Categories
2020 Canada Domestic court Emissions reductions Indigenous peoples rights Indigenous peoples' rights Non-discrimination Right to life Separation of powers

Lho’imggin et al. v. Canada

Summary:
This case was brought by two houses of the Wet’suwet’en indigenous group against Canada on 10 February 2020. The plaintiffs argue that the Canadian government has violated their constitutional and human rights by failing to meet its international commitments to reduce greenhouse gas emissions. They argue that the effects of warming are already being felt on their territories, including in the form of negative health effects. They also argue that the historical treatment and ongoing discrimination against indigenous peoples in Canada exacerbate the trauma of climate change. They invoke, among other things, their rights to life, liberty and security of person, and the right to equality.

The Federal Court granted a motion to strike out the claim on 16 November 2020, finding that the case was not justiciable, lacked a reasonable cause of action, and did not seek legally available remedies. The plaintiffs appealed to the Federal Court of Appeal on 10 December 2020; the appeal was still pending in August 2022.

Relief sought:
The applicants seek several different forms of relief. These include declaratory relief concerning Canada’s obligations to reduce its emissions and respect the plaintiffs’ rights, including the rights of future member of the Wet’suwet’en indigenous group. The plaintiffs also seek an order requiring the government to amend its environmental assessment statutes that apply to extant high GHG emitting projects, and an order requiring a complete, independent and timely annual account of Canada’s cumulative greenhouse gas emissions in a format that allows a comparison to be made with Canada’s fair carbon budget.

Findings of the Federal Court:
Among other things, the Federal Court found that “this matter is not justiciable as it is the realm of the other two branches of government. This broad topic is beyond the reach of judicial interference. [It did] not find that there is a sufficient legal component to anchor the analysis as this action is a political one that may touch on moral/strategic/ideological/historical or policy-based issues and determinations within the realm of the remaining branches of government.” It also found, concerning this case, that “not only is there not sufficient legality, but the remedies sought are not appropriate remedies, but rather solutions that are appropriate to be executed by the other branches of government.”

Further reading:
The full text of the judgment of the Federal Court is available via climatecasechart.

Suggested citation:
Federal Court of Ottowa, Lho’imggin et al. v. Her Majesty the Queen, Order of 16 November 2020, 2020 FC 1059.

Categories
2021 Canada Children and young people Class action Domestic court Non-discrimination Right to a healthy environment Right to life

ENVironnement JEUnesse v. Canada

Summary:
In 2018, the environmental NGO ENvironnement JEUnesse applied for leave to bring a class action case against the Canadian government on behalf of citizens of Québec aged 35 and under. The NGO sought a declaration from that the Canadian government had violated its obligation to protect these citizens’ fundamental rights under the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms by setting insufficent greenhouse gas reduction targets and by failing to create an adequate plan to reach these targets. Specifically, they invoked their rights to life, to a healthy environment, and to equality. On 11 July 2019, the Superior Court of Quebec dismissed the motion to authorize the institution of a class action, finding that the proposed class, with its 35-year age limit, had been created arbitrarily. An appeal by ENVironnement JEUnesse was denied on 13 December 2021.

Remedies sought:
As well as a declaratory judgment, the NGO sought punitive damages and an order to cease interference with the plaintiffs’ rights.

Judgment:
In their judgment of 13 December 2021, the three judges of the Court of Appeal dismissed the appeal and denied the certification of the proposed class. They referred to the role of the legislature in making the complex social and economic choices required here. They also considered that the remedies sought by the applicants were not specific enough to be implemented by a court. Lastly, the judges upeld the previous instance’s finding concerning the arbitary constitution of the class, with its 35-year age limit.

Further procedural steps:
The applicants announced that they would launch an appeal to the Supreme Court of Canada.

Further reading:
The judgment of the Court of Appeal (in French) can be found below.

The declaration of appeal can be found here.

Categories
2020 Canada Domestic court Emissions reductions Fossil fuel extraction Non-discrimination Right to life Standing/admissibility

Cecilia La Rose v Her Majesty the Queen

Facts of the case:

Plaintiffs comprising of 15 children and youths from various parts of Canada sued the Government and Attorney General of Canada alleging violations of the right to life and right to equality under Sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and the constitutional and common law duty to protect the integrity of common natural resources in public trust. According to the plaintiffs, the impugned conduct of the respondents consisted in: continuing to cause, contribute to and allow a level of greenhouse gas (GHG) emissions incompatible with a Stable Climate System (defined as a climate capable of sustaining human life and liberties); adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System; failing to meet the Defendants’ own GHG emission targets; and actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a Stable Climate System.

The defendants, while accepting the plaintiffs’ concerns about the seriousness of climate change and its potential impacts, filed a motion to strike their claim alleging that their claim is not justiciable.

