Could Canadian Lawyers Replicate the Landmark Dutch Climate Victory?

The courts are “our best hope for averting dangerous climate change” believes Dutch lawyer Roger Cox who recently won what may be one of the most important legal cases this century.

Last June a court in The Hague ruled the Dutch government had to increase its carbon dioxide emissions cuts from 17 per cent to 25 per cent by 2020 compared to 1990 levels. Canada’s 2020 target is an increase of about seven per cent over its emissions in 1990 and it will not make that target.

Although the right-wing Dutch government fought the case, it will comply with the judgment, Cox said during a presentation at the Osgoode Hall Law Society Tuesday evening in Toronto. The event was hosted by the Centre for International Governance Innovation (CIGI), a non-partisan think tank.

Cox represented an environmental group, the Urgenda Foundation, and almost 900 citizens in the two-year case. They argued the Netherlands is obligated to cut emissions between 25 and 40 per cent by 2020 since all developed countries, including Canada, agreed to this at the UN climate negotiations in Cancun in 2010.

The big question is: could the decision be replicated in Canada?

“Climate litigation is inevitable,” said Lorne Sossin, dean and professor, Osgoode Hall Law School, York University.

While it might be difficult to win, simply bringing a climate lawsuit forward would be important, Sossin said.

One major reason is that courts require compelling evidence — and there is an abundance of that on climate science and how to cut emissions from the Intergovernmental Panel on Climate Change (IPCC), International Energy Agency and other respected bodies.

“Politicians and the media falsely claim acting on climate will harm the economy but it’s easy to prove in court reductions are not so difficult,” said Cox.

The Dutch government didn’t even contest these facts, Cox said.

“The courts will try to find a remedy once they know the real facts of climate change,” said David Estrin, senior research fellow and certified environmental law specialist at the Centre for International Governance Innovation.

Informing the court about climate science and the far-reaching impacts and risks to future generations was half of the Dutch case, Cox said.

“Few people anywhere really grasp the seriousness the problem. There are so many aspects people don’t yet get,” Cox told DeSmog.

One of those is that nothing new that uses fossil fuels can be built after 2018  to have a chance of keeping global temperature rise below 2C.

“Given the overwhelming enormity of the harm from climate change” Canada’s judiciary may have to play a role if the state refuses to act appropriately said Hon. Stephen Goudge, Q.C., formerly Justice of the Ontario Court of Appeal.

The Dutch court saw a “gigantic problem and found a way to deal with it,” Goudge said.

Governments have a “duty to protect the interests of future generations” the District Court of The Hague found. And it also ruled since it is far cheaper to act now, the state is obligated to act now rather than unfairly burden future generations with the costs of cutting emissions and coping with impacts.

The Dutch government also tried the Stephen Harper government’s favourite “we’re too small to matter” talking point. The Netherlands emissions are less than 0.5 per cent of global emissions compared to Canada’s 2 per cent. The court pointed out that the government couldn’t prove those cuts would not have an impact, Cox said.

But isn’t acting on climate solely a matter for governments? The court said the state has the responsibility to act reasonably and had not in this instance. “A legal question with political consequences is still a legal question, the court ruled,” Cox said.

The Dutch government has said it will appeal parts of the decision. In a recent report, the Dutch environment agency said the Netherlands could easily increase cuts to 25 per cent by 2020, but only if it begins right away. Delay would make reaching the court-mandated target difficult and expensive.

Cox is involved in a similar case underway in Belgium and would like to see cases brought in other countries. He just accepted an appointment at the Centre for International Governance Innovation and will be working on how to use international law, commitments and treaties in domestic courts and on legal concepts of climate justice.

Canadian law is based on common law while the Dutch have a civil law system, as does Quebec.  It would be much easier to use the Dutch decision in a climate case in Quebec, said Lewis  Klar, former dean of the Faculty of Law at the University of Alberta.

However Klar told DeSmog there is little chance a climate case could win in Canada even using the Charter of Rights and Freedoms.

“Few legal experts thought we would win when we started,” Cox said.

In the end, the court “really felt the need to act due to the clear climate science and the risks to future generations,” he said.

Photo: Urgenda/Chantal Bekker