Governments aren’t taking responsibility for climate change’s human health catastrophe. These changemakers are forcing them.

This journalism is supported by the Future of Good editorial fellowship on climate change and human health, supported by Manulife. See our editorial ethics and standards here.

Shaelyn Wabegijig was caught in an analogy of climate change in the summer of 2022: a freak storm in Hiawatha First Nation of wind and rain and severed tree branches scattered everywhere. On a drive to a powwow, the 25-year-old Algonquin woman and member of the Caribou Clan watched a tree topple in front of the car ahead of her. Another tree blocked her exit, 10 cars back. 

This storm knocked out power for days near the Ontario city of Peterborough. Wabegijig and everyone else on the road that day weren’t able to leave until the trees were pushed aside. The analogy to climate change, and its horrific toll on human health, was obvious. “We’re kind of trapped on this path and leaders aren’t doing anything about it,” Wabegijig says. “They’re actively denying it is even happening. My future is kind of daunting because I don’t know what the world is going to look like.”

Faced with the very real health and safety risks posed by climate change, to humans and animals alike, Wabegjig and six other youth are suing the Ontario government for not putting forward a plan that would protect future generations. To survivors of catastrophes today like the wildfires that turned Lytton, B.C. into ash in 2021, or the post-tropical cyclone that swept away houses in Channel-Port Aux Basques in Newfoundland earlier in 2022, the threat of climate change is obvious. 

Wabegijig and her fellow youth are trying to use the courts as leverage to change the tune of policymakers before it is too late. They aren’t the only ones. On the other side of the country, Wet’suwet’en hereditary chiefs Dini Ze’ Lho’imggin (also known as Alphonse Gagnon) and Dini Ze’ Smogilhgim, (also known as Warner Naziel) are the faces behind a legal challenge that claims Canada’s approval of fossil fuel projects constitutes a violation of the Paris Agreement and the Constitution. 

Both the Ontario and B.C. cases cite international climate obligations made by Canada, as well as Indigenous rights upheld by Canadian courts. Both cases are backed by veteran lawyers willing to go all the way to the Supreme Court if necessary. In recent years, Canadian legal scholars have argued there may very well be a case to be made for using human rights law to countermand lax climate policy.

But according to the B.C. and Ontario lawsuits, Canadian governments, both provincial and federal, are very reluctant to draft policy that comes anywhere close to addressing the grave dangers Canadians face from climate change. Both the B.C. and Ontario cases are also treading in unknown, and rather murky legal water. No one has ever successfully argued that Canada’s current stance on climate action violates the Canadian Constitution by putting the health of present and future generations in jeopardy. 

In fact, one of the biggest roadblocks faced by both cases isn’t the very real harm posed by climate change to their communities, or the international precedent cited in their briefs. It is the fact that the architects of Canada’s Charter never considered that one day, a warming climate would threaten the health of Canadians to the point where the right to life, liberty, and security of the person would be in jeopardy.

Take it to the courts

Wabegijig and her fellow plaintiffs began their lawsuit in 2019, supported by lawyers from environmental charity Ecojustice, against the Ontario government. A year earlier, Premier Doug Ford’s government had scrapped a ‘cap and trade’ system that would require companies to buy ‘credits’ for polluting if their total emissions exceeded a certain amount. 

The lawsuit argues that Ford’s decision to scrap the cap-and-trade system, and Ontario’s climate change targets for 2030, were woefully inadequate. “This greenhouse gas emissions target will allow a dangerous level of greenhouse gas emissions in the coming decade,” says Fraser Thomson, an Ecojustice lawyer working on the case. “And these emissions will contribute to a dangerous level of warming that we will know will harm our most fundamental rights.”

Specifically, the Ontario lawsuit alleges the province’s removal of its past environmental protections violates Section 7 of the Canadian Charter of Rights and Freedoms, which protects the right to ‘life, liberty, and security of the person’. This section has been used to a multitude of health-related cases, including the establishment of supervised consumption sites, the medical assistance in dying (MAiD) program, and the removal of Canada’s last remaining criminal prohibitions on abortion. 

The use of this particular right to address the health effects of climate change is a deliberate legal strategy on the part of Wabegijig and Ecojustice. After all, their lawsuit argues, young people will need to live in the polluted world they will one day inherit, so why should they suffer the consequences of policies they were too young to challenge? 

“We’re focused on connecting climate change to people’s right to have a future, have a life, a healthy environment, and have security,” Wabegijig says. “A lot of youth today grow up knowing that climate change is going to have profound impacts on their lives.” 

