Canada’s Federal Court has followed the lead of several US courts, finding that some aspects of climate change are “not justiciable”. In particular, the court refused to enforce Canada’s Kyoto Protocol Implementation Act, accepting government arguments that the Act established political, not legal, obligations to comply with the Kyoto Protocol.
Undoubtedly, Justice Barnes faced a very difficult decision. On the one hand, the KPIA is part of the law of Canada. No one, and especially not the government, should be allowed to defy the law- this defiance is the precise opposite of the rule of law, the very basis of our free and democratic society. The KPIA requires the federal government to develop a plan to meet our Kyoto committments, something our government clearly admits it has no intention of doing. Surely, the rule of law requires some remedy for such defiance.
On the other hand, the question of how to meet our Kyoto committments is clearly a political one, far beyond the competence and legitimate authority of the courts. Given the enormous economic and political consequences at stake, and the limited legitimacy of the courts to make such changes, it is no surprise that the Justice Barnes refused to make any order that he was not compelled to make. In his view, the KPIA was drafted in terms that were often directory, not mandatory. The KPIA’s inconsistent use of the traditional word of command, “shall”, allowed him to rule that only parts of the Act were meant to be legally enforceable. And those parts did not contain the central obligation to actually comply with the Kyoto Protocol.
What does this mean for the future of climate change litigation in Canada? Probably not much. As in the US, we can expect climate change litigation on numerous fronts over the next decade, both on mitigation and on adaptation. This decision will not be much of a precedent, because it turns on the precise drafting of a particular statute, and not on the larger issues that will dominate cases on environmental assessment and permitting and on the wide range of torts that will be engaged in climate change disasters.
As for Canada’s action on climate change, Justice Barnes’ decision allows Canada to keep delaying real action on climate change. But since the next US president, whoever he is, is going to be serious about the issue, Canada will have to get on board sooner or later. But, as the National Round Table on Environment and Economy has told us, the longer we wait, the more it will cost us…