The bold move towards climate change litigation is progressing in Canada as seen in last year's Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), 2015 BCSC 471 ("VTACC"). Examples of similar litigation in other jurisdictions around the world are outlined below. The Alberta Environmental Law Center noted that at the end of 2013, there were 420 climate change cases in the United States and 173 in the rest of the world out of which approximately 10 cases are in Canada. It has been observed that some of the cases are brought pursuant to common law tortious causes of actions while others challenge decisions of regulatory authorities pursuant to specific legislation and are aimed at driving the course of climate change regulation. Further, some of the cases arise in the context of specific project approvals and others are petitions affecting a particular industry sector. While climate change litigation in Canada is in its infancy and, as in other jurisdictions faces significant legal challenges to its success, it poses a tangible risk to development projects.
Recent Climate Change Court Decisions
In VTACC v. British Columbia (Energy and Mines), VTACC challenged two decisions regarding the proposed expansion of Texada Quarrying Ltd.'s (TQL's) coal handling and storage operation on Texada Island. The two decisions under review related to the Minister of Energy and Mines' (MEM) issuance of a permit and the Minister of Environment (MOE) refusal to exercise its statutory power to require TQL to obtain a permit for the proposed expansion. TQL is a subsidiary of Lafarge Canada Inc. VTACC attempted to characterize the primary argument as a jurisdictional one. They argued that because the Mines Act does not regulate bulk coal storage and handling operations the Chief Inspector did not have the power to authorize such operations. VTACC asserted that the jurisdiction over TQL's operation rested with the MOE under the Environmental Management Act ("EMA"). In the alternative, VTACC argued that the Chief Inspector breached his duty of procedural fairness and natural justice by not making new material that had been received, that was relevant to issues raised by the public, publically available.
The Court upheld the decisions of the MEM and the MOE. However, the portion of the decision which will be relevant to future climate change litigants is the Court's reasons for denying VTACC public interest standing. VTACC's self-described mission is to urge governments to take meaningful action to address climate change through reduced reliance on carbon intensive fuels such as coal. They argued that TQL's stored coal would eventually be exported and burned and would therefore contribute to greenhouse gas emissions that drive climate change, and that climate change is an issue of paramount importance on an international, national and local level. Granting public interest standing requires the court to weigh three factors: whether the case raises a serious justiciable issue; whether the party bringing the action has a real stake or a genuine interest in its outcome; and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court.
The Court found that the question raised was not a...
