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On June 21, 2018, Canada’s Greenhouse Gas Pollution Pricing Act (the Act) came into effect. Part 1 of the Act imposes a surcharge on fuels such as gasoline, fuel oil, propane, kerosene and methanol. Distributors of the fuel pay the surcharge though the cost would likely be passed down to consumers. Part 2 of the Act applies to large industrial facilities that emit greenhouse gases (GHG). Facilities have a limit on the amount of GHG they can emit each year. If they go over that limit, they must pay through a credit system or an excess emissions charge or both. Government and media have affectionately referred to these fees as a carbon tax.

But here’s the kicker – Part 1 or Part 2 or both only apply to provinces that do not have a scheme that is acceptable to Canada. That is, the provinces can create their own carbon tax scheme but it must meet Canada’s goals. If a province does not have an acceptable scheme (or no scheme) in place, then the federal Act kicks in as a backstop.

Three provinces – Alberta, Saskatchewan and Ontario – asked their respective appeal courts to review the Act and provide an opinion on whether it is constitutional. Specifically at issue was whether Parliament has the power to enact this legislation under the Constitution Act, 1867 or if the power to enact this type of legislation rests with the provinces. We call this type of issue a division of powers issue.

The Alberta Court of Appeal released its decision on February 24^th of this year. A majority of the justices who heard the reference held that the Act is not constitutional. Before this, appeal courts in the other two provinces had held that the Act is constitutional.

The Saskatchewan and Ontario governments have already appealed their courts’ decisions to the Supreme Court of Canada. The Supreme Court of Canada will hear Saskatchewan’s appeal on March 24, 2020 and Ontario’s the next day.

Why do we care?

… whatever the Supreme Court of Canada decides is what all Canadians must live with, whether we agree with the outcome or not.We care about these decisions because they impact the federal and provincial governments’ response to climate change. But we also care about these decisions because of what they say about our judicial system and how we engage with it. Let’s break down the numbers:

• A total of 15 justices across the three appeal courts heard the matter. Eight sided with Canada – that the Act is constitutional. Seven justices held that the Act is unconstitutional.
• Eight different opinions were provided – 3 majority decisions, 2 concurring opinions (agreeing with the respective majority) and 3 dissenting opinions (disagreeing with the majority).
• The opinions total 543 pages of text.

To be frank, this is a complicated matter. And I don’t just mean climate change. I also mean what power each level of government has to make laws about certain topics. In this case, the topic happens to be the environment and greenhouse gas emissions. But the same legal principles apply regardless of the topic. One hopes, anyways.

When read together, the 8 opinions are a fascinating study of legal reasoning and passion. They are difficult even for a lawyer to understand, let alone someone with very little, or no, legal training.

The Legal Principles

For the most part, the three courts discuss two major legal principles:

1. federalism;
2. the national concern doctrine.

Federalism refers to Canada having two levels of government: provincial and federal. Under our constitution, each level of government has power to make laws about certain areas. Section 91 of the Constitution Act, 1867 sets out a list of areas (called heads of power) over which the federal government has jurisdiction to make laws. Section 92 lists heads of power which the provincial governments have jurisdiction to make laws applicable in their own provinces. Federalism is a “foundational feature of Canada’s constitutional architecture and defining characteristic of Canada as a nation” (at para 130 of the Alberta Court of Appeal decision). When there is confusion over whether the federal or provincial governments have jurisdiction over a certain area, this is a division of powers problem.

The opening words to s. 91 of the Constitution Act, 1867 say that Canada has the following power, in addition to the heads of power listed:

to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

Each of these decisions comes down to how the justices characterize the subject matter of the Act.We call this power “POGG” (peace, order and good government). POGG is a residual power that the federal government has to make laws about the heads of power not specifically listed in s. 92 of the Constitution Act, 1867. The provinces also have a residual power over all matters of a local or private nature in the province, set out in s. 92(16). The drafters of the constitution realized there would be new things that would come up that they couldn’t think of then. How right they were! Climate change was not on anyone’s radar in 1867.

Canada’s POGG power has three branches:

1. the gap branch – assigning matters to the federal government that the drafters of the constitution would have undoubtedly assigned to the federal government when it was drafted had they thought of it.
2. the national concern branch – allowing the federal government to make laws on matters that are of a national concern.
3. the emergency branch – making temporary laws in emergency situations, such as wartime provisions.

Any new heads of power assigned to the federal government under the national concern branch of POGG must have three characteristics: singleness (not too broad of a focus), distinctiveness (must be qualitatively different from the other listed heads of power), and indivisibility (must be a head of power that Parliament should obviously have).

Canada argued in each court that the Act is constitutional as a valid exercise of its power under the national concern branch of POGG.

