In response to the recent The Hague Court of Appeal case legally binding the Netherlands government to a greenhouse gas reduction target, this article discusses why Canada’s current constitutional framework may make it difficult for a similar case to succeed in Canada.
On October 10th, 2018, The Hague Court of Appeal upheld1 a lower court’s 2015 decision2 to hold the Dutch government accountable to their climate change commitments. The Dutch Constitution and international agreements respecting human rights and environmental law were fundamental to the decision. On behalf of 900 Dutch citizens, the Urgenda Foundation, a Dutch environmental group, filed a claim against the Dutch government’s inadequacies regarding climate change policy (Urgenda Foundation v The State of the Netherlands). As a result of their successful action, the Netherlands is now judicially bound to achieve a 25% reduction in greenhouse gas emissions by the end of 2020. This raises the question of how this ruling will affect climate change litigation in Canada and elsewhere in the world. It is important to compare both Canada and the Netherlands’ legal systems, international commitments, and substantive responses to the imminent effects of climate change.
Canada’s Policies & Relative Performance
The risks of unmitigated climate change are a global concern with specific challenges to Canada, the world’s ninth-largest3 GHG emitter. Canada’s younger population can expect to see changes such as wildlife displacement, species extinction, sea level rise, increased frequency and intensity of extreme weather events, and the loss of arctic summer sea ice within their lifetimes.
Canada has done very little to act on these risks despite being involved in international climate efforts since 1992. At the behest of the Copenhagen Accord of 2009, Canada committed4 to a reduction of greenhouse gas emissions to 17% below 2005 levels by 2020. Having had 26 years to consider and nine years to implement a plan to meet this commitment, Canada has only managed a 3.6% decline5 in emissions since 2005; much of which is likely attributable to the 2008 recession.
Under the 2015 United Nations Paris Agreement, Canada has committed to increase its effort to reduce greenhouse gas emissions to 30% below 2005 levels by 2030. With the Pan-Canadian Framework (PCF) set to ramp up in the coming months, 2016 data6 from Environment and Climate Change Canada (ECCC) reports an expected increase in GHG emissions of 1.4% over 2005 levels by 2030. While the federal government insists it will be able to achieve reductions of 28.5% by 2030, exactly how it plans to do so is still unclear and lacks certainty. Independent projections7 from the Pembina Institute and Energy Innovation suggest the gap between Canada’s Paris goals and projected 2030 emissions are likely to be much higher than the federal government’s expectations. Such uncertainty reflects the urgency that Canada must act upon in order to align itself with its commitments.
Prior to court enforcement, the Netherlands was expected to reach a 17% reduction in emissions relative to 1990 levels by 2020. Canada is expected to maintain a GHG emission output higher than 19908 levels until 2027; that is if the government can manage to keep its plan on track. ECCC’s best case projection9 for 2020 provides a mere 1.6% reduction compared to 2005 levels10 (a 19% increase over 1990 levels). While the Dutch courts found their government was not making sufficient progress on climate change, their inadequacies pale in comparison to those of Canada’s. Any argument for enhanced government action made in the Urgenda Foundation case could only be amplified by Canada’s failed efforts to date.
Pursuing environmental interests using the Constitution as it currently exists, Canadians may be able to rely on sections 7 and 15 of the existing Charter framework. Section 7 of the Charter guarantees Canadians the right to life, liberty, and security of the person. Section 15 affirms individual equality under the law. The widespread effects of climate change pose a risk to all Canadians, potentially frustrating section 7 of the Charter.
Constitutional Avenues & Limitations
Constitutional protection of environmental rights and human rights protections through the European Commission on Human Rights11 (ECHR) were primarily responsible for Urgenda’s success in its action against the Dutch government. Under the Dutch Constitution12, their government has a duty to “keep the country habitable and to protect and improve the environment”. Through its membership with the European Union, the Dutch government is also legally bound to ECHR Articles 2 and 8. These articles have been interpreted as giving individuals the right to life and the right to protection from seriously harmful environmental influences.
Without similar protections for Canadians expressly enumerated under their Constitution, nor protections granted through treaty, Canadians cannot rely on similar arguments in an effort to bind their governments to act. Though organizations are advocating13 to add a right to a healthy environment to the Canadian Charter of Rights and Freedoms (the Charter), there are tremendous challenges inherent in the task and the lack of tangible progress to date is missing the necessary immediacy. Such additions to the Charter would be subject to the Constitution’s 7-50 amending formula, which requires seven out of ten provinces representing at least 50 percent of the population of Canada to support the proposed change. That said, rallying political will to improve environmental law is instead much more direct to the point and would preclude the requirement of amending the Charter altogether.
Pursuing environmental interests using the Constitution as it currently exists, Canadians may be able to rely on sections 7 and 15 of the existing Charter framework. Section 7 of the Charter guarantees Canadians the right to life, liberty, and security of the person. Section 15 affirms individual equality under the law. The widespread effects of climate change pose a risk to all Canadians, potentially frustrating section 7 of the Charter. Further, the disproportionate impacts that climate change may inflict upon certain socioeconomic classes and Indigenous14 peoples could pose a compelling Section 15 infringement argument. Lacking any such relatable precedent, however, it would likely require a very robust legal argument and flexible court to adopt a favourable ruling.
