Lho’imggin et al. v. Her Majesty the Queen
Jurisdiction: Federal Court
Side A: Lho’imggin et al (Tribal government)
Side B: Canadian government (Government)
Indigenous groups alleged Canada's climate policy, approval of GHG-emitting projects violate human and constitutional rights.
Two houses of the Wet’suwet’en indigenous group filed a legal challenge on February 10, 2020 alleging that the Canadian government's approach to climate change has violated their constitutional and human rights.
According to the complaint, plaintiffs Misdi Yikh and Sa Yikh are each a House group under Wet’suwet’en indigenous law, and comprise the Fireweed Clan. The plaintiff Lho’imggin is the dinize’, or Head Chief, of Misdzi Yikh and the plaintiff Smogilhgim is the dini ze’ of Sa Yikh; each speaks for his House.
The plaintiff complaint allege that Canada failed to meet its international commitments to reduce greenhouse gases, including those made at the 1988 International Conference on the Changing Atmosphere and under the 1992 United Nations Framework Convention on Climate Change, the 1998 Kyoto Protocol, the 2009 Copenhagen Accord, the 2010 Cancun Agreement and the 2015 Paris Agreement. Plaintiffs further claim that Canada's Nationally Determined Contribution under the Paris Agreement -- to reduce annual greenhouse gas emissions by 30% below 2005 levels by 2030 -- is insufficient to meet its commitments to hold global warming below 2 degrees Celsius and pursue efforts to keep warming to 1.5 degrees. Moreover, according to plaintiffs, Canada appears unlikely to meet its Nationally Determined Contribution. Finally, plaintiffs argue that Canada has failed to use discretionary decision-making power under its environmental assessment legislation to withhold approval of greenhouse gas emitting projects -- in particular liquefied natural gas exports facilities -- to help bring Canada's trajectory in line with the Paris Agreement targets.
Plaintiffs contend that they have experienced significant warming effects on their territories and expect to experience negative health impacts due to climate change. They further assert that Canada's historical treatment of indigenous leaders and ongoing racial discrimination exacerbate the psychological and social trauma caused by climate change. Their claims arise principally under Section 91 of the Constitution Act, 1867 (duty to make laws for the peace, order and good government of Canada); Section 7 of the Charter of Rights and Freedoms (right to life, liberty and security of person); and Section 15(1) of the Charter of Rights and Freedoms (equality before the law).
Plaintiffs seek declaratory relief; an order requiring the government to amend each of its environmental assessment statutes that apply to extant high greenhouse gas emitting projects to allow project approval to be canceled if Canada will be unable to keep its Paris Agreement commitments or considers climate change to be a national emergency; and an order requiring the government to complete an annual account of its cumulative greenhouse gas emissions in a format that allows comparison to Canada's carbon budget.
The defendant Canada filed a motion to strike on July 28, 2020, and plaintiffs responded to the motion on September 10, 2020.
On November 16, 2020, the Federal Court granted the motion to strike without leave to amend on the grounds that the case was not justiciable, had no reasonable cause of action, and the remedies were not legally available. The Court found that the case was not justiciable because it did not have a sufficient legal component to anchor the analysis. The Court wrote, "[t]he issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government." The Court further found that because plaintiffs did not reference specific sections of laws that cause specific breaches of Charter rights, their claims presented no reasonable cause of action. With regard to remedies, the Court found that the multifaceted problem of climate change would make judicial supervision meaningless, and therefore the Court could not take on a supervisory role to ensure adequate laws were passed.
On December 10, 2020, plaintiffs appealed the Federal Court judge's dismissal to the Federal Court of Appeal, and on April 30, 2021, they filed their memorandum of fact and law. Canada has until June 28, 2021 to file their response, and a hearing is expected in the fall.