While common law tends to evolve methodically, the impending climate crisis does not. The Federal Court of Appeal grappled with this dilemma in La Rose v Canada, 2023 FCA 241 "(La Rose FCA"), ultimately reinvigorating the plaintiffs' claims by concluding that climate change issues are justiciable and the governments' response (or lack thereof) may ground a section 7 Charter1 challenge..
Summary of the Case
The La Rose FCA decision concerns two separate actions. Both actions alleged that the Federal Government failed in its response to climate change which, as a result, violated the plaintiffs' section 7 (right to life, liberty, and security of person) and section 15 (equality provision) Charter rights:
- La Rose: This case was commenced by a group of youth between ages 10 and 19 residing across Canada. They argued that Canada's failure to address the problem of climate change has a disproportionate effect on their generation and "interferes with their physical and psychological integrity and their ability to make fundamental life choices."2
- Misdzi Yikh: This case was brought as a representative proceeding by the Dini Ze' (Head Chiefs) of two Wet'suwet'en House groups. They argued that Canada has contributed to climate change in a way that poses a "threat to their identity, to their culture, to their relationship with the land and the life on it, and to their food security"3 and has resulted in disproportionate deprivation to youth members and future generations.
Both actions were struck by the Federal Court without leave to amend. In both instances, the Federal Court of Appeal partially overturned the lower-court's decisions by ruling that the section 7 arguments were justiciable, advising that "[w]here novel Charter claims test the boundaries of a right, such claims may require a trial in order to understand the nature of the legislation, executive action or regulation and the harm experienced by claimants. This is one of those cases".4
Section 7: There's hope yet
Relying on the psychological distress caused by climate change, the Court found these cases have a stronger prospect of success and are more aligned with case law developments under section 7 than 15. "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." This case did not go as far as to conclude that section 7 gives rise to positive obligations, but it did clarify that section 7 rights, including those at issue in La Rose and Misdzi Yikh, may have both positive and negative elements (i.e. requirements and restrictions).
As to whether "climate change" issues are justiciable, the Court clarified that though politics and policy choices are usually outside the Court's domain, the resulting laws and their application are not. The Court found that the Misdzi Yikh pleadings spoke sufficiently of deprivation, in terms of the effects climate change is having on their food security, culture and economies which they attribute to "deficient legislative standards and permissive licensing of GHG-emitting projects."5 Though the La Rose claim was less clear, when read generously, the Court found Canada's failure to hit its emission targets under the Paris Agreement (enshrined domestically in the Canadian Net-Zero Emissions Accountability Act) to be "deprivations in that they deprive the appellants of the fruits of Canada's legislated commitments and compromise the appellants' section 7 interests."6
Given the generality of the pleadings, the plaintiffs' section 7 claims were struck in both cases but with leave to amend.
Section 15: Not the case to establish intergenerational equity
Both plaintiffs grounded their section 15 arguments on age discrimination – that the legislation and government actions of today will have adverse consequence on youth and future generations.7 The Federal Court of Appeal recognized that "[c]limate change is having a dramatic, rapidly unfolding effect on all Canadians and on northern and Indigenous communities in particular" and that it is "beyond doubt that the burden of addressing the consequences will disproportionately affect Canadian youth."8 Notwithstanding, the Court concluded that intergenerational equity is not currently within the scope of section 15. Because section 15 is retroactive (i.e., applied where a harm has occurred rather than will), the Court found expanding the case law in such a manner would be inconsistent with the "gradual, incremental change by which the law evolves."9 Consequently, the plaintiffs' section 15 arguments were struck.
Takeaways
The Court's finding that the psychological harm of climate change may ground a section 7 Charter argument presents a significant opportunity for future climate change litigation.
Further, the Federal Court of Appeal's obiter suggests that section 7 may give rise to positive rights or obligations in the context of climate change. Prior case law held that positive rights could be advanced in "special circumstances" though without guidance on what this means or how. In this case, the Court wrote that if climate change, which the Supreme Court in the GGPPA References said was "an existential challenge, a threat of the highest order to the country, and to the future of humanity which cannot be ignored"10 doesn't constitute "special circumstances", it is hard to conceive of anything that would.11
Although the section 15 argument was not successful it would be amiss to end this post without appreciating the Federal Court of Appeal's empathetic (and likely useful) language towards such argument. The Court recognized that "the international legal community is moving towards the recognition of youth climate rights and the promotion of intergenerational equality" including through the "United Nations Committee on the Rights of the Child which has urged states to take action to address environmental degradation and climate change, as they challenge children's rights to life, survival and development."12 It went on to write that, though it is not the current state of the law "[t]his distinction between present but self-perpetuating harm and harm that lies in wait (even if causing current psychological distress) may one day be irrelevant, and both may be able to sustain a cause of action under section 15." This language may help ground future litigation which in turn may make this premonition a reality.
Footnotes
1 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
2 Para 2.
3 Para 4 referencing para 2 of the Misdzi Yikh statement of claim.
4 Para 117.
5 Para 105.
6 Para 106.
7 Para 77.
8 Para 76.
9 Para 84.
10 2021 SCC 11 at para 167.
11 Para 116.
12 Para 87 and see General comment No. 26 (2023) on children's rights and the environment, with a special focus on climate change, United Nations Committee on the Rights of the Child, 93rdSess., U.N. Doc. CRC/C/GC/26 (2023) at paras. 63-67
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