Canada has experienced litigation challenging a specific project on the grounds that it contributes negatively to climate change or that fails to adapt adequately to climate change.
In Pembina Institute for Appropriate Development v. Attorney General of Canada, environmental organisations challenged the recommendation of the Joint Review Panel to approve Imperial Oil’s Kearl Oil Sands project, which was the precursor to the authorisation by the Minister of Fisheries and Oceans. In a 2008 decision, the Federal Court concluded that the Joint Review Panel, of both the federal and Alberta governments, erred by failing to provide an explanation or a rationale for its approval.
In another case, Ecology Action, et al. v. Minister of Environment and Climate Change, three environmental organisations brought legal action against Canada, asserting the government failed to properly assess the risks of exploratory drilling for oil and gas off the coast of Newfoundland and Labrador, in violation of the Impact Assessment Act. The applicants argued that Canada did not assess the extent that offshore drilling will hinder its ability to meet its environmental obligations and commitments relating to climate change. In 2020, the Federal Court denied the government’s motion to dismiss and the applicants’ request for interim relief, and the action remains pending.
Environmental cases challenging project approvals have met some success in other contexts. In Centre québécois du droit de l’environnement v. Energy East Pipeline Ltd, the court concluded that the Quebec Environment Minister failed to explain in a reasonable way the decision authorising drilling in connection with pipeline infrastructure expansion in the Saint Lawrence River, citing a lack of adequate information on potential impacts on the beluga whale population.
In Strateco Resources Inc. v. Attorney General of Quebec, the judge invalidated the authorisation of a uranium mine project by the government. This was invalidated due to the lack of “social acceptability” of the project within the surrounding communities, including First Nations. Although not specifically a challenge based on the project’s climate impact, the reasoning of the court could apply to projects impacting climate change mitigation or adaptation in the future.
Like other types of cases, applicants must establish standing to maintain actions against project approvals. In Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), the petitioner challenged the expansion of a coal handling and storage operation on Texada Island. In dismissing the challenge in 2015, the British Columbia Supreme Court held that a challenge to the statutory authority for an expansion of a coal storage facility did not sufficiently engage with the applicant organisation’s interest in urging governments to take meaningful action against climate change, and therefore determined that the group did not meet the required showing for public interest standing. The court left open that it might find other possible parties, such as impacted residents, may have a more direct and personal interest for the purposes of conferring standing.
- Pembina Institute for Appropriate Development, et al v. Attorney General of Canada and Imperial Oil, 2008 FC 302
- Ecology Action, et al. v. Minister of Environment and Climate Change, 2020 FC 663
- Centre Québécois du droit de l’environnement c. Oléoduc Énergie Est Itée, 2014 QCCS 4398
- Strateco Resources Inc. v. Attorney General of Quebec, 2017 QCCS 2679
- Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), 2015 BCSC 471
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/canada
This country report has been produced by Mara Wendebourg, C2LI Research Assistant, Catherine Hall, C2LI Senior Research Assistant and Amelia Burnette, C2LI Legal Analyst. This summary is based on Catherine Choquette, Dustin Klaudt and Laura Shay, “Canadian Legal Options Available for Individuals to Seeking Climate Change Mitigation and Adaptation: Full of Promise or Just Hot Air?” in F. Sindico and M. Moise Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, 2021.