Lho’imggin et al. v. Her Majesty the Queen

Date of Application:	Mon, 10 Feb 2020
Date of Decision:	Mon, 16 Nov 2020
Decision Making Body:	Federal Court of Appeal, Canada
Law Applied:	Canadian Charter of Rights and Freedoms Canadian Charter of Rights and Freedoms Canadian Charter of Rights and Freedoms Constitution of Canada
Keywords:	Inadequate action

Lho’imggin et al. v. Her Majesty the Queen

At Issue: Indigenous groups alleged Canada's climate policy, approval of GHG-emitting projects violate human and constitutional rights.

Summary: Two houses of the Wet’suwet’en indigenous group filed a legal challenge on February 10, 2020 alleging that the Canadian government's approach to climate change has violated their constitutional and human rights.

According to the complaint, plaintiffs Misdi Yikh and Sa Yikh are each a House group under Wet’suwet’en indigenous law, and comprise the Fireweed Clan. The plaintiff Lho’imggin is the dinize’, or Head Chief, of Misdzi Yikh and the plaintiff Smogilhgim is the dini ze’ of Sa Yikh; each speaks for his House.

The plaintiff complaint allege that Canada failed to meet its international commitments to reduce greenhouse gases, including those made at the 1988 International Conference on the Changing Atmosphere and under the 1992 United Nations Framework Convention on Climate Change, the 1998 Kyoto Protocol, the 2009 Copenhagen Accord, the 2010 Cancun Agreement and the 2015 Paris Agreement. Plaintiffs further claim that Canada's Nationally Determined Contribution under the Paris Agreement -- to reduce annual greenhouse gas emissions by 30% below 2005 levels by 2030 -- is insufficient to meet its commitments to hold global warming below 2 degrees Celsius and pursue efforts to keep warming to 1.5 degrees. Moreover, according to plaintiffs, Canada appears unlikely to meet its Nationally Determined Contribution. Finally, plaintiffs argue that Canada has failed to use discretionary decision-making power under its environmental assessment legislation to withhold approval of greenhouse gas emitting projects -- in particular liquefied natural gas exports facilities -- to help bring Canada's trajectory in line with the Paris Agreement targets.

Plaintiffs contend that they have experienced significant warming effects on their territories and expect to experience negative health impacts due to climate change. They further assert that Canada's historical treatment of indigenous leaders and ongoing racial discrimination exacerbate the psychological and social trauma caused by climate change. Their claims arise principally under Section 91 of the Constitution Act, 1867 (duty to make laws for the peace, order and good government of Canada); Section 7 of the Charter of Rights and Freedoms (right to life, liberty and security of person); and Section 15(1) of the Charter of Rights and Freedoms (equality before the law).

Plaintiffs seek declaratory relief; an order requiring the government to amend each of its environmental assessment statutes that apply to extant high greenhouse gas emitting projects to allow project approval to be canceled if Canada will be unable to keep its Paris Agreement commitments or considers climate change to be a national emergency; and an order requiring the government to complete an annual account of its cumulative greenhouse gas emissions in a format that allows comparison to Canada's carbon budget.

The defendant Canada filed a motion to strike on July 28, 2020, and plaintiffs responded to the motion on September 10, 2020.

On November 16, 2020, the Federal Court granted the motion to strike without leave to amend on the grounds that the case was not justiciable, had no reasonable cause of action, and the remedies were not legally available. The Court found that the case was not justiciable because it did not have a sufficient legal component to anchor the analysis. The Court wrote, ""[t]he issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government."" The Court further found that because plaintiffs did not reference specific sections of laws that cause specific breaches of Charter rights, their claims presented no reasonable cause of action. With regard to remedies, the Court found that the multifaceted problem of climate change would make judicial supervision meaningless, and therefore the Court could not take on a supervisory role to ensure adequate laws were passed.

On December 10, 2020, plaintiffs appealed the Federal Court judge's dismissal to the Federal Court of Appeal, and on April 30, 2021, they filed their memorandum of fact and law. Canada responded with their memo of fact on law filed on June 28, 2021.

Lho'imggin et al. v. Her Majesty the Queen - Climate Change Litigation

Summary provided courtesy of the Sabin Centre.

Court documents:
Complaint

Decision

Related CRC articles

• 2. Right to non-discrimination (CRC Article 2)
• 6. Right to life, survival and development (CRC Article 6)
• 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
• 30. Right to minority culture, language, religion (CRC Article 30)

Their claims arise principally under Section 91 of the Constitution Act, 1867 (duty to make laws for the peace, order and good government of Canada); Section 7 of the Charter of Rights and Freedoms (right to life, liberty and security of person); and Section 15(1) of the Charter of Rights and Freedoms (equality before the law).

Involvement of children in hearings

• Written presentation

Intergenerational rights

Complaint: 
94. The equality provisions pleaded by the plaintiffs for their children and youth under sub-section 15(1) of the Charter are consistent with the common law and constitutional principle of intergenerational equity.

Future generations

Complaint:
91. The defendant has deprived the plaintiffs of their right to equal protection and equal benefit of the law based on the age of the plaintiffs’ younger membersand future generations by making laws that allow high GHG- emitting projects to operate now and into the future in breach of Canada’s fair contribution to keep global warming to non-catastrophic levels.

92. All current projections of global warming based on the defendant’s laws and policies disproportionately deprive the plaintiffs of the right of their child members, youth members, and future generations to good health, to knowledge of their territories, fisheries, social relations and laws, to fully participate in their society’s institutions and decision-making, and to develop their full potential as heirs to their millennia-old culture and society.

Outcome of decision for the applicants

• Relief sought by applicants NOT granted

Dismissed but pending on appeal. 
Dismissal grounds: on the grounds that the case was not justiciable, had no reasonable cause of action, and the remedies were not legally available.

Age range of litigants

• Other (Under 25)