By Fatima Syed
The Great Lakes News Collaborative includes Bridge Michigan, Circle of Blue, Great Lakes Now at Detroit PBS, Michigan Public and who work together to bring audiences news and information about the impact of climate change, pollution, and aging infrastructure on the Great Lakes and drinking water. This independent journalism is supported by the Charles Stewart Mott Foundation. Find all the work HERE.
Seven Ontario youth have won a significant battle in their legal challenge of the provincial government’s carbon emission reduction policies.
Backed by environmental law charity Ecojustice and law firm Stockwoods LLP, the group of young people launched a lawsuit in 2019 in response to the Doug Ford government’s decision to cancel the cap-and-trade program. The program set limits on industrial greenhouse gas pollution, allowing companies to exceed it by purchasing emissions credits from others emitting below their limit. As part of the same legislation, the government set a provincial emissions reduction target of 37 per cent below 1990 levels by 2030.
Lawyers for the youth argued the Ontario government dropped the emission reduction targets and replaced them with weaker ones when the province repealed the cap and trade program.
The youths’ case was heard and dismissed by the Superior Court in September 2022. Last month, the Ontario Court of Appeal ordered a new hearing, finding the case was incorrectly dismissed because the court had mischaracterized the youths’ argument.
The case is a first for Canada in many ways. It is the first to connect climate action to charter rights. It is the first to legally challenge a government’s emissions target. And if it succeeds, it will be the first case in North America to force a government to meet higher emissions reduction targets than the ones it sets.
The United Nations Intergovernmental Panel on Climate Change states emissions reductions of 45 per cent below 2010 levels by 2030 are needed to avoid the worst impacts of the climate emergency — which will disproportionately impact youth and Indigenous communities. That equates to at least a 52 per cent reduction of Ontario’s 2005 emission levels. Since repealing the cap-and-trade program, the Ford government has loosely committed to achieving a 30 per cent reduction in greenhouse gas emissions from 2005 levels by 2030. The youth argue the new target is inadequate, saying higher greenhouse gas emissions violate their constitutional rights to life, liberty, security and equality.
The case will head back to Superior Court for a new hearing at an unknown date.
The Narwhal spoke to Stockwoods lawyer Nader Hasan, one of several lawyers representing the youth. The case is one of many around the world asking the courts to scrutinize government climate plans.
Here are four takeaways.
1. Who are the youth involved in the legal challenge?
The case was brought forward by 17-year-old lead applicant Sophia Mathur and six others ranging in age from 17 to 29: Madison Dyck, Shelby Gagnon, Beze Gray, Zoë Keary-Matzner, Alex Neufeldt and Shaelyn Wabegijig. Mathur is from Sudbury. Her co-applicants come from across Ontario, including Thunder Bay, Ottawa, Peterborough and Toronto.
Three of the applicants are Indigenous. Gray is a member of Aamjiwnaang First Nation. Gagnon is from Aroland First Nation and Wabegijig is Anishinaabe from Mnjikaning First Nation.
2. Why did the youth lose in court the first time around?
Legal cases grounded in charter rights require proof these rights were infringed upon by government action. In this case, Hasan explained, the Superior Court judge interpreted the case to be about the province’s inaction on climate change as opposed to the impacts of the higher emissions allowed by the provincial plan. The judge concluded the court could not oblige the province to fight climate change and dismissed the case.
The Appeal Court — Ontario’s top court — disagreed, finding the provincial government had made a statutory commitment to combat climate change.
“There is not a single carbon-emitting activity in this province that Ontario is not involved in regulating,” Hasan told The Narwhal. He said Ontario has jurisdiction over and regulates “all of the highly intensive greenhouse gas producing activities, especially … automobiles and roadways and buildings.”
“We’re asking Ontario to stop and limit the amount of greenhouse gas emissions that it’s authorizing,” Hasan said. “We’re saying the government is interfering with our security, our liberty, our lives by implementing a climate policy that is woefully inadequate.”
“We’re not challenging government inaction,” he added. “We’re challenging government action.”
3. What did Ontario’s top court say about the case?
While the Appeal Court disagreed with the Superior Court’s interpretation of the case, Hasan said both agree “not only that climate change is an emergency that is going to cause catastrophic harms to Ontarians, Canadians, people around the world, but that Ontario’s policy and inadequate emissions target is actively contributing to these harms.”
The question is, “What is the appropriate remedy a court should issue to get Ontario to right this ship?” he said.
Hasan emphasized it was very significant for the Appeal Court to say the inadequacy of greenhouse gas emissions targets is subject to the charter, “because the government’s position all along has been, ‘We don’t dispute that climate change is real, but we think climate change policy is outside of the scope of judicial review.’ ”
Hasan believes the Appeal Court’s decision is “a very stern rebuke” to Ontario’s policy of polluting with impunity.
The province did not respond to a request for comment.
4. What do the youth hope to accomplish with their legal challenge?
Hasan said the intent of the youth-led case is not to tell governments what to do but to make them comply with scientifically and universally agreed-upon emission targets.
“We’re not saying the government can’t pursue particular projects. We’re not saying they can’t build a highway because that highway is going to contribute to greenhouse gas emissions,” Hasan said. “Go ahead and prioritize whatever policies and projects you want as a government, but you do it within the parameters of the Paris Agreement” to limit global warming to 1.5 C.
“At a minimum, we need to say that anything outside of the Paris standard is not going to be constitutional because that standard didn’t come out of the air,” he added. “If we don’t meet that target, then the worst effects of climate change will be locked in.”
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Featured image: The youth-led climate case against the Doug Ford government’s decision to weaken Ontario’s emissions-reduction target was brought forward by 17-year-old lead applicant Sophia Mathur (fourth from right) and six others ranging in age from 17 to 29. (Photo Credit: David LeBlanc/Ecojustice)
