Mapping human rights-based climate litigation in Canada

By Sara L Seck, based on an article co-written with Lisa Benjamin

In line with global trends, there has been an increase in human rights-based climate litigation brought in Canadian courts in recent years. A federal state comprised of ten provinces, three territories, and diverse Indigenous peoples (First Nations, Inuit, or Métis), Canada provides a rich and multifaceted case study. In our article, published in a special issue of the Journal of Human Rights and the Environment, we consider three different dimensions of Canadian climate litigation: substantive human rights arguments; procedural environmental human rights claims; and the potential of transnational corporate accountability human rights-based claims.

It is no surprise that the experience of climate change across the Canada is not uniform, given its geographic scope and diversity. For example, the Inuit have been long aware that climate change poses a serious threat to human rights as evident from the petition to the Inter-American Commission on Human Rights in 2005. More recently, the wildfires and extreme heatwave in Western Canada and concern over flooding and sea-level rise among coastal communities has drawn attention to the urgency of adaptation. However, the economy remains heavily tied to the fossil fuel industry particularly in Alberta and in Newfoundland & Labrador, and Canadians have among the highest per capita CO2 emissions in the world. Canada has repeatedly failed to meet its own inadequate climate mitigation targets, yet a 2007 legal challenge to this failure was held to be non-justiciable. More recent legal challenges to federal carbon pricing legislation came from provinces who viewed it as federal overreach, however the majority of the Supreme Court of Canada held in favour for the federal government in 2021, noting in passing that climate change is a serious threat to Indigenous peoples, including their ability to maintain traditional ways of life.

Against this background, our article considers emerging trends in human rights-based claims.

Substantive human rights arguments

The Canadian Charter of Rights and Freedoms does not include a right to a clean, healthy and sustainable environment, although the Quebec Charter does, while some argue that an unwritten constitutional principle of ecological or environmental justice could play a similar role. Each of the four key substantive Canadian human rights-based climate cases to date have invoked the right to life, liberty and security of person under s7 of the Charter, as well as the right to equality under s15 in challenging the inadequacy of government action or inaction.

ENvironment JEUnesse vs Attorney General of Canada, as a case brought in Quebec, also invokes the Quebec Charter’s right to a healthful environment. However, class certification of youth-based plaintiffs was not granted and leave to appeal to the Supreme Court of Canada is underway. By contrast, the litigants in La Rose v Canadachose to bring their federal court action as a group of individual Indigenous and non-Indigenous youth plaintiffs from across the country. In addition to the Charter, the plaintiffs invoked the public trust doctrine; however the court held the Charter claims non-justiciable while the public trust claims disclosed no reasonable cause of action. This decision is under appeal, as is a second federal court case, Lho’imggin v Canada, this time brought by two houses of the Indigenous Wet’suwet’en. The plaintiffs in this case again invoked the Charter and public trust doctrine as well as a novel constitutional claim. The federal court held the claims to be non-justiciable, to disclose no reasonable cause of action, and that the remedies sought were not available.

These first three cases are all under appeal, and all encountered hurdles in first instance. By contrast, the seven Indigenous and non-Indigenous youth plaintiffs in Mathur v Ontariosurvived a motion to dismiss and the case is proceeding. Here, the Ontario court held that the challenge to specific quasi-legislative Ontario climate initiatives that rolled back previous climate targets is reviewable by the court, and a justiciable question was formulated as to whether the government conduct violates Charter rights.

Given the early stage of litigation of each of these four cases, it is too early to draw definitive conclusions. However, what is clear is that getting courts to overcome their reluctance to hear the substance of human rights-based climate actions remains a hurdle in Canada.

Procedural environmental human rights claims

Canada has so far rejected calls to become a party to a procedural environmental rights treaty such as the Aarhus Convention, and governments and courts have been slow to fully embrace the rights of Indigenous peoples under UNDRIP. Our article explores the challenges facing litigants that have been attempting to exercise diverse environmental human rights to push back against governments and government decision-makers that are either hostile to climate action or reluctant to make decisions contrary to industrial development. We observe that opposition to fossil fuel developments are often led by Indigenous peoples relying upon s35 constitutional rights yet do not refer to climate change, and Indigenous peoples may be equally opposed to hydroelectric projects that infringe their rights.  More generally, the challenges facing environmental human rights defenders in the Canadian context merits further attention.

The potential of transnational corporate accountability human rights-based claims

While to date no human rights-based corporate accountability cases have raised climate change in Canadian courts, we conclude our article by contemplating whether there is real potential for such actions in the future whether brought by Canadian or foreign plaintiffs. The cases we consider above all invoke rights in the Canadian constitution rather than directly drawing upon sources of international human rights law, and Canada takes a dualist approach to international treaty law. However, Canada is monist when it comes to customary international law, and the 2020 transnational corporate accountability decision in Nevsun Resources Ltd v Araya confirms that corporations may be directly liable for breaching certain obligatory universal norms. As it will be up to the trial judge to determine whether the common law should evolve in this way and which norms, this decision may create opportunities to raise novel human rights-based climate arguments in the future, provided courts are open to hearing them, and procedural hurdles such as fear of burdensome costs awards can be overcome.

Featured image: West Coast Environmental Law’s post Should Canada’s updated climate ambition focus on the necessary or the achievable? | West Coast Environmental Law (wcel.org)