YOUNG ACTIVISTS TAKE ACTION AGAINST GOVERNMENTS THROUGH THE CONVENTION ON THE RIGHTS OF THE CHILD

Millions of young people across Canada took to the streets on Friday, September 27, 2019 in a historical protest against government inaction on climate change. The march comes just days after Greta Thunberg and fifteen other young activists announced at the United Nations (UN) in New York that they have filed a lawsuit against France, Germany, Argentina, Brazil, and Turkey under the UN Convention on the Rights of the Child (the “Convention”).

 The Convention establishes a set of inalienable rights for all children in the world, including the rights to life, health, and peace. Its Optional Protocol is a voluntary mechanism for children, or adults on their behalf, to appeal directly to the UN for assistance if a state that has ratified the Protocol does not provide recourse in cases of infringement of rights.

THUNBERG’S COMPLAINT FOCUSES ON GOVERNMENTS, NOT CORPORATIONS

For a long time, climate change litigation was limited to private law litigation involving common law causes of action, such as nuisance, negligence, and infringement of the rights of others. These suits have primarily been aimed against private individuals and the big polluting companies. For example, several cities in the United States have filed this type of lawsuit, but many U.S. courts have dismissed the suits, claiming that climate change presents a non-justiciable political issue. The city of Victoria is the first municipality to pursue this type of lawsuit in Canada against oil and gas producers for climate change damage.

Thunberg's complaint, however, focuses on inaction by governments, not polluting companies. The plaintiffs argue that the failure of member states to the Convention to address the climate crisis is a violation of children's rights. Specifically, they claim that the five named countries have knowingly contributed to the climate crisis and will not achieve their emissions targets under the 2015 Paris Climate Agreement. Moreover, they argue that when the countries committed to these goals, it was clear that their emissions were already endangering the lives of children.

A STRUGGLE FOR LEGAL STANDING IN CANADA

Even though Canada is not a subject of the UN complaint, the state is still far from being the climate change poster child. In 2016, Canada ranked fourth among the major greenhouse gas emitters per capita. As a result, climate change litigation came to Canada even before Thunberg filed the current complaint with the Committee on the Rights of the Child.

ENvironnement JEUnesse (“ENJEU”), an environmental non-profit organisation, filed an application for authorisation to institute a class action against the Canadian federal government in November 2018 on behalf of all Québec residents aged 35 and under.

The organisation alleges that the Canadian government violated several rights protected by the Canadian Charter of Rights and Freedoms (“CCDL”) and the Québec Charter of Rights and Freedoms (“CQDL”) by failing to take adequate measures to prevent climate change. It invokes the following rights:

• the right to life and security of person (article 7 of the CCDL and article 1 of the CQDL);

• the right to live in a healthy environment that respects biodiversity (article 46.1 of the CQDL);

• the right to equality, placing too much burden on younger generations in the form of future costs of climate change (article 15 of the CCDL and article 1 of the CQDL)

This approach, however, has its weaknesses. Future generations cannot generally be named plaintiffs in a lawsuit, as they are not considered legally-identifiable individuals. While it is easy to grasp their interest in a healthy environment, the law is reluctant to give them recognition, because most of these individuals are not yet born and we do not know how or when they will experience the impacts of climate change.

Indeed, in July 2019, Justice Gary D.D. Morrison refused to grant ENJEU the right to institute a class action, citing the lack of a legally-identifiable group bringing the case and finding the ENJEU-defined group, which included Québec residents under age 35 as well as the unborn, arbitrary and subjective. ENJEU intends to appeal this decision.

Katherine is currently completing her articling in the private sector in Ottawa, Canada. Katherine has worked in Egypt, Costa Rica and Argentina and has completed an internship in Canada’s Northwest Territories working in Indigenous law and rights issues as well as an internship with Global Diligence, an international criminal law firm in London, England. She is also involved in many women’s rights groups.

LinkedIn