Ontario updates: Advisory Panel on Climate Change appointed; Auditor General pans climate policies; Ontario youth launch new lawsuit

Post updated November 6:

In a November 28 press release,  Ontario’s  Minister of the Environment, Conservation and Parks announced the appointment of an Ontario Advisory Panel on Climate Change . The press release quotes the new Chair, Paul Kovacs who states: “The knowledge exists to prevent losses from flooding, wildfire and other climate extremes…. “Members of the advisory panel on climate change look forward to working with the Government of Ontario to champion climate resilience. Working together, we can break the alarming trend of rising severe weather damage to homes, businesses and public infrastructure. Action on climate resilience is a critical element of a comprehensive strategy on climate change.”

Members of the Advisory Panel come from a variety of sectors including non-profits, agriculture, insurance, and reflect the Panel’s focus on adaptation and conservation concerns. Neither green advocacy groups nor workers are represented. The brief bios of panelists are here :  Chair Paul Kovacs is founder and Executive Director of the  Institute for Catastrophic Loss Reduction at Western University; Vice-Chair Lynette Mader is the Manager of Provincial Operations for Ontario for Ducks Unlimited Canada and an expert on species-at-risk.  The other eight Panel members include Blair Feltmate , head of the Intact Centre on Climate Adaptation at the University of Waterloo and Chair of the Government of Canada Expert Panel on Climate Adaptation and Resilience Results.

ontario auditor general 2019The Advisory Panel was announced on the one-year anniversary of the Made-in-Ontario Environment Plan.   On December 4,  that policy initiative was reviewed when the provincial Auditor General tabled her annual report in the Legislature, including  Volume 2:  Reports on the Environment . In 183 pages and three chapters, the report provides an overview of  1. environmental issues in Ontario; 2. Operation of the Environmental Bill of Rights, and 3. Climate Change: Ontario’s plan to reduce Greenhouse Gas Emissions. The report details the government’s performance and finds that it has double-counted emissions reductions in some cases, over-estimated potential impacts of its own policies,  and is nowhere near able to meet its own 2030 emissions reductions targets.   The National Observer summarizes the report in “Ontario Auditor General slams Doug Ford’s climate policies”  and an analysis at the  TVO website tells a similar story in  “Ontario’s Auditor General gives the Tories’ climate plan a failing grade”.  This latest report follows on the previous  highly-critical report of the outgoing Environmental Commissioner,  A Healthy, Happy, Prosperous Ontario: Why we need more energy conservation  (March 2019), and  the Failure to Launch   report in October 2019 by Environmental Defence.

Youth launch lawsuit against Ontario government

All of these negative findings won’t help the government as they prepare to defend themselves against a new  climate change lawsuit by Ontario youth  who claim that the  Ford government’s softening of emissions reductions targets “will lead to widespread illness and death,” and thus has violated their charter rights under Section 7 of the Canadian Charter of Rights and Freedoms.  Seven  applicants from communities across Ontario, ranging in age from 12 to 24, are represented by lawyers from Ecojustice and Stockwoods LLP .  Details are in the Ecojustice  Case Backgrounderan overview of the action appears in the National Observer in  “These Ontario kids are taking climate protest from streets to courthouse” (Nov. 26).

mathur v province of ontario

Canadian youth sue federal government seeking stronger climate action

Larose plaintiffs 2019Just days after the federal election, on October 25, fifteen Canadians aged 10 to 19 launched a lawsuit in federal court, seeking a court-ordered plan for climate change based on the best available science.  The plaintiffs, from seven Canadian provinces and the Northwest Territories, announced their suit in Vancouver at the Fridays for Future climate strike alongside Greta Thunberg and recounted their personal experiences, including asthma, Lyme disease, mental health challenges, and injuries from wildfire smoke.

The Statement of Claim   in La Rose v. Her Majesty the Queen alleges that by failing to  protect essential public trust resources like air and water,  the Canadian government has violated the children’s right to life, liberty and security of the person under Section 7 of the Charter of Rights and Freedoms. It also alleges that the government has violated Section 15 of the Charter, since youth are disproportionately affected by the effects of climate change.   A press release from the David Suzuki Foundation includes quotes from some of the individuals involved; the case was widely reported in the following sources:  the CBC , The Energy Mix ,  the National Observer, Toronto Starand the Vancouver Star  .