Where the Justices Agreed

Let’s start with where all three courts agreed. First, neither Parliament nor the provinces have exclusive jurisdiction over the environment. The Supreme Court of Canada has made this clear in previous decisions.

Second, the process for determining whether a law is constitutional or not requires answers to two questions:

1. What is the pith and substance of the law (i.e. what matter does the law address, both in purpose and effect)? At this step, the court characterizes the subject matter of the Act.
2. Which level of government has jurisdiction over that matter? This is a classification process, but it is not perfect. A matter may overlap several heads of power described in ss. 91 and 92 of the Constitution Act, 1867. It’s a balancing act.

Third, the court has no place in commenting on the usefulness of a law. That is a policy decision left to governments. The topic of climate change is a contentious one, with many opinions all over the board. But ultimately, our governments (provincial and federal) must create policies and laws that outline Canada’s response to climate change. In reviewing whether these laws are valid, the court is not examining the usefulness of the law or the government’s choice of policy in addressing the issue. The court simply focuses on the legal principles at play.

Where the Justices Disagreed

Each of these decisions comes down to how the justices characterize the subject matter of the Act. This characterization is necessary to answer the first question of the test described above.

Saskatchewan

The Saskatchewan Court of Appeal took the first kick at the can. The Saskatchewan government filed their request for review of the Act before the Act became law. The Court didn’t hear from provincial and federal lawyers though until after the law came into effect.

Federalism refers to Canada having two levels of government: provincial and federal.Five justices heard the reference. Three justices found the Act to be constitutional while two justices found the opposite.

Saskatchewan presented two lines of argument:

1. The Act imposes a tax, which offends federalism (because the Act only applies in some provinces depending on how provinces decide to exercise their legislative authority) and s. 53 of the Constitution Act, 1867 (how tax laws are made).
2. The Act is concerned with property and civil rights and other matters of a purely local nature falling within exclusive provincial legislative authority.

Canada argued that the Act was constitutional under its national concern power. It characterized the Act as being about “the cumulative dimensions of GHG emissions.”

The Court rejected Saskatchewan’s arguments. It also rejected Canada’s characterization of the Act for being too broad. Instead, the Court characterized the Act as being about “the establishment of minimum national standards of price stringency for GHG emissions”. Using this new characterization, the Court found that this matter could become a new head of power under the national concern branch of POGG. In other words, this characterization was focused, distinct and indivisible.

In the dissenting opinion, two justices found the surcharge under Part 1 of the Act to be a tax with a broad purpose of bringing about behavioural changes to reduce GHG emissions. They found Part 2 to be a regulatory charge for the purpose of regulating GHG emissions. In their opinion, the Act is unconstitutional.

Ontario

Next up, Canada defended its Act before the Ontario Court of Appeal. Five justices heard the appeal. Four justices found the Act to be constitutional while one justice dissented.

Canada argued in each court that the Act is constitutional as a valid exercise of its power under the national concern branch of POGG.The majority of the justices also rejected Canada’s characterization of the Act as being about the “cumulative dimensions of GHG emissions”. Instead, the Court characterized the Act as being about “establishing minimum national standards to reduce greenhouse gas emissions.”

One justice wrote a concurring decision – she came to the same conclusion but for different reasons. She would have characterized the Act as being about “establishing minimum national greenhouse gas emissions pricing standards to reduce greenhouse gas emissions.”

In the dissenting opinion, a fifth justice characterized the Act as simply being the regulation of GHG emissions.

Alberta

Finally, it was Alberta’s turn. The province argued its case before the Alberta Court of Appeal in late December, 2019. Five justices heard the appeal. Four justices found the Act to be unconstitutional (one with a concurring decision). One justice dissented.

Canada asked the Court to recognize “establishing minimum national standards that are integral to reducing Canada’s nationwide GHG emissions” as a new head of power under the national concern branch of POGG. The Court found that the national concern doctrine only applies to s. 92(16) of the Constitution Act, 1867 – the province’s residuary power. It does not apply to other listed heads of power specifically reserved for the provinces in the constitution.

The majority characterized the Act as being “at a minimum, regulation of GHG emissions”. The majority reasoned that if it gave Canada the power to make laws about the regulation of GHG emissions, then Parliament could make laws that would certainly step into provincial jurisdiction, including the provinces’ power to develop and manage its non-renewable resources under s. 92A of the Constitution Act, 1867.

… the court has no place in commenting on the usefulness of a law. That is a policy decision left to governments.One justice wrote a dissenting opinion, that the Act is constitutional. In his opinion, the pith and substance of the Act is to “effect behavioural change throughout Canada leading to increased energy efficiencies by the use of minimum national standards necessary and integral to the stringent pricing of greenhouse gas emissions”.

