Lho’Imggin et al. v. Her Majesty the Queen
Case Name: Lho’Imggin et al. v. Her Majesty the Queen (also known as Misdzi Yikh v. Her Majesty the Queen)
Jurisdiction: Canada
Type of claim: Challenge of federal government’s insufficient climate policy
Summary of result: Motion to strike dismissed (case proceeding to trial)
Judgment final: No, appeal in process
Court instance:
| Court | Type of decision | Summary of decision |
|
Federal Court of Canada Judgment of 16 Nov 2020 2020 FC 1059 |
Decision on motion to strike | Motion to strike granted |
|
Federal Court of Appeal Decision of 13 Dec 2023 2023 FCA 241
|
Decision on motion to strike | Federal Court decision overturned, claim permitted to proceed to trial |
Source of claims: Constitutional rights: s. 7 and s. 15 of the Charter of Rights and Freedoms; Peace, Order and Good Government (s. 91 of the Constitution Act, 1867); Public Trust Doctrine
Summary of Judgment
Introduction
The statement of claim has been brought forward by two Head Chiefs representing their respective Wet’suwet’en House groups of the Likhts’amisyu (Fireweed) clan.[1] The Dini Ze claim states that “Canada’s policy objectives for the reduction of greenhouse gas [GHG] emissions by 2030 are insufficient.”[2] They cite several common law principles that Canada has violated, including “public trust”, “equitable waste”, and the “constitutional principle of intergenerational equity.”[3] They also argue that there is a violation of their rights under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms not justified under section 1 of the Charter.[4] They also “allege that Canada has breached its duty under section 91 of the Constitution Act, 1867 by not ensuring low GHG emissions under the peace, order and good government [POGG] powers.”[5] This means that “Canada is generally violating their [the plaintiffs’] constitutional rights by not adhering to international environmental agreements that Canada ratified.”[6] The Dini Ze’ bring forward a number of suggested remedies.[7]
Canada argues that while climate change is a serious threat that needs to be dealt with, this statement of claim is “not justiciable, discloses no reasonable cause of action and the remedies are not legally obtainable.”[8]
The Court agrees with Canada in its arguments, for the reasons outlined below.
Claims by the parties
The Paris Agreement was ratified by Canada on October 5, 2016 and the agreement entered into force on November 4, 2016.[9] The plaintiffs use the Paris Agreement as a reference point to their claim that “Canada has repeatedly failed, and continues to fail, to fulfil its duty.”[10] The failure to fulfil this duty, the plaintiffs claim, infringes on their constitutional Charter rights under s. 7 and 15 and is a breach of the POGG power under s. 91 of the Constitution.[11]
s. 7, s. 15 and POGG powers
S. 7 of the Charter reads as follows: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
S. 15(1) of the Charter reads as follows: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
POGG is defined in s. 91 of the Constitution Act as a power of the federal government to pass laws promoting peace, order, and good government of Canada. POGG is a tool to facilitate federalism, that is, the balance of power between different levels of government (federal and provincial). While ss. 91 and 92 of the Constitution list in which areas the federal and provincial governments can legislate, these lists are not exhaustive. Occasionally, there are either gaps or overlaps where it is unclear which level of government has the authority to legislate. For environmental matters, provinces have a great degree of legislative control, for example they have control over non-renewable resources and forestry. However, if the issue falls under one of the 3 situations outlined below, the federal government can step in under POGG, as long as they have sufficient cause to do so. The recent Supreme Court case involving the “carbon tax” (Reference Re Greenhouse Gas Pollution Pricing Act) allowed the federal government to enact a national carbon pricing scheme under POGG, since climate change was a sufficient matter of national concern that required a unified approach by the federal government.
The POGG powers can usually be implemented in 3 situations:
– where there is a gap “in the scheme of distribution of powers”[12]
– in matters of national concern regarding Canada which require federal intervention to address[13]; and
– in times of national emergency (usually wartime), where the federal government may implement temporary emergency laws.[14]
The plaintiffs argue that their s. 7 Charter rights are violated because climate change will increase the risk of premature death (due to extreme weather events, vector-borne diseases, air pollution); inhibit their freedom of movement due to climate change risk, thus violating their right to individual and collective autonomy; violate their right to security of the person by increasing risk of injury, disease and mental health from climate change-related events; and increase risk of psychological and social trauma.[15]
The increased effects of climate change on their community due to Canada’s failure to act will deny protection and benefits of the law to younger and future generations, which is a violation of s. 15(1) of the Charter.[16]
Furthermore, the plaintiffs argue that Canada has breached its duty under s. 91 of the Constitution Act, 1867 by not making laws under the POGG power.[17] In other words, the plaintiffs claim that the POGG power does not only include an authorization, but also imposes a duty on the government to make laws to ensure peace, order and good government.
