When abroad, I have often bragged about Canada's legal
system, how competent and respected are our courts and how no one
is above the law. But this boast has taken a blow in the area of
climate change and the Kyoto Protocol.
The Kyoto Protocol is a binding international agreement reached
in Kyoto, Japan, in 1997, in which developed countries agreed to
set limits on the greenhouse gas emissions that cause climate
change. Canada was one of the first signatories and ratified the
Protocol in 2002. In 2005, the Liberal government proposed an
implementation plan, but the bill had not passed when the
Conservatives won a minority government in the 2006 federal
Harper's Conservatives oppose Canada's Kyoto commitment,
but Parliament adopted the Kyoto Protocol Implementation Act,
2007 despite Conservative objections. The KPIA requires Canada
to develop a plan to comply with the Protocol and to publish annual
progress reports. What was the response of our national government?
Sulky defiance: our party did not vote for this law and we
won't comply with it. (This is part of why international
environmental groups called Canada "Fossil of the Year"
at the Copenhagen climate change conference last December.)
Outrageous, but don't Canadians have a remedy to such
defiance of Parliament? Won't our courts enforce our law? In
September 2007, environmental group Friends of the Earth (FOE)
launched a lawsuit seeking an order that our government comply with
the KPIA. In 2008, the Federal Court of Canada decided that this
wasn't their job. It's "not justiciable," i.e.
not a matter for the courts, they said: climate change is too
complicated and political. In 2009, the Federal Court of Appeal
agreed, dismissing FOE's appeal.
Are our federal courts really less capable than courts in the
United States? Two major U.S. courts of appeal decided last year
that climate change is justiciable; it is simply the
application of existing legal principles to new facts. Courts have
a long tradition of adapting the law to complex new social,
economic and scientific facts. In Connecticut v. American
Electric, the Second Circuit held that nuisances caused by
climate change are justiciable and permitted eight U.S. states, the
City of New York, and three land trusts to sue the five largest
coal-fired electrical-generating companies. In Comer v. Murphy
Oil, the Fifth Circuit Court of Appeals ruled that victims of
hurricane Katrina can sue major oil companies for their
contributions to climate change and its impact on their disaster.
In a related case, the U.S. Army Corps of Engineers has already
been held liable for their contribution to the flooding of New
None of these courts was frightened off by government arguments
about justiciability, even though the American cases involve
multiple parties and scientific issues about emissions, the
atmosphere and damages to public and private property. The American
courts, in other words, consider themselves quite capable of
deciding immensely complex climate change cases.
In comparison, FOE asked our federal courts to do something
simple: to judge whether our national government is complying with
a short, valid, domestic law that the government acknowledges it
doesn't obey. Our courts were not asked to make any of the
difficult decisions about climate change, such as causation,
damage, allocation or remedy, that the US courts have taken on.
They were asked only to order the government to comply with the
KPIA by producing a good faith implementation plan plus progress
reports. How could this be non-justiciable?
FOE has sought leave to appeal from the Supreme Court of Canada.
Let's hope that our top judges have the courage and competence
of our American cousins, and that they will help to restore the
rule of law in Canada.
Reprinted with permission from Precedent Magazine
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