Conclusion

Are you starting to see how problematic characterizing the Act is? And how it is not an exact science? The legal challenges to the Act have nothing to do with climate change as a policy. Rather, the three appeal courts were tasked with providing an opinion as to whether Parliament had the authority to make laws about the GHG emissions scheme detailed in the Act. Or if the Constitution Act, 1867 gives the provinces authority over this area instead. Fifteen justices from three appeal courts across the country couldn’t reach a consensus.

At this point, there is no other option but for this matter to go to the Supremes. And they’ll say, “Stop!” That is how our justice system works. Is it perfect? No. Does it mean that the Supreme Court of Canada justices are smarter than the other justices who have written opinions on this topic? No. But they do have the final say. And whatever the Supreme Court of Canada decides is what all Canadians must live with, whether we agree with the outcome or not. Stay tuned!

Missing In Action

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Donald Trump continues to audition for the job of World’s Greatest Practical Joker. You may have heard about the pending release of a new book by Edward Russo, entitled Donald J Trump: An Environmental Hero. Russo is a consultant who has advised Trump. He is also a staunch Trump loyalist. Recently, when the President announced yet more rollbacks of environmental regulations at the White House, he added that he looks forward to reading the book. Trump has in the past referred to climate change as “mythical” and “nonexistent”. His administration has already began the process to withdraw the U.S. from the Paris Agreement, which commits the U.S. and 186 other countries to keep global temperature increases below 2 degrees Celsius. The Climate Deregulation Tracker (run by the Sabin Center for Climate Change Law) documents 129 other steps that the Trump administration has taken to scale back laws and policies designed to fight climate change.

In Brazil – the other major nation of the Americas – the situation is even direr, if that is possible. We all watched the news this past summer with horror as large swathes of the mighty Amazon rainforest burned to a crisp. This rainforest is the most biodiverse place on the planet, being home to 3 million species – 10% of all plants and animals on Earth. The Amazon is also home to over one million Indigenous peoples, thousands whom have sacrificed their lives in recent years defending the forest against commercial interests. Given its ability to absorb millions of tonnes of carbon dioxide yearly, the rainforest is a vital element in regulating the Earth’s climate.

During the term of Lula de Silva and his Worker’s Party, the rate of deforestation in the Amazon declined and conservation measures appeared to be working. Since the election of the far-right leader Jair Bolsonaro in 2018, often dubbed the “tropical Trump”, protective measures have been gutted. Bolsonaro, also called “Captain Chainsaw”, has since provided complete support for agribusiness, mining and logging, including in the sensitive and protected areas of the Amazon. Because of this we have witnessed alarming rises in deforestation rates. He is also hostile towards Indigenous rights to land and pledges to scale back protections previously affirmed and strengthened. This clearly represents a dramatic setback for environmental justice.

Since the election of the far-right leader Jair Bolsonaro in 2018, often dubbed the “tropical Trump”, protective measures have been gutted.The destruction of the rainforest in 2020, significantly increasing the devastation over 2019 levels, ensures that the situation lurches towards a tipping point. Combined with the ongoing failure to defend Indigenous land subject to protective designations from illegal economic activity, there is a distinct prospect of the rainforest being unable to sustain itself. Large swathes of forest may turn into a dry savannah. An indication of the “climate nihilism” – the term that critics say best captures the approach of both Trump and Bolsonaro – might be found in the attitudes of one of Bolsonaro’s key cabinet ministers. Foreign Minister Ernesto Araujo has described climate change as a “plot by cultural Marxists” to suffocate the economy. Trump, likewise, reveals his disdain for environmental activists, who he considers “hoaxters” or “perennial prophets of doom”.

A Landmark Court Ruling: Urgenda

In light of such overwhelming neglect of duty to citizens in the U.S. and Brazil, and indeed around the world, we must avoid lapsing into despair. Let us, then, turn to a hopeful sign from arguably the most important court decision in environmental matters of the past decade. On December 20, 2019, the Dutch Supreme Court rendered its decision in the appeal by the Netherlands State against the Dutch Urgenda Foundation.

The Supreme Court examined again the evidence presented respecting the massive effects of climate change and the urgent need for the Dutch government to take immediate, decisive action to address and mitigate it. Evidence of the harmful effects of climate change was undeniable. Climate science and the international community largely agree that the warming of the Earth must be limited to no more than 2 degrees Celsius. In fact, according to more recent studies, that should be no more than 1.5 degrees Celsius. To meet this target, we must reduce greenhouse gas emissions. Otherwise, we can expect extremely dire consequences, such as extreme heat, drought and precipitation, a disruption of ecosystem resulting in a jeopardizing of the food supply, and a rise in the sea level resulting from melting of glaciers and the polar ice caps. These developments will threaten the lives, welfare and living environment of many individuals around the world, including the Netherlands.

