15 youth push Charter case against Ottawa as global environmental movement expands legal action
Fifteen youth plaintiffs argued at the federal court of appeal Tuesday and Wednesday, pushing their case against the Canadian government which was initially dismissed by the courts.
La Rose v. His Majesty the King argues the government led by Prime Minister Justin Trudeau is violating the Charter rights of young Canadians by failing to protect them from the potentially dangerous effects of climate change. It was originally brought forward in 2019, when it was dismissed by the judge who concluded it was “plain and obvious” that the case would fail, making a full trial pointless.
The 15 youth plaintiffs, who reside in various parts of the country, took the federal government to court for its alleged failure to act appropriately on the climate crisis. They made their claims under section 7 and 15 of the Charter of Rights and Freedoms which grants all Canadians the right to life, liberty and security, “without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The youth argue these rights are being threatened and the climate crisis disproportionately affects youth, who will have to suffer the consequences of failed policies and reckless behaviour.
In October 2020, the federal court dismissed the case on two key grounds: Justiciability, referring to whether the matter at hand falls within the jurisdiction of the courts; and the overly broad nature of the complaint.
Regarding jurisdiction, the federal court concluded the claims made by the plaintiffs are so political in nature that the courts do not have the responsibility or the capacity to deal with them.
“The Plaintiffs’ position fails on the basis that there are some questions that are so political that the Courts are incapable or unsuited to deal with them,” Justice Michael Manson wrote in his decision. “While this is not to say a government policy or network of government programs cannot be subject to Charter review, in my view, the Plaintiffs’ approach of alleging an overly broad and unquantifiable number of actions and inactions on the part of the Defendants does not meet this threshold requirement and effectively attempts to subject a holistic policy response to climate change to Charter review.”
The plaintiffs argued that a notion used in climate justice action around the world, known as the Public Trust Doctrine, laying out the position that natural resources must be protected by governments in the public interest, should be applied in the case. Manson ruled this argument, and the vague doctrine that underpins it, are too broad.
The youth went to the federal court of appeal Tuesday where their lawyers argued that while the case is novel and complex, the answers are very clear. They argued the federal government is an actor whose actions are governed by the rights of individuals under the Canadian Constitution. They made a core claim that the original ruling by Manson failed to recognize the alleged breaches are the cumulative aggregation of conduct that has led to the climate crisis, not an individual act. It is evident that, overall, the federal government has contributed to significant increases, or failure to decrease, greenhouse gas emissions, the lawyers argued.
Canada ranks tenth on the list of the world’s top GHG emitters, but is actually the highest emitter on a per capita basis, sending almost 20 tonnes of carbon emissions per capita into the atmosphere in 2019. Canada has never reached any of its own emissions reductions targets, despite setting nine since 1990. The nation’s most recent targets set the goal of 40 to 45 percent emissions reductions below 2005 levels by 2030. Between 2005 and 2020 emissions only declined 9.3 percent. Meanwhile, the government under Trudeau continues to pour money into pipelines and recently approved the massive Bay du Nord offshore drilling project, the first remote deepwater operation in Canada.
Two European parent companies are spearheading the unprecedented extraction of oil from a Canadian offshore site. Norwegian state-owned giant, Equinor (formerly Statoil), under its Canadian subsidiary, is the main proponent and British Petroleum, through its Canadian division, is also a major partner.
They now estimate almost one billion barrels of oil will be drawn from the underwater reserves, more than double what was originally reported.
Environment Minister Steven Guilbeault approved the Bay du Nord offshore operation in April, less than a week after the Intergovernmental Panel on Climate Change warned in a widely featured report that greenlighting new oil projects amounted to what a United Nations chief called "moral and economic madness."
Canadian environmental group Ecojuctice, which uses legal action to protect the planet, said: “Minister Guilbeault insists Bay du Nord will be required to meet 137 conditions — including a condition that the project be net-zero on greenhouse gas emissions by 2050. This target, however, fails to account for the massive downstream emissions the project will generate. Downstream emissions are released when the oil & gas is burned.
“Ecojustice, on behalf of Équiterre, Sierra Club Canada Foundation and Mi’gmawe’l Tplu’taqnn Inc, filed a lawsuit against Minister Guilbeault’s approval of the project in Federal Court on May 6, 2022. The groups say the project’s approval clashes with Canada’s international obligations and the urgent call to reduce global emissions as the reality of the climate emergency becomes more distressing with every severe weather event.
“Industry and government rhetoric around ‘clean oil’ blatantly ignores the fact that the process of extracting oil only accounts for 10 per cent of the emissions from an oil project, with the other 90 per cent coming when the oil is burned. Recent estimates suggest that over its lifetime, Bay du Nord is projected to produce between 300 million to one billion barrels of oil (it is now close to one billion), which could in turn generate about 400 million tonnes of carbon — that’s the equivalent of the emissions from 7-10 million cars per year.”
These types of seemingly absurd policy decisions by the federal government, which has blatantly misled the Canadian public about the consequences of projects such as Bay du Nord, are the focus of the legal action by the 15 youth.