As Larissa Parker, a Toronto environmental litigation lawyer, wrote in a 2021 paper for the Canadian Bar Association, the Canadian legal system typically draws a line between civil and political rights (like the right to live without discrimination) and social rights (like the right to a healthy environment). Courts in Canada are supposed to deal with the former, while the latter is for elected governments to handle. But to Parker, solving civil and political discrimination cannot be done without addressing social rights, and climate change is the perfect illustration of why. 

“Changes in temperature, precipitation, ice, permafrost, and freshwater availability prompt increased extreme weather worldwide,” Parker argues. “These have caused widespread death, injuries, and other human rights infringements, like the right to food, water, health, sanitation, housing, and self-determination.” 

These inequalities are easy to see in the case by Dini Ze’ Lho’imggin and Dini Ze’ Smogilhgim in B.C. Climate change is killing the salmon the Wet’suwet’en depend on for food, torching forests on Wet’suwet’en territory, and may soon cause the spread of new disease vectors. All of these factors can be traced back to climate change caused by greenhouse gasses, and, the lawsuit argues, Canada is endangering the lives of the Wet’suwet’en by not acting. 

“We’re asking the court to say that in order to protect our clients — and everyone else’s — constitutional rights to life, liberty, and security of the person, the net result has to be this significant reduction in greenhouse gas emissions in Canada,” says Richard Overstall, the lawyer representing both Wet’suwet’en chiefs. 

After all, Wabegijig adds, there is a direct connection between harm to the land and harm to humans, and non-humans, living on that land. “Our people’s survival depends on the health and survival of the land and the animals, which we see as a relative,” she explains. “It’s my responsibility as Caribou Clan to protect animals that we have important relationships with.” 

The case for climate health

Using human rights and constitutional law as a lever to force governments into bolder climate action that better protects human health is a relatively new tactic for Canadian activists. In fact, it is likely that the B.C. and Ontario cases are the first lawsuits of their kind in Canada. But climate activists in other countries have used the law as a way to demand a healthier present – and future – from their governments.

Perhaps the best-known, most recent example is that of the Urgenda Foundation, a Dutch environmental group. In 2015, the Foundation, along with nearly 900 Dutch citizens, submitted their first brief in what became a four-year legal battle to force the Dutch government to limit its greenhouse gas emissions to 25 per cent below its 1990 levels by 2020. The group argued the government’s existing pledge to reduce emissions by only 17 per cent simply wasn’t enough for The Netherlands to meet the United Nationals goal of keeping global temperature increases to within 2 C of pre-industrial warming levels.  

“Urgenda argues that the State does not pursue an adequate climate policy and therefore acts contrary to its duty of care towards Urgenda and the parties it represents as well as, more generally speaking, Dutch society,” read a 2015 ruling. “Urgenda also argues that because of the Dutch contribution to the climate policy, the State wrongly exposes the international community to the risk of dangerous climate change, resulting in serious and irreversible damage to human health and the environment.”  

In 2019, in a landmark ruling, the Supreme Court of the Netherlands upheld Urgenda’s side of the case, citing two key components of the European Convention on Human Rights – including the right to life. In other words, Dutch justices believed the health impacts to Dutch citizens was a worthwhile reason for the court to demand tighter climate policy by the Dutch government.

While the Urgenda case is considered one of the first cases of its kind in the world, it isn’t the only one. Thanks to the work of Indigenous peoples in Columbia, the country’s Supreme Court justices ruled in 2018 that the government wasn’t doing enough to protect its portion of the Amazon rainforest. Jason MacLean, assistant professor at the University of New Brunswick’s faculty of law, says the ruling went even further than protection. It required the Colombian government to collaborate with Indigenous communities, environmental organizations, and other local stakeholders on a plan to keep the Amazon pristine. 

If the Ontario case succeeds and survives any appeals from the Ford government, the court would declare that the province’s current emissions target is unconstitutional and needs to be struck down. The court would then order the government to come with what Thomson calls “a science-based target.” Courts in Canada cannot draft laws, so the exact wording would be left up to the government of the day. 

Meanwhile, in B.C., Dini Ze’ Lho’imggin and Dini Ze’ Smogilhgim’s case, if successful, would ask for the court to require Canada to cancel fossil projects if Canada is unable to keep its Paris Agreement commitments or considers climate change to be a national emergency. “All we’re saying is the net result has to be a reduction in emissions,” Overstall says. “But it’s up to the legislature and the Cabinet to deal with the politics of how you get to that reduction.” 

