Let Our Living Tree Grow: Beyond Non-Justiciability for Public Interest Environmental Claims

  • September 13, 2021

by Larissa Parker, 2021 winner of the "In the Public Interest" Student Essay Contest.

Larissa thanks Professor Pearl Eliadis for her support and guidance on this paper; Chris Tollefson and Anthony Ho at the Pacific Centre for Environmental Law and Litigation for inspiring her interest in this topic; and, members of the Public Sector Lawyers Section for their comments and revisions before publication.


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, whereby 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 public interest cases were launched across the country between 2018 and 2020, each alleging rights-based 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. These motions typically argue that the cases are ‘non-justiciable’ under the justiciability doctrine.5 Justiciability refers to the limits of the scope of judicial authority and adjudication.6 Indeed, 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 concerning ‘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 three assumptions that trouble the adjudication of systemic-type claims, including: first, that such rights involve positive obligations, while civil and political ones do not; second, that it is not legitimate for courts to intrude into the realm of social and economic policy; and third, that courts or other decision-making bodies lack the ‘capacity’ to properly adjudicate social and economic rights.9 These assumptions are rooted in the misconception that economic and social rights are necessarily divisible from civil and political ones. This misbelief promotes dichotomies that are inaccurate and fundamentally disconnected from the reality of the interconnectedness of human rights. 10 Instead, all human rights are interdependent. 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. Changes in temperature, precipitation, ice, permafrost, and freshwater availability prompt increased extreme weather worldwide. These have caused widespread death, injuries, and other human rights infringements, like the right to food, water, health, sanitation, housing, self-determination, etc.12 Further, given that racialized and Indigenous communities will disproportionately bear the consequences of these events, climate change also has important equality rights dimensions.13

Such interconnectivity is a symptom of the very nature of the climate crisis, which scholars like Richard Lazarus characterize as a “super wicked problem.”14 The problem “defies resolution because of the enormous interdependencies, uncertainties, circularities, and conflicting stakeholders implicated by any effort to develop a solution.”15 In the face of these largescale risks, although simple, deterministic rules might govern each individual causal moment,16 the system as a whole nevertheless exhibits “surprise phenomena produced by chaos, emergence, and catastrophe.”17 Such complexity troubles the foundation of reductionist science, namely, that studying constituent parts will reveal general properties. Instead, we are left only with a partial understanding of the problem.18

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. Indeed, Charter rights – as they were initially designed – were conceived largely as individual rights, designed to protect citizens’ ability to fully participate in civil and political life without discrimination. It was not considered, at the time, that rights infringements might occur in the context of a largescale socio-economic problem, like climate change. In other words, while courts are comfortable adjudicating narrowly scoped, individual rights, they are apprehensive when faced with broad systemic claims. Although very serious rights infringements have been alleged in such contexts, the doctrine of justiciability has successfully impeded their adjudication. Many claims are dismissed before they are heard on the merits. This pattern has led several scholars to identify concerns around access to justice and the rule of law.19

As society faces larger risks, it is imperative that courts and the Charter adapt (or at least, are given the opportunity to try). Our legal frameworks must evolve to recognize the existence of broader rights, such as environmental rights. It is imperative that they must move away from the trend in which the justiciability doctrine acts as a blunt tool to prevent the development of the law on these issues. Instead, it is through litigation on the merits that will enable us to begin understanding how (and if) the Charter can respond to environmental rights issues. 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.”20

Grounded in Canada’s constitutional landscape, this paper is structured as follows. Part 1 introduces the potential relationships between climate change and the Charter and how scholars have argued sections 7 and 15 could apply to the recognition of such claims. I assume a positivist approach to Charter interpretation.21 Part 2 considers how the doctrine of justiciability has stifled litigation on broad issues and seeks to problematize the assumptions that are inherent within the non-justiciability of social and economic rights, as well as its implications. Finally, Part 3 reflects on what theory on wicked problems might teach us about justiciability by distilling two key lessons for why the Charter must adapt.


There is no place in the world that will be unaffected by climate change. Since the effects of the crisis will vary by geography and population amongst nations and within them, it is expected that a vast range of human rights will be affected across the world. Yet, the uncertainty and complexity of the problem render such rights infringements difficult to frame and fight. However, solving them is key to meeting other social challenges. After introducing the concept of ‘wicked problems’, this section explores the potential recognition of environmental rights in Canada.

Introducing ‘Wicked Problems’

The concept of ‘wicked problems’ was developed in the late 1960s in response to a general trend in public policy, where political officials, city planners, engineers, etc. recognized they were unable to solve emerging, largescale problems. ‘Wickedness’ characterizes problems “which are ill-formulated, where the information is confusing, where there are many clients and decision-makers with conflicting values, and where the ramifications in the whole system are thoroughly confusing.”22 Faced with such problems, academics and practitioners have concluded that the traditional, scientific model of problem-solving was unsuited for “wicked” problems because they could not be “tamed” enough to be examined systematically within that framework.23

Many environmental issues can be characterized this way. They are often ill-defined and not susceptible to simple analytical solutions because they risk oversimplifying the complexity of the problem to make it manageable or solvable. Wicked problems have two fundamental characteristics, including: a) there is no definitive statement of the problem, and b) there is no definitive solution.24 The key to governing these challenges is realizing that it is a matter of creativity to devise potential solutions and a matter of judgment to determine which should be pursued and implemented.25

Theory around wicked problems can be applied to the Canadian Charter, as well. Climate change acts as a risk multiplier26 that affects a wide range of human rights.27 However, just like wicked problems, they are riddled with complexity; we cannot point to one legal solution, or rather, a set of rights that will neatly encompass the rights affected by climate change. As Linda Collins points out, an “ecologically literate” reading of the Charter reveals that a livable environment is necessary for the full enjoyment of our existing rights and the proper functioning of the living tree doctrine.28 Although such breadth and complexity are daunting, courts must adapt to respond to the serious rights issues at stake.

