Boom or Bust: The Public Trust Doctrine in Canadian Climate Change Litigation

Research output: Articlepeer-review

Abstract

Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its understanding in other jurisdictions. Now, it appears to be at a crossroads. On the one hand, it can lay the foundation for robust climate litigation for years to come via common law, constitutional law, or even natural law interpretations. On the other hand, it could wither away into irrelevance as, even if it is recognized as part of Canadian law, it would be relegated to its historical origins as a property law doctrine that guarantees that natural resources can be accessed by the public—not a doctrine that obligates governments to protect natural resources for current and future generations.

Arguably, the public trust doctrine sits alone as a potential tool to hold government and even corporate actors to account for their exceptional contributions to a warming planet. Currently, the tension in Canadian courts lies with how broadly to interpret the doctrine, particularly in light of past opinions that span from obiter comments in Canfor to the doctrine’s recent rejection in La Rose. For an expansive public trust doctrine that could be applied in climate litigation, Canadian courts would construe governments as being responsible for the continued enjoyment of inherently public resources, including the air, atmosphere, forests, and all navigable waters. Pursuant to that understanding, the doctrine would serve as a cause of action for claims brought by individuals against governments as well as for claims brought by governments against arms-length corporations.

Original languageEnglish
JournalQueens Law Journal
Volume49
Issue number2
Publication statusPublished - Jan 1 2024

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