A recent decision by the Federal Court of Appeal confirms that governments enjoy relative freedom when developing legislation, even when laws may impact traditional aboriginal rights. The decision at issue stems from legislative activity taken by the previous Harper government when it introduced bills C-38 and C-45 — both controversial on account of its reliance on omnibus budget bills to make major statutory reform, which critics charged were not subject to adequate parliamentary scrutiny.
Though the bills courted public discontent, protests and eventually spurred the Idle No More movement, there has been relatively little court action on these “behemoth” budget bills. That changed in Courtoreille v. Canada, an application for judicial review of C-38 and C-45 filed by Chief Steve Courtoreille and members of the Mikisew Cree First Nation.
In their application, Chief Courtoreille and the Mikisew Cree state that the purpose of the billsare to reduce federal oversight in environmental matters.
Environmental litigation promises to make headlines in 2017, as some major cases are likely to be heard or decided in different courts around the globe. Here’s an overview of five trends to keep an eye out for.
1. As Earth’s warming trend continues, citizens sue for action
Climate change litigation gained momentum in 2016 with lawsuits launched against several governments and multinationals.
The right to a livable climate and environment, as articulated in Article 112 of Norway’s constitution, is the basis for legal action by environmental groups suing the country’s national government.
At issue is whether Norway’s decision to award new exploration licences in the Barents Sea violates the right of citizens to a healthy environment. Coming off the heels of a Dutch court decision in 2015 (still under appeal), which ordered its government to cut emissions by 25 per cent by 2020, a Norwegian re-think of offshore oil and gas development would go a long way in forcing governments to take action on climate change.
Last week, eight provinces and all three territories signed the Pan-Canadian Framework on Clean Growth and Climate Change, with a view to meet the country's target to reduce emissions by 30 per cent, relative to 2005, by 2030. Provinces who are already well on their way to meeting the framework include Ontario, Québec and Alberta. Opposing the framework are Saskatchewan and Manitoba, each for their own reasons. Those who have signed on have yet to announce the exact measures they will take to match the federal timetable.
Kinder Morgan’s Trans Mountain pipeline may have gotten the nod from Ottawa. But proponents would be wise to draw some legal lessons from the dismissal of Enbridge’s proposed Northern Gateway Project. In May 2016, the National Energy Board reported seven court challenges to the Trans Mountain project from environmental groups, municipalities and indigenous communities. The Trans Mountain project may affect different communities and landscapes than Northern Gateway but it is hardly immune to threats that ultimately killed the Enbridge proposal.
For starters, the Northern Gateway project was halted due to an improper use of an equivalency agreement between the Government of British Columbia and the National Energy Board. In its decision, the BC Supreme Court held that while the province could rely on a federal environmental assessment, it still had to issue its’ own Environmental Assessment Certificate. As Roy Millen, Sandy Carpenter and Peter Hogg pointed out at the time, the court effectively was telling the B.C. government that it could impose its own conditions:
Lost in the noise amidst all the discontent with trade agreements, is how little international labour laws are enforced in foreign countries, where labour is often cheap. A spate of lawsuits against Canadian mining companies operating abroad could change that.
In a recent decision handed down by the British Columbia Supreme Court, Araya v. Nevsun Resources Ltd, Justice Patrice Abrioux ruled that a lawsuit launched by Eritrean miners alleging human right abuses could proceed to trial. These are foreign claimants who are relying on customary international law to sue a Canadian company in Canada. The major issues at play include applications of forum, the act of state doctrine and the use of customary international law within British Columbia/Canada.