COURTS AND CLIMATE: TRANSFORMING LEGAL LANDSCAPES THROUGH LITIGATION
Earlier in August, the state of Montana made the news and no, it wasn’t about Yellowstone’s sequel series… For the first time in US history, the right to a safe climate was recognized as a constitutional right. How? A group of determined young plaintiffs clinched a remarkable victory in what marked the nation’s inaugural constitutional climate trial. This could set the tone for climate litigation in the US and around the world.
Meanwhile, up here in Canada, Bill S-5 has finally found its way through. The bill recognizes something seemingly straightforward yet profoundly vital: the right to a clean, healthy and sustainable environment as a human right. Seems pretty basic, but there are still some (too many) Indigenous communities without access to clean drinking water in Canada.
So what does that bill mean exactly? It means the right for everyone to:
As well as:
- Government obligation to protect the environment
- Sustainable use and management of natural resources
- Public access to information and participation in environmental decision-making
- Individuals and communities are entitled to seek legal remedies for environmental harm
Maybe you are wondering what exactly is climate litigation? We’ve asked POW Canada Science Alliance member David Spies to give us a little crash course. But let’s backtrack a bit and grasp the Canadian legal landscape first.
The legal system operates independently from other branches of the government, ensuring it remains uninfluenced by external factors. One key point to remember: court decisions are bound by the rulings of higher courts within the country. And when the Supreme Court speaks, it’s the final word - there’s no room for appeal. Now, here’s an interesting twist. When the Constitution was crafted, the environment wasn’t clearly placed under federal or provincial jurisdiction. This opens up intriguing avenues for climate litigation, but it also adds a layer of complexity. While there’s ample room to pursue legal actions related to climate issues, the absence of specific government accountability makes the process a bit tangled.
These are a few synthesized important points but if you want to dig deeper, head to this article.
Now that we have a better grasp on how things work within the legal system, what exactly is climate litigation?
In light of the recent events we’ve experienced this summer, the need to confront the risks and effects of climate change has become more pressing than ever. Climate litigation is increasingly used as a tool to tackle these issues. Think of climate litigation as a way for concerned individuals to take action. These cases are brought before the courts with the aim of holding those responsible for climate issues accountable.
We have seen an increase in strategic and sophisticated climate litigation in recent years, both domestically and internationally, in which judges consider climate justice, human rights, and the right to a healthy environment. Just like the Montana case, amongst others.
Who are these suits generally brought up against?
- Governments — For example, public law actions raising human rights, constitutional and administrative law issues; and
- Corporations — For example, private law actions, such as tort law (i.e. seeking damages), company law, or securities law.
How does someone have their case heard in front of a judge?
Let’s break down a legal concept that might not be your everyday topic: standing. To get your case heard in court, you need what’s called a standing (think of it as your lift ticket to enter the legal resort;)). There are two types of standing, private and public interest.
Private standing is your personal right to take a matter to court when it directly affects you. For instance, if you’re in a car accident, you’d want to see compensation for the damages you’ve suffered. That’s your private standing in action.
Public interest standing is a little different. It allows individuals or groups to bring a case to court, even if they’re not directly involved in the situation. It comes to play when there’s a larger issue at stake, like challenging government decisions that could impact everyone. This type of standing is crucial for cases where the focus is on the greater good, not just individual rights. A good “real-life” example that happened recently in Canada would be Mathur et al. v. Her Majesty the Queen in Right of Ontario (“Mathur”). This case was brought by 7 youths alleging the Ontario government violated the Charter by abandoning its responsibility to address climate change. The youth plaintiffs stated that this lack of ambition poses a serious risk to the health and wellbeing of their generation and future generations in Ontario.
As mentioned above, Montana just announced a historical win on the climate litigation matter. But what is the situation in Canada? With Bill S-5 now being passed, we know it has to be taken into consideration. What’s next?
Prior to the bill passing, Mathur had been the case receiving the most attention and represented the first time in Canadian history that a court was asked to recognize climate change as a potential violation of the Charter. But last April, the case got dismissed. However, this lengthy process marks the first climate litigation case of its kind to surmount significant procedural obstacles and progress to a full hearing before the Ontario Superior Court. Despite the outcome, the Mathur case represents a pivotal moment in Canadian climate change law, as it recognized the severity of the climate crises and the government’s responsibility to take action to protect fundamental Charter rights.
Now, future applicants to the court in cases like Mathur have a legislative basis to build their case upon. The Bill places a duty upon the government to ensure they promote, uphold and enforce the principles of equality and environmental justice, whether for the current generation, or future ones. It is of the utmost importance to continue holding the government accountable for their obligations.
Over the next 24 months, the government must develop an implementation framework that will describe how they plan to protect the right to a healthy environment.
This is an important and exciting step forward for climate justice in Canada. We expect to see many communities using this new legislative tool to assert their right to a healthy future. Over time, this should impact corporate policies and behaviours also, as they seek to avoid litigation and protect themselves from damages.
A legal win for the climate is a win for all of us.