The youth climate activists from Ontario, Canada challenging their provincial government’s scaled back climate policy through the courts continue their battle for accountability as their case came before the appellate court this week in a critical hearing.
On January 15, the Ontario Court of Appeal heard oral arguments in the youth climate case Mathur et al. His Majesty in Right of Ontario, which contends that the Ontario government’s relaxed 2030 greenhouse gas emissions reduction target exacerbates grave climate harms in violation of the fundamental rights of youth and future generations under the Canadian Charter of Rights and Freedoms. The lawsuit, brought in 2019 by seven young people from across the province, advanced to a hearing on the merits in September 2022 – the first rights-based climate case in Canada to reach this stage. Despite affirming many of the youth applicants’ points, the Superior Court ruled in April 2023 to dismiss the case, a decision currently being challenged on appeal.
“Our fight against Ontario’s inadequate climate targets is undeterred,” 16-year-old applicant Sophia Mathur of Sudbury, Ontario said in a statement. “Heading to the Court of Appeal, we stand resolute, unwavering in our commitment to protect the rights of all and secure a sustainable future for generations to come.”
“Backtracking is Unacceptable”
The litigation arose in response to action taken by the province’s conservative government, under the leadership of Premier Doug Ford, in 2018 to repeal Ontario’s 2016 climate law that established a cap-and-trade program and set GHG emissions reduction targets. Rather than upholding or strengthening the 2030 target of 37% reduction (below 1990 levels), the government’s new plan rolled back the target, setting it at 30% reduction (below 2005 levels).
According to Danielle Gallant, a lawyer with the nonprofit organization Ecojustice that is supporting the youth applicants in the case, this move was completely inconsistent with climate science and warranted a rights-based legal challenge.
“We say in doing so they violate youth and future generations’ rights to life, to security of the person and to equality protected under the Canadian Charter of Rights and Freedoms,” Gallant explained in a phone interview.
“Ontario has done what not many governments have done in the world and that is to take a step backwards on climate action, when the world’s scientists tell us we have to do more rather than less,” she said. “I think this element of backtracking is unacceptable.”
“In this day and age given the extent of the crisis and what we know will happen,” Gallant added, “there’s no excuse for governments to set targets that are so out of line with science.”
While the Superior Court agreed that the weakened target lacked scientific basis and that inadequate climate action poses an increased risk of harm to young people, it determined that the scaled back policy was not ‘arbitrary’ and did not amount to Charter violations. The youth applicants’ legal team argued at the Court of Appeal that this finding was erroneous, given the court’s acknowledgement that the target fell severely short of the scientific consensus on climate mitigation.
Gallant said the team also argued that the government was affirmatively endangering young people. “This is not a case about mere inaction…the government is actively stepping in and increasing the risk of harm and death to Ontarians.”
Nearly a dozen intervenor groups representing constituencies such as parents and grandparents, Indigenous communities, and doctors and physicians appeared in court to speak in support of the young Ontarians’ case, Gallant said. The youth applicants were there as well, and it was the first time they were able to physically be in court since previous hearings were held remotely.
A decision could come within the year, and the case is likely to then go to Canada’s Supreme Court regardless of the outcome as a final appeal is expected.
If the lawsuit is ultimately successful, the courts could order Ontario to set a new 2030 target that is grounded in the science. That is one remedy the applicants seek. They also want the courts to declare that the province’s current policy violates their Charter rights.
Outside of Canada, rights-based climate lawsuits against governments have seen some successful outcomes, mostly in Europe. In the US a state court judge delivered a groundbreaking victory last summer to young people in Montana who sued their state government over a fossil fuel-friendly policy that contravened climate science. The state is currently appealing that decision, which remains in effect with the Montana Supreme Court this week denying the state’s request to stay (or pause) the ruling while the appeal is underway. Gallant said that Montana’s historic verdict “was a source of hope, because the US is such a larger emitter. So to see a jurisdiction within the US finally be held accountable means a lot to the rest of the world.”
Like the Montana case, the litigation in Ontario is part of a broader trend of youth turning to the courts amidst the worsening climate emergency, and the stakes are incredibly high.
“It’s their generation that stands to bear the brunt of climate change,” Gallant said. “For them this issue is existential. They’re fighting for their right to a livable future.”