Conceptualizing Environmental Rights

So where might rights infringements due to climate change fit under Canada’s constitutional frameworks? Although environmental rights in the Charter have yet to be recognized,29 several scholars propose that sections 7 and 15 may offer fruitful avenues to safeguard against environmental harm.30 According to Nathalie Chalifour, for example, the widespread effects of climate change pose a risk to Canadians’ rights to life, liberty, and security.31 Further, the disproportionate impacts that climate change may inflict upon certain socioeconomic classes and Indigenous peoples could pose a compelling section 15 infringement argument. Due to these connections, a striking six lawsuits were launched between 2018 and 2020 on climate ‘rights’ alone.32 These claims often involve a mix of interconnected negative and positive obligations to mitigate and adapt to the problem – a clear manifestation of its ‘wicked’ characteristics. This raises an important question: are Canadian courts ready to invoke the Charter to impose positive duties on governments to act?

In Canada, section 7 may present promising opportunities to do so. Although the section was said to have “humble origins” when it was enacted, the Supreme Court has since extended it to protect substantive as well as procedural rights and gave the provision an expansive interpretation.33 As Justice Rennie recently stated, speaking for a unanimous Federal Court of Appeal:

[S]ection 7 is not frozen in time, nor is its content exhaustively defined, and that it may, some day, evolve to encompass positive obligations – possibly in the domain of social, economic, health or climate rights.34

Indeed, the application of section 7 has been expanded into broader matters of social policy over the years. In “Chaoulli v Quebec (Attorney General)” for instance, the Court held that state-imposed restrictions on private health care, coupled with the existence of long waiting times in the public system, violated the rights to life and security of the person of Quebec residents.35 This expanded understanding of section 7 was apparent in “PHS Community Services Society”, where the Court ruled that a Minister’s failure to grant the exemption to provide a supervised drug injection site in Downtown Eastside Vancouver infringed Charter rights because it deprived community members of potentially lifesaving medical care.36 The expansion continued with Carter, which ruled that a prohibition on assisted dying was unconstitutional.37 Beyond the life interest, section 7’s liberty interest is engaged where state interference affects important life choices.38 For instance, the right to choose where to establish one’s home falls within the scope of the liberty interest since this right to choice is fundamentally linked to individual dignity and independence.39 Finally, the section’s security interest is grounded in the idea of personal autonomy and protects both physical and psychological integrity.40 In another context, the Supreme Court acknowledged that the security of the person encompasses the right to be free from prospective harm.41

Section 15 may offer an additional lens of substantive equality to acknowledge the disproportionate impacts that climate change has on Indigenous communities, children, and other marginalized groups. 42 As the Court ruled in Alliance, “when the government passes legislation in a way that perpetuates historic disadvantage for protected groups, regardless of who caused their disadvantage, the legislation is subject to review for section 15 compliance.”43 Pre-existing disadvantage plays a vital role in the substantive equality analysis.44 Note however, due to strict requirements around establishing a specific discriminatory distinction, scholars have acknowledged that opportunities under section 15 are more limited than section 7.45

Of course, these types of applications are novel and creative. Charter adjudication on the merits has yet to confirm the application of section 7 or section 15 to environmental problems. Incidentally however, imagination, innovation, and flexibility are exactly what have been identified as being necessary for addressing wicked problems.46 Thus, in the face of climate change-related rights infringements, it is likely that creative Charter applications are necessary to provide redress to those affected by the crisis. Courts must grapple with new types of claims and applications to delineate the limits of this potential.

Yet, non-justiciability rulings often stand in the way. Although the Charter’s evolution to expand to broader matters of social policy is evidence that our living tree is still growing, this growth is severely limited to certain types of rights,47 rendering the adjudication of a wicked problem highly difficult.


Traditionally, procedural roadblocks in litigation are framed under the doctrine of justiciability.48 The doctrine affords judges significant discretion to assess whether an issue can proceed or should be dismissed as not justiciable.49 This is typically done through one of three procedural mechanisms, including summary judgments and motions to strike.50 The following section aims to introduce justiciability, problematize the use of the doctrine in the context of Charter claims, and break down the barriers that make recognizing socio-economic rights in the Charter difficult.

Justiciability and Public Interest Claims

In Canada, the courts’ approach to justiciability is very open-ended and ill-defined.51 However, a review of jurisprudence reveals some key similarities in how courts assess the two dominant criteria of legitimacy and capacity. Legitimacy concerns are intimately linked to the separation of powers and the general notion that certain matters are not justiciable due to their political nature. As Sossin writes, “[political questions] typically involve moral, strategic, ideological, historical or policy considerations that are not susceptible to resolution through adversarial presentation of evidence or the judicial process.52 In such cases, courts are expected to be sensitive to their role as judicial arbiters and must avoid fashioning remedies that usurp the role of other branches of government.53 This played out abruptly in Friends of the Earth v Canada (Governor in Council), where federal courts were asked to review the government’s failure to meet its own commitments under the Kyoto Protocol Implementation Act to prepare a climate plan and publish proposed regulatory amendments to meet its commitments. Surprisingly, although the commitments were set in the legislation, the Court deemed the claim non-justiciable for public policy reasons.54

In the last decade, the justiciability doctrine has stifled public interest litigation on socio-economic rights. Tanudjaja v Attorney General (Canada) is the quintessential example.55 Although counsel and housing activists prepared an almost 10,000-page record, both the Ontario Superior Court and Ontario Court of Appeal struck the claim as being “not justiciable.” The application alleged that changes to legislation, policies, programs, and services by the Canadian and Ontario governments have led to inadequate housing and increased homelessness, which breached section 7 and 15 rights under the Charter. The court found this to implicate positive rights, which it stated were not recognized under Canadian law. This was arguably premature. As Justice Feldman of the Ontario Court of Appeal held in dissent, it may not be appropriate for a Court to make such a determination at a procedural stage, given that the Supreme Court left the door open to recognizing positive rights under section 7 in Gosselin v QuĂ©bec (Attorney General).56

The ruling in Tanudjaja has had “chilling” long-lasting effects on other public interest cases.57 Most recently, in La Rose v. Canada, 58 fifteen youth across Canada are challenging the Canadian government's overall conduct with respect to GHG emissions and its longstanding failure to meet targets the claimants argued were insufficient in the first place. Justice Manson of the Federal Court found the plaintiffs’ approach of challenging a swath of government conduct, rather than specific government action, was fatal, given its “undue breath and diffuse nature,” comparing the case explicitly to Tanudjaja.59

