Could Canada be sued for a lack of climate action?

A landmark advisory opinion from the International Court of Justice that clears the way for countries to sue each other over climate change could have ramifications for developed nations like Canada.

The Court, comprised of 15 judges from around the world, was officially asked by the United Nations to rule on countries’ legal obligations under international law. Its 140-page unanimous ruling, released on July 23, said that states have an obligation to protect the environment and climate system from the harm done by greenhouse gas emissions and to act with due diligence and cooperation to fulfill it. That includes meeting commitments made under the Paris Agreement to limit global warming to 1.5C above pre-industrial levels.  

In what could mark a new era of climate reparations, the Court also said that failing to do so could result in states having to pay compensation and make other forms of restitution to countries most impacted by climate change. That’s significant for countries with intensive fossil fuel industries like Canada.

It has been hailed as a “historic legal victory” for small island states, where the request for the advisory opinion originated. A group of law students at the University of South Pacific in Vanuatu, who all hail from Pacific island countries, which are among the most vulnerable in the world to the climate crisis, got the ball rolling.

"The ICJ has recognized what we have lived through - our suffering, our resilience and our right to our future," student Flora Vano of Vanuatu told the BBC.

"This is a victory not just for us but for every frontline community fighting to be heard."

Non-binding but influential

While the opinion from the world’s highest court is not binding, legal experts expect it will still have an impact globally, particularly because it clarifies the law at the international level. 

“Judges and lawyers around the world see these kinds of advisory opinions as providing authoritative interpretations of international law,” says Fraser Thomson, a lawyer with Ecojustice. 

“We've seen courts at every level in Canada referring to these advisory opinions in their cases, so courts weighing climate cases will likely pay close attention to (this) decision.”

The impact on courts in this country will be tested in a few months when the Mathur litigation returns to trial. The groundbreaking youth-led constitutional challenge to the Ontario government's climate targets is back in court in December. 

Last fall, the Ontario Court of Appeal ruled in favour of the youth, finding that Ontario’s climate action is subject to the Charter of Rights and Freedoms. 

In May, the Supreme Court of Canada refused to hear an appeal of that decision, which unanimously found that this is not a positive rights case, as the application does not seek to impose any new positive climate obligations on the province. Because Ontario voluntarily assumed a positive statutory obligation to combat climate change when it enacted the Cap and Trade Cancellation Act, it had to ensure its plan and targets were Charter-compliant. 

The matter will now return to the Superior Court to be resolved.

Thomson, one of the lawyers leading the litigation, says Ontario’s decision to weaken its climate targets is “very much the kind of conduct the ICJ was calling out.”

The opinion, rooted in the Intergovernmental Panel on Climate Change science, is not a one-off. Rather, it reinforces a growing consensus from judges around the world that the climate crisis is a human rights crisis, and that a healthy environment and safe climate are a precondition to all human rights. 

“The world’s highest court, at the request of the United Nations General Assembly, has made it clear that governments have a responsibility to protect human rights in the face of growing climate threats,” he says.

“We believe this will give hope to (cases like ours). Our youth clients are asking the court to implement this growing trend of decisions that have recognized the impact of climate change.”

Climate impact on ocean acknowledged

Sara Seck, the Yogis and Keddy Chair in Human Rights Law and director of Dalhousie University’s Marine & Environmental Law Institute, agrees that the court was clear that the right to a healthy environment is part of international human rights law.

“I think that is going to be quite significant in terms of the ability of plaintiffs in Canadian courts to make arguments about Canada's climate and other responsibilities,” she says. 

“There is this clarification that even if we just have the right to life in the Charter, you need to read (that) in light of the right to a clean, healthy and sustainable environment.”

Canada recognized the right to a healthy environment in federal law for the first time in June 2023 with the passing of Bill S-5, which amended the Canadian Environmental Protection Act. A coalition of justice, health and environmental groups recently called on Environment Minister Julie Dabrusin to fully implement the amendments to protect the right to a healthy environment based on the implementation framework the federal government released in late July.

Seck was also glad to see the ICJ discuss the implications of climate change on the marine environment and make clear that states have obligations to the ocean when engaging in activities on their territory.

“Climate change is causing significant harm to the ocean,” she says. 

“We are an ocean-surrounded and dependent country, yet we’ve utterly failed to bridge the conversation between emissions from fossil fuel development, production and consumption, and implications for the ocean.”

The ocean covers 70 per cent of the Earth’s surface, generates 50 per cent of the oxygen we need, absorbs 30 per cent of carbon dioxide emissions and captures 90 per cent of the excess heat generated by these emissions. It is the planet’s lungs, but also the world’s biggest carbon sink, acting as a critical buffer against the impacts of climate change.

The ICJ’s opinion comes just over a year after the International Tribunal on the Law of the Sea issued an advisory opinion on states’ obligations under international law to protect the marine environment from climate change impacts, particularly those stemming from greenhouse gas emissions. It found GHGs fall under the definition of “pollution of the marine environment” in Article 1 of the United Nations Convention on the Law of the Sea, and said states must take "all necessary measures" to prevent, reduce, and control marine pollution from them.

The ICJ ruled that governments are responsible for the climate impact of companies operating in their countries. Further, it found that subsidizing the fossil fuel industry or approving new oil and gas licenses could breach a country’s obligations under international law.

In June, the federal government passed controversial legislation that gives cabinet the power to fast-track projects it deems to be in the national interest. These could include railways, mining projects, and pipelines to carry what Prime Minister Mark Carney calls "decarbonized" oil to new markets.

Seck says moving ahead on this trajectory is “highly problematic” as it’s “very inconsistent” with the ICJ’s opinion. That’s partly because the Court was clear that states need to count the greenhouse gas emissions that arise from the consumption of fossil fuels downstream, not just those that come from the extraction process.

“That has not been the practice here,” she says, noting that while carbon-neutral fossil fuel development sounds good in theory, the emissions that arise from burning them must also be accounted for.

Putting blame where it belongs

Thomson says the ICJ has put the blame for the existential climate threat where it belongs: on governments and the fossil fuel companies that have been enabled by governments while knowingly fuelling the crisis.

“We know the track records of governments and it’s very much to facilitate and hand out billions of dollars (in subsidies) every year to an industry that is already extremely profitable and causing harm to our planet,” he says, noting that’s occurred while Canada has consistently failed to meet every climate target it has set. 

“The ICJ is now directly calling them out.”

National reached out to Environment and Climate Change Canada for comment on the Court’s opinion, specifically whether this creates pressure to increase Canada’s emission reduction targets, curb fossil fuel production, or change federal subsidies to fossil fuel companies to meet obligations under international law. The request was redirected to Global Affairs Canada.

“We value the important role of the International Court of Justice in resolving legal disputes between countries and providing legal guidance on global issues—like climate change—when asked by international bodies such as the UN General Assembly,” Thida Ith, spokesperson for Global Affairs Canada, said in a statement.

“Canada took part in the proceedings that led to this opinion. The Court’s findings are detailed and complex, and we are now carefully reviewing them.”

Seck hopes the opinion will create enough concern to spur Canada to “try to get its act together.”

“There's going to be no way to duck this, because it's either going to come through international courts or it's going to come through (domestic) climate litigation,” she says. 

In addition to a country’s need to regulate industry on its territory and within its jurisdiction, she notes there are interesting questions within the Court’s opinion that relate to the extent Canada is supporting fossil fuel development in other countries, and whether that's going to be something that should equally be of concern. 

“It's going to be very interesting to see if there is a reaction at the federal level,” Seck says. 

“I anticipate it would be a slow and not necessarily public reaction.”