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Did Canada show up at the Paris climate talks with its pants on?

December 10, 2015

During the recent Canadian election a spokesperson for the Conservative Party said that if Justin Trudeau arrived at a key debate with his pants on he would have exceeded expectations. In fact, Mr. Trudeau not only found his pants, but impressed a great many Canadians and was elected Prime Minister on October 19th.

There was a similar feeling about Canada here in Paris at the start of the international climate negotiations. Canada has been so long a laggard in these talks that if they could avoid being awarded a “fossil” award by the environmental community, they would have exceeded expectations.  

Unfortunately, Canada received its first fossil award on Wednesday for its position on loss and damage (discussed below), and a second today for blocking ambition. 

As a lawyer I’m supposed to be able to give a pundit’s opinion on just how well Canada is doing, and whether we are working towards a strong and fair international agreement.  But the reality is that it’s surprisingly difficult to tell, even here in Paris. That’s partly because I’m still learning, partly because key discussions about what countries are offering and giving up are occurring behind the scenes, but mostly because everything is intertwined and constantly in motion.

In general, Canada is doing well in some very important areas. However, it is difficult to give an unqualified endorsement.  The new government seems not to have grappled with some more challenging questions of fairness and Canada’s contribution to climate change. As such is aligning itself with unhelpful and aggressive positions – especially in its efforts to limit discussions about how to help the world’s most vulnerable communities.

Pants on!

For the most part, Canada did show up with its pants on.  Its negotiators are engaged –often helpfully. Catherine McKenna, the Minister of Environment and Climate Change, was given a key facilitation role in the process.

Canada has made a number of positive announcements, and it seems to me that the coverage at home makes the new Canadian government sound, unequivocally, like a leader.  And it is commendable that:

  • Canada has been a leader in the fight to put Human Rights and Indigenous Rights into the purposes section of the agreement. In this they break ranks with the U.S. and many of their allies;
  • Canada, along with the U.S., Europe and other developed countries, has endorsed “striving” to keep global average warming below 1.5 ˚C – a long-standing demand of island nations; and  
  • Canada started the negotiations with welcome commitments to climate funding.

There is no doubt that these changes in Canada’s positions are important. For example, it is very much up in the air whether countries will agree to recognize Human Rights and Indigenous Rights explicitly in the agreement, and many organizations working on this issue are delighted to have an ally in Canada.  Our colleagues at Equiterre summed up this “pants on” view in a Climate Action Network Canada press release Wednesday, stating:

“The good news is that Canada is back,” said Steven Guilbeault, Équiterre. “Canada has pushed for the inclusion in the Paris Agreement of the rights of Indigenous peoples, a fair transition for workers, and the goal of limiting temperature increases to 1.5° Celsius…all that in a week’s work.”

However, these are also issues that – if dealt with in a superficial way in the agreement – do not guarantee any major change in Canada’s approach to addressing climate change.

Take Canada’s new willingness to strive to ensure that global temperature increases stay below 1.5 ˚C, for example. Don’t get me wrong: truly achieving a 1.5 ˚C goal at this point (if it is, indeed, achievable) would require truly dramatic reductions in greenhouse gases (as well as reforestation and other efforts) in every country around the world – Canada included. However, since the Paris Agreement lets each country individually decide how aggressively to work towards a global goal, and the proposed text only says that parties should “pursue efforts” limit warming to 1.5 ˚C, the Paris agreement would not by itself force a particular national Canadian greenhouse gas reduction target.

That’s why Canada, having already refused to commit to a new Canadian target before consulting the provinces, had no difficulty endorsing a global goal of striving to stay below 1.5 ˚C, and it’s why Alberta’ Environment Minister can tell reporters that a 1.5 ˚C does not require that province to rethink its climate plans.  Canada could promise that its own greenhouse gas reduction targets will be based on its fair share to help achieve 1.5 ˚C, but it has not. 

Our take is that Canada has done an awesome job in talking about issues with huge symbolic value – and symbolism is important in these negotiations. However, the government has been vague about what those positions mean – either in terms of the rest of the agreement or for Canada. On some level this focus on symbolic changes is not surprising, since a new government may need time to fully think through the implications of changes on more substantive issues.

Pants Off!

Many of the most contentious issues in the negotiations relate broadly to ways to fairly apportion responsibility for addressing climate change between countries. In the 1992 United Nations Framework Convention on Climate Change Canada agreed that the countries which had played a larger role in causing climate change needed to play a larger role in solving it and avoiding dangerous climate change (a concept known as Common But Differentiated Responsibility, set out in Principle 1 of the Framework Convention). Canada, along with many other developed countries, has failed to do its part – with our greenhouse gas emissions in fact rising over the same period. 

Canada has been reluctant to face the consequences of its high-fossil-fuel-pollution diet, and this COP is no exception.  While everyone recognizes that all countries need to take action, Canada has been siding with the U.S. in downplaying the responsibility of developed countries.

