The Wet’suwet’en challenge Federal Court decision to strike constitutional action
After the Federal Court struck the Wet’suwet’en constitutional and Charter challenge last November, two Houses of the Wet’suwet’en Likhts’amisyu (Fireweed) Clan are pressing ahead with an appeal. The case aims to confront Canada’s 30-year record of inaction and the inability of the political process, on its own, to address the existential threat of climate disaster. With this appeal, Likhts’amisyu members and leadership are enacting their own responsibility, under Wet’suwet’en law, to protect future generations.
With the irreversible threat of global heating looming over the entire planet, acting on climate change is no longer just a policy preference within the discretion of Cabinet or Parliament. It’s urgent, and the time to act is now. In their Amended Statement of Claim, the Likhts’amisyu argue that Canada’s failure to act breaches its constitutional obligation to Canadian citizens. Their constitutional argument goes right to the heart of parliamentary sovereignty,: the Constitution Act, 1982, which gives Parliament the authority to make laws for the “peace, order and good government” of the country.
With this case, the Likhts’amisyu advance two further arguments under the Charter of Rights and Freedoms. One argument addresses specifically the deprivation of rights to “life, liberty, and security of person” (section 7) which the Wet’suwet’en are already experiencing due to Canada’s failure to curb climate change. The other focuses on the disproportionate impact of climate change on younger and future generations of Wet’suwet’en people, which violates their equality rights under section 15 of the Charter.
Faced with Wet’suwet’en’s novel but well-substantiated claim, Canada turned to a gambit from a well-thumbed playbook: a motion to strike. In the motion, Canada stated that the facts about climate change described in the Likhts’amisyu Notice of Claim are “based on assumptions and speculations.” Can this be the same Canada that signed the Paris climate accord? The Canada that passed the Declaration of Climate Emergency in June 2019?
Unfortunately, the Likhts’amisyu are not the first – and probably not the last – Indigenous plaintiff that has had their legal action delayed, derailed, and/or made more expensive by this particular ‘motion to strike’ gambit. When faced with a strong case of Section 35 rights and/or title that threatens the status quo, Canada’s first move is often an attempt to squash it before it is even heard. Even when the move is not successful, the government still benefits from the delay. The financial power disparities between First Nations litigants and governments are stark: it’s easier for Canada to throw a couple of million dollars at delaying tactics even if it may ultimately lose, than it is for Indigenous Nations to put together one tenth of that sum to defend their rights and win.
Consider Beaver Lake Cree Nation’s action for treaty infringement, now in its 12th year. In a motion to strike back in 2010, the governments of Alberta and Canada tried to have the case dismissed under Rule 3.68, a procedural safeguard intended to weed out frivolous or improper litigation. It took three years of legal wrangling — and relentlessly mounting costs — for the motion to strike to be put to rest. In the end, the Alberta Court of Appeal ruled that the Beaver Lake Cree case had merit, was of national importance, and should proceed to trial.
What happens next with the Wet’suwet’en appeal?
Fortunately, when the Wet’suwet’en appeal is heard (likely sometime in the fall of 2021), the Likhts’amisyu legal team will be able to draw on a new, favourable precedent from the Supreme Court of Canada.
On March 25, 2021, the Supreme Court handed down a decision on the federal ability to put a price on greenhouse gas emissions, the References re Greenhouse Gas Pollution Pricing Act (2021 SCC 11). This is the first time the Supreme Court has recognized that climate change is a “threat of the highest order to the country and to (…) the future of humanity”, a threat that disproportionately affects “the ability of Indigenous communities to sustain themselves and maintain their traditional mode of life.”
In what reads like Climate Science 101, the Supreme Court goes on to summarize key scientific findings and to identify major harms that global warming would bring to Canadians, especially Indigenous Canadians, as well as those living on the coasts and in the Arctic. It also affirms that climate change is a matter of “genuine national concern”. This bolsters the Likhts’amisyu argument that global warming, if allowed to continue, is an existential and catastrophic threat.
So much for “assumptions and speculations”, eh?
As the Likhts’amisyu Clan prepares for the appeal hearing this fall, the RAVEN community will continue to stand with the Wet’suwet’en. Give today.
