A constitutional challenge pitting 15 Canadian youth against federal climate change policy has new life, following a court of appeals ruling yesterday reversing previous decision that the case should not go to trial.
La Rose v. His Majesty the King “argues that the youth are already being harmed by climate change and the federal government is violating their rights to life, liberty, and security of the person under section 7 of Canadian Charter of Rights and Freedoms for failing to protect essential public trust resources,” explains Our Children’s Trust, a U.S. non-profit that is backing the case along with the David Suzuki Foundation and the Pacific Centre for Environmental Law and Litigation. “The lawsuit asks the Federal Court of Canada to declare that the government’s conduct violates the Charter and the government’s public trust duties.”
The case also sought to challenge federal climate action under section 15 of the Charter, on the basis that youth are disproportionately affected by climate change.
The youth plaintiffs’ call for Ottawa to develop a science-based climate recovery plan was rejected by a Federal Court judge in October, 2020. Justice Michael Manson concluded the youth didn’t have a “reasonable cause of action or prospect of success,” The Canadian Press wrote at the time. The judge indicated that, “while he understands children and youth are disproportionately affected by the effects of climate change, the issue involves a broad network of provincial and federal policies related to greenhouse gas emissions, for example.”
At the time, youth lawyer Joe Arvey said he disagreed with Manson’s conclusion that the youth were asking him to rule on a complex political manner. “This is the opinion of a single judge of the Federal Court, and obviously we respect his role and his right to say what he said. But we don’t accept that it’s correct, and we hope that the highest court will disagree with him.”
This week, a Federal Court of Appeals panel unanimously accepted part of that argument. The opinion by Justice Donald J. Rennie rejected the section 15 claim but agreed that the issues the youth raised under section 7 of the Charter should be settled in a trial, not dismissed before they could be fully heard. He reached the same conclusion in a case brought by the Dini Ze’, or head chiefs, of two Wet’suwet’en House groups, asserting that climate change poses a “threat to their identity, to their culture, to their relationship with the land and the life on it, and to their food security”.
While he reached no conclusion on the merits of the youth claims, Rennie concluded they should be heard in court.
“The claim of a right to a healthy and livable environment, and the legislative sanctioning of something less, explores the scope of section 7 and tests its boundaries,” he wrote. “The argument is novel, but it is not doomed to fail.”
More generally, “courts should be cautious in striking claims at an early stage,” the judge added. “The law is not static and unchanging—actions that were deemed hopeless yesterday may succeed tomorrow. It is for this reason that courts must be cautious about striking claims and err on the side of allowing novel but arguable claims to proceed.”
Another recent court case did dismiss youth claims under section 7, Rennie noted. But “importantly for the purpose of these reasons, the Court arrived at this conclusion after a trial. The question there was whether the applicants had in fact made out their section 7 claim on the merits, not whether a section 7 claim of this nature should be allowed to be argued.”
While a court would have to determine whether the youth plaintiffs in the La Rose case could establish a “real as opposed to speculative link” between federal legislation and their constitutional rights, he added, “this does not mean that the claim under section 7 is so doomed to fail that it cannot proceed in any renewed form.”
Rennie also considered whether the case involved “special circumstances” that might warrant a novel interpretation of section 7.
“Climate change’s current and potential effects are widespread and grave, they include loss of land and culture, food insecurity, injury and death,” and Supreme Court references on the federal Greenhouse Gas Pollution Pricing Act “noted that climate change is an existential challenge, a threat of the highest order to the country, and to the future of humanity which cannot be ignored,” Rennie wrote. “If these do not constitute special circumstances, it is hard to conceive that any such circumstances could ever exist; however this remains to be determined by the trial judge.”
Rennie ruled that both the youth case and the Dini Ze’ appeals would stand in part, with the plaintiffs granted “leave to amend on the claim that their section 7 rights had been violated. Our Children’s Trust says the youth plaintiffs “are now preparing to amend their complaint so they can get back on the track to trial.”
