Friends of the Earth v. The Governor in Council and Others

Cette page en français: Les Ami(e)s de la Terre c. Canada (Gouverneur en Conseil)

In 2008, an environmental NGO sought relief against the federal government for breaching its duties under the Protocol Implementation Act. In Federal Court, Justice Barnes dismissed the suit for lack of justiciability, similar to the ruling in La Rose v. Her Majesty the Queen. The case was subsequently appealed to the Federal Court of Appeals where the appeal was dismissed in support of Barnes' ruling without further reason. The Supreme Court of Canada refused to hear a subsequent appeal in 2010.

Background
The Kyoto Protocol Implementation Act (KPIA) was signed in 2007 as a private member's bill. As such, it did not have the support of the federal government which had stated that Canada would not comply with Kyoto Protocol targets. The statute was put in place to ensure Canada met its obligations signed under the Kyoto Protocol. The KPIA did not authorize the use of public funds to meet its objectives. Relevant to this case is section 5 of the KPIA. Here the act requires the Minister of Environment to prepare an annual Climate Change Plan which would describe the measures taken by the federal government to meet the Kyoto Protocol obligations. Friends of the Earth argued in 2008 that the Minister's Climate Change Plan was insufficient and neglected Canada's duties under the KPIA.

KPIA was repealed in 2012 when the Canadian government moved away from the Kyoto Protocol.

Relevant Law and Principles

 * Justiciability
 * Kyoto Protocol

Ruling
J. Barnes' assessment revolved around whether:
 * 1) the applicant had standing to bring these applications; and
 * 2) section 5 of the KPIA imposed a justiciable duty upon the Minister to prepare and table a Climate Change Plan that is Kyoto compliant.

Ruling against Friends of the Earth, Barnes found that there was no justiciable issue at hand. "While the failure of the Minister to prepare a Climate Change Plan may well be justiciable, as evidenced by the mandatory term “shall” in section 5 of the KPIA, an evaluation of its content is not." Whether or not the Minister was preparing Climate Change Plans per the KPIA was not at issue. However, Barnes' argued it is not the Court's role in Canada's judicial system to critique federal policy.

Furthermore, the KPIA itself allows for failures to implement the measures for ensuring Kyoto compliance within any given year. Thus, Barnes wrote that "it is implicit that strict compliance with the Kyoto emission obligations in the context of any particular Climate Change Plan is not required by section 5." Even if the issue was justiciable, the Act itself allows room for error. It is also important to note that Canada's federal government at the time was not in agreement with the KPIA. Barnes' noted that it would be particularly inappropriate for the Court to order an executive office to be compliant in a plan that the government itself has "transparently declined to do so for reasons of public policy."

The Federal Court of Appeal agreed in reason and substance with all arguments made in Barnes' decision. In dismissing the appeal further reasons aside from the initial decision were not given.

Takeaways
Friends of the Earth v. The Governor in Council and Others parallels other similar suits in Canadian jurisprudence. Other climate litigation cases have seen NGOs or other environmental groups bring suit for failing to sufficiently protect the environment. Failure is typically argued to be either in direct violation of a signed treaty (as is the case here), or in violation of the Charter's section 7 rights to life and liberty. In both cases, the Court has demonstrated its tendency to rule in favor of the government; while it may be in the best interest of the environment for the Court to enforce further action on the government, this is not the role of the judicial branch.

Links

 * Sabin Center Database
 * Grantham Research Institute