Seven Ontario children and youth recently scored a legal victory that brings Canadians a step closer to holding their governments accountable for aggravating the climate emergency that poses “an existential threat to human life in Canada and around the world.”
On Oct. 17 the Ontario Court of Appeal reversed a lower court decision and reinstated a lawsuit brought by seven young Ontarians against the provincial government over its rollback of climate change targets. They will get a new hearing to determine whether the province’s climate policies violate their constitutional rights to life, health and equality.
This ruling opens the door to recognize that Canadians have a constitutional right to a stable climate system.
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The case
The seven youth sued after the provincial government passed a law in 2018 that repealed Ontario’s cap and trade system. While the new law still requires Ontario to set emissions reduction targets, they do not need to have any scientific basis or consider the Paris Agreement goal of keeping global temperature rise below 1.5 C or at least well below 2 C.
Ontario’s target for 2030 is far weaker than both the previous one and the global target agreed in Glasgow in 2021.
The lower court judge found in April of 2023 that Ontario’s target “falls severely short of the scientific consensus as to what is required” and “the gap between the Target and the reduction percentage that is required globally by 2030 is large, unexplained and without any apparent scientific basis.”
The lower court nevertheless dismissed the case.
Positive or negative rights?
The lower court decided that the youth are claiming a “positive” right to have the government take action to protect them against the harms of climate change.
The logic of this “positive” right goes like this, according to the court. Climate change, not the government’s climate target, endangers lives and health. The government is trying to reduce climate risks, but is not doing enough, and has a positive obligation to protect people from these hazards. The court went on to hold that no such positive obligation exists.
The appeal court confirmed what the youth — and numerous scholars such as myself — have always argued. They assert that by adopting climate targets that fall far short Ontario is actively authorizing, incentivizing and committing to dangerous levels of greenhouse gas (GHG) emissions that impact young people disproportionately.
The appeal decision is a landmark in the fight against climate change because it recognizes that the youth are asserting a “negative” right to be free from state interference that exacerbates climate risks, not an unprecedented “positive” right.
This decision is important because it avoids the need to prove a freestanding positive right to life, health or equality, which Canadian courts have not yet recognized.
Instead, it fits this case into the well-established principle that where a government creates a legislative scheme to remedy a problem, the scheme must comply with the Canadian Charter of Rights and Freedoms. Specifically, having voluntarily undertaken a statutory obligation to act on climate change, Ontario must do so in a way that upholds Charter rights.
No more empty commitments
The decision puts governments across Canada on notice that climate change targets and plans are not just “glossy brochures.” When they make statutory commitments to combat climate change, governments must implement measures that actually “do something about climate change” and uphold Canadians’ constitutional rights.
This ruling sends a clear message that the days of empty legislative commitments to combat climate change or achieve “net zero” are numbered.
This is a crucial message for federal, provincial and territorial governments that continue to set — and miss — inadequate targets while the latest Emissions Gap Report shows that “we are out of time.”
The decision is important for other reasons. It confirms that climate change is underway, is human-caused, disproportionately affects youth and Indigenous peoples, and every tonne of GHG makes a difference.
Moreover, the appeal court roundly rejected Ontario’s argument that ordering it to adopt a science-based target would constitute a judicial takeover of climate policy. It ruled that such an order can leave plenty of room for governments to decide what to do and how to do it. It also confirmed that the court has clear scientific and legal standards to judge the adequacy of the government’s actions.
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The young claimants are not home free. The court sent the case back to the original judge to determine whether Ontario’s climate target actually violates the Charter. They need to prove that the target violates principles of fundamental justice and that it singles them out on the basis of their age.
But the decision puts the young claimants a long way toward proving their case.
Finally, the decision has implications beyond climate policy: its logic applies whenever a government voluntarily assumes a statutory obligation to tackle a problem, be it housing, mental illness or toxic drugs. Simply put, it could be a constitutional game-changer.
Stepan Wood receives funding from the Canada Research Chairs program.
This article was originally published on The Conversation. Read the original article.