This is the second climate change case brought by Canadian youth: in 2019,   ENvironnement JEUnesse brought  a class action suit on behalf of Quebecers under the age of 35, which argued that the Canadian government was violating the class members’ fundamental rights by failing to reduce greenhouse gas emissions sufficiently to ensure a safe climate. In July 2019, the Quebec Superior Court dismissed the petitioners’ motion because it rejected the nature of the class , namely, the age limit of 35 years. The case is under appeal.

 

The children in La Rose v. Her Majesty the Queen  are represented by the B.C. law firms of Arvay Finlay LLP and Tollefson Law Corporation, and supported by the Pacific Centre for Environmental Law and Litigation (CELL) , the David Suzuki Foundation, and Our Children’s Trust in the U.S., which pioneered the pending landmark youth case of Juliana vs. United States.  Our Children’s Trust compiles information on climate change lawsuits around the world including Australia, Belgium, Columbia, France, India, the Netherlands, Norway, Pakistan, the Philippines, Uganda, Ukraine, and the United Kingdom. The Sabin Center for Climate Change Law at New York’s Columbia Law School maintains a database of cases in the U.S., and a separate database from the rest of the world – approximately 1400 climate lawsuits against governments and fossil fuel corporations in more than 25 countries.

Climate change litigation in Canada: ENvironnement JEUnesse is under appeal

environnement jeunesse demonstrationA September blog published by legal firm Aird Berlis  summarizes the July 2019 decision of the Quebec Superior Court in Canada’s youth climate change litigation: ENvironnement JEUnesse v. Canada.  The environmental group  ENvironnement JEUnesse also summarizes the progress of the case, which sought to represent Quebecers under the age of 35 in a class action suit, arguing that the Canadian government was violating the class members’ fundamental rights by failing to reduce greenhouse gas emissions sufficiently to ensure a safe climate. In July 2019, the Quebec Superior Court dismissed the petitioners’ motion because it rejected the nature of the class proposed by the petitioners, namely, the age limit of 35 years. Lawyers for ENvironnement JEUnesse filed an appeal of the decision in August and await a hearing. The French-language decision is here ; an unofficial English-language translation posted by Columbia Law School is here .  ENvironnement JEUnesse  sees itself as part of the global movement of climate litigation begun with the Urgenda decision in The Netherlands, and summarizes other cases around the world on its English-language website. The French-language website is much more informative – in addition to updates on the case, it posts news on the Quebec climate youth movement and its  annual conference.

16 young people file landmark petition for climate action under the U.N. Rights of the Child

On September 23, climate activist Greta Thunberg made an emotional, unforgettable speech to the on the U.N. Climate Summit in New York City. The full Youtube video is here ;  her words are reproduced by The Guardian in an Opinion Piece titled “If world leaders choose to fail us, my generation will never forgive them”, and stating: “We are in the middle of a climate breakdown, and all they can talk about is money and fairytales of eternal economic growth.”  A summary from The Guardian is here .

petition-kids_michael-rubenstein-800New landmark climate litigation

Also on September 23, Greta Thunberg and fifteen other young people from around the world submitted a groundbreaking legal petition to the United Nations Committee on the Rights of the Child. Respondent countries Argentina, Brazil, France, Germany, and Turkey are the largest polluters amongst the 45 countries in the world which have ratified the UN Convention on the Rights of the Child and agreed to an additional protocol that allows children to petition the UN directly about treaty violations.

The young people contend that these five countries are violating their rights under the Convention by failing to curb emissions and promoting fossil fuels, despite have known about the risks of climate change for decades.  They are asking the U.N. Committee to make specific recommendations to the five nations about what they need to do to meet their treaty obligations, including changing laws to speed up the response to climate change and applying more diplomatic pressure on big polluters like the United States and China.

The complaint was prepared and filed on behalf of the youth petitioners by the international law firm Hausfeld LLP and the nonprofit environmental public interest law organization Earthjustice – whose press release is here . A dedicated website, Children vs Climate Crisis provides biographies and statements from each of the children, a copy of the 101-page Petition ,and a 338-page Appendix  with detailed statements of the impacts on the petitioners’ lives.

The Earthjustice website  is hosting a petition in support of the children’s case.

