(Disponible en français : Les changements climatiques du point de vue des droits de la personne : que dit le droit canadien?)
Human rights-based cases challenging governments for insufficient action on climate change are on the rise worldwide. More than 20 cases spanning six continents are being argued in domestic courts and regional tribunals. Many have been brought by civil society actors representing large groups, with the goal of building a sustainable society for future generations.
In November 2018, an application [In French only] was filed in Quebec Superior Court arguing that the Canadian government’s performance on climate change infringes the rights of young people. Specifically, ENvironnement JEUnesse alleges infringements of young people’s right to life and security of the person under section 7, and their equality rights under section 15 of the Canadian Charter of Rights and Freedoms.
The case raises the question of whether environmental rights could be protected under the Charter, now or in the future.
The international context
Internationally, the first successful human rights-based challenge to a government’s climate change strategy occurred in the Netherlands in 2015. Urgenda Foundation v. The Netherlands ordered the Dutch government to reduce greenhouse gas (GHG) emissions by at least 25% by 2020 compared to 1990 levels. This was based on specific Dutch constitutional and civil law principles, as well as overarching rights to life and family life under the European Convention on Human Rights. In 2018, the Hague Court of Appeal upheld this decision, confirming that this is the minimum action owed to citizens based on international scientific consensus and fundamental human rights.
The Urgenda case has inspired similar actions around the world. Cases brought against the European Union and against various individual European countries seek to replicate the outcome of Urgenda, arguing that GHG emissions targets are insufficient, and are in breach of fundamental human rights to life, health and equal treatment under the various constitutions and international treaty commitments that apply.
In the United States, youth are arguing in Juliana v. United States that national policies, acts and omissions that result in climate change violate their constitutional rights to life, liberty and property. In 2016, the case survived a pre-trial motion to dismiss it after the United States District Court found that it raises issues capable of being decided by the courts. However, as of December 2018, the case continues to face procedural challenges, and has not yet moved to a full consideration of the issues.
Despite the similarities between these and other court challenges, each is ultimately decided in the context of specific domestic constitutional rights, legal procedures and remedies, and rules for interpreting international treaties. In other words, these cases are not directly applicable to Canada.
The Canadian legal landscape
In 1995, the Supreme Court of Canada recognized in Ontario v. Canadian Pacific Ltd that environmental protection is a fundamental value in Canadian society. This informed the Court’s view that it should take a deferential approach to the constitutionality of offences under the Environmental Protection Act. The fundamental value of environmental protection is also reflected in Canadian legislation and case law more broadly. For example, it is well established that corporations can be held responsible for violating environmental laws and regulations, and that certain government decisions can be challenged for being procedurally unfair. However, challenging complex national environmental government policy based on human rights would raise additional considerations.
Although there are no environmental or property rights explicitly contained in the Charter, courts have been willing to consider whether environmental harms have an impact on firmly established rights to life, security, or equality, which have a basis in both the Charter and in international human rights law.
Several cases have challenged government decisions in areas ranging from waste disposal to industrial pollution standards to oil and gas development, based on projected health harms to nearby residents and their rights to life and security. Commentators suggest that the scope of these rights in the environmental context remains unclear, in part because most of these cases have been withdrawn, or dismissed on technical grounds.
For example, in 2012, members of the Aamjiwmaang First Nation sought judicial review of an Ontario government decision to allow increased industrial sulphur output. They argued in Lockridge v. Director, Ministry of the Environment that the decision infringed their rights to life, liberty, security, and equality under the Charter. The case survived a motion to dismiss, and the Ontario Superior Court summarized the tests that would apply to establish a breach of Charter rights in this context. However, in response to policy changes by the Ontario government, the lawsuit was withdrawn before the claims were tested at trial.
Rights-based environmental cases like Lockridge have generally focused on localised environmental issues. In contrast, some cases have tried to address the larger-scale issue of climate change without relying on constitutional or other human rights. Two cases relating to the Kyoto Protocol Implementation Act were dismissed by the Federal Court of Canada, first in 2008 when obligations under the Act were allegedly not being met, and again in 2012 after Canada withdrew from the treaty. However, neither dealt with the question of whether rights were violated, instead turning on the wording of the Act.
Combining a human rights-based argument with a large-scale environmental issue has occurred previously, through the “soft law” of Canada’s international commitments. In 2013, a petition filed before the Inter-American Commission on Human Rights by the Arctic Athabaskan Council argued that Canada’s lack of regulation for black carbon emissions violates rights to culture, property and health under the American Declaration of the Rights and Duties of Man.
The petition included a statement from a Special Rapporteur of the United Nations Commission on Human Rights that ‘‘the effects of global warming and environmental pollution are particularly pertinent to the life chances of Aboriginal people in Canada’s North, a human rights issue that requires urgent attention at the national and international levels.” The Commission’s decision is pending.
Although international obligations and commitments have no automatic binding force in Canadian courts, where possible, courts will interpret Canadian law to comply with international law, as the Supreme Court noted in Baker v. Canada. In addition, commentators suggest that the facts may trigger a legal duty to address Canada’s black carbon policy in consultation with the Canadian Inuit people, based on the disproportionate impact of black carbon on the Arctic, treaty rights to traditional harvesting practices, and the Crown’s duty to act honourably in its relations with Indigenous peoples.
One of the biggest obstacles in these kinds of cases may be the limited types of legal remedies available. The right to life under section 7 of the Charter has not been interpreted as requiring governments to take active steps to protect life, liberty and security of the person, but rather only to restrict governments from actively depriving people of those rights. In a different context, dealing with the adequacy of social assistance, the Supreme Court observed in Gosselin v. Québec that “[o]ne day s. 7 may be interpreted to include positive obligations.” Unless that day comes, however, commentators suggest that establishing a causal link between the harm of climate change and a specific government action may be the key hurdle for cases exploring human rights and climate change.
Collins, Lynda M. “An Ecologically Literate Reading of the Canadian Charter of Rights and Freedoms,” Windsor Review of Legal and Social Issues, Vol. 26, No. 1, February 2009.
Collins, Lynda M. “Safeguarding the Longue Durée: Environmental Rights in the Canadian Constitution,” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, Vol. 71, No. 20, 2015.
Nanda, Avnish, “Heavy Oil Processing in Peace River, Alberta: a Case Study on the Scope of Section 7 of the Charter in the Environmental Realm,” Journal of Environmental Law and Practice, Vol. 27, Iss. 2, April 2015.
Sabin Center for Climate Change Law, “Climate Change Litigation Databases.”
Stevenson, Flora da Silva Côrtes, “The Duty to Consult the Inuit in Canada’s Black Carbon Policy Inaction,” Journal of Environmental Law and Practice, Vol. 30, Iss. 2, May 2017.
Author: Robert Mason, Library of Parliament