The Netherlands and other states in the European Union have made clear commitments to reducing greenhouse gas emissions. The nation is a party to the United Nations Framework Convention on Climate Change. The Convention’s objective is to ensure that the concentration of greenhouse gases in the atmosphere remains within necessary limits. Staying within those limits means that human action will not be responsible for major disruptions to our climate.

Regular reports from the Intergovernmental Panel on Climate Change (IPCC) helped guide the Dutch Supreme Court on what commitments to reducing emissions are necessary to meet the climate emergency. In addition, the Paris Agreement of 2015 expressly indicates that states must strive to limit warming to 1.5 degrees Celsius.

Given the abundance of evidence, the Court determined the Netherlands had a clear duty to its citizens to safeguard their right to life and right to home life and private life (Articles 2 and 8 of the European Convention on Human Rights (the ECHR)). The Supreme Court builds on earlier decisions from within the E.U. Just as a state must take action where a serious environmental hazard is foreseeable, so the principle applies to the unprecedented threat occasioned by climate change in our time. The Urgenda Foundation met the necessary standard of a risk, being a genuine and imminent risk. Case law on Article 8 dictates that the state protect its citizens through reasonable and sufficiently stringent measures, which will avoid serious damage to the environment.

… the Court determined the Netherlands had a clear duty to its citizens to safeguard their right to life and right to home life and private life …Articles 2 and 8 of the ECHR protect not just individuals who can demonstrate a threat of immediate harm to themselves but also protects the Dutch population as a whole. Further, Urgenda could and did establish that a substantial danger existed even if the precise materialization of that danger might be uncertain (i.e. it could not be proved that a flood will occur in 2020). This line of reasoning is consistent with the precautionary principle. Finally, Articles 2 and 8 require a state to take either mitigation or adaptation measures (measures to lessen or soften the impact of the threat), or a combination of the two.

Article 13 gives a right to an effective remedy to those who prove a human rights violation. Accordingly, the Netherlands is required to establish practical and effective safeguards. In the Court’s view, this required a declaration to reduce emissions through state action by a minimum of 25% (in comparison with 1990 levels) by the end of 2020. An international consensus has developed in light of the clear findings published in IPCC Reports that various nations in the developed world (Annex I countries) are to achieve a 25% to 40% reduction in greenhouse gas emissions.

The extraordinary nature of this judgment, and its capacity to give hope and inspiration to many in these desperate times, is captured in statements issued by prominent human rights advocates. Mary Robinson, former UN High Commissioner for Human Rights and former President of Ireland, stated that the decision “affirms that governments are under a legal obligation, as well as a moral obligation, to significantly increase their ambition on climate change. Our human rights depend on it.” David Boyd, the UN Special Rapporteur on Human Rights and the Environment, referred to this as the most important climate change court decision in the world so far. It confirms that wealthy nations are legally obligated to achieve rapid and substantial emission reductions. Concerned citizens around the world will watch for the Dutch government’s new legislation.

Proactive Programs: Denmark and New Zealand

Rather than waiting for litigation or ongoing demands by citizens for action, two governments deserve particular credit for taking action now.

Denmark’s new government has proclaimed that a new era is unfolding. Immediately after the left-wing Social Democrat leader Mette Frederiksen took power last June, she pledged to make the climate change struggle a top priority. She reached an agreement with others in her coalition to introduce binding decarbonisation and strengthen its 2030 target, which is now to reduce emissions by 70% below 1990 levels. In a news conference, the alliance warned that the world and Denmark are in a climate crisis. Limiting global temperature rises is, in Frederiksen’s and the alliance’s view, “not just the right thing to do, it’s also the most economically responsible one.”

… Ardern calls the climate emergency her generation’s “nuclear-free moment.”Denmark is also moving forward with energy efficiency improvements and a broad electrification strategy. Sales of all new diesel and petrol cars will be banned as of 2030. Cooperative efforts with neighboring countries are underway to develop offshore wind potential.

The election was fought in the shadow of a petition signed by 65,000 Danes. The petition demanded that the previous (conservative) government take more robust action on climate change. It also helped to ensure that debates on proposed environmental policies were central to the election. Polls showed that citizens voiced overwhelming support for much more aggressive measures in the fight for a sustainable future. For more information on this bold new legislative era, visit The Danish Environmental Protection Agency website.

On the far side of the globe, in New Zealand, Jacinda Ardern’s Labour government has moved decisively to address climate change as well. Floods and bushfires severely affected the country last summer. Recently, Ardern announced a firm commitment to applying a climate change lens to all major government decisions. In December, Minister James Shaw emphasized that cabinet routinely considers the effects of its decisions on human rights and the Treaty of Waitangi (the treaty with the Maori). Now climate change will become an essential part of decision-making. “Climate impact assessments” are mandatory for proposals designed to reduce emissions. Ardern calls the climate emergency her generation’s “nuclear-free moment.” In November, the government enacted a zero carbon bill, committing it to reductions of emissions to net zero by 2050. The Climate Change Response (Zero Carbon) Bill has passed into law. The legislation received support from both sides of the political divide. The bill also establishes an independent Climate Change Commission to advise government on how to achieve targets and to produce “carbon budgets” every 5 years.