Opportunities & Judicial Barriers
A claim15 awaiting certification from the Québec Superior Court has recently been filed by ENvironnement JEUnesse (ENJEU), an environmental education organization directed on behalf of Québec youth. This prospective class-action, representing every Québec citizen under the age of 35, seeks a declaration that the federal government has infringed on their rights under sections 7 and 15 of the Charter and sections 1, 10, and 46.1 of the Québec Charter. Section 46.1 of Québec’s Charter, in particular, recognizes a right to live in a healthful environment. This raises particularly interesting questions regarding jurisdiction and whether or not a federal government can be held accountable for prevailing environmental conditions within provincial boundaries. Though it is not yet apparent if the claim will find its way before a court, it will be interesting to see whether it sparks a surge in Canadian climate advocacy litigation.
In order for ENJEU to bring their claim before a court, they must pass the test for public interest standing. In order to meet this threshold, the group must demonstrate their direct or genuine interest in the matter and show that there is no reasonable alternative for the issues to be brought before the court. Meeting these requirements have previously proven difficult for organizations pursuing climate related litigation. In a 2015 British Columbia Supreme Court decision16, Voters Taking Action on Climate Change failed to demonstrate their public interest standing in order to challenge BC coal policy decisions. While that meant the organization could not present their argument in court, the decision left the door open17 to the possibility of having climate change concerns heard in the future. Several18 rulings from various Canadian courts demonstrated the court’s willingness to accept that, as a matter of judicial notice, the implications of climate change do not require evidential proof. One19 Federal Court of Appeal judgment goes as far as citing climate change as a “real evil and a reasonable apprehension of harm.”
In order to see action on such issues judicially enforced, litigants must be persistent and creative. The ever-drawn out and yet-undetermined Juliana case20 from the United States – originally brought forward in 2015 by 21 youth plaintiffs – has ping-ponged21 through the US judicial system due to the federal government’s incessant efforts to avoid trial. Juliana’s claim lies within the Public Trust Doctrine, which holds that certain common resources must be held in trust for the benefit of current and future American generations. Juliana hopes to have the Earth’s atmosphere recognized by the court as such a resource going forward.
Just as with Juliana’s likely conclusion, many prior claims have been thrown out based on the Political Questions Doctrine22. This doctrine precludes the progression of cases through the courts based on their suitability for resolution by the political branches of government. While the argument and basis of claim for Juliana in their case is much the same as those raised by Urgenda before the Dutch courts and now ENJEU’s in Quebec, a typically conservative US Supreme Court is unlikely to adopt Juliana’s progressive requests to enforce government action.
Canadian climate litigants have experienced similar frustrations due to a court’s general preference for politics to resolve seemingly non-justiciable issues, which may inevitably become the fate of ENJEU’s application. In the 2007 Friends of the Earth v Canada23 case, the Court determined that while the failure to create a Climate Change Plan altogether may be justiciable, it could not bind the government to implement a more aggressive climate plan. Because the federal government’s legislative answer to the 1997 Kyoto Protocol was designed to be subject only to its own enforcement, the issue was non-justiciable; any effort to increase government accountability would have to be political.
Where do we go from here?
Politically speaking, the news is far from good. The federal government has recently committed to the PCF, though analysis of which suggests considerable deficiencies throughout. A federal carbon price backstop24 – albeit moderate and highly insufficient25 – has been enforced on provinces who had failed to implement sufficient strategies by January 1, 2019. As political opponents to the plan preach disingenuous, fear-mongering rhetoric26 without providing any sort of constructive alternative, a possible change in government resulting from the approaching federal election threatens to compromise what little work has been done. While the current federal government continues to subsidize and invest in oil and gas ventures as a result of powerful fossil fuel lobbies and deep-seated roots, an even deeper hole is dug that may prove inescapable when the transition to a clean economy is no longer optional, but absolutely mandatory.
From the legal perspective, absent the express constitutional entrenchment of rights to a sustainable or healthy environment, hopeful litigants cannot rely on the reasoning successfully adopted in the Urgenda Foundation case. Instead, it appears an innovative and compelling interpretation of sections 7 and 15 of the Charter would provide Canadians with their only hope at constitutional recourse, at least for the time being. Although there are obvious hurdles to pursuing climate change litigation in Canada, there are certainly options available for those with the time, resources, and tenacity to do so.
The issue of justiciability is not likely to be one that will fade anytime soon. There is a distinct separation of powers that must be maintained between the courts and Canada’s democratic institutions. Without legislation in force, the judiciary has little to scrutinize; policy criticism is out of the court’s hands. As a result, despite the barrier of the current political climate, a groundswell of support for political action is currently Canada’s best and fastest hope at seeing any meaningful action on climate change. Dependent on perspective27, such support may or may not be within Canada’s near future.