Climate Justice

The Constitutionality of Canada’s Greenhouse Gas Pollution Pricing Act: A Panel Discussion

The David Asper Centre for Constitutional Rights’ Climate Justice Working Group is pleased to present a panel discussion (online webinar) on November 16th, 2020 at 12:45p.m. about the constitutionality of Canada’s Greenhouse Gas Pollution Pricing Act.

The constitutionality of the Act has been a subject of debate in courts across the country and was most recently the subject of multi-day hearing at the Supreme Court of Canada. The constitutional challenge at the SCC was brought by the governments of Ontario, Alberta and Saskatchewan, who were joined by many interveners who advanced diverse and interesting perspectives.

The Climate Justice working group is looking forward to providing an opportunity for the law school (and broader legal community) to engage with this incredibly important and timely topic. At the event, the Climate Justice working group members will be speaking to counsel for the Attorney General of Canada (Sharlene Telles-Langdon), counsel for the the Attorney General of Ontario (Joshua Hunter) as well as to counsel for Ecojustice (Joshua Ginsberg) and counsel for the Anishinabek Nation and the United Chiefs and Councils of Mnidoo Mnising (Patricia Lawrence).  

Register here

Registration is free and open to the public. Link to the Zoom Webinar will be shared after registration.

Please email tal.schreier@utoronto.ca for questions.

Young Climate Activists Attempt to Hold Province Accountable for Inadequate Emissions Target

Posted on by Student

By Amy Chen

In late 2019, Ecojustice and Stockwoods LLP initiated a constitutional challenge (“the Application”) against Ontario’s greenhouse gas reduction target on behalf of seven young climate activists (the “Applicants”). Ontario responded with a motion to strike. Mathur et al v Her Majesty the Queen in Right of Ontario was heard via teleconference on July 13, 2020, with judgment reserved.  The Applicants were represented by Nader Hasan, the Asper Centre’s upcoming constitutional litigator-in-residence, and Justin Safayeni.

Background

In 2018, the Ford provincial government passed the Cap and Trade Cancellation Act (“CTCA”), repealing the Climate Change Mitigation and Low-Carbon Economy Act (“old Climate Change Act”). Under s. 3(1) of the CTCA, the provincial government “shall establish targets for the reduction of greenhouse gas emissions in Ontario and may revise the targets from time to time”. The new target is set out in the province’s new Environmental Plan: “Ontario will reduce its emissions by 30% below 2005 levels by 2030”.  In comparison, the old target (when calibrated) was to reduce the emissions by about 45%.

The public interest Applicants (Sophia Mathur, Zoe Keary-Matzner, Shaelyn Wabegijig, Shelby Gagnon, Alex Neufeldt, Madison Dyck, Beze Gray) in the present case are climate activists between the ages of 13 and 24. The Applicants argue that the new target, as well as the repeal of the old Climate Change Act, violates the rights of Ontario youth and future generations under ss. 7 and 15 of the Charter. Ontario is exacerbating the current climate emergency and threatening the lives of all Ontarians by weakening the province’s target. Canada has an international obligation, under the Paris Agreement, to limit global warming to 1.5 oC above pre-industrial levels and prevent the effects of climate change from becoming irreversible. Ontario’s greenhouse gas emission levels will be too high to meet this obligation even if the target is fulfilled, making the target arbitrary and irrational. The Applicants seek mandatory orders requiring Ontario to set a “science-based” greenhouse gas reduction target for 2030 and to revise its climate action plan accordingly.

Summary of Motion Hearing

The issue of the motion was whether the Application should be struck for disclosing no reasonable cause of action.  The hearing primarily revolved around three issues: (1) whether the Application is justiciable, (2) whether the claims within the Application are “inherently speculative in nature”, and (3) whether the Application requires the recognition of positive rights, and if so, whether the Application can be struck on that basis.