Unfortunately, none of these cases, in Columbia, the Netherlands, B.C., or Ontario, have yet resulted in the greenhouse gas reductions their plaintiffs are seeking. This is thanks in large part to the powers courts actually have to override governments, even in a climate emergency, and act. 

Overruling Canada’s climate policy

MacLean supports the efforts of plaintiffs like Wabegijig in bringing court cases against lax climate policies. To him, the question of whether climate change causes health-related harms is easily answered: yes. Unfortunately, even when the harms of bad climate policy are crystal clear, unelected Canadian judges are not allowed to override the policies of democratically elected politicians. 

“Courts are reluctant to go as far sometimes as plaintiffs want them to go,” MacLean says, “because they have to be very careful to not be perceived as encroaching upon the separate powers of the legislature and the executive branches.” A court order for the Canadian government to live up to its previous promises is one thing. A court unilaterally rewriting the law is seen, in Canada’s largely British-derived legal system, as beyond the pale. 

Both cases in B.C. and Ontario have heard these arguments before from lawyers on the other side, and say they aren’t asking for more than the court can deliver. “We’re not asking the court to take over the role of government,” Overstall says. Rather, he says, his clients are asking the court to order the government to respect the Paris Agreements — an agreement the Canadian government signed, and is duty-bound to uphold. 

There is also a serious jurisdictional issue in Canada when it comes to curbing the health effects of climate change. Some of the worst emitting sectors in Canada, like energy and transportation, are regulated by the federal government. Meanwhile, health care is, by and large, a provincial issue. The Canada climate framework is federal, but its implementation is largely provincial in nature. But Wabegijig doesn’t buy the argument made by Ontario in court that climate policy is really a federal problem. 

“Every single level of government, any person who has decision-making power needs to act,” she says. “We can’t just point the finger at other people and other countries. We all have to do our part. How we handle this at the provincial level is going to affect how we respond to it. It is all connected. It all ripples out into the world.” (This is the exact line of argument the Supreme Court used when it struck down challenges to the federal carbon tax back in 2021.) 

However, even if a court case managed to dodge all of the procedural bullets above, it would run into a very thick roadblock. Put simply, even a Supreme Court ruling cannot escape the realm of politics. A court can say a government’s actions are wrong, but the government, which may or may not listen to experts, must devise the solution. If that means a government spends years stalling by “studying” ways to rewrite a climate law, there is nothing a court can do about it. In MacLean’s eyes, many youth plaintiffs pursuing climate justice through the courts don’t see the ways in which courts and political bodies intertwine. 

“They have this idea that climate change is not political,” MacLean says. “It’s a science issue, and politics is a swamp, and politicians can’t be trusted. But they have this idea that the courts are independent of all that and can independently make governments do what climate scientists say that governments should do. That’s a nice thought, but it’s not grounded in the reality of our system.” 

The climate activist’s toolbox

Court rulings aren’t a silver bullet for communities harmed by the ongoing, and future, health impacts of climate change. Wabegijig says they are deeply rooted in a colonial separation of economy and environment, where resource-extracting corporations are given permission by the government to operate on stolen Indigenous territory. “The interests of these corporations and the government are only focused on this capitalist economy,” Wabegijig says. “There’s definitely pushback from people who are very conservative, and just focused on the economy, and not focused on the future of our species.” 

Rulings also do not have a great track record of forcing governments to do better. And the very design of Canada’s legal system simply isn’t conducive to a ruling that transforms Canadian climate policy in a sweeping, systemic way. 

Yet even skeptics like MacLean believe court battles serve a purpose in the broader climate justice movement. “There’s a reasonable argument to be made that these lawsuits, including the lawsuits against Ontario, and the one brought by the Wet’suwet’en, is part of a larger cultural battle to try and convince Canadians that the status quo is not sufficient,” he says. 

In the meantime, plaintiffs in both B.C. and Ontario are still waiting to see their cases through. Two and a half years after filing the initial claim, Overstall says he is still trying to convince the Federal Court to actually have a trial. The Canadian government has argued that the case is a job for Parliament, not the courts, and should be struck down. Wabegijig and her six fellow plaintiffs made arguments at the Ontario Superior Court in September, but there hasn’t been much movement since. 

Regardless of how the case turns out in court, Wabegijig says the youth climate movement needs more advocates. It is easy to be discouraged by Ontario’s arguments against the case, she says, but there is a place for youth to stand up for their generation, as well as future generations, against the worst effects of climate change. “It is your responsibility, and you can make a difference. We need all hands on deck to change the trajectory of where we’re going,” Wabegijig says. “And it is possible.” 

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