Children's Access to Justice for Environmental Rights | Canada

This report looks at whether the laws and policies in Canada make it possible for children to access their environmental rights.

Environmental rights are not explicitly protected within the Canadian Constitution or the Canadian Charter of Fundamental Rights and Freedoms. Environmental rights can, however, be inferred through existing protected rights and freedoms (for example, right to life, liberty and security of the person). 

Age-based discrimination claims have been advanced in Canadian environmental litigation, but are very difficult to make. The judicial reasoning in Environnement Jeunesse (ENJEU) v. Attorney General of Canada [2022] could act as an additional barrier to children and young people bringing age-based climate challenges in Canada.

The Courts are conscious of judicial overreach, and often refuse to intervene with the executive and legislative branches of government. Even when the Courts are faced with providing remedies to successful applicants, they have taken a restrictive approach. As recently as 2020, in the case of Lho’imggin et al. v. Her Majesty the Queen, the Supreme Courtdeclared that “the issue of climate change, while undoubtedly important, is inherently political, not legal, and is of the realm of the executive and legislative branches of government.” The Courts also insist that any challenge should be tied to a specific procedural instrument, which imposes justiciable hurdles for standing and makes access to justice very difficult for people in Canada. 

Furthermore, a political tension exists between the Aboriginal people in Canada, the Provincial Level Governments and the Canadian Federal Government, with the latter often declaring its rules and regulations as supreme law. Several provinces have sought to challenge Canada’s constitutional authority to pass environmental legislation which legally binds all provinces and territories, because most provinces believe that a federal climate change regulatory regime is paternalistic and usurps the provinces’ right to impose their own policies. Nevertheless, the Courts have upheld the doctrine of federal paramountcy.

There are some notable environmental law reforms, including the proposed New Brunswick Environmental Bill of Rights: An Act to Protect Children, All New Brunswickers and Nature (2022). 

This report was published in November 2022 and developed with the support of Cheryl Milne, Elise Burgert and Hannah West from the David Asper Centre for Constitutional Rights at the University of Toronto Environmental Working Group, as well as finalised based on any feedback from the State. To learn more read the full report below, and please get in touch if this information was useful and you want to talk more.