A particularly troubling example of this is Canada’s efforts to include language in the Paris agreement to limit future discussions on loss and damage to exclude possible discussions of compensation.  “Loss and damage” refers to a wide range of issues and strategies related to helping climate-vulnerable peoples who suffer loss and damage from climate change, from disaster relief and aid to displaced peoples to insurance and compensation.  We can hopefully all agree that ways to help communities devastated by storms, or displaced by rising sea-levels, should be on the table.

Canada has endorsed the idea of Loss and Damage (which is an improvement over its position in Warsaw, when it strongly opposed the inclusion of Loss and Damage in the agreement), but only in a limited way. Behind closed doors, and finally publicly on Tuesday, Canadian negotiators are insisting that the agreement needs to explicitly rule out future development of mechanisms that might impose liability and compensation (a position that won it the 2nd place fossil award from the Climate Action Networkon Wednesday). 

Canada (along with the U.S. and other allies) is scared by a bogey-man. There is nothing in the draft agreement which could even theoretically lead to liability and compensation without further negotiations and Canada’s agreement. It is not appropriate, in international negotiations, to rule out future topics of negotiations on issues of broad concern to many countries.

As this blog post was about to be published, just over 24 hours before the scheduled end of the officially scheduled negotiations, the “exclusion” text that Canada is supporting was released publicly for the first time. As with the earlier drafts, the text does not create any rules that would create liability or requirements of compensation, but this version also includes the following, new, provision:

Parties shall enhance action and support, on a cooperative and facilitative basis, for addressing loss and damage associated with the adverse effects of climate change, and in a manner that does not involve or provide a basis for liability or compensation nor prejudice existing rights under international law.

This text is, unfortunately, dangerously vague and ambiguous. I interpret it as merely saying that a party that “enhances action” for addressing loss and damage is not creating liability or an obligation to pay compensation for itself. Interpreted in such a way, the a clause is, in my view, entirely unnecessary, and has been harmful to the negotiations, but would not necessarily unduly limit options going forward. 

However, alternate interpretations are possible – holding that future international action cannot address issues of compensation.  Such an interpretation would huge implications, as the term compensation is so broad that the proposed language might well ban discussions of, for example, the G7 proposal for climate insurance, unveiled last June, which relates broadly to compensating the victims of climate change. The climate insurance scheme was intended to expand “direct or indirect insurance coverage against the impacts of climate change for up to 400 million of the most vulnerable people in developing countries by 2020.” But the briefing documents clearly recognize that this insurance scheme is an approach to addressing compensation, providing coverage for “full financial indemnity-based compensation of losses related to extreme weather events.” [emphasis added]

One also wonders whether it limits options for the recovery of loss and damage suffered by Canada’s own Inuit and Indigenous, and also non-indigenous, communities, and whether Canada has consulted those interests in adopting its international position. Notably, the Inuit have in the past sought relief from the U.S. for violations of their human rights due to climate change.

An obligation of countries to “enhance action and support” for “addressing loss and damage” in ways that do not provide a basis for liability or compensation does not mean that the liability will not arise in other ways. Nor does it make the climate stresses that might give rise to calls for compensation – and which might reveal themselves in other ways – go away. International security is better served by allowing countries to discuss these types of critical issues through international institutions.

Canada’s unreasonable position on loss and damage even casts some of its leadership on other issues in a new, and much less flattering, light. An unnamed negotiator suggests that in private negotiations between countries, the global goal of 1.5 ˚C is being linked to the exclusion on future discussions of liability and compensation:

The countries that are looking to compromise on [litigation and compensation] with the US, the question is what will they seek in the bargain? I would conjecture it would likely be a reference to keeping global temperature rise to 1.5 degree by the turn of the century and not 2 degree Celsius. It could be the face saving trade off, however notional.

We cannot confirm that Canada’s sudden willingness to “strive” towards limiting global temperature increases to 1.5 ˚C is the result of quid pro quo negotiations on loss and damage, but it is striking how quickly a number of developed countries, including Canada, have dropped their longstanding opposition to this goal. 

Canada’s position on loss and damage is extremely aggressive and unhelpful – intended to silence and pre-judge future discussion that may not even arise, apparently because of fears that Canada might need to discuss its responsibility for its failure to do its part to prevent dangerous climate change. It has not been thought through, and Canadian environmental groups, including West Coast Environmental Law, have been pressing Canada to drop this approach before the negotiations conclude, and to press the U.S. to do the same.

Pants on, but shoes missing?

The Canadian government came into these negotiations only weeks after their election, and it is understandable that they are finding their feet and still working out how best to engage constructively at a global level on these issues. We don’t even have our act together within Canada yet – and that’s a much simpler playing field. 

Canada has been constructive on a number of crucial issues, and deserves praise for doing so.

However, Canada needs to engage fairly on the issues that raise hard questions for Canada. Canada’s previous government withdrew from the Kyoto Protocol rather than face the consequences of our country’s past inaction on climate change. I want to live in a country where we’ll at least discuss our moral and legal duties to help people and countries that have been hurt by fossil fuel pollution from our country.  I don’t want my country to tell them that they just need to shut up about it.

Tell us what you think in the comments below – are Canada’s pants on or off?

By Andrew Gage, Staff Counsel