Law Times

Page 8 November 23, 2015 • Law Times www.lawtimesnews.com Could Canada's courts order action on climate change? Dutch ruling spawns discussion of legal challenges over duty to act BY YAMRI TADDESE Law Times fter a Dutch court ruling made inter- national headlines for ordering the government of the Netherlands to cut carbon emis- sions, local lawyers are pondering the possibility of a similar order in the Canadian context. In response to an application brought by the climate change group the Urgenda Foundation, a Dutch judge reviewed scientific evidence on the perils of carbon emissions and delivered a ruling that said the state must reduce the joint volume of Dutch an- nual greenhouse gas emissions by 25 per cent by the end of 2020 in comparison with 1990 levels. The case is "an inspiration for citizens in other countries to ask their domestic courts to exam- ine whether or not their national governments are doing enough to limit dangerous carbon emis- sions and taking other necessary steps to avoid climate chaos," says David Estrin, a senior research fellow at the Centre for Interna- tional Governance Innovation and counsel at Gowling Laf leur Henderson LLP. The Dutch ruling, a mas- sive victory for environmental groups, found the government has a duty of care to protect its citizens from climate change. "It is an established fact that climate change is occur- ring partly due to the Dutch greenhouse gas emissions. It is also an established fact that the negative consequences are currently being experienced in the Netherlands, such as heavy precipitation, and that adap- tation measures are already being taken to make the Neth- erlands 'climate-proof,'" wrote Justice Hans Hof huis. "Moreover, it is established that if the global emissions, partly caused by the Nether- lands, do not decrease sub- stantially, hazardous climate change will probably occur. In the opinion of the court, the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch na- tionals, is so great and concrete that given its duty of care, the State must make an adequate contribu- tion, greater than its current con- tribution, to prevent hazardous climate change." Estrin says there's active interest in Canada to bring a similar application and notes the legal tools are available. "We have in Canada a tort law duty of care. . . . We also have con- stitutional rights, and Canada is also a signatory to human rights conventions, which will also be important," he says. Despite various countries having made a commitment to reducing greenhouse gas emis- sions, carbon and other emissions have in fact climbed, Estrin notes. That, coupled with mounting evidence that inaction on climate change will lead to catastrophic implications for the environment and society, creates the right set of circumstances for judicial inter- vention, he adds. "We have legal means by which domestic courts, in Canada in particular, review the adequacy of those policies and make a declara- tion if they find them to be inap- propriate or even to potentially make orders to government to re- duce [emissions]," says Estrin. The tort law duty of care avail- able in Canada is, in principle, the same as the one exercised by the Dutch court around protecting citizens from harm. "Canadian courts are more reluctant to extend a duty of care under negligence to govern- ments," says Estrin. "It's not saying that it can't hap- pen, but Canadian courts have so far been reticent in using a duty of care on government." However, the common law tort of nuisance is also available. That tort sets out a clear obliga- tion on those who cause or per- mit a nuisance. "In this context, the Canadian government or provincial govern- ments who know that emissions are higher than they should be, and knowing that those emissions are part of what's contributing to harm, have a duty in my opinion under the nuisance law concept to use their clear legislative power to mitigate, [to] lower these carbon emissions," says Estrin. "And you know what, there is no policy immunity for gov- ernments in Canada when it comes to nuisance as there is in negligence." Lawyers also believe there's a constitutional right to a safe environment. Canadian non- governmental organizations and activists have looked at the possibility of enshrining the right to a safe environment in the Charter of Rights and Freedoms, says environmental lawyer Roxie Graystone. "I think there's definitely an argument to be made that that right exists in the Charter right now. Whether it is explicit or not is a matter of debate, but I think the interpretation of the right to life, liberty, and secu- rity of the person . . . could be used," he says. "I really think it's a just a set of facts waiting to be brought forward that can appropriately argue for that right," he adds. "It's hard to argue against it. I can see an argument being made for that type of action, that type of duty on the part of the govern- ment in response to a right to a safe and clean environment." The Dutch case also tested the limits of judicial jurisprudence over matters often left for law- makers. In his ruling, Hof huis found that in the Netherlands, the court has a duty to settle conf licts when asked to do so. "The court provides legal pro- tection and settles legal disputes, which it must . . . do this if request- ed to do so," he wrote. "It is an essential feature of the rule of law that the actions of (independent, democratic, legiti- mised and controlled) political bodies, such as the government and parliament can — and some- times must — be assessed by an independent court." The issue is similar in principle to a Charter challenge Toronto lawyer Peter Rosenthal took to court in 2013 in which the ap- plicants sought a declaration that the provincial and federal govern- ments' failure to create the proper laws, policies, and programs to address homelessness breaches ss. 7 and 15 of the Charter. Home- lessness, Rosenthal argued, clearly threatens one's Charter-protected right to security of the person. A Superior Court judge quashed the challenge after saying it was "inviting the court to cross institutional boundaries into an area that should be reserved for the legislature." Later, the Ontario Court of Appeal found the case to be "non-justiciable." The Supreme Court denied leave to appeal that ruling. 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