Mathur et al has no shot at a win for climate change

TABLE OF CONTENTS:

Abstract.......................................................................................................................2

Introduction ................................................................................................................2

Climate Change…………………………..............................................................................5

The EU initiative...........................................................................................................6

Urgenda Foundation v The Netherlands........................................................................10

Court: (positive vs negative obligation by ECHR) ...........................................................13

Boso case (EU) and Valentin Campeanu v Romania (EU)................................................14

Reduction targets......................................................................................................15

Mathur case (Canada)...............................................................................................16 

Arguments for positive rights under Charter................................................................20 

Alternative arguements.............................................................................................26

Court’s role...............................................................................................................27

Conclusion…………………………………………………………………………….……………………….29

Abstract:

Why not make it a global initiative to stop polluting the Earth? Reform seems to be on its way, where everyone can do more than just agree that the world would be a better place without the threat of people polluting the planet. Initiatives to reduce CO2 emissions around the world both in the EU and in Canada represent this spark to unite such a global commitment.  This paper will explore the courts’ role in pursuit of this goal.

Introduction:

The aboriginal people of Canada hold deep in their culture the understanding of a reciprocal relationship existing between the earth and humanity.  This relationship represents their basic first principle that the earth is a living entity providing essential habitation for human survival.  Seemingly a settle truth that humanity necessarily depends on the earth for its survival; if globally recognized, has the ability of uniting the world on climate change reformation (meaning a form of action taken by governments to curve CO2 emissions).  Echoing this idea, is a similar call from scientists around the world that the earth is in crisis due to industrial CO2 pollutants.  Nations must unite in recognizing that all peoples of the planet must take care of their environment; something that should guide our lawmakers and policy makers on a global scale.  This paper will briefly examine initiatives in the European Union or EU, in their response to curve CO2 or carbon monoxide emissions that are currently causing the earth to heat up at an accelerated rate.  From this perspective it will be clear that this collaborative effort has been met with some failures.  Attempts made by citizens to cure these failures have found their way successfully through the judiciaries.  To illustrate the courts’ essential role in the furthering of particular climate change agendas, a brief overview will be provided of the case of Urgenda v the Netherlands 2015 (when referencing articles 2 or 8 they will always be understood as referencing the ECHR or the European Convention of Human Rights if not explicitly cited).  It will become clear that central to the success of this case was the courts’ ability to recognize a governments duty to act to combat climate change in a protectionist framework.  This paper will then juxtapose this case in the EU with the case of Mathur v His majesty the King 2019; a similar case still making its way through the judiciary in Canada, to provide a clear view of the judicial interjurisdictional perspectives.  Unfortunately, the position of this paper, is that Mathur is doomed to fail because of the Canadian court’s interpretation of section 7 of the Charter of Rights and Freedoms (here after the Charter and when reference is made to sections 1, 7 or 15 it will always be understood as referencing the Charter if not explicitly citied).  Viewed as problematic for social justice advocates, several Canadian scholars identify the courts unwillingness to interpret section 7 of the Charter as supporting a positive obligation on government and offer intriguing argumentation towards future persuasion as a cure.  The aim of this paper is to reignite further dialogue for the recognition of a positive obligation under section 7 of the Charter in support of Canadian climate change reformations.  In conclusion it will be evident that the recognition of a positive obligation under section 7 the Charter is crucial for continued support of a successful Canadian climate change agenda.

Historically, throughout the world different cultures have maintained a certain way at looking their relationship with the earth.  For example, the Canadian aboriginal people have a view of the earth as coexisting with humanity; a separate spiritual entity sharing its existence with humankind[1].  The Manitoba educational institution describes this aboriginal belief as “having received global recognition, as evidenced in Principle 22 of the Earth Charter. This recognition provides a sense of hope and rekindles Aboriginal people’s collective and social responsibility for the future — a responsibility that must be shared equally among all people.”[2] The view represents what they call ‘a respect for the earth,’[3] that it is within everyone’s common best interest to respect nature.   Now, formally recognized as one of many similar norms held by different cultures globally is this interconnection between the earth and humanity that is not often heard together with scientifical views regarding threat of modern climate change.  With this current global push to cut CO2 emissions worldwide rests on the simple idea or principle that everyone must work together to respect the earth.  It implies a collective intention, understanding and effort to promote a well being for the earth and by extension humanity.  The climate change agenda to cut CO2 emissions as articulated in the Paris accord, represents a global awakening towards formally acknowledging the existence of this tightly held sub cultural truth.   For example, well established legislative initiatives have begun in both the EU and Canada placing obligations on industries to curve their environmental pollution citing specific that are aimed at CO2 elimination.  

Climate change:

Identifiably, different cultures recognize that this fundamental relationship exists between humans, and the earth as a first principle from which other norms in their society are predicated.   As expressed in a study entitled the ‘Earth Charter’ there are many cultural similarities around the world.  This document was the creation of consultations between different cultures around the world that include the many aboriginal cultures of Canada.  Endorsed by UNESCO the document remains an attempt at consolidating differing world views into one document with what remains as a distinct commonality to all.  According to the Earth Charter’s mandate, “founded by visionaries in the year 2000, we invite the visionaries of today to use the Earth Charter as a reference for decision-making and planning.” [4] It has no legal basis but represents what seems to be an underlining consensus among a large portion of cultures globally of recognizing humanities obligation to the earth, based on a reciprocal dependency.[5]    With its purpose, the Earth Charter promotes relationship building between all cultures.  Current climate change agenda’s globally, embody this understanding of a principled approach, representing a global starting point of a coordinated effort for respect for our planet where governments and citizens have a qualified duty to the environment.  This global spark of CO2 reduction targets is a step towards fulfilling humanities obligation towards the environment representing a lesson to be learned, that this idea of a reciprocal relationship exists and is to be respected.

