EDITORIAL
2 Obiter Dicta
Climate Change Litigation in Canada
Probable or not, possible or not, the mere possibility is
something powerful
I
n the wor lds of environmentalism, environmental law, and particularly climate change
advocacy, Roger Cox is currently quite the celebrity. This past June, he won a suit brought by
environmental NGO Urgenda and 886 Dutch citizens against the Dutch government. To oversimplify,
the plaintiffs successfully argued the Dutch government breached a duty to the Dutch population by not
setting stricter gashouse gas emission targets. On
September 15th, Cox gave a public talk, discussing
his motivations, current climate change evidence,
and the plaintiffs’ legal strategy. A panel discussion
followed Cox’s talk, including current Osgoode Hall
Dean and justiciability expert Lorne Sossin, former
Justice of the Ontario Court of Appeal Hon. Stephen
Goudge, leading Canadian environmental lawyer
David Estrin, and tort law expert Lewis Klar.
Originally, I intended to summarize the Urgenda
case, the opinions of the panellists and finally the
majority opinion on climate change litigation in
Canada. However, there are enough legal pieces out
there that it’s unlikely that another one—written by
a second year law student no less—will add anything
meaningful. To anyone looking for something to that
effect, I suggest articles written by Diane Saxe of
Saxe Law (and new Environmental Commissioner of
Ontario), Andrew Gage of West Coast Environmental
Law or Stephen Leahy of DeSmog Canada. They have
had years to develop their expertise while I have three
weeks of environmental law under my belt.
In short, I’ve abandoned my original plans for
this article. Not because they aren’t important, but
because I left the talk with something substantially
more critical that I need to discuss. I left that talk
with hope. Real, can feel it in my heart and my bones
hope, something I haven’t associated with climate
change in years.
From Peter Kent’s announcement that Canada
was officially withdrawing from the Kyoto Protocol
in December 2011 to the conclusion of the September
15th event, I looked upon any discussion of climate
change with the jaded, thousand yard stare of a soldier after a failed operation. Studying environmental science left me feeling like a tinfoil hat wearing
conspiracy theorist, looking at society pondering
how everyone else can know so little about our dire
situation. Sometimes, I also felt like Morpheus, the
gatekeeper to the “truth” about our reality, only
with much more mixed feelings about which pill
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“Law: the only game where the best players get
to sit on the bench.” anonymous
ê Lawyer Roger Cox taking a moment after Dutch courts order government to increase greenhouse gas emission
reduction targets. Photo credit: The Guardian
Neo should take. Whenever I read an article, viewed
a TED Talk or watched a documentary about climate
change, I would absorb the new calamitous predictions with a dispassionate disposition, accepting the
severity of the situation, but lacking the drive to act.
There was once hope in Canada, I think. At the
very least, my teenage memories are laced with it.
Sure, the One Tonne Challenge was an abject failure
that preached to the converted and could never have
met its own goals. But it was something that achieved
a high level of awar eness in the Canadian public,
meaning that climate change itself was once on all of
our collective radar. I remember learning about the
2002 Kyoto Protocol ratification, how Canada’s previous government developing a plan that—while looked
down upon by the OECD and Canada’s Commissioner
of the Environment—signalled that Canada was at
least trying to meet its emission reduction targets.
Was there a significant lack of enforceable regulation
and too heavy a reliance on voluntary measures? Yes.
But, as was the case with the One Tonne Challenge,
we were heading in the right direction.
Of course, the change of government following the
election in January 2006 changed all that. The newly
elected Conservative government made it clear they
were not going to attempt to meet Canada’s Kyoto
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targets. From there, cuts were made to federal contributions to climate change programs including
wind power and home efficiency promotion, Canada
actively blocked progress on new climate change
agreements, and (as mentioned earlier) Canada
became the first country to exit the Kyoto Protocol.
While the latest IPCC report states that there is a 95%
certainty that a correlation exists between the rising
average global temperature and rising atmospheric
CO2 levels, our federal government set a new, much
weaker emission target than Canada’s commitments
under Kyoto. During all this, I bemoaned the loss of
the image of Canada I once had while developing an
exceptionally negative attitude. And while I’ve had
such a miniscule amount of exposure to environmental law, so far it hadn’t lessened my near-unshakeable
cynicism.
But as was the case before 2006, there are signs
we’re heading in the right direction again. In tort law,
the recent Federal Court of Appeal decision Paradis
Honey Ltd. v Canada, 2015 FCA 89 includes fairly
radical obiter suggesting revamping public authority liability. In Carhoun & Sons Enterprises Ltd. v
staff writers
Evan Ivkovic, Shannon Corregan, Anthony
Choi, Michael Motala, Kareem Webster
l ayout staff
Rachel McPherson, Karen Wang
contributors
Jerico Espinas, Michael Ly, Justin Philpott,
Micheal Silver, Abigail Cheung
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due at 5pm on October 3, and should be
submitted to: [email protected]
» see editorial, page 19
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