Youth Climate Lawsuit Still On Track After Ontario Rolls Back GHG Rules
The seven youth applicants behind a landmark climate rights lawsuit have agreed to delay a court hearing originally scheduled for next week but are certain they still have a case, after the Ontario government quietly scrapped laws that require it to set and update its greenhouse gas reduction targets and pursue a plan for achieving them.
“Three weeks ahead of the hearing, the province revealed plans to remove key sections of the Cap and Trade Cancellation Act in its Fall Economic Statement,” environmental law charity Ecojustice wrote Wednesday, in a release issued six years to the day after the seven youth launched their case, Mathur v. Ontario. “This includes removing the statutory requirements that Ontario set greenhouse gas emissions reduction targets, maintain a climate plan, and issue regular progress reports. Yesterday, after limiting debate, the government passed these changes into law.”
But the government’s action doesn’t undercut the youth applicants’ rights under the Canadian Charter of Rights and Freedoms, two of the youth and several of their lawyers told a media briefing Wednesday morning.
The youth behind Mathur v. Ontario has already “made legal history in Canada by arguing that the province’s inadequate climate target and plan violate their Charter rights,” the release adds. Now, “removing these statutory obligations at the very moment when the Ford government would be forced to defend its target and plan amount to a last-minute attempt to avoid accountability.”
The case was set to go back to court December 1-2, but it’s now been adjourned [pdf] while the parties and Ontario Superior Court Judge J. Vermette assess the implications of the province’s latest move.
“When someone has to change the rules mid-game, it’s usually because they’re losing,” lead counsel and Stockwoods LLP partner Nader Hasan said in the release. “The timing of these ‘amendments’ is not coincidental. These changes are yet another attempt by the Ford government to sidestep its responsibility to protect young people and future generations from the harms of climate change.”
During the news conference, Hasan said he expected provincial lawyers to argue that Mathur is now moot, since the Ford government has gutted its own legislation establishing any duty to take action on the climate emergency. But he said legislative changes can’t reverse the youth applicants’ Charter rights.
“The Court of Appeal made it very clear when they issued their ruling allowing our appeal, essentially concluding that if the government acts in the area of greenhouse gas emissions, they have to do so in a way that is Charter-compliant,” he told reporters. “So the government read that Court of Appeals decision narrowly and said, if you don’t like our climate legislation, we’re just not going to have any climate legislation anymore, and now the case is moot. That’s the government’s argument.”
Hasan said he couldn’t think of a “more cynical approach to dealing with one of the greatest challenges humanity is facing: rather than facing scrutiny and criticism for their inadequate work on this monumental existential challenge, the government said [it wants] to avoid scrutiny and regulation altogether, so we’re not going to do anything at all,” a strategy that amounts to “crass politics of the most cynical nature.”
But beyond being outraged, “our view is that this is not moot,” he added. “The government’s obligation to behave responsibly on climate change, the government’s obligation to limit greenhouse gas emissions to safe levels, that exists regardless of any particular government legislation. It exists as a matter of Charter rights,” and “regardless of the repeal of this existing legislation, those rights continue to exist.”
While the province’s latest move “has forced us to retool some of our arguments” and delay a hearing on the merits of the case, “it is by no means moot by virtue of the government’s latest decision.”
During the media briefing, applicants Madison Dyck and Shaelyn Wabegijig traced the severe climate impacts they’re already seeing in their lives and their communities, with Dyck pointing to the time it’s taken to win a court hearing on the merits of their lawsuit.
“In many ways, the seven of us have grown up together as this case has made its way through the courts,” she said. “We’ve graduated high school, started careers, begun and finished university, and some of us are even thinking about starting families of our own. All the while, we’ve remained committed to this fight.”
Late last month, lead applicant Sophia Mathur was before the House of Commons Standing Committee on Environment and Sustainable Development, urging federal MPs to “listen to the evidence, respect the experts, and keep their promises. Because for me, this isn’t just about emissions targets. It’s about integrity.” One committee member acknowledged that Mathur might have been the youngest witness ever to appear before the committee.
“Funny enough, I have a math midterm right after this,” Mathur said in her opening statement.