In Sierra Club of British Columbia Foundation v. British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74 [Sierra Club], earlier this year, the British Columbia Supreme Court found that the courts have the power to enforce reporting requirements mandated in British Columbia's climate change legislation on the provincial government. This decision incrementally opens the door for courts to hold governments accountable, where across Canada, at the federal and provincial levels, governments are grappling with their obligations under newly enacted requirements under climate change legislation. Representing a significant step in the development of public interest climate change litigation in Canada, where previously, the Federal Court ruled that charter claims brought on the basis of a government's failure to stringently regulate emissions were non-justiciable and therefore could not be advanced in the courts.1
Sierra Club delineates justiciability of climate change accountability and reporting obligations
In 2018, BC passed amendments and renamed its climate change statute from the Greenhouse Gas Reductions Targets Act to the Climate Change Accountability Act (the "Act"). In this change, the legislature introduced a stronger transparency and accountability framework. The Act now sets various greenhouse gas emission targets and imposes statutory obligations on the Minister of Environment and Climate Change Strategy (the "Minister") to prepare an annual climate accountability report.
At issue in Sierra Club was whether the content and extent of BC's reporting on progress towards its climate change targets was justiciable, and if so, whether the Minister's 2021 Climate Change Accountability Report reasonably complied with the reporting requirements under the Act. The 2021 Climate Change Accountability Report was the third report published by the Province under the regime.2
The petitioner, the environmental group Sierra Club of British Columbia ("Sierra Club"), asserted that the Minister's report did not include plans for meeting province-wide targets for 2025, 2040 and 2050, and did not include a plan for meeting the 2030 target to cut carbon pollution in the oil and gas sector. Sierra Club argued that the Report failed to meet the Act's statutory requirements and was therefore an unreasonable exercise of the Minister's reporting obligations.3 The Sierra Club was partially successful.
The Minister sought a declaration that its reporting obligations under the Act were not justiciable. The doctrine of justiciability generally operates to allow courts to decline to decide issues of public policy or issues of whether a law advances the public interest.
In finding the Act's statutory requirements were justiciable and enforceable by the court, Justice Jasvinder S. Basran wrote:
The interpretation of the Minister's statutory reporting obligations under s. 4.3(1)(h)(i) is the subject matter of this judicial review. It has a sufficient legal component because it can be assessed by an objective legal standard considering whether the Minister met the specific, mandatory reporting requirements of the aforementioned section of the CCAA.4
The Minister argued in the alternative that the level of detail included in the Report was reasonable given the discretion afforded to the Minister under the Act.5 Justice Basran accepted that argument and concluded that the Minister's reporting was reasonable in light of the specific statutory provisions and discretion afforded the Minister under the Act. Finding that Sierra Club sought a far more detailed reporting requirement than what was required by the Act, the court concluded as follows:
Sierra Club seeks information that would enable it and the public to review the form, content, and expected results of BC's climate change initiatives. While this may be laudable, it is not statutorily required under the CCAA.6
Anticipate future challenges to climate change accountability and reporting
There will undoubtedly be continued political pressure on governments to provide accountability and reporting on climate preservation goals. This trend is expected across Canada as the federal government and other provinces have recently passed similar climate change legislation with the purpose of promoting transparency and accountability.7
Sierra Club's finding that the courts can enforce reporting requirements leaves the door open for future judicial oversight. The Court also provides guidance as to when and how the courts will be willing to provide oversight and require governmental accountability. We can expect public interest groups will continue to push to hold governments accountable in following their newly statutorily mandated climate change reporting obligations.
Footnotes
1. La Rose v Canada, 2020 FC 1008 and Misdzi Yikh v Canada, 2020 FC 1059.
2. The current report was published in November 2022. See: CleanBC, 2022 Climate Change Accountability Report, (Victoria: Ministry of Environment and Climate Change Strategy, November 2022).
3. Sierra Club of British Columbia Foundation v. British Columbia (Minister of Environment and Climate Change Strategy), 2023 BCSC 74, at paras 2-3.
4. Ibid, at para 45.
5. Ibid, at para 4.
6. Ibid, at para 75.
7. The Climate and Green Plan Act, S.M. 2018, c. 30, Sched. A; Canadian Net-Zero Emissions Accountability Act, S.C. 2021, c. 22
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