January 2008 - Nr. 1
ENVIRO LAW:
Are there legal consequences if Canada breaches Kyoto?
The science of climate change is now clear;
what will the legal consequences be?
With
the release of their fourth report, the Nobel-Prize-winning
Intergovernmental Panel on Climate Change (IPCC) has confirmed it: the
climate is changing faster than anyone thought possible, and it's because of
humans. Our emissions are continuing to grow, and will have even bigger
climate change effects in the 21st century. The environmental, economic and
social consequences will be enormous, unprecedented, almost unimaginable.
The longer we wait to take action, the worse those consequences will be. The
poorest will suffer most.
Canada has been justly vilified by countries around the world at December's
meeting in Bali. We made an important contract with most other countries,
and we're breaking it. When we ratified the Kyoto Protocol in 2002, we
accepted a legal obligation to reduce our greenhouse gas emissions to 6%
below 1990 levels by 2012. That 6% reduction wouldn't have been nearly
enough to prevent massive harm to many, but it would have been a good start
by one of the world's wealthiest countries.
Instead, we've done nothing serious to comply with our contract, and we've
now told the world we have no intention of complying. Will it matter? Will
there be any legal consequences?
Probably, but not right away.
The question is: has the Canadian government broken Canadian law by
repudiating its Kyoto obligations? Earlier this year, the three opposition
parties united to pass Pablo Rodriguez's Kyoto Protocol Implementation Act
through the federal Parliament. It received Royal Assent on June 22, 2007,
and is now part of the law of this country. The Act requires Canada to take
effective and timely action to meet its Kyoto obligations.
As a first step, the Act required the federal Government to prepare a
climate change plan within 60 days (i.e. by August 22) on how to meet the
Kyoto Protocol targets. The Government simply ignored the Act, relying on
its previous plan which set much weaker targets.
Can the Government simply ignore the law with impunity? That is not supposed
to be the way our legal system works. To enforce the Act, Friends of the
Earth Canada have sued, seeking a court order requiring the federal
Government to comply with the Act. According to Friends of the Earth:
"Just as parents have clear obligations under the law to protect their children, the Government of Canada has clear obligations under this federal law to protect families from a grave danger," says Friends of the Earth Canada Chief Executive Officer Beatrice Olivastri. "Canadians will not tolerate a deadbeat dad approach to climate change."
The Act's next requirement was for the Government
to prepare a statement, setting out the greenhouse gas emission reductions
that it expected to produce each year from its regulations. This statement
was due 120 days after the Act came into force, i.e. by October. The
Government didn't do that either, which has led to a second lawsuit by
Friends of the Earth. Both cases are now wending their way slowly through
the Federal Court. Details are available at
http://www.ecojustice.ca/.
The Friends of the Earth lawsuits can't hurt Canada; at most, they will lead
to court orders that Canada should comply with our own laws. Much more
worrisome are the potential international consequences of being scofflaws in
the world community. The Kyoto Protocol itself says that non-compliant
countries will have to make much bigger reductions in subsequent years, to
make up for their failures 2008 to 2012. The government does not seem to be
much worried about this.
The bigger danger is that Canada may pay heavily in other areas of
international law, for its loss of credibility and respect. In most areas of
the law, scofflaws get harsher treatment than the law-abiding, and
international law is no exception. For example, Canada is heavily dependent
on international trade; how will our trade partners use our Kyoto defiance
against us in trade disputes? And what about sovereignty over the Arctic and
the Northwest Passage? We want other countries to respect our international
law claims, which are not especially strong. But we have been able to rest
on our moral laurels, and on the general respect Canada has had
internationally, to bolster our claims. With those moral laurels and that
respect eroded, other countries will have less reason to give us the benefit
of any doubt. (See
www.envirolaw.ca
for more details).
Dianne Saxe, one of Canada's leading environmental lawyers, is a
Certified Specialist in Environmental Law and member of the Ontario Bar
Association Environmental Section Executive. She also holds one of Canada's
only Doctorates of Jurisprudence (PhD) in environmental law.
