15 youth challenging federal government’s lack of climate action will get day in court, marking end of a historic year for climate litigation

For 15 Canadian youth, spread across the country, an unusual fight binds them together. In a David versus Goliath confrontation, they have taken the federal government to court over its alleged failure to act responsibly on the climate crisis, putting their future in jeopardy.

Like the biblical king, they have carried the weight of many on their shoulders, challenging the country’s government no less, to fight for what they believe. 

In October 2020, the federal court dismissed the case, ruling there was no reasonable chance for success largely because actions to address the allegations could not be applied by the judiciary. Elected bodies have to enact policies and rules; the courts simply help enforce them. 

But the youth refused to go away quietly. Now, four years since the original case was filed, after an application to the federal court of appeal, its recent decision paves the way for an upcoming trial.

“They definitely feel the weight of the delays that have happened. As young people interfacing with the legal system, really for the first time, I think that delay and the length of time it takes can be frustrating and disappointing,” Andrea Rogers, senior litigation attorney at Our Children’s Trust, supporting the 15 youth, told The Pointer. “So it's nice for them to be able to see that there is a pathway for them to finally get to court.”

The case, known as La Rose v. His Majesty the King, was originally filed in 2019 arguing the government led by Prime Minister Justin Trudeau was violating the Charter rights of young Canadians by failing to protect them from the adverse consequences of climate change. The claims were made under Section 7 and Section 15 of the Charter of Rights and Freedoms which grants 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 violated and that the climate crisis disproportionately impacts young people, who will have to suffer the consequences of failed policy and reckless decision making.

After a motion to strike was filed by the federal government, the courts dismissed the case, stating it was “plain and obvious” it would fail, making a full trial pointless. 

The group of youth immediately filed an appeal and were heard in court in February. Despite the initial ruling that the case was not one to be handled by the courts, in the four passing years, the youth watched as climate catastrophes continued across the country with little cohesive response by the federal government. 

In the spring of 2019, parts of eastern Ontario, Quebec and New Brunswick were devastated by flooding as the Canadian Armed Forces were deployed to fill and move sandbags. In the summer of 2021, a scorching heat wave settled in across much of western North America, classified as a 1-in-a-1000-year event, made 150 times more likely by human-caused changes to the climate. The heat dome, which lasted from late June to mid-July, resulted in the highest temperature ever recorded in Canada, 49.6 degrees Celsius. The heat wave has been classified as the deadliest weather event in Canadian history, resulting in the death of over 800 residents in western provinces and 600 in the United States. A study in the journal Nature Climate Change found that if global temperature increases by a little more than half-a-degree Celsius from what was recorded this past October, similar heat waves could occur once every decade. 

Ahead of the fall of 2022, what started as a tropical wave off the coast of west Africa, grew into a deadly hurricane that tore through Puerto Rico, Turks and Caicos and Bermuda, before descending on Nova Scotia. It was the most intense tropical or post-tropical cyclone to hit Canada and the costliest storm on record, causing $660 million in insured damages.

Nearly half of Canada’s population was covered in a thick haze of smoke during the peak forest fire season this summer.

(Joel Wittnebel/The Pointer)

Then, this past spring, wildfires began burning in Alberta in March, and as the season drew to a close in October, there were upwards of 750 fires burning across the province. In British Columbia, the Northwest Territories, Northern Ontario and Quebec, and the Maritimes, a total of 18.5 million hectares had been in flames. By mid-July, over half of the country was covered in a thick haze, with wildfire smoke from Canada moving as far away as Sweden.

Rogers said the effects of climate change will only get worse, while the federal government has failed to meet every one of its targets—committed to in ten separate agreements that have all been broken. “It's almost 2024… and the emissions curve hasn't been downward in order to protect the rights of children. So delay is not in anybody's interest in this case.” 

Five scathing audits released last month from Canada’s Environment Commissioner detailed that the nation’s Emissions Reduction Plan is failing. Despite a statement released by Environment and Climate Change Canada claiming the nation is on track to meet its interim target in 2026, the reports found Canada will not meet its 2030 emission target of a 40 percent reduction below 2005 levels by 2030, missing the mark by almost 50 megatonnes of carbon dioxide equivalent emissions. 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.

Still, the federal government was fully armed in court, arguing the claim by youth had no place before a judge as it was overly broad. Justice Michael Manson initially dismissed the case in 2020 claiming it was not within the realm of the court’s power to make a decision.

“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 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.”