The problem with the Tanudjaja and La Rose decisions is that they have the effect of shielding systemic rights infringements from Charter scrutiny. By insisting that either set of claimants needed to tie their challenge to a specific legal instrument, courts fail to take into account that a systemic set of decisions, as was argued in both cases, can lead to egregious rights infringements. As Chalifour, Earle, and MacIntyre compellingly point out, “unless there is a jurisdiction-wide, legislated mandate for GHGs, emission levels will de facto be dictated by a diffuse tapestry of government actions and inactions.”60

These cases shed light on how procedural mechanisms can undermine the development of Charter rights. Although it is open to debate whether these systemic-type claims would be successful at trial, there is no denying that the doctrine of justiciability has had the effect of undermining and ignoring the plaintiffs’ claims. The decisions prevent them from making use of the very evidence that would allow them to convince the court of their allegations. This ultimately prevents the law from developing on the issue to determine the limits of Charter adjudication in this area. Some of the most compelling public interest cases have been built on innovative claims supported by a strong evidentiary record.61 As Kennedy and Sossin have succinctly put it, “there can be no public interest litigation, if there can be no litigation.”62

Breaking Down Assumptions on the Non-Justiciability of Socio-Economic Rights

Justiciability concerns on social and economic rights are typically grounded in the misbelief that economic and social rights are inherently different from civil and political ones. As stated in the introduction, this is based on three assumptions that can be problematized: first, that economic and social rights necessarily involve positive obligations, while civil and political rights do not; second, that it is not legitimate for courts to intrude into the sphere of social and economic policy; and third, that courts or other decision-making bodies lack the capacity to properly adjudicate and enforce social and economic rights.63

Confronting these assumptions helps problematize the foundations of the justiciability doctrine and identify some important implications for procedural justice and the rule of law.64 The first assumption represents a general failure to recognize rights as indivisible. There are social and economic rights dimensions to most civil and political rights claims, just like there are civil and political rights dimensions to social and economic ones. According to Nolan, Porter and Langford, the denial of judicial protection to social and economic rights does not simply exclude one category of rights, but instead, has the effect of excluding a critical dimension of civil and political rights (particularly, equality), as well.65 This is extremely evident in the context of environmental claims; because of the diffuse nature of environmental harm, a number of rights are necessarily implicated, including traditional civil and political rights, such as the right to freedom of expression, freedom of religion, etc.66 Overall, this failure of courts to recognize the indivisibility of rights leads to problematic hierarchies in the practical application of rights.67

Further, the denial of economic and social rights is intimately connected to the question of positive obligations, resulting in both a “systemic preference” for claims that challenge government interference and a “blanket reluctance” to engage with claims that implicate positive dimensions of protection. Invariably, this has the effect of excluding critical issues of systemic injustice and inequality from judicial review.68

The second assumption about intruding into social and economic policy reflects a misunderstanding about the role of the judiciary within the political system. The judiciary’s role is to determine whether government conduct unjustifiably infringes Charter rights; it can perform this function without weighing into the merits of specific policy choices. As Wiseman writes, “the purported need to respect certain policy judgements neither requires nor justifies abandoning the responsibility to protect those values.”69 It is thus unclear why the adjudication of broader and more systemic cases involves an intrusion on the separation of powers that is different than other types of claims. Courts have demonstrated that they can adjudicate Charter violations in areas of social policy when constitutional rights are at issue.70 All of these cases dealt with facets of social or economic policy making. Similarly, climate change risks depriving all citizens the dignity, equality, freedom, and security that many, if not all, Charter claims seek to protect.

Finally, the third assumption about capacity reflects a mis-construal of the nature of the expertise required of courts in adjudicating economic and social rights claims. Rights claimants do not turn to courts for some kind of superior expertise in the policy issues, but rather for an expertise in reviewing government decisions or policies against the requirements of the law. They rely on the exercise of “traditional” judicial competences: hearing from the rights claimant and other witnesses about the particular situation at issue, considering evidence from expert witnesses about the broader policy issues, hearing argument from the parties and, finally, applying the law to the facts in a fair and impartial manner.71

Further, in the context of climate change, one could argue that there is a judicially manageable legal standard to assess Canada’s conduct on climate change. The Paris Agreement, which was ratified by 188 countries (including Canada), sets scientifically driven and quantifiable ‘temperatures thresholds for greenhouse gas emissions’ with the goal of preventing irreversible impacts.72 Scientific reporting, along with our own international targets allow us to evaluate whether Canada’s measures the level of GHG emissions reductions required to avoid crossing that threshold. It is thus within a judge’s capacity to consider the same – a phenomenon that Justice Brown of the Ontario Superior Court ultimately acknowledged in Mathur.73

Taken together, these three assumptions mislead us into thinking about Charter rights as exclusively individual, narrow, and incremental. This oversimplifies the adjudication of rights by creating arbitrary distinctions, such as those between individual and collective rights or between positive and negative obligations. Below, I consider what wicked problem theory may teach us in order to better adapt the Charter to today’s modern pressing risks.


Since the doctrine of justiciability governs what claims can be adjudicated, it plays an important role in extending the application of the Charter to new rights, like environmental ones. However, the doctrine, as it currently exists, is founded on faulty assumptions that mislead us into thinking about Charter rights as exclusively individual, narrow, and incremental.

Such thinking puts some rights at odds with the living tree doctrine, which exists to ensure that the Charter is dynamic and able to respond to current needs. As we approach climate tipping points, Canada (and the world) will continue to experience erratic forest fires, floods, and heat waves.74 These events will disproportionately affect already marginalized groups and particularly Indigenous communities.75 If the Charter is unable to respond to such needs to propel stronger action on the part of our government (one of the largest per capita emitters in the world),76 it is important to question whether our rights protections are sufficient at all.

By contrast, the recognition of broad, interconnected environmental claims through the living tree doctrine offers an opportunity for courts to adapt the Charter to modern needs. As Dustin Klaudt beautifully writes:

Trees are a natural carbon sink. They have the power to remediate atmospheric damage, by storing excess carbon through the photosynthetic process. It appears prophetic that the Charter, rooted with the “living tree” doctrine, should be interpreted to provide curative mechanisms to fight the global warming problem.

The existing Charter human rights protection framework must expand to address this dire reality of modern life and to ensure there is a viable future for the planet.77

To foster this recognition, I contend that the Charter must embrace the ‘wicked’ of ‘wicked problems.’ Embracing the principles outlined in section 1, I argue courts must first, adapt to accept the interconnectedness of different rights (and their justiciability); and second, accept that understanding these problems is iterative, and comes from the very act of devising solutions. These are both discussed in greater detail below.

