Disclosure: Jason MacLean is affiliated with the Pacific Centre for Environmental Law and Litigation, which supported the Canadian youth climate plaintiffs.

Last week, the Federal Court dismissed a case 15 young Canadians brought against the federal government because of its record on climate policy.

The plaintiffs filed their case in October 2019, claiming their rights to life, liberty and equality were being violated because Ottawa had not done enough to protect them against climate change, despite knowing for decades that it will disproportionately harm children.

The court concluded that it was “plain and obvious” that the case was doomed to fail, making a full trial pointless.

Intentionally or not, the court has given Canadians a big wake-up call. It shows that citizens need to take action on climate. Here’s why the case failed, and what’s next for climate policy in Canada.

What was the youth climate case about?

In the case, La Rose et al. vs. Her Majesty the Queen, the plaintiffs argued that Canada’s climate inaction violates their constitutional rights and the rights of all children and youth in Canada — now and in the future.

They argued that the federal government has a public trust duty — a fiduciary obligation — to protect the common natural resources such as air (including the atmosphere), water and the Arctic permafrost critical to sustaining human life and liberties.

Read more: Collapsing permafrost is transforming the Arctic’s waterways

Finally, they requested an order requiring the government to create a legally binding climate plan consistent with Canada’s fair share of the remaining global carbon budget necessary to stabilize the Earth’s climate system.

An eroding coastline exposes permafrost along the Mackenzie Delta. Photo: Roger McLeod / Natural Resources Canada

Why did the court dismiss the case?

The Federal Court determined the constitutional arguments are so political that the courts are unsuited to deal with them. Their claims question the whole of Canada’s response to climate change, which the court decided is a matter for the legislative and executive branches of government, not the judiciary.

While the court concluded the public trust argument raised a properly legal — not political — question, it found this argument too broad and unprecedented to succeed at trial.

But haven’t climate cases succeeded elsewhere?

Climate cases have had mixed success around the world, but some courts have sided with the plaintiffs’ push for greater government action.

In 2015, a Dutch court set a legally binding emissions target and deadline for the Netherlands, and the Dutch Supreme Court confirmed the ruling last year.

In 2018, the Supreme Court of Justice of Colombia ruled in favour of 25 child plaintiffs who argued their rights to life, water, food and a healthy environment were threatened by increasing deforestation in the Amazon.

And in the summer of 2020, the Supreme Court of Ireland rejected Ireland’s National Mitigation Plan because it failed to specify how Ireland will transition to a low-carbon economy by 2050. The court ordered the government to create a concrete plan.

Canadian climate advocates hoped these cases would help convince our courts to hold the government accountable for its inadequate action on climate change. But these cases differ from the Canadian case in two important ways.

First, each had a specific legal basis for judicial intervention. In Colombia and the Netherlands there’s a constitutional right to environmental protection. In Ireland the plaintiffs based their claim on the government’s inadequate implementation of Ireland’s Climate Action and Low Carbon Development Act. Canada has neither a constitutional environmental right nor a single, all-encompassing climate law.

Second, Canadian courts have no appetite to tackle climate change. They prioritize the legal status quo and repeatedly decline to rethink our laws to meet the existential threat of climate change.

Read more: ‘It is our future on the line’: young B.C. residents call for action on climate change

In dismissing the youth climate case, the court acknowledged that climate change is serious, but not serious enough to reconsider the reach of the constitution. The court explained that it “cannot circumvent its constitutional boundaries … no matter how critical climate change is and will be to Canadians’ health and well-being.”

What’s next for Canadian climate policy?

The Federal Court’s ruling slams the door on big, “holy grail” climate cases in Canada.

There’s still an important role, however, for smaller climate cases that focus on specific policies and projects. A proposed coal mine in Alberta, for example, will likely be challenged in court because of its climate impacts and local contamination risks.

Small, unsexy climate cases are important, but they won’t save us. They take too long, and even when they succeed in stopping destructive projects, they don’t help us imagine sustainable alternatives to business as usual.

What’s being done elsewhere?

A leading climate law expert called the Colombian Supreme Court of Justice’s 2018 ruling “one of the strongest environmental decisions ever issued by any court in the world.” While that may be true on paper, its impact on the ground is another story. The Colombian government hasn’t complied with the court’s order and deforestation in the Colombian Amazon continues.

But that hasn’t stopped the Colombian youth plaintiffs from working with lawyers, researchers and Indigenous knowledge holders to create the “intergenerational pact for the life of the Colombian Amazon” ordered by the court. The pact must include “national, regional and local actions of a preventative, obligatory, corrective and pedagogical nature.”

By imagining a sustainable future for the Amazon and themselves, the Colombian youth plaintiffs are building broad political pressure to force the Colombian government to step up. The efforts of the Colombian youth plaintiffs are an example of the “good Anthropocenes” approach.

Good Anthropocenes are positive and hopeful scenarios for people and the planet. These scenarios are developed by communities from the bottom-up. They’re realistic, because they’re grounded in concrete practices. But they’re also radical, because they’re transforming the status quo.

