1. Causes of Action

6. HURDLES AND CHALLENGES

The innovative methods adopted by parties are accompanied by a myriad of challenges.

A prominent hurdle is that the remedies and actions available do not address the underlying harm to the environment. This can be seen in jurisdictions such as:

• India, see below, where the applicant sought compensation for his deceased daughter who died of suffocation resulting from leakage of gas in Debasish Banerjee v West Bengal Pollution Control Board & Ors. Although the applicant was awarded compensation, there was little challenge or change to the general safety and compliance procedures of the Greater Calcutta Gas Supply Corporation Limited.
• China, where the approach to corporate climate litigation is shaped by the application of criminal laws and the interpretations and guidelines issued by the Supreme People's Court. However, no criminal cases based on carbon emission data fraud have been reported or successfully prosecuted.

With respect to UNDRIP, although duties to consult with Indigenous communities can lead to positive engagement, these efforts can be impeded by inadequate government engagement. There are challenges in jurisdictions:

• Canada, see below, demonstrates that whilst successful challenges on UNDRIP are possible, they lead to an additional burden on indigenous groups. For indigenous groups to exercise these rights, they must go to the courts to 'prove' the existence of specific rights, to articulate their nature, and to determine their scope. The litigation is very costly, and it can be challenging to assemble acceptable evidence. Canadian courts have acknowledged the existence of Aboriginal title since the 1973 case of Calder v British Columbia, but yet only one Indigenous nation, the Tsilhqot'in, has successfully obtained a declaration of Aboriginal title. For Canada to fully implement UNDRIP, it would need to make significant acknowledgement of Aboriginal title.