A version of this post was first published on The Conversation, which features relevant and informed articles written by researchers and academics in their areas of expertise and edited by experienced journalists.
Oh, Canada
I remember having a “proud Canadian” moment flying home from a trip to the United States in 2002 when I read in a complimentary copy of The Globe and Mail that Canada had ratified the Kyoto Protocol. As an undergraduate student interested in international affairs and international law, I was happy to see that Canada had committed internationally to reduce its greenhouse gas (GHG) emissions through this landmark treaty. I felt like Canada and the international community were starting to take necessary steps to address climate change.
My optimism was not warranted. Successive Canadian governments failed to take sufficient action for Canada to meet its obligations under the Kyoto Protocol and the international community has largely been unsuccessful at addressing climate change effectively using international law.
When it ratified the Kyoto Protocol, Canada committed to reducing its GHG emissions by 6% from 1990 levels by 2012. We did not even come close to doing so: by 2012, Canada’s emissions had increased by 18.5% from 1990 levels. To avoid being found in non-compliance and be obliged to purchase international credits to make up its shortfall, in 2012 Canada became the first — and only — country that had joined the Kyoto Protocol to withdraw from it.
Almost 20 years after Canada ratified the Kyoto Protocol, the federal government now intends to reduce Canadian GHG emissions by 30% from 2005 levels by 2030 and to reach net zero emissions by 2050.
But are we at risk of history repeating itself with Canada aiming high but having its efforts ultimately fall short?
As of 2018, Canada’s GHG emissions were 20.9% higher than 1990 levels and a mere 0.2% lower than 2005 levels. And, although increasing efforts are being made to reduce Canada’s GHG emissions—including through mandatory carbon pricing that is being challenged by some provinces—current policies are insufficient to meet Canada’s emissions targets.
Canada’s current targets are not legally binding; however, lawsuits have been filed to try to force Canadian governments to take more effective and timely action on climate change. Such efforts may be bolstered by a decision issued late last year by the Dutch Supreme Court, The Netherlands v Urgenda.
Urgenda and Canadian climate litigation
Urgenda could have implications for countries around the world that, like Canada, are arguably failing to do their fair share in the fight against climate change because it established that a country’s inadequate action can violate human rights. For the first time, a court imposed a legally binding target and deadline for a government to reduce GHG emissions. The court ordered the Netherlands to reduce its GHG emissions by least 25 per cent from 1990 levels by the end of 2020. It considered this to be the minimum reduction necessary in light of the scientific consensus that it is imperative to keep global warming below 2 degrees Celsius.
Urgenda was a major victory for “climate justice” activists, who have launched human rights lawsuits attempting to require governments to take more substantial and timely action against climate change. This landmark decision could prove influential in Canada, as there are now at least four active Canadian climate change cases invoking human rights arguments. These cases include La Rose et al v Canada, in which the federal government’s effort to have the lawsuit stopped before it goes to trial was argued at the end of September.
Past Canadian climate cases based on other grounds have failed. But Urgenda could be particularly relevant to current litigation because it is based on human rights and some of the federal government’s arguments in La Rose reflect the Netherlands’ unsuccessful arguments in Urgenda.
For example, Canada acknowledges the threat of climate change, but maintains that a court cannot order it to act because climate change policies are for elected politicians — not judges — to decide. The government also argues that climate change is a global problem that Canada alone cannot solve.
The pending Canadian cases will require our courts to decide similar issues as Urgenda, including:
– Does the right to life under the Canadian Charter of Rights and Freedoms require the government to take specific action on climate change?
– Do courts have the authority to review climate change policies?
– Does the concept of an individual but shared global responsibility overcome the “de minimis contribution” (or “too small to matter”) defence?
Other issues have been raised in these cases that are not addressed here, including equality rights for young people and Indigenous Peoples.
Why could Urgenda be relevant?
In Urgenda, the Dutch Supreme Court concluded that climate change poses a “real and immediate” threat to the right to life, which the Netherlands has a legal obligation to address under the European Convention on Human Rights (ECHR). While the ECHR is not binding on Canada, section 7 of the Charter protects the right to life. Canada is also bound by international treaties recognizing the right to life, including the International Covenant on Civil and Political Rights (ICCPR).
