Safeguarding and Protecting the Rights of Future Generations - the Human Rights Dimension of Climate Change
I would like to begin by acknowledging the wonderful Welcome to Country this morning and pay my respects to the Tasmanian Aboriginal community, particularly their leaders, past, present and emerging, for their persistence, vision and generosity.
I will be talking today about why we need to bring climate change front and centre into our human rights thinking and why we need to look at creating institutions to represent future generations. It is great to be able to discuss this issue in a conference of human rights practitioners. Peter Lawrence from the UTAS Faculty of Law and I research all aspects of climate justice, including intergenerational justice, and are interested in developing better climate policy making and governance. We are currently researching institutions to represent future generations and normative frameworks for them based on intergenerational justice, sustainable development and human rights. The following comments draw on our joint research and thinking, but the views expressed are mine alone.
Most presentations on climate change, or the climate emergency, begin with the latest scientific report that confirms 3 things, how bad things will be; how little time there is take action-called mitigation, and how it has already started with extreme weather events, melting ice, heating temperatures etc. I am not going to go through this[1]. I will just add it has been understood for decades that future generations will be the most impacted by climate change, the impacts will be felt most by the most vulnerable, and that inaction or delaying action will make it much more expensive for future generations to take action.
I assume most of us understand the connection between climate impacts, “policy choices” that governments make about climate policy, and human rights, such as the right to life, health, food, discriminatory impacts on women and children, and indigenous people and so on. Most of us probably also understand that some “policy choices” that governments might make raise so-called “transitional justice” issues, for example, for coal mining or powerplant workers and their communities.
Still, it is important to be clear about what is at stake and why human rights institutions in Australia should engage more with climate policy making and the national conversation we should really be having. Phillip Alston, the UN’s Special Rapporteur on Extreme Poverty and Human Rights wrote a report on climate change to Human Rights Council in June this year. I will read part of the summary of the report:
Climate change threatens the future of human rights and risks undoing the last fifty years of progress in development, global health, and poverty reduction.
Governments, and too many in the human rights community [including Alston he says] have failed to seriously address climate change for decades. States are giving only marginal attention to human rights in the conversation on climate change.
Although climate change has been on the human rights agenda for well over a decade, it remains a marginal concern for most actors. Yet it represents an emergency without precedent and requires bold and creative thinking from the human rights community, and a radically more robust, detailed, and coordinated approach.
Alston was directing his comments mainly at international human rights actors, but they are relevant to all of us.[2]
Of course, the question of the interests or rights of future generations is much broader than climate change-although climate change is the existential challenge- it extends to all kinds of social and economic issues and government policy making, for example in the areas of pensions, welfare, and housing. These are not new issues- we face systemic short-termism. As the 1987 Brundtland Sustainable Development Report, Our Common Future, noted “we act as we do because we can get away with it; future generations do not vote; they have no political or financial power; they cannot challenge our decisions”.
Our institutions-political and legal-are “ill-equipped” to take these interests into account in their present decision-making. It is more complicated than just the impact of the systemic “short-termism” built into electoral cycles, we continue to suffer from “values-lag”, failures of imagination and empathy, and much worse, what the philosopher Stephen Gardener calls “moral corruption”[3].
The research Peter and I and some of our brilliant UTAS students are doing has 2 aspects- as I said earlier. First, we are looking at normative frameworks -these are ethical and legal frameworks, drawing on ideas of intergenerational justice, sustainable development, democratic legitimacy, and human rights. We are also looking at different institutions to represent future generations. Today, I am only going to talk about institutions. If you are interested in the normative aspects, I suggest looking at Alston’s report, our website: www.climatejustice.network – it includes links to articles on climate justice, and Peter Lawrence’s book Justice for Future Generations-Climate Change and International Law.[4]
On institutions, there are different models. Finland has a parliamentary Committee for the Future and New Zealand has had a Parliamentary Commissioner for the Environment for more than 30 years. There are also many relevant statutory bodies in Australia: many states have had statutory sustainability commissioners for years-but not Tasmania. And there are a few more recent innovations, such as the Commissioners for Future Generations in Hungary and Wales in the UK. The editors of a recent book said that if there is an “institutional gap” in representing the interests of future generations, it is not due to a shortage of proposals, but rather a failure to enact them[5].
In June this year, we held an experts meeting at UTAS with a mix of lawyers, political scientists, several former commissioners, students and others, with a view to developing principles and models that might be adopted in Australia and elsewhere. We also held a public forum and a youth workshop on these issues. One of the institutions we looked at quite closely was the Future Generations Commissioner for Wales and it provides good lessons for thinking about how to represent the interests of future generations. Having said that, a number of people in the experts meeting stressed the importance of understanding local conditions and not assuming one model will work everywhere. Also, we should not rely on creating a single institution as sufficient. We have to look at many different ways to integrate the principle of taking account of future generations in all our policy processes and decision-making, including public service policy making, parliamentary engagement, and the work of the many independent statutory bodies that have responsibilities that impact climate or have a role in climate responses. Similarly, we have to look more closely at engaging local actors, such as local councils and planners in considering future generations. Jonathan Boston, a New Zealand political scientist who attended our meeting, co-authored a great report in June for the NZ Parliament outlining a “menu” approach.[6] And we clearly need a menu in Australia. Nonetheless, experience in other fields and arguably the example of the Wales Commissioner itself suggests the importance of having an independent, specialised office holder or body. The interests of future generations need their own guardian.
The Wales Commissioner was created in 2015 under the Well-being of Future Generations (Wales) Act 2015. Wales, as part of the UK, is also covered by the UK Human Rights Act 1998 and the Equality Act 2010 and the UK Equality and Human Rights Commission. It also has a number of other Wales’ specific institutions, such as a Children’s Commissioner.
The Well-being Act imposes duties on Ministers and public bodies to set and act on “well-being objectives” and take reasonable steps to carry out the “sustainable development principle”. It provides for reporting and review mechanisms involving the statutory offices of the Future Generations Commissioner and the Auditor. It defines the both “well-being objectives” and the “sustainable development principle”. Under the “well-being objectives” Wales is envisaged as prosperous, resilient, healthier, more equal, has cohesive communities, vibrant culture and thriving language and is globally responsible.
Under the “sustainable development principle”, “public bodies must act in a manner which seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs.” In order to act in that manner, a public body must take account of the following things— “the importance of balancing short term needs with the need to safeguard the ability to meet long term needs, especially where things done to meet short term needs may have detrimental long term effect”.
The Act states the general function of the Commissioner is—
“(a) to promote the sustainable development principle, in particular to:
(i) act as a guardian of the ability of future generations to meet their needs, and
(ii) encourage public bodies to take greater account of the long-term impact of the things that they do, and
(b) for that purpose to monitor and assess the extent to which well-being objectives set by public bodies are being met.”
Under the Well-being Act, the Commissioner’s role is to work with Ministers, public bodies, public service boards, as well as exercising some oversight, along with the Auditor, to make recommendations, and undertake independent reviews. On its face this sounds potentially quite bureaucratic and possibly not very effective, but the current Commissioner, Sophie Howe, is very pro-active and has made a number of high-profile interventions, including opposing the proposed M4 relief road-a major infrastructure project. Recently, she has issued statements on the importance of the climate emergency and how Wales is failing to fund a climate emergency-which drilled down into the detail of needed funding in the next budget for decarbonisation [7].
The Commissioner’s role is very broad, so she is looking at many more issues than environmental issues. The Commissioner, after consultation, identified 6 priority area, “skills, adverse childhood experience, better ways to keep people well, planning, housing and transport”[8]. The Well-being Act embeds the sustainable development principle in Ministerial and bureaucratic processes and provides some oversight, transparency, accountability and a guardian advocate for future generations. It is not perfect. The “sustainable development principle” has been easily subverted in the past. Whether that principle can deliver what is needed depends on a strong future-oriented interpretation by the Commissioner. Similarly, whether the office of the Commissioner can deliver what is needed depends on its proactiveness and its “leadership”. Maxine Cooper, the former ACT Environment and Sustainability Commissioner and Auditor stressed at our June meeting that strong leadership of institutions was critical if they were to be effective.
So how realistic is it to think this model might be adopted anywhere else? For example, Tasmania? Peter Davies, one of the architects of the Well-being Act, said in our June meeting there were some clear lessons from Wales for others. The first is the importance of how the legislation is developed and this involves much more than just routine consultation. Peter Davies described a journey to ensure political understanding and support through lots of dialogue and non-confrontational meetings. Community and business consultations were also important, both in creating support for the Act and its subsequent acceptance. This process of engagement continues. Secondly, the early choice to frame the Act as about “well-being” and not about “rights” or the “environment” was important: no one wanted to argue against the well-being of future generations.
