Lessons from the Aarhus Compliance Committee on Legal Costs and Access to Environmental Justice

Prairie Mountain, Kananaskis, AB, Canada.

This post is part of the Lessons from the Aarhus Convention and Escazú Agreement for Procedural Environmental Rights in Canada blog symposium.

Introduction

Access to justice is a fundamental value that ensures everyone has equal opportunity to seek fair resolutions, remedies, and protection through the legal system. One of the most significant barriers to access to justice is the expense of accessing the legal system.[1] For example, the high costs of legal and court fees are a significant barrier to accessing justice. These fees can include not only the cost of legal representation, but also the various formal and informal court fees associated with a trial. Some courts require litigants to pay filing and hearing fees (at 646).[2] Litigants may also face expenses for obtaining transcripts or other materials and, in some cases, hiring expert witnesses (Ibid at 647).[3]

Adverse cost awards, which force an unsuccessful litigant to pay the other party’s legal expenses, can exacerbate this problem. While these awards may help successful parties recover some of the fees outlined above, they can impose an even greater financial burden on unsuccessful parties as they risk being held liable for the other side’s costs on top of their own (Ibid at 648).[4]

While access to justice applies across civil and criminal matters, each context poses unique challenges, and expense concerns are no exception. In the Canadian environmental context, public interest litigators have cited the risk of adverse cost awards as one of the main barriers to access to justice (at 49).[5] These awards can discourage individuals, lawyers, and non-governmental organizations (NGOs) from pursuing cases, even if they involve important rights because the potential financial risk is too high (at 13).[6] In light of these concerns, this blog considers how the Aarhus Convention protects against prohibitive expenses in environmental litigation with a focus on cost awards. To do so, this blog explores the history of adverse cost awards and the development of protections in the United Kingdom through the involvement of the Aarhus Convention’s Compliance Committee.

By concluding with an overview of cost concerns in the Canadian context, the blog suggests that there may be lessons for Canada regarding the role that a compliance committee can play in providing a platform for the public to address costs awards concerns and promote political will to legislate in response to the jurisprudence and literature regarding the barriers that cost awards impose on access to environmental justice in Canada.

The Aarhus Convention – protections against prohibitive costs

The Aarhus Convention protects access to justice rights in the environmental context through the guarantees under Article 9, which requires states to ensure that individuals have access to review procedures to challenge significant environmental decisions, or acts or omissions by private persons or authorities that contravene national law relating to the environment. (For an overview of the Convention’s three pillars and articles, see this blog). Under article 9(4), the Convention addresses the expense barrier to access to justice. The article requires that the procedures covered under article 9 “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.”

While the Convention does not define “prohibitively expensive”, various Aarhus Compliance Committee (the “Committee”) decisions have dealt with the application of this guarantee to costs awards. In particular, the history of United Kingdom’s non-compliance with the Convention for prohibitively expensive costs awards in environmental litigation has illustrated how the public can and has used the Convention to advance access to justice. The Convention’s limitations due to non-legally binding enforcement mechanisms may slow UK’s progress towards compliance, but progress has nonetheless been made towards improving protections against the costs barrier to access to justice in the environmental context.

Costs protections in the UK – progress, challenges, and delays

The Committee first received complaints regarding the UK’s non-compliance with article 9(4) in 2008 through three written submissions: ACCC/C/2008/23, ACCC/C/2008/27 and ACCC/C/2008/33.

In ACCC/C/2008/23, the complainant was an individual alleging the UK’s non-compliance with article 9(4) due to the outcome of their private nuisance proceedings against an operator with a waste composting site. Here, the Committee found that, while the £5,130 plus interest costs order against the complainant was not prohibitively expensive, the order was an unfair and inequitable costs award that was non-compliant with article 9(4) in the strict sense. This was due to the fact that the complainant was ordered to pay the entirety of the Environment Agency’s legal fees for participating in the Court of Appeal proceedings. The Committee emphasized that this was inequitable given that the Court of Appeal’s judgment was clear that if the operator had cooperated with the complainant’s invitation to name an alternative expert, the injunction may have been varied by consent without the need for the Council and Agency to incur these costs (at 9).[7] However, the Committee declined to make any recommendations due to their absence of any evidence that this was the result of a “systemic error” (Ibid.)[8] This decision draws attention to one challenge with the Aarhus Convention’s implementation where a finding of a state’s non-compliance requires enough precedent to establish that an adverse costs award in one case is indicative of an overarching trend in the jurisprudence.

