On October 20, 2008, the Federal Court dismissed a lawsuit filed by Friends of the Earth (FOTE) asking that the Government of Canada be ordered to comply with its obligations under the Kyoto Protocol, relying on the Kyoto Protocol Implementation Act, 2007 (KPIA), which became law on June 22, 2007. The Court held that the Act did not contain express language requiring Canada to comply with its substantive obligations under the Kyoto Protocol. The Court further held that in the absence of clear language expressly granting the Court the jurisdiction to review such issues of public policy, it could not force the executive branch of government to implement a regulatory scheme that complies with its obligations under the Kyoto Protocol.
Canada ratified the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) in December 2002. The KPIA was introduced in Parliament as a private member's bill (Bill C-288) and became law on June 22, 2007. The federal Government did not support the Bill and had in fact stated previously that Canada would not meet its Kyoto targets. Under the Kyoto Protocol, Canada's GHG emissions were to be reduced to 6% below 1990 levels. Instead, the federal Government released its climate change plan entitled Turning the Corner in March of 2008. As a consequence of the federal Government stating that it would not honour the targets set out under the Kyoto Protocol, FOTE, a Canadian environmental NGO, commenced legal proceedings seeking declaratory and mandatory relief related to a number of alleged breaches of duty arising from the KPIA.
FOTE argued firstly that the Minister of the Environment failed to comply with the duty imposed in section 5 of the KPIA to create a climate change plan that would permit Canada to meet its obligations under the Kyoto Protocol. Secondly, it alleged that the Government breached sections 8 and 9 of the KPIA by failing to publish proposed regulations in the Canada Gazette and failing to prepare a statement setting out the greenhouse gas emission reductions reasonably expected to result from each proposed regulatory change and from other proposed mitigation measures. Lastly, it alleged that the Government breached section 7 of the KPIA by failing to make, amend or repeal regulations to ensure that Canada met its target.
The Government argued that courts do not have the jurisdiction to order it to carry out the duties that FOTE was seeking to enforce. It argued that the KPIA creates a framework of accountability. If the federal Government does not meet the scientific, public policy and legislative goals set out therein, it will be accountable to voters at the polls, not the courts.
The Federal Court agreed. The Court determined that although it may have the ability to consider whether the Minister has failed to carry out his obligation to prepare a Climate Change plan, it does not have the ability to evaluate the contents of that plan.1 The Court also reviewed the principles of statutory interpretation and determined that the KPIA does not require strict compliance with the Kyoto Protocol's emissions targets. It also held that if the Minister has declined to prepare a Climate Change Plan that meets the requirements of the Kyoto Protocol, and made that decision for reasons of public policy, the courts are not permitted to review and examine the merits of that decision.2
The Court also found that in the absence of clear statutory language courts do not have the jurisdiction to require that legislation be implemented. It held that "it is undeniable that an attempt by the Court to dictate the content of the proposed regulatory arrangements would be an inappropriate interference with the executive role."3 Because there is no express language in the KPIA setting out Parliament's intention that Canada was required to strictly adhere to its Kyoto Protocol commitments, the Court was unable to impose a duty on the Government to implement a regulatory framework that would contain such substantive requirements. Therefore, the Court determined that the KPIA excludes judicial review over issues of substantive compliance with the Kyoto Protocol.
The Court dismissed FOTE's application, but did leave the door open to the possibility that it may have the ability to order the enforcement of mandatory elements of the KPIA such as the requirement of the preparation and publication of Climate Change Plans, statements and reports. However, those aspects of the KPIA were not raised by the FOTE in its applications.
The decision gives the green light to the Government to proceed with its "made in Canada" climate change strategy, Turning the Corner, which is not tied to the Kyoto Protocol and is not expected to result in Kyoto compliance. The decision also allows the Government to explore a bilateral climate change agreement with the United States as an alternative to the multilateral Kyoto approach. The Government announced its intention to pursue such an agreement on November 5, 2008, the day after the US election.
The full decision of the Federal Court can be viewed at:
1. Friends of the Earth v. Canada (Governor in Council), 2008 FC 1183, at para 34.
2. Supra, at para 36.
3. Supra, at para 39.
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