Examples are many and diverse:

1. The Rotterdam Port Industrial Petrochemical Cluster’s decarbonization via renewable energy development, which requires new investment strategies to support the long-term transformation of the Netherlands’ electricity grid.
2. Predator Free New Zealand 2050, a biodiversity conservation initiative combining Māori environmental principles with the needs and know-how of agricultural workers.
3. The global Transition Town movement is creating self-sustaining economies through re-skilling, local food security and community-owned energy production.

So what does this mean for Canadian climate policy-making?

The federal court dismissed the youth climate case because climate policy is a matter of politics, not law.

We can’t afford to wait years for confirmation of the government’s obvious climate responsibility. We have to act now by envisioning sustainable futures for our communities, and demanding our governments help us make those visions a reality. Canadian examples of good Anthropocenes include:

1. Iron and Earth, an organization committed to re-skilling workers in Canada’s oil and gas industry for the renewable energy sector.
2. Tribal parks, where Indigenous peoples manage land and biodiversity using traditional ecological knowledge.
3. Cities for People, a multi-stakeholder initiative imagining how to transform cities into more inclusive, liveable and resilient spaces.

Each of these projects is doing what no court can do: bringing people together to imagine and put into practice new and sustainable ways of living.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

ForestEthics Advocacy Association, represented by Canadian civil rights and constitutional lawyer Clayton Ruby, is suing the Harper government over new rules that restrict citizens' ability to participate in public decisions about the energy industry.

The lawsuit, filed in Toronto today, calls for the Federal Court of Canada to "strike down provisions of the National Energy Board Act that unreasonably restrict public comment on project proposals," and challenge "new rules created by the National Energy Board (NEB), which prevent any discussion of the wisdom of tar sands development at the upcoming Enbridge Line 9B hearings."

The NEB regulates Canada's oil, gas and electricity industries, and approves all of its pipeline construction, mining, natural gas projects, and tar sands development.

The NEB's decisions have vast environmental and health repercussions, and ForestEthics Advocacy is arguing that blocking Canadians from participating in those decisions "violates citizens' right to free speech and puts our natural environment at risk."

The changes being targeted by the lawsuit were introduced via the 2012 Omnibus Budget Bill C-38, which also officially withdrew Canada from the Kyoto Protocol. As ForestEthics Advocacy explains in its backgrounder, buried in Bill C-38 were provisions preventing citizens from commenting at NEB hearings or giving written submissions to the Board.

Because of the new legislation, citizens wanting to participate in NEB hearings now have to "submit a nine-page application to the National Energy Board (NEB) justifying their right to speak to the issue." The NEB then chooses who does or doesn't get to speak, reserving "the right to exclude anyone except for those that it considers to be 'directly affected' by the proposed project."

The legislation has proven an effective tactic for muzzling Canadian voices. According to ForestEthics Advocacy, 1,544 people/entities were able to give testimony in 2012 at the NEB hearings for the Enbridge Northern Gateway pipeline, before the changes. This year, because of the new rules, only 175 will be allowed to speak at the hearings for the Enbridge Line 9B reversal project.

The project calls for the reversal of the 9B pipeline, which currently transports conventional oil across Quebec and Ontario, so that it can carry heavy crude including tar sands oil. The pipeline "crosses every Canadian river flowing into Lake Ontario, threatening the drinking water of millions."

The 9B project is the first pipeline proposal to come under authority of the new NEB rules. ForestEthics Advocacy warns that "there are other substantial pipeline projects in the queue," and that if the new NEB rules remain in place, "thousands of Canadians will be precluded from submitting comments on these and other projects."

According to Ruby, "the Conservative government has undermined the democratic rights of all Canadians to speak to the issues that impact them." Ruby says that he and ForestEthics are fighting the legislation and the NEB's new rules because they "violate fundamental free speech guarantees enshrined in the Canadian Charter of Rights and Freedoms."

"The amendments not only restrict who can speak to issues before the National Energy Board, but they also limit what those individuals are allowed to say," says ForestEthics Advocacy board member Tzeporah Berman. Berman thinks Canadians "deserve a fair public debate about the future of our economy and energy systems," but simply "aren't getting it."

Also joining the lawsuit is writer and member of the United Church of Canada Donna Sinclair, whose request to submit a letter of comment at the upcoming Enbridge Line 9B reversal project hearings was denied under the new rules.

"Tightening the rules around public participation to the extent that any citizen of this country – regardless of expertise or geographical location – cannot express their concerns is an extraordinary and profoundly dangerous affront to our democracy. I love my country and my beliefs call on me to respect our environment. That is why I chose to join this lawsuit," says Sinclair.

ForestEthics Advocacy is currently holding a 72-hour online fundraiser to cover the cost of the lawsuit's start-up fees, which come to $150,000. The target is $50,000, which will be matched to the dollar by two undisclosed donors.

ForestEthics Advocacy urges people to contribute and "fight for Canadians' right to speak up for the rivers, forests, lakes and landscapes that are threatened by tar sands expansion and proposed pipeline, rail and tanker projects."

Image Credit: Heather / Flickr

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.