Canada and other nations will want to examine the efforts made in Denmark and New Zealand as they move forward to address the vital issue of climate change.

There is clear scientific consensus that anthropogenic climate change is happening and will cause unavoidable and irreversible impacts. Despite the full implications of climate change remaining uncertain, there is a recognized need to act locally, provincially, nationally and internationally in order to mitigate harm to people and the planet arising from these climate change impacts. While mitigation efforts are necessary to slow the rate of greenhouse gas (GHG) emissions, we are already experiencing impacts from climate change and need to build the capacity to cope with these impacts, especially as they escalate into the future. Both mitigation and adaptation efforts will be crucial going forward.

Impact of Climate Change in Alberta

Implementation action [of adaptive measures] is hampered by limited resources, gaps in knowledge and technology, and a lack of political will.Research suggests that Alberta will experience changes to its water resources (reduced snow accumulation, glacier retreat, decreased water quality, increased extreme hydrological events), ecosystems (decreased biodiversity, phenological mismatches) and soil (increased landslides, wind erosion and desertification), among other changes.

The extent to which Alberta (and the rest of the world) experiences climate change impacts will depend upon the extent of global warming. The Intergovernmental Panel on Climate Change (IPCC) stresses that in order to prevent huge damage to people and the earth, we must strive to limit global warming to only 1.5 degrees Celsius. A recent IPCC report found that the world outcomes will be vastly different in a 1.5-degree world or in a 2-degree world (the latter of which is a real possibility without immediate action).

What is Climate Change Mitigation?

Mitigation focuses on lowering our GHG emissions to prevent further global warming. Often, mitigation focuses on two categories – increased energy efficiency and a transition to renewable energy.

Increased energy efficiency means using less energy to accomplish the same tasks. For example, this could mean updating building codes so that houses use less energy to heat and cool rooms or regulating higher standards for appliances. This category is often purported to be the most cost effective way to mitigate our effects on the climate.

While important and effective, improved energy efficiency will only do so much toward mitigation. As our population continues to grow, we will use more energy and resources, especially as climate change increases extreme weather events. This is where renewable energy comes in.

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Renewable energy usually refers to solar, wind, geothermal, bio power and hydropower – each of which comes with a different environmental pedigree. For example, while hydropower has a long history in Alberta, other forms of renewable energy will likely start to take its place as high quality hydro locations are built up and as river flows change along with our changing climate.

In 2017, the provincial government put out a call for bids for new renewable energy projects in the province. In the end, the bid went to 4 wind energy projects and the province received the cheapest wind energy price yet. In addition, solar continues to gain market share across the province, including in the far north. However, despite their cost effectiveness, it is unlikely that solar and wind (without future technological advances in storage and generation) will be sufficient to fully replace our fossil fuel generators. This is in large part due to their variability (as we all know the sun doesn’t always shine and the wind doesn’t always blow). This means that while we work to improve storage solutions for wind and solar power – which are improving – we need to ensure that another energy source will be able to step in and fill any gaps. One example of this energy type is geothermal, which is finally starting to take off in Western Canada. For example, the first power purchase agreement with a geothermal company was agreed to in Saskatchewan and development on a geothermal project started in 2018. Geothermal is promising because it can produce energy 24 hours/day 365 days/year, making it a great option to fill any gaps in solar and wind production.

Mitigation efforts raise many legal questions. How do we encourage energy efficiency? How do we regulate new forms of energy like geothermal? How do we incorporate solar and wind projects into our assessment and clean-up regulations that previously focused on oil and gas? And how do we streamline the approval process for technologies that are changing every day? Although these questions are complex, they are also very important. Every year that passes without substantial changes to our energy use means one less year to ensure our mitigation keeps us below that 1.5-degree ceiling.

What is Climate Change Adaptation?

Adaptation is a necessary complement to climate change mitigation. The IPCC defines adaptation as:

The process of adjustment to actual or expected climate and its effects. In human systems, adaptation seeks to moderate or avoid harm or exploit beneficial opportunities. In some natural systems, human intervention may facilitate adjustment to expected climate and its effects.

The law can be used as a powerful tool for effecting climate change adaptation. Government can enact legislation directly for the purpose of climate change adaptation, or it may incidentally address matters pertinent to adaptation. In addition, common law tools (such as contract or negligence law) may be used to manage climate change risk or promote adaptation. Other quasi-legal measures that may be used to implement climate change adaptation include voluntary industry-based codes, market/financial mechanisms, collaborative partnerships and information-based tools (such as disclosure standards imposed by the Alberta Securities Commission).

