AuthorParker, Larissa

I INTRODUCTION II WICKED PROBLEMS, ENVIRONMENTAL RIGHTS, AND THE CHARTER A. Introducing Wicked Problems B. Conceptualizing Environmental Rights III JUSTICIABILITY AS A ROADBLOCK A. Introducing Justiciability B. Availability of Adjudication C. Suitability of Adjudication IV TOWARDS EMBRACING THE "WICKED" A. Confronting the Assumptions about the Non-Justiciability of Social and Economic Rights B. Lessons Learned from the Theory on Governing Wicked Problems V CONCLUSION I INTRODUCTION

"Must our law be so rigid and our procedural concepts so inflexible that we render ourselves helpless when the existing methods and the traditional concepts do not quite fit and do not prove to be entirely adequate for new issues?" Justice Douglas, dissenting in Sierra Club v Morton, 405 US 727 (1972) at 755-756. In today's "era of unlimited harm," (1) climate change is expected to have profound effects on the enjoyment of human rights across the planet. (2) Indeed, the world has seen a "rights turn" in climate litigation in which a range of plaintiffs assert that the effects of climate change infringe their rights to life, liberty, and security, as well as equality. (3) In Canada, for instance, four climate change-related, rights-based cases were launched across the country between 2018 and 2020, each alleging claims under the Charter of Rights and Freedoms ("Charter"). (4)

Climate cases of this nature are often confronted with motions to strike at a preliminary stage. Like clockwork, these motions allege that climate change-related cases are "non-justiciable" under the justiciability doctrine. (5) This doctrine is made up of "judge-made rules, norms and principles delineating the scope of judicial intervention in social, political and economic life." (6) Claims that invoke subject areas that judges deem to be too broad, political, or complex for judicial determination are typically struck as non-justiciable.

In the context of public interest litigation, a number of scholars have observed that the doctrine of justiciability can act as a roadblock to novel public interest litigation. (7) In Canada, this is particularly true when courts are faced with claims that involve social and economic rights, such as those relating to poverty, social housing, and, as of recently, climate change. (8)

Concerns about the justiciability of these rights are based on two assumptions, including: first, that civil and political rights are divisible and distinct from social and economic rights, and second, that social and economic rights necessarily involve positive obligations, while civil and political ones do not. (9) These rigid dichotomies are misleading and disconnected from the reality of the interconnect-edness of human rights and associated obligations. (10) In actuality, all human rights are interdependent and contain positive and negative obligations; the realization of economic, social, and cultural rights is connected to the realization of civil and political ones. (11)

The interconnectedness of human rights is perhaps no more obvious than in the context of climate change. Experts have long accepted that the climate crisis is linked to widespread death, injuries, and human rights infringements, such as those relating to access to food, water, health, sanitation, housing, self-determination, etc. (12) In addition, since racialized and Indigenous communities disproportionately bear the consequences of climate change, there are important equality-rights dimensions to the crisis as well. (13)

Such interconnectivity is a symptom of the very nature of the climate change dilemma, which scholars like Richard Lazarus have characterized as "wicked." Wicked problems "def[y] resolution because of the enormous interdependencies, uncertainties, and conflicting stakeholders implicated by any effort to develop a solution." (14) When facing such problems, although simple, deterministic rules might govern each individual causal moment, the system as a whole nevertheless exhibits "surprise phenomena produced by chaos, emergence, and catastrophe." (15) Such complexity troubles the foundation of reductionist science--namely, the proposition that studying constituent parts will reveal general properties. Since there is no single "root cause" of complexity, uncertainty, and disagreement surrounding a wicked problem, there is thus no single best approach to tackling them either. (16) As a result, simple and linear solutions leave us with only a partial understanding of the problem. (17)

The struggle to apply reductionist science to understand and tackle wicked problems offers insight into the trouble that the Canadian Charter has when confronted with systemic and complex issues involving social and economic rights. Indeed, Charter rights--as they were initially developed--were largely conceived as individual rights, designed to protect citizens' ability to fully participate in civil and political life without discrimination. (18) At that time, it was not contemplated that they would be called upon to respond to systemic or large-scale problems, like the housing crisis or climate change. (19) Given this, courts are naturally more comfortable adjudicating narrowly scoped individual rights, and apprehensive when faced with broad claims that invoke social and economic rights. (20)

Although very serious rights infringements linked to climate change have been alleged, the doctrine of justiciability has halted their adjudication, thereby impeding our ability to understand how (and to what extent) judges can play a role in adjudicating rights issues associated with the climate crisis. Since climate change-related claims are more often than not ruled as non-justiciable, the doctrine of justiciability risks having the effect of shielding a large and important area of governmental decision-making and public policy from judicial scrutiny. (21) This pattern has also led scholars to identify concerns around access to justice and the rule of law for public interest claims that aim to tackle systemic social issues. (22)

Yet, as climate change worsens, complex rights-related questions will continue to confront Canadian courts, and it is arguable that pressure on our judges to respond to them will be increasingly insistent. While judges will, of course, not have all the answers to these questions right away, they will only be able to develop their own understanding of these legal issues and the scope of their ability to respond to them through adjudication on the merits. Without such litigation on the merits, key questions around the existence of environmental rights, and whether environmental claims necessarily involve positive obligations will remain unanswered. As Weaver and Kysar write, "at times of crisis, when our normative universe tends toward collapse, [the] demand on the courts to respond becomes ever more insistent. Courts will inevitably fail to mount a complete response to catastrophe, but they must try." (23)

Since wicked problems have no stopping point, it is generally accepted that it is not possible to solve them. Instead, governance scholars have long encouraged decision-makers to focus on making progress towards better understanding such problems in order to better manage them through creative, flexible, and iterative responses. (24) If our constitutional frameworks are also meant to respond to modern day, wicked problems, it is conceivable that similar thinking will be required to do so. In other words, judges may need to adopt flexible and creative legal thinking to adjudicate complex questions associated with climate change, and ultimately delineate the scope of the Charter's role in such contexts.

With a focus on recent climate change litigation cases in Canada, this paper considers the relationship between the doctrine of justiciability and the adjudication of complex human rights issues related to wicked problems. After introducing the concept of wicked problems, this paper explores the potential relationships between climate change and the Charter and how scholars have argued ss. 7 and 15 could apply to the recognition of such claims. Part II introduces the doctrine of justiciability in Canada and discusses how it has evolved in response to novel public interest cases that involve social and economic rights. Part III introduces and problematizes the rigid, dichotomous assumptions that are implicit in courts' approach to the non-justiciability of social and economic rights, before reflecting on what the theory on wicked problems might teach us about adjudicating the complex rights issues associated with them.

To be clear at the outset, I am not suggesting that courts should be involved in developing or evaluating the content of mitigation and adaptation strategies to climate change. This is a function rightfully reserved for the legislature. Under the division of powers, the judiciary has a role in ensuring that government power is exercised in accordance with the Constitution Act, 1982 ("the Constitution") and applying the Constitution as a "living tree" to the evolving social and economic fabric of the country. My position in this paper is that this role extends to government action (or inaction) on climate change, as one of the most pressing human rights issues of our generation. When emissions resulting from governmental decisions cause (or contribute) to climate change-related harm--and particularly when those decisions are inconsistent with domestic and international climate targets (25)--I argue that there is room for the judiciary to step in and order the government to devise and implement more appropriate strategies.


Since there is no place in the world that will be unaffected by climate change, the crisis is expected to impact a vast range of human rights across the planet. Yet, the uncertainty and complexity (26) of the climate crisis render rights infringements related to...

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