(1) Whether the Application is Justiciable

Ontario’s first argument was that the Application is non-justiciable, or that the courts do not have the institutional capacity or legitimacy to adjudicate on this case. Ontario relied on Tanudjaja v Attorney General of Canada, a Charter challenge against the “social conditions” created by the federal and provincial governments that perpetuate homelessness and inadequate housing. The Ontario Court of Appeal found the case to be non-justiciable because there was “no judicially discoverable and manageable standard for assessing… whether [the governments’] housing policy is adequate”. Ontario argued that this Application, like Tanudjaja, asks the Court to assess the soundness of public policy, which is beyond its institutional capacity. The target is a piece of public policy that outlines Ontario’s “aspirations” regarding climate action, not a legally binding commitment.  The Applicants are asking Ontario to establish a “science-based” target that would allow for a “stable climate system”; these are not concrete, legal parameters that could be judicially reviewed.

The Applicants argue that the target is a policy made in pursuant to a statutory mandate (the CTCA), which falls under the definition of “law” for the purposes of a Charter challenge (Greater Vancouver Transportation Authority v. Canadian Federation of Students). The Applicants are challenging actual laws, not merely “social conditions”, and seeking relief defined by scientifically knowable standards. These standards can be judicially determined and have been judicially determined by courts in international jurisdictions. Neither complexity nor novelty can justify striking the claim.

(2) Whether the Application is “Inherently Speculative In Nature”

Section 7 Charter claims cannot be premised on speculations about the effects of government action (Operation Dismantle v. The Queen).  Ontario’s second argument was that the Applicants’ section 7 claims are speculative and incapable of being proven – the claims assume that the target determines actual emissions, that the target will not change, and that federal policy will not have an effect on Ontario’s emissions.

The Applicants argue that they fully intend to prove their claims based on expert evidence, and whether they would be successful in doing so should be determined at a hearing on its merits. As per Bedford v Canada and Canada v PHS Community Services Society, Charter applicants only have to establish a “real and substantial connection” between the impugned government conduct and the alleged harm. The Applicants are allowed to seek relief for potential future harms even if the government is not the dominant cause of these future harms.

(3)The Issue of Positive Rights

Ontario’s final arguments concerned the government’s positive obligations. First, Ontario does not have any constitutional obligations to keep the old Climate Change Act. Unless there was a constitutional obligation to enact the old legislation, the Ontario legislature is free to repeal and replace it (Barbra Schlifer Commemorative Clinic v. Canada). Second, the Applicant is asking Ontario to take positive steps to combat the adverse effects of climate change, even though neither ss. 15 or 7 of the Charter gives individuals positive rights. Although Gosselin v. Québec left open the possibility that there may be “special circumstances” where positive rights could be recognized, many appellate cases have declined to recognize these positive rights. The lower courts are therefore bound by precedent until the Supreme Court of Canada changes the law (Tanudjaja, trial decision).

The Applicants argue that this case does not require the recognition of positive rights. This case is not merely challenging the repeal of legislation or government inaction, but directly challenging government action. The Ontario government regulates, authorizes, and incentivizes dangerous levels of greenhouse gas emissions through the CTCA and the target. The law is clear that this authorization and regulation is enough to constitute a reasonable cause of action (Dixon v. Director, Ministry of the Environment). The Applicants do not seek a declaration regarding HOW the target is to be achieved, and hence are not demanding any positive obligations from the government. They are merely demanding that the target and the climate action plan be constitutionally compliant.  Even if this Application requires the recognition of positive rights, many courts have relied on Gosselin to deny motions to strike. To strike the claim at this stage would freeze section 7 rights in a manner that is contrary to the “living tree” constitutional interpretive principle.

What Next?

The outcome of this motion will serve as a critical turning point in the fight for climate justice by answering one key question:  Can the provincial government be held legally accountable for its inadequate climate action plan? In an interview with the Asper Centre, Mr. Hasan posited that there could be positive outcomes for climate justice whether the claim is struck or not. If the claim is struck, the Applicants would likely appeal the decision; such an outcome would give the appellate courts an opportunity to consider the complex legal issues involved and set a precedent for climate change litigation in Canada. If the claim proceeds, the Applicants would be permitted to present their evidentiary record. A judge would hear “striking and chilling” testimonies regarding the catastrophic effects of climate change and the fact that these effects will become irreversible if drastic action is not taken. As stated by Mr. Hasan: “I feel quite confident that, if we ever get the evidentiary record in front of a judge, the judges are going to want to do the right thing.”

