Newly Chartered waters: constitutional claims about climate change

In La Rose v. Canada, 2023 FCA 241, the Federal Court of Appeal permitted a novel climate change action against the Government of Canada to proceed. The appeal court reversed the Federal Court’s decision that had struck out the claim. The Court of Appeal concluded contrary to two lower court decisions that climate change issues are justiciable and that government responses to them may ground a claim under section 7 of the Canadian Charter of Rights and Freedoms.

What you need to know

• Climate change claims may be justiciable. Even though “the question of climate change is complex” and legislation addressing it “reflects a political choice”, the Court held that the climate change claims, in this case, were not invariably too political or indeterminate to be decided by a court. It did so because the claims were tied to the allegation that Canada failed to meet the emission targets it set for itself in the Paris Agreement, which were ratified by Parliament.
• Climate change claims under section 7 of the Charter allowed to proceed. The Court held that the claim of a right to a healthy and livable environment, combined with the legislative sanctioning of something less, is a novel claim under section 7 but concluded it is not doomed to fail. The absence of a healthy and livable environment may directly deprive a claimant’s security of the person. The Court confirmed that the door has not shut on “positive rights” claims under section 7.
• Climate change claims are capable of proof. The Court of Appeal held that there is “no reason to conclude that harms flowing from climate change and climate-related legislation are manifestly incapable of proof”. There is “a vast body of scientific knowledge dealing with climate change, greenhouse gas emissions and their consequences on human health and the environment”.

The lawsuits: climate change policies and inaction violate the Charter

Background

Two groups of claimants (a group of children and youth and a group of Indigenous persons) sued the Canadian government for its failure to address climate change. Both actions sought remedies under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. One of the claims also alleged that legislation authorizing the current levels of greenhouse gas (GHG) emissions, along with the continued and past approvals of GHG-emitting projects, resulted in Canada breaching its obligations under international law in the Paris Agreement and domestic law in the Canadian Net-Zero Emissions Accountability Act. In response, Canada brought a motion to strike the claims as either not justiciable or, alternatively, as disclosing no cause of action.

Lower courts strike climate change claims

The Federal Court struck both the plaintiffs’ respective statements of claim. In one decision, the Federal Court held that the claims under the Charter were too political to be suitable for judicial determination, and the claim failed to disclose a “sufficiently discrete instance of state action” for Charter analysis¹.

In the other decision, the lower court also struck the claim as being not justiciable—the Charter claims fell beyond the courts’ institutional capacity due to the claims’ broad political nature. The Court noted that “[t]he issue of climate change, while undoubtedly important, is inherently political, not legal and is of the realm of the executive and legislative branches of government”². The Court also held that, despite the claims to positive obligations under section 7 and 15 of the Charter, the plaintiffs had failed to plead specific laws or actions for the Court to evaluate.

Federal Court of Appeal allows claims to proceed

The Federal Court of Appeal overturned both decisions, concluding that the section 7 Charter claims could properly be litigated. But it also held that the pleadings as framed “lack[ed] the focus necessary for constitutional analysis” and permitted the claimants to amend their section 7 pleadings³.

Claims are justiciable

The Court disagreed with the lower courts that “claims are not justiciable simply because the question of climate change is complex or because the legislation reflects a political choice on how to address the problem”⁴. Here, the plaintiffs had linked their claim to Canada’s failure to meet its commitments in the Paris Agreement, which were ratified by Parliament. This provided objective standards against which the Charter claims could be assessed. Despite the policy-laden nature of the claim, the plaintiffs were not seeking to “tell Canada how to fulfill its commitments”⁵.

Section 7 claim can proceed

The Court explained that trying to classify the section 7 claims as either positive or negative rights claims was unhelpful. Rather, section 7 guarantees the right to life, liberty or security of the person. And here, the plaintiffs argued that the legislation and Orders in Council, which permit GHG emissions, deprived them of their section 7 rights. At the pleadings stage, this allegation was enough to permit the claim to proceed, but the Court required the plaintiffs to amend their pleadings to focus the claims on the constitutional analysis.

In its reasons, the Court used striking language about the threat posed by climate change. In the Court’s words: “Climate change’s current and potential effects are widespread and grave; they include loss of land and culture, food insecurity, injury and death … [i]f these do not constitute special circumstances [grounding a section 7 claim], it is hard to conceive that any such circumstances could ever exist”⁶.

Other claims have no reasonable prospect of success

The Court dismissed the plaintiff’s claims under the “public trust doctrine”, the federal government’s power under section 91 of the Constitution Act, 1867, and section 15 of the Charter because:

• the public trust doctrine, framed by the plaintiffs as imposing a trust-like duty on Canada to preserve and protect inherently public resources for future generations, does not exist in Canadian law;
• Canada’s power to make laws for the peace, order and good government of Canada under section 91 of the Constitution Act, 1867 does not impose a positive obligation on Parliament to enact certain laws, such as those that reduce GHG emissions; and
• the adverse or disproportionate effects of climate change on the plaintiffs are not the kind of adverse effects that section 15’s equality guarantee addresses—potential future intergenerational inequalities are beyond its scope.

Implications: increasing exposure to climate change claims

With strong language, the Federal Court of Appeal affirmed the “existential challenge” posed by climate change and the courts’ willingness to hear claims that address its potential harms.

This decision follows the trend of courts’ willingness to entertain novel climate change claims. For example, the Ontario Superior Court recently addressed a Charter claim against the Ontario government related to its GHG targets. It observed that there was “a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under section 7 of the Charter”⁷.

These cases reflect the growing focus on whether companies or governments can achieve their GHG reduction or net-zero targets. They also demonstrate that setting a target and then failing to meet it increases the risk of environmental claims.