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Canadian courts could face climate-change cases in wake of Dutch ruling

Roger Cox says Canada has a long way to go to address the impact of climate change.

Ben Nelms/Bloomberg

Canada could one day face a lawsuit such as the one that saw a court in The Hague order the Netherlands government to slash greenhouse gases, the lawyer who spearheaded the groundbreaking legal action says.

Roger Cox, partner with Dutch law firm Paulussen Advocaten in Maastricht, Netherlands, is in Toronto on Tuesday for a speaking engagement and plans to meet with Canadian lawyers exploring whether court action here could be modelled on his surprise win in June.

Mr. Cox said in an interview that the Canadian government is a good target for this new kind of climate-change litigation, given Canada's reputation in recent years as an environmental bad apple for its oil sands and its withdrawal from the Kyoto Protocol: "I think it's a very beautiful country, but on the climate-change issue, there is a lot to be done."

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His historic case, launched on behalf of an environmental group called the Urgenda Foundation, argued that the Dutch government had a legal obligation to protect its citizens by doing its part to keep global temperatures from rising more than two degrees Celsius, a consensus target scientists say would see the world avoid the catastrophic potential of more dramatic climate change.

Mr. Cox's victory has already inspired copycats in other countries, including Belgium. Some Canadian legal experts say the idea that a Canadian court could make a similar ruling is not as far-fetched as it might sound. But it would still be an uphill battle.

However, legal observers say private companies, too, should brace themselves for more climate-change-related litigation of all kinds in the wake of the Dutch ruling.

In that decision, the court ordered the Netherlands to reduce the county's greenhouse gas emissions by 25 per cent from 1990 levels by the year 2020, citing the government's international obligations and its "duty of care" to protect its citizens from the harm that would come with failing to stop climate change. The Dutch government is appealing.

Mr. Cox, making his first appearance in North America since the Dutch court victory, will be speaking on Tuesday at Osgoode Hall in Toronto at an event (to be webcast at www.cigionline.org/live) organized by the Centre for International Governance Innovation. Also discussing the issue will be Stephen Goudge, a former Ontario Court of Appeal justice; Lorne Sossin, the dean of the Osgoode Hall Law School; and Lewis Klar, former dean of the University of Alberta's law school.

In an interview, Prof. Sossin said any climate-change case launched against the Canadian government would be an uphill battle, but there are are many legal grounds on which it could be based, such as various acts of legislation or the Charter of Rights and Freedoms.

He said any case would avoid the pitfalls of previous similar cases, such as a court challenge asserting that housing was a Charter right that failed last year and a lawsuit that tried to force Ottawa to follow its 2007 Kyoto Protocol legislation.

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But a climate-change case that stayed away from purely playing politics and went after something specific, such as emissions targets, could possibly get off the ground, Prof. Sossin said.

And climate-change litigation, against not just governments but companies as well, could be the next tobacco litigation, he predicts, noting that those cases were also once seen as long shots a generation ago.

"I think we are going to look back on climate change in exactly that way," he said.

Environmental lawyers say they believe that a case could be launched in Canada based on the Dutch example. Allan Early, a B.C. lawyer who has acted for aboriginal people seeking redress for abuse at residential schools, said he and others were in the very early days of exploring the idea: "I am pretty convinced that such a case will be launched. I think it's inevitable and I think it's necessary."

Keith Stewart, head of Greenpeace Canada's energy campaign, said his group is starting legal research into possible lawsuits or shareholder class actions against oil and coal companies: "We're mostly looking at the model of the tobacco companies, where not only the product they were selling is causing harm but they were aware of this and they tried to hide that fact."

A variety of climate-change-related lawsuits have been filed in the United States, including a recent case launched against Washington on behalf of a group of children.

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Mr. Cox said his idea to launch a legal climate-change case came after the failure of the 2009 Copenhagen climate-change talks to come up with a strong binding global deal. (Canada was blamed by some for blocking progress at the talks.) He wrote a book, Revolution Justified, to lay out his case.

Coming to Canada in the midst of an election campaign focused on an ailing economy sapped by low oil prices, Mr. Cox argued that no government can get away with saying that cutting carbon emissions harms the economy in court: "There is always a lot said in the media about how it will hurt your economy. But in court you have to have proof for what you[r'e] saying. … There's no proof whatsoever that this would be the case – the opposite maybe, if you look at countries like Denmark and Sweden and Germany, for instance."

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About the Author
Toronto City Hall Reporter

Jeff Gray is The Globe and Mail’s Toronto City Hall reporter. He has worked at The Globe since 1998. He spent six years as the law reporter in The Globe’s Report on Business, covering Bay Street law firms and writing about fraud, insider trading and corporate tax avoidance. More

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