The Power of Perspectives

The Canadian Bar Association

Justin Ling

Will climate litigation come to Canada?

November 24 2016 24 November 2016

So Canada has ratified the Paris climate agreement.

Now what?

The accord, designed to spur action on cutting CO2 emissions, though unlike the Kyoto deal not “legally binding,” has been hailed as a triumph for advancing the fight against climate change.

Some uncertainty for the deal notwithstanding - U.S. President-elect Donald Trump has offered mixed messages about the deal and, indeed, whether he believes in climate change at all - the legal community is already honing in on what the international deal means for Canada.

And there's good reason to prepare the briefs.

In 2015, before the Paris deal was struck, a Dutch court ordered the government to reduce CO2 emissions by a quarter in a landmark civil case initiated by climate activists. More recently, 21 children beat an effort to quash their lawsuit against the American government in a federal court, where they plan to argue that the government is impacting their right to live in a clean and safe environment.

Environmental and youths groups are also suing Norway's government for violating the climate treaty by awarding drilling licenses  to oil companies in the Arctic.

Canada's history with climate litigation is more scant. An attempt to force Ottawa to adhere to its own legislation, implementing the Kyoto Accord, was tossed out of a federal court in 2008.

The Paris Agreement, in theory at least, was designed explicitly to prevent litigation against laggard governments.

“The Paris Agreement is a new approach to the problem of climate change after the command and control structure of the Kyoto Protocol failed. The Paris Agreement works on peer pressure. Naming and shaming has had some success in the human rights area, and might have the same effect in climate change,” wrote EcoJustice after the deal was reached.

Andrew Gage, staff counsel for West Coast Environmental Law, says nobody should be ruling litigation out - whether it's tied to the Paris Agreement specifically, or just more generally on mitigating climate change.

He said the Dutch case is a perfect example of how the law might outpace political action.

“There are a lot of lawyers that are certainly turning their minds to that sort of case,” he told CBA National. “Though there are lots of challenges to bringing that sort of case, there are ways to structure it under Canadian law.”

Ultimately, he says, the fact that the Paris Agreement isn't enforceable per se - the fact that it has no domestic implementation act, especially - makes it harder. But not impossible.

“To litigate, clearly, yes. If you had that type of legislation, that would be one possible way to bring that case,” he says. “But I don't think I'd agree that you need that type of legislation to bring a case.”

Gage can certainly contemplate some sort of action where specific regulatory approval faces legal scrutiny in light of Canada's international obligations. But that sort of argument may be tenuous - at best. Indeed, there are other avenues available for environmental lawsuits.

The American federal case, the one featuring 21 children, makes the case that government inaction is a question of their constitutional rights to life, liberty, and property, and a matter of public trust. Gage says that structuring that sort of question around Section 7 of the Canadian Charter off Rights and Freedoms is hardly a stretch, even though it might be more difficult than in the U.S.

“I actually think a Charter case is more possible than one based on international law,” Gage said.

Even so, Canadian courts will take into account international law when interpreting the Charter.

There's no shortage of avenues for a would-be litigant to test drive some legal theory on climate changer. Gage points to the Philippines, where a human rights tribunal with constitutional powers has greenlit a process against nearly 50 massive oil and gas companies - some of which are Canadian. A formal investigation into alleged human rights abuses stemming from climate change could ensue.

Gage says that form of litigation could be coming to Canada soon.

“It's only a matter of time before we see more litigation not against governments but against fossil fuel companies,” he says.

Photo licensed under CC BY-SA 2.0, By Tony Webster - J.D. Irving Smoke Stacks,

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