Organization: Government of Canada

Prime Minister Mark Carney’s push for new fossil fuel infrastructure and rollback of climate policies could expose Ottawa to legal battles on several fronts, legal experts warn.

Carney has not given a direct answer on whether he would scrap the oil and gas cap or lift the West Coast tanker ban — when asked about this last week, he told reporters “it depends.”

“What this government is interested in is results, not objectives,” he said. Carney has not ruled out talk of a new oil pipeline from Alberta to BC’s coast and recently floated a Keystone XL pipeline revival in talks with US President Donald Trump.

One policy at a time, Carney is kicking the legs out from under the federal climate plan to reduce greenhouse gas emissions and this could potentially land the government in some legal battles, Charlie Hatt, Ecojustice’s program director of climate, said in a phone interview with Canada’s National Observer.

The federal government is currently on track to miss its climate targets largely thanks to increasing greenhouse gas emissions in the oil and gas sector and removal of key climate policies, such as the consumer carbon price, according to the Canadian Climate Institute’s early emissions estimates.

This is a critical moment for the Carney government to either work to “regain some credibility and accountability” or go back to just pretending to care about climate change, Kathryn Harrison, a political science professor at UBC, told Canada’s National Observer in a phone interview.

Federal and provincial governments and corporations could still take action and get back on track to meet the 2030 target of a 40 to 45 per cent reduction from 2005 levels, but not if the federal government keeps “hollowing out” its emission reduction plan, Hatt said.

As it stands, Canada could face “three main buckets of liability” in the form of domestic planning and reporting requirements, international claims and possible constitutional challenges, Hatt said.

Domestic reporting requirements

The Canadian Net Zero Emissions Accountability Act requires the federal government to make climate plans and report on progress, and is one possible avenue of accountability, Hatt said. While it is not an offence to miss the targets, the act is very prescriptive on planning and reporting requirements, and if ministers make unreasonable or unjustifiable decisions relating to the act, “those could be litigated in court under a judicial review case,” Hatt said.

The act requires Environment and Climate Change Minister Julie Dabrusin to produce a progress report before the end of the year. Carney has teased the eventual release of a “climate competitiveness strategy” that would offer insight on the government’s position.

Hatt said Ecojustice will be “looking very carefully” at that progress report and the climate strategy, “and determining whether and how litigation should be brought,” Hatt said.

Dabrusin has been avoiding questions about Canada’s 2030 climate targets. Before a cabinet meeting on Oct. 9 she told reporters the 2030 target is “really ambitious,” and the federal government will keep working to get Canada to net-zero by 2050.

In an emailed statement to Canada’s National Observer, Dabrusin’s press secretary, Keean Nembhard, said Canada’s approach to climate change mitigation “relies on a coordinated mix of measures.” In particular, he said climate progress since 2005 has relied on energy efficiency improvements, decarbonization of the electricity grid and “structural shifts in the economy.”

“Taking into account the evolving global and economic context, the federal government will provide an update on its emissions reductions plan as we work towards our 2030 and 2035 targets,” Nembhard wrote, reiterating the government’s commitment to reaching net-zero emissions by 2050.

Harrison suspects the federal government may rely on purchasing international carbon credits to meet its climate targets. Nembhard did not say to what extent the government will turn to credits.

International

Canada was responsible for 1.4 per cent of global emissions in 2023 and ranked 11th compared to other countries, but is one of the highest emitters per capita. The targets Canada set are not aligned with what climate scientists say is necessary to limit warming to 1.5 C, Hatt said, and that fact — combined with the likely failure to meet the 40 per cent reduction — could be a basis for lawsuits at the international level.

“Canada could be the subject of a case brought by another country arguing any number of things, including that our [Paris Agreement] targets … are insufficient on their face, or that we are not taking sufficient action to achieve the targets,” Hatt explained.

Barnali Choudhury, a law professor at York University’s Osgoode Hall, said in an email to Canada’s National Observer that she agrees the international courts could provide a dose of accountability.

Another potential liability is Canada’s current support for activities that are making things worse: “Namely, authorizing new and expanded fossil fuel production and export,” Hatt said.

This summer, the International Court of Justice issued a landmark opinion affirming that countries have a legal duty to prevent climate harm and protect people from the impacts of climate change, opening up the possibility that vulnerable countries could sue major polluters for failing to do their part. The advisory opinion is non-binding, but is an authoritative statement on international laws and carries significant weight in interpreting them, according to the Center for International Environmental Law.

