Indigenous Environmental Rights and Sustainable Development: Lessons From Totonicapán in Guatemala

Climate justice activists are increasingly looking to litigation to produce the policy changes that have eluded them in the political process. Without a codified right to a clean environment, litigants in jurisdictions like Canada must use a human rights framework to advance their cause. Recent successes in Charter class actions suggest that it is now possible to pursue constitutional damages for climate change harms. As Canadian advocates join with their international counterparts in deploying a litigation strategy, Canada's robust class action procedure may be a useful addition in the pursuit of collective climate justice. This article proceeds in four parts. First and by way of background, I summarize the types and extent of climate change litigation in Canada and internationally. Second, I discuss Canadian class actions advancing constitutional claims, which have recently surged after two decades of limited use. In Part III, I argue that a climate change action founded on a breach of s. 7 of the Charter would meet the test for certification of a class action. Finally, in Part IV I discuss the comparative advantages and disadvantages of using the class action mechanism to combat climate injustice.