The EU initiative

Leading the way in this climate change agenda to reduce CO2 emissions is an effort by the EU.  Legislation has been enacted for all EU signatory states towards the mitigation of the amount CO2 production with, the aim at offsetting the effects of global warming.   The rate at which the earth is heating has had scientists around the world ringing alarm bells for quite some time.  The fear is of changes to the world landscape that would be detrimental or catastrophic in different geographical areas of the world. 

“The current level of global warming is at about 1.1º C warmer relative to the beginning of the Industrial Revolution. The current concentration of greenhouse gases amounts to approximately 401 ppm. Human-induced CO2 emissions continue a global level and over the past decades, the global CO2 emissions have increased by 2% annually, which is why global warming continues unabated. There has been a consensus in the climate science community and the world community for some time that the global temperature should not exceed 2º C. If the concentration of greenhouse gases has not exceeded 450 ppm in the year 2100, there is a reasonable chance that this 2º C target will be achieved. However, the insight has developed over the past few years that a safe temperature rise should not exceed 1.5º C, which comes with a lower ppm level, namely 430 ppm”[6]. 

The immediacy of this emergency is what has triggered this awakening.  The rise in global warming has and will continue to cause the polar caps to melt thereby raising the water levels globally.  This will cause detrimental effects to costal town areas, hurricanes will become more intense, with he potential of massive inland devastations and with a rise in temperature globally different unindustrialized areas would be hit the worst with drought hindering the production of food crops.[7]  To thwart or offset these catastrophes, the advancements in policies made towards the cutting of CO2 emissions must continue to be effective globally.  

The EU’s climate changer agenda is dependant on a collective effort between all member states.   Historically, different United Nation conventions have been drafted since the 1990’s, where each set out targets of global green house gas reduction goals.  Throughout the years agreements have been drafted, such as the Paris accord (Paris conference in 2015), where signatory countries have agreed to reach these target reductions.  As one of its signatories being the EU, the

“European Council has decided that the EU must achieve a reduction of greenhouse gas emissions of 20% by 2020, of at least 40% in 2030 and 80-95% in 2050, each relative to 1990. The European Council has decided that the EU must achieve a reduction of greenhouse gas emissions of 20% by 2020, of at least 40% in 2030 and 80-95% in 2050, each relative to 1990.”[8] 

These reports were created to aid member states in setting respective targets of CO2 emission cuts.  According to the UNEP, from:

“2010, the UNEP has issued annual reports about the so-called ‘emissions gap’, the difference between the desired emission level in a certain year and the reduction targets to which the countries concerned committed. In the 2013 report, UNEP notes, for the third time running, that commitments are falling short, and that the emission of greenhouse gases increases rather than decreases. The UNEP concludes that the emission targets of the Annex I countries combined are not enough to achieve the 25-40% reduction in 2020, deemed necessary in AR4, and that therefore it is becoming less likely that by 2020 the emissions will be low enough to achieve the 2º C target at the least cost.”[9]  

Despite these efforts, the UNEP follow up reporting found that certain nation members were not meeting their respective reduction targets.  This emerging problem of national reluctance to meet their CO2 targets, represents a push back against the current EU climate change agenda.  As a result, one organization took their concerns to court seeking redress from their respective government for falling short of these critical reduction target goals. 

Global attention was drawn to this landmark case between the Netherlands and a foundation named Urgenda (coined from the words urgent agenda).  As a foundation, Urgenda has the goal of developing plans to mitigate climate change.  It has been reported that the Netherlands,

“has a relatively high per capita CO2 emission compared to other industrialised countries. In terms of emissions, the Netherlands currently ranks 34th of 208 countries. Of the 33 countries with even higher emissions, only nine have a higher per capita emission, and not even one is an EU Member State. Of the total of greenhouse gas emissions in the Netherlands, 85% are CO2 emissions, largely generated by the energy sector. CO2 emissions have hardly dropped in the Netherlands since 1990 and have even increased over the past few years”[10] 

In 2015, Urgenda successfully took the Netherlands government to court to pressure them against reducing their greenhouse gas emissions targets.  Holding up under appeal, the court in the Hauge found that the Dutch government had to increase their efforts to reduce their emissions to at least a 25 percent target.  The courts in this instance we able to aid in a push to revive, at least in voice, the Netherlands policies towards climate change.  As a conduit for public voice, the judiciary was able to positively reinforce efforts towards CO2 mitigation, pushing for progress in maintaining the EU trajectory on climate change reformations.

The Netherlands as a signatory state is subject to the EU’s commitment to combating climate change.  The treaty on the functioning of the European Union or TFEU that describes the powers of the Union, includes a commitment to the environment.  According to:

“Article 191 TFEU contains the environmental objectives of the EU (cited in legal ground 2.53 of the judgment). To implement its environmental policy, the EU has established many directives, including the so-called 2003 ETS Directive (Directive 2003/87/EC), subsequently amended (see legal ground 2.58 ff. of the contested judgment). Article 191 TFEU contains the environmental objectives of the EU (cited in legal ground 2.53 of the judgment).  In order to implement its environmental policy, the EU has established many directives, including the so-called 2003 ETS Directive (Directive 2003/87/EC), subsequently amended (see legal ground 2.58 ff. of the contested judgment).”[11] 

Directives such as this represent a collaborative commitment that all members have agreed to.  The Netherlands agreed to follow these directives and subsequent pre-established guidelines set out as targets to achieve CO2 reductions within a cdertain timeline.  Problematically even with the favorable court judgement the Netherlands have failed to comply.  Reasoning why the Netherlands had chosen this course is unclear, but their actions continue to threaten the overall scheme.[12]  Each signatory state is left to monitor their own success and currently there is no oversight or proposed implementation of penalties that would sanction any deviation from the overall properly established target goals.   

