Refugee Law & Climate Change

Kiribati is a small island nation that may soon be gone. It is forecasted to be the first nation to become a victim of climate change and all of its citizens will be forced, involuntarily, to find another home. In an unprecedented decision, the UN Human Rights Commission ruled that a citizen of Kiribati, Mr. Ioane Teitioto, shall not be deported by New Zealand due to threats related to climate change. This decision is the first in a sea of change, I believe, that will lead to a significant expansion of Canadian refugee law.

A Brief History of the “Eco-Refugee”

The inevitable destruction of the nation of Kiribati is a predictable consequence of climate change and it signals a looming global crisis. This crisis has been on the horizon for decades. Back in 2010, I edited an article by Professor Peter Shower, “The Plight of the Eco-Refugee” for the Briefly Speaking, published by the Ontario Bar Association. As noted by Peter:

It is generally accepted that the Convention definition of a refugee does not protect the environmentally displaced. The Convention does not apply to internally displaced migrants and the harm feared must be due to a Convention ground: race, religion, nationality, political opinion or membership in a particular social group. This element of the definition eliminates natural catastrophes.

At the time, Haiti suffered after a divesting earthquake in 2010. The coordinated international response, largely based on the network from 2004 when a tsunami devastated parts of Asia, came to the aid of many Haitians and even 10 years later, much of Haiti has not recovered. It is very clear the trend is towards increasing severity and frequency of these environmental catastrophes.

I agreed with Peter in 2010; alas, as far as I am aware, the article and its call for reform fell on deaf ears.

One Non-Binding Decision

Indeed, very little has changed in the past 10 years … until this recent ruling by the 18 members of the UN Human Rights Commission. This decision is, of course, non-binding on Canadian adjudicators or any other signatory countries around the world. In my view, however, the decision is persuasive and comprehensive in its analysis.

As noted by Melanie Gallant, head of communications for UNHCR Canada:

In its decision, the UN Human Rights Committee has made clear that returning a person to a country where they face a risk to their life, or a risk of serious mistreatment, as a result of climate change-related environmental degradation would violate the International Covenant on Civil and Political Rights.

UNHCR is calling this decision a “wake-up call” to signatory countries, including Canada. This is not a decision that can be simply cast aside. It may have been true back in 2010 when our issue of Briefly Speaking focused on environmental issues barely made any ripples or in 2015 when Mr Teitioto’s initial claim for refugee protection was denied by New Zealand. Indeed, I believe 2020, or possibly this decade, will be the time for action and the claims of eco-refugees may finally be accepted as “valid” in law. In the UNHCR statement urging a “wake-up call”:

UNHCR has consistently stressed that people fleeing adverse effects of climate change and the impact of sudden and slow-onset disasters may have valid claims for refugee status under the 1951 Refugee Convention or regional refugee frameworks. This includes but is not limited to situations where climate change and disasters are intertwined with conflict and violence.

Indeed, as aptly noted by UNHCR, refugee claims that have ties to climate change or environmental disasters may be accepted when the claims are linked with civil unrest, political violence or conflict that may be argued separately from the risks directly related to environmental disaster.

Canadian Context

The question becomes how claimants from nations like Kiribati who come to Canada seeking protection based on the effects of climate change will be handled by the Immigration and Refugee Board – Refugee Protection Division (IRB-RPD). Under Canadian law, a claimant may be conferred with status pursuant to either section 96 or section 97 of IRPA. Briefly, section 96 includes the language from the Convention as outlined by the enumerated categories listed by Peter above. Section 97 confers refugee stats to people in need of protection and RPD Members may grant status under either section.

Climate Change

Generally speaking, RPD Members are sympathetic to refugee claimants in Canada and I have seen dozens, if not hundreds, of claimants receive positive decisions here subsequent to refusals from Immigration judges in the USA. I have given numerous presentations on these issues. We continue to live in a world where asylum claimants in the USA are denied basic rights and they are prevented from presenting their evidence or from having access to counsel.

In his article, Peter Showler calls for action on the part of the United Nations:

The more promising approach is a comprehensive set of guiding principles comparable to the U.N.’s Guiding Principles on Internal Displacement. […] Some will criticize the proposals for being non-binding but that is the only means by which nations will meaningfully engage in long-term preparatory discussions on protection.

The above quote is from 2010, as far as I am aware, no such long-term discussions have taken place and the situation has become increasingly dire.

Bill Frelick, Refugee Rights Director at Human Rights Watch, is calling for an expansion of the definition of refugee to include claims based on risks from climate change:

This means not only that our common understanding of what it means to be a refugee needs to change, but also that the 173 countries that are party to the International Covenant on Civil and Political Rights should ensure their asylum standards and procedures are adapted to protect all who face existential threats if returned to home countries that have become unliveable.

Ideally, Parliament would act to expand the definitions of a refugee in Canada; however, that may not be necessary.

“Membership in a Particular Social Group”

A potential solution may be to find nexus between those individuals who are fleeing environmental destruction and the enumerated group of “membership in a particular social group” per section 96 of IRPA. This category allows for interpretation and may allow for sufficient flexibility from adjudicators to confer refugee status on claimants without changes to statute.

Currently, this category is being interpreted differently by signatory governments. For example, in Canada, women who are the victims of domestic violence have been accepted as part of this category; however, in the USA, those same women have been denied claims on the same evidence. The Tamil passengers of the MV Sun Sea were first conferred refugee status by the RPD on this basis and then, on appeal, that decision was reversed by Justice Noel of the Federal Court of Canada.

It is clear that the “membership in a particular social group” may be interpreted differently by decision-makers. The question will be whether eco-refugees may fit within this definition or whether it will take an act of Parliament to amend our laws. The only certainty of this situation is that climate change is going to increasingly affect our lives. The people from Kiribati are going to need another home once their island nation is completely uninhabitable. At this point, fewer than a million souls are at immediate risk of seeking eco-refugee status. As another environmental disaster looms on the horizon, we urgently need a robust refugee system that acknowledges the current climate change crisis.

Note: This post has also been published on Slaw.ca where Alastair Clarke is a Contributor.