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When abroad, I have  often bragged about Canada’s legal system, how competent and respected are our courts and how no one is above the law. But this boast has taken a blow in the area of climate change and the Kyoto Protocol.

The Kyoto Protocol is a binding international agreement reached  in Kyoto, Japan, in 1997,   in which developed countries agreed to set limits on the greenhouse gas emissions that cause climate change. Canada was one of the first signatories and ratified the Protocol in  2002.  In 2005, the Liberal government proposed an implementation plan, but the bill had not passed when the Conservatives won  a minority government in the 2006 federal election.

Harper’s Conservatives oppose Canada’s Kyoto commitment, but  Parliament adopted the Kyoto Protocol Implementation Act, 2007 despite Conservative objections. The KPIA requires Canada to develop a plan to comply with the Protocol and to publish annual progress reports. What was the response of our national government? Sulky defiance: our party did not vote for this law and we won’t comply with it. (This is part of why international environmental groups called Canada “Fossil of the Year”  at the Copenhagen climate change conference last December.)

Outrageous, but don’t  Canadians have a remedy to such defiance of Parliament? Won’t our courts enforce our law? In September 2007, environmental group Friends of the Earth (FOE) launched a lawsuit seeking an order that our government comply with the KPIA.  In 2008, the Federal Court of Canada decided that this wasn’t their job. It’s “not justiciable,” i.e. not a matter for the courts, they said: climate change is too complicated and political. In 2009, the Federal Court of Appeal agreed, dismissing FOE’s appeal.

Are our federal courts  really less capable than courts in the United States? Two major U.S. courts of appeal decided last year that climate change is justiciable; it is simply the application of existing legal principles to new facts. Courts have a long tradition of adapting the law to complex new social, economic and scientific facts. In Connecticut v. American Electric, the Second Circuit held that nuisances caused by climate change are justiciable and permitted eight U.S. states, the City of New York, and three land trusts to sue the five largest coal-fired electrical-generating companies. In Comer v. Murphy Oil, the Fifth Circuit Court of Appeals ruled that victims of hurricane Katrina can sue major oil companies for their contributions to climate change and its impact on their disaster. In a related case, the U.S. Army Corps of Engineers has already been held liable for their contribution to the flooding of New Orleans.

None of these courts was frightened off by government arguments about justiciability, even though the American cases involve multiple parties and scientific  issues about emissions, the atmosphere and damages to public and private property. The American courts, in other words, consider themselves quite capable of  deciding immensely complex climate change cases.

In comparison, FOE asked our federal courts to do something simple: to judge whether our national government is complying with a short, valid, domestic law that the government acknowledges it doesn’t obey. Our courts were not asked to make any of the difficult decisions about climate change, such as causation, damage, allocation or remedy, that the US courts have taken on. They were asked only to order the government to comply with the KPIA by producing a good faith implementation plan plus progress reports. How could this be non-justiciable?

FOE has sought leave to appeal from the Supreme Court of Canada. Let’s hope that our top judges have the courage and competence of our American cousins, and that they will help to restore the rule of law in Canada.
Reprinted with permission from Precedent Magazine.

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