Ottawa argues youth-led climate change lawsuit too broad to be tried in court

Federal lawyers argue that a lawsuit alleging the Canadian government has violated the charter rights of 15 youth is far too broad to be heard in court and should be thrown out.

The case, La Rose et al. v. Her Majesty the Queen, was initially filed on Oct. 25, 2019, and involves more than a dozen children and teens from across Canada who are making a relatively novel legal argument — that their rights to life, liberty, security and equality are being violated because Ottawa has not done enough to protect against climate change.

Hearings began in a federal court in Vancouver on Sept. 30 and are expected to last two days. Justice Michael Manson will then decide if the case should be heard in a federal court.

In the defence submission, federal lawyer Joseph Cheng said greenhouse gas emissions are cumulative and a worldwide problem that affects all countries, and so Canada cannot act alone to resolve the impact of climate change.

Cheng argued the plantiffs' case was not 'justiciable,' meaning that it falls well beyond what the courts can meaningfully adjudicate. He said the courts are best suited to address individual laws — not complex issues like climate change.

The defence referred to a similar lawsuit filed against Canada over its failure to meet emissions targets under Kyoto Protocol on climate change. In that case, a federal judge dismissed the suit, concluding that was no practical way of enforcing a government to meet its climate goals.

"The plaintiffs ask directly for this court to supervise the development and implementation of policy that would engage matters that would take it so far beyond the limits of its institutional capacities, and directly into the political arena," said Cheng.

CBC News has previously reported that the federal government urged a judge to throw out the case, but to no avail. 

Youth argue livelihoods threatened

The statement of claim was filed the day teen climate activist, Greta Thunberg, visited the Vancouver and led a climate strike rally attended by thousands.

The claim says that "despite knowing for decades" that carbon emissions "cause climate change and disproportionately harm children," the government continued to allow emissions to increase at a level "incompatible with a stable climate capable of sustaining human life and liberties."

There is no explicit environmental right in the Canadian Charter of Rights and Freedoms. 

The young plaintiffs want a judge to rule that such a right is implicit, as with a number of other rights, such as sexual orientation. They claim the government has infringed on their constitutional rights to life, liberty and security of the person by standing idle as the climate shifts.

Plaintiff Haana Edenshaw, 17, of the Haida Nation, says she is experiencing the effects of climate change on her very doorstep in the village of Masset on Haida Gwaii off B.C.'s North Coast.

"The water comes right up past our porch, it goes by the door of my room, and it's really scary because it's just going to keep on getting worse every year," Edenshaw told Laura Lynch, host of CBC Radio's What on Earth.

"My rights are frankly being violated and just knowing that is very empowering — knowing that I have the right to security of person, knowing that I'm entitled to clean water and clean air," she added.

The stakes are high. If the young people win, a court could force the government to overhaul its plans, reducing Canada's harmful emissions more rapidly and potentially ending fossil fuel industry subsidies.

"This case — it's the only way forward," plaintiff Ira Reinhart-Smith, 16, told What on Earth.

"We can't wait for the government to keep saying, 'We'll make a plan that will be up to the most current science.' We need them to be forced to make a plan that's to the current science, because unless the courts are ordering them to do that, we've seen in the past they're not going to follow up on the promises," said Reinhart-Smith, of Caledonia, N.S.

Reinhart-Smith and the others in the case were brought together by Our Children's Trust, a non-profit public interest law firm based in Oregon that has helped organize similar lawsuits in the United States and elsewhere. 

The plaintiffs are from B.C., Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia and the Northwest Territories. 

For more on this story, tap here to listen to the Sept. 27 episode of What on Earth with Laura Lynch.