A group of Canadian children and youth told a Federal Court judge on Wednesday that the courts need to take control of the federal government’s fight against climate change.
The group – 15 people between 10 and 19 from across the country – have joined an international movement of youth filing lawsuits to press for a safe climate. A similar case seeking a court-ordered escalation of the battle against the planet’s warming was rejected by a United States appeals court early this year, and other cases are under way in Ireland, Switzerland and elsewhere.
The Canadian case is novel in many ways, not least that the young people and their lawyers are not challenging any single government policy, such as the Liberal government’s 2018 decision to buy the Trans Mountain pipeline. Instead, they want the courts to declare that the entirety of Canada’s policies on climate change – everything it is doing, such as supporting the fossil fuels industry, and everything it is not doing – is contributing to the harms of climate change.
The federal government is seeking to have the case thrown out without a trial of the issues it raises. Such prompt dismissals are permitted when a judge determines a lawsuit is bound to fail. Federal Court Justice Michael Manson is holding a two-day hearing in Vancouver, broadcast live over Zoom, to determine whether the case can go to trial.
The hearing seemed like a kind of flip side to a separate case heard by the Supreme Court of Canada last week on the federal carbon-pricing scheme. In that case, Ottawa argued the country’s 1867 Constitution allows Ottawa to legislate in areas of “national concern,” such as climate change. When several provinces argued that Ottawa is stepping onto provincial jurisdiction, federal lawyers said only federal action could ensure a successful approach. The court reserved its decision.
In the youth case, lawyer Joseph Arvay argued that, far from doing too much, the federal government has shirked its responsibility to help create a “stable climate” and to take up its fair share of the global response.
“The harm of climate change might be likened to death by a thousand cuts,” he said in court on behalf of the young people.
Federal lawyer Joseph Cheng argued the issues raised by the young people should be brought to legislators, not judges.
The youth are “saying let’s have a trial about what the federal government has done about climate change and let’s get the court to tell the federal government how to do it better.” The young people are asking the court to “exceed its constitutional role in a democracy,” Mr. Cheng told Justice Manson, a former intellectual property lawyer appointed in 2012 by the Harper government.
Mr. Arvay said by that logic, the climate or climate change would be a “Charter-free zone,” and even if a government completely abdicated the fight, the courts would be unable to do a thing about it. “Surely our Charter is not such an impotent document that it provides no remedy [for] our citizens against a government intent on destroying the planet.”
The lawsuit asserts that each of the young people involved has suffered “individualized harms.” One is 17, lives on a family farm in B.C.’s Cowichan Valley, and contracted Lyme disease from a tick, an event made more likely by climate change, the lawsuit asserts.
Another is 18 and lives in Gatineau, Que., but returns during summers to the Metepenagiag First Nation reserve in New Brunswick. Hunting for moose, fishing for eel and salmon, and gathering sweetgrass are important cultural activities that have been made more difficult by climate change, the lawsuit claims.
The lawsuit says government climate-change policies affect the youths’ rights to equality and to life, liberty and security of the person under the 1982 Charter of Rights and Freedoms. The young people want the court to order the government to count Canada’s emissions, determine whether those emissions are above a fair share of the global fight against emissions, and insist on a fix if they are. The court would then have a supervisory role as the government implemented a new plan.
Justice Manson said outright that at least some of what the young people are seeking goes beyond the court’s jurisdiction, in his view. But he also said he takes the U.S. dismissal of a similar case “with a huge grain of salt.”
The case is part of a growing Canadian and international trend to use the courts to press for greater governmental action on climate change. A similar case is under way against the province of Ontario. And in Quebec, a class-action lawsuit claiming the right to a safe climate was brought on behalf of people under 35. The Quebec Superior Court did not allow the class action to proceed.
The Globe and Mail, September 30, 2020