Embracing the Interconnectedness of Rights

First, although civil liberties and rights under the Charter might have individual components, they have important interconnections that need to be recognized, as part of our shared humanity. This is especially true in the context of climate change, which risks impacting the enjoyment of all human rights. Of course, this is easier said than done.

Since the Charter was designed to protect individual rights, courts seem to encourage potential claimants to narrow their claims in order to parse climate change into smaller, more manageable pieces.78 This is evident within the language of the Charter, which also uses a singular subject when referring to human rights; they are enjoyed by ‘every citizen of Canada,’ ‘everyone,’ ‘every individual,’ ‘any person,’ etc. Even in section one of this paper, as I explored where environmental rights might fit, there is a perpetual degree of awkwardness because the exercise involves reducing environmental problems, which often fail to respect boundaries and are riddled with issues around latency of harm, to a category of rights that necessarily will be unable to fully capture the problem.79 Instead, the adjudication of environmental rights will require courts to step outside of the neat categories laid out in the Charter.80

Yet, the individual nature of rights has also spurred a preference for narrow cases. Broad cases on systemic issues, like on homelessness81 and federal climate policy,82 have been rejected as being “overly broad and diffuse” and thus, not justiciable. However, once again, the very nature of reducing a claim so that it is less broad is problematic for the governance of wicked problems; it necessarily means that courts are only prepared to adjudicate a small piece of the puzzle. While this strategy was successful in overcoming a justiciability challenge in a recent climate case,83 this approach risks leaving the Court with an incomplete understanding of the cumulative impacts that a broader network of interacting laws may have on Charter rights. On this issue, Chalifour et al. has recently stated:

It is simply impractical and unjust for courts to require climate litigants to play “whack-a-mole” in defending their constitutional rights, forcing them to challenge each major project approval or GHG-related decision separately. This approach risks grave injustices given the systemic nature of climate change, the considerable amount of time and resources required to mount a single challenge and the irreversibility of many of the harms at stake.84

Embracing that Problem Understanding Comes from Developing Solutions

Second, a problem is “wicked” when part of understanding the problem comes from developing solutions. There is no definitive statement of the problem and there is no definitive solution. As Rittel and Webber see it, problem understanding and problem resolution are concomitant.85 Key to governing these challenges is the realization that it is a matter of creativity to devise potential solutions and a matter of judgment to determine which should be pursued and implemented.86 Seen in this light, climate change presents an opportunity for the Charter to develop a better understanding of how the law may safeguard environmental ‘rights’ (and the limits of that adjudication); the doctrine of justiciability may prevent the development of the law on such issues.

On this point, Sinha et al. have compellingly argued that it is important justiciability shift towards “a form of public interest justiciability” that does not automatically preclude litigants who advance novel and/or complex Charter claims from having their day in court.87 They encourage instead, a more flexible approach for public interest claims.88 As aforementioned, it seems similar thinking guided Justice Feldman in her dissent in Tanudjaja, where she argued that it was too early to decide whether the circumstances of the case would be special enough for the court to be able to recognize positive rights because such an assessment requires the court to consider the full record of the case.89

The need to move away from strict, procedural rules in the context of environmental claims has been observed in a number of international cases. As US Justice Blackburn asked in an infamous dissent in Sierra Club v Morton, “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?”90 Similarly, in the groundbreaking Urgenda decision, the court emphasized the court’s role in conducting judicial review:

It is an essential feature of the rule of law that the actions of (independent, democratic, legitimised and controlled) … the government and parliament can – and sometimes must – be assessed by an independent court.

[Judicial authority] is based on democratically established legislation… which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities.91

As the world faces increasing climate change, the pressure on courts to respond becomes ever more insistent.92 While judges will surely not have all the answers on how to respond to rights-based issues related to wicked problems, the act of trying itself may be what promulgates the necessary change to have the law evolve.93 In adjudicating these matters, judges can participate in the iterative process of developing solutions to better understand how to provide redress to rightsholders who are affected by government climate inaction. In doing so, Canadian courts may find that the trying itself is what enables a reshaping of the normative landscape.94 Thus, these claims represent key opportunities to develop the remarkably undeveloped law around environmental rights and understand to what extent the Charter can respond to these problems at all.

In Canada, scholars have argued that the constitutional structure and the range of remedial options open to judges allow courts to issue judgments that leave space for the legislature to consider various options and respond in a manner consistent with its broader policy objectives. Hogg and Bushell argue that this promotes a “judicial dialogue” with other branches of government that promotes democracy in allowing aggrieved minorities, whose interests are traditionally overlooked in the legislative process, to have a voice in the democratic debate.95 Seen in this light, courts could play a role in setting minimum standards for GHG emissions, while also leaving room for elected government officials to decide how best to attain those standards; this was, ultimately, the approach taken in Urgenda.


Canadian courts have long struggled with the adjudication of Charter claims pertaining to economic and social rights. Climate litigation cases, alleging violations under sections 7 and 15 are no different. They seek to hold governments accountable to their climate targets and abate increasing climate change in order to lessen extreme weather events, health problems, resource insecurity, unequal burdens, and so forth. Although such ‘environmental rights’ have yet to be recognized in Canadian courts – and are thus perpetually confronted with justiciability concerns – scholars and international courts have acknowledged the viability of such claims. Indeed, it is crucial to break down the assumptions that govern what is justiciable in order to ensure that the doctrine of justiciability does not act as a blunt tool to prevent the very development of the law on such issues. As Kennedy & Sossin have aptly written:

It is often said that Canadian constitutional law is best understood as a living tree. While… this metaphor remains apt, trees often need to be tended in order to thrive. This is particularly true when the tree is young, and before its roots are deep enough so that it can survive harsh weather. In Canada, the Charter[’s]… roots may not be deep enough to weather a storm that could be anything from a constitutional crisis to legislative malaise. Our prime gardeners are our courts. When someone calls for the gardener’s help, the gardener should not be reluctant to come.96

A reimagination of the traditional limits of Charter adjudication is required so that indeed, the gardener (our courts) cannot refuse to adjudicate systemic public interest claims. Without such change, it is unlikely the Charter will be able to adapt to provide redress to the anticipated rights infringements occurring from climate change.

