Friends of the Earth v. Canada (Governor in Council).

These were three applications for judicial review each seeking declaratory and mandatory relief in connection with a succession of alleged breaches of duties said to arise under the Kyoto Protocol Implementation Act (KPIA). The KPIA, which was introduced to Parliament as a private member’s bill, was not supported by the government, which explains why it embodies a legislative policy that is inconsistent with stated government policy (that Canada would not comply with Kyoto Protocol targets). The KPIA imposes a number of responsibilities upon the Minister and the Governor in Council (GIC), such as the requirement that a Climate Change Plan be prepared describing “the measures to be taken to ensure that Canada meets its [Kyoto] obligations.” The Climate Change Plan submitted by the government made it very clear that it had no present intention of meeting its Kyoto Protocol commitments. The issues were whether (1) the applicant had standing to bring these applications, (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, and (3) sections 7, 8 and 9 of the KPIA imposed justiciable duties upon the GIC to make, amend or repeal environmental regulations within the timelines therein stated. The Federal Court held the applications should be dismissed. The issue of the applicant’s standing was to be resolved solely on the basis of the justiciability of the substantive issues it raised. The justiciability of these issues was a matter of statutory interpretation directed at identifying Parliamentary intent: in particular, whether Parliament intended that the statutory duties imposed upon the Minister and upon the GIC by the KPIA be subjected to judicial scrutiny and remediation. 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. The word “ensure” found in section 5 and elsewhere in the KPIA is not commonly used in the context of statutory interpretation to indicate an imperative. The Act also contemplates an ongoing process of review and adjustment within a continuously evolving scientific and political environment. These are not matters that can be completely controlled by the Government of Canada such that it could unilaterally ensure Kyoto compliance within any particular timeframe. As paragraph 5(1)(f) allows for a failure to implement any of the required remedial measures for ensuring Kyoto compliance in a given year, 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. It would be incongruous for the Court to be able to order the Minister to prepare a compliant Plan where he has deliberately and transparently declined to do so for reasons of public policy. That the words “to ensure” used in section 5 reflect only a permissive intent is also indicated by the use of those words in section 7 dealing with the authority of the GIC to pass, repeal or amend environmental regulations. If section 7 of the KPIA does not create a mandatory duty to regulate, it necessarily follows that all of the regulatory and related duties described in sections 8 and 9 of the KPIA are not justiciable if the GIC declines to act. If the government cannot be compelled to regulate, it cannot be required to carry out the ancillary duties of publishing, reporting or consulting on the efficacy of such measures—unless and until there is a proposed KPIA regulatory change. The issue of justiciability was also assessed in the context of the other mechanisms adopted by the KPIA for ensuring Kyoto compliance. KPIA creates rather elaborate reporting and review mechanisms within the Parliamentary sphere. Considering the scope of these review mechanisms, the statutory scheme must be interpreted as excluding judicial review over issues of substantive Kyoto compliance including the regulatory function. Parliament has, with the KPIA, created a comprehensive system of public and parliamentary accountability as a substitute for judicial review.