On March 9, 2023, the Marine and Environmental Law Institute hosted Marcos A Orellana, the Special Rapporteur on Toxics and Human Rights (SR Toxics), as the 14th Annual Douglas M Johnston Lecture . The talk was entitled: ‘A Human Rights-based Approach to the New Treaty on Plastic Pollution’ and a recording is available here.
This lecture could not be timelier. A March 2022 United Nations Environment Assembly resolution created an intergovernmental negotiating committee tasked with developing an internationally binding instrument to tackle plastic pollution using a full lifecycle approach. The first negotiating session was concluded in December 2022in Uruguay, with the second set for France in May 2023. As part of its background work for these negotiations, the United Nations Environment Programme (UNEP) released a background document on Plastic Pollution Science, which concluded in part that at the heart of the plastics crisis is the “resource-inefficient, linear, take-make-waste plastic economy”. In 2021, the SR Toxics released a report entitled The Stages of the Plastics Cycle and Their Impacts on Human Rights which examines the human rights impacts of each stage of the linear fossil-fuel-based plastics cycle, from extraction to production, transportation, use and waste generation, and waste management and disposal. This human rights-focused report complements reports by UNEP such as the 2021 From Pollution to Solution: A Global Assessment of Marine Litter and Plastic Pollution. The OECD has also been studying the problem and in 2022 released its Global Plastics Outlook. A common theme is that at most only 9% of plastic waste is in fact recycled (15% is collected), and that OECD countries generate almost half of global plastic waste with the United States then Canada shamefully at the top of the list (by far) in terms of the most plastic waste generated per person (see p42 OECD). Unfortunately, fossil-fuel based virgin plastic production continues to increase at a rapid rate with no sign of slow down despite increasing awareness of the problem and initiatives to address it (see for example the work of the Ellen MacArthur Foundation and the Minderoo Foundation’s Plastic Waste Makers Index).
From a Canadian perspective, the timeliness of this lecture is equally evident. The federal government has taken preliminary steps to address the problem of plastic pollution through the Canadian Environmental Protection Act (CEPA) by listing plastic manufactured items as toxic and adopting a narrow single-use plastic ban (Single-use Plastics Prohibition Regulations) following its own 2020 science assessment. Unfortunately, ‘Big Plastic’ industry players including Dow Chemical, Imperial Oil, Nova Chemicals Corp. and the ‘Responsible Plastics Coalition’ are challenging the federal government’s regulatory initiatives in two lawsuitslaunched to date. Two provinces are intervening in support of the current challenge, with Alberta’s intervention fueled by its growing petrochemical sector. Environmental groups represented by Ecojustice are intervening in support of the federal government.
From my own perspective, there is a need to reconcile the Canadian plastics industry’s hostility to regulatory initiatives with work I recently undertook on behalf of Dalhousie for UNEP, the Coordinating Body on the Seas of East Asia (COBSEA) and SEA Circular, with support from Sweden Sverige. Over the last two years, working with a team of graduate and JD students at the Marine & Environmental Law Institute, and with input from regional partners WWF Philippines and the Indonesian Business Council for Sustainable Development, we developed and delivered (virtually) trainings on a human rights-based approach to plastic pollution. The third training took place in August, 2022, as we contributed to SEA Circular’s regional dialogue series event “Achieving a Circular Plastics Economy through Human Rights-Based Approach (HRBA) and Extended Producer Responsibility (EPR)”. SEA Circular’s mandate is to reduce harmful plastic waste in the region and sees attention to human rights and gender equality as key components of market-based solutions. This includes the right to a clean, healthy and sustainable environment, and the responsibility of business enterprises to respect human rights in accordance with the UN Guiding Principles at each stage of the plastics life cycle, with the ultimate aim to transition to a circular economy with zero plastic waste, an objective endorsed by the Canadian Council of Ministers of the Environment in 2018. SEA Circular has made available a link to a webinar of this training, and has published our training materials along with many others resources on their knowledge hub. This includes an issue brief, a detailed policy training resource, PowerPoint slides (3 modules), checklists for businesses, governments, and civil society, and a toolbox of resources.
We relied extensively on the work for the SR toxics in the development of these materials, as well as insights from the UN Working Group on Business and Human Rights, and OECD Responsible Business Conduct guidance tools. There is more work to do in refining this work, updating it, and grounding it in local contexts and cases studies. This includes Canada. For example, the protection and support of human rights defenders and civic spaces is an important responsibility of both governments and businesses and key to enable the exercise of procedural environmental human rights. Businesses also have a responsibility to ensure that they do not undermine the ability of states to meet their own human rights obligations. This includes the right to a clean, healthy and sustainable environment, recognized in a resolution of the UN General Assembly in July 2022 with Canada voting in favour, and something that the federal government’s (incomplete) plastics initiatives are taking steps to realize. Importantly, failure to reduce plastic waste in Canada, something that single-use plastic bans aim to achieve, has human rights and environmental justice implications for states and individuals in the COBSEA region, as developed states including Canada have a long history of sending plastic waste overseas – out of sight, out of mind. It is long past time to tackle the plastics crisis with ‘all hands on deck’ and ‘every tool in the toolbox’.