Following the appeal hearing in February, Reidar Mogerman, legal counsel for the plaintiffs, told the press that the climate crisis is undeniable, and claiming one branch of democracy does not have the ability to deal with the problem is just tossing around responsibility, which is how nothing gets done.

“I'm going to call it an unarguable problem. And it's unarguable because everybody agrees that it's happening,” he 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 recent appeal decision was welcomed by the youth who have spent the better part of four years fighting for climate justice.

(Robin Loznak/Our Children’s Trust)

After four years of frustration, hope emerged this month when a decision handed down by the federal court of appeal overruled Justice Manson’s characterization of the claim. 

“I do not agree, respectfully, that the claims are not justiciable simply because the question of climate change is complex or because the legislation reflects a political choice on how to address the problem,” Justice Donald J. Rennie, wrote in his December 13 decision. “While the legislation may be controversial, this does not efface the fact that the debate has been crystallized into law; legislative choices have been made.”

He said Justice Manson made an error in mischaracterizing the claims as challenges to policy. Rather, he emphasized that the applicants link the Section 7 claim directly to the failure on the part of Canada to meet its Nationally Determined Contributions (NDC) ratified by Parliament in order to achieve the Paris Agreement. He determined the plaintiffs are not telling Canada how to meet these goals, but the Agreement signed onto by the government provides legally defined, objective standards against which Charter claims can be assessed.

While the decision serves as a huge win for the youth applicants and environmental advocates more broadly, Justice Rennie did not fully agree with every argument the youth made and stated the claim would have to be amended in order to be successful. 

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. Justice Manson initially ruled this argument is too broad. Justice Rennie sided with Manson on this account, stating his fellow judge “understood the jurisprudence with respect to both motions to strike and the public trust doctrine and applied it correctly”. 

“Measuring the youth appellants’ public trust claims against the existing case law, Manson J. identified the claims as resting on an entirely non-existent cause of action and accordingly determined that the claims had no reasonable prospect of success,” Justice Rennie wrote. “I agree with the judge’s reasons.”

The Court of Appeal also upheld the initial decision to strike the claims made under Section 15 of the Charter. While there is some degree of international consensus on the unequivocal impacts of climate change on younger generations — including a recent report from the United Nations Committee on the Rights of the Child urging states to take immediate action on climate change as it challenges children’s rights to life, survival and development — Justice Rennie noted in his recent decision that as Canadian law currently stands, intergenerational equity is not within the scope of Section 15. This means the youth cannot challenge the government for consequences that will impact them in the future. 

“I understand the youth appellants’ argument that, as they have no vote or no voice in these decisions, the reach of section 15 ought to be extended,” he wrote. “This, however, would be an unprecedented application of section 15, and not the kind of gradual, incremental change by which the law evolves.”

Rogers said she was initially disappointed by this part of the decision, as a lot of assumptions were made, and with the overwhelming evidence of harm (being witnessed and felt monthly) she truly believes the claim could be successful.

“I think if the Court were to hear the evidence, they would understand how young people are being disproportionately impacted today. This is not some kind of future injury. Pediatricians say that today, climate change is the strongest driver of children's health,” she explained. 

Despite this one aspect of the appeal decision curtailing a significant part of the overall claim, she emphasized the big picture.

“So I think at the end of the day, what's important is these young people getting their claims heard at trial,” Rogers said. “And that's what the (appeal) court did.”

The case is also novel in bringing forward the potential of a “positive rights claims”, meaning the government has to protect their rights to life, liberty and security of person. Traditionally, the Charter has been interpreted as imposing negative rights on the government—the government cannot pass a law or policy that deprives its citizens of Section 7 rights. Canadian law does not currently establish protection of positive rights, but this could change if the case succeeds and becomes precedent. 

Rogers said it’s time for the courts to evolve. Relying on outdated precedents, established when current realities were not considered, only prevents the legal system from carrying out its fundamental role—protecting citizens.

Justice Rennie’s decision suggests cases regarding climate change could amount to positive rights claims. 

“Climate change’s current and potential effects are widespread and grave, they include loss of land and culture, food insecurity, injury and death. In the GGPPA References the Supreme Court noted that climate change is an existential challenge, a threat of the highest order to the country, and to the future of humanity which cannot be ignored. If these do not constitute special circumstances, it is hard to conceive that any such circumstances could ever exist,” he wrote, adding that a final decision would be made by a judge at trial. 

“The argument is novel, but it is not doomed to fail.”

The decision from the court of appeal came near the end of a historic year for climate litigation. Youth, environmental advocates and community groups are taking to the courts to assert their right to safety — with Bill S-5 legislating, for the first time, the right to a healthy environment in the Canadian Environmental Protection Act — and to protect Earth for future generations. 