Date of decision:

27 October 2020

Admissibility:

On 27 October 2020 the Federal Court in Ottawa granted the defendants’ motion. The Court answered the question of justiciability of the claims of Charter violations for the reason that the impugned conduct is of undue breadth and diffuse nature, and that the remedies sought by the plaintiffs were inappropriate. The Court also found that it had no constitutional obligation to intervene on the matter as there is room for disagreement between reasonable people on how climate change should be addressed. On the issue of justiciability of the public trust doctrine invoked by the plaintiffs, the Court found that the question of existence of the doctrine is a legal question which courts can resolve. However, the Court found that the plaintiffs’ claim did not disclose a reasonable prospect of success for the purposes of its admissibility.

Merits:

NA

Status of the case:

The plaintiffs have appealed against the Federal Court’s order before the Federal Court of Appeal.

Suggested case citation:

Federal Court of Ottawa, Cecilia La Rose v Her Majesty the Queen, T-1750-19, judgment of 27 October 2020, 2020 FC 1008

Case documents:

For the complaint filed by the plaintiffs on 25 October 2019, click here.

For the Government’s statement of defence notified on 7 February 2020, click here.

For the plaintiff’s reply to the Government’s motion to strike, filed on 31 August 2020, click here.

For the Federal Court of Ottawa’s order dated 27 October 2020, click here.

For the Memorandum of Appeal filed by the plaintiffs on 5 March 2021, click here.

Further reading:

Camille Cameron, Riley Weyman, ‘Recent Youth-Led and Rights-Based Climate Change Litigation in Canada: Reconciling Justiciability, Charter Claims and Procedural Choices,’ 34(1) Journal of Environmental Law (2021), Pages 195–207. Available here.

Categories
Canada Emissions reductions Indigenous peoples' rights Inter-American Human Rights System Right to culture Right to health Right to property Right to subsistence/food

Arctic Athabaskan Council v. Canada

Summary:
This case, brought before the Inter-American Commission on Human Rights by Athabaskan people living in Canada, concerned alleged rights violations relating to Arctic warming and melting caused by Canadian black carbon emissions. The case alleged that Canada, by failing to regulate black carbon emissions, had violated various human rights of the Athabaskan people, including their rights to health, subsistence, property, and culture.

The complaint:
The applicants in this case allege that Canada’s emissions of black carbon, which is a component of sooty fine-particle pollution and stems largely from diesel emissions and the burning of biomass, is particularly harmful to their rights and way of life because it is emitted in or near the Arctic.

The applicants submit that the warming effect of black carbon on the global climate is second only to carbon dioxide. In the Arctic, black carbon warms in two ways: it absorbs sunlight in the air, and it reduces the reflectivity of ice and snow-covered surfaces, accelerating their rate of melting.

In particular, the applicants cite their right to culture, particularly their ability to transmit their cultural knowledge to future generations, because “Arctic warming and melting has made the weather, the hunt, and the behaviors and occurrence of fish and wildlife so erratic that elders no longer feel confident in teaching younger people traditional ways.”

The also argue that warming and melting has affected the integrity of the land, compromising their right to property. This includes floods, forest fires, melting permafrost, erosion-related harms and landslides, as well as the destruction of cultural and historic sites and increased difficulty in accessing resources. The Athabaskans also invoke their right to means of subsistence, citing difficulties in accessing traditional food sources and adverse effects on biodiversity. Lastly, they cite their right to health, arguing that the loss of traditional foods has adversely affected the Athabaskan way of life. Melting permafrost is affecting water quality, and the loss of traditional food sources is forcing the people to rely on purchased food, leading to increases in the prevalence of chronic diseases.

Before the Commission, the applicants allege that the Canadian state’s acts and omissions represent an ongoing violation of their human rights, and that there are no domestic remedies suitable for addressing these violations. They argue that Canada has failed to take action to reduce black carbon emissions, and that such action could substantially remedy the Arctic warming and melting that are causing the violations at stake. They accordingly request the Commission to investigate and confirm the alleged harms; set forth the facts and applicable law, declaring a violation of the American Declaration of the Rights and Duties of Man; and recommend steps to limit black carbon emissions and protect Arctic Athabaskan culture and resources from Arctic warming and melting.

Forum:
Inter-American Commission of Human Rights

Date filed:
23 April 2013

Status of case:
Pending

Suggested citation:
Inter-American Commission on Human Rights, Arctic Athabaskan Peoples v. Canada, petition submitted on 23 April 2013, case pending.

Further information:
For more on this petition, see

The full text of the petition has been made available here by EarthJustice here: https://earthjustice.org/sites/default/files/AAC_PETITION_13-04-23a.pdf

For a summary of the petition, provided by EarthJustice, click here: https://earthjustice.org/sites/default/files/library/legal_docs/summary-of-inuit-petition-to-inter-american-council-on-human-rights.pdf

Further reading:
Agnieszka Szpak, ‘Arctic Athabaskan Council’s Petition to the Inter-American Commission on Human Rights and Climate Change—Business as Usual or a Breakthrough?’ 162 Climatic Change (2020) 1575–1593.