decision

Turp v. Minister of Justice and Attorney General of Canada - decision

Litigation

Sabin

Sabin Litigation

Filing Year For Action

Daniel Turp sought judicial review of Canada’s decision to withdraw from the Kyoto Protocol to the UN Framework Convention on Climate Change. He alleged that the Conservative-led Government could not do without some form of authorization from Parliament. Underlying this dispute and Canada’s ambivalent commitment to Kyoto was the fact that Canada was led from 2004 to 2015 by Governments elected with either a razor-thin majority of seats or reliant for their majority position on a coalition of parties. Canada had signed the Kyoto Protocol in 1998 and ratified it in 2002. A Conservative Government entered into power in 2006, shortly after the Protocol entered into effect in 2005. When that Government made clear that it would not pursue greenhouse gas emissions reductions adequate to comply with Kyoto, a member of parliament proposed a private bill—i.e., proposed legislation not put forward by the government—requiring compliance with the Protocol, which became known as the Kyoto Protocol Implementation Act (KPIA). About a month after Canada gave notice of its withdrawal from the Kyoto Protocol in December 2011, the applicant, Turp, sought judicial review of that decision. Between his filing and issuance of the court’s opinion, Parliament repealed the KPIA.

Nonetheless, the court considered Turp’s legal arguments, and explained its rejection of each of them. Contrary to Turp’s contention that withdrawal from Kyoto violated the law and threatened the separation of powers, the court concluded that the Government’s discretion (“Royal Prerogative”) was not curtailed or foreclosed by the KPIA—indeed, the court pointed out, the KPIA describes itself as requiring the Government to operate “under the Kyoto Protocol,” which itself provides expressly that a government may withdraw. Contrary to Turp’s contention that the democratic principle prohibited withdrawal unless Parliament had authorized it, the court noted that the House of Commons only ever passed a motion encouraging ratification of the Protocol, and so did not thereby draw a line that withdrawal would cross.