In La Rose v. Canada, 2023 FCA 241 (CanLII), the Federal Court of Appeal reversed two decisions of the Federal Court that had struck out climate change claims against the Government of Canada. The Federal Court of Appeal concluded that climate change issues may be justiciable. A claim of a right to a healthy and livable environment, though novel under section 7 of the Canadian Charter of Rights and Freedoms ("Charter"), was allowed to proceed. The claim was not doomed to fail. The Court held that the door has not shut on "positive rights" claims under section 7. The Court also held that such claims are not manifestly incapable of proof.
The appellants in the first decision (the "La Rose" appeal) were fifteen children and youth who were between the ages of 10 and 19 at the time they filed their statement of claim. They resided across Canada in seven provinces and one territory. Together, the youth appellants initiated an action against Canada for its failure to address the problem of climate change. They sought remedies under sections 7 and 15 of the Charter, contending that the impacts of climate change "interfere[d] with their physical and psychological integrity and their ability to make fundamental life choices." They asserted that Canada's legislative response to climate change has a disproportionate effect on their generation and that they have suffered'and will continue to suffer'the consequences, given their vulnerability and age.
The appellants in the second decision (the "Misdzi Yikh" appeal) are two Wet'suwet'en House groups that comprise the Likhts'amisyu (Fireweed) Clan, Misdzi Yikh (Owl House) and Sa Yikh (Sun House) and each of the House groups' dini ze' or Head Chief (the Dini Ze'). The Dini Ze' of each Wet'suwet'en House group embodies their House and is responsible for the protection of the House's members, possessions, and territories. They contended that Canada has contributed to climate change in a way that 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." They alleged that the legislative response to climate change and executive actions exacerbate the threat and violate their protections and rights under sections 7 and 15 of the Charter. They stated in the claim that the legislation and regulations authorizing the current levels of greenhouse gas ("GHG") emissions, along with the continued and past approvals of GHG-emitting projects, resulted in Canada breaching its obligations under international law in the Paris Agreement, 12 December 2015, U.N.T.S. 3156 (p. 79) ("Paris Agreement"). This constitutes a breach of domestic law, as the targets in the Paris Agreement have been enshrined in section 7 of the Canadian Net-Zero Emissions Accountability Act, S.C. 2021, c. 22.
The Court of Appeal noted Canada's response:
Canada responded to each of these actions with a motion to strike. Canada's position is that GHG-induced climate change is real, scientifically established and objectively measurable. GHG emissions are having demonstrable negative impacts on the Canadian environment, the...