The plaintiffs seek a wide-ranging array of remedies:[18]
- Multiple declarations that Canada “has a common law and constitutional duty” to keep climate change within 1.5 and 2C above pre-industrial levels, that Canada has a constitutional duty to use its POGG powers to do so, and that Canada has a duty to not infringe on the plaintiffs’ s. 7 and 15 Charter rights
- Orders requiring the Court supervise the Government of Canada until it has discharged its duties, and for Canada to amend relevant environmental statutes to align with the 1.5-2C goal, as well as preparing a comprehensive, annual account of Canada’s GHG emissions
Federal Court Judgment
The Court defines 3 issues. First, is the claim justiciable? Second, does the statement of claim disclose a reasonable cause of action? Third, are the remedies sought legally available?
Justiciability
The Court must decide whether the plaintiffs’ claims involve “a subject matter that is appropriate for a court to decide.”[19] The Courts have a limited purview when it comes to non-legal matters, especially when considering the relationship of the judiciary to the other branches of government. The Courts are typically reluctant to overstep their bounds and rule on questions of policy (which climate change is considered to be, due to its multi-faceted and complex nature).[20] However, there are exceptions, “especially when the allegations are of the constitutionality of policy or law, or a breach of someone’s constitutional rights.”[21]
The Court finds that the plaintiffs’ POGG claim is not justiciable because it cannot be used to impose a duty to legislate – they simply permit Parliament to do so if it so chooses.[22] It is not within the Courts’ power “to tell the legislature to enact particular laws.”[23] The Courts are limited to striking out, reading down, or reading in of provisions if certain laws are found to violate the constitution, but they cannot themselves create new legislation or force the government to do so.[24] This emphasizes the theme of the separation of branches of government – that each branch (like the judiciary) must stay within its boundaries in order to maintain a fair balance and proper function of the government as a whole. If courts overstep these boundaries, this upsets the balance that the branches of government seek to maintain.
The Court finds that the plaintiffs’ Charter claims are not justiciable because they have not referenced “specific laws or state actions that breach the right of the Dini Ze.”[25]. Thus, “it is difficult to find sufficient legal elements in the Charter claims for them to be justiciable.”[26] This is similar to the La Rose v Canada case, in which the Plaintiffs’ Charter claims (that the government’s lack of action on climate change violated their s. 7 and 15 Charter rights) were found not to be justiciable. In La Rose, the Court reasoned that “there are some questions that are so political that the Courts are incapable or unsuited to deal with them.”[27] The Court in La Rose adds that the Plaintiffs’ broad claims cannot be translated into a Charter review, since only specific state laws can be examined to see if they violate certain sections of the Charter. The broadness of the Plaintiffs’ claims makes this difficult if not impossible to accomplish.[28]
As for the justiciability of the remedies, the Court states that it is not appropriate for the judiciary to function in a supervisory role over the other branches of government.[29] In addition, given the complexity of climate change and the interplay between federal and provincial climate policy, the remedies that address only the federal aspect would render them “quite possibly… ineffective.”[30] The Court “does not have the statutory jurisdiction to mandate … co-operation between the different levels of government.”[31]
Reasonable Cause of Action
The Court finds that the plaintiffs’ POGG cause of action will fail due to the justiciability reasons given above.[32] The Court finds similarly with the Charter claims, in part due to the lack of specific legislation referenced in their claim, and in part due to the inherent difficulty in proving causation between Canada’s failure to legislate and the Charter breaches.[33] While this does not close the door on future Charter claims in this vein, in the current case they cannot succeed.[34]
Remedies
For the reasons discussed above, the remedies put forward by the plaintiffs are not appropriate and fall outside the jurisdiction of the Court.
Conclusion
The Court grants the defendants’ motion and strikes the Statement of Claim.
Appeal
In December 2023, the Federal Court of Appeal partially overturned the Federal Court’s decision and allowed the s. 7 Charter claim to proceed to trial. [Update to follow.]
[1] Federal Court decision, at para. 2
[2] Federal Court decision, at para. 4
[3] Federal Court decision, at para. 4
[4] Federal Court decision, at para. 4
[5] Federal Court decision, at para. 5
[6] Federal Court decision, at para. 5
[7] Federal Court decision, at para. 6
[8] Federal Court decision, at para. 7
[9] Federal Court decision, at para. 9
[10] Federal Court decision, at para. 10
[11] Federal Court decision, at para. 10
[12] Federal Court decision, at para. 34
[13] Federal Court decision, at para. 34
[14] Federal Court decision, at para. 35
[15] Federal Court decision, at para. 12
[16] Federal Court decision, at para. 14
[17] Federal Court decision, at para. 11
[18] Federal Court decision, at para. 15
[19] Federal Court decision, at para. 17
[20] Federal Court decision, at para. 19
[21] Federal Court decision, at para. 20
[22] Federal Court decision, at para. 36
[23] Federal Court decision, at para. 47
[24] Federal Court decision, at para. 47
[25] Federal Court decision, at para. 50
[26] Federal Court decision, at para. 55
[27] La Rose Federal Court decision, at para. 40
[28] La Rose Federal Court decision, at para. 43
[29] Federal Court decision, at para. 64
[30] Federal Court decision, at para. 63
[31] Federal Court decision, at para. 63
[32] Federal Court decision, at para. 84
[33] Federal Court decision, at paras. 91-96
[34] Federal Court decision, at para. 102