In bringing a new lens of analysis to the justiciability debate, this paper sought to explore what theory about wicked problems could teach us about how to move forward. Just like policymakers realized years ago that environmental issues – and particularly climate change – would require creative solutions outside the confines of rigid, older rules, the legal system will also need to come to this realization in order to properly respond to legal dimensions of such risks. As Horn and Weber write:

If we step back and take a systemic view, we can see that the issue is not whose fault the mess is – the issue is our collective failure to recognize the recurring and inevitable dynamics of the mess.97

To move beyond non-justiciability, this paper explores ‘wicked problem’ theory and what lessons it may offer the adjudication of systemic and complex problems, like climate change. When applying the Charter, courts will need to accept the interconnectedness of different rights (and their justiciability), as well as participate in the iterative process of developing solutions to better understand the problems and how to solve them. As climate change worsens and infringes the enjoyment of our human rights on a largescale, courts will need to adapt the Charter to properly safeguard these rights. An ecological reading of the Charter must inevitably move away from the dichotomies that currently govern the justiciability of novel claims, and instead move towards recognizing the indivisibility of rights, as well as positive and negative obligations. We must drop the assumptions that propel us into individual, narrow, and incremental thinking, and opt instead to move towards a more flexible and creative approach. Rather than ruling novel public interest claims non-justiciable, Canadian courts should welcome the opportunity to protect our living tree and consider new Charter applications. Care must be taken so that the doctrine of justiciability does not prevent our living tree from growing at all. Indeed, its ability to survive the rising pressures of the climate crisis will depend on it.


