If you find this post interesting, you can sign up for the firm’s monthly newsletter here. Each month’s newsletter contains a roundup of blog posts and commentary on climate news, law and policy.

Two days of court hearings commenced in Vancouver on September 30th, 2020 in a climate action lawsuit against the Canadian government. The case La Rose et. al. v. Her Majesty the Queen was filed last October by several young Canadian plaintiffs, with support from Oregon-based non-profit law firm Our Children’s Trust. The lawsuit alleges the Canadian government violated the plaintiffs’ rights under the Canadian Charter of Rights and Freedoms by failing to take meaningful action to prevent anthropogenic climate change.  The hearings’ purpose was for the court to determine whether the case should be dismissed or proceed to further litigation in federal court.

The plaintiffs’ complaint alleges the government violated their Charter rights, as young Canadians, to life, liberty and security of the person under s. 7, and equal protection under the law under s. 15, by failing to set and adhere to science-based emission reduction targets, and by aiding through government policies and subsidies those industries most responsible for causing climate change (i.e., oil and gas). As a result, the young plaintiffs will “bear a disproportionate share of the burden of climate change” as it negatively impacts “their physical and psychological integrity and their ability to make fundamental life choices.” 

The Canadian government responded by moving to have the case dismissed on the grounds the plaintiffs lack standing to bring the case, and that the claim is not a justiciable matter as it falls “well outside the realm of permissible review by the courts.”

As of this writing, the hearings have concluded but the court has not yet announced its decision.

Our Children’s Trust has launched or supported similar climate action lawsuits in a number of US states and other countries, often featuring similar legal arguments: that failure to mitigate climate change violates the constitutional rights of youth plaintiffs. Few of these lawsuits to date have yielded substantial success. Understandably, courts often appear reluctant to recognize the implied rights sought - chiefly, the right to a healthy environment - in such cases. Doing so could authorize the judiciary to commandeer government policy in a manner entailing enormous consequences for the entire economy. This is something judiciaries generally avoid, lest they lose credibility in the eyes of the public. 

There are, however, examples of highly successful climate action cases, most notably in Colombia and the Netherlands. 

In the Colombian case José Daniel Rodríguez Peña, et al. v. Presidency of the Republic of Colombia, et al. (2018), the South American nation’s Supreme Court recognized that the government’s active role in the Amazon’s deforestation, and its failure to meaningfully combat climate change, violated the group of young plaintiffs’ constitutional right to life and a healthy environment. The court also recognized the Amazon rainforest as an “entity subject of rights” (i.e., a ‘legal person’), and ordered the government to create an “intergenerational pact for the life of the Colombian Amazon” in collaboration with affected communities and scientific organizations, with the aim of reducing deforestation and combating climate change. 

In the Dutch case Urgenda Foundation v. Kingdom of the Netherlands (2020), the Supreme Court of the Netherlands upheld the decision of lower courts finding the Dutch state legally obligated to reduce emissions 25% below 1990 levels by 2020. The decision was largely based on the courts’ interpretation of sections 2 and 8 of the European Convention on Human Rights and Fundamental Freedoms, which respectively protect individuals’ right to life and right to respect for privacy and family life. 

For Canadian courts to reach a conclusion similar to Dutch courts’ decision in Urgenda would mark a monumental shift in Canadian jurisprudence. In specific legal terms, it would likely result in recognizing positive rights under Canadian constitutional law. Constitutional positive rights require governments to act on behalf of rights-holders, whereas constitutional negative rights restrain governments from certain actions (e.g., criminalizing speech, imprisoning persons without due process, etc.). 

The Supreme Court of Canada has in the past considered and avoided recognizing positive rights as stemming from the Charter in cases such as R. v. Prosper (1994). However, in Prosper, then-Chief Justice Lamer wrote: “it would be a very big step for this Court to interpret the Charter in a manner which imposes a positive constitutional obligation on governments...Unless absolutely necessary to protect the Charter rights of individuals,  I believe that a holding with implications of this magnitude should be avoided” (emphasis added). 

It may, however, be argued that in climate action cases such as La Rose, where the plaintiffs are simply asking for the right to a safe future on a functioning planet, we have reached a point where it is absolutely necessary for courts to take that “big step” into recognizing new Charter rights. 

Update: On October 27th, the court dismissed the case, finding the matter too broad to be properly addressed by the judiciary. The plaintiffs plan to appeal the dismissal. You can read CBC’s coverage of the development here.