31 October 2006

The Kyoto Protocol Compliance Committee and the Canadian Environment Minister have today been informed that Canada is violating the Kyoto Protocol and the UN Framework Convention on Climate Change (UNFCCC), thus legally requiring action under the Canadian Environmental Protection Act (CEPA) to control greenhouse gas (GHG) emissions.

According to last month's report by the Canadian Commissioner of the Environment and Sustainable Development, the gap between Canada's GHG emissions and its Kyoto commitments is growing: Canada's GHG emissions in 2004 were 26.6% above 1990 levels, resulting in a gap of 34.6% from Canada's Kyoto target of a 6% reduction by 2008-2012. Per capita, Canadians are amongst the highest emitters in the world, with the production and consumption of fossil fuels accounting for 80% of these emissions.

In an opinion by international climate change lawyer Dr. Roda Verheyen, submitted today to the Compliance Committee and the Canadian Environment Minister by Friends of the Earth Canada and Friends of the Earth International, with the support of the Climate Justice Programme, she points out that:

1. Canada is violating the UNFCCC in 3 respects, by not having:

   1. established measures that would lead to a reversal of the long-term trend of increasing GHG emissions in order to stabilize atmospheric GHG concentrations, contrary to Article 4.2(a) and (b), in conjunction with Article 2;
   2. adopted and implemented measures to adapt to the impacts of climate change, contrary to Article 4.1(b); and
   3. submitted its 4th National Communication, contrary to Articles 12 and 4, and Decision 4/CP.8;

2. Canada is violating the Kyoto Protocol in 2 respects, by not having:

   1. made demonstrable progress by 2005 in achieving its 6% reduction target for 2008-2012, as required by Article 3.2; and
   2. submitted its report on demonstrable progress, contrary to Article 7.2 and 7.3, with Article 3.2 and Decision 22/CP.7; and
3. Canada is likely to violate Article 3.1 of the Kyoto Protocol by not achieving its 6% reduction target during the 2008-2012 period.

Canada's emissions of GHGs, their contribution to air pollution as defined in CEPA, and Dr. Verheyen's findings, indicate that the three triggers for the legal duties to control international air pollution under section 166 of CEPA are met. Under that provision, if the Environment and Foreign Ministers have reason to believe that a substance released from a source in Canada into the air creates, or may reasonably be anticipated to contribute to, air pollution in a country other than Canada; or, to air pollution that violates, or is likely to violate, an international agreement binding on Canada in relation to the prevention, control or correction of pollution, then the Environment Minister has a duty to act to control the releases.

The opinion has been sent to the Compliance Committee, pursuant to Section VIII, paragraph 4, of the Procedures and mechanisms relating to compliance under the Kyoto Protocol, providing relevant information to the Committee's facilitative branch in respect of the submission made to the Committee in May 2006 by South Africa, on behalf of the G77 countries and China.

This submission, by developing countries to hold developed countries to account on Kyoto, is the first compliance action under the Protocol's compliance mechanism. It requests the Committee to investigate the failure (as at 25th May 2006) of 15 Parties, including Canada, to have provided their required reports demonstrating the progress they have made in achieving their Kyoto targets. The submission also states that "[t]he facilitative branch should also ascertain whether continued non-compliance with the requirement to provide timely information . . . constitutes early warning of potential non-compliance by these Parties with" their Kyoto targets.

As at 30th October, according to the UNFCCC Secretariat website, Canada, Italy, Luxembourg, Poland, Russia and Ukraine had still not submitted their reports on demonstrable progress.

More information on the deliberations of the Compliance Committee to date in respect of the G77 and China submission can be found in Annex VI of the Committee"s annual report, the Advance Version of which is dated 22 September 2006 and is available here.