1 Benjamin Ewing & Douglas Kysar, “Prods and Pleas: Limited Government in an Era of Unlimited Harm” (2011) 121 Yale L J 350, who explain that the “sources of… injuries [related to climate change] are either numerous and dispersed, or so unpredictable and evasive, as to be unregulable in any traditional fashion.” They also state that “the potential impact of harms is frequently both catastrophic and resistant to confident characterization.”
2 See Intergovernmental Panel on Climate Change (IPCC), “Climate Change 2007: Impacts, Adaptation and Vulnerability” (IPCC Working Group II, 2007), which predicts with high confidence that projected trends of climate change will increase the number of people suffering from death, disease, hunger, and injury across the planet. See also IPCC, “Climate Change – The IPCC Scientific Assessment” (IPCC Working Group I, 1990); Hans Joachim Schellnhuber et al, Avoiding Dangerous Climate Change (Cambridge University Press, 2006).
3 See generally Jacqueline Peel & Hari M Osofsky, “A Rights Turn in Climate Change Litigation?” (2018) 7:1 Transnatl Environ Law 37 at 46. See also Margaux Hall & David Weiss, “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law” (2012) 37:2 Yale J Int Law 309 at 311, who write that this “rights turn” evolved out of the growing recognition of the ways in which climate change implicates human rights is significant “because it provides a tangible legal framework for analyzing state actions that lead to climate change.”
4 See e.g. “Association quĂ©bĂ©coise de lutte contre la pollution atmosphĂ©rique c Volkswagen Group Canada Inc”, 2018 QCCS 174; “Environnement Jeunesse c Procureur gĂ©nĂ©ral du Canada”, 2019 QCCS 2885; “La Rose v Canada”, 2020 FC 1008 [La Rose], “Mathur v Ontario”, 2020 ONSC 6918 [Mathur]; “Misdzi Yikh v Canada”, 2020 FC 1059 [Misdzi Yikh]. See also Hugh S Wilkins, “The Justiciability of Climate Change: A Comparison of US and Canadian Approaches” (2011) 34:2 Dalhousie Law J 529 at 535 [Wilkins], who discusses how climate litigation cases can be split into two broad categories, including a first that challenge a law or activity that fostered pollution beyond reasonable health limits, and a second that target the effectiveness of domestic climate change policy and/or failure to meet international targets.
5 In Canada, all four cases (La Rose, Misdzi Yikh, ENJEU, Mathur) were confronted with motions to strike. Appeals of first instance decisions are currently ongoing in all cases. This is true globally, as well. For instance, across youth-focussed climate litigation, of the 23 cases that have had a first instance decision rendered, 18 were deemed not justiciable, although note appeals are ongoing in some jurisdictions. See Larissa Parker et al, “When the Kids Put Climate Change on Trial Taking Stock of Youth-Focused Climate Litigation around the World” (forthcoming) Journal of Human Rights and the Environment.
6 See Bally Hundal, “Judicial Review and Justiciability” (2019) 4050 CanLIIDocs.
7 See e.g. Lorne Sossin, Boundaries of judicial review: the law of justiciability in Canada (Thomson Reuters Canada Limited, 2012) at 7; Gerard Kennedy & Lorne Sossin, “Justiciability, Access to Justice and Summary Procedures in Public Interest Litigation” in Cheryl Milne & Kent Roach, eds, Public Interest Litigation in Canada(Lexis Nexis, 2019) [Kennedy & Sossin]; Vasuda Sinha, Lorne Sossin & Jenna Meguid, "Charter Litigation, Social and Economic Rights & Civil Procedure” (2017) 26 Journal of Law and Social Policy 43 [Sinha, Sossin, Meguid].
8 Socio-economic rights can be defined broadly as including rights to access water, housing, sanitation, food, social assistance, healthcare, education, and so forth. See Katharine G Young, Constituting Economic and Social Rights (Oxford: Oxford University Press, 2012) at 1. These rights can be contrasted to ‘civil and political’ rights. The debate about whether social and economic rights can or should be adjudicated and enforced by courts or other bodies has been ongoing since the 1960s, when the rights in the Universal Declaration of Human Rights were divided into two categories: “economic, social and cultural rights” and “civil and political rights”. Though both sets of rights were affirmed to be indivisible and interdependent in the Vienna Declaration (12 July 1993, A/CONF.157/23), commentators have continued to distinguish them by asserting that economic, social, and cultural rights are not justiciable.
9 See Aoife Nolan, Bruce Porter, and Malcolm Langford, “The Justiciability of Social and Economic Rights: an Updated Appraisal” (2009) CHRGJ Working Paper No. 15 [Nolan, Porter & Langford]. See also Amartya Sen, “Development as Freedom” (New York: Alfred A Knopf, 1999) at 8.
10 See generally James W Nickel, “Rethinking indivisibility: Towards a theory of supporting relations between human rights” (2008) 30 Hum Rts Q 984; Ernst‐Ulrich Petersmann, “On ‘Indivisibility’ of Human Rights” (2003) 14:2 European Journal of International Law 381.
11 See generally Daniel J Whelan, “Indivisible Human Rights” (University of Pennsylvania Press, 2011). See however James W Nickel, “Rethinking indivisibility: Towards a theory of supporting relations between human rights” (2008) 30 Hum Rts Q 984, who highlights that the strength of supporting relations between rights varies with quality of implementation: “Rights with low quality implementation provide little support to other rights. This is why early UN formulations of indivisibility said that it occurs when the rights in question are fully realized.”
12 See generally Peter Stott, “How climate change affects extreme weather events” (2016) 352: 6293 Science 1517. There are a wide number of peer-reviewed studies looking at weather extremes around the world. See e.g. Renate Anna Irma Wilcke et al, “The extremely warm summer of 2018 in Sweden–set in a historical context” (2020) 11:4 Earth System Dynamics 1107 (on the heatwaves in Sweden), Salvatore Pascale et al, “Increasing risk of another Cape Town “Day Zero” drought in the 21st century” (2020) 117:47 Proceedings of the National Academy of Sciences 29495 (on the droughts in South Africa); Sjoukje Philip et al, “Attributing the 2017 Bangladesh floods from meteorological and hydrological perspectives” (2019) 23:3 Hydrology and Earth System Sciences 1409 (on flooding in Bangladesh).
13 See generally Robin Mearns & Andrew Norton, eds, “Social dimensions of climate change: Equity and vulnerability in a warming world” (World Bank Publications, 2009); Houria Djoudi et al, “Beyond dichotomies: Gender and intersecting inequalities in climate change studies” (2016) 45:3 Ambio 248.
14 Richard J Lazarus, “Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future” (2009) 94 Cornell L Rev 1153 [Lazarus] at 1159.
15 Ibid.
16 JB Ruhl, “Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State” (1996) 45 Duke L J 849 at 860.
17 Ibid.
18 JM Ottino, “Complex Systems” (2003) 49 AICHEJ 292 at 293.
19 See Lorne Sossin, “The Rule of Law and the Justiciability of Prerogative Powers: A Comment on Black v. ChrĂ©tien" (2001) 47 McGill LJ 435 [Sossin] (for concerns on the rule of law); Kennedy & Sossin, supra note 7 (for concerns on procedural justice). See also the Oslo District Court decision in Greenpeace Nordic Association et al v Norway Ministry of Petroleum and Energy, which discusses the importance of not ruling environmental cases as non-justiciable if the alleged wrongdoer is the government.
20 Henry Weaver & Douglas A Kysar, “Courting disaster: climate change and the adjudication of catastrophe” (2017) 93 Notre Dame L Rev 295 at 356 [Weaver & Kysar] [emphasis added].
