Essential ESG: Episode 16 – The intersection between human rights, climate change and decarbonisation

Phoebe Wynn-Pope, Head of Responsible Business and ESG, Corrs

Eloise O’Brien, Senior Associate, Responsible Business and ESG, Corrs

Eloise: Welcome to another instalment of Corrs’ Essential ESG podcast. I am here today with Phoebe Wynn-Pope, Head of Responsible Business and ESG at Corrs. My name is Eloise O’Brien, I am a Senior Associate in the Responsible Business and ESG team and we are coming to you from the Gadigal Lands of the Eora Nation. Phoebe thanks for joining me.

Phoebe: Thanks Eloise.

Eloise: And today I thought we speak about a very topical issue which is the intersection between human rights, climate change and decarbonisation. So Phoebe before we begin I guess it is worth noting some of the significant events that have happened in the last few years. In April last year the Human Rights Council passed a resolution recognising the right to a clean, healthy and sustainable environment and that was followed by a resolution of the UN General Assembly in July making this official this new universal human right to a clean, healthy and sustainable environment. I guess I want to talk to you today a bit about what that means for the business community and in particular what ramifications they should expect from the recognition of this right.

Phoebe: Well lets go into that a little bit because I think it is really interesting thinking about how this is going to really help us understand how the environmental changes that we are going through are impacting on human rights and it was interesting that the UN High Commissioner for Human Rights described the Triple Planetary Crisis of climate change biodiversity loss and pollution as the single greatest challenge to human rights in our era. So we know we have to do something about that not only for the environment but also for people and we know that as we are doing something about climate and biodiversity loss we need to think about people along the way. So we need to make sure that we are doing this transition of our economy that we are decarbonising and that we are doing this in a way that is also respectful of human rights and I think there is lots here for us to unpack but let’s go back first to the UN General Assembly resolution and some of the substantive elements that were in that.

Eloise: Yes, so there were six substantive elements that the special rapporteur on the human rights and the environment recognised as constituting this new right to a clean, healthy and sustainable environment and those are clean air, a safe climate, access to safe drinking water and sanitation, healthy biodiversity and ecosystems, toxic-free environments in which to live and work and healthy and sustainably produced food. So quite broad Phoebe but the Human Rights Counsel before that has also identified the procedural elements of the right to a healthy environment and these are really interesting because in these three procedural elements we can see elements of the UN Guiding Principles on Business and Human Rights. So we have got access to information on the environment. That is information around actual or potential actions that may impact the environment, particularly in circumstances when communities are especially impacted by ongoing actions or future planned actions and it requires businesses to inform the public about environmental issues including for example the results for environmental impact assessment which maybe businesses will already be familiar with and already doing.

Phoebe: And in a human rights context that would be sort of similar to that requirement to communicate and to be transparent in the human rights due diligence process right?

Eloise: That is right, yes. You see the echoes of the UNGP’s throughout that and that is the same for the next procedural element which is the right to participate in decision-making. So we see similarities with stakeholder engagement more broadly. The special rapporteur emphasised that the important part is ensuring broad inclusive and gender sensitive public participation to fulfill the human rights obligations and that also applies to human rights defenders who we know are particularly at risk when they are defending the environment and then the final procedural right that the human rights counsel spoke about was access to justice so that includes access to courts to resolve claims for the right that has been violated and it requires states to ensure broad legal standing to bring claims of this nature so we are seeing a lot human rights arguments underlying and underpinning environmental litigation in Australia already and this is a really crucial step in increasing recognition of the right to a clean, safe and healthy environment under legislation and regulations so I think we are going to see a push towards that as a result of this resolution.

Phoebe: And again going back to the UNGP’s the third pillar of the UNGP’s is about remediation, it is about being able to bring claims when harm has been done and what that looks like and I think that sits very comfortably with that access to justice piece.

Eloise: That’s right and the right draws on established environmental law and human rights law principles including most relevantly the principle of sustainable development. So states should undertake measures that allow present generations to meet their needs but not at the expense of future generations being able to meet their needs. This is really critical when it comes to the right to a healthy environment because we are seeing this tension as you alluded to at the start Phoebe that we obviously need to rapidly decarbonise our global energy supply and heavy omissions industries but we can’t do so without having regard to the impacts on present populations human rights.

Phoebe: We can also think about some Australian states and territories who have already actually incorporated a right to a clean, healthy and sustainable environment into their legislation. For example in Victoria the Environment Protection Act includes a provision that states must have regard to the rights of all people to enjoy a healthy and sustainable environment. So the concept isn’t really new but I think that there has been a lot more emphasis on this right and how it provides an umbrella for the realisation of so many other rights because it is so difficult to realise the right to health or the right to clean water or the right to life even when the environment isn’t protected.

Eloise: That’s right and climate change obviously impacts a whole range of rights as you say very fundamental rights such as the right to life and the right to health etc. but it also impacts on a range of social, cultural and economic rights like rights to decent work, Indigenous peoples’ right to practise their culture, to access their traditional lands and resources and I think it is interesting to keep in mind but there is this challenging balance at all times, there is no ability to choose one right over the other. Businesses have this obligation to respect human rights under the UNGPs and now that this right has been recognised as a human right businesses are going to have to build in respect for the right to a healthy environment into their operations and their business relationships and they are going to have to think about it through the frame of human rights due diligence when they are thinking about their human rights impacts assessments. So it is going to be quite a substantial shift for business. The resolution specifically calls on business to adopt policies, enhance international cooperation, strengthen capacity building and continue to share good practise in order to scale up efforts to ensure a clean, healthy and sustainable environment for all. So the obligation isn’t just on states.