The interplay between international and domestic law is complicated, but the Supreme Court of Canada has established that Charter rights should provide at least as much protection as corresponding rights under binding human rights treaties. It has also held that other sources of international human rights law — including cases interpreting the ECHR — may be considered in Charter litigation. Finally, Canadian courts often canvass relevant foreign decisions.
These principles make it possible for our courts to consider Urgenda relevant. And, if our judges think the approach to similar issues in Urgenda is persuasive, they could follow it.
Climate change and the right to life in Canada
That being said, Canadian climate plaintiffs face significant obstacles due to how the right to life under the Charter has been interpreted.
For example, our courts would need to adopt a broader understanding of a “real or imminent” threat, and to recognize that the government must take action to protect the right to life. As the law currently stands, the government is not required to take action to address indirect threats.
But, this could change. The Supreme Court of Canada left the door open to a broader approach to the right to life in an anti-poverty case, noting that, “One day s. 7 may be interpreted to include positive obligations…. It would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined in previous cases.”
In addition, as I discussed in my last blog post, the United Nations Human Rights Committee has more recently concluded (in a different context) that the right to life under the ICCPR — a binding international treaty — can impose positive obligations on Canada. These decisions may leave room for Canadian climate plaintiffs to argue that our courts’ approach to the right to life is too restrictive and is falling below international standards.
Can courts review climate change policies?
In La Rose, the federal government argues that the claim cannot be heard by the courts because “[o]nly the executive and legislative branches of government may make policy, pass laws and authorize the allocation of public funds.” In its view, the plaintiffs are asking the court to “step outside its judicial function” by becoming involved in “crafting a policy response to global climate change” which “falls outside the role of the courts.”
A similar argument by the Netherlands failed in Urgenda. In the Dutch Supreme Court’s view, an order to reduce GHG emissions was within its authority because it is the court’s role to review whether laws and policies are constitutional and abide by the Netherlands’ human rights obligations. The court saw itself as not stepping outside of its jurisdiction because the legislature retained the authority to determine what laws and policies to implement to meet the Netherlands’ obligations.
Similarly, Canadian courts also review the constitutionality of laws and policies. As such, if climate change is considered a threat to Charter rights that Canada must address (which still could be a big “if”), Canadian courts could follow the same approach as Urgenda. While the obligation to meet an emissions target would be new, elected officials would still “make policy, pass laws and authorize the allocation of public funds.”
Potentially notable on this point is another Canadian climate change case, ENvironnement JEUnesse v Canada. In that case, although the Superior Court of Quebec refused to certify the case as a class action, it recognized that climate change cases based on the Charter (and the Quebec Charter of Human Rights and Freedoms) are within the court’s jurisdiction to decide.
The “too small to matter” defence
If climate change is a threat to Charter rights, is it legally significant that no matter how aggressively Canada reduces its GHG emissions, Canada alone cannot address this threat? Urgenda suggests that the answer to such a question could be “no”. In the Dutch Supreme Court’s view, the shared global responsibility for climate change necessarily entails an enforceable individual responsibility on each country to do its fair share.
The court considered whether the Netherlands was doing its part and concluded that it was not. Critically, the Netherlands emits a disproportionately large share of global GHGs, had adopted a less stringent GHG policy than comparable countries, and did not show that meeting a higher emissions target would pose an undue burden.
If Canadian courts accept the premise of individual responsibility, they would similarly assess whether Canada is doing its fair share, and the statistics could be on the side of the plaintiffs. Canada emits more GHG per capita and in total than the Netherlands. Its emissions target under the Paris Agreement is lower than the Netherlands for 2030 (a 30 per cent reduction from 2005 levels compared to 40 per cent). And it has been argued that Canada ought to be able to “reduce its GHG [emissions] without major economic repercussions.”
Our courts may also find it compelling that, even though Canada’s emissions amount to 1.6 per cent of global emissions, “Canada is still among the top ten global emitters … on an absolute basis, and in the top three on a per capita basis.”
A matter of when and not if?
In 2018, the UN Secretary-General lamented that, “scientists have been telling us for decades [about the risk of climate change]. Over and over again. Far too many leaders have refused to listen.”
As Urgenda shows, human rights cases could force leaders to listen — and act. If Canada continues to not do its fair share and if Urgenda marks the beginning of domestic and international decisions requiring countries to take specific action against climate change, it may only be a matter of time until Canadian climate justice plaintiffs prevail.
Image by Francesco Ronge from Pixabay
