Who is liable for the climate crisis? Canadians are going to court to find out

In a Montana courtroom, a young woman's eyes welled with tears as she explained how drought, wildfires and floods have put her family's cattle ranch at risk.

"It's stressful,'' Rikki Held, 22, told the court last week.

"That's my life, and my home is there and it impacts the well-being of myself, my family, my community."

Held is one of 16 young people suing the state for failing to take action to curb global warming.

The climate change lawsuit, which continues in court this week, is the first to reach trial among dozens filed across the U.S. in the last decade.

State officials have sought to downplay Montana's contributions to climate change, with the trial being closely watched for possible legal precedents.

The trial resumed Monday for a second week. The plaintiffs declined to be interviewed by CBC News, citing the ongoing case.

Such harrowing, personal accounts could soon be heard more often in other jurisdictions, including in Canada.

Experts say climate litigation against both governments and corporations is likely to become more common as the science of climate change and the grounds for a legal challenge become clearer.

"There are climate cases around the world now and they're developing at record speeds," said Nathalie Chalifour, a law professor at the University of Ottawa who has been tracking climate litigation for more than a decade, and has served as an intervener in climate litigation cases.

"Canadian courts can look to see what other courts are deciding, and that can be really helpful because the issues presented by climate lawsuits are really novel."

Ontario case shows 'what's possible'

In Canada, there have been 35 climate-related legal challenges, according to Columbia University's climate litigation database. One of the most watched cases among them was brought forward in Ontario — and has yet to be settled.

Seven young people filed a lawsuit against the Ontario government in 2019, alleging its climate plan fails to protect them and future generations.

They argued Ontario's plan violates their rights under Sections 7 and 15 of the Charter of Rights and Freedoms; the rights to life, liberty and security and the right to equality under the law without discrimination.

The case was dismissed from Ontario Superior Court in April, though the judge agreed with the applicants on several key points, including that Indigenous people and youth are disproportionately impacted by climate change and that the province is risking the lives of Ontarians by not going further with its climate plan.

The ruling was also significant because even though the judge dismissed it, she found it to be justiciable, which means that it is an appropriate legal question for a court to decide.

"Every other climate case in Canada has so far failed to clear that hurdle because courts have found the issues to be too political," said Danielle Gallant, a lawyer with Ecojustice, a Canadian environmental law charity backing the case.

"This decision shows it's possible to hold the government accountable for its climate action through the Canadian courts."

The Ontario government, for its part, has argued that fighting climate change is a global responsibility, and that the province's contribution to global emissions and its ability to limit global warming are miniscule.

It has also said the federal government is responsible for the country's emissions and to negotiate on climate action on the international stage.

The group has appealed the court's decision.

Gallant said they are expecting to make their case before the Ontario Court of Appeal early next year, where she will argue that the government is not just failing to act on climate change, but rather that Ontario is actively causing the increased risk of harm and death to Ontarians.

'I want to fight on every front'

Shaelyn Wabegijig, a 26-year-old graduate student, is among the plaintiffs in the Ontario case. She views the courts as a way to hold the government accountable.

"It's our right to use our voice in court to fight for our future, to assert our rights to a safe and healthy environment," said Wabegijig, an Anishinaabe activist and Caribou Clan from Timiskaming First Nation.

"I want to fight on every front."

Other cases in Canada are also before the courts, including a challenge launched earlier this year in Saskatchewan.

Seven Saskatchewan residents between the ages of 15 and 80 claim the government's action to expand gas-fired electricity generation violates their Charter rights.

They are asking the court to order SaskPower, the province's Crown corporation, to set a reasonable target to decarbonize and to achieve net-zero emissions by 2035.

Corporations next?

The Netherlands is seen as inspiration for those seeking to challenge governments in court. In 2015, hundreds of concerned citizens were successful in arguing the government should cut emissions more than planned.

The country was again the site of a landmark case in 2021, when a Dutch court ordered Royal Dutch Shell to cut its carbon emissions.

That decision has been appealed.

While already common in the United States, Chalifour said cases against corporations are likely to be put to the test in Canada, too. She pointed to a looming lawsuit in British Columbia by municipalities against oil companies.

"There's going to be potentially more responsibility and accountability for the damages that flow from greenhouse gas emissions that tip us over the brink," she said.

"So big emitters like fossil fuel companies absolutely they need to be aware of their potential exposure … in terms of potential liability."