Additional arguments were raised in the parties’ written submissions. Ontario’s arguments are stated in their notice of motion to strike. The Applicant’s arguments can be found in their factum and on their website.

For more information regarding our governments’ ss. 7 and 15 constitutional obligations to address  climate change, see the Asper Centre’s UTEA working group publication- “Give our Children A Future: The Moral and Legal Obligations of the Government of Canada to Act on Climate Change”.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.

Asper Centre students mark Student Law Clinic Global Day of Action

Posted on by Tal Schreier

Back row (left to right): Mackenzie Cumberland; Clara Pencer; Leah Kelley; and Florian Nagy. Front row (left to right): Madeleine Carswell; Keely Kinley; and Yara Willox. Members not pictured: Madeleine Andrew-Gee; Adam LaRiviere; Leora Chapman; Haleigh Ryan; and Courtney Cowan. via @UTLaw 

November 18, 2019 marks a Global Day of Action against air pollution by more than 30 student law clinics from around the world.

The Climate Justice student working group at the David Asper Centre for Constitutional Rights at the University of Toronto’s Faculty of Law is calling on the provincial and federal governments to take meaningful action to curb emissions in Ontario.

“The recent federal election and the wave of climate strikes by young people have brought a renewed focus on climate-related issues,” says second-year law student Keely Kinley. “The idea that our Constitution could be used to safeguard and strengthen environmental rights is gaining momentum.”

The David Asper Centre is devoted to realizing constitutional rights through advocacy, research, and education, and plays a vital role in articulating Canada’s constitutional vision to the world. U of T law students can become involved in the Asper Centre’s work by volunteering with one of their student working groups. The student-led initiatives bring together 10-15 students to undertake research and advocacy in conjunction with academics, civil society groups, or members of the bar on Charter rights advocacy or current constitutional law issues.

“As a student law clinic with a commitment to social justice, the Asper Centre is committed to raising awareness of the issue of climate change in our teaching, research and activism, and to finding ways to support law students to contribute to the struggle for climate justice through the Canadian Charter of Rights and Freedoms,” says Cheryl Milne, the centre’s executive director.

Approximately forty percent of Canada’s petrochemical industry is condensed into a 15-square-mile area in Sarnia, Ontario known as Chemical Valley. The student working group highlighted Chemical Valley as an example of a place where years of government inaction and an inadequate emissions regulation has resulted in a health and environmental crisis.

Just south of the city are the traditional lands of the Aamjiwnaang First Nation community. Members of the Aamjiwnaang First Nation have been asking the government to review emissions standards for years, to no avail. A whistleblower has lodged three complaints over the past decade alleging inadequate engagement with the Aamjiwnaang community.

The Climate Justice working group also cites a 2017 report of the Environmental Commissioner of Ontario that observed that “Indigenous people and communities are disproportionately affected by environmental problems.”

“There are strong arguments to be made that both the provincial and federal governments have duties under the Canadian Charter of Rights and Freedoms to protect the Aamjiwnaang community and other residents of Chemical Valley from the harms of pollution,” says Kinley.

Section 7 and Section 15 of the Charter could both be invoked in order to protect individuals from insufficient government action in the sphere of environmental rights.

“There are any number of examples we could have chosen from. Unfortunately, Chemical Valley is just one example of where the different levels of government have failed in their obligations towards local communities,” says Yara Willox, a second-year law student. “We were happy to learn about the Ontario government’s decision to begin a two-year health study in Sarnia this fall, but it’s not enough.”

Kinley adds that a group of young Canadians recently initiated a lawsuit against the federal government for infringing their Charter rights by not taking sufficient steps to combat climate change.

“There is international precedent for this sort of litigation, and we’ll be paying close attention to the outcome.”

