Historic lawsuit challenging government over climate inaction begins trial hearings
After a seven year wait and a circuitous path through the justice system, a climate lawsuit against the federal government is finally getting its trial hearings this week in Vancouver.
Youth plaintiffs are arguing in Vancouver that climate inaction violates their Charter rights
Inayat Singh · CBC News
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After a seven-year wait and a circuitous path through the justice system, a climate lawsuit against the federal government is finally getting its trial hearings this week in Vancouver.
The lawsuit, launched by 15 youth applicants who claim their Charter rights to life, liberty and security of the person have been violated because of the government’s inadequate action on fighting climate change, was first filed in 2019. It was initially dismissed by the Federal Court, then sent back for a full hearing by the Federal Court of Appeal.
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It is the most prominent of several legal challenges based on climate policy across Canada, and has gotten further than any others. This is the first time such a lawsuit will receive a full hearing in court, with the potential for a precedent-setting judgment that could influence Canadian law and inspire other climate lawsuits around the world.
Nine of the 15 youth plaintiffs in the case in Vancouver when it was first filed in 2019. (Ben Nelms/CBC)
What do the applicants want?
The applicants want the court to declare that not doing enough on climate action is, in fact, a violation of Canadians’ rights.
Their key argument is that the federal government’s landmark climate law, the Net-Zero Emissions Accountability Act, puts the country on an emissions trajectory that is inconsistent with a safe and livable future.
Essentially, the lawsuit argues that despite the government’s emissions targets and current policies to decarbonize, it still is not aligned with what scientists say is required to stave off the worst impacts of climate change.
“It's hard to see how our governments aren't taking the proper stand needed to combat this crisis because it seems so urgent to me,” said Sadie Vipond, one of the applicants in the case.
Vipond was seven years old when she remembers her grandmother waking her up in the middle of the night, telling her they needed to flee from rising waters during the 2013 Calgary floods. She was 13 when she joined the climate lawsuit, and has experienced many more climate-related disasters since then — wildfire smoke, extreme heat waves and a near-repeat of those Calgary floods. She’s now a student at the University of British Columbia studying environmental science.
As a remedy, Vipond and her fellow applicants want the government to develop a new climate plan that’s backed by the latest scientific evidence on avoiding climate impacts, and open to further judicial review to make sure it remains strong.
"I would like to see my country be able to take a stand for what I know is right," said Vipond.
How will the trial unfold?
The hearings begin on Monday, and the applicants and their expert witnesses will be testifying in the first two weeks. Vipond and other applicants will speak about the climate harms they have experienced — which have piled up in the past seven years as extreme heat, wildfires and flooding have touched the lives and millions of Canadians.
The applicants will have eight expert witnesses, including prominent climate scientists and experts in health, international law, clean energy and Indigenous rights. Two of their witnesses have been lead authors for the Intergovernmental Panel on Climate Change, the premier global climate science agency that advises the UN.
The government is expected to present their side in the third week, with four witnesses who are experts in climate science, law and economics.
The government is not disputing that climate science is real and causing harm. But it is expected to argue that Canada's laws are not directly harming the youth plaintiffs, according to Columbia University's Sabin Center for Climate Change Law, which studies climate-related litigation worldwide.
A key legal debate in this case is whether Section 7 of the Charter, which guarantees life, liberty and security, imposes what's known as a "positive obligation" on the government. In other words: is the government constitutionally required to proactively protect Canadians from climate harms by enacting laws or other actions?
A court ruling on this question “would constitute a major development in Canadian constitutional law,” wrote human rights lawyer Catherine Savard, Canadian expert for the Sabin Center in New York City.
After the government witnesses, the hearings will take a break and both sides will return in February to make closing arguments.
The outcome will be closely watched around the world. The Canadian case is the first major climate trial since a landmark opinion from the International Court of Justice last year.
The global court found that countries could be in violation of international law if they didn’t take steps to reduce emissions, and countries that are suffering the impacts of climate disasters could seek compensation from the countries causing climate change.
“I think there is a very important role for the courts here in terms of protecting constitutional rights,” said David Wu, partner at the law firm Arvay Finlay who is representing the applicants.
“Are we going to allow governments to do what they want in terms of climate policy or targets or does our Constitution have something to say about it?”
ABOUT THE AUTHOR
Inayat Singh covers the environment and climate change at CBC News. He is based in Toronto and has previously reported from Winnipeg. Email: inayat.singh@cbc.ca
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