Federal Government

•There are many ways to frame a Charter case as it relates to climate change

•Click on the options below to find out more about them then discuss as a group and determine how you wish to proceed

  • Challenging a single, specific decision is a common approach in Charter applications. 
  • The advantage to challenging a single decision is that courts are accustomed to analyzing charter violations in relation to one law or decision.
  • However, it can be difficult to identify one decision that, in and of itself, will lead to a level of GHG emissions that is harmful, or will cause emissions to go above the government’s target. This could lead to the government escaping responsibility if the decision only produces a limited impact on the climate. 
  • Here are some examples of claims challenging one decision by the federal government
  1. Challenge the federal government’s GHG-reduction target of 30% below 2005 levels as inadequate to combat climate change (similar to the approach used in Urgenda v. Netherlands)
  2. Challenge the Pan-Canadian Framework (government admits that the polices set out in this framework will not sufficiently reduce emissions to meet the Paris Agreement)
  3. Could also challenge decision that directly threaten the government’s ability to reach its reduction targets (ex. Decision to purchase the trans-mountain pipe-line)
  4. Challenge the subsidies given by the federal government to the oil industry

  • It may be strategically compelling to challenge the overall policy network of decisions that cumulatively lead to harm. In this way, claimants would ask the courts to take an integrative approach by looking at how several laws, policies, and decisions interact in a way that collectively leads to harm. They could point to the constellation of government decisions authorizing and subsidizing fossil-fuel extraction, development, transportation, and infrastructure that, together, lead to unacceptable levels of GHG emissions.
  • Similar to approach taken in Juliana v. United States
  • If you decide to frame a climate Charter challenge on a network of decisions, you would do well to emphasize that substance, not form, should govern Charter analysis; otherwise, governments could avoid accountability for Charter infringements due to a narrow, technical approach. 
  • Example of a constellation of decisions by the Federal Government
  1. The collection of decisions made surrounding transportation (investments, subsidies, tax structure…)
  2. The collection of decision surrounding pipeline approvals 

  • Challenging the government’s inaction or insufficient action as a violation of section 7 Charter rights
  • This could be framed as inadequate implementation of past climate plans, which have led to current levels of GHG emissions, or the insufficiency of the government’s current target ad legislation
  • However, a challenge framed in this way can be more difficult as it can takes courts out of their comfort zone. 
  • Examples:
  1. Current federal government emissions targets and legislation allows emissions to continue beyond the level that the IPCC has identified as necessary to avoid dangerous levels of warming
  2. Could challenge decisions to delay mitigation efforts which increases the cost and difficulty of reducing emissions in line with recommended levels
  3. Challenge the under inclusion of the government’s mitigation approach (ex. It does not offer protections to the most vulnerable communities, such as Inuit communities in the far north)