Introduction
Climate litigation is an emerging tool for climate action, with over 3000 climate-related cases filed worldwide as of 2026. In Canada, three landmark cases highlight the intersection between future generations and First Nations: La Rose v. His Majesty the King (2019) (La Rose), Lho’imggin et al. v. Her Majesty the Queen (2020) (Lho’imggin), and Mathur et al. v. His Majesty the King in Right of Ontario (2019) (Mathur). Future generations will bear the burden of climate change without having the agency to prevent or vote against it. This harm is amplified for First Nations who are more likely to experience extreme weather, lack infrastructure to combat climate impacts, and have a cultural connection to the land. The obstacles these cases face and their strengths, demonstrate a pathway to successful future litigation.
Background
Canadian jurisprudence has tended to address future generations and First Nations concurrently, but has generally failed to reach the merits stage. In La Rose, the applicants claimed standing on behalf of present and future generations, asserting that Canada’s climate policy has discriminatory outcomes for both cohorts (para 7). These claims were brought under sections 7 and 15(1) of the Charter of Rights and Freedoms (Charter), which protect the rights to life and to be free from discrimination based on ethnicity and age (para 7). The court dismissed the case before hearing its merits, finding that the impugned action could not be legally reviewed (para 40) and that the requested remedies encroached on the legislature's powers (para 95).
Another important case was Lho’imggin, where two head chiefs of the Wet’suwet’en Indigenous house (para 2) claimed that Canada’s climate policies violate their rights under sections 7 and 15(1) of the Charter (para 4). The applicants also cited violations under section 91 of the Constitution Act (para 5), which asserts that Canada must make laws for the “Peace, Order, and Good Government of Canada.” They asserted that Canada’s climate change policy disproportionately threatens the future livelihoods of Wet’suwet’en community members (para 15). This case was also deemed nonjusticiable for reasons similar to those in La Rose (para 47).
The final case, Mathur, differs from the previous two cases as it identifies a specific law that violates the rights of present and future generations rather than Canada’s climate policy. The impugned conduct is governed by Ontario’s 2018 Cap and Trade Cancellation Act (CTCA), which sets a greenhouse gas reduction target of 30% below 2005 levels (para 17). The youth plaintiffs asserted that the CTCA violates their Charter rights under sections 7 and 15(1) (para 8(a)), citing its present effects on them (para 5), including the disproportionate impact on indigenous applicants (para 13 and 17). Moreover, the applicants claimed and were granted standing for present and future generations, as the court accepted that both would bear the brunt of climate change impacts and that future generations could not bring such a claim themselves (para 253). Mathur was the only case to proceed beyond the procedural stage, yet it was still dismissed (para 188) because it imposed a positive obligation to protect the applicants’ rights to life, liberty, or security (para 126) or to remedy social inequalities (para 176).
Analysis
Canadian jurisprudence indicates that justiciability is a major obstacle to climate litigation. Both La Rose and Lho’imggin were dismissed on justiciability grounds before the merits could be heard. Future litigants, therefore, need to narrow the scope of impugned conduct by identifying specific laws that violate Charter rights rather than Canada’s climate policy as a whole. This will help avoid dismissal by national courts on the grounds that climate policy is too complex and political. Mathur’s success demonstrates a potential path for future litigation. By grounding the claims in specific provincial law, Mathur ensured that the impact of climate change on the plaintiffs could be measured and that the merits of the claims could be heard. Thus, although Mathur was eventually dismissed, it represents a strategic shift and offers a viable pathway for future litigation.
Another trend in Canada’s climate litigation is the rise in section 7 and section 15(1) rights-based claims. Filzah Belal highlights the paradox that, while Canada has committed to numerous international treaties recognizing the right to a healthy environment, it is not contained in its constitution. Therefore, applicants use Charter rights, which are generally considered justiciable because they rest on pre-existing legal obligations. Despite this, section 7 claims are more successful than Section 15 claims for future generations. For instance, in La Rose and Lho'imggin, the Federal Court of Appeals ruled that intergenerational equity falls outside of section 15 (para 82), as there is no present harm to which the claim can anchor itself (para 124). This underscores the difficulty of rooting section 15 claims in future harm.
Finally, Canadian case law demonstrates the similarities and distinctions between the identities of Indigenous peoples and future generations. Both demographics will disproportionately bear the impacts of climate change despite contributing the least to it. Consequently, in Mathur, the applicants claimed that the CTCA Target widens the gap between members with intersecting Indigenous and future-generation identities and the majority population (para 74). One possible avenue for using Indigenous knowledge in court to highlight this intersection is the Haudenosaunee Confederacy's Seventh Generation Principle, which holds that current decisions should produce sustainable outcomes seven generations from now. This framework may help emphasize the obligation that present generations have to future generations and the intersecting identities of future generations and First Nations. Still, these cases also demonstrate that discrimination claims are harder for future generations than for First Nations, who are already experiencing the impacts of climate change and can therefore provide proof anchored in the present. Thus, acknowledging these similarities and differences and incorporating Indigenous knowledge may make future litigation more successful.
Conclusion
Overall, the current state of climate change litigation in Canada demonstrates the limitations of litigation for future generations and First Nations. The La Rose, Lho’imggin, and Mathur decisions indicate how future cases may overcome justiciability obstacles and the court’s preference for discrimination rooted in present injury. These decisions identify several opportunities for more successful future litigation by demonstrating how we can rethink standing, justiciability, and rights-based litigation.
Bio
Sadie Damianidis is a second-year bachelor student from Canada currently studying International Justice at Leiden University College, The Hague. This post is part of a broader body of work produced through a research clinic directed by Dr. Otto Spijkers, titled Climate Litigation for Future Generations.