ENvironnement JEUnesse ("ENJEU"), a Quebec-based environmental youth group, has commenced a class action lawsuit in the Superior Court of Quebec. The lawsuit, advanced on behalf of all Quebec residents under the age of 35, alleges that failure by the Government of Canada to address climate change is an infringement of rights under the Canadian Charter of Rights and Freedoms (the "Charter").
Such environmental, youth-led litigation is on the rise in the United states and elsewhere. Cases such as Juliana, et al. v United States of America, et al, are giving rise to the American legal doctrine of "atmospheric trust litigation". While similar litigation has been slower to take hold in Canada, the ENJEU case shows that it is likely only a matter of time until environmental groups, investors and First Nations seek litigation, Charter-based or otherwise, as another means of forcing government(s) to pay attention to and address climate change and its associated impacts.
In this brief blog post, we examine the foundation of the ENJEU class action and seek to discuss some of the implications that may arise.
The Class Action
The lawsuit alleges that the Canadian government is infringing on the fundamental rights of those persons under the age of 35. The alleged infringement is rooted in the claim that the federal government has or will be unable to meet the climate targets agreed to at the Paris climate change talks.
ENJEU cites the recent United Nations Intergovernmental Panel on Climate Change report which identifies Canada as being nowhere near meeting the agreed upon reduction of 385 million tonnes of carbon dioxide equivalent emissions per year. Rather, ENJEU points to figures from 2016 which indicate that Canada's emissions are nearly double the target agreed upon in Paris.
To succeed in being certified as a class action, and ultimately to succeed on the merits, ENJEU must convince the Superior Court of Quebec that the Federal government's failure to act as it relates to climate change and as evidenced by the current volume of emissions is a violation of the Plaintiffs' rights under the Charter. Particularly, the government's failures must be shown to impede the rights of an entire generation of youth in Quebec to the use and enjoyment of a safe and stable future.
ENJEU points to sections 7 and 15 of the Charter, which are the rights to life, liberty and security of the person and the right to equality, respectively. ENJEU has also cited sections of the Quebec charter, such as section 46.1 which provides for the protection of the right to live in a healthful environment in which biodiversity is preserved.
ENJEU has a high burden to satisfy in order to establish that Charter rights have been infringed. However, as noted, it is not entirely unheard of to have cases of this nature brought against national governments.
In 2015, the District Court of The Hague found the Dutch government had an obligation to increase efforts relating to climate change following a suit filed on behalf of 900 Dutch citizens. While the constitutional basis of the claims differ, the Dutch case demonstrates how the judicial system can be used to make climate change a major political and social issue that must be addressed.
Even if the ENJEU case fails to meet the burden that is necessary to find that Charter rights have been violated, it represents a change in the way both affected parties and their lawyers characterize and address issues related to climate change both in Canada and internationally. Whether such a change is appropriate or even effective is yet to be seen. The Court's decision in the class action brought by ENJEU will be an interesting test of just how far the Courts are willing to go in shaping political realities.
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