Judicial system (judiciary)

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The judicial system (or judiciary) refers to a branch of government whose task is the authoritative adjudication of controversies over the application of laws in specific situations.-Britannica [1]

How the judicial system upholds climate injustice

Funding and protecting the oil and gas industry while jailing protesters

  • In addition to funding the industry, the government protects it with injunctions, which are court orders preventing protesters from interfering with, and often going near, work sites. These work sites are typically pipelines, company headquarters, or tree logging sites. When an injunction is breached, fines and jail time may be given out. The right to protest and conduct picket activities is protected by the right to freedom of expression and peaceful assembly; court ordered injunctions go against this right. [2]
  • The TMX pipeline injunction, financed by the Trudeau government, had led to 48 arrests for breaching the injunction line as of February 8th, 2022 [3]
  • The injunction granted to Coastal GasLink to build a pipeline through Wet’suwet’en territory without the consent of the hereditary chiefs led to the arrests of 74 people and enforcement costs of over 13
    million for the period of January 2019 - March 2020 [4]

Climate refugees’ legal status

  • Current estimates suggest that 50 to 200 million people will be displaced due to the direct impacts of climate change. These displaced people are sometimes called “climate refugees”, but they do not meet the refugee convention requirements. [5]
  • The refugee convention has two core requirements; the first is a “well-founded fear of being persecuted” and the second is that the reasons for persecution are limited to
    “race, religion, nationality, membership of a particular social group or political opinion.” These well defined requirements have made it impossible to use to attribute the refugee convention to climate refugees. [6]
Uneasiness of judges to taken on climate cases
  • As more court cases are brought involving climate-related claims, there is a trend for judges to refuse to take on these cases, typically stating the same argument for their refusal; climate change policies are the jurisdiction of the politicians and policy makers, not judges. [7]

Using the judicial system for climate justice

Litigation cases against governments to hold them accountable for climate

  • For example, a group of youth went after the Ontario government. [8]
  • A litigation case against the government of Montana was successful. [9]
Litigation against corporate actors
  • For example, groups have gone after Shell for failing to move away from funding fossil fuels fast enough. [10]
Litigation for greenwashing or misleading green promises
  • 6 individuals are going after RBC for their misleading advertising on climate action. [11]

Rights of Nation (RoN) cases for environmental protection [12]

  • In New Zealand (2017), the Whanganui River was recognized as a “legal entity” as part of a negotiated settlement between the government and the Māori people (Kestler-D-Amours, 2021)
  • In 2017, a court in India ruled that the Ganges and Yamuna rivers should be granted the same legal rights as people.
  • In 2016, Colombia’s Constitutional Court declared that the Atrato River in the country’s northwest had a “subject of rights.”
  • In 2008, Ecuador adopted a new constitution which included a similar concept of rights for nature protecting the Vilcabamba River.

A special thanks to Gabrielle Bourbeau for their tremendous support compiling content for this page.

If you have any suggested revisions or additional resources to share related to the above content, please email them to kenzie@lehub.ca.

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  1. https://www.britannica.com/topic/judiciary
  2. Stop TMX. (2022). Protests & arrests. https://www.stoptmx.ca/protests- arrests/
  3. Gamage, M. (2022). Meet the protesters going to jail to fight climate change. The Tyee. Retrieved from https://thetyee.ca/News/2022/04/27/Meet-Protesters-Fighting-Climate-Change/
  4. Stop TMX. (2022). Protests & arrests. https://www.stoptmx.ca/protests- arrests/
  5. Williams, A. (2008). Turning the tide: Recognizing climate change refugees in international law. Wiley Online Library. Retrieved from https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-9930.2008. 00290.x
  6. Williams, A. (2008). Turning the tide: Recognizing climate change refugees in international law. Wiley Online Library. Retrieved from https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-9930.2008. 00290.x
  7. Kuh, K. F. (2019). The Legitimacy of Judicial Climate Engagement. Pace University, School of Law Faculty Publications. Retrieved from https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=2150& context=lawfaculty
  8. https://theconversation.com/court-decision-in-youth-climate-lawsuit-against-ontario-government-ignites-hope-206275
  9. https://www.npr.org/2023/08/23/1194710955/montana-youth-climate-ruling-could-set-precedent-for-future-climate-litigation
  10. https://www.clientearth.org/latest/latest-updates/news/we-re-taking-legal-action-against-shell-s-board-for-mismanaging-climate-risk/
  11. https://ecojustice.ca/news/canadas-competition-bureau-opens-investigation-into-rbcs-alleged-misleading-advertising-on-climate-action/
  12. https://static1.squarespace.com/static/6014527b90b10920133c710b/t/626aa1cb534e5c386d985dae/1651155404253/KOW+Personhood+Report+-+Jan+2022.pdf