The Urgenda case

This case in the Netherlands is the first of its kind, where a government was successfully challenged in court based on their failure towards climate change commitments.  The claimants, located in the Netherlands, are advocates for the support and perpetuation of new innovations to ‘cure’ the threat of climate change[13].  According to Urgenda’s own website they’re goal is:

“for a fast transition towards a sustainable society, with a focus on the transition towards a circular economy using only renewable energy. It works on solutions for this transition, including for example the introduction and realization of ‘energy neutral’ houses and the acceleration of electric mobility. Urgenda views climate change as one of the biggest challenges of our times and looks for solutions to ensure that the earth will continue to be a safe place to live for future generations”[14].  

Ideally and the purpose of this organization is to push for a world that no longer pollutes the planet.  Taking matters into their own hands, the organization sought recourse for redress from the actions of the Netherlands in the form of a court action with a novel argument.  The judiciary was sought out for an alternative voice for this group of citizens to further their cause of promoting a cleaner healthier planet acting as a conduit for the promotion of better policy making.

As a result of this successful outcome in the Hauge, organizations and individuals have motivation to push for reform through the judiciary, where nation states of the EU fail in their climate change obligations.  Urgenda relied on the wording of the ECHR (European Convention on Human Rights) by appealing to both articles 2 and 8 in their call for change.  Successfully, “on 24 June 2015, the District Court of the Hague ruled the government must cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The ruling required the government to immediately take more effective action on climate change.”[15]  According to the arguments made by Urgenda,

“up to 2011 the Netherlands had taken as a starting point its own formulated reduction target of 30% by end-2020.  This was then reduced to an – EU-wide – reduction target of only 20% by end-2020, apparently due to tough political decision-making.  However, the State failed to specify any scientific (climate science) arguments for this reduction. Meanwhile, the Paris Agreement has been established, in which the Netherlands has committed to achieve a reduction of greenhouse gas emissions to stay well below the 2° C limit for global warming. The Netherlands also expressed its intention to aim for a global warming limit of 1.5° C and called for a strengthening of reduction efforts up to 2020.”[16]

The Dutch government lowered its standards from a 30 percent to a 20 percent reduction target and as a result triggering Urgenda foundations decision to act.  Their entire argument was that through the States lack of commitment to curving climate changs, they have contravened Articles 2 and 8 of the ECHR.  According to the convention “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”[17] Each member state is a signatory to the ECHR and is subject to it. The novelty of the Urgenda case is that by the inaction of the Dutch government to make a substantial commitment to reduction by 2020, they have contravened these two sections of the ECHR.

The two arguments made by Urgenda were a unique interpretation of both Articles 2 and 8 of the ECHR in relation to climate change.  In one manner it was a successful attempt to integrate the threat of climate change into a positive obligation on the government to protect its citizens from a threat to their life and way of life.  According to Article 2, “everyone’s right to life shall be protected by law.” The idea posed by Urgenda was that CO2 emissions threatens the life of the citizens of Netherlands.[18]  Secondly, article 8 stipulates that, “everyone has the right to respect for his private and family life, his home and his correspondence.  And that their will be no interference with this from a public authority.” [19]  The idea is that this right to family life also embodies the “right to be protected from harmful environmental influences of a nature and scope that is serious.”[20]  The court sent the signal that the Netherlands had to act responsibly to their citizens to cut CO2 emissions during a certain timeline.  The science underlining the necessity of meeting these CO2 target reductions was not disputed by either party to the action.  While agreeing that the government is free to make decisions in respect to climate change, the court found that they were not open to any argument to justify actions which they took to decrease these reduction targets. In other words, the court found that it was not reasonable for the Netherlands to reduce their overall target reduction policies below 25%.      

Court: (positive vs negative obligation by ECHR)

Central to the success of the Urgenda case was in the courts recognition of a positive obligation placed on the Netherlands to act.  The distinction between a government having a positive or a negative obligation is not always clear.  Defined by the court in Urgenda was that a articles 2 and 8 of the ECHR required, “the [state as having] a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life.”[21]  A positive obligation imposes on the government to take a reasonable amount of action to protect these rights of its citizens.  A negative obligation would require the government to refrain from acting to interfere with these rights.  In the case of Urgenda, the court in recognizing a positive obligation on government to act; sending a powerful message to the legislatures.  This ruling supports the continuing progress towards a zero percent emission of CO2 in the EU.  Essentially, a positive obligation requires governments to be diligent and act (pro-actively) as events may change.  It is important to emphasize the significance of the court’s recognition in that the government must reasonably protect all the lives of its citizens as it pertains to climate change and that without such a recognition judicial success would most likely have been impossible.  

Boso v Italy and

 Valentin Campeanu v Romania

Specific to the EU, article 2 of the ECHR historically has been recognized by the courts to hold governments to a positive obligation to protect a right to life of its citizens. The ECHR-KS (the courts knowledge sharing platform) publishes various guides that help explain the workings of each article in the Convention on Human Rights.  The guide clearly outlines previous case law that supports both a negative and positive obligation under article 2 of the ECHR.  According to this guide of the ECHR, article 2 “contains two substantive obligations: the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions (Boso v. Italy (dec.), 2002)[22].  In this process the court set out to determine the proper balancing of competing rights that of the mother and that of the unborn fetus.  To conclude the court found that the government was reasonable in their attempt to weight the interests of both and as such found in favor of the respondent government.  Having regard to its fundamental character, article 2 of the convention also contains a procedural obligation to carry out an effective investigation into alleged breaches of its substantive limb (Armani Da Silva v. the United Kingdom [GC], 2016, § 229).”[23] In Boso v Italy 2002 the court cites two earlier cases supporting this, the L.C.B v the united kingdom 1998 and the Osman v The united Kingdom 2001.  In the case of: The center for legal resources on behalf of Valentin Campeanu v Romania 2014 (as in Boso v Italy 2002) the court was asked to determine reasonability of state action.  In this case it was to be determined as to what degree of care is owed by the state to individuals under their care in medical facilities.  According to the court “positive obligations under Article 2 must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake.”[24]  Interestingly the court found that this obligation extended to a complete and thorough investigation into the circumstances surrounding the care of the patient.  Article 2 of the ECHR may never have been envisioned by its drafters or of those who are signatories to it; that it would be used in this manner.  As different factual argumentation are put before the court, they can adapt, creating new norms within society that define the relationships citizens have with their governments.  Reasonableness is a key determinate factor in establishing these norms.