The opinion could be used by countries, such as Pacific Island nation Vanuatu, that are disproportionately impacted by climate change to seek damages from the developed, high-emitting countries largely responsible for climate change.

However, Trump’s decision to pull the US out of the Paris Agreement and policies of deregulation are “presenting huge challenges for international efforts,” Harrison said. For this reason, she thinks the risk of nation states taking legal action against Canada is likely low.

“The ones who are still committed to moving forward are trying to figure out, how do we keep doing that with the wrecking ball south of the border?” she said.

Likewise, lawyer Lisa DeMarco thinks pursuing Canada in international court for climate liabilities would be difficult particularly because, in comparison to its main trade partner, “who has done the square root of nothing,” Canada has taken such measures as working toward phasing out coal-fired electricity — although Saskatchewan is poised to continue for years after the federal deadline, and creating anti-greenwashing legislation.

Instead, DeMarco thinks “the interesting avenues are really in relation to vulnerable individuals, and in particular, Indigenous Peoples in Canada.”

This raises the third possible bucket of legal liability.

Constitutional challenges

“With the Ontario Bill-5 and the federal Bill C-5 and the major projects announced, I think there are concerns if there is not sufficient climate protection, that there could be Indigenous action around inadequate duty to consult and mitigate adverse effects of climate change resulting from those projects,” DeMarco told Canada’s National Observer in a phone interview.

When the Supreme Court of Canada upheld the federal government’s right to impose a federal carbon pricing standard on provinces, it also acknowledged that climate change disproportionately impacts Indigenous Peoples and their constitutionally protected rights.

There is already an example of vulnerable individuals — youth — fighting the Ontario government for weakening its climate targets, Hatt and Choudhury said, citing a constitutional challenge that is bouncing around the courts in Ontario.

Every level of government has a responsibility to ensure laws are consistent with Canadians’ Charter rights, he said. “If they are committing us to levels of pollution that are falling severely short of the scientific consensus of what needs to be done to avoid dangerous climate change, then those laws might be struck down by courts.”

This is the basis of an ongoing case in Ontario, in which seven youth allege the province violated their Charter rights to life, security of person and equality by weakening the province’s 2030 emission reduction targets, which will expose people to higher levels of emissions that are harmful to human health and exacerbate climate change and the extreme weather that accompanies it.

That case, bolstered by the ICJ ruling, could set a precedent that weakening and repealing the laws and policies underpinning domestic climate targets is just as likely to violate Charter rights as lowering the target itself, Hatt said.

All eyes will be on Carney’s forthcoming climate competitiveness strategy to see if the government attempts to get its climate goals back on track. Harrison said she will be watching for changes to the industrial carbon pricing system, which is “the single most important policy” responsible for a large portion of Canada’s emission reductions.

“It’s kind of on the edge of rapidly becoming ineffective,” Harrison said, pointing to provincial defections like Alberta’s proposed changes to its provincial industrial carbon pricing system.

Jurisdictional questions

“An interesting question that environmentalists and others might want to pose is, what is Canada’s liability relating to inaction or the lack of action for particular sub-national jurisdictions,” DeMarco said.

The Supreme Court of Canada ruled the federal government has jurisdiction to set minimum national standards for pricing greenhouse gas emissions, so “how much does it constitutionally have the right to do, and how much can it therefore have liability imposed upon it for jurisdictions that choose not to take action?” DeMarco said.

“This is a very important and burgeoning question with changes in Alberta and threatened changes in Quebec.”

Alberta froze its industrial carbon price in May, putting it at odds with the federal standard and Premier Danielle Smith’s recently proposed changes to the province’s industrial carbon pricing and credit trading program were widely criticized by environmental groups and policy think tanks for undermining the carbon market.

It’s clear the “political game” benefits from having these divergences between the provinces and the federal government, “but neither the environment, nor the energy system, nor Canadians, do,” she said.

“I feel pretty strongly … that we should be going after entities, jurisdictions, corporations that are doing nothing, as opposed to frustrating the legislative attempts of governments and attempts of corporations to actually invest in climate finance and make mitigation and adaptation changes at a cost to their bottom line,” DeMarco said.

— With files from John Woodside

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