21 See Charles Fried, “Right and Wrong” (Cambridge, Mass: Harvard University Press, 1978) at 110: “A positive right is a claim to something – a share of material goods, or some particular good like the attention of a lawyer or a doctor or perhaps the claim to a result like health or enlightenment – while a negative right is a right that something not be done to one, that some particular imposition be withheld. Positive rights are inevitably asserted to scarce goods, and consequently scarcity implies a limit to the claim. Negative rights, however, the rights not to be interfered with in forbidden ways, do not appear to have such natural, such inevitable limitation.”
22 Horst Rittel & Melvin Webber, “Dilemmas in a General Theory of Planning” (1973) 4 Policy Sciences 159 [Rittel & Webber] at 167-170. See also Kate Crowley & Brian W Head, “The enduring challenge of ‘wicked problems’: revisiting Rittel and Webber” (2017) 50 Policy Sciences 539 [Crowley & Head].
23 Rittel & Webber, supra note 22 at 167-169. Note, ‘tame problems’ refer to finite problems that do not change over time and have definable elements with verifiable solutions. See John Alford & Brian W Head, “Wicked and less wicked problems: a typology and a contingency framework” (2017) 3:2 Policy and Society at 5.
24 Rittel and Webber identify ten characteristics, but other authors have simplified the list. See Jeff Conklin, “Dialogue Mapping: Building Shared Understanding of Wicked Problems” (Chichester, UK: Wiley, 2006) at 7–8.
25 Karen Christensen, “Building Shared Understanding of Wicked Problems” (Winter 2009) Rotman 16.
26 See e.g. Patrick Huntjens & Katharina Nachbar, “Climate Change as a Threat Multiplier for Human Disaster and Conflict” (2015) 4 Policy and Governance Recommendations for Advancing Climate Security.
27 See infra note 3.
28 See Lynda M Collins, “An Ecologically Literate Reading of the Canadian Charter of Rights and Freedoms” (2009) 26 Windsor Rev Legal Soc Issues 7 at 8. See also Dustin W Klaudt, “Can Canada's ‘Living Tree’ Constitution and Lessons from Foreign Climate Litigation Seed Climate Justice and Remedy Climate Change?” (2018) 31:3 Journal of Environmental Law and Practice 185, for an overview of the living tree doctrine in Canada and its application to the recognition of ‘environmental rights’: “… our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
29 Although note that several cases have recognized environmental protection as an important value in Canadian society: Ontario v Canadian Pacific Ltd, [1995] 2 SCR 1031 at para 55; 114957 Canada LtĂ©e (Spraytech, SociĂ©tĂ© d'arrosage) v Hudson (Town), 2 SCR 74 at para 1; R v Hydro-QuĂ©bec, [1997] 3 SCR 213 at para 85. See also Lauren Worstman, “‘Greening’ the Charter: Section 7 and the Right to a Healthy Environment” (2019) 28 Dal J of L Studies 245 at 252-255, who point out that a number of cases, which failed due to procedural and factual deficiencies, seem to have implicitly accepted the applicability of section 7 in the environmental context. In particular, see Energy Probe v Canada (Attorney General), (1989), 58 DLR (4th) 513 (Ont CA), where Carthy JA, writing for the Court, held that the plaintiffs’ allegations, if proven, could “demonstrate a present risk to them and others and a threat, or perceived threat, to security of the person.” Note however that the case was later heard and dismissed since the plaintiffs had not proven a sufficient link between the impugned law and an increased risk to health.
30 See e.g. Nathalie J Chalifour, “Environmental Justice and the Charter: Do Environmental Injustices Infringe Sections 7 and 15 of the Charter?” (2015) 28:1 J Env L Pol 89 [Chalifour]; David Boyd, The Environmental Rights Revolution (UBC Press, 2012); David Wu, “Embedding Environmental Rights in Section 7 of the Canadian Charter: Resolving the Tension between the Need for Precaution and the need for Harm” (2015) 33 NJCL 191; David R. Boyd, “No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada” (2011) 57:1 McGill LJ 81. See also Dayna Nadine Scott, “The Environment, Federalism, and the Charter” in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford Handbooks, 2017), for an account of how sections 7 and 15 could apply to the environmental inequality in Aamjiwnaang First Nation (Chemical Valley, Ontario).
31 See Nathalie J Chalifour & Jessica Earle, “Feeling the Heat: Climate Litigation under the Canadian Charter's Right to Life, Liberty, and Security of the Person” (2017) 42 Vt L Rev 689 [Chalifour & Earle].
32 See infra note 4.
33 See Peter W Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR (2d) 195 at 198, citing Reference re s. 94(2) of Motor Vehicle Act (British Columbia), [1985] 2 SCR 486.
34 Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 139.
35 Chaoulli v Quebec (Attorney General), 2005 SCC 35 [Chaoulli]. See also R v Morgentaler, [1988] 1 SCR 30, where Justice Estey (concurring) held that the state-imposed delays in access to abortion created an additional risk to health and therefore constituted a violation of the right to security of the person.
36 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 [PHS].
37 Carter v Canada (Attorney General), 2015 SCC 5 [Carter].
38 Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307 at para. 49. See also Carter, supra note 37 at para 62.
39 Godbout v Longueuil (City), [1997] 3 SCR 844.
40 Ibid at para 64; see also New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46 at para 60.
41 Singh v Minister of Employment and Immigration, [1985] 1 SCR 177 at 207.
42 See generally SĂ©bastien Duyck, SĂ©bastien Jodoin & Alyssa Johl, eds, Routledge Handbook of Human Rights and Climate Governance, 1st ed, (Routledge 2017); Neil Adger, Jon Barnett, Katrina Brown, Nadine Marshall & Karen O’Brien, “Cultural dimensions of climate change impacts and adaptation” (2013) 3:2 Nature Climate Change 112.
43 Québec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 SCR 464 at para 41 [Alliance].
44 See generally Alliance, supra note 43; Québec v A, 2013 SCC 5; Centrale des syndicats du Québec v Québec (Attorney General), 2018 SCC 18; Withler v Canada (Attorney General), 2011 SCC 12; Kahkewistahaw First Nation v Taypotat, 2015 SCC 30.
45 See e.g. Jennifer Koshan, “Redressing the Harms of Government (In) Action: A Section 7 Versus Section 15 Charter Showdown” (2013) 22 Const F 31 at 40. See also See Peter W Hogg, “The Brilliant Career of Section 7 of the Charter” (2012), 58 SCLR (2d) 195 for a discussion about the increasingly expansive and progressive interpretations of section 7. See also Chalifour, supra note 30 at 4, who has acknowledged the interpretation of section 15 has been more conservative in recent years.
46 See e.g. Valerie A Brown, John Alfred Harris & Jacqueline Y. Russell, eds, “Tackling wicked problems through the transdisciplinary imagination” (Earthscan, 2010);
47 Note that both the La Rose and the Misdzi Yikh cases, involving broad, right-based challenges against federal climate policy, were struck down under the doctrine of justiciability because they were too broad. See La Rose, supra note 4; Misdzi Yikh, supra note 4. See by contrast, Mathur, supra note 4, where a much narrower case that challenged the Ontario government’s decision to lower GHG targets was deemed justiciable by the Ontario Superior Court.
48 See Bally Hundal, “Judicial Review and Justiciability” (2019) 4050 CanLIIDocs.
49 Lorne Sossin, Boundaries of judicial review: the law of justiciability in Canada (Thomson Reuters Canada Limited, 2012) at 7 [Sossin].
50 Kennedy & Sossin, supra note 7 at 126-127.
51 Inura Fernando, “Litigating climate change-of politics and political questions: A comparative analysis of justiciability of climate change in the United States and Canada” (2018) 49 Victoria U Wellington L Rev 315 at 331-332.
52 Sossin, supra note 49 at 162.
53 Doucet-Boudreau v Nova Scotia (Department of Education) 2003 SCC 62 at paras 33-4, citing McLachlin J (as she then was) in New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319 at 389.
54 Friends of the Earth v Canada (Governor in Council), 2008 FC 1183 at para 25. See also Turp v Canada (Justice), 2012 FC 898, where the Court ruled that the government’s prerogative to withdraw from the Kyoto Protocol was not justiciable.
55 See Tanudjaja v Attorney General (Canada), 2013 ONSC 1878 [affirmed 2014 ONCA 852].
56 Gosselin v Québec (Attorney General), 2002 SCC 84.
57 Kennedy & Sossin, supra note 7 at 134-135.
58 La Rose, supra note 4.
59 Ibid at paras 44-46.
60 Nathalie Chalifour, Jessica Earle & Laura MacIntyre, “Detrimental deference” The Canadian Bar Association (18 Nov 2020) [Chalifour et al].
61 See e.g. Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69.
62 Kennedy & Sossin, supra note 7 at 119.
63 Nolan, Porter & Langford, supra note 9 at 8.
64 See generally Albie Sachs, “Social and economic rights: can they be made justiciable” (2000) 53 SMUL Rev 1381; Martha Jackman, “From national standards to justiciable rights: Enforcing international social and economic guarantees through Charter of Rights review” (1999) 14 JL & Soc. Pol'y 69; Malcolm Langford, “The justiciability of social rights: From practice to theory” (2008) 3 Social rights jurisprudence: emerging trends in international and comparative law 43; Nolan, Porter & Langford, supra note 9; Jeanne M Woods, “Justiciable social rights as a critique of the liberal paradigm” (2003) 38 Tex Int’l LJ 763.
65 Martha Jackman, “Whats Wrong with So’cial and Economic Rights?” (2000) 11 National Journal of Constitutional Law 235 at 5 [Jackman].
66 See Erin Daly & James R May, “Indivisibility of Human and Environmental Rights” Elgar Encyclopedia of Environmental Law (Edward Elgar Publishing Limited, 2019) 171; Erin Daly, “Environmental Human Rights: Paradigm of Indivisibility” (2011) Widener Law School Legal Studies Research Paper 11-05.
67 See Nolan, Porter & Langford, supra note 9 at 7. See also Petersmann, supra note 10; Scott Leckie, “Another step towards indivisibility: Identifying the key features of violations of economic, social and cultural rights” (1998) 20:1 Human Rights Quarterly 81. See generally Daniel J Whelan, “Interdependent, indivisible and interrelated human rights: A political and historical investigation” (University of Denver, 2006), for a historical investigation on the indivisibility of Charter rights. See by contrast, Dominique ClĂ©ment, “Human rights or social justice? The problem of rights inflation” (2018) 22:2 The International Journal of Human Rights 155, who argues that there is increasing appropriation of rights-talk to frame any and all grievances is undermining attempts to successfully address systemic social problems.
68 Nolan, Porter & Langford, supra note 9 at 14. See also Jackman, supra note 65.
69 David Wiseman, “The Charter and Poverty: Beyond Injusticiability” (2001) 51:4 UTLJ 425.
70 See e.g. Carter, supra note 37; PHS, supra note 36; Chaoulli, supra note 35. See also Canada (Attorney General) v Bedford, 2013 SCC 72.
71 Nolan, Porter & Langford, supra note 9.
72 UNFCCC, Decision 1/CP.21, Adoption of the Paris Agreement, UN Doc. FCCC/CP/2015/10/Add.1.
73 Chalifour et al, supra note 60. This allows us to move beyond the ruling in Tanudjaja, supra note 55, cited in La Rose, supra note 4; Misdzi Yikh, supra note 4.
74 Robert McSweeney, “Explainer: Nine ‘tipping points’ that could be triggered by climate change” Carbon Brief (10 Feb 2020); Heather Mallick, “We’ve reached the tipping point on climate change” The Star (16 Apr 2019); Government of Canada, “Canada’s climate is warming twice as fast as global average” Environment and Climate Change News release (2 Apr 2019).
75 See Kyle Whyte, “Too late for indigenous climate justice: Ecological and relational tipping points” (2020) 11:1 Wiley Interdisciplinary Reviews: Climate Change at e603. See also Randall Abate & Elizabeth Ann Kronk, eds, Climate change and indigenous peoples: The search for legal remedies. (Edward Elgar Publishing, 2013); Hari M Osofsky, “Inuit Petition as a Bridge-Beyond Dialectics of Climate Change and Indigenous Peoples' Rights” (2006) 31 Am Indian L Rev 675.
76 Josh Gabbatiss, “The Carbon Brief Profile: Canada” CarbonBrief Country Profiles (8 Oct 2019); Mia Rabson, “Canada produces more greenhouse gas emissions than any other G20 country, new report says” The Star (14 Nov 2018); Hannah Ritchie, “Where in the world do people emit the most CO2” Our World in Data (4 Oct 2019); Carol Linnitt, “The Faulty Logic Behind the Argument That Canada’s Emissions Are a ‘Drop in the Bucket’” The Narwhal (16 Apr 2015).
77 Klaudt, supra note 28.
78 Chalifour, supra note 60.
79 See Robert L Rabin, “Environmental liability and the tort system” (1987) 24 Hous L Rev 27.
80 Dinah Shelton, “Human rights, environmental rights, and the right to environment” (1991) 28 Stan J Int'l L 103; Richard D Hiskes & Richard P Hiskes, The human right to a green future: Environmental rights and intergenerational justice (Cambridge University Press, 2009).
81 Tanudjaja, supra note 55.
82 La Rose, supra note 4.
83 See Mathur, supra note 4.
84 Chalifour et al, supra note 60.
85 Rittel and Webber, supra note 22.
86 Karen Christensen, “Building Shared Understanding of Wicked Problems” (Winter 2009) Rotman 16.
87 Sinha, Sossin & Meguid, supra note 7.
88 Ibid at 51, where they continue to say that this is because Charter litigation is properly understood to have at least two purposes: (i) to allow the courts to adjudicate the particular claims advanced by the claimant or applicant; and (ii) to serve a wider purpose, in defining and enforcing the principle of constitutionality of government action.
89 Tanudjaja, supra note 55 at para 49, where Feldman J.A. stressed, “a claim should not be struck out at the pleadings stage unless it has no reasonable prospect of success, taking the facts pleaded to be true.”
90 Sierra Club v Morton 405 US 727 (1972) at 755-756.
91 Urgenda Foundation v The State of the Netherlands, Case No. C/09/456689 13-1396 at para 4.97. This case marked a historic development in international jurisprudence on climate change because it recognized that courts have the power to enforce state compliance with international treaties against a national government.
92 Weaver & Kysar, supra note 20 at 356.
93 Ibid.
94 See Urgenda, supra note 91. See also Weaver & Kysar, supra note 20 at 356.
95 Peter W Hogg & Allison A Bushell, “The Charter Dialogue: Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All) (1997) 35:1 Osgoode Hall LJ 76; Peter W Hogg, Allison A Bushell Thornton & Wade K Wright, “Charter Dialogue Revisited – or ‘Much Ado About Metaphors’” (2007) 45 Osgoode Hall LJ 1; Kent Roach, “Dialogic Judicial Review and its Critics” (2004) 23 SCLR (2d) 49; Kent Roach, “Constitutional, Remedial, and International Dialogues About Rights: The Canadian Experience” (2005) 40 Tex Int’l LJ 537.
96 Kennedy & Sossin, supra note 7 at 145.
97 Robert E Horn and Robert P Weber, “New Tools for Resolving Wicked Problems: Mess Mapping and Resolution Mapping Processes” (San Francisco: Strategy Kinetics LLC, 2007). See also Min Basadur, “Managing the Creative Process in Organizations,” in MJ Runco, ed, “Problem Finding, Problem Solving and Creativity” (Norwood, NJ: Ablex, 1994) 237.