Reduction targets

Recall that the purpose of the EU directive regarding CO2 emissions is to eventually have a full stop of all industrial green house gas emissions.  A timeline for a 2% reduction was set by the leading mandates in the latest rounds of the Paris Accord and implemented by the EU.  An agreed statement of facts by both parties in the Uganda that the “end goal is clear and is not disputed between the parties. By the year 2100, global greenhouse gas emissions must have ceased entirely. Nor do the parties hold differing opinions as to the required interim target of 80-95% reduction relative to 1990 by 2050. And Urgenda endorses the reduction target of 49% relative to 1990 by 2030, as established by the government”[25].  The dispute between the parties in Urgenda “focuses on the question if the State can be required to achieve a reduction of at least 25% relative to 1990 by end-2020.”[26].  It was just a 5 percent difference; that by 2020 the state aimed for 20 percent while Urgenda hoped for at least a 25 percent reduction.  Ultimately, the court ruled that a 25 percent reduction must be met and on appeal the ruling was upheld.  The effects of a 5 percent difference are potentially huge, but it was made clear by the court that the state had an obligation under the ECHR with respect to the threat of climate change.  The expectation after the trial was that the Dutch government would ultimately abide by this ruling but unfortunately, they did not.  Despite the government of the Netherlands subsequent actions, the case itself showed the world that successful litigation in the sphere of climate change was possible.  Further, the pragmatic implications illustrate that the legislatures and the judiciary must work together essentially to further a successful climate change reduction agenda.

Mathur Case

A coalition of Canadian citizens is currently trying to achieve a similar outcome as the Urgenda case, in the case of Mathur v Ontario 2024.  Ironically, the case is arguing against the most recent legislation of the Ontario government.  As in the Urgenda case, the Ontario government reduced its goal for CO2 emissions from a target that it initially set.  According to the pleadings “The Cap-and-Trade Cancellation Act (CTCA) was enacted by the province of Ontario in 2018. It repealed the Climate Change Mitigation and Low-Carbon Economy Act, which had established an emission reduction target of 37% below 2005 levels by 2030 in the province, and implemented a revised target of 30% below 2005 levels by 2030.”[27]  The initial target implemented by Ontario was “according to the unchallenged expert evidence filed, that the application judge accepted, falls short of the international scientific consensus of the reductions recommended to mitigate the most catastrophic effects of climate change.”[28]  So, the legislation itself was already inadequate.  The applicants are seeking for “ an order declaring their Charter rights have been violated and requiring Ontario to set a science-based emissions reduction target and to revise its climate change plan in accordance with international standards.”[29] A Charter challenge is before the court as to whether the actions of the government to reduce the reduction of CO2 from its initial target thereby infringed on both sections 7 and 15 of the Charter.  But, before this issue of whether a Charter infringement existed and whether it was a justified limit under section 1 could be answered at the court of first instance, the government filed a motion to strike the application. 

Initially, the respondent government of Ontario was successful on their application to dismiss.  The Ontario Superior court found their existed no reasonable prospect of success in the case.  Under section 21 of the rules of civil procedure Ontario, the court may dismiss a case where it had no real prospect of success for lack of justiciability.  According to Section 21 of the civil procedures act, Ontario it states that:

“To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.  R.R.O. 1990, Reg. 194, r. 21.01 (1).”[30] 

The Superior Court of Ontario found that the issues surrounding the case were ‘too political’ in nature for the court to decide, as it questioned the entire way that the government decided to combat climate change.   Finding that the questions posed involved deciding whether the government had a positive obligation towards the applicants.[31] On appeal, reversing the lower courts decision, the Court of Appeal found that the case did not involve any issue regarding positive rights, but a question regarding specific legislation that the government implemented.  So, the court found that the matter was justiciable because specific legislation was being questioned and not the entire scheme of how the government tackled the problem of climate change.[32]  So, the question is involves whether by the actions of the government of Ontario to reduce CO2 target emission have they infringed on sections 7 and 15 of the Charter.  At this time the matter is still waiting to be heard on its merits, but its success is doubtful because the reasonableness of the entire scope of the governments actions towards climate change is not considered by the court as this would be a question of a positive obligation and thus ‘too political’ or outside of the court’s jurisdiction.  In comparison to the case of Urgenda without the recognition of a positive obligation on the Ontario government under section 7 of the Charter, the applicant’s in Mathur lack the strength in their case.  Where the reasonableness of the governments attack on climate change is not an issue, the government is free to set policies as they see appropriate.  Reasonableness falls under the determination of the legislatures of Ontario.

