FILE PHOTO - Protesters gather in Vancouver on Jan. 8, 2019, to show solidarity with Wet’suwet’en hereditary chiefs opposing the Coastal GasLink pipeline.

Image Credit: Michael Ruffolo

For the first time in Canadian history, the Federal Court of Appeal has agreed to a trial to determine whether the Canadian government has infringed on the rights of an Indigenous group by failing to take sufficient climate action and a Penticton lawyer is on the case.

Richard Overstall helped two Wet’suwet’en House groups file their 2020 claim stating the Canadian government is failing to reduce greenhouse gas emissions causing climate change.

The group, along with 15 Canadian youth, claim future generations will disproportionately pay the price for global warming. They also say that, by failing to proactively avoid climate change, the governments’ inaction infringes on their charter rights, specifically, their right to life, liberty, and security of person.

The two Wet’suwet’en House groups represented by Overstall reside in northwestern BC, where Overstall used to live and worked as a researcher on the 1997 Delgamuukw case, a historic aboriginal title court case that involved the Wet’suwet’en. While living there, several of his Wet’suwet’en friends sought his legal counsel in protecting their future generations, he says.

The Wet’suwet’en groups are constituted under their own law and not under the colonial Indian Act, Overstall told iNFOnews.ca.

Usually, Indigenous cases are brought to court through band councils, under the Indian Act. The Wet’suwet’en House groups are instead doing it through their traditional chiefs, known as Dini Ze’, and under their own Indigenous laws.

“It’s the first time that an Indigenous group has been able to bring this case, a climate case, based on their own laws (to the Federal Court of Appeal),” Overstall said.

As Indigenous communities, the Wet’suwet’en groups have a special affiliation with their past and future generations, Overstall said. They are also tied to territories in which the local salmon populations and forest environments have already been impacted by climate change.

Overstall described the recent Federal Court of Appeal verdict as a huge success.

For the first time in Canadian history, a court agreed that a claim under Section 7 of the Charter, that states “everyone has the right to life, liberty and security of the person”, can require the government to take positive action.

“If a government action or a government law is infringing on someone's right to life, liberty and security of person, the court can order them to stop. The courts have not, to date, required government to take what they call positive action, which in this case will be to require the country to stop generating huge amounts of greenhouse gases,” Overstall said. “So that's a huge victory.”

After three years of contention over whether the claim was a political or judicial issue, the recent agreement on a trial comes as a long-awaited sigh of relief to Overstall and his clients. It is also a step in the right direction for climate activism, he said.

“In this case, we're actually targeting the government action that permits the emission of gases.”

Overstall and the Wet’suwet’en House groups are demanding that Canada uphold the climate action standards it agreed to in the 2015 Paris Agreement.

Now, it will be a 60-day wait period to see if the decision is appealed to the Supreme Court of Canada. If the appeal isn’t given leave, Overstall and his clients will organize for a trial.

“We've got to wait and see what Canada decides to do,” he said.

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