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On July 12, 2020 a special virtual hearing was held to argue whether the case brought by seven young people1 against the Ontario government alleging that the watered down provincial climate targets in 2018 violated the Charter rights to life, liberty and security of the person should be dismissed.

The case challenges the decision of the Ontario government to pass the Cap and Trade Cancellation Act in 2018 that repealed the greenhouse gas reduction targets for 2020, 2030, and 2050 and replaced it with a weaker 2030 target. The basis of the claim is that the government’s reduction of the emission targets is a contravention of Section 7 of the Canadian Charter of Rights and Freedoms. The claim seeks to have Ontario revise its climate change policy to adopt a new science-based target for greenhouse gas reductions. The allegations brought include failing to adopt the reductions “will lead to widespread illness and death” impacting young people and future generation.

The province is taking the position that (i) the court is not the appropriate forum to address the climate crisis, (ii) that climate impacts are so distant into the future that they cannot be understood, and (iii) that the young people bringing the claim are unable to represent the interests of future generations.

The province in filing the motion to dismiss stated that the allegations are incapable of being proven and that Canada’s Charter of Rights and Freedoms does not guarantee a right to a specific greenhouse gas target.

In response to the Province’s allegations the Ontario youths claimed:

  • the courts have the power to address arguments about whether the Ontario government’s failure to fight climate change violates Canadians’ rights under the Charter of Rights and Freedoms;
  • there is significant scientific evidence linking climate change with future harms, including sources from the Ontario government and the IPCC22;
  • the provincial government has a legal duty to address the climate crisis; and,
  • the case cannot and should not be delayed. The court should allow the young people to represent the interests of other Ontarians and future generations on the basis that it would be unjust to burden future generations with an unwinnable fight against climate change.

It is notable that this is not the first case being brought against the government claiming a charter right for protection of the environment. The case of La Rose et al. v Her Majesty the Queen (“La Rose case”) alleges that Canada’s youth are already being harmed by climate change, and that the federal government is violating their rights to life, liberty and security of the person under section 7 of the Charter and failing to protect essential public trust resources. The claim also alleges that the conduct of the federal government violates their right to equality under section 15 of the Charter.

The La Rose case seek declarations that the government unjustifiably infringed their rights — and the rights of all present and future children and youth in Canada. In addition to claiming a violation of Charter rights the La Rose case alleges that Canada has a common law and constitutional obligation to protect the integrity of common natural resources that are fundamental to sustaining human life and liberties. The Plaintiffs seek a declaration that the defendants are failing to discharge their public trust obligations with respect to these resources. The Plaintiffs seek an order from the Court requiring that the government develop and implement an enforceable Climate Recovery Plan consistent with Canada’s fair share of the global carbon budget necessary to achieve greenhouse gas emissions.

On February 7, 2020 the government filed a Statement of Defence in the La Rose case claiming that while climate change is real addressing climate change is “of central importance to the Canada government” and as a result the 15 youths should not be given public interest standing on the basis that the courts are not the appropriate branch of government to deal with such matters.

In its Statement of Defence, the government of Canada states:

Climate change is real, measurable and documented. It is not a distant problem, but one that is happening now and that is having very real consequences on people’s lives. Its impacts will get more significant over time… Notwithstanding its global nature, climate change is having a particularly significant impact in Canada… Changes in climate are increasingly exacerbating the impacts of other stressors on natural systems in Canada and on the well-being of Canadians… While climate change is a global phenomenon, it has significant and particular impacts on Canada and Canadians.

There have been numerous cases that Siskinds LLP have previously blogged about on climate change lawsuits against all levels of government throughout the world. For example, the Quebec Superior Court recently denied a proposal class action lawsuit relating to climate change brought by ENvironnement JEUnesse (“ENJEU”)3. In this case, the Quebec Court did find that the questions relating to government inaction on climate change are justiciable leaving it open to a properly formed class or individual to proceed.

On October 9, 2019 the Alaska Supreme Court heard arguments in Sinnok v. Alaska alleging that the State of Alaska’s climate and energy policies violated their rights under the Alaska constitution to a stable climate system. This case was brought by 16 individuals ranging in age from 7 to 22 years of age. The case was dismissed by an Anchorage Superior Court Judge on the basis that the claims presented non-justiciable political questions.

In the case of Juliana v United States, 21 Americans ranging in age from 11 to 22 filed a claim (Our Children’s Trust) initially in the United States District Court for the District of Oregon in 2015 arguing a fundamental right to live in a world with a stable climate system. The Climate Kids case is based on the legal principle grounded in the public trust doctrine – arguing that the climate should be held in public trust for the benefit of present and future generations. On June 4, 2019 the plaintiffs appeared before the U.S. Court of Appeals for the Ninth Circuit in Oregon.

In the case of Urgenda Foundation v The State of Netherlands the Supreme Court of the Netherlands, upheld lower court decisions in 2015 and 2018 requiring that the national government to “reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.”

After hearing scientific evidence from the Intergovernmental Panel on Climate Change (“IPCC”) reports the Dutch Court concluded “a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life.” and found that “the state has a duty to protect against this real threat.” The Court of Appeal confirmed that the State (i.e. the Kingdom of the Netherlands) has a duty of care to its citizens pursuant to Articles 2 and 8 of the European Convention on Human Rights (“ECHR”) to reduce greenhouse gases by at least 25 percent, relative to the 1990 emission level. All of the defences raised by the State were dismissed

In confirming the existence of a duty of care by the State, the Court of Appeal stated that: “the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life.”

The Court of Appeal also found that it ”believes that it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life. As has been considered above by the Court, it follows from Articles 2 and 8 ECHR that the State has a duty to protect against this real threat.”

On December 20, 2019, the Supreme Court of the Netherlands confirmed that the government’s current goal of a 20% reduction by 2020, violated Articles 2 and 8 of the European Convention on Human Rights, a human rights treaty to which 47 nations are parties, including the Netherlands.

Currently there are approximately 110 countries that recognize a right to a healthy environment in its constitution. Quebec is the only province in Canada that recognizes a right to a healthy environment in its human rights legislation while Ontario, Quebec and three territories recognize the right in environmental legislation. The seven remaining provinces of British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador have not legally recognized right to live in a healthy environment.

1 CV-19-00631637-0000, Sophia Mathur, et al v Her Majesty the Queen in Right of Ontario

2 Intergovernmental Panel on Climate Change, www.ipcc.ch. The IPCC was created to provide policymakers with regular scientific assessments on climate change, its implications and potential future risks, as well as to put forward adaption and mitigation options. The IPP has confirmed the impacts of climate change in a world where global average temperatures rise to 1.5OC above pre-industrial levels, and that these impacts would be significantly worse if temperatures rise to and exceed 2.0OC.

3 For nearly 40 years, the non-profit organization ENvironnement JEUnesse has been acting to raise awareness on environmental issues among Quebec’s youth, empower them through educational workshops, and encourage them to take action in their communities. ENvironnement JEUnesse has been intervening on climate issues for nearly 30 years now, in addition to speaking for Quebec’s youth at the Conference of the Parties of the United Nations Framework Convention on Climate Change since 2005.

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