Case name:                      Friends of the Earth v. Canada (Governor in Council)

Jurisdiction:                     Canada

Type of claim:                  Cases against specific legislation or policies

Summary of result:         Claim dismissed as non-justiciable.

Judgment final:                Yes

Court instances:

Source of claims:            Statutory law (Kyoto Protocol Implementation Act)

Summary of Judgment

Facts and claims of the parties

The Canadian liberal government had signed onto the Kyoto Protocol in 1997 and committed Canada to reduce greenhouse gas emissions by 6% compared to 1990s levels by 2012. This was ratified by Parliament in 2002.

The subsequent conservative government, which came into office in 2006, was opposed to the Kyoto Protocol and did not intend to implement it.

In 2007, the Kyoto Protocol Implementation Act (KPIA) was introduced into Parliament as a private members bill by a liberal MP, and passed against the will of the conservative minority government. The intention of the Act was to force the government to comply with Canada’s obligations under the Kyoto Protocol. Among other things, it requires the Minister of the Environment to prepare a Climate Change Plan that ensures Canada will meet its Kyoto target. Furthermore, it calls for Cabinet to make or repeal regulations to ensure Canada meets the target.[1]

In August 2007, the Minister of the Environment published a Climate Change Plan which made it clear that the federal government had no intention to meet the Kyoto target. Rather, Canada’s greenhouse gas emissions were expected to be 34% higher than the Kyoto target by 2012.[2]

The ENGO Friends of the Earth submitted three applications for judicial review, each of which related to a different provision under the KPIA, and asked the Court to order the government to comply with the obligations under the KPIA.

Federal Court decision

The Federal Court dismisses the claim, holding that the KPIA does not create any duties for the government that could be enforced by the judiciary.

First, the Court examines whether Friends of the Earth has standing to bring the applications, and finds that they have public interest standing.[3]

Next, the Court examines whether the KPIA imposes justiciable duties upon the Minister of the Environment and the government. As a general matter, the Court notes that even a political question can be judicially reviewed if it possesses a sufficient legal component.[4] In the specific case, this hinges on whether Parliament intended for the duties imposed upon the government by the KPIA to be subjected to judicial review, or, in the alternative, only to parliamentary review and any sanctions that Parliament itself would impose.[5]

The Court notes that it was apparently not the intention of Parliament to ensure that the government strictly comply with Canada’s Kyoto obligations. If that had been the case, Parliament would have formulated a clear duty in this regard. Instead, the KPIA formulates various responsibilities, such as, for example, that the government provide for a just transition for workers affected by greenhouse gas emission reductions, and that the reduction levels are equitably distributed among sectors of the economy. These, the Court holds, are policy-laden considerations which are not the proper subject matter for judicial review.[6] Furthermore, the language used by the KPIA (“to ensure”, rather than “shall”) is not commonly used to create strictly binding obligations.[7]

A complete failure of the Minister to prepare a Climate Change Plan, the Court reasons, might indeed be justiciable. However, the question of whether the content of the Climate Change Plan complies with the requirements imposed by the KPIA is not.[8]

Furthermore, the Court holds, the KPIA “contemplates an ongoing process of review and adjustment within a continuously evolving scientific and political environment”, which cannot be completely controlled by the government. The KPIA also recognizes that a target may not be fully accomplished in a particular year. This indicates that the KPIA was not intended to require strict compliance.[9]

Finally, the Court holds that it would not be able to make an order against the government which has any meaningful content, because the obligations of the government under the KPIA are too widely framed and cannot be pinned down to certain specific duties.[10]

Federal Court of Appeal decision

The Federal Court of Appeal dismisses the appeal, stating only in one paragraph that it agrees with the reasons given by the judge in the Federal Court.

Supreme Court of Canada decision

The Supreme Court refuses to grant leave to appeal the case. This decision was taken without a statement of reasons.

[1] Federal Court decision, at paras. 8-9.

[2] Federal Court decision, at paras. 10-13.

[3] Federal Court decision, at para. 20.

[4] Federal Court decision, at para. 24, citing Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at page 546.

[5] Federal Court decision, at para. 31.

[6] Federal Court decision, at para. 33.

[7] Federal Court decision, at para. 34.

[8] Federal Court decision, at para. 34.

[9] Federal Court decision, at para. 35.

[10] Federal Court decision, at para. 47.