Human Rights Meets Climate Change Litigation in Canada

December 18, 2019

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Climate change litigation – legal action that seeks relief from the negative effects of climate change – has arrived in Canada and isn’t going away anytime soon. Lawsuits currently before the courts claim breaches of Canadians’ basic human rights to life, liberty, and security of the person (section 7 of the Canadian Charter of Rights and Freedoms), to equality (section 15 of the Canadian Charter of Rights and Freedoms), and to the right to live in a healthy environment (section 46.1 of the Québec Charter of Human Rights and Freedoms). How did we get here?

There is widespread agreement among the world’s scientific community (>97%[1]) that the cumulative greenhouse gas emissions from human activity are the underlying cause of the rapid global warming and associated environmental deterioration we are in the midst of today. These changes, collectively referred to as climate change, present novel environmental, socioeconomic, and health-related challenges at global and local scales[2]. Despite the certainty of the relationship to climate change, few multilateral steps have been taken by governments to effectively curb escalating global greenhouse gas emissions or mitigate the most damaging effects of climate change.

For example, Canada failed to meet (and eventually withdrew from) its Kyoto Protocol commitments, it missed two separate targets it committed to in the 2009 Copenhagen Accord, and is on pace to fall short of its 2020 target[3]. The design of the Federal Government’s current carbon pricing system is also unlikely to deliver Canada’s emissions reduction targets of the Paris Climate Agreement[3]. Furthermore, even if the Paris Agreement’s goal of limiting global warming to well below 2oC is met, it will fall short of preventing the degree of global warming associated with unprecedented environmental, socioeconomic, and health-related damages[4]. Particularly controversial here is the fact that the Canadian Government, through its non-partisan endorsement of international climate agreements and its own commission of climate change studies, fully acknowledges the harm that human-induced climate change is actively inflicting. The preamble of the 2018 Greenhouse Gas Pollution Pricing Act reads:

“…there is broad scientific consensus that anthropogenic greenhouse gas emissions contribute to global climate change;…recent anthropogenic emissions of greenhouse gases are at the highest level in history and present an unprecedented risk to the environment, including its biological diversity, to human health and safety and to economic prosperity”[5].

The reluctance to act adequately can be understood partly by recognizing that the emissions implicated in climate change come from the very sources of energy, agriculture, commercial products, and processes that enable the incredible quality of life enjoyed in the developed world. Furthermore, access to those traditionally carbon-intensive necessities has the capacity to lift the developing world out of poverty. Ensuring that access in a sustainable way remains an incredible challenge[6]. The current status quo is nevertheless incompatible with the need to soften the impacts of climate change. Given this reality, a tool has emerged among activists trying to hold governments and large emitters accountable for reigning in greenhouse gas emissions: climate change litigation.

Climate change litigation is developing into two broad categories in Canada: 1) persons suing large emitters for damages caused by climate change[7], and 2) persons suing the Government to hold them accountable for meeting emissions reduction targets. It is this within this second category that claimants in 2 cases currently before Canadian courts are seeking declarations that the Government’s inaction has led to breaches of their basic human rights[8][9].

On November 26, 2018 the non-profit educational organization, ENvironnement JEUnesse (ENJEU), filed an application to the Québec Superior Court for authorization to bring a class-action lawsuit against the Federal Government on behalf of Québécois aged 35 and younger[9]. The proposed lawsuit seeks, among other things, a declaration that the Canadian Government is failing to protect class members’ fundamental rights protected under the respective Canadian and Québec charters, and a court order compelling the Government to take more aggressive action to prevent further harm to those rights. On June 6, 2019, ENJEU presented its arguments before the Québec Superior Court.

In its filing[10], ENJEU cited historical inaction and the adoption of inadequate emissions reduction targets, which the Federal Government acknowledges are harmful to human life and health, as having specifically violated class members’ fundamental right to life and security of the person (section 7 of the Canadian Charter; section 1 of the Québec Charter)[11]. The adoption of inadequate targets is alleged to have put the environment and its biodiversity at risk, thus infringing class members’ right to live in a healthy environment in which biodiversity is preserved (section 46.1 of the Québec Charter)[12]. Finally, ENJEU argued that the societal, economic, and health-related burdens of climate change have a disproportionate impact on its class members because historical Government inaction, compounded by the inadequacy of present policy, both shifts and increases the burden of the costs to the younger generation. The lopsidedness of who will ultimately pay those costs forms the basis for the claim of breach of the right to equality (section 15 of the Canadian Charter).[13]

Justice Gary Morrison of the Québec Superior Court ultimately dismissed the application for having not met the criteria necessary for authorization of a class action lawsuit[14]. Specifically, the proposed class of claimants was deemed arbitrary, partly by virtue of the fact that the negative effects of climate change are not the exclusive burden of people 35 and younger[15]. For this and other technical reasons, Justice Morrison suggested that a class action lawsuit is not the appropriate legal vehicle for the particular claims and the resolution sought[16]. Given this finding, it was not the Court’s role to deliberate the strength of the alleged human rights violations made by ENJEU, or whether the facts and evidence presented justified the conclusions sought[17]. Nevertheless, Justice Morrison’s is the first written decision on climate change litigation provided by a Canadian court, and it leaves the door open to future lawsuits. Importantly, the decision offers several key analytical insights that foreshadow how future climate change lawsuits involving Charter violations may be approached as a matter of law by the courts.

