What does it mean to have Standing?

Standing can be understood as a ‘gatekeeper’ tool. Awarding standing to participants in a hearing can determine whether a hearing should be held at all, and if so, who should be heard. ¹ In law, standing is also divided into two main types. The first is standing ‘as of right’ which may refer to a party in the matter or to someone who is considered “directly affected” under relevant legislation. The second is public interest standing which applies in cases in which there are no individual claimants.

If we granted rights to nature, we could enable both types of standing. One option is to legislate that a group or individual will have automatic standing to represent the rights of nature in a hearing. The second is to ensure that the common law test for public interest standing properly recognizes the rights of nature and its representatives.

The Test for Public Interest Standing

The common law test for public interest standing is set out in the Supreme Court of Canada (“SCC”) decision of Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society. In this decision, the SCC holds that courts must consider three factors when granting public interest standing: ²

1. Whether the case raises a serious justiciable issue;
2. Whether the party bringing the case has a real stake in the proceedings or is engaged with the issues that it raises; and
3. Whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.

The SCC reiterates that these factors should be considered purposefully and flexibly. Public interest standing should also be considered in light of any effect on more directly affected persons which requires some degree of balancing. Read more about Balancing Rights in the context of the Rights of Nature here.

Imagining Standing for Nature

If nature were awarded rights, would elements of nature be considered individual claimants or would the test for public interest standing still need to be met to get these rights before a court or tribunal? For example, the Magpie River in Quebec received formal recognition of its legal personhood and rights via joint resolution of the regional municipality of Minganie and the Innu Council of Ekuanitshit. To read more about the Magpie River and legal personhood more generally check out our sections on Emerging Legal Tools & Balancing Rights. As part of its legal personhood, the Magpie River was granted nine rights – one of which is the right to sue. This provides the Magpie River with the same opportunity for standing as any other legal person. If one of the other eight rights awarded to the Magpie River are breached, its representatives will not need to undergo the test for standing prior to being able to enforce these rights in court.

Even without a full grant of legal personhood, we could grant certain aspects of nature the right to sue on its own behalf. For example, skip to our section on Reece v Edmonton below to consider what a grant of standing would have done for Lucy the elephant. Similarly, we discuss some more unique ways to award standing in our section Emerging Legal Approaches – Implementation of Rights of Nature: Representatives and Standing.

Standing is also considered differently if a matter is set to appear before a court or before an administrative body. We will consider both, starting with the traditional court system.

Standing Before the Courts

The first step in the SCC’s test for public interest standing is whether the case raises a serious justiciable issue.

If a matter is ‘justiciable’, it is “appropriate for judicial determination” or, in other words, is an issue that the courts can rule on. ³ Often, environmental matters are not considered justiciable because they are deemed to impose a positive obligation on the government (requiring the government to act in a certain way) rather than a negative obligation (to stop an ongoing action). ⁴ One way to determine if a matter is justiciable is to ask whether it is “a question that raised legal issues suitable for the court’s consideration, such as the interpretation of a statute or an agreement?”. ⁵ Even if nature were to be awarded rights of its own, a matter would still need to be considered justiciable before it could appear before a court. However, it is likely that this would be more easily accomplished if these rights were established.

Another potential roadblock to standing is the public nuisance rule which “clearly bars standing where private citizens seek to enforce environmental legislation against non-government defendants.” ⁶ This often looks like a denial of standing to an environmental group seeking to force government action. For example, in the British Columbia decision of Society for the Preservation of the Englishman River Estuary v Nanaimo (District of), 1999 CanLii 6691 (BCSC), the Court denied standing to the environmental group Society for the Preservation of the Englishman River Estuary as they were attempting to force the province to undergo an environmental assessment of a municipal dam. The Court found that the environmental assessment legislation at issue included its own remedial code and that there was nothing in the Act “to suggest that the legislature intended that public interest groups would be actively involved in enforcing the legislation.” ⁷ In light of a rights of nature discussion, it is interesting to consider whether this outcome would be different if the Englishman River had its own rights which could be enforced in front of the Court.

An exception to the idea that the government is the appropriate person to bring a matter of public nuisance before the courts would be if there is a “serious and justiciable issue for which the Attorney General is not an appropriate plaintiff.” ⁸

Reece v Edmonton: Do elephants have standing?

 In the following section we focus on what standing would look like for one aspect of nature – animals. This may look different if we were enforcing the rights of a river or mountain ecosystem but serves as an example of how nature having rights of its own rather than those contingent on humans could impact the outcome of a court decision. To do this, we will look at the Alberta decision of Reece v Edmonton (City).