In Canada, the door is not entirely closed where section 7 of the Charter maybe interpreted as imposing a positive obligation on the government (section 7 - ‘right to life, liberty and security of the person’).  In the case of Gosselin v Quebec 2002, the possibility of recognizing a positive right under section 7 the Charter was referenced by the court ‘as being possible’.  The case involved the differential treatment of social benefit recipients from different age groups who invoked both a sections 7 and 15 infringements.  According to the court the “appellant argues that the s. 7 right to security of the person includes the right to receive a particular level of social assistance from the state adequate to meet basic needs.  She argues that the state deprived her of this right by providing inadequate welfare benefits, in a way that violated the principles of fundamental justice.”[33]  The argument criticized the overall welfare scheme in Quebec.  According to Justice Iacobucci, writing for the majority, section 7 “does not grant a right to security of the person, full stop.  Rather, the right is protected only insofar as the claimant is deprived of the right to security of the person by the state, in a manner that is contrary to the principles of fundamental justice.  The nature of the required nexus between the right and a particular state action has evolved over time.”[34] Currently, while there is no positive right attached to section 7, the courts are not completely ruling out that they may be persuaded in this direct in the future[35].  According to a sole dissenting view in Gosselin v Quebec 2002 ‘section 7 may be interpreted to include positive obligations.’[36] The hope lies in Justice L’Heureux-Dube J dissenting opinion, that “In my view …s.7 …include[s] a positive dimension.”[37] But unfortunately to date, the courts have not provided  any specific way that this may be achieved.[38]  Nor have they ever hinted at a favorable example where section 7 may play a role in positive right obligations.

Positive Rights under the Charter

Many different legal scholars have wrestled with this issue of how to sway the Canadian courts so that the Charter maybe be interpreted as imposing a positive obligation on the government.  In a paper by Vannessa MacDonald entitled, The Protective Function and section 7 of the Canadian Charter of Rights and freedoms discuss third party infringement under sec 7 forcing the government to act, she puts forward an interesting discussion addressing this issue.  According to Vannessa MacDonald, section 7 of the Charter as “the protective function would require the state to secure individuals against deprivations of their interests in life, liberty and security of the person, usually by enacting appropriate legislation.  Of course, in many cases, existing law would go a long way toward securing these interests.”[39] The argument would have the government engage in protections, particularly in cases involving environmental concerns[40].  Arguing that a positive obligation is captured in the plain meaning of the wording of section 7-the right to life.[41]  Unfortunately the Canadian courts do not agree with this interpretation.  This is more in line with how the courts in the EU view on article 2 of the ECHR. 

An associate professor at the university of British Columbia and environmental lawyer, David Boyd makes a similar argument.  He advocates that section 7, in conjunction with section 15(1) of the Charter argumentation would support a positive obligation on governments.  According to Boyd in their book entitled: The Right to a Healthy Environment, “litigation by way of section 7 is the most practical means to achieve this goal, due to the provision’s broad phrasing.  In doing so, section 7 certainly has potential to protect environmental rights for certain groups which are at the heart of environmental justice.”[42]  The main point is that ideally section 7 alone should get the job done.  But he articulates that a section 7 argument in conjunction with a section 15(1), is persuasive for the existence of a positive right to be imposed on government.  The example provided is that a successful argument would involve disadvantages incurred by aboriginal Canadians through legislative frameworks lacking protections that ‘ought’ to have been afford to them by government.   Suggesting that the values under section 15 are encapsulated by the values in section 7 of the Charter, placing the government in the position of having to act as the only form of relief.  In circumstances where social justice is concerned for such provisions as providing clean drinking water, only the government can perform these actions.  As in Vannessa’s argument, a group that has been discriminated against in this manner where essentials of life are at stake, redress can only be given by government action.[43]  To do otherwise, without government action perpetuates discrimination.  Pragmatically, to correct the furtherance of discrimination is achievable because only the government has the means to cure it.

This is a very persuasive argument for the protective interpretation of section 7 of the Charter.  David Boyed’s aim as is Vannessa MacDonald’s is to get around the courts reluctance to recognize a positive obligation on government under section 7 by enjoining a section 15(1) argument.  According to the Charter, section 15(1) guarantees that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”[44]  The court has recognized that by the very wording of this section it may, depending on the circumstance, support a positive obligation on the court.  In Haig v Canada 1993, Justice Iacobucci stated that “a government may be required to take positive steps to ensure the equality of people or groups who come within the scope of s. 15.”[45]  The same justice who spoke out against a positive obligation being available under section 7 of the Charter in Gosselin strikingly finds that the wording of section 15(1) to place a positive right.[46]  This full reversal of opinion may show that in conjunction with the arguments involving sections 7 and 15(1), the court may be open to this future suggestion.  But this form of argument must include a protectionist interpretation of section 15 where the courts have already shown disfavor in this interpretation.  

This argument is similarly expressed by Madiha Vallani, but from a substantive perspective.  In their paper, Sections 7 and 15 of the Canadian Charter of Rights and Freedoms in the Context of the Clean Water Crisis on Reserves: Opportunities and Challenges for First Nations Women 2018, it is argued that aboriginal women are a prime example to support this argument for a positive obligation utilizing both sections 7 and 15(1) together.  According to Madiha, the purpose of section 15 “is to uphold substantive rather than formal equality, and this has long been the judicial interpretation.”[47] In the case of Andrews v Law Society of British Columbia 1989 was the very first case in which the Supreme Court of Canada (“the Court”) scrutinized section 15 referencing substantive equality.[48]  Madiha argues that the proper interpretation of section 15 as expressed in Andrews “entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.”[49] Madiha Vallani’s argument advances the idea that there is a corrective nature inherent in the wording of section 15 of the Charter. This perspective is hinted at by David Boyd.  Section 15(1) of Charter’s aim or purpose is to correct and inhibit discrimination against certain groups who are “suffering social, political and legal disadvantage in our society.”[50]   Madiha Vallani argues that it is the main function of the court to consider “for substantive equality involves analyzing the impact of the impugned law on the distressed group.  Substantive equality aims to confront the causes of inequality, rather than treat every person equally as a protectionist theory encapsulates.  It recognizes that treating everyone the same way can sometimes perpetuate discrimination and therefore should not be the purpose of the equality provision.”[51]  In Andrew the court pointed to a four-part test under section 15 used to determine in a prima facie infringement had occurred.[52]  The court found that the focus of section 15 was how the law is applied and its impact on an enumerated disadvantaged group.  A problem with Vallani’s argument, as with other supportive section 15 Charter arguments, is that it would only find support for a small minority of individual citizens and what is needed is full recognition to the entire population regarding climate change.  Only a positive obligation under section 7 would support every citizen protection from climate change.