Phoebe: No that’s right and as we short of think about the decarbonisation if you like of the world’s energy supply and what that means in terms of really trying to help realise this healthy environment that we need and that decarbonisation processes is part of a process to stay aligned with the Paris Agreement. What we have discussed before in our previous podcast on the just transition what is good for the planet isn’t always inherently good for people. Today I think it would be great for us to talk a little bit more about this danger of carbon tunnel vision or decarbonisation tunnel vision if you like, that intense focus on decarbonisation at any cost and some of the human rights risks that businesses need to consider as they decarbonise.

Eloise: Yes, I think that is a really interesting place to go Phoebe because lots of businesses are very familiar with the physical risks of climate change and what that means for human rights. So diminishing global water supplies, increasing water and security, extreme weather events, extreme heat all those things obviously as we have discussed impact on human rights but what is less well understood are the human rights impacts flowing from transition risks. So transition risks are the risks that accompany the policy, legal, technological and market changes we need to transition to a low carbon economy globally. They often intersect with the human right impacts of climate change in the sense that for example many transition industries like renewable energy industries require a lot of water. Access to water is an issue that is exacerbated by the physical impacts of climate change but also by our transition activities. Obviously it goes without saying that transition activities can and do contribute positively to economic opportunities, energy access and affordability and community resilience in the face of climate change but they can equally compound and exacerbate geographic inequalities that climate change creates.

Phoebe: So there is a whole sort of climate justice piece here isn’t there. So you talk about the geographic inequality and we have seen the sort of inequitable effects on rural or regional communities even in Australia and how that plays out but also between nation states. So in developing countries whose economies rely heavily on exploiting natural resources and in particular unexploited reserves of fossil fuels, there is a massive issue in terms of what means for them to leave those fossil fuels unexploited and how they develop their economies for the future. So this sort of issue of climate justice is often left out of the discussion and we are not really going to dive into that today because that is a whole other discussion and maybe we should do another podcast on that but it is good to remember that these are extraordinarily complex issues that really require deep and careful thought.

Eloise: Yes, I think you touched on something there Phoebe that these impacts are multifaceted and it is not just transitioning into green industries that raises risks there are also the risks associated with transitioning out of fossil fuel industries or emissions intensive industries. So as we move away from fossil fuels and fossil fuel dependant growth as you were referring to for a lot of developing nations still in that phase of fossil fuel dependant growth we contend with issues like stranded fossil fuel assets and on the face of it that is a financial risk, it’s a business risk but that comes with serious risk to people because stranded assets offend means stranded communities can mean things like job and income loss, job quality deterioration in certain areas that were dependant on fossil fuel for their local industry. Geographical imbalances as you have mentioned between job loss and job creation and less investment in critical infrastructure for the communities surrounding those assets. So it is not like when a fossil fuel asset is decommissioned a renewable energy project pops up in its place with the same number and the same quality of jobs. They require different skills, different workforces and different environments often.

Phoebe: And I think we have a really great example of where these issues were not properly considered and that was the closure of the coal mines in the UK which really exposed those mining towns to human rights impacts for a long time after the shutdown of the industry and it is just sort of interesting sort of little aside I suppose to dive into it but the coal industry phase out in the UK in several stages starting from the 60s. By 1997 jobs in that industry had dropped by 90% resulting in that increase, all those dangers that you have just mentioned. An increase in unemployment, migration and poverty. Coal regions experience low employment rates and mines fell into disrepair causing environmental and health impacts for those communities and with little support for the workers and for the regeneration of industry in those areas regional inequality remains a really big issue and the populations in those areas have been experiencing higher rates of poverty and unemployment ever since. So this is what we want to avoid, like we want to learn from the lessons of the past and think about the decarbonisation properly.

Eloise: Definitely and when we are thinking about historical case studies there are also really clear parallels between the rapidly growing demand for transition minerals like cobalt and copper and conflict minerals so when we rapidly digitised our day-to-day lives in the early 2000s demand for conflict minerals like tin, tantalum, tungsten, which are all found in common consumer electronics, your phone, your laptops and cars. This demand exploded for those products and demand for conflict minerals contributed to fragility and conflict and violence dynamics in mineral-rich developing countries, we are seeing a similar thing happen now, there is massive amounts of demand for cobalt, a large proportion of which is mined in the Democratic Republic of Congo and we really need to consider the impact that demand for materials, the raw materials, required for the transition is going to lead to exploitation of those workforces, those populations. But also balance that as we said with their right to exploit their natural resources so it is a really complex issue and I think I mentioned earlier and I would like to come back to it briefly just the issue of water access because I think it is really interesting one too that draws out just another side of it. A lot of renewable energy projects will be developed on land that is already subject to water scarcity issues and projects like Green Hydrogen for example require huge amounts of water as we electrify our power supply and our cars we are going to be placing increasing demand on already stressed water systems and we just need to be constantly cognisant that the water we are using for the generation of power is also impacting on local populations’ access to that water to realise their right to an adequate standard of living.

Phoebe: Which brings us back again doesn’t it to that just transition which we have done a podcast on this you and I and we will put that link to the episode in the show notes but as a quick recap I suppose that the term ‘just transition’ refers to that idea that the transition to a low carbon economy must happen in a way that fairly shares the benefits of the transition while supporting those who will be negatively impacted. The idea of a just transition was embedded in the preamble to the Paris Agreement in 2015 which notes that those commitments are made taking into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities, this is so important and as we work to decarbonise our business in the global economy and we continue to work through what a just transition looks like businesses need to make sure that they are identifying preventing and mitigating that they are thinking about these human rights impacts of all of their decarbonisation activities.

Eloise: That is right Phoebe that is some homework for us to all go away and think about. Thank you for joining us for another episode of Essential ESG. Click follow on whatever your listening to this on so you can stay updated with new episodes.

Phoebe: Thanks Eloise.

Eloise: Thanks Phoebe.