Appellate Court Resuscitates Climate Change Charter Challenge

• Published date: 19 January 2024
• Subject Matter: Environment, Government, Public Sector, Litigation, Mediation & Arbitration, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Constitutional & Administrative Law, Trials & Appeals & Compensation, Climate Change, Indigenous Peoples
• Law Firm: Fasken
• Author: Ms Bridget Gilbride, Kimberly Potter and Will Andrews

On December 13, 2023, a unanimous Federal Court of Appeal re-opened the door to two separate challenges to the Government of Canada's response to climate change.

This decision, La Rose v. Canada, ¹ involved appeals from two Federal Court decisions. The La Rose appellants were 15 children and youth between the ages of 10 and 19 (at the time of filing), residing across Canada. The Misdzi Yikh appellants are two Wet'suwet'en House groups comprising the Likhts'amisyu (Fireweed) Clan, Misdzi Yikh (Owl House), and Sa Yikh (Sun House), and each of the House groups' dini ze' or Head Chief. The La Rose appellants and Misdzi Yikh appellants had brought separate actions against Canada alleging, among other things, that its failure to address the problem of climate change violated their rights under sections 7 and 15 of the Charter.

The Federal Court below had struck the La Rose and Misdzi Yikh claims without leave to amend on the basis that the claims were not justiciable ' in other words, that the claims concerned matters beyond the capacity or legitimate role of a court. The Federal Court was of the view the claims would require the court to adjudicate on broad and diffuse aspects of government conduct, which are political matters, and not matters for the courts. ²

The Federal Court of Appeal disagreed and allowed the appellants' joint appeal, in part, finding that the section 7 claims are justiciable. The court found that the appellants' section 7 claims were linked to Canada's alleged failure to meet its commitments in the Paris Agreement, commitments ratified by Parliament, and therefore there are legally-defined, objective standards against which the Charter claims can be assessed:

The claim of a right to a healthy and livable environment, and the legislative sanctioning of something less, explores the scope of section 7 and tests its boundaries. The argument is novel, but it is not doomed to fail. Courts should be cautious in striking claims at an early stage. It is trite law that novel but arguable claims should be allowed to proceed so as to not inhibit the development of the common law [...]. The law is not static and unchanging'actions that were deemed hopeless yesterday may succeed tomorrow. It is for this reason that courts must be cautious about striking claims and err on the side of allowing novel but arguable claims to proceed. ³

However, the court held that the claims as pleaded should be struck, as they were "overbroad" and failed to "zero in on"...