One hurdle facing climate change lawsuits that allege Government breach of fundamental Charter rights is their justiciability (i.e. the limits on legal issues over which Canadian courts can exert their authority). Justice Morrison found that ENJEU’s claims, specifically the Government’s failure to implement and uphold adequate emissions reduction targets, effectively challenged the exercise of Executive power (the Prime Minister and their Cabinet)[18]. This is because the Federal laws that govern things like carbon pricing, emission standards, energy portfolios, etc. are often the implementation of the corresponding policies of the democratically elected Prime Minister and their Cabinet. Under normal circumstances the courts refrain from questioning or interfering with the Executive head of power because the Constitution confers decision-making power on the Executive[19]. However, when the exercise of Executive power may infringe upon Charter rights, the Supreme Court of Canada has made clear that it is the inevitable duty of the courts to intervene so as to ensure the integrity of the Constitution[20][21]. Furthermore, section 24(1) of the Canadian Charter provides that courts may apply remedies in instances of Charter violations for the purposes of influencing government conduct and deterring practices that threaten future Charter rights[22].

In addition to the courts’ obligation to intervene where policies of the Executive head of power actively infringe Canadians’ Charter rights, the Supreme Court also teaches that the courts have a duty to intervene where inaction (omission) on the part of the Executive results in Charter infringements[21]. As Justice Morrison suggests, there may therefore be precedent for the courts to act when it comes to the debate of whether or not the historical Government inaction on climate change has infringed Canadians’ Charter rights[23]. The question would then be whether or not government omissions can be said to have specifically caused the specific harms that compromise fundamental Charter rights.

Justice Morrison’s decision highlights one component of Canadian governmental policy that alone might serve to uniquely frame climate change litigation in Canada. Where the governments of certain countries have denied the current and future effects of human-induced climate change, the Canadian Government has acted the opposite, playing a very active role in advancing international awareness. As a result of this policy, the Government has acknowledged the present and future harm that climate change inflicts on human health, the environment, and the economy[24]. Moreover, the Government directly attributes those harms to greenhouse gas emissions. There may thus be no escaping the courts acknowledging the causation between greenhouse gas emissions and the harms claimed in climate change lawsuits as a matter of fact. Hence, the question could be: in the context of global historical emissions, can the Canadian Government’s role be said to have caused the harms that threaten the fundamental rights of Canadians? Specific language in the preamble of the 2018 Federal Greenhouse Gas Pollution Pricing Act hints that the Government may have already accepted its capacity to influence the harm that climate change inflicts upon Canadians:

“…Parliament recognizes that it is the responsibility of the present generation to minimize impacts of climate change on future generations”.

If it can be established that Government inaction has seriously infringed certain fundamental rights of Canadians, the Constitution provides one outlet through which it can be justified: section 1 of the Charter refers to the reasonable limits to which Charter rights are guaranteed. In defining the limits that justify government infringement, the courts most notably require that it be backed by a “pressing and substantial objective”[25]. This naturally leads to the speculation that, faced with future climate change litigation, the Canadian Government might respond by citing a multitude of pressing and substantial societal, economic, health, and national security objectives that have prevented more aggressive action to curb emissions.

As the global climate crisis escalates, the eyes of the world will undoubtedly fall on our judges and the Canadian Government while these issues are born out in the courts. They have the potential to provide landmark decisions that not only shape the future of human rights in Canada, but of how we as a society approach the challenging environmental, health, energy, and economic landscapes of the near future. If one thing is certain, it’s that climate change litigation will continue to grow in Canada and the rest of the world. There are no fewer than 1, 390 active climate change lawsuits against governments and corporations across 25 countries[26]. In Canada, on August 16, 2019, ENJEU filed an appeal of Justice Morrison’s Superior Court decision to the Appeal Court of Québec. On October 25, 2019, fifteen youths from across the country filed a separate climate change lawsuit against the Canadian Government in Federal Court in Vancouver (La Rose et al. v The Queen)[9]. At stake are alleged section 7 and section 15 Charter violations, as well as the Government’s failure to uphold its common law and Constitutional duty to protect essential public trust resources[27].

Volunteer Author:  Nicholas P. Ettinger, University of Calgary, Faculty of Law.

 

[1] Carlton et al. 2015

[2] IPCC, 2018: Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty

[3] Perspectives on Climate Change Action in Canada—A Collaborative Report from Auditors General—March 2018

[4] Paris Agreement first iteration not enough to prevent unprecedented damages.

[5] Greenhouse Gas Pollution Pricing Act

[6] IEA, Energy Access Outlook 2017 https://blogs.scientificamerican.com/guest-blog/using-natural-gas-to-reduce-energy-poverty/

[7] City of Victoria supports suing oil & gas companies

[8] Environnement Jeunesse c. Procureur général du Canada 2019 QCCS 2885

[9] La Rose et al. v The Queen filing

[10] ENJEU filing

[11] Ibid at ps 2.82-2.87

[12] Ibid at ps 2.88-2.90

[13] Ibid at ps 2.91-2.96

[14] Superior Court Decision: Environnement Jeunesse c. Procureur général du Canada

[15] Ibid at ps 116-123

[16] Ibid at para 143

[17] Ibid at para 144

[18] Ibid at para 55

[19] Section 9, Constitution Act, 1867

[20] Operation Dismantle v R [1985] 1 S.C.R. 441

[21] Doucet-Boudreau v Nova Scotia (Minister of Education) [2003] 3 S.C.R. 3

[22] Vancouver (City) v Ward [2010] 2 S.C.R 28

[23] Superior Court Decision: Environnement Jeunesse c. Procureur général du Canada at para 66

[24] Ibid at ps 91-95

[25] R v Oakes [1986] 1 SCR 103

[26] Sabin Center for Climate Change Law

[27] La Rose et al. v The Queen filing at para 7