17 February 2023
By Shawn Katz, communications officer at Above Ground | Published in Canada’s National Observer
In recent years, Canadians concerned about the mounting threats to their rights posed by climate change have launched a series of lawsuits aimed at holding governments to account for their climate policies. Yet, this trend towards rights-based climate litigation has encountered obstacles.
Chief among them? Canadian courts are wary of intervening in questions deemed to be political in nature, as these are considered the responsibility of elected lawmakers.
A bill now before Parliament would avoid this pitfall, potentially opening up a new avenue for climate litigation in Canada. The private member’s bill would require significant cross-party support to succeed. But if adopted, the law could provide Canadians a powerful new tool in the fight against climate change.
The Corporate Responsibility to Protect Human Rights Act, or Bill C-262, would impose a broad range of human rights obligations on Canadian companies, which would be required to prevent, address and remedy social and environmental harms that arise from their business activities and relationships abroad.
Among the new obligations, Canadian companies would need to ensure their activities don’t cause adverse climate impacts that could violate people’s rights, including the right to food security, health, safety and a healthy environment.
Concretely, this means that under the proposed act, civil society actors could bring Canadian oil and gas companies to court for failing to put in place adequate climate change mitigation policies. A company could face legal action if, for example, it fails to adequately identify its contribution to climate change through its fossil fuel exports or operations abroad, to reduce this contribution and to mitigate the risk of adverse impacts in the future.
A court could order the company to reduce its emissions and even award punitive damages to send a signal to other companies on the importance of taking their climate responsibilities seriously.
Such litigation wouldn’t encounter the same obstacles as the climate lawsuits launched to date against the federal and provincial governments because courts would not be required to judge the climate policies adopted by elected politicians. Judges would be tasked only with evaluating companies’ compliance with their legal obligations under the act, thereby avoiding any risk of them entering the political domain.
The potential impact of this legislation becomes apparent when we consider that emissions from the burning of Canada’s fossil fuel exports have skyrocketed so dramatically that they now eclipse Canada’s total domestic emissions from all sectors combined. Canadian oil companies that are exporting climate destruction would no longer be able to do so with impunity.
The Corporate Responsibility to Protect Human Rights Act is modelled on similar legislation that has recently been enacted or is being developed by lawmakers in countries across Europe and by the European Union, following in the wake of France’s trailblazing Duty of Vigilance law adopted in 2017.
Often grouped together under the term “human rights and environmental due diligence” (HREDD) legislation, these game-changing laws aim to curtail corporate abuse by holding parent companies to account for harms occurring as a result of their business activities and relationships around the world.
Environmental advocates were quick to seize on the potential opened up by France’s Duty of Vigilance law. In January 2020, a coalition of French NGOs and local authorities (since joined by Paris and New York) brought French oil giant Total to court, alleging the company’s due diligence plan failed to account for the climate risks arising from its business.
The lawsuit effectively seeks to impose production cuts on one of the world’s largest oil companies. Though a decision is still pending, the case may provide a glimpse of the sort of climate litigation that could be enabled in Canada by the adoption of a bill such as C-262.
As European countries champion a shift towards more robust climate and corporate accountability measures, Canada is falling behind.
The Corporate Responsibility to Protect Human Rights Act provides a critical opportunity for Canada to step up and join these leaders in placing people and the planet ahead of corporate profits.