Business responsibilities for climate change: U.S. Roundtable nods, U.N. sets a high bar

The U.S. Business Roundtable generated headlines and surprised reaction with the August 19th release of a new Statement of Purpose,  signed by 181 CEO’s of high-profile companies including Amazon, Walmart, Bank of America, Lockheed Martin, Morgan Stanley, UPS, and others. That statement redefines their shared, overarching corporate goal from “delivering value for shareholders” to  promoting “An Economy That Serves All Americans” – including by: “supporting the communities in which we work. We respect the people in our communities and protect the environment by embracing sustainable practices across our businesses.” …“Investing in our employees. This starts with compensating them fairly and providing important benefits. It also includes supporting them through training and education that help develop new skills for a rapidly changing world. We foster diversity and inclusion, dignity and respect.”

The full Business Roundtable Statement on the Purpose of a Corporation, with signatories, is here ;  case studies of member corporations’ social responsibility initiatives are outlined in Building Communities, Meeting Challenges .

A higher bar for business

In contrast to the Business Roundtable statement, scant attention was paid to an international call for human rights and climate justice, released in July. The Safe Climate Report  provides a guide to the obligations of States and the responsibilities of businesses under international agreements and law, regarding the rights to life, health, food, water and sanitation, rights of the child, right to a healthy environment, and rights of vulnerable populations.

The Safe Climate Report, as well as the June 2019 U.N. Report  on extreme poverty and climate change by Philip Alston, are the subject of a September 4 article in The Conversation Canadian edition, “Climate change, poverty and human rights: an emergency without precedent” . The authors state that “The Alston report suggests that the only way to address the human rights dimensions of climate crisis is for states to effectively regulate businesses and for those harmed by climate change to successfully sue responsible companies in court. ….  “the Safe Climate report goes further…”

Specifically, the Safe Climate Report states:

“Businesses must adopt human rights policies, conduct human rights due diligence, remedy human rights violations for which they are directly responsible, and work to influence other actors to respect human rights where relationships of leverage exist. As a first step, corporations should comply with the Guiding Principles on Business and Human Rights as they pertain to human rights and climate change…. The five main responsibilities of businesses specifically related to climate change are to reduce greenhouse gas emissions from their own activities and their subsidiaries; reduce greenhouse gas emissions from their products and services; minimize greenhouse gas emissions from their suppliers; publicly disclose their emissions, climate vulnerability and the risk of stranded assets; and ensure that people affected by business-related human rights violations have access to effective remedies.90 In addition, businesses should support, rather than oppose, public policies intended to effectively address climate change.”  (page 19/20).

Legal obligations of States:

The discussion in this report is also highly relevant to any litigation against states or companies regarding climate change, as well as for the rights of Indigenous peoples and children.  Boyd concludes:

“A failure to fulfill international climate change commitments is a prima facie violation of the State’s obligations to protect the human rights of its citizens. As global average temperatures rise, even more people’s rights will be violated, and the spectre of catastrophic runaway climate chaos increases. There is an immense gap between what is needed to seriously tackle the global climate emergency and what is being done.

A dramatic change of direction is needed. To comply with their human rights obligations, developed States and other large emitters must reduce their emissions at a rate consistent with their international commitments. To meet the Paris target of limiting warming to 1.5°C, States must submit ambitious nationally determined contributions by 2020 that will put the world on track to reducing greenhouse gas emissions by at least 45 per cent by 2030 (as calculated by the Intergovernmental Panel on Climate Change). All States should prepare rights-based deep decarbonization plans intended to achieve net zero carbon emissions by 2050, in accordance with article 4, paragraph 19, of the Paris Agreement. Four main categories of actions must be taken: addressing society’s addiction to fossil fuels; accelerating other mitigation actions; protecting vulnerable people from climate impacts; and providing unprecedented levels of financial support to least developed countries and small island developing States.”

The Safe Climate Report  (formally titled The Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment)  was submitted to the U.N. General Assembly,  written by Canadian human rights scholar and U.N. Special Rapporteur David R. Boyd, whose 2012 book, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment,  stands as a landmark study in environmental law.  The Special Rapporteur’s Report was informed by a consultation period in 2019 in which States and organizations were invited to participate – the few which did are posted here . (Neither  Canada nor the U.S. were among the countries which submitted).  Two noteworthy organizational submissions available are from Canada’s Ecojustice, and Our Children’s Trust (U.S.)  on the issue of intergenerational responsibility and youth. A separate report by Special Rapporteur John Knox discussed The Children’s Rights and the Environment in 2018, and it may be significant the  concluding sentence of the Safe Climate Report uses Greta Thunberg’s famous words,  “I want you to act as if our house is on fire. Because it is.”