Additionally, there is a problem with these arguments involving the courts unwillingness to act when issues brought before them are ‘too broad’ or too political in nature.  In Mathur, the court of first instance found that the issue of the governments response to climate change was ‘too political in nature and dismissed the action by the applicants.  According to Nathalie Chalifour paper, Environmental Justice and the Charter: Do Environmental Injustices Infringe Sections 7 and 15 of the Charter?, the problem for litigants arguing that the government has a positive obligation as it relates to climate change reforms is “largely because there is no specific law or legal framework that has caused the alleged differential treatment (central to section 15)”[53]  In Mathur, on appeal overturning the lower courts decision, the court found there was a specific law being challenged.  But the court considerations of this specific law will be limited to infringements on section 15 of the Charter.  Unlike, as is the case in Mathur, the Hauge court’s ruling in Urgenda did not shy away from answering a question that involved the entire scheme of the Dutch government’s actions on climate change as it pertains to all citizens.  A failure in Mathur will stem from the courts unwillingness to recognize a positive obligation under section 7 that would encompass all Canadians.[54]  So even where specific legislation is under question, if there is success in Mathur it will be from the success of a novel argument that one of the enumerated disadvantaged groups under section 15 are the youth (age) and future generations.  Seemingly, they will be hard pressed to convince the court that the legislation in question is targeting this specific group of the Canadian population and additionally that this group is recognized under section 15 of the Charter.

An alternative argument utilizing a negative obligation on government:

In the alternative, in keeping with a negative obligation interpretation under section 7 of the Charter, it may be possible to hold third party actors accountable for their actions.  This was clearly outlined by the Ontario court of appeal case of 1986 in Lavigne; that by extension some private entities may be subject to the Charter.  The trial judge noted that the Charter does not apply to private activity but by section 32 it applies to, inter alia, ''the legislature and government of each province in respect of all matters within the authority of the legislature of each province."[55] The court held at p. 479:

 “that: . . . governmental action does include the entering of a contract by a Crown agency pursuant to powers granted by statute in the context of the facts at bar. To hold otherwise would be to permit "government", as identified in section 32(1) of the Charter, to impose terms in a contract that it could not impose by statute or regulation because they breach the Charter.  Such an arrangement would defeat the purpose of the Charter.”[56]  

Arguably, if a private actor is being funded or working along side a government agency, then they maybe subject to the Charter and thus subject to issues involving climate change.  Problematically, the scope of what may be considered government action is open for debate on a case-by-case basis.  This argument is supported by Vanessa MacDonald, where applicants hoping to deal with issues of social justice such as climate change, homelessness or other environmental concerns may seek court action to address actions implemented by these other agencies who are involved with government through joint ventures or even subsidies in Canada.[57]  But this avenue would still fail to encompass the broader spectrum of what climate change reforms are to achieve targeting only particular instances where private parties are involved.  The broader issue in respect for tackling the emergency of climate change is that it cannot be achieved peace meal.   Charter challenges that only consider negative obligations on government cannot support the required judicial scrutiny for effective government action towards climate change.  Time is of the essence and prolonged debates only serve solidify the earths fait.    

Court’s role: they can’t act alone to curve climate change:

To performance of this balancing act between competing constitutional rights and interests, the courts play a role in structuring the norms of society.  Thes norms of society are to reflect the will of the people in abstract terms, but it is questionable if the courts can fully capture this especially when Charter issues are raised.  According to Beverly McLachlin in their presentation: Equality- The Most Difficult Right, this balancing “raises the question of whether the courts can capture the complexity of social life in a way that permits them to make the best decisions. At a more abstract level, who should be making fundamental decisions about the kind of society we have the legislatures or the courts?”[58]  Any societal reforms require a cooperative effort between the courts and the legislatures.  Each case involving the ECHR of Boso, and Valentin Capeau as it related to looked for the reasonableness in the government’s actions in relation to their obligations under article 2 ECHR.[59]  What is reasonable for society depends as articulated by the courts sends a signal to the legislatures as a guide.  McLachlin point out that the ‘repercussions of these decisions reverberate into the social fabric of society in a fashion that is an extension of the legislative goal and what is defined as reasonable actions of government does not always capture the will or need of the citizens’.[60]  Questions of what is a reasonable form of action towards climate change should conform to a principled approach.  From this perspective, the rule of law must be respected and along with the incorporation of efforts by legislatures to mitigate socio-economic forces that may be creating the reluctance of nations states to meet their obligations to the climate change emergency.  In this way what is required is a cementing that recognizes the requirements of every branch of government to act in unison.  It is the opinion of this paper that a strong principled approach towards climate change recognizing the fragility of the relationship that exists between the earth, and its inhabitants will unite the branches to government in procuring an effective way forward that cures this emergency that the world faces today.  Potentially, only hopeful that such a principle would be recognized constitutionally or from the specific Canadian perspective that such a positive obligation under section 7 will be successfully argued; but dialogue to this effect must remain open.  Ideally, reasonableness demands progress towards curing the present emergency of climate change with the projection towards a full stop of all forms of toxic pollution on the earth.

