December 2020 | bartalkonline.org
The Impact of Climate Change on the Law
FORESTRY | ENVIRONMENTAL SUSTAINABILITY | MICROPLASTICS
DECEMBER 2020
VOLUME 32 / NUMBER 6
Contents
Departments
3
FROM THE PRESIDENT Working Together to Curb the COVID-19 “Shecession” by Jennifer J.L. Brun
5
EXECUTIVE DIRECTOR A Renewed Hope by Kerry L. Simmons, QC
10 INDIGENOUS MATTERS Environmental Sustainability and Customary Indigenous Law by Randolph W. Robinson 11
The BC Human Rights Tribunal Leads the Way by Frances Rosner
20 NOTHING OFFICIAL Only Nixon Could Go to China by Tony Wilson, QC 28 PRACTICE TALK Evolving Views on How to View Security by David J. Bilinsky 29 DAVE’S TECH TIPS
Features
Inside This Issue A tragedy of the commons is a difficult sort of problem. Cooperation creates the greatest good for the greatest number, but there is an incentive to be selfish. Increased wildfires, depletion of global fisheries, deforestation, oceanic garbage patches, and the spread of COVID-19 are all evidence of our failure to act collectively. Increasingly, we are confronted with the reality that the nearly eight billion of us are a global society, and here lies a massive intersection between climate change and the law. The law, as it happens, is a set of rules reflecting societal design decisions: design decisions which are very frequently geared at combating social bad actors. Lawyers, therefore, are uniquely positioned to engage in discourse around the health of the planet, which is increasingly a rights-based conversation focused on Earth as the common heritage of humankind.
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What’s the Deal with the Paris Climate Agreement? by Selina Lee-Andersen
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Please Keep Your Garbage Out of My Patch by Jennifer Griffith
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Barriers to Climate Action in Municipalities by Carrie Moffatt
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A Changing Tide by Maya Stano
13
The Need for a Canadian Climate Test by Anna Johnston
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Protecting Biodiversity Requires Paradigm Shift in Forestry by Sean Jones
Also in This Issue
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Tragedy of the Climate Crisis by Lisa Picotte-Li
9
Climate Change Disclosure
The Legal Profession and Climate Action
22 Microplastics and Climate Change by Jessica Wilson and Karissa Kelln 23 Canadian and Foreign Climate Litigation Survey by Dustin Klaudt
— Brandon D. Hastings Chair, BarTalk Editorial Committee
15 CBABC Advocacy Update 16 Section Update 17 Professional Development 19 BC WLF Update
24 What’s the Point of Climate Change Litigation? by David W. L. Wu
CLEBC Update
Competitive Barriers
25 A Heads Up on Climate Accountability in BC by Matt Hulse and Julia Croome
21 Law Foundation of BC
Guests
26 Coming Back from Cancer by Michael Butterfield 27 Making a Case for Cultural Humility by Zahra Jimale and Jennifer Smith 2 BARTALK / DECEMBER 2020
28 POINT: Lawyers Have a Role to Play in Responding
to Climate Changes
COUNTERPOINT: The Case Against the Proposed
CBA Resolution for “Climate Justice”
29 Tips from Courthouse Libraries BC 32 Bar Moves
FROM THE PRESIDENT JENNIFER J.L. BRUN
Working Together to Curb the COVID-19 “Shecession”
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OVID-19 has focused attention on countless societal challenges. As we work tirelessly to provide our clients with safe and accessible legal services, one such challenge that has presented itself is that the pandemic is insidiously exacerbating