As frustration with government inaction grows, youth, especially young women, are occupying positions of leadership and taking governments to court to leverage change. In Canada, where climate change effects are stark, youth activism is on the rise.

Filed with the Canadian Federal Court in October 2019, La Rose v His Majesty the King, was brought by 15 young plaintiffs ranging from 10 to 19 years old. They argued that the Canadian government’s failure to take adequate climate action and halt fossil fuel development was breaching both sections 7 and 15 of the Canadian Charter of Rights and Freedoms and defaulting on public trust duties. The case was initially defeated by  a government motion to dismiss, but the youth have seen procedural victory three years later. In December 2023, the Federal Court of Appeal ruled that the case, albeit with amended proceedings and a more restrained cause of action, can proceed to trial. The decision joins La Rose and another case: Misdzi Yikh v Her Majesty the Queen.  This comment deals only with the La Rose challenge.

The Court of Appeal decision is generally a victory for the youth, yet it is disappointing in its treatment of the section 15 equality claim. The Court agrees that that the burdens of climate change fall disproportionately on children. However, the Court finds that intergenerational equality lies outside the scope of section 15. The problem, the Court continues, is one of separation of powers: adjudicating future inequities would take courts into policy choices beyond the judicial role. The Court deploys a difficult separation between law and policy in a finding that runs counter to emergent recognition at international law of inter-generational rights: the human rights of future generations “form an essential dimension of humankind’s duty to uphold the inherent dignity, equality, and inalienable rights of all.” Moreover, apart from derogation from Canada’s international human rights law obligations, insistence that environmental harm must be a present rather than prospective harm in order to trigger an equality rights inquiry is contrary to the precautionary principle and to a constructive role for the judiciary in recognising government obligations for preventative action.

The Court does a better job on section 7 rights to life, liberty and security of the person, tracking the growing reluctance of Canadian courts to reject out of hand “positive rights” claims under section 7. The Court recognizes that the dichotomy between positive and negative rights can be false and unhelpful.   Acknowledging positive rights claims better aligns Charter interpretation with international law.  As well, the section 7 claim is distinguished from the challenge to systemic homelessness in Tanudjaja v Attorney General (Canada).  The Court argues that the La Rose claimants, unlike those in Tanudjaja, target a sufficiently legal and focused component of government inaction: the Government admits it is likely to fail to meet Canada’s Paris Agreement commitments to achieve a 30% reduction in CO2 emissions by 2030. These binding international commitments, the Court importantly notes, set standards against which the Charter claim can be assessed. Litigants addressing systemic issues should attend to this finding. Government commitments to address systemic homelessness, poverty or food insecurity through specified targets and timelines, for example, are similarly subject to standards under binding international treaties.

Four other aspects of the decision beckon positively for enhanced environmental and social rights protections under Canada’s Charter. First, complex, controversial, political implications of a claim do not alone justify a finding of non-justiciability: “[p]olitical choice underlies all legislation….”. Second, remedial requests are not necessarily determinative of justiciability: appropriateness of remedy is best engaged after a conclusion on the merits that a Charter breach exists. Third, climate change is named as a threat to “children’s rights to life, survival, and development.” Finally, the judgment reinforces that novel claim making is important for constitutional growth: “the law cannot remain static.”.

This case now joins Mathur v Ontario—also a Canadian case with youth plaintiffs—on beating back government preliminary dismissal attempts and proceeding to trial on the constitutional merits of a government’s inadequate response to climate change.

Want to learn more?: 

• Read: Canada’s Failure: Climate Change and International Human Rights
• Read: Environmental protection of children’s right to life: ICCPR General Comment 36
• Read: What’s next in Climate Litigation before the European Court of Human Rights? Duarte Agostinho and Others v Portugal and 32 other States
• Read: Giving Voice to the Vulnerable: How Advisory Opinions Have the Potential to Advance Climate Justice through International Courts