Rights, Charter, Action! Wet’suwet’en to Canada: see you in court

December 13th was a big day, and not just because it was Taylor Swift’s birthday. This week,the Federal Court of Appeal ruled on both La Rose v Canada and Misdzi Yikh v Canada, breathing life back into these vital climate change litigation cases. 

A quick recap: the La Rose case was brought by 15 courageous youth who are taking Canada to court for its failure to address climate change. They argue that the effects of climate change  “interfere with their physical and psychological integrity and their ability to make fundamental life choices.” The youth, aged 10 to 19 at the time of filing the claim, will be disproportionately affected by Canada’s inaction to address climate change now and for future generations. 

RAVEN is supporting the Wet’suwet’en-led Misdi Yikh case, led by two hereditary chiefs of the Likhts’amisyu (Fireweed) Clan in Wet’suwet’en territory. The case — which the RAVEN community has supported to the tune of $565,500 so far —  has precedent-setting implications for Indigenous rights in relation to climate action. 

Why? Because Canada continues to authorize resource extraction projects — such as Coastal Gas Link’s fracked gas pipeline through Wet’suwet’en territory —  that will produce greenhouse gasses far beyond its obligations under international law in the Paris Agreement. 

Grounded in Indigenous law and ancestral responsibility to protect land, air and water for future generations, hereditary chiefs are arguing that Canada’s actions contributing to climate change — alongside its inaction to impose strict climate-related policies — poses a “threat to their identity, to their culture, to their relationship with the land and the life on it, and to their food security.” 

Now, these vital arguments are one big step closer to having a fair hearing in court. 

A nailbiting near-miss

In both cases, the Crown had moved to strike the claims in advance of a trial process. The Federal Court had originally agreed to throw the cases out on the basis that the claims within were non-justiciable, meaning that they were based on issues outside of the legal realm. Essentially, Canada tried to wriggle out of being held legally responsible for climate impacts by arguing they were political and discretionary decisions best left to legislatures. The Crown also claimed that, due to the political nature of Wet’suwet’en hereditary leaders’ opposition to the Coastal Gas Link pipeline, the courts were not an appropriate place to settle the matter. 

Undeterred, the claimants appealed: the December 13th decision means that Wet’suwet’en will be heading back to court to pursue this once-in-a-generation climate challenge

A panel of three Federal Court of Appeal judges walked back the Crown’s motion to strike the cases, and determined that indeed, these ARE matters for the courts to decide. 

From the decision:

“I do not agree, respectfully, that the claims are not justiciable simply because the question of climate change is complex or because the legislation reflects a political choice on how to address the problem. While the legislation may be controversial, this does not efface the fact that the debate has been crystallized into law; legislative choices have been made.”

From the BC FCA Decision, December 13, 2023

Canada? We’ll see you in court. 

At the heart of the cases? Life, liberty and equality

With the world’s leaders wrapping up another COP and a new set of agreements requiring countries like Canada to make yet-more toothsome cuts to emissions, the stakes could not be higher. Both Misdi Yikh and La Rose have the potential to be the pointy stick that shifts leaders from making murky promises to being held to hard and fast, legislated solutions. 

Let’s dig into the issues at stake with these now-revitalized legal challenges. 

Both parties in La Rose and Misdi Yikh  brought forward several claims relating to sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the Charter), and other more general legal doctrines. Section 7 deals with life, liberty and security of the person, while Section 15 is about the right to equality. The Federal Court of Appeal allowed the appeals relating to the Section 7 claims, meaning these are the claims that could be sent back for a trial.

The La Rose case is arguing that climate inaction imperils Charter guarantees to ‘life liberty and security of person’ by allowing the government to fail to meet commitments that would protect their right to life on a planet with a stable climate.

Meanwhile, the Misdzi Yikh case is also grounded in Section 7. The Wet’suwet’en argue that a failure to meet climate action targets deprives them of their ability to live as Wet’suwet’en people. The Wet’suwet’en culture, legal orders and economies are intimately tied to their territory and due to climate change are experiencing impacts on food security, health and economic stability. For example, climate change is reducing the number of salmon in the Nation’s territory, reducing food security, and exacerbating health risks. 

Now that the Federal Court of Appeal has ruled that the case can go to trial, we’ll be watching Wet’suwet’en dig into that toolbox to make their case for climate sanity. 

Many small steps, one giant leap

These cases aren’t the first time Canadian courts have wrestled with climate change litigation and the challenge of whether it is a matter for the courts. There have been roughly 38 separate cases relating to climate change filed in Canada. In 2008, Friends of the Earth Canada brought some of the first climate-focused litigation in Canada with an action alleging that the Canadian government had breached its duties under the Kyoto Protocol Implementation Act, 2007 (KPIA). Surprise, surprise: the courts found that case was non-justiciable and that it did not have a role in reviewing the government’s decision.

In a long-awaited decision released this summer, Mathur v. His Majesty the King in Right of Ontario , the Ontario Superior Court of Justice found that while in that case, sections 7 and 15 of the Charter were not infringed, the issues raised were indeed justiciable. In that case, a group of seven young climate change activists brought a constitutional challenge against the Ontario government in response to legislation that substantially weakens targets for the reduction of GHG emissions. That decision came in the aftermath of Sierra Club of British Columbia Foundation v. British Columbia (Minister of Environment and Climate Change Strategy), in which the court also found  that a climate-related lawsuit was justiciable, though it disagreed with Sierra Club that B.C.’s climate change accountability reports were unreasonable. 

So: inch by inch, progress is being made to hold governments accountable to their climate commitments, in court. All of these small steps add up to one giant leap: for all of us, and for future generations. 

Breaking new ground for environmental rights

As Canadian courts have more opportunities to review climate change litigation, they have more and more opportunities to develop jurisprudence that will allow litigants to bring forward strong cases to protect our rights and the planet. We are hopeful that when La Rose and Misdzhi Yikh proceed to trial, they will be able to successfully show how Canada’s lack of climate action is violating the rights enshrined in our Charter and Constitution. 

By supporting this long standing case, launched back in 2020, RAVEN is pushing for accountability at the highest levels. Confronted with flagging political will and industry-friendly regimes, Indigenous Nations and their allies are relying on the pointy instruments that the courts — at their best —  can be, to uphold commitments that are necessary to our very survival as a species. 

Wet’suwet’en Nation has been part of a vanguard, leading actions to limit irresponsible development and protect the rights not only of their own members, but of everyone who lives on these lands and waters. We are so grateful to everyone who has supported RAVEN to back this case so far: now is the time to contribute so that we can see the Nation forward: to trial, and to victory.

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