The extent to which Alberta (and the rest of the world) experiences climate change impacts will depend upon the extent of global warming.All levels of government play a role in advancing adaptation measures. As well, industry, non-governmental organizations, Indigenous peoples and members of the general public can contribute to the development and implementation of adaptation measures. There are a variety of risks and opportunities that arise in the face of climate change, and a variety of adaptive measures could be adopted in response. Given the potential impact of climate change on all aspects of our social and natural environment, along with the broad range of risks and opportunities, it is helpful to examine these within discrete subject areas such as natural resources, industry, infrastructure, biodiversity and human impacts.

This approach is illustrated by an examination of Alberta’s forests and the associated climate change risks, opportunities and adaptive measures. Climate change is expected to cause changes to species distribution, with trees shifting northward in latitude and upslope in altitude. As well, disturbance regimes – such as fire, pest and disease outbreaks, and drought – are likely to increase. This will impact the quality and quantity of timber supply, thereby negatively affecting the timber industry. On the other hand, warmer climates and longer growing seasons may create new opportunities for forestry in more northern communities.

Adaptation for Alberta’s forests could be achieved, in part, by updating and incorporating adaptive measures into our forest management practices. These might include measures such as assisted tree migration, developing drought tolerant and pest resistant genotypes, and ex situ preservation of rare populations. It is important to note that any such measures are closely linked with biodiversity issues and so must be implemented with caution. Adaptive measures could be put into place via legislative changes (for instance, to the Forests Act and its regulations) and quasi-legal instruments (such as forest management certification standards).

Adaptation is a necessary complement to climate change mitigation.Adaptation can provide a path to deal with the risks and use the opportunities created by climate change impacts. Some progress is being made especially in terms of engagement, awareness and planning. However, there is still limited implementation of adaptive measures. Implementation action is hampered by limited resources, gaps in knowledge and technology, and a lack of political will. In order to maintain the capacity of Alberta’s social, economic and environmental systems, we need continued efforts to address these barriers and implement adaptive measures.

Conclusion

Climate change is undeniably a complex and multi-faceted crisis, and success will need to take many forms. This is where a strong regime of both mitigation and adaptation efforts will be required. What these efforts will look like will depend on location and sector, but Alberta, with its strong history of energy production and vast natural resources, will have a strong upper hand – if we put our minds to it. The sooner, the better.

For further information on climate change mitigation and adaptation, see the Environmental Law Centre’s publications: Climate Change and the Law: Part One – An Introduction to Mitigation in Alberta and Climate Change and the Law: Part Two – An Introduction to Adaptation in Alberta.

In 1972, Christopher D. Stone wrote an article entitled “Should Trees Have Standing? – Towards Legal Rights for Natural Objects”. This article is still, even today, mentioned every time there is a discussion on legal rights and natural objects.

In his article, Stone suggested that we give legal rights to natural objects such as forests, oceans, rivers, etc. In other words, to the natural environment as a whole.

Stone stated that:

It is not inevitable, nor is it wise, that natural objects should have no rights to seek redress in their own behalf. It is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either; nor can states, estates, infants, incompetents, municipalities or universities. Lawyers speak for them, as they customarily do for the ordinary citizen with legal problems. One ought, I think, to handle the legal problems of natural objects as one does the problems of legal incompetents – human beings who have become vegetable. If a human being shows signs of becoming senile and has affairs that he is de jure incompetent to manage, those concerned with his well being make such a showing to the court, and someone is designated by the court with the authority to manage the incompetent’s affairs. The guardian … then represents the incompetent in his legal affairs. Courts make similar appointments when a corporation has become ‘incompetent’ – they appoint a trustee in bankruptcy or re-organization to oversee its affairs and speak for it in court when that becomes necessary. (See: Stone at p 464.)

Taking this concept into consideration, many countries have enacted laws that recognize natural objects as legal entities. Courts in different countries have also granted legal rights to natural objects.

Philippines

Photo Credit: Jessica Steingard

In 1993, Tony Oposa, a Filipino citizen, sued the Philippine government on behalf of 43 Filipino children for neglecting the country’s forest resources. The trial court ruled that there was a lack of legal personality to sue and dismissed the case. However, the Philippine Supreme Court supported the legal standing and the right of the children to start the lawsuit on their behalf and on behalf of future generations.

Ecuador

In 2008, the new Ecuadorian Constitution incorporated a chapter called Rights for Nature. This chapter acknowledges that nature has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. It also states that all persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature (article 71).

New Zealand

In 2014 in New Zealand, the Te Urewera Act declared the land that comprised Te Urewera National Park as a legal entity with an “identity in and of itself” and encouraged people to take care of it. The Act established a board to manage Te Urewera and to represent its interests. The board has representatives of the Crown and of Tūhoe, the tribal group exercising mana whenua (traditional status, rights and responsibilities) over most of the national park land. The Act settled the historic grievances of Tūhoe.

Moreover, in 2017, the New Zealand government enacted the Te Awa Tupua Act (Whanganui River Claims Settlement) in order to settle the historical claims of Whanganui iwi (indigenous descent groups) as they connect to the river. The Act recognized that Te Awa Tupua was as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements”. The Act declared Te Awa Tupua a legal person and established the office of Te Pou Tupua. The office includes two persons with interests in the Whanganui River: one nominated on behalf of the Crown, the other nominated by iwi. Te Pou Tupua will act on behalf of Te Awa Tupua.

India

Inspired and encouraged by New Zealand laws, a court in the northern Indian state of Uttarakhand gave the Ganges and its main tributary, the Yamuna, the status of living human institutions. The court declared that the Ganges and Yamuna rivers and their tributaries would be “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities”. Therefore, contaminating the rivers will be legally equivalent to hurting an individual. In order to protect the rivers and their tributaries, three officials are appointed as legal custodians. The court ordered that a management board be established within three months.

In Canada, natural objects do not have legal personality.Moreover, a few days after declaring rivers Ganga and Yamuna as legal persons, the Uttarakhand High Court held that the Himalayan mountain ranges, glaciers, rivers, streams, rivulets, lakes, jungles, air, forests, meadows, dales, wetlands, grasslands and springs are also legal entities.

O’Donnell and Talbot-Jones stated:

The Yumanotri and Gangotri glaciers feed the Yumana and Ganges rivers, both of which the court considered to be “sacred and revered… central to the existence of half the Indian population”. The court stated that both the Yumanotri and Gangotri glaciers are receding quickly and there is a “moral duty to protect the environment and ecology” from the severe risks of climate change and pollution. (See: Erin O’Donnell and Julia Talbot-Jones, Will giving the Himalayas the same rights as people protect their future?)

The Uttarkhand High Court declared that “climate change was one of the major threats to the glaciers that required giving them personhood”. The Court added that “the very existence of the rivers, forests, lakes, water bodies, air and glaciers is at stake due to global warming, climate change and pollution”.

Colombia

Furthermore, in Colombia, 25 plaintiffs – ranging in age from 7 to 26 and supported by the human rights organization Dejusticia – filed a lawsuit against the Colombian government requesting protection of their right to a healthy environment. They stated that the government failed to stop the deforestation of the Amazon, threatened their future, and violated their constitutional rights to a healthy environment, life, food and water.

In 2018, Colombia’s highest court sided with the plaintiffs and ordered the government to take urgent action to protect the Amazon and its increased deforestation. The court said that “Colombia saw deforestation rates in its Amazon region increase by 44 percent from 2015 to 2016”. The court added: “it is clear, despite numerous international commitments, regulations … that the Colombian state has not efficiently addressed the problem of deforestation in the Amazon”.

… many countries have enacted laws that recognize natural objects as legal entities.The judges said that “the Amazon’s destruction leads to imminent and serious damage to children and adults for both present and future generations”. They stated that “deforestation is a key source of greenhouse gas emissions driving climate change, which damages ecosystems and water sources and leads to land degradation”.

The court added that “for the sake of protecting this vital ecosystem for the future of the planet,” it would “recognize the Colombian Amazon as an entity, subject of rights, and beneficiary of the protection, conservation, maintenance and restoration” that national and local governments are obligated to provide under Colombia’s Constitution. The court asked the President and different ministries and administrative agencies “with the participation of the plaintiffs, affected communities, and the interested population in general” to submit action plans within four months to fight deforestation in the Amazon.

Conclusion

Governments and courts in other countries should consider these laws and rulings. In Canada, natural objects do not have legal personality. However, according to scientists, climate change is causing glaciers in Alberta, British Columbia and Yukon to melt quickly, threatening to raise water levels and create deserts.

Extending legal personality to natural objects used to be unthinkable. Not anymore. We can see how far we have come by considering natural objects as legal persons. Granting legal rights to natural objects will strengthen their protection by allowing legal remedies for damages to them. Thus the questions we pose here are: Are we going to see more legal actions on behalf of nature? If so, will these actions improve the environment’s protection?

In November, more than 11,000 scientists declared that the climate emergency has arrived and drastic action is required. Frustrated by government failure to respond adequately, citizens are taking to the courts.

The Sabin Center for Climate Change Law reports at least 1,390 legal challenges to governments and fossil fuel corporations in more than 25 countries since 1990. These cases are forging a new legal discipline: climate change law.

In October 2019, a second Canadian challenge was launched: La Rose vs. Her Majesty the Queen, filed in Federal Court.At the head of the pack is the landmark case Urgenda vs. The Netherlands. In 2015, the district court of The Hague decided the government has a legal duty to strengthen its emissions reduction target for 2020.

The court of appeal reaffirmed the decision in October 2018. Although the case is on appeal to the Dutch Supreme Court with a final ruling due on Dec. 20, the case has already changed government policy.

In the past year, millions of children and teenagers around the world have crowded the streets to protest government inaction on the climate crisis. But youth are also increasingly in the courts, suing governments for their failure to preserve a healthy environment for current and future generations of children.

Youth challenges

In United States, the most prominent case, Juliana vs. United States, was filed in 2015. In it, 21 young people assert that the U.S. government, by aggravating climate change, has violated constitutional rights to life, liberty and property.

In Canada, two cases bring these issues home. A Québec case brought by ENvironnement JEUnesse (ENJEU) invoked the Constitution on behalf of all Québec residents aged 35 and under to hold the federal government accountable for environmental degradation.

Photo from Pexels

The Québec Superior Court threw out the challenge by denying class-action status, stating that the group or “class” ENJEU sought to represent was arbitrary and inappropriate.

However, the court also found that the issues raised by the challenge were justiciable. This means that the claims of constitutional rights infringement are legally appropriate for courts to decide. This is an important judicial conclusion because courts will consider only questions that are proper in this manner for adjudication. Whether a question is “justiciable,” or subject to resolution in a court of law, is always a significant hurdle for litigation that raises complex, costly and political questions.

In October 2019, a second Canadian challenge was launched: La Rose vs. Her Majesty the Queen, filed in Federal Court. La Rose has 15 individual plaintiffs, which avoids the difficulties in the Québec case of certifying a diverse class.

The differences among the young plaintiffs are legal strengths, demonstrating the range and scale of the impact that the climate crisis is having on on young people. The general claim, however, is the same as ENJEU: the federal government’s actions — and inactions — have fuelled climate change, putting Canadian children in peril and breaking the law.

The legal case of La Rose

The La Rose challenge rests on two legal bases: first, government obligations under Sections 7 and 15 of the Canadian Charter of Rights and Freedoms and, second, the government’s common law and constitutional responsibility to preserve common resources and lands.

Charter rights

Case law on the Charter rights is complex. Courts have turned the sparse language of constitutional text into lengthy, elaborate doctrine. But what counts in this case, with respect to the first legal basis, is simple.

Section 7 states:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The plaintiffs argue, in various ways, that climate change threatens their physical and psychological well-being and development and impedes their ability to make key personal decisions, thus compromising their life, liberty and security of person.

And the existential — or extreme — character of this threat is incompatible with any notion of fundamental justice. Or, in simpler language, furthering climate change’s threat to the survival of the human species is incompatible with the key commitments of our legal and political system.

Section 15 reads:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

All the plaintiffs, by virtue of their youth, have pre-existing, distinct and intense vulnerability exacerbated by the government’s failure to address climate change. They argue that this amounts to discrimination on the basis of age.

The Indigenous plaintiffs, in addition, assert that they face race-based discrimination. So this challenge links climate change to Indigenous rights and colonialism. The details of the effect on Indigenous youth signal the central ways in which the health and culture of Indigenous Peoples and communities erode as ecosystems are destroyed and species vanish.

None of these rights infringements can be, the plaintiffs argue, justified under Section 1 (the limitation clause) of the Charter. The plaintiffs also point out how Canada’s international human rights commitments oblige this expansion of Charter rights.

Public trust doctrine

The second legal basis rests on the claim that the public and common resources of Canada’s land, waters and air are the government’s responsibility, a duty imposed in common law and by the Constitution.

This trust-like relationship — captured by the public trust doctrine — requires Canadian governments to respond in a dynamic way to the changing threats of the climate crisis in order to protect and preserve these resources for all Canadians now and into the future.

In the past year, millions of children and teenagers around the world have crowded the streets to protest government inaction on the climate crisis.According to this challenge, the government has breached this duty by failing to act appropriately as climate change threatens “public trust resources,” including the water, air and permafrost that are destroyed by a warming planet.

La Rose sets out novel claims in the Canadian legal system, but these are claims increasingly common internationally. And the Canadian Supreme Court has stated that novel claims are how our Constitution stays relevant as Canadian society and the world evolve.

Whether this case succeeds or not — courts sometimes follow rather than lead — the persuasive message and public profile of this legal challenge strengthen a burgeoning political movement, promising significant enrichment to mainstream political debate. We are getting used to the idea that a healthy environment is a human right.

As the world gears up for the United Nations Climate Conference in Madrid, Spain this December, Canadian lawyers and the youth they represent are busy trying to ensure that the Canadian government walks its international climate action talk back home.

This article first appeared in The Conversation on November 26, 2019 and is reprinted under Creative Commons license.