(Government of Canada)
“Today with respect to climate change, the Government of Canada made it crystal clear which side of history they want to be on, the side that denies young people in future generations their basic human rights,” Andrea Rodgers, Senior Litigation Attorney at Our Children’s Trust, said in a press conference following the recent proceedings for the appeal. “In court, you heard the government acknowledge that climate change is real, measurable and documented. But they told the court it should use caution and take an incremental approach even when the people of Canada are facing an existential crisis.”
“I'm going to call it an unarguable problem. And it's unarguable because everybody agrees that it's happening,” Reidar Mogerman, one of the lawyers on the case, said. “Yet, there is this problem of forcing the children to find a different place so that ultimately nothing happens. And I think that is just feeding the frustration.”
The respondents representing the Canadian government were adamant that the La Rose case had no justiciability, meaning it is out of the jurisdiction of the courts. They argued the plaintiffs are not challenging the constitutionality of any law, rather they are making a broad claim that the federal government is contributing to catastrophic climate change.
“It's weird because it's those legal protections, those constitutional protections—where do they stand?” questioned Albert Jerôme, one of the youth plaintiffs. “If it's too big and too political and too complicated, then where does that leave us?”
“So this idea that we should perhaps litigate climate change, and a variety of individual lawsuits that would target individual pieces of legislation or individual decisions, well, it really doesn't make sense because it's the accumulated effect of every single one of those pieces of legislation and every single one of those measures, that creates the big responsibility that the federal government has in causing climate change, and in causing all those harms that violate our Charter rights.”
People around the world are standing up for their legal rights in the midst of the climate crisis. Canada has had two landmark cases, the La Rose case and the Mathur case, which seek to hold governments accountable for climate change.
(Robin Loznak/Our Children’s Trust)
One of the Justices hearing the appeal asked the respondents for the Canadian government what they would say to one of the children when they are agreeing that the environment matters but then claim the courts have no jurisdiction. The respondents argued that it is within the hands of the executive and legislative branches of government.
“To hear the lack of urgency to hear, well just come take it to your federal government, as if we haven't tried that, as if they are not the perpetrator that we are seeing in the legal domain,” Lauren Wright, another of the youth plaintiffs, began, “To see them try and play hot potato with it, pass it off (as) ‘No, this is legislative, this is executive’, when we have pursued those in different avenues, that's not what we're doing right now. We are pursuing the legal branch and the legal basis because we have tried everything else.”
The second argument made by the federal government lawyers dealt with incrementalism. They asserted that change at the judicial level should come in small pieces that build on top of one another and that the judicial system is not for big, defining policy altering shifts.
“I think when they use that word, it's interesting,” Chris Tollefson, one of the legal representatives for the plaintiffs, said. “They have this idea that the courts really are only there to kind of tweak a little bit at the edges in a very slow way.”
He said the courts have often in the past made big, society altering decisions and because they were grounded in fact, they were successful. Change must start somewhere, he said.
“Now is not the time for caution and incrementalism,” Rodgers added. “Now is the time for all parts of the federal government including its court to ensure that climate justice will be achieved.”
There was a sense in the room that change was inevitable, and that the arguments of the plaintiffs, like those being made around the world, will soon be understood by various courts.
“For this appeal, a win is the court recognizing that it has a role to play, and allowing us to try to hold the government accountable,” Mogerman said. “And if it doesn't happen in this case, it's going to happen in another case, because these plaintiffs aren't going away.”
While the La Rose case is novel in Canada, youth have increasingly been levelling up their demand that governments protect their rights, and those of future generations by protecting the environment. Youth began provocatively taking to the streets to protest climate action — a move ignited by 20-year old Swedish activist Greta Thunberg — in 2018. Since then, the movement has only grown and climate strikes can be found in practically every corner of the globe. Adding to the movement internationally, a select few have decided to ameliorate the issue of climate change by getting the courts involved.
Swedish activist Greta Thunberg sparked a movement of young people standing up for the climate. She was in Vancouver when 15 Canadian youth launched their own litigation against the federal government.
(Robin Loznak/Our Children’s Trust)
Internationally, similar cases have unfolded with successful verdicts. In 2019 the Supreme Court of Netherlands ordered the government to cut the nation’s GHG outputs by 25 percent under 1990 levels by the end of 2020. A year earlier, the Supreme Court of Justice in Colombia ruled in favour of 25 youth plaintiffs who argued their rights to life, water, food and a healthy environment were threatened by increasing deforestation in the Amazon.
On Wednesday, the respondents representing the Canadian government argued the crucial difference between these cases and the La Rose case is that those international cases were rooted in particular aspects of law. The plaintiffs' case, Joseph Cheng argued, is not rooted in any particular piece of legislation as was seen in the Netherlands where GHG outputs were challenged. Rather, La Rose is too broadly challenging the Canadian government’s entire response to the climate crisis.
