Right to a Healthy Environment

Right to a Healthy Environment

Section 27C of the Human Rights Act 2004 says that:

  1. Everyone has the right to a clean, healthy and sustainable environment.
  2. Everyone is entitled to enjoy this right without discrimination.

Note 1  Section 28 sets out what must be considered in deciding whether a limit on rights is reasonable.

Note 2  Aboriginal and Torres Strait Islander peoples hold distinct cultural rights in relation to the land and waters and other resources (see s 27 (2) (b)).

Scope of the right

The human right to a clean, healthy and sustainable environment (or ‘the right to a healthy environment’) recognises the close relationship between human rights and a clean, healthy and sustainable environment. A healthy environment is vital to the enjoyment of a range of human rights including rights to life, equality, security, privacy, and culture. Similarly, the exercise of other human rights like freedom of expression and participation in political affairs helps people to work toward better environmental protection, conservation and sustainability.

Section 27C is based on the United Nations (UN) General Assembly’s 2022 recognition of the right to a clean, healthy and sustainable environment (resolution 76/300), in response to the crises of pollution, climate change and biodiversity loss.

A standalone right to a healthy environment builds on obligations under other human rights as they relate to the protection of the environment. These existing obligations have been carefully set out in reports by the UN Special Rapporteur on the Human Right to a Clean, Healthy and Sustainable Environment. Clarifying the specific scope and content of the right to a healthy environment is ongoing, as is the case for all human rights.

Substantive protections

The Special Rapporteur has said that the right to a healthy environment contains at least six ‘substantive’ elements that governments must respect, protect and promote. These are:

  • a safe climate
  • clean air
  • healthy ecosystems and biodiversity
  • access to safe and sufficient water and adequate sanitation
  • healthy and sustainable food
  • a non-toxic environment in which to live, work, study and play.

Governments must not cause or permit harmful interference with aspects of the environment that undermine the enjoyment of other human rights. They must also protect these elements from harmful interferences by third parties (e.g. industry, private actors) and natural causes, and take effective steps toward their full realisation (e.g. conservation of biodiversity, sustainable use of ecosystems). In particular, governments must adopt, enforce and strengthen laws and other frameworks that respond to environmental harm that violates human rights.

Procedural guarantees

The right to a healthy environment also contains three ‘procedural’ elements that are critical for effective environmental protection. These are:

  • access to information
  • public participation in environmental decision-making
  • access to justice and effective remedies.

Governments must assess whether their activities have environmental impacts that threaten human rights, and provide these assessments in a timely, equitable and affordable way for members of the public. Governments must provide genuine opportunities for the public to voice concerns about, and influence, decisions affecting the environment (e.g. developments, district plans, proposed laws). Environmental human rights defenders like journalists and activists, must also be protected from intimidation, criminalisation and violence.

‘Access to justice’ requires access to effective remedies for environmental harms (past, present or future) that breach human rights, including through the courts and complaints bodies. These pathways should be impartial, independent, affordable, transparent and fair, have adequate funding and expertise, and provide timely and binding decisions.

Special obligations

The right to a healthy environment has special importance for those who may be especially impacted by or at greatest risk from environmental harms. This includes people living with disability, older people, women, children, minorities, and those experiencing poverty, discrimination or marginalisation.

Governments must ensure equal enjoyment of the right, including for people or groups who are likely to be more severely or frequently affected by environmental damage. Governments may need to take active steps to remove barriers to enjoying a healthy environment, by identifying, forewarning, educating and protecting those at greatest risk from environmental harms.

The right to a healthy environment has unique significance for Aboriginal and Torres Strait Islander peoples, given their spiritual, personal and cultural connections to Country, and they may be particularly affected by environmental challenges or damage. The meaning of a healthy environment should therefore be informed by cultural understandings of Country.

Progressive realisation and obligations of immediate effect

The right to a healthy environment does not prohibit all activities that would degrade or harm the environment (e.g. development, mining, agriculture). Reasonable limits may be applied to how the right is enjoyed in order to achieve other important public interests, but only in the way intended by s 28 of the Human Rights Act.

Unlike most other rights in the Human Rights Act, which must be given immediate effect, some aspects of the right to a healthy environment in s 27C can be achieved progressively over time. The concept of ‘progressive realisation’ requires deliberate, ongoing and targeted steps to fully realise the right as promptly as possible; and this timeframe can be assessed relative to the maximum resources available to the government.

Other aspects of the right to a healthy environment can be immediately realised and must not be delayed based on available resources. These include:

  • Ensuring the minimum essential levels of the substantive elements (e.g. clean air, safe and sufficient water): their availability, physical accessibility, affordability and safety.
  • Upholding the procedural elements, being access to information, participation in environmental decision-making and access to justice and effective remedies.
  • The right of every person to enjoy the right to a healthy environment without discrimination, including taking positive steps to ensure equal enjoyment of the right.
  • Refraining from unjustified retrogressive (backward) steps in terms of environmental protection. Retrogressive measures may only be taken if all alternatives have been considered, and they are justified in accordance with the limitation criteria in s 28 of the Human Rights Act.

Note:  ACT Courts and the ACT Civil and Administrative Tribunal will not be able to consider arguments that a public authority failed to properly consider or act consistently with the right to a healthy environment (required in s 40B of the Human Rights Act). This limit will apply until October 2028, pending a review of the new right.

When this right could be relevant

  • Flora and fauna conservation
  • Biosecurity and fisheries
  • Storage and use of hazardous chemicals
  • ACTPS fleet procurement and transport
  • Air quality measurement
  • Emergency and bushfire management
  • Minimum standards for residential tenancies
  • Planning and development, including public consultation processes
  • Cultural heritage and Aboriginal stewardship of Country
  • Water auctions
  • Waste management/regulation of plastics

Cases about human rights and the environment

In Billy et al v Australia (Communication No. 3624/2019), the UN Human Rights Committee found that Australia had failed to take timely and adequate measures to protect indigenous Torres Strait Islanders from the adverse impacts of climate change, which violated their rights to culture and to be free from arbitrary interferences with their private life, family and home.

Noting the lack of constitutional or federal human rights protections, the Committee also found that there were no available or effective domestic remedies for Daniel Billy and other petitioners to enforce their human rights.

In Öneryıldız v. Turkey (2005) 41 EHRR 20 (30 November 2004), the European Court of Human Rights found that national authorities had failed to take necessary and sufficient steps to safeguard the lives of 39 people killed in landslides caused by the methane explosion of a municipal rubbish tip that engulfed nearby illegal dwellings.

Although inhabitants had been warned in writing of the risks of living nearby, the Court held that the establishment and ongoing operation of the refuse tip in contravention of relevant waste-management standards, and inaction in the face of an immediate and foreseeable risk to life, violated the right to life of the applicant’s relatives.

In Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 5) [2022] QLC 4, the Queensland Land Court decided to hear evidence from four Aboriginal and Torres Strait Islander witnesses on country about the impacts of climate change on the enjoyment of their cultural rights, rather than by written statement. The Land Court considered this necessary to meet its obligation as a public authority under the Human Rights Act 2019 (Qld) to uphold the witnesses’ cultural rights, by respecting their cultural protocols about transmitting traditional knowledge on country and in the company of elders.

In Verein KlimaSeniorinnen Schweiz and Others v Switzerland (ECtHR, Grand Chamber, Application No. 53600/20, 9 April 2024), an association of older Swiss women argued that the Swiss Government had violated their right to private and family life by failing to take necessary steps to protect their lives, health and physical integrity from the impacts of climate change, including more frequent and longer heatwaves.

Having considered relevant scientific evidence (e.g. Intergovernmental Panel on Climate Change reports) and relevant international commitments to lower greenhouse gas emissions, the Court held that governments have a duty to adopt, and effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. Critical gaps in Switzerland’s efforts to combat climate change, including delays in acting and failing to quantify national greenhouse gas emissions limitations, meant that Switzerland fell short of meeting this duty.

In Inhabitants of La Oroya v Peru (Press Release, Inter-American Court of Human Rights, Judgment of 27 November 2023), Peru was held responsible for failing to adequately protect inhabitants of the Andean city of La Oroya from toxic air, water and soil contamination by a private metallurgical smelter complex.

According to the Court’s press release, the Court found that inadequate environmental standards, monitoring, enforcement and retrogressive measures had violated inhabitants’ rights to health, personal integrity, life, access to information, political participation, children’s rights and the right to a healthy environment, protected in the San Salvador Protocol. Peru was ordered to provide specialised medical assistance and compensation to the victims, investigate and prosecute those responsible, and publicly acknowledge its wrongdoing.

Related rights

While all human rights are interrelated, rights in the Human Rights Act that directly inform and complement aspects of the right to a healthy environment include:

  • life
  • equality and non-discrimination
  • privacy, family, correspondence and home
  • freedom of opinion and expression
  • participation in public affairs
  • liberty and security of person
  • right to work and work-related rights
  • right to fair hearing
  • protection of family and children
  • cultural rights of Aboriginal and Torres Strait Islander peoples.

Related resources

This information is not intended to be a substitute for legal advice.