AV俱乐部 the author: Karinne Lantz is a PhD student and assistant professor (part-time) in the Schulich School of Law at AV俱乐部.
Late last year, the that could have implications for countries around the world.
The case, , established that a country鈥檚 inadequate action on climate change can violate human rights. For the first time, a court imposed a legally binding target and deadline for a government to reduce greenhouse gas (GHG) emissions, by at least 25 per cent from 1990 levels by the end of 2020.
Urgenda was a major victory for climate justice activists, who have launched human rights lawsuits attempting to require governments to take more substantial and timely action against climate change. This landmark decision could prove influential in Canada, where similar cases will be decided.
Urgenda and Canadian climate litigation
There are now at least invoking human rights, including , in which the federal government鈥檚 effort to have the lawsuit stopped before it goes to trial was argued last week.
Past Canadian based on other grounds have . But Urgenda may be particularly relevant to current litigation because it is based on human rights and in La Rose reflect the Netherlands鈥� unsuccessful arguments.
For example, Canada acknowledges the threat of climate change, but maintains that a court cannot order it to take action because climate change policies are for elected politicians 鈥� not judges 鈥� to decide. The government also argues that climate change is a global problem that Canada alone cannot solve.
The pending Canadian cases will require our courts to decide similar issues as Urgenda, including:
Does the right to life under the Canadian Charter of Rights and Freedoms require the government to take specific action on climate change?
Is it appropriate for courts to review climate change policies?
Does the concept of an individual but shared global responsibility overcome the 鈥渄e minimis contribution鈥� defence?
Other issues have been raised in these cases that are not addressed here, including .
Why could Urgenda be relevant?
In Urgenda, the court concluded climate change poses a 鈥渞eal and immediate鈥� threat to the right to life, which the Netherlands has a legal obligation to address under the (ECHR). While this convention is not binding in Canada, Section 7 of the charter protects the right to life. Canada is also bound by recognizing the right to life.
The interplay between international and domestic law is , but the Supreme Court of Canada has established that charter rights should provide at least as much protection as corresponding rights under binding human rights treaties. It has also held that other sources of international human rights law 鈥� including cases interpreting the ECHR 鈥� may be considered in charter litigation. Finally, Canadian courts often canvass relevant foreign decisions.
These principles open the door for our courts to consider Urgenda relevant. And, if our judges think the approach to similar issues in Urgenda is persuasive, they could follow it.
Climate change and the right to life in Canada
That being said, Canadian plaintiffs still face significant obstacles due to how the the right to life under the charter has been interpreted.
For example, the courts would need to adopt a broader understanding of a 鈥渞eal or imminent鈥� threat, and to recognize that the government must take action to protect the right to life. As the law currently stands, the government is not required to take action to address indirect threats.
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But, this could change. The SCC to a broader approach in an anti-poverty case:
One day S. 7 may be interpreted to include positive obligations鈥�. It would be a mistake to regard S. 7 as frozen, or its content as having been exhaustively defined.
In addition, the (in a different context) that the right to life under the International Covenant on Civil and Political Rights 鈥� a binding international treaty 鈥� can impose positive obligations on Canada. These decisions may leave room for climate plaintiffs to argue that our courts鈥� approach to the right to life is too restrictive and is falling below international standards.
Can courts review climate change policies?
In La Rose, Canada that the plaintiffs are asking the court to 鈥渟tep outside its judicial function鈥� and become involved in 鈥渃rafting a policy response to global climate change.鈥�
This argument failed in Urgenda. In the Dutch Supreme Court鈥檚 view, an order to reduce GHG emissions was within its authority because it is the court鈥檚 role to review the reasonableness of laws and policies and the legislature remained free to determine what laws and policies to implement to meet the Netherlands鈥� obligations.
Canadian courts also often review the reasonableness of laws and policies. So, if climate change is considered a threat to charter rights that Canada must address, Canadian courts could follow the same approach as Urgenda. While the government鈥檚 obligation to meet an emissions target would be new, elected officials would still decide relevant laws and policies.
The 鈥榯oo small to matter鈥� defence
In the Dutch Supreme Court鈥檚 view, the shared global responsibility for climate change necessarily entails an individual responsibility on each country to do its fair share. And the court concluded that the Netherlands was not doing its part.
Critically, the Netherlands emits a disproportionately large share of global GHGs, had adopted a less stringent GHG policy than comparable countries and did not show that meeting a higher emissions target would pose an undue burden.
If Canadian courts accept the premise of individual responsibility, they would similarly assess whether Canada is doing its fair share, and the statistics could be on the side of the plaintiffs.
Canada GHG per capita and in total than the Netherlands. Its emissions target under the Paris Agreement is lower than the Netherlands for 2030 (a from 2005 levels 鈥� and ). And it has been argued that Canada ought to be able to 鈥�.鈥�
Our courts may also find it compelling that, even though Canada鈥檚 emissions amount to 1.6 per cent of global emissions, 鈥淐anada is still .鈥�
A matter of when and not if?
In 2018, the UN Secretary-General that, 鈥渟cientists have been telling us for decades [about the risk of climate change]. Over and over again. Far too many leaders have refused to listen.鈥�
As Urgenda shows, human rights cases could force leaders to listen 鈥� and act. If Canada continues to not do its fair share and if Urgenda marks the beginning of domestic and international decisions requiring countries to take specific action against climate change, it may only be a matter of time until Canadian climate justice plaintiffs prevail.
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