There is another case, this one in Ontario, involving youth and alleged government inaction on the climate crisis. The Mathur case challenges the provincial government’s Cap and Trade Cancellation Act. In 2016 under former Ontario premier Kathleen Wynne, Ontario passed the Climate Change Mitigation and Low-Carbon Economy Act which committed to reducing GHG emissions by 15 percent below 1990 levels by 2020, 37 percent by 2030 and 80 percent by 2050. While the current Doug Ford PC government’s Cap and Trade Cancellation Act, which replaces the previous Act, still focuses on emissions reductions, it is far less aggressive than its predecessor. Under the new Act, emissions are compared to 2005 levels, when emissions were 13 percent higher than in 1990. The PCs set the target of 30 percent reductions below 2005 levels by 2030, making the overall reduction target far lower than the original Act.
Mathur is challenging this under Sections 7 and 15 of the Charter claiming the weakening of emissions targets negatively impacted the life, liberty and security of Canadians and disproportionately affected youth.
The youth plaintiffs in Mathur had a significant victory in the ongoing case when the Ontario Superior Court of Justice in 2020 struck down a motion by the provincial government to dismiss the legal action.
The court ruled there was “justiciable” grounds to move forward, as a specific piece of legislation was at the heart of the complaint.
In assessing the chance of a legal victory in the Mathur case, on the grounds that Charter rights were being violated, the court referred to the Supreme Court of Canada’s acknowledgement in a “non-Charter context” that “certain forms and degrees of environmental pollution can directly or indirectly, sooner or later, seriously harm or endanger human life and human health”, citing cases against private sector polluters.
The Mathur decision to reject the dismissal motion also stated the previously cited case law “suggests that right to life is engaged in this Application, as the Applicants argue that Ontario’s actions in repealing the Climate Change Act and setting an inadequate Target increase the risk of death of Ontario’s youth and future generations.”
The ruling stated, “at this stage of the proceedings, it is not apparent that the Application cannot succeed. That being said, the Applicants will have a high evidentiary burden (to prove the Ontario government’s lowering of emissions targets will cause future harms) at the merit hearing. This still does not suggest that the Applicants cannot succeed.”
The ruling also found that the Ontario Superior Court of Justice, “is the appropriate venue to hear this Charter-based constitutional challenge.”
In La Rose the plaintiffs also challenged the government (in Ottawa) under Sections 7 and 15 of the Charter, but the argument made by the respondents was again that Mathur challenged a specific piece of legislation.
Regardless of the outcomes of the cases, La Rose represents a broader trend internationally of residents taking governments to court for a lack of action, or wrongful action, to protect the environment.
The federal government is under fire for more than one alleged wrongful decision on a project that is almost certainly environmentally harmful. Despite designating the Highway 413 project for an Impact Assessment under the Impact Assessment Agency (IAA), a similar designation was not given to the Bradford Bypass, a highway that, while of smaller scale, will have similarly devastating consequences for the surrounding watershed, species at risk and broader ecosystems. The complainants are an amalgamation of environmental groups and community organizations who have brought a case before the federal court arguing Environment Minister Guilbeault failed to properly consider the Bradford Bypass for an impact assessment to properly determine if any federal legislation has been violated in the process of pushing the highway project ahead, which the Ford PCs have done with very little consultation and without a recent environmental assessment. The application was heard by the federal court on November 2 and is still awaiting a decision.
The proposed route for the Bradford Bypass cuts through the Holland Marsh, home to many vital wetlands and sensitive habitats.
(Map from the Rescue Lake Simcoe Coalition)
“The Impact Assessment Agency’s designation request tool is an important safety valve that gives local communities a say in making sure that potentially harmful projects do not slip through the cracks,” Ecojustice lawyer Ian Miron, said in a press release. “Rather than considering public concerns and the project’s potential environmental effects, the Minister took a very narrow view of his power to trigger a federal Impact Assessment for the Bradford Bypass.”
The deepwater Bay du Nord project has also received extensive public backlash due to the potentially devastating effects that would result from an oil spill, as well as the hypocrisy of the federal government and Minister Guilbeault, who disturbingly claimed it is a transitional project to ensure continued fossil fuel energy will be produced until renewables and other clean, green alternative sources can meet energy demand. Bay du Nord could produce oil until 2060, long after scientists have warned it will be too late to stop oil production. The global research community and the United Nations have stated no new oil projects should move forward.
The International Renewable Energy Agency “estimates that 90 percent of the world's electricity can and should come from renewable energy by 2050,” yet Guilbeault calls the project he approved, which could produce almost a billion barrels of oil out to 2060, a transitional plan.
A federal Impact Assessment was completed, but the project was given the go ahead anyway. A team of environmental groups, led by Ecojustice, sued the federal government for failure to adhere to environmental legislation when approving Bay du Nord. The case was heard in May and will have a decision in the coming months.
The plaintiffs and their legal representatives in the La Rose case agree that legal action should not have to be taken, especially by youth, to receive government protection; however, Mogerman argued that in this case, the youth are the right ones to be taking action.
“I think that the courts have a wonderful opportunity here, to make a new story for what the world could be like,” Raine Robinson, one of the plaintiffs, said. “If governments around the world decided that, ‘wait a second, we should do something about this issue instead of talking about it, or saying we'll do something about it in 2030, or do something about it in 2050’. What if we did something about it today?”
“It's not the first time the government's done something wrong. And it is a great opportunity for them to start doing something right.”
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