Canada

National climate policies in Canada have been subjected to judicial review. In 2008, the NGO Friends of the Earth (FOE) initiated legal proceedings against the Federal government on the ground of a violation of the Kyoto Protocol Implementation Act (KPIA) (Friends of the Earth v. Canada (FOE), 2008 FC 1183). The KPIA was adopted in 2007 by Canada to implement the legal obligations of the Kyoto Protocol. FOE claimed that the government needed to prepare a Climate Change Plan that would meet the obligations of the Kyoto Protocol. The Federal Court of Canada declared that while the court has a limited role to play in enforcing the clear mandatory elements of the KPIA, the Act has given accountability to the Parliament for its substance. Therefore, while the failure of the government to prepare a Climate Change Plan might be justiciable, an evaluation of its content for compliance with the Kyoto Protocol is not. The court further determined that, in any case, the Act did not create a justiciable duty to ensure Canada meets Kyoto commitments, as the Act itself relies on cooperation between the provinces and industry, matters which are not completely controlled by the government.

Canada’s national climate policy was again challenged in 2012, when Professor Daniel Turp sought review of the Government’s decision to withdraw from the Kyoto Protocol (Turp v. Canada, 2012 FC 893 ). The Federal Court of Canada explained that under royal prerogative, foreign affairs and international relations fall under the remits of the executive branch of government and so does the decision to withdraw from the Kyoto Protocol.

Recently, Greenpeace Canada filed a case against the Government of Ontario, alleging that policy actions violated procedural rights under the Ontario Environmental Bill of Rights (Greenpeace Canada v. Minister of the Environment, Conservation, and Parks; Lieutenant Governor in Council 2019 ONSC 5629).  Greenpeace Canada asserted that the government bypassed required public consultation in promulgating regulations that would end Ontario’s cap and trade program and in proposing a bill that would undercut the province’s legislative regime for combatting climate change.   In a 2019 decision, the Superior Court of Ontario dismissed the case on the grounds that declaratory relief was not available, as a subsequent legislative Act had essentially mooted the basis for the revised regulations.

Possible grounds to challenge Canada’s climate policy include several human rights such as property rights, rights to life and to a healthy environment. Section 7 of the Canadian Charter states that“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Article 1 of the Quebec Charter echoes this protection. Further, the Quebec Charter Article 46.1 provides for the right of every person to live in a “healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by the law”. This article has been used to interpret the application of Quebec laws and regulations in favour of environmental protection.

Existing litigation seeks to establish that environmental protections, and specifically climate change mitigation and adaptation, are necessary to prevent the loss of life, liberty, and human well-being. Currently pending or on appeal are challenges alleging that inadequate action to combat climate change violates constitutional rights.

In La Rose v. Her Majesty the Queen, 2015 NBCA 26, fifteen children and youths brought suit against the Queen and Attorney General of Canada, alleging Canada’s inaction on climate change violates the Canadian Charter. The youth plaintiffs alleged that Canada’s actions allow a level of GHG emissions incompatible with a stable climate system, that it has adopted greenhouse gas reduction targets insufficient to avoid dangerous climate change, and that it failed to meet that inadequate target in any event. Invoking rights of the Charter under sections 7 and 15 (the latter guaranteeing equal protection) and public trust doctrine, the plaintiffs sought an order requiring defendant to develop and implement an enforceable climate recovery plan.  In 2020, the Federal Court dismissed the action, finding claims under sections 7 and 15 of the Charternot justiciable and that the public trust doctrine claims, although justiciable, stated no reasonable cause of action. Plaintiffs appealed to the Federal Court of Appeal.

In Lho’imggin et al. v. Her Majesty the Queen, 020 FC 1059, the Wet’suwet’en indigenous group (two houses) filed a legal challenge alleging that the Canadian government’s approach to climate change was failing to meet international obligations and its own NDC under the Paris Agreement. The plaintiffs alleged that the resulting warming effects in their territories and negative health impacts from climate change violated their rights, including those protected under sections 7 and 15 of the Charter, and Section 91 of the Constitution Act 1867 (duty to make laws for the peace, order and good government of Canada).  The Federal Court dismissed the action in 2020, finding the challenge non-justiciable, as it was deemed “inherently political, not legal, and is of the realm of the executive and legislative branches of government.” An appeal to the Federal Court of Appeal is pending. 

Recent litigation also challenges the actions of subnational governments to combat climate change on human rights grounds. In 2019, seven youths brought a legal challenge against the government of Ontario, alleging that the government violated the Canadian Charter by setting a greenhouse reduction target inadequate to avoid catastrophic climate change harms; thereby abdicating its responsibility to address climate change (Mathur, et al. v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 6918). Invoking the Charter sections 7 and 15, plaintiffs requested, among other things, a declaration that Ontario’s failure to set a more stringent target or a plan sufficient to combat climate change violates the constitutional rights of Ontario youth and future generations. The Ontario Superior Court denied a motion to dismiss in 2020, finding the adoption of the new greenhouse gas reduction target and repeal of the Climate Change Act are governmental actions that are reviewable by the court for compliance with the Charter.  The action remains pending.

In 2018, an environmental non-profit organization brought a class action against the Canadian government on behalf of Québec citizens aged 35 and under in the Superior Court of Québec (ENVironnement JEUnesse v. Canada). They alleged that adopting an inadequate greenhouse gas reduction target and failing to put in place measures to achieve necessary reductions would lead to dangerous climate change impacts in breach of Canada’s obligations to protect the fundamental rights of young people under the Canadian Charter and the Québec Charter.  In 2019, the court declined to authorise the proposed class of 35 years old and younger; however, the court recognised that the impact of climate change on human rights is justiciable and that the rights and freedoms guaranteed can apply to the challenged government actions. The dismissal is on appeal.

Canada’s indigenous peoples also have constitutionally protected rights, as explained in Section 35 of the Constitution Act. These protected rights take three forms: aboriginal rights, which include certain practices, traditions and customs central to the aboriginal societies; treaty rights referred to in Section 35(3); and rights under the Aboriginal title. Some of these rights relate to the environment and potentially could be applied to climate change adaptation and mitigation.