In ACCC/C/2008/27, the complainant was an NGO coalition alleging that, following the dismissal of its application for judicial review, the court order to pay the full costs (£39,454) of the Department of Environment for Northern Ireland violated its rights under Article 9(4). Here, the Committee found that the order amounted to non-compliance with 9(4) as it was prohibitively expensive and that allocating the costs was unfair. Unlike the decision above, the Committee did make recommendations on this point for the UK to “review its system for allocating costs in applications for judicial review within the scope of the Convention, and undertake practical and legislative measures to ensure that the allocations of costs in such cases is fair and not prohibitively expensive.”

In ACCC/C/2008/33, a coalition of six environmental NGOs made a complaint alleging the law of England and Wales failed to comply with Article 9 of the convention, including that the cost awards were prohibitively expensive. The Committee found the UK was non-compliant “by failing to ensure that the costs for all court procedures subject to article 9 are not prohibitively expensive, and in particular by the absence of any clear legally binding directions from the legislature or judiciary to this effect.”

Following these communications, additional Committee reports have found the UK in non-compliance regarding prohibitive costs: ACCC/C/2012/77, ACCC/C/2013/85, ACCC/C/2015/131, Communication ACCC/C/2016/142, and Decision VII/8, VI-8K, and V/9n on general issues of compliance.[9]

Introduction of costs protections in England and Wales

While the above communications and the ongoing review of the UK’s non-compliance with 9(4) mark a slow and challenging road to improving access to justice, the UK’s costs regime has improved. In 2013, the UK introduced an environmental costs protection regime into the Civil Procedure Rules of England and Wales (at 6).[10] The new “Aarhus Convention claim” protections were a welcome development and are the only example of the UK legislating on the Convention.[11] Under the 2013 rule, costs orders relating to judicial reviews of matters under Article 9 of the convention were subject to a fixed costs cap.

Despite the improvements, progress has not been linear. Progress reports following the 2014 finding of the UK’s non-compliance found that further amendments to the Civil Procedure Rules were needed to bring England and Wales in line with Article 9(4) (at 21).[12] For example, the 2013 version of the rules only provided costs protections for judicial reviews despite 9(4) applying to all procedures under Article 9. Additionally, the Committee found that fixed costs caps may be prohibitively expensive for some (at para 44).[13]

In light of the Committee’s recommendations, England and Wales amended the Civil Procedure Rules in 2017. While the Committee notes that some of these changes were a positive step toward compliance, some fell short of upholding the broad scope of the guarantee under 9(4). In 2020, the Committee outlined that some amendments could lead to a step backward such as where the rules added that the costs cap could be varied upwards or downwards (Ibid at 46).[14]

While concerns around the UK’s compliance with the Convention are ongoing, the Aarhus Convention and the Compliance Committee’s role in improving access to justice in the UK is evident in the realm of costs awards. The ongoing review process through the Aarhus Compliance Committee provides a platform for the public to hold the government accountable to their obligations under the Convention. Without a clear legally binding mechanism in the Convention, the dialogue may more often than not amount to minor, incremental improvements with non-linear progress. However, it is unclear whether there would be a platform to advance improvements and generate political will to legislate on costs protections without the guarantees under Article 9(4) of the Convention.

Access to justice and cost awards in Canada

In Canada, scholars and public interest litigators have long cited adverse cost awards as a major access to justice concern in the environmental context and public interest litigation more broadly. Over the years, the courts have taken up this issue, and significant advancements have been made in the public interest cost award jurisprudence.

One of the primary cases in this jurisprudence is the decision of the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band (2003 SCC 71). In this case, the SCC recognized that the unique policy considerations underpinning public interest litigation may warrant a departure from traditional costs rules.

As summarized in Okanagan Indian Band, the traditional rule in Canada follows the English common law, where courts have the discretionary jurisdiction to award costs to the prevailing party after a judgment is given. The rationale for costs awarded under the traditional approach is compensatory, emphasizing the apparent faults of the unsuccessful party arising from either their conduct during litigation or the underlying claim (at 204).[15] Following Okanagan and subsequent jurisprudence, the courts now recognize that the compensatory nature of these awards is only one consideration in public interest litigation (Ibid).[16]

However, uncertainty over costs awards in public interest litigation in Canada pervades. In 2014, the Federal Court of Appeal and Federal Court Rules Committee initiated a Sub-Committee to address the issue of costs awards.[17] The Sub-Committee published a discussion paper in 2015 to engage in discussions with the community. The paper set out four principal purposes that costs awards seek to achieve: (1) indemnification; (2) discouraging improper, vexatious, and unnecessary litigation; (3) encouraging settlement; and (4) facilitating access to justice.