Conclusion:

It is imperative for a successful climate change agenda to continue in Canada, with the support of the judicial system, that a positive obligation on the government must be recognized as existing under section 7 of the Charter.    Efficiency demands that the legislature and the judiciary work together to further climate change reform agenda.  Problematically, the courts in Canada are currently not recognizing a positive right under section 7 of the Charter leading towards what seems to be an ultimate failure for progress towards a pollution free world.  As recognized in the two cases of Urgenda v Netherlands in 2015 and Mathur v his majesty the King 2019, governments can change or fail in their initiatives towards climate change reform progress.  Citizens in the EU, have an important avenue through the judiciary to vocalize their concerns and seek redress when these initiatives begin to wain.  Unfortunately, in Canada without the support of the recognition of a positive obligation under section 7 of the Charter, this form of redress seems unattainable.  Vanessa Macdonald, Boyd along with Madiha Vallani, articulate different techniques in an attempt at persuasion that may lead to compelling the Canadian courts to adopt a positive obligation under section 7 of the Charter.  Ideally (or wishful thinking), what is required is a principled approach to climate change that is recognized globally, in line with the Canadian aboriginal view of a reciprocal relationship between humanity and the earth that will outweigh lesser considerations.  The world must now work backwards to clean up the mess that was created over the years of neglect to our environment and apart from enfranchisement the critical voice for citizens now is to seek redress through the courts.  Had the world adopted these values as a first principle prior to its industrialization period, we may not have ended up in this critical spot the earth faces today.  In this way, if an underlining principle was adopted that underpins societies norms, a positive obligation under section 7 of the Charter would be realized as it relates to the climate change crisis that neither the courts nor the legislatures could ignore.  Canadian citizens would no longer need to seek out persuasive legal argument in attempts to transform the governments current trajectory on climate change.  Globally this principled approach would guide lawmakers and policymakers, uniting all governments in a successful collaborative effort to combat climate change.  

Bibliography:

McLachin, Beverly PC Equality: The Most Difficult Right 2001  https://doi.org/10.60082/2563-8505.1001

Chalifour, Nathalie J Environmental Justice and the Charter: Do Environmental Injustices Infringe Sections 7 and 15 of the Charter? 2015 University of Ottawa https://www.canlii.org/en/commentary/doc/2015CanLIIDocs5325#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA

Vallani, Madiha Sections 7 and 15 of the Canadian Charter of Rights and Freedoms in the Context of the Clean Water Crisis on Reserves: Opportunities and Challenges for First Nations Women 2018 https://uwo.scholaris.ca/server/api/core/bitstreams/009f1213-8b3f-46ea-a51c-ce98088081c4/content

Boyd, P David R The Right to a Healthy Environment Revitalizing Canada’s Constitution Vancouver: UBC Press, 2012

Vanessa Macdonald The Protective Function and Section 7 of the Canadian Charter of Rights and Freedoms https://www.constitutionalstudies.ca/wpcontent/uploads/2019/08/03_MacDonnell_final.pdf

Julie Kapyrka and Mark Dockstator Indigenous Knowledges and Western Knowledges in Environmental Education: Acknowledging the Tensions for the Benefits of a ‘Two-Worlds Approach,’ Trent University Canada 2012

Cases:

Andrews v law society of B.C SCC 1989

Boso v Italy 2002 EU Hauge

Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania 2014

Gosselin v Quebec 2002 SCC

Haig v Canada (Chief Electoral Officer), [1993] 2 SCR

Kroon v Netherlands Strasbourg October 27, 1994

Lavigne v Ontario Public Service Employees Union ONCA 1986

Mathur v Ontario 2024 ONSC

Uganda v Netherlands 2018 EU Hague

Legislation/Further References:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982

Courts of Civil Procedures Act Ontario  https://www.ontario.ca/laws/regulation/900194#BK181

Convention of Human rights ECHR https://www.echr.coe.int/documents/d/echr/convention_ENG

Education for a Sustainable Future: A Resource for Curriculum Developers, Teachers, and Administrators (Manitoba Education and Training, 2000 https://www.edu.gov.mb.ca/k12/cur/socstud/frame_found_sr2/tns/tn-41.pdf)

Guide to article 2 ECHR https://ks.echr.coe.int/documents/d/echr-ks/guide_art_2_eng

IPCC(intergovernmental panel on climate change) Synthesis report 2023 summary for policy makers https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_LongerReport.pdf 

The Earth Charter https://earthcharter.org/wp-content/uploads/2020/06/Booklet-Earth-Charter-52-FINAL.pdf

Website for Urgenda Foundation https://www.urgenda.nl/en/home-en/

[1] Julie Kapyrka and Mark Dockstator Indigenous Knowledges and Western Knowledges in Environmental Education: Acknowledging the Tensions for the Benefits of a ‘Two-Worlds “Approach, Trent University Canada 2012 p 98

[2] Education for a Sustainable Future: A Resource for Curriculum Developers, Teachers, and Administrators (Manitoba Education and Training, 2000) P 2 https://www.edu.gov.mb.ca/k12/cur/socstud/frame_found_sr2/tns/tn-41.pdf)

[3] Julie Kapyrka and Mark Dockstator Indigenous Knowledges and Western Knowledges in Environmental Education: Acknowledging the Tensions for the Benefits of a ‘Two-Worlds “Approach, Trent University Canada 2012 p 98

[4] The Earth Charter https://earthcharter.org/wp-content/uploads/2020/06/Booklet-Earth-Charter-52-FINAL.pdf

[5] Ibid

[6] Urgenda Foundation v The Netherlands 2018 (Hague appeal) para 3.5 https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2018/20181009_2015-HAZA-C0900456689_decision-4.pdf

[7] There are different forms of green house gases, but the major concern is the emission of CO2.  For the threat of climate change see IPCC(intergovernmental panel on climate change) Synthesis report 2023 summary for policy makers https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_LongerReport.pdf