Part of the challenge for us is to think about how to start to have this kind of conversation here in what are very contested political times. It is one small step, but it feels big. We are running out of time, so we can’t wait any longer to try new things. It feels like there is a little bit more openness at the moment to having the conversation. We don’t know what the impact of the current climate protest movements, including those led by young people, will be, but governments are always making decisions and will continue to do so. We need independent voices in government structures who are empowered to participate in these decisions and people who can argue we should make decisions in a way that doesn’t impose unfair additional burdens on the poorer members of our societies or fail to consider our children or future generations. We need some guardians. However, we shouldn’t wait until we have something like a specialised institution in place. As Philip Alston said: “Human rights actors must be willing to translate States’ obligations in a way that more clearly engages with policymaking choices, or will lose relevance to this debate. “
And I would add to that, our national and state and territory human rights institutions should really engage with climate change and its impacts, including on our children and young people, as well as on future generations. The issue is not about mandates. As Alston said, the mandates are there in international human rights law[9]. It is not easy and not straightforward: there are other urgent competing priorities, minimal resources, and there will be a predictable reaction from many of our politicians and sections of the media.
In conclusion: I would like to encourage us to think about 3 things:
1. How Wales-style Future Generations Commissioners could work in Australia to complement, not displace, human rights bodies or environment bodies.
2. How human rights actors can take up Philip Alston’s challenge and also help break down the idea that we have to have institutional silos and separate categories of human rights, environment, and climate change.
3. How we can engage our communities, business, and our young people in meaningful discussions about climate change, justice, and human rights.
I am happy to answer questions later. As I said at the start, Peter and I and our great students run the Climate Justice Network at UTAS and we are very interested in the lessons we can learn from your experience in institutions from around the country. Thank you.
Jan Linehan, Safeguarding and Promoting the Rights of Future Generations, ACHRA Conference, Hobart, 18 October 2019. Jan is the co-convenor of the Climate Justice Network based at the Faculty of Law of the University of Tasmania.
[1] See the Intergovernmental Panel on Climate Change: Global Warming of 1.5º (2018)
[2] Climate Change and Poverty, Report of the Special Rapporteur on Extreme Poverty and Human Rights, 25 June 2019, A/HRC/41/39 ; see also Alston’s website-srpoverty.org
[3] S. Gardiner, A Perfect Moral Storm: The Ethical Tragedy of Climate Change (OUP, 2011).The complexity of climate change risks moral corruption which is the "illegitimate taking advantage of a position of superior power for the sake of personal gain" (Gardiner, 2011, p. 304). “It is a distortion of the way we talk about a problem from an ethical point of view, because our background incentives to deal with the problem might not be that great…. In this case some of the major victims are future generations and nonhuman nature. They can’t speak for themselves, so there isn’t that kind of pressure on us to be consistent in what we say.” https://www.washington.edu/news/2011/12/05/climate-change-stirs-perfect-moral-storm-prof-says/
[4] P. Lawrence, Justice for Future Generations-Climate Change and International Law (Edward Elgar, 2014)
[5] I. Gonzalez-Ricoy and F. Rey, Enfranchising the Future: Climate Justice and the Representation of Future Generations, in ed. I. Gonzalez-Ricoy & A. Gosseries, Institutions for Future Generations (OUP, 2016), p. 2.
[6] Jonathan Boston, David Bagnall and Anna Barry, Foresight, insight and oversight: Enhancing long-term governance through better parliamentary scrutiny, https://www.victoria.ac.nz/__data/assets/pdf_file/0011/1753571/Foresight-insight-and-oversight.pdf
[7]https://futuregenerations.wales/news/wales-is-failing-to-fund-a-climate-emergency/ https://futuregenerations.wales/news/future-generations-commissioner-for-wales-publishes-ten-point-plan-to-fund-wales-climate-emergency/
[8] https://futuregenerations.wales/fgcw-priority-areas/
[9] See the Alston 2019 report; the statement by the 5 United Nations Human Rights Treaty Committees on Human rights and Climate Change, 16 September 2019 https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998&LangID=E; the Australian Human Rights Commission, https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/climate-change-and-human-rights published 2008, accessed October 2019. The statutory mandates of state bodies, including children’s commissioners, are potentially broad enough to cover climate impacts and responses, but this requires further research.