Three public interest environmental groups, the Canadian Environmental Law Association, Ecojustice, and the University of Victoria Environmental Law Centre made a joint submission to the Sub-Committee in 2015. Their submission emphasized that, at the federal court level, there is no legislated presumption regarding costs rules except for class action and immigration cases (at 8).[18] The submission provides an overview of the unpredictable jurisprudence on public interest costs awards and resulting uncertainty that poses an access to justice barrier for public interest litigators in the environmental context and beyond. While there continues to be progress towards addressing the access to justice barriers that costs awards pose, the issue of uncertainty remains a concern.

For example, in more recent years, the Supreme Court of Canada decision in Anderson v Alberta (2022 SCC 6) marked another step towards cost protections for public interest litigators. The case involves the advance cost award application of the Beaver Lake Cree Nation (at para 73). The court held that parties bringing “truly exceptional” cases involving the public interest may apply to have the court order the other party to pay some or all of the legal fees of the party bringing the case.[19] As an intervenor in this case, Ecojustice made a submission that cited the UK’s approaches to protective costs as an illustration of how the courts can help to protect access to justice for public interest litigants through cost protections. While Ecojustice holds the SCC’s decision in Anderson as a “win for equitable access to justice,” there may still be uncertainty over what cases courts consider “truly exceptional.”

Considering both the progress towards improving access to justice and the persisting uncertainty regarding costs awards, the example of the UK’s engagement with the Aarhus Convention may suggest that oversight from a body like the Aarhus’ Compliance Committee could enhance progress towards obtaining certainty and preventing prohibitive expenses in the Canadian context. In considering the UK’s history of developing cost protections, the Canadian jurisprudence and initiatives such as the Federal Court Sub-Committee reveal a need for a mechanism like the Compliance Committee that would allow the public to address concerns regarding cost awards and engender the political will to legislate on these protections.

[1] https://www.justice.gc.ca/eng/csj-sjc/access-acces/index.html

[2] Semple, Noel. (2016). The Cost Of Seeking Civil Justice In Canada. THE CANADIAN BAR REVIEW, 93 (3), 639-673. https://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=1040&context=lawpub at 646.

[3] Ibid at 647.

[4] Ibid at 648.

[5]CELA https://cela.ca/wp-content/uploads/2019/07/Costs-Access-to-Justice-Public-Interest-Envl-Litigation.pdf at 13, citing Chris Tollefson, “Costs and the Public Interest Litigant: Okanagan Indian Band and Beyond” (2006) 19 Can. J. Admin. L. & Prac. 39 at 49. Here, CELA writes “a survey of public interest environmental litigators in Canada concluded that the spectre of an adverse costs award was the most formidable access to justice barrier confronting their litigation clients” and confirms that this position reflects their experience as well.

[6] Ibid CELA at 13.

[7] Secretariat of the Aarhus Convention, “Findings and Recommendations of the Aarhus Convention Compliance Committee with regard to Communication ACCC/C/2008/23 Concerning Compliance by the United Kingdom” (18 October 2010) at 9.

[8] Ibid.

[9] For a summary of the Committee’s findings, see the Meeting of the Parties “Decision VII/8s concerning compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention” (18-20 October 2021).

[10] “Report of the Compliance Committee* Compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention” (11-13 September 2017) at 6.

[11] Landmark Chambers Blog – “5 – The Status of the Aarhus Convention in English Law in 2023” (Wednesday 19 April 2023).

[12] See “Second progress review of the implementation of decision V/9n” (2017) at 21.

[13] “Second progress review of the implementation of decision VI/8k on compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention” at para 44.

[14] Ibid at para 46

[15] https://www.elc.uvic.ca/wordpress/wp-content/uploads/2015/02/Costs-in-Public-Interest-Litigation-Revisited_TheAdvocatesQuarterly197.pdf at 204

[16] Ibid.

[17] https://www.fct-cf.gc.ca/Content/assets/pdf/base/Costs%20discussion%20paper%20(ENG)%20revised%20oct%205-2015.pdf