Spread of climate litigation as represented in the United Nations Environment Programme’s 2017, 2020 and 2022 Litigation Reports.

(UNEP)

There has been a dramatic rise in the number of cases forcing governments and corporations to court over climate justice, according to a report from the United Nations Environment Programme and the Sabin Centre for Climate Change Law at Columbia University. Emerging cases build legal precedent for those that follow.

“That's how law works. As law continues to build upon itself one decision after another. And sometimes it's two steps forward, and three steps back. And sometimes it's three steps forward, and two steps back,” Rogers said. “And getting the decision allowing [them] to access their courts was huge.”

Since the publication of the first Global Climate Litigation Review Status Report in 2017, climate litigation has almost tripled, from 884 cases to 2,180 in 2022.

The large majority of the climate litigation cases captured by the joint study were in the United States (70 percent in 2022). But the proportion of cases from outside the US is increasing (26 percent in 2017 to 30 percent in 2022). Overall, countries outside the US have seen a 186 percent increase in cases in the five years between the original report and this year’s update. 

Rogers emphasized that traditionally most cases related to climate change have been dismissed on the grounds of justiciability, meaning they are not matters within the jurisdiction of the court.

“I think once children are allowed to access their courts and present their arguments in court, I think we're going to start to see some real substantive remedies that are protecting their rights,” she said. “2023 was a watershed year in terms of children being allowed to access their courts.”

Seven youth in Ontario had that opportunity, challenging the Doug Ford PC government over its weakening of provincial emissions reduction targets. While the case was dismissed in April the decision provided a crucial precedent for cases to come.

The Ontario Superior Court Judge agreed with many of the arguments made by the youth and their lawyers from Ecojustice, such as the severity of the climate crisis, the flimsy nature of the PCs’ emissions reductions targets, the reliability of the Intergovernmental Panel on Climate Change (IPCC) reports and the use of untrustworthy evidence from a known climate change denier by the Ontario government. She also rejected the provincial government’s claim that emissions targets used in the case were “meaningless”. 

“On the one hand, it obviously is frustrating to see that the Ontario government continues to take us in the wrong direction when it comes to the climate crisis, and that it appears that the courts are not at the stage where they are going to do anything to change that,” Alex Neufeldt, one of the young plaintiffs, told The Pointer following the release of the provincial decision. “On the other hand, we did get some pretty good, I call them ‘golden nuggets’, hidden treasures within the decision that actually do, in my opinion, set a positive precedent for future cases like this.”

In 2020, 16 young people from Montana challenged the state’s Environmental Policy Act for a provision known as the MEPA Limitation forbidding state agencies from considering the impacts of greenhouse gases or climate change when conducting environmental reviews. On June 12, Held v. Montana, as the case became known, was the first climate related constitutional law case in the United States to reach a trial. More history was made in August when the District Court Judge ruled in favour of the plaintiffs, that limitations on considering environmental impacts when deciding oil and gas permits violated the right to a healthy environment enshrined in Montana's constitution. 

While youth are leading much of the climate litigation movement, there have been other successes in the courts this year. Ecojustice represented Équiterre, a non-profit environmental organization; the Sierra Club Canada Foundation; and Mi’gmawe’l Tplu’taqnn Incorporated (MTI), a non profit organization created by the Mi’gmag in the maritime provinces, in a lawsuit against the federal government for its decision to approve the Bay du Nord offshore drilling project. The project consists of several oil discoveries in the Flemish Pass Basin in the Atlantic Ocean, approximately 500 kilometres northeast off the shores of St. John’s. The lawsuit identified two challenges: the matter that an approval was given without consideration of the devastating downstream environmental impacts of the extraction; and that the project was approved without fulfilling the constitutional duty to consult local Indigenous groups. The case was heard in March and was still awaiting a decision when the European oil companies involved announced in June they were putting the project on hold for three years. 

Rogers said the biggest challenge ahead right now is adapting the La Rose case for trial next year. In the meantime, Our Children’s Trust is also a part of seven ongoing legal challenges in the United States, as well as challenges in India, Pakistan, Mexico and Uganda. 

“It's really irrefutable that the government causing climate change is not protective of children's fundamental rights. And there's no expert that would tell you that it is,” she said. “So I think once that evidence comes out, we're really going to start seeing a shift and really seeing strong judicial remedies shaping how climate policy will be going forward.”

Email: [email protected]

Twitter: @rachelnadia_

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