Court should intervene to remedy Canada’s alleged failure on climate change: lawyer

VANCOUVER — The courts have a definite role in helping to determine if Canada has breached the constitutional rights of 15 youths who are suing the government for its alleged failures on climate change policies, a lawyer for the group says.

Joseph Arvay disagreed Wednesday with a federal government lawyer who argued for the case to be dismissed because a court should not step into the political arena when it comes to policy decisions related to greenhouse gas emissions that require international efforts to combat global climate change.

Arvay told a Federal Court hearing he wants the case to go to trial, where he will ask a judge to get a count of Canada’s emissions and how they contribute to the global carbon budget, which is the maximum amount of carbon dioxide that can be put into the atmosphere before temperatures rise worldwide.

“When Canada’s emissions of GHG, which we’ve quantified, exceed Canada’s fair share of that global climate budget, it breached our clients’ rights,” he said, adding the country has not met it own targets on the reduction of emissions.

“Scientists will tell us the global limit of GHG emissions that the Earth can tolerate if we are going to return to and maintain a stable climate, ” Arvay said. “And the scientists will tell us what a stable climate system means.”

He recounted the claims of the plaintiffs between the ages of 11 and 20, some whom have been affected by wildfires, while floods, hurricanes and loss of cultural ceremonies in Indigenous communities due to extreme temperatures have disrupted the lives of Aboriginal youth.

Joseph Cheng, a lawyer representing the attorney general of Canada, said a court should not wade into policy decisions, including how to structure and quantify carbon pricing, whether and in what circumstances to permit oil and gas extraction, and how to defray and mediate the economic impacts of GHG emissions in different regions of the country that may be affected.

Those policies should be left to the government in order to meet the competing interests and obligations of ecological sustainability and job creation, Cheng said.

The plaintiffs claim the federal government is violating their rights to life, liberty and security of the person under Section 7 of the  Charter of Rights and Freedoms as well as their right to equality under Section 15 because they are disproportionately affected by climate change.

However, Cheng said the claims about harms are too broad and constitutional claims cannot succeed because the plaintiffs don’t say any particular government action applies to Section 7. And no benefits are being granted to others that in some way result in discrimination against them as part of a Section 15 argument, he added.

Arvay disagreed.

“Surely, our charter is not such an omnipotent document that it provides no remedy by our citizens against a government intent on destroying the planet. I know that sounds hyperbolic, but that’s the logic of Canada’s argument, that this is a matter for Parliament, purely for politicians. That can’t be right.”

The lawsuit filed in October 2019 asks the court to compel Canada to develop a climate recovery plan based on the best available science.

The plaintiffs claim Canada contributes to overall greenhouse gas emissions by promoting fossil fuel transport, export and import through interprovincial and international infrastructure, and by subsidizing industries for fossil fuel exploration, extraction and production.

Youth are disproportionately affected by air pollution and other consequences of greenhouse gas emissions because their vital organs, including the lungs, are not fully developed, the lawsuit claims.

Sierra Robinson, 18, is among the plaintiffs alleging they suffered individual injuries as a result of the consequences of climate change.

Robinson said in an interview that rising temperatures have increased the population and range of disease-carrying ticks on her family’s farm in the Cowichan Valley on Vancouver Island. She contracted Lyme disease around age 13 after being bit by a tick.

She said she experiences chronic fatigue, severe headaches and muscle pain and spent much of the summer in a wheelchair three years ago because she could not walk and would faint. 

“It should have been adults and the government taking responsibility for these issues because our government has known about climate change for so, so long,” said Robinson, who joined plaintiffs to announce the lawsuit almost a year ago at a Vancouver rally attended by Swedish activist Greta Thunberg.

She said low water pressure on her farm due to drought in 2016 meant the family had to give drinking water to their livestock over watering crops and increased wildfire smoke near her home two years ago worsened her symptoms.

This report by The Canadian Press was first published Sept. 30, 2020.

Camille Bains, The Canadian Press