With files from the Climate Justice working group

Read the Climate Justice working group’s op-ed

Asper Centre students call on the Ontario and federal governments to act on air pollution

Posted on by Tal Schreier

via UofT Faculty of Law News: https://www.law.utoronto.ca//news/students-call-ontario-and-federal-governments-act-air-pollution

Monday, November 18, 2019

 

Today, November 18th, is the Student Law Clinic Global Day of Action for Climate Justice. We are a student working group at the University of Toronto Faculty of Law and, on this day, we call on our provincial and federal governments to take meaningful action to curb emissions in Ontario. The harmful consequences of air pollution are widespread and government inaction only exacerbates them. In Sarnia’s “Chemical Valley”, for example, where petrochemical facilities are responsible for around 10% of Ontario’s total emissions, the government’s inadequate regulations and foot-dragging have contributed to a health and environmental crisis.

The health data speaks for itself. Sarnia’s cancer rates are significantly higher than the rest of Canada’s. In the Aamjiwnaang First Nation community, whose traditional lands are just south of the city, the birth ratio of baby girls to boys is nearly 2:1. A wide range of respiratory problems and conditions that impair lung function have been linked to the pollutants emitted by Chemical Valley’s oil refineries and chemical plants. The list goes on. These findings are deeply troubling and should have spurred government action long ago. While we are encouraged that the provincial government will begin a two-year health study in Sarnia this fall, this is, in itself, insufficient.

Last month, a whistleblower painted a damning picture of the government’s response to air pollution in Chemical Valley. The whistleblower lodged three complaints between 2009 and 2019 alleging inadequate engagement with the Aamjiwnaang community. The Ontario government’s reluctance to take effective action on this issue is, unfortunately, not without precedent. In 2018, Ecojustice brought an application for review of the province’s air quality standards pursuant to Ontario’s Environmental Bill of Rights on behalf of two affected individuals. The government did not change its course.

Fortunately, there is another way to hold our governments accountable. The idea of using the Constitution to defend environmental rights is gaining momentum. Both the provincial and federal governments have clear duties under the Canadian Charter of Rights and Freedoms to protect the Aamjiwnaang community and other residents of Chemical Valley from the pollution that affects their land and their persons.

Section 7 of the Charter recognizes every individual’s right to life, liberty and security of the per-son. It encompasses the right to be free from physical or psychological harm resulting from gov-ernment actions or omissions, and could arguably be invoked to protect individuals from future harm. The negative health outcomes in Chemical Valley, if they are conclusively linked to deficient regulations, could form the basis of a section 7 claim.

Section 15 of the Charter protects individuals from discrimination. A law or policy that inordinately affects individuals on the basis of race, ethnic origin, or other grounds may constitute discrimination under the Constitution. Following a recent visit to Canada, the United Nations Special Rapporteur on human rights and hazardous substances and wastes, Mr. Baskut Tuncak, not-ed not only the inadequacy of the existing regulatory framework, but also its “deeply unsettling” impact on the Aamjiwnaang First Nation. A 2017 report of the Environmental Commissioner of Ontario similarly observed that “Indigenous people and communities are disproportionately affected by environmental problems.” The recently reelected Liberal government ought to be especially concerned about these findings, given its campaign promise to fully implement the UN Declaration on the Rights of Indigenous Peoples, which recognizes Indigenous peoples’ “right to the conservation and protection of the environment.”

Governments have a legal duty to correct the harmful and discriminatory regulatory schemes and environmental policies that are endangering communities across Canada. From Chemical Valley to Alberta’s tar sands, the dire consequences of government inaction are becoming increasingly clear. Last month’s federal election revealed voters’ renewed focus on climate-related issues. Climate strikes galvanized students across the country and drew attention to the social inequalities that flow from bad environmental policy. A group of young Canadians recently initiated a lawsuit against the federal government for infringing their Charter rights by not taking sufficient steps to combat climate change. These developments show that Canadians want better air quality, sustainability, and environmental rights. Provincial and federal governments should take note and take action before it’s too late.

Climate Justice working group members:

1Ls (first-year law students):
Clara Pencer
Adam LaRiviere
Mackenzie Cumberland
Madeleine Andrew-Gee
Leah Kelley
Leora Chapman
Courtney Cowan
Florian Nagy
Madeleine Carswell
Haleigh Ryan

Group leaders:
Yara Willox (2L)
Keely Kinley (2L)