Federal Court of Appeal Breathes New Life Into Climate Claims

The Federal Court of Appeal (FCA) has, in part, revived two claims challenging the federal government’s climate policy and legislation. On December 13, 2023, the FCA issued its decision in La Rose v. Canada, permitting the plaintiffs in two claims to amend their pleadings so that their claims could proceed to trial. Both sets of plaintiffs claimed, among other things, that the government’s response to climate change violated their right to life, liberty and security of the person under section 7 of the Charter of Rights and Freedoms (Charter).

Although the FCA allowed the section 7 claims to proceed, it upheld the Federal Court’s decision to strike, without leave to amend, the plaintiffs’ claims under section 15 (equality rights) of the Charter, the peace, order and good government (POGG) provision of the Constitution Act, 1867 (Constitution Act), and an alleged public trust doctrine.

While the merits of the plaintiffs' section 7 claims remain to be adjudicated, the decision clarifies that it is not plain and obvious that such claims have no reasonable prospect of success. Accordingly, they should be permitted to proceed to trial.

Background

This was an appeal from two Federal Court decisions striking claims that challenged the federal government’s climate change response: La Rose v. Canada (La Rose) and Misdzi Yikh v. Canada (Misdzi Yikh). The plaintiffs in La Rose are 15 children and youth from across Canada. The plaintiffs in Misdzi Yikh are members of two Indigenous groups.

All the plaintiffs asserted that Canada failed to adequately address the problem of climate change. They claimed that the existing policies, laws and actions for greenhouse gas reduction in Canada are insufficient, and thus violate several constitutional rights and doctrines. None of the appellants identified specific legislation or regulations that they said were unconstitutional; they challenged the government’s policy as a whole.

In both cases, the plaintiffs sought remedies under POGG, the public trust doctrine, and sections 7 and 15 of the Charter.

Claims Under the Public Trust Doctrine, POGG and Section 15 Struck

The FCA agreed with the lower court that the public trust doctrine asserted by the plaintiffs is not recognized in Canadian law. The plaintiffs contended that Canada has a duty to preserve and protect inherently public resources such as bodies of water, air and permafrost, for the benefit of future generations. They claimed this obligation arose from a public trust doctrine, and Canada’s “inaction” on climate change breaches the doctrine. The FCA rejected this doctrine and held that this claim had no reasonable prospect of success.

The plaintiffs also claimed that the federal government’s jurisdiction to pass laws to promote “peace, order, and good government” under section 91 of the Constitution Act limited its authority to make laws that are inconsistent with its constitutional duty and international obligations to limit global warming. The FCA held that the POGG power grants legislative authority and cannot be construed as imposing limits or obligations. It cannot be used to require Canada to enact climate change laws.

The FCA also held that the plaintiffs’ claims under section 15 of the Charter were not viable. The plaintiffs argued that Canada’s climate change legislation adversely or disproportionately affects the appellants, being young people and Indigenous people. The FCA found that the adverse or disproportionate effect of climate change on the appellants is not the kind of adverse effect that section 15 of the Charter is meant to address. Section 15 does not impose a positive obligation on the state to legislate to redress social inequalities.

Section 7 Claim Permitted to Proceed

The appellants claimed that Canada’s “inaction” on climate change deprived them of security of the person under section 7 of the Charter. In particular, the Indigenous plaintiffs’ pleadings spoke to a direct deprivation in the effects of climate change on their food security, culture and economies. The youth appellants’ pleadings were less specific in this regard.

The FCA found that the lower court erred by striking these claims without granting the plaintiffs leave to amend their pleadings. The Federal Court had found that the plaintiffs were asserting “positive rights,” which are generally not available under section 7. The FCA described the “blurred” line between negative rights and positive obligations, and the possibility that section 7, in special circumstances, could support positive rights. The FCA struck the claims under section 7 but granted the plaintiffs leave to amend the pleadings to provide more specificity and sufficient focus to permit constitutional analysis. Once properly amended, the claims can proceed to trial.

Key Takeaways

The FCA has now recognized that there may be viable challenges to climate change legislation under section 7 of the Charter. With sufficiently specific pleadings, such claims can likely survive a motion to strike and proceed to trial. Of course, this does not guarantee any particular outcome on the merits. It will be important to monitor these cases as they proceed to merits determinations.

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