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On November 27, 2018, a class action lawsuit was filed in
Québec seeking relief against the federal government on the
basis of its alleged inaction on climate change. The action,
commenced by a group called ENvironnement JEUnesse, purports to
represent all Québec citizens aged 35 years and under. There
has been a flurry of climate change lawsuits in the United States
in recent years, including nine youth-led class actions that are
similar to the Québec claim. However, there have been no
successful climate change suits in the United States to date. The
Québec claim may signal that the American trend of climate
change litigation is spilling over into Canada.
The Québec Claim
The Québec claim seeks a declaration that the federal
government's behaviour has infringed the rights of youths under
the Canadian Charter Rights and Freedoms and the Québec
Charter of Rights and Freedoms. In particular, the claim alleges
that the government has breached section 7 (right to life,
integrity and security of the person) and section 15 (right to
equality) of the Canadian Charter and sections 1 (right to life,
integrity and security of the person), section 10 (right to
equality) and section 46.1 (right to live in a healthful
environment in which biodiversity is preserved) of the
Québec Charter. The claim also seeks an order for punitive
damages.
The claim is in the preliminary stages. In order for it to
proceed, the claim must be certified by the Québec Superior
Court. It is unclear at this point in time whether the claim will
be successful.
Other Climate Change Related Litigation in Canada
There is only one other existing class action in Canada seeking
damages as a result of climate change. Ontario Burgess v
Ontario Minister of Natural Resources and Forestry, Court File
No. 16-1325CP, is a class action commenced by a group of property
owners seeking damages from the Ontario Ministry of Natural
Resources alleging that the Ministry failed to properly adapt to
climate change and prevent flooding which caused property damage to
the plaintiffs' homes. The claim was filed in 2016 but the
class has not been certified.
American Climate Change Litigation
On the other hand, there have been a wide range of lawsuits
commenced in the United States relating to climate change,
including:
suits advanced by states and
municipalities against corporations seeking various remedies and
damages suffered as a result of climate change (see for example:
City of New York v BP et al, Case No 18 Civ 182 (SD NY Jan
9, 2018));
private civil claims advanced against
corporations (see for example: Pacific Coast Federation of
Fishermen’s Associations, Inc v Chevron Corp, Cal Sup
Ct, Docket CGC-18-571285); and
securities fraud and shareholder
activist claims (see for example: Ramirez v Exxon Mobil
Corporation et al (District Court for Northern District of
Texas, Texas District Ct, Docket 69)).
Of particular relevance to the Québec claim is a series
of U.S. lawsuits that have been commenced by groups purporting to
represent youth in America against federal and state governments
seeking damages as a result of government inaction on climate
change. These claims are often referred to as the
"Childrens' Lawsuits".
The Childrens' Lawsuits all allege that a government
breached the "public trust doctrine". The public trust
doctrine is a principle that the government holds some resources in
trust for public use and enjoyment. The public, as beneficiaries,
can bring claims against the government on the basis that it has
breached obligations to the public in the management of those
resources. One of the Childrens' Lawsuits, Juliana v
US, has received recent attention because the Trump
administration applied to stay the trial of the action which was
set to begin in October of 2018 in Oregon. The case is currently
stayed pending interlocutory appeals, and it remains to be seen
whether it will continue.
Implications
The public trust doctrine is not a recognized cause of action in
Canada, although some commentators have suggested it could develop
as a type of fiduciary obligation owing by the Canadian government
to citizens. While the Québec claim is still in its
preliminary stages, and it is too early to comment on its
probability of success, it may signal that Canada will follow the
American trend and that there will be an emergence of climate
change related claims in the future.
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