This matter was initiated on behalf of Lucy, the sole elephant living at the City of Edmonton Valley Zoo. Two animal welfare groups Zoocheck and PETA, alongside an individual applicant from Sherwood Park, alleged that the municipal zoo was in breach of the Animal Protection Act in their treatment of Lucy. ⁹ In particular, the applicants argued that Lucy was living in facilities detrimental to her health. ¹⁰ While they first submitted their complaint to the Edmonton Humane Society, the organization charged with enforcing the Animal Protection Act, they followed up in the Court after the humane society declined to intervene.

In their Originating Notice, the applicants sought a declaration that the City was in violation of section 2 of the Animal Protection Act; however, the City responded with a motion to strike. ¹¹ The chambers judge struck the originating application finding that it constituted an abuse of process but did not address the issue of public interest standing in any detail. ¹² The Applicants appealed this decision up to the Alberta Court of Appeal (“ABCA”). Below, we will highlight both the majority and dissenting judgments in this decision.

The Majority Decision

 The majority of the ABCA held that the chambers judge was correct in finding that the proceedings were an abuse of process, thereby dismissing the appeal. ¹³

 While the majority did not consider whether the appellants were entitled to standing, they did consider the role of the Animal Protection Act as it relates to the protection and rights of animals. Specifically, they found that the Animal Protection Act “restricts and controls the activities of persons; it does not create “rights” in animals or people that impose corresponding duties on others.” ¹⁴ They also specifically stated that they would not consider the issue of whether animals should be extended legal rights because that issue had not been raised by the parties. ¹⁵

The Dissent

In her dissent Chief Justice Fraser took her time in considering the issue of standing in novel cases. Justice Fraser began with the recognition that “[a]nimals, including Lucy, cannot commence lawsuits on their own to protect themselves. They must rely on humans to give voice to the truly voiceless. Thus, courts should take a generous, not impoverished, approach to the grant of public interest standing for those attempting to enforce the restrictive animal rights that do exist.” ¹⁶

In light of this, the Chief Justice argued that the Court should not have found an abuse of process without first considering the issue of standing, finding that the two concepts are connected and “must be considered as part and parcel of an overall analysis.” ¹⁷ In her view, the first step must be a determination of public interest standing and, if there is no standing, it could be deemed an abuse of process to proceed. ¹⁸ She goes on to find that it “is a central role of the courts to assure the legality of government action” which meant that the central issue before the chambers judge was properly whether “public interest should be granted to the appellants to challenge the City’s alleged unlawful conduct in its treatment of Lucy?” ¹⁹

Applying the three-part test for public interest standing as derived by the SCC, Justice Fraser finds that the evidence suggests “a prima facie case that the City has, by a long-standing pattern of behaviour in the way in which it has housed, sheltered, exercised and fed Lucy at the Valley Zoo, caused or aggravated her equally long-standing health problems.” ²⁰ This, in her view, meets the first step in the test – that the case raises a serious justiciable issue. She moves on to find that the appellants have demonstrated a real stake or engagement with the issues raised by this case finding that they are groups “dedicated to the protection of animals”. ²¹ Finally, she finds that the action is a reasonable and effective means of bringing the issue before the court, holding that “the City has not demonstrated, nor could it reasonably do so, that there is a private litigant who would challenge the City’s alleged non-compliance with the law and seek the related remedy of a civil declaration. No animal, including Lucy, the one directly affected here, can start an action on its own.” ²² This last statement is important to consider. If we were to award animals legal rights – would they be able to bring their own actions in front of the court? Who would represent them in doing so? And, would this bar others from public interest standing to protect their interests?

The final step in this case was a denial of leave to appeal at the Supreme Court of Canada.

Tyler Totten relates this decision to the dissenting opinion of Justice Douglas in the United States Supreme Court decision Sierra Club v Morton. ²³ This dissent endorsed ideas from Christopher Stone’s article “Should trees have standing?” suggesting that the “critical question of standing would be simplified if the courts recognized the entity in question as the litigant whose interests were being advanced by a representative.” ²⁴ In other words, if animals had rights would their representatives automatically have standing?

Standing Before Administrative Agencies

Administrative (or public) agencies can be identified by a number of characteristics including that they: ²⁵

• are established by government but not part of a government department;
• have been assigned responsibility to perform a public function;
• are accountable to government;
• have some degree of autonomy; and
• are generally appointed by the government.

We will focus primarily on regulatory or adjudicative agencies which are those that licence, make rules, and/or oversee a sector including independent, quasi-judicial decisions. ²⁶  We highlight a few main types below: