I’ve always been a sucker for lists of three (not sure why), so a recent American article on three climate cases to watch in the coming year got me thinking: what climate litigation can we expect in Canada in 2024, and what might they mean?
I’ve cheated a bit: this post includes more than three cases, and some of them haven’t been filed yet. However, here are three types of cases which we should look for in the year ahead (i.e., before December 31, 2024):
- Suing Canadian governments for climate action (or inaction). Lawsuits against Canadian governments for their role in causing climate change;
- Suing fossil fuel companies for climate compensation. A class action lawsuit against the fossil fuel industry for its role in causing climate change; and
- A less positive possibility, lawsuits to prevent climate action. Legal challenges to federal climate laws by foot-dragging provinces or by industry.
Suing Canadian governments for climate action (or inaction)
Around the world, youth (and others) are suing their governments for not doing enough to prevent climate change, or for their role in causing climate change. In Canada we have three lawsuits of this type which could be decided – and are likely to have an important impact on climate policy – in 2024.
La Rose v. Canada is a lawsuit brought by fifteen youth (age 10-19 when the case was filed) against the Government of Canada. They argue that a wide range of government actions are contributing to climate change, which is affecting the constitutional rights of the youth and other Canadians. La Rose is being heard along with Misdzi Yikh v. Canada, a similar constitutional challenge brought by two Wet’suwet’en hereditary chiefs.
La Rose and Misdzi Yikh had seemingly hit a brick wall in October 2020, when the Federal Court ruled that both constitutional challenges raised such broad public policy issues that it would be inappropriate for the case even to proceed to hearing (in legal parlance, the cases were not justiciable). The court felt that the legal challenges “effectively put the entirety of Canada’s policy response to climate change in issue.”
However, just this last December, the Federal Court of Appeal overturned that ruling, albeit on a narrow basis. The Court invited the petitioners to file new pleadings that more specifically identify the government actions being challenged, but ruled that those actions could be challenged.
Meanwhile, in Ontario, another group of youth are appealing their own constitutional challenge against the Ontario government to that province’s Court of Appeal. In Mathur v. Ontario, seven youth focused their challenge on the provincial government’s weakening of its climate target and associated legislation.
Unlike La Rose and Misdzi Yikh, the issues raised in Mathur were considered justiciable, and proceeded to hearing, but Sophia Mathur and her co-petitioners lost after that hearing. The Ontario Superior Court ruled that while the youths’ constitutional rights are being violated by climate change, they had not shown that the government’s weakening of its climate targets was an unconstitutional cause of the climate harm that youth are suffering.
Ecojustice, which is representing the youth, is appealing that decision, and the Ontario Court of Appeal heard the case on January 15th. Full disclosure: West Coast Environmental Law is proud to have intervened in the case in support of the youths’ appeal. You can read our arguments here.
A couple of things could happen in these cases in 2024. First, the petitioners in La Rose and Misdzi Yikh are likely to file revised constitutional challenges. Canada could choose to challenge the revised pleadings again to get them dismissed, or the cases could finally get their day in court. Either way, expect action in these two cases. And we’ll need to wait to see what the Ontario Court of Appeal does with the Mathur appeal.
Given the importance of these cases, it is likely that at the end of the day (and probably not in 2024), one or all of these cases will be appealed to the Supreme Court of Canada. So there’s still a road ahead of us.
Suing fossil fuel companies for climate compensation
With more than 40 lawsuits from local and state governments (and most recently two Tribal governments) filed in the U.S., and our own Sue Big Oil campaign actively encouraging BC governments to follow (law) suit, we believe that the question is not if, but when, a claim by Canadian governments against fossil fuel companies will be filed.
Most British Columbians agree that it’s only fair that fossil fuel companies pay part of the massive climate costs that the province is already experiencing, rather than leaving those costs all to BC residents and taxpayers. Frankly, we can’t afford the rising costs, and (as a planet) we can’t afford for fossil fuel companies to be rewarded economically for selling products that they know cause climate change. If you haven’t signed the Sue Big Oil Declaration, please do so.
So far, three BC local governments have promised to work towards a class action lawsuit (Squamish, View Royal and Gibsons). Others are considering the possibility, and we expect to see more coming forward. There’s no guarantee that the case will come together in 2024 – but if we work hard and explain to local governments and the BC public that Big Oil needs to pay its fair share, then we believe we can get there.
Lawsuits to prevent climate action
The courts are not only being used to promote and push for climate action, but also to slow it down or block it. Canada’s Greenhouse Gas Pollution Pricing Act has already been (unsuccessfully) challenged by Alberta, Saskatchewan and Ontario. And Alberta and Saskatchewan at least have been arguing in the media that several other new or proposed pieces of Canadian climate legislation and policy are unconstitutional intrusions into provincial affairs.
Based on the rhetoric from the Premiers of those two provinces, we can expect to see court cases concerning the constitutionality of one or more of the federal government’s new climate policies:
- Clean Electricity Regulations;
- Methane emissions regulations; and
- The cap on oil and gas sector emissions.
We’ve written recently about the constitutional authority for the proposed oil and gas emissions cap here. Although there are legitimate questions about the limits of each level of government’s powers to fight climate change, it seems clear that the federal government has a broad role to guard against provincial foot-dragging.
Clouding our crystal ball (and the predictions for 2024) is the “sovereignty” legislation that both Alberta and Saskatchewan have enacted. This legislation purports to protect the provinces from unconstitutional federal laws, and Alberta’s Premier Smith has already said that it will be used against the Clean Electricity Regulations. There is every reason to believe that she could use it against the other two policies as well.
It seems at least possible that a lawsuit about federal and provincial powers could take the form of a challenge to the Sovereignty Act or other provincial attempts to block federal climate action (launched by the federal government or other parties), instead of a direct challenge by the provinces regarding federal laws. That being said, Canada’s Environment Minister, Steven Guilbeault, has said that the federal government isn’t planning a challenge to the Sovereignty Act, arguing that it’s largely symbolic.
Justice can sometimes move slowly, so who knows how quickly the court actions we’ve discussed above will advance – but it seems likely that 2024 will be an exciting year for climate law in Canada. Whatever the year brings, we’ll be watching closely!