The greening of human rights

Although a decision from Europe’s highest human rights court that found humans have a right to safety from climate catastrophes was handed down an ocean away, observers say the ripple effects will be felt on this side of the Atlantic.

In a landmark ruling earlier this month, the European Court of Human Rights (ECHR) agreed with a group of Swiss women that their government “had failed to comply with its duties” to set and implement climate targets consistent with that is necessary to avert catastrophic climate change.

The court found that was a violation of the women’s rights as set out in the European Convention on Human Rights, which guarantees people “effective protection by the state authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life.”

The plaintiffs were part of a group called KlimaSeniorinnen (Senior Women for Climate Protection). As older women, they told the court they were particularly vulnerable to the extreme heat that is increasingly common with climate change.

While the court didn’t prescribe what action Switzerland must take in its 250-page judgment, it made clear the government’s discretion is not unfettered, laying out minimum standards states should have “due regard” for, including carbon budgets and targets that adhere to science, and transparency in reporting on progress.

“This decision importantly affirmed that the climate crisis is a human rights crisis,” says Ecojustice lawyer Fraser Thomson.

“And it’s only through government action that we can preserve a living future.”

While the science has been clear for some time, he says the ECHR decision “is emblematic of a growing chorus of judges that are recognizing the existential threat of climate change,” finding it violates constitutional rights and requiring governments to act on it.

It echoes similar findings from courts in the Netherlands, Germany, and Belgium, and a landmark ruling from India’s Supreme Court earlier this month found that people have the fundamental right to be free from the adverse effects of climate change.

These decisions demonstrate that the human rights instruments developed to address the gravest threats of the 20th century are up to the task of responding to the most pressing human rights threats of the 21st century, Thomson says. Within them, courts are finding a right to protection from adverse climate effects or a shield citizens can use to keep their states from fuelling the crisis.

The ECHR ruling marks the first time a transnational human rights court has upheld a right to climate protection. The decision is binding for all 46 countries that have signed the European Convention on Human Rights. 

But observers say its reach will extend beyond that.

“This landmark ruling will continue to inspire citizens around the world, including Canada, to speak up to hold their governments to account in court,” Thomson says.

While Canadian courts have yet to find a violation of Charter rights in a climate case, they have acknowledged that government climate action — or a lack thereof — puts peoples’ rights at risk.

In its 2021 reference on the Greenhouse Gas Pollution Pricing Act, the Supreme Court said that climate change poses “an existential challenge” and “a threat of the highest order to the country, and indeed to the world.”

In Mathur et. al., seven young people, backed by Ecojustice and Stockwoods LLP, took the Ontario government to court over its decision to significantly weaken the province’s 2030 climate target. The group has argued this will lead to widespread illness and death, which constitutes a violation of Ontarians’ Charter-protected right to life, liberty, and security of the person.

Although the matter was dismissed in April 2023, Justice Marie-Andrée Vermette of the Ontario Superior Court said the provincial government is risking people’s health and lives by setting a dangerously low and unscientific target to reduce greenhouse gas emissions — which engages Charter rights.

Although the matter was found to be justiciable, it was dismissed on other legal grounds. The case was heard by the Ontario Court of Appeal in January.

Thomson, who is part of the Mathur legal team, notes that in the past, Canadian courts, including the Supreme Court, have looked to European courts when weighing how our legal system should respond to the climate crisis.

“We aren’t as far along as the European courts, but there are courts that have acknowledged the severity of this crisis,” he says.

They may soon go further. 

In December, the door was opened to a Section 7 climate change Charter challenge. The Federal Court had dismissed LaRose v. Canada, a case brought by 15 children and youth against the federal government, and a second climate case, Misdzi Yikh, on the basis the claims were not justiciable. The Federal Court of Appeal, however, disagreed, found that Section 7 claims are justiciable and allowed the appellants’ joint appeal.

“Climate change’s current and potential effects are widespread and grave; they include loss of land and culture, food insecurity, injury and death …,” the court said in its decision. 

“If these do not constitute special circumstances [grounding a section 7 claim], it is hard to conceive that any such circumstances could ever exist.”

Last year, 16 young people successfully sued the government of Montana for violating their “right to a clean and healthful environment” under the state’s constitution due to its promotion of fossil fuel use and failure to consider how projects contribute to climate change.

It was the first US climate litigation to reach trial and the first judicial decision directly tying climate change to constitutional rights.

“I think if I were to go to court on behalf of a government and argue that climate change policy and laws are non-justiciable, I would have felt a lot more comfortable doing so just two years ago,” says Benjamin Ralston, an assistant professor at the University of Saskatchewan’s College of Law.

But now that American courts and the ECHR have shifted their views on what kinds of claims can go forward, and there’s been a shift in principle by the Federal Court of Appeal and the Ontario Superior Court, he says “some of the (justiciability) arguments that used to seem like big barriers are falling away.”

“We have a number of different ways in which courts across the world are finding climate change to be justiciable and relevant to the protection of a variety of different rights.”

The International Court of Justice, the International Tribunal for the Law of the Sea, and the Inter-American Court of Human Rights also have similar climate cases working through the system.

While those will be non-binding opinions, Ralston says decisions within the international law system further develop reasoning and jurisprudence.

With so many cases decided and in the pipeline, different pieces will undoubtedly come into the mix of Canadian litigation.

“The writing's on the wall, there’s no undoing this,” Ralston says.

“The reality is that the climate is changing and the law is going to have to change with it. It's just a question of what exactly it's going to look like in a Canadian context more than anything.”