Indigenous Peoples Bringing Climate Justice to Canada

• Author: Karine Péloffy
• Pages: 647-676

647

Indigenous Peoples Bringing

Climate Justice to Canada

Karine Peloffy*

Introduction .................................................................................................648

I. Factual Background ..............................................................................649

A. Canadian Historical Inaction on Climate Change ..........................649

B. Indigenous Peoples in Canada and Climate Change .......................651

II. Existing Constitutional Legal Framework .............................................653

A. Rights Protected Under the Canadian Constitution ........................653

1. Section 35: Collective Rights of Aboriginal Peoples ...................654

2. Rights Protected by the Charter of Rights and Freedoms .......... 657

B. Rights Infringement Justication Analysis ......................................661

1. Jurisprudential Tests to Justify Constitutional Rights

Infringements ..........................................................................662

2. Is Canadian Inaction on Climate Change Justied? ................... 665

C. Possible Court Remedies ................................................................666

1. Injunctive Remedy: Dutch-type, Court-imposed National

GHG Targets ............................................................................667

2. Other Remedies: Compensation and Declaratory Judgments ..... 669

III. Starting a New Constitutional Dialogue Between Settlers and

Indigenous Legal Frameworks .............................................................669

A. Transforming Constitutions to Include Indigenous Peoples ............669

B. Aspects of Indigenous Law Important for a Pluralistic Legal

Dialogue on Climate Change .........................................................671

C. Challenges to Pluralistic Constitutional Dialogue ........................... 673

Conclusion ................................................................................................... 675

* e author would like to thank Lisa Koperqualuk, author of Traditions Relating to

Customary Law of Nunavimmiut, for her extremely valuable input on indigenous law,

Vanita Sachdeva for her outstanding research assistance as well as the numerous interns

who conducted background research, and the many people who have contributed through

insightful discussions toward this chapter.

Chapter 24

648 Climate Justice

Introduction

is chapter explores a hypothetica l case on how indigenous communities

aected by climate cha nge in Canada1 could bring a lega l action against the

federal government using constitutional a rguments to compel the govern-

ment to abide by more ambitious green house gas (GHG) emissions reduction

targets and provide fu nding and resources to adapt to climate change. e

case is structured similarly to the succe ssful Urgenda case but in a Cana-

dian context, focusing on the dierent legal tools available to Aboriginal

peoples of Canada for two reasons. First, indigenous peoples in C anada are

disproportionately aected by climate change. Second, the government has a

unique duciary duty toward indigenous peoples, and Canad ian indigenous

peoples enjoy additional constitutional protections and avenues to bring a

claim that the general C anadian public cannot access.

e chapter proposes that the inclusion of indigenous laws and concepts

into climate court cases and policy development would have a benecial

impact on climate action in Canada. Canada simultaneously is one of the

world’s leading emitters of greenhouse gases (GHGs) and home to the most

heavily impacted peoples on the planet. e chapter calls on Canada to be

receptive to the teachings that have governed its territory for far longer than

confederation, if indigenous peoples still have the patience and generosity to

share their wisdom.

e diculty remains that Aboriginal peoples of th is la nd are the la st

people who should shoulder the burden of action on this matter, having con-

tributed little to the problem and suering most of the impacts.2 However,

as with other environmental issues, they are thankfully of ten already at the

forefront of the ght against extractive industries aecting the environment.

Part I of the chapter reviews Canada’s historical inaction on climate

change and the climate change impacts that indigenous peoples have already

endured. Part II charts a constitutional climate case brought by indigenous

peoples by highlig hting the recognized collective and individual rights they

could rely on, the various rights limitation tests that would have to be met,

and the possible remedies available. Part III explores principles of indigenous

law that would be benecial in developing climate polic y and the challenges

in attempting to reconcile settler and indigenous systems. e culturally spe-

1. is chapter explores in greater detail the hypothetical test case put forward in Karine Peloy, Kivalina

v. Exxonmobil: A Comparative Case Comment, 9 MG I’ J. S D. L. 121 (2013).

2. Although the chapter explores relatively novel arguments and unchartered territory, it is not meant

to serve as an endorsement for indigenous peoples or communities to under take the monumental

task of the legal action contemplated or that it would be benecial to any single community.