[8] Ibid P 3

[9] Ibid P 6

[10] Ibid P 8

[11] Ibid, P 7

[12] There are many examples since the Urgenda case where favorable judgements were gained by citizens in favor of support for different climate change reforms and governments have failed to comply with the court orders. See KlimaSeniorinnen v Switzerland ECtHR, 2020

[13] See, Website for Urgenda Foundation https://www.urgenda.nl/en/home-en/

[14] Ibid

[15] Ibid

[16] Urgenda Foundation v The Netherlands  2018 (appeal) https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2018/20181009_2015-HAZA-C0900456689_decision-4.pdf P 9

[17] Convention on Huiman rights ECHR copy from original https://www.echr.coe.int/documents/d/echr/convention_ENG

[18] Urgenda foundation v The Netherlands 2018 https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2018/20181009_2015-HAZA-C0900456689_decision-4.pdf P 13

[19] Convention of Human rights ECHR copy from original https://www.echr.coe.int/documents/d/echr/convention_ENG) P 10

[20] Urgenda Foundation v The Netherlands (appeal) 2018 https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2018/20181009_2015-HAZA-C0900456689_decision-4.pdf P 9

[21] Ibid., P 12

[22] Boso v Italy 2002 EU Hauge App. No. 50490/99, Eur. Ct. H.R. 846 (2002)

[23] Guide to article 2 ECHR document https://ks.echr.coe.int/documents/d/echr-ks/guide_art_2_eng P 6

[24] In the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania 2014 para 130

[25] Uganda case 2018

[26] Uganda case 2018 appeal P 13

[27] Mathur v Ontario 2024 case https://climatecasechart.com/non-us-case/mathur-et-al-v-her-majesty-the-queen-in-right-of-ontario/). 

[28] Ibid para 2

[29] Ibid para 3

[30] Courts of Civil Procedures Act Ontario  https://www.ontario.ca/laws/regulation/900194#BK181

[31] Currently the Court does not recognize any positive obligations under the Charter of Rights and Freedoms unlike the ECHR

[32] This rational is susceptible to debate but is out of the scope for the purposes of this paper’s length requirements.

[33] Gosselin v Quebec 2002 SCC para 75

[34] Ibid para 209

[35] In Canada, courts hinted at the possibility of a positive obligation being recognized under section 7 of the Charter.  Two cases are often cited: in Gosselin v Quebec on social assistance and in Andrews v Law society regarding fair treatment for lawyer licencing considering whether governments could reasonably interfere with constitutional rights under the Charter. 

[36] Gosselin v Quebec 2002 SCC para 82

[37] Ibid para 357. Very intriguing is that the Justice notes s 7 if interpreted Textually, purposively or contextually supports the interpretation of a positive obligation on government.

[38] Justice LeBel joined the dissenting opinion finding it to be an unjustified infringement on section15 of the Charter. Justice Bastarache dissented on the view acknowledging a positive right under section 45 of the Charter.

[39] Vanessa Macdonald The Protective Function and Section 7 of the Canadian Charter of Rights and Freedoms https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/03_MacDonnell_final.pdf

 p 7

[40] In line with Justice L’Heureux-Dube’s analysis

[41] Problematically the court has yet to recognize a positive obligation under s.7 of the Charter.

[42] P David R Boyd, The Right to a Healthy Environment Revitalizing Canada’s Constitution (Vancouver: UBC Press, 2012 P 3

[43] Justice L’Heureux-Dube calls this the Nexus under section 7 in Gosselin v Quebec 2002

[44] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 15(1) [Charter]

[45] Haig v Canada (Chief Electoral Officer), [1993] 2 SCR 995, 105 DLR (4th) 577 [Haig].

[46] Justice Iacobucci engaged the argument that the government has a positive obligation to ensure that discrimination does not perpetuate.

[47] Vallani, Madiha Sections 7 and 15 of the Canadian Charter of Rights and Freedoms in the Context of the Clean Water Crisis on Reserves: Opportunities and Challenges for First Nations Women 2018 P 19

https://uwo.scholaris.ca/server/api/core/bitstreams/009f1213-8b3f-46ea-a51c-ce98088081c4/content

[48] Andrews v law society of B.C SCC 1989

[49] Ibid P 19

[50] Ibid, P 19

[51] Ibid p 19

[52] Andrews v law society of B.C SCC 1989

[53] Nathalie J Chalifour, Environmental Justice and the Charter: Do Environmental Injustices Infringe Sections 7 and 15 of the Charter?, 2015  University of Ottawa: supra note 18 at 188 https://www.canlii.org/en/commentary/doc/2015CanLIIDocs5325#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA

[54] In the reading of the applicants Meritus factum June 6, 2020, they were seeking a ruling on a positive obligation existing under section 7 in support of their application. There request for appeal to the Supreme Court of Canada was denied and it is in turn to be heard at the Superior Court.

[55] Lavigne v Ontario Public Service Employees Union ONCA 1986, Later went to the SCC 1991

[56] Ibid., p 479

[57] Vanessa Macdonald, The Protective Function and Section 7 of the Canadian Charter of Rights and Freedoms https://www.constitutionalstudies.ca/wp-content/uploads/2019/08/03_MacDonnell_final.pdf

p 10

[58]Beverley McLachlin P.C, Equality: The Most Difficult Right. 2001 P 20  https://doi.org/10.60082/2563-8505.1001

[59] This was expressed by the court in the Hauge involving s. 8 in Kroon v Netherlands Strasbourg October 27, 1994

[60] Beverley McLachlin P.C, Equality: The Most Difficult Right. 2001 P 20  https://doi.org/10.60082/2563-8505.1001