Stephen Rees's blog

Press Release from Friends of the Earth

Appeal of KPIA decision launched a week before next
climate change meetings

OTTAWA – Lawyers for Friends of the Earth Canada gave the Government of Canada notice yesterday that they will be appealing a recent Federal Court decision in Canada’s first ever climate change lawsuit. The much anticipated appeal comes one week before the world gathers in Poznan, Poland for the next round of international climate change negotiations.

The original lawsuit was launched in June by pro bono lawyers from Paliare Roland Barristers and Ecojustice (formerly Sierra Legal Defence Fund) on behalf of Friends of the Earth Canada. They were seeking a declaration from the court that the government had failed to meet the legal requirements of the federal Kyoto Protocol Implementation Act (KPIA). These requirements include a Plan based on meeting Kyoto targets and drafting and enacting legally binding regulations to combat climate change.

“If the Federal Court’s decision was left unchallenged, Canada’s woeful inaction on the climate change crisis would be allowed to continue despite domestic law that clearly states the Government must act,” stated Ecojustice lawyer Hugh Wilkins. “We simply cannot stand by while the government picks and chooses which laws to enforce. All of our laws must be upheld – even the ones the government finds inconvenient.”

The Federal Court ruled that the legislation itself is not justiciable – meaning it is not an issue the Courts can resolve.  The appeal will seek to have the Federal Court decision set aside and ask the Court of Appeal to declare that the Minister of the Environment and the Governor in Council are violating the KPIA.

“We are looking to the Federal Court of Appeal to provide more guidance on the issue of justiciability,” said eminent Canadian lawyer Chris Paliare.  “The KPIA itself states that it is binding on the Government.  If the government is not accountable in the courts for its admitted non-compliance with this legislation, it could make the same claim for various other laws that it does not want to obey.  That makes this an important case, not just for the Kyoto Protocol, but also for democracy and the rule of law.”

“Friends of the Earth cannot let the Government of Canada defy its domestic law on climate change,” said Beatrice Olivastri, CEO of Friends of the Earth Canada.  “If we cannot enforce the KPIA, it makes a mockery of the democratic process in the current session of Parliament and any private member’s bill that is considered.  How can we debate future commitments to reduce greenhouse gas emissions when we fail to enforce the current law of the land on climate change?”

For a copy of the ruling please visit www.ecojustice.ca.

I must admit I am baffled by all of this. I have long argued with my colleagues in cases like this that what is needed is a simple common law writ called Mandamus.  The Kyoto Protocol Implementation Act requires that the Government of Canada has to do something effective about its climate change responsibilities. It hasn;t done that, and we all collectively are suffering – and will suffer – because of that. Indeed, in signing on to the Kyoto protocol the Government of Canada voluntarily accepted responsibilities that it has done nothing to fulfill. All Canadians have seen the reputation of their country degraded because of that inaction.

Governments do not get to pick and choose which laws they want to obey. If they do not like the previous government’s legislation they can repeal it. Or bits of it anyway. Reneging on international obligations is another matter altogether. But they cannot just behave as though these obligations do not exist, and the courts are the only way that we have to rectify the situation since we  keep on being forced to have a government most of us didn’t want, but got becuase of a broken electoral system.

Clearly the Federal Court is wrong. If this matter is not justiciable, then why do we bother with Acts and Parliament in the first place? What value does a decision made in both houses and signed into law by the Queen’s representative have when a PM can just simply pretend it doesn’t matter?

I also think that similar writs are needed when governments make a mockery of their own processes, which require consultation and scientific documentation of impacts and their mitigation but projects are allowed to proceed even though they cannot be said to have satisfied any of these requirements adequately. But that’s a case for another time.