Climate Change Law Blog Series: Climate Change Litigation in Canada

14 Jan Climate Change Law Blog Series: Climate Change Litigation in Canada

Climate Change Law Blog Series:
Climate Change Litigation in Canada

This is the first post in the Environmental Law Centre’s new blog series exploring climate change law in Canada. This blog series will provide updates on climate change law developments and include insights from our related law reform research. This blog series is generously funded by the Alberta Law Foundation.

While still in its infancy in Canada, climate change litigation is likely to become an increasingly important point of legal consideration (especially as governments give increased attention to climate change issues and as climate change impacts begin to manifest).

In Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), the B.C. Supreme Court considered a challenge to administrative decisions based on climate change considerations. In this case, a public interest group (Voters Taking Action on Climate Change (VTACC)) sought review of the decisions which allowed expansion of a coal handling and storage facility.

The primary ground of the VTACC’s challenge was that the Chief Inspector of Mines lacked jurisdiction to issue the amending permit in issue. Rather, the VTACC argued that the Minster of Energy and Mines had jurisdiction to issue the amending permit but erroneously declined to exercise her jurisdiction. As a secondary ground, the VTACC challenged the decisions on the ground that the requirements of natural justice and procedural fairness were breached.

The VTACC indicated that it was opposed to expansion of the facility because the facility was part of integrated plan to increase thermal coal exports from B.C. thereby significantly increasing greenhouse gas emissions (para. 36). The Court noted that the VTACC devotes considerable time, energy and resources to advocacy and education about B.C.’s coal export plans. Ultimately, however, the VTACC was not successful in its bid to have the decisions struck.

The VTACC argued that it ought to be granted public interest standing as it met the necessary requirements. Public interest standing allows a person to bring legal action to protect a matter of public interest even though that person is not directly affected by the matter. In order to be granted public interest standing, the person must raise a serious justiciable issue, have a genuine interest in the action, and the action must be a reasonable and effective means to bring the case to court.

The Court determined that the VTACC should not be granted standing to challenge the government’s decisions because it did not raise a serious justiciable issue (para. 59):

Applying my discretion in the manner directed by the Supreme Court of Canada, I find that the defined issue does not raise a sustainable constitutional issue or one of such public importance that it transcends the interests of those directly affected. It does not address the area of advocacy that VTACC says it represents: urging governments to take meaningful action to address climate change …

The Court found that it would be a poor use of judicial resources to litigate the matter given that the case is limited to review of the decision of the Chief Inspector of Mines and the determination the Minster of Energy and Mines, neither of which are issues of public importance or engage the broader issues of climate change (para. 65). As the Court stated (para. 58):

The issue that is at the centre of VTACC’s advocacy efforts concerning whether the province ought to be authorizing coal projects at all, is not an issue raised by the Mines Act application or the request for exemption under the EMA, even though VTACC perceives a link between the decision of the Chief Inspector and its broader climate change concerns.

In making its decision, the Court also noted that the VTACC did not represent any local resident or the Sliammon First Nation. Given that the Court determined that the VTACC should not be granted public interest standing, the matter was ended. Despite its determination on standing, the Court went on to find that, in any event, the government’s decisions were reasonable and that there was no breach of procedural fairness.

As discussed, the Court found that the particular facts of this case do not engage the broader issues of climate change so as to allow public interest standing. However, a possible implication of the Court’s decision is that the door remains open to allowing climate change concerns to support public interest standing in the future in the right circumstances. [A similar view is expressed by Zoe Thoms in Climate Change & Public Interest Litigation: Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), December 9, 2015 available online at http://energyinsider.ca/index.php/climate-change-public-interest-litigation-voters-taking-action-on-climate-change-v-british-columbia-energy-and-mines/].

A more detailed look at climate change litigation in Canada can be found in the ELC’s paper Judicial Notice of Climate Change (available on the CIRL website here). Our paper explores U.S., Canadian and International cases which took judicial notice of climate change science. Judicial notice is a procedural mechanism that allows courts to accept uncontroversial facts without requiring evidentiary proof.

Although climate change litigation remains relatively novel in Canada, there are already examples of the courts taking judicial notice of climate change science. For instance, the Federal Court in its Syncrude Canada Ltd. v Attorney General of Canada decision observed:

[paragraph 83] … there is a real evil and a reasonable apprehension of harm in this case. The evil of global climate change and the apprehension of harm resulting from the enabling of climate change through the combustion of fossil fuels has been widely discussed and debated by leaders on the international stage. Contrary to Syncrude’s submission, this is a real, measured evil, and the harm has been well documented.

In our view, as climate change litigation accelerates in Canada “the courts should remain alert to the fact that significant scientific consensus on the existence, mechanisms and impacts of climate change is already reasonably established” (Judicial Notice of Climate Change paper at page 11).

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