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The Federal Government filed its defence on Thursday, to Friends of the Earth’s climate change lawsuit. Last year, the three opposition parties combined to pass a Kyoto Protocol Implementation Act, now part of the law of Canada. This statute requires the Minister of the Environment to prepare a climate change action plan every year to “ensure” Canada’s compliance with the Kyoto protocol. Since our Government has decided not to attempt to comply with Kyoto, its “Climate Change Action Plan” has quite different targets. Friends of the Earth argue this is a breach of the Kyoto Protocol Implementation Act.

The essence of the federal response is that Kyoto compliance is politics, not law. Each branch of government has its proper role; there are some questions that are beyond the legitimate role and capacity of the courts. In legal terminology, such questions are “not justiciable”. In past cases, the Supreme Court has agreed that the exercise of some political discretion is not justiciable, such as whether to allow the U.S. to test nuclear missiles in Canada, whether Canada Health Act funds should be withheld from provinces that allow private clinics, and whether adequate funds have been provided for legal aid. For such matters, they say, the government is accountable to the electorate.

On the other hand, the courts have insisted on their right to review other political questions, such as medical marijuana, therapeutic abortion and gay marriage, particularly when they affect individuals.

So, what will the court do in this case? Precedent suggests that the court will find most Kyoto-related questions non-justiciable, such as: Should Canada comply with the Protocol? And, if so, how? These are complex financial, political, social and economic questions that the courts are not equipped to answer, and they don’t deal with the rights of individuals.

It is not clear, however, what the courts will do with Friends of the Earth’s central point. FOE argues that this particular lawsuit turns on a true legal question, the sort of question that courts are well equipped and expected to answer. A Canadian statute says that the Minister of Environment “shall” develop a plan to “ensure” that Canada complies with its Kyoto commitment. If he hasn’t, is that a legal question, or a political one? For such a question, should the Minister be accountable only to Parliament, or also to the courts?

There is also a significant question as to what, if any, remedy the courts could impose, and enforce, should they decide that the question is justiciable. A declaration? A mandatory order? Saying what?

This will be a fascinating case to watch.

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