With a groundbreaking climate trial underway in the US, more lawsuits are looming in Canada

In a Montana courtroom, a young woman’s eyes came to tears as she explained how drought, wildfires and floods have endangered her family’s cattle ranch.

“It’s stressful,” 22-year-old Rikki Held told the court last week.

“That’s my life, and my home is there, and it affects 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 combat global warming.

The climate change lawsuit, which continues in court this week, is the first filed in the US in the past decade.

State officials have tried to downplay Montana’s contributions to climate change, closely watching the process for potential legal precedents.

Testimony continues this week. The plaintiffs declined to be interviewed, citing the ongoing case.

Such poignant, personal stories would soon be heard more often in other jurisdictions, including Canada.

Experts say climate litigation against both governments and companies 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 right now and they are evolving at a record pace,” said Nathalie Chalifour, a law professor at the University of Ottawa who has followed climate litigation for more than a decade and has served as a mediator in climate litigation.

“Canadian courts can look at what other courts decide and that can be very helpful because the issues raised by climate lawsuits are really new.”

Case Ontario shows ‘what is possible’

There have been 35 climate-related legal challenges in Canada, according to Columbia University database for climate disputes. One of the most watched cases among them was brought up in Ontario – and has yet to be settled.

Seven young people submitted an application court case to the Ontario government in 2019 because its climate plan fails to protect them and future generations.

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

The case was turned down of the Ontario Superior Court in April, although the judge agreed with the applicants on several key points, including that Indigenous peoples and youth are disproportionately affected by climate change and that the province is putting the lives of Ontario residents at risk by not to proceed with its climate plan.

The ruling was also important because even though the judge rejected it, she found it judicial, meaning it’s 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 felt the issues were too political,” said Danielle Gallant, a lawyer with Ecojustice, a Canadian environmental law charity that is backing the case.

“This decision shows that it is possible to hold the government accountable for its climate action through the Canadian courts.”

The Ontario government, for its part, has argued that combating 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 that the federal government is responsible for the country’s emissions and for negotiating climate action on the international stage.

The group has appealed the court’s decision.

Gallant said they expect their case in the Ontario Court of Appeal early next year, where she will argue that not only is the government 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 all fronts’

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

“It is 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 of Timiskaming First Nation.

“I want to fight on every front.”

Other cases in Canada are also in court, including a lawsuit launched in Saskatchewan earlier this year.

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

They are asking the court to order SaskPower, the county’s crown company, to set a reasonable goal to go low carbon and zero emissions by 2035.

Companies next?

The Netherlands is seen as a source of inspiration for those who want to take governments to court. In 2015, hundreds of concerned citizens managed to argue that the government should reduce emissions more than planned.

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

An appeal has been lodged against that decision.

While already common in the United States, Chalifour said cases against companies are likely to be tested in Canada as well. She pointed to one impending lawsuit in British Columbia by municipalities against oil companies.

“There will potentially be more responsibility and accountability for the damage resulting from greenhouse gas emissions that tip us over the edge,” she said.

“So big emitters like fossil fuel companies definitely need to be aware of their potential exposure…in terms of potential liability.”