Youth activists say Canada has legal duty to protect vital resources as public hearing ends

Fifteen young Canadians attempting to sue the federal government say the country has a duty to all its citizens to protect vital natural resources like the air and shorelines — a duty it's failing by emitting greenhouse gases.

The case, La Rose et al. v. Her Majesty the Queen, was initially filed on Oct. 25, 2019, and involves more than a dozen children and teens from across the country who are making a relatively novel legal argument — that their rights to life, liberty, security and equality are being violated because Ottawa has not done enough to prevent climate change.

Hearings began in a federal court in Vancouver on Sept. 30 and lasted two days. Justice Michael Manson will now decide if the case should be heard in a federal court.

On Thursday, the plaintiffs, represented by environmental lawyer Chris Tollefson, argued that Canada has an obligation to its citizens to protect vital natural resources like the air and shorelines — a duty that's often defined in legal terms as a public trust doctrine.

Climate change poses a threat to these public resources; therefore, the federal government has an obligation to minimize its emissions, he argued.

"These plaintiffs are not asking for special treatment, they're not asking protection for their individual private rights. What they're seeking to invoke here are rights that belong to all Canadians," said Tollefson.

Public trust doctrines are historical in origin but have been established in modern justice systems, including the United States. Canada has not formally recognized the public trust doctrine but it has been discussed in several high-profile cases.

"The question before you is whether it's possible that the federal Crown is entrusted with a public duty ...  to take special care of certain public resources, resources which we all depend on for our lives, liberties and security of the person," said Tollefson.

The plaintiff's lawyer said their team would establish that a public trust doctrine exists within Canadian law — that the federal government has an obligation to protect the oceans, coasts, atmosphere and permafrost — if the case went to trial.

Establishing that a public trust doctrine exists would be integral to their case as they look to prove that Canadians have a right to a safe and livable environment in the midst of global climate change.

"We will lead evidence and arguments to demonstrate why Canadian courts should and must recognize these kinds of duties, and begin to articulate a public trust doctrine made in Canada, and through that trial process how it applies through this case."

Arguments too broad, defence says

In the defence submission, federal lawyer Joseph Cheng said greenhouse gas emissions are cumulative and a worldwide problem that affects all countries, and so Canada cannot act alone to resolve the impact of climate change.

Cheng argued the plaintiffs' case was not "justiciable," meaning that it falls well beyond what the courts can meaningfully adjudicate. He said the courts are best suited to address individual laws — not complex issues like climate change.

On Wednesday, defence referred to a similar lawsuit filed against Canada over its failure to meet emissions targets under Kyoto Protocol on climate change. In that case, a federal judge dismissed the suit, concluding that was no practical way of enforcing a government's climate goals.

At the end of the public hearing, Justice Manson said he would not attempt to make a decision on the bench. It will likely be several months before a decision is reached.