmental problems.

But legal recognition will help. In Latin America, Europe and Asia, the right helped to strengthen environmental protection laws and policies, and encouraged stricter legislation. Importantly, the law has also prevented governments from: roll back effective laws introduced by their predecessors.

Legal recognition in Australia could open new avenues to improve environmental protection and challenge questionable environmental decision-making.

Depending on how the law is recognized, it can also help disputes about climate change. Right now, advocates seeking to initiate rights-based legal action against climate change must rely on other rights.

That includes the groundbreaking case to challenge a proposed colliery in Queensland on human rights grounds. Because the right to a healthy environment was not available, objectors have used a range of other rights, such as the right to life, to support their argument against climate change.

Other climate disputes have been forced to turn entirely to other jurisdictions. For example, the federal court recently issued a high-profile climate case invoking tort law, which deals with civil wrongs.

The court ruled that the Australian government had in fact no duty of care to Australian children to protect them from climate change. If the right to a healthy environment had existed, the outcome would have been possible could have been very different.

The time has clearly come for Australia to join the rest of the world and recognize this fundamental human right under the law.

Australian court overturns historic climate ruling

Provided by The Conversation

This article was republished from The conversation under a Creative Commons license. Read the original article.

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