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.

Climate Youth in the Courts: Victory in Ontario, dismissal in Canadian court, and an appeal to the Supreme Court of Norway

The Environmental Law Centre of Alberta has been monitoring climate litigation cases worldwide, but events have overtaken their latest summary blog Climate Litigation in Canada and Beyond –Where Are We in 2020?  (Nov. 9) , which discusses the dismissal of the LaRose case in the Federal Court of Canada (more on that below). On November 12, Justice Carole Brown of the Superior Court of Ontario issued a landmark decision , allowing the case of Mathur et al.  to proceed to trial under Canada’s Charter of Human Rights and Freedoms.  The case is thoroughly described in a Backgrounder from the Ecojustice, who represent the seven youth. Their claim is that their rights were violated when the Ontario government under Doug Ford  passed the Cap and Trade Cancellation Act in 2018, weakening GHG emissions reduction targets for the province. According to Ecojustice, “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.”  The decision to allow the case to proceed is a first for Canada.

Federal Court of Canada dismisses an earlier youth-led case, LaRose vs. Her Majesty the Queen

On October 27, Justice Michael D. Manson of the Federal Court of Canada dismissed the case of LaRose vs. Her Majesty the Queen, and in the words of law professor Jason MacLean, slammed the door on big, “holy grail” climate cases in Canada. The LaRose case was filed in 2019 by 15 youth who used the Public Trust doctrine under section 7 of the Charter of Rights and Freedoms to argue that the federal government is violating their rights to life, liberty and security of the person, and failing to protect essential public trust resources. Further, they call on section 15 of the Charter regarding equality, alleging that  youth are disproportionately affected by the effects of the climate emergency.  Although Justice Manson agreed that “the negative impact of climate change to the Plaintiffs and all Canadians is significant, both now and looking forward into the future,” he declined to allow the case to proceed because the questions raised “are so political that the Courts are incapable or unsuited to deal with them.” Lawyers for the case will appeal.  The legal organizations supporting the LaRose case reacted to the decision: the Pacific Centre for Environmental Law and Litigation (CELL) here , and U.S.-based Our Children’s Trust here . Our Children’s Trust also maintains a timeline and compilation of documents here.

The LaRose case was summarized in “Kids facing effects of climate change are taking their governments to court” in The Conversation (Nov. 2019), with an explanation of the public trust doctrine.  After the decision, a brief summary appeared in  “Federal judge tosses youth climate case against Ottawa” (National Observer, Oct. 27). In  “Why the youth climate court case failed and what’s next for Canadian climate policy” (The Conversation, Nov. 3) Jason MacLean, Assistant Professor of Law at the University of New Brunswick, summarizes the case and concludes that the federal court’s decision “slams the door”, but also looks for broader hope in the prospects for more specific, smaller climate cases – referring to “The Unsexy Future of Climate Litigation” (Journal of Environmental Law, 2018) for his framework, and citing the current example of the Grassy Mountain coal mine project in Alberta as an example of such a specific case.

Previous attempts by Canadian youth to fight for climate rights in courts include ENvironnement JEUnesse, which is currently under appeal after being denied the right to proceed by the Quebec Superior Court in 2019 .

Rebellion is a new documentary episode by The Nature of Things, a flagship production of the Canadian Broadcasting Corporation. It profiles some of the youth involved in the Canadian court fights.

Youth in Norway take their climate case to the Supreme Court

In a case known as People vs. Arctic Oil , Young Friends of the Earth Norway (also known as Nature and Youth) have challenged their government’s 2016 decision to license oil drilling in the Barents Sea of the Arctic. Their challenge, now before the Supreme Court of Norway in November, is being described by Greenpeace Norway (a co-plaintiff),  as internationally precedent-setting, potentially as important as the Urgenda decision in the Netherlands. The New York Times reported on November 5  that it is  being called “the case of the century” in the Norwegian press. The court case finished in mid-November, with a decision expected in early 2021.

The Sabin Center Climate Case Litigation Database offers an archive of all official documents in the Norwegian case, and  Greenpeace Norway provides a chronology and a layman’s summary of the case decisions in English.  The Greenpeace website also provides the new information that the government’s decision to issue oil licenses was based on incorrect economic analysis and that  “Ministry of Petroleum and Energy has been sitting on updated calculations they did not present to the Parliament, which shows that the profitability of the oil fields is questionable.”