Historic court decision in Mathur v. Ontario government – Youth Charter challenge for stronger GHG emissions reductions can proceed

Although the Supreme Court decision about Canada’s carbon pricing system on March 25 was undoubtedly historic, it overshadowed the news of another historic legal decision on that date, when an Ontario Divisional Court dismissed the provincial government’s second attempt to stop the youth-led challenge to its greenhouse gas emissions reduction targets.  In “Youth climate case forges ahead after court affirms historic decision”,  EcoJustice describes that the case of  Mathur et. al. v. Her Majesty in Right of Ontario,  which has now become the constitutional challenge to climate change that has advanced the furthest in Canada.    

Some background: The case of Mathur et. al. v. Her Majesty in Right of Ontario was first brought by seven youth in November 2019, following the Conservative government’s passage of the Cap and Trade Cancellation Act. The plaintiffs, represented by Ecojustice and Stockwoods LLP, claimed that Ontario’s GHG emissions reduction target is insufficiently ambitious, and that the province’s failure to set a more stringent target infringes the constitutional rights of youth and future generations, under Canada’s Charter of Rights and Freedoms. In November 2020, the Superior Court of Ontario upheld the claims, in the decision which the provincial government sought to overturn. As of March 25, the case can now proceed to a full hearing, though no date has been set.  

Climate Change and the Right to a Healthy Environment in the Canadian Constitution is a legal article which appeared in the Alberta Law Review in 2020. The authors describe and contrast the legal approaches used in the Mathur case and in the LaRose case, which was dismissed by Canada’s Supreme Court in October 2020. Ecojustice has posted frequently on the case, and Alberta’s Environmental Law Centre also featured the Mathur case in a detailed blog in November 2020.

The first and most high-profile youth climate case in the world, is Juliana v. U.S. Government . A timeline is here, reflecting the progress from the initial filing in 2015 till March 9 2021, when Our Children’s Trust filed a motion to amend the complaint and adjust the remedy sought, after repeated roadblocks in the case.

Tidal wave of climate litigation: cases and trends examined in new report

On January 26  the United Nations Environment Programme and the Sabin Center at Columbia University published Global Climate Litigation Report: 2020 Status Review , revealing a “growing tidal wave of climate cases” which show “how climate litigation is compelling governments and corporate actors to purse more ambitious climate change mitigation and adaptation goals.”

The report states that as of July 1, 2020, at least 1,550 climate change cases have been filed in 38 countries around the world – nearly double the number of cases in the previous report published in 2017, which had documented 884 cases brought in 24 countries. The report summarizes key trends in cases – “ ongoing and increasing numbers of cases relying on fundamental and human rights enshrined in international law and national constitutions to compel climate action; challenging domestic enforcement (and non-enforcement) of climate-related laws and policies; seeking to keep fossil fuels in the ground; claiming corporate liability and responsibility for climate harms; addressing failures to adapt and the impacts of adaptation; and advocating for greater climate disclosures and an end to corporate greenwashing on the subject of climate change and the energy transition.” The report also notes emerging issues in the next five years, including increased attention to attribution studies,  and highlights significant and precedent-setting  cases throughout.

Global Climate Litigation Report: 2020 Status Review is current to July 1, 2020. Since then, at least three more important cases have been decided: 1.  in December 2020, a U.K. coroner ruled that “Air pollution a cause in girl’s death, coroner rules in landmark case” (The Guardian, January 2021); 2. an Appeals court in France overturned an expulsion order against an asthmatic man because he would face “a worsening of his respiratory pathology due to air pollution” in Bangladesh, his home country (the significance described in The Guardian in “Air pollution will lead to mass migration, say experts after landmark ruling” , with more details here). And 3. on January 29, 2021, a Dutch Appeals court brought an end to a case begun in 2008, when it upheld a decision against Royal Dutch Shell petroleum, finding it responsible for multiple oil spills and leaks which poisoned farmland in the Niger Delta. A Reuters report  quotes Friends of the Earth, saying “the ruling exceeded all expectations and marked the first time a multinational had been instructed by a Dutch court to uphold a duty of care for foreign operations.” The case is also summarized in “After 13 years, Justice: Dutch court orders Shell to pay for harm done to Nigerian farmers and in Deutsche Welle in “Dutch Court rules Shell liable for Niger Delta oil spills.

And in the United States, a potentially landmark case of climate liability is underway as of January 2021. According to a summary at NPR the city of Baltimore is presenting its claim for the cost of climate-related damages against more than a dozen major oil and gas companies including BP, ExxonMobil and Shell. According to NPR: “The Supreme Court will announce its decision later this year on the narrow question of whether the Baltimore case should be considered in state or federal court. If the justices decide in favor of the companies and the case proceeds in federal court, it’s possible that the lawsuit will be eventually dismissed without a trial. However, if the justices decide in favor of Baltimore, it is likely that the case will proceed in Maryland state court, which could require the companies in the case to turn over vast troves of documents about their businesses and marketing practices over the decades.” A multitude of legal documents have been compiled since the case began in 2018, and are available at the Sabin Center for Climate Change Law here.

Dutch government announces measures to comply with Urgenda Supreme Court decision; Ontario government seeks to dismiss youth-led climate case

The Urgenda Climate Case against the Dutch Government was the first in the world to establish that a government has a legal duty to its citizens to prevent dangerous climate change.  The case began in 2013, with a District Court ruling in 2015 that the government must cut its greenhouse gas emissions by at least 25% by the end of 2020.  Following appeals by the government, in a December 2019 decision hailed as a landmark, the Dutch Supreme Court ordered the government to reduce emissions by 15 megatonnes in 2020. A timeline with links to all the decisions in the case is maintained by the Urgenda Foundation here .

Now finally, in April 2020, the Dutch government announced how it will comply, accepting 30 of the measures proposed  in Urgenda’s “54 Climate Solutions Plan”. Most importantly, the government ordered a 75% reduction in capacity at the country’s three coal-fired power stations; the full list of actions is summarized in “Climate action under duress: how Dutch were forced into emissions cuts” (The Guardian, May 4) , which also describes the long and contested route to this precedent-setting  achievement.

The U.N. High Commissioner for Human Rights noted in a press release after the Supreme Court decision in December 2019 :

“The recognition by the highest Dutch court that the Netherlands’ human rights obligations provide a legal basis to compel stronger and more rapid action by the Government is vitally important. This landmark ruling provides a clear path forward for concerned individuals in Europe – and around the world – to undertake climate litigation in order to protect human rights, and I pay tribute to the civil society groups which initiated this action. …. more ambitious climate action, in all parts of the world, is a human rights obligation rather than simply a policy choice.”

Ontario’s Youth-led climate case

The importance of the Urgenda decision may offer encouragement for the citizens around the world who are seeking to force governments to act on climate change.  In Ontario on April 15, Ontario’s Ministry of the Attorney General filed a motion asking the courts to dismiss a youth-led lawsuit, as described in  “Ford government files motion to strike down youth-led climate lawsuit” (April 16) . Seven young people are being represented in the case, Mathur et. al. v. Her Majesty in Right of Ontario .  According to the Case Backgrounder by Ecojustice, one of the representatives:  “The lawsuit aims to strike down Ontario’s current 2030 target as unconstitutional and enshrine the right to a safe, healthy climate as part of the right to life, liberty and security of the person in Section 7 of the Canadian Charter of Rights and Freedoms. This would require the Government of Ontario to set a new target in line with the scientific consensus, and revise its policies accordingly. “

Philippines Human Rights Commission delivers landmark decision, holding the Carbon Majors accountable for climate damages – Updated

The Human Rights Commission of the Philippines has concluded its three-year investigation of a complaint led by Greenpeace South-East Asia , and has found that the collective contribution to global heating by 47 coal, cement, and oil and gas companies has violated Filipinos’ basic human rights to life, water, food, sanitation, adequate housing and self-determination. Although the full decision is not yet available – but promised by the end of 2019 – the announcement made by one of the Commissioners at the COP25 meetings  stated that it would be up to individual countries to pass strong legislation and establish legal liability in their own courts, but that “there was clear scope under existing civil law in the Philippines to take action.”

The  Director of Greenpeace Philippines is quoted in the Greenpeace press release:

“The findings are a landmark victory for communities around the world who are at the frontlines of the climate emergency. This is the first ever finding of corporate responsibility for human rights harms resulting from the climate crisis. The outcome goes beyond the Philippines and can reach every single human being alive or yet to be born. However, this is only the beginning. We believe the findings provide very strong basis not just for future legal actions against big polluters, but also for citizens and communities to confront inaction by companies and governments in the streets and in the hallways of power.”

Greenpeace maintains an archive of documents related to this long-running investigation, including corporate responses and expert opinions.  Climate Liability News has published a number of articles, including “Carbon Majors Can Be Held Liable for Human Rights Violations, Philippines Commission Rules” and  “Philippines Climate Case Could Find Fossil Fuel Companies Violate Human Rights” ( 2017), which  provides more background to the case.

Update:  On December 18, The Tyee published “Oilsands Firms ‘Morally Responsible’ for Deaths and Destruction from Climate Disasters”, an interview by Geoff Demicki with Greenpeace’s Naderev Yeb Saño , which “explains what a Philippines human rights investigation means for the fossil fuel industry in Canada.”

Rights-in-a-Changing-ClimateRelated: An authoritative chronicling of  the human rights dimension in UNFCCC decisions and the Paris Agreement appears in  Rights in a Changing Climate by the Centre for International Environmental Law , published on December 5. It includes examples of Just Transition and decent work. The CIEL also operates a Working Group on Climate Rights, with a dedicated website here.

Updates on climate litigation:

“Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand Today”  was published by Inside Climate News on November 29, providing a good sum-up of the year, but too early to reflect the landmark Philippines decision, nor the December 10 decision in the suit by the New York Attorney General against  Exxon.  The surprising victory for Exxon is described in  “Judge Clears Exxon in Investor Fraud Case Over Climate Risk Disclosure”  in Inside Climate News, as well as in a New York Times article.

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