Alex Neufeldt, in Ottawa on Aug. 26, is one of seven plaintiffs suing the Ontario government for the cancellation of Cap-and-Trade Act.Dave Chan/The Globe and Mail
In 2020, seven young climate activists sued Ontario for violating their rights to life, liberty, security and equality. Mathur v. Ontario took particular issue with the province’s repeal of the Climate Change Mitigation and Low-carbon Economy Act, legislation that sought to reduce greenhouse gas emissions.
Alex Neufeldt, a part-time seamstress and fashion designer in Ottawa, was 23 when she and her six fellow litigants launched their case. At the time, she owned a business that rented dresses and was concerned about supply chain issues caused by climate change. She also suffered from climate anxiety, a mental-health challenge experienced by more than 50 per cent of young people around the world.
“A lot of people view environmental activism as a hobby,” Ms. Neufeldt said. “But for me, I’d love to be doing something else. I’m not doing this because I think it is fun … more just thinking that the world is on fire, literally in a lot of places, and we need to do something about it.”
In April, a judge ruled against Ms. Neufeldt and the other plaintiffs. However, Mathur v. Ontario marked the first time a Canadian court had accepted a climate-litigation case like it, a turning point in the movement to use the courts to fight climate change.
According to a UN report published in July, the number of climate-litigation cases has more than doubled since 2017. This month alone has marked some significant wins for climate litigation. On Aug. 14 a court in Montana sided with 16 young people who argued that the state’s support of fossil fuels violated their constitutional right to a healthy environment. On Monday, an independent panel of experts that interprets United Nations human-rights law said that climate change was a kind of “structural violence” for children, and that underage citizens had a right to seek legal recourse. While not legally binding, it is based on the Convention on the Rights of the Child, a treaty every country in the world – save the United States – has signed onto.
The courts are therefore becoming a place where activists can try to hold governments accountable for the climate promises they fail to keep.
But as Canada burns, a Hawaiian island continues to mourn the dozens killed in a terrifying wildfire and droughts ravage East Africa, activists and legal experts are left wondering if the courts are capable of tackling the problem. Canada’s justice system is slow and cumbersome. Climate change, on the other hand, is increasingly rapid, its ravages widespread. This begs the question: Are the courts equipped to deal with the scale and speed of the global crisis or will they argue the minutiae of legal procedures while the world burns?
Environmental law charity Ecojustice launched Mathur v. Ontario after gathering the seven young plaintiffs, ranging in age from 12 to 23, from across Ontario.
Its argument was straightforward, said Danielle Gallant, a member of Ecojustice’s climate-change team and part of the Mathur case’s legal team. It rests on Ontario’s 2018 decision to repeal the cap-and-trade program. Introduced by the federal government in 2017, the program sought to lower greenhouse gas emissions by putting a cap on the pollution companies in certain industries could emit. Those that surpassed their limits were required to buy allowances at quarterly auctions or from companies that had managed to come in under their limits.
The Ontario government’s repeal of the program (and its weaker greenhouse gas emissions targets) would exacerbate climate change, the plaintiffs argued, thereby violating their Section 7 and Section 15 rights under the Canadian Charter of Rights and Freedoms. Section 7 guarantees all people the right to life, liberty and security of the person. Section 15 guarantees all people the right to equality.
“Ontario’s actions threaten youth and future generations right under the Canadian Charter because they will cause dangerous climate impacts in the province,” Ms. Gallant said.
Ultimately, the judge dismissed the case on the grounds that the government had set an emissions reduction target, which demonstrated that the government was therefore not fully violating Charter rights.
Despite the setback, it was still a sizable win for the cause of climate litigation – the first time a case of its kind had been permitted in the courts. Previously, such cases were deemed “non-justiciable” – too political for the courts to decide.
The court also found that Ontario’s emissions-reduction target fell short of the scientific consensus on what is needed to tackle climate change. The judge also agreed that young people are disproportionately affected by the harms of climate change.
Ecojustice immediately launched an appeal, making Mathur v. Ontario one of a growing number of climate-litigation cases around the world. According to the July UN report, 2,180 such cases were launched in 2022, up from 884 in 2017. These cases take numerous forms, from youth action against governments to older women in Switzerland who sued on the basis that they can suffer disproportionately from temperature increases owing to illnesses such as multiple sclerosis. They also include the 2022 decision in which the Hague District Court ordered Shell to reduce its CO2 emissions by 45 per cent from 2019 levels by 2030. Seventy per cent of such cases are filed in the United States (1,522); Canada ranks sixth on the list, behind Australia and the U.K. and ahead of New Zealand and France.
A global legal precedent on climate change is important, said Steve Lorteau, a candidate for a doctor of juridical science degree at the University of Toronto who focuses on land-use law and is conducting a statistical analysis of global climate litigation.
He noted that the Supreme Court of Canada decision on carbon pricing in 2021 referred to three international decisions from the U.S., the Netherlands and Australia. He also noted that international commentary, like the UN Rights of the Child report published Monday, can be referred to by courts, as well as motivating domestic climate-change efforts.
However, he pointed out that cases take a long time to make their way through the courts. Both the Montana and Ontario cases started in 2020. Both are also being appealed, which will take at least another two years, he said.
Delays are a problem that spans the Canadian judicial system, according to investigations by The Globe and Mail. Judge vacancies and the pandemic backlog are often to blame. However, the climate litigation delays are partly owing to the fact the cases often include complex scientific analysis. For example, the Montana decision included more than 100 pages of research, evidence and expert analysis. The cases are also novel.
“In a lot of these cases, they take a lot of time,” Mr. Lorteau said. “They require NGO support, resources, lawyerly expertise, and that really limits climate litigation as a sole or primary strategy to address climate-change harms.”
Tribunals are an option some jurisdictions, including Ontario, have considered, he said. They are faster because the panel members are experts. However, tribunals are best equipped to deal with lower-hanging issues, such as permitting, not constitutional challenges.
Ms. Neufeldt saw the delays firsthand. She recalled spending three days in a hearing, listening to lawyers argue over technicalities. She said that while she recognizes that this is an important part of the process, it pales in comparison to the mountain of challenges facing her generation.
“Sometimes you’re like, ‘Why are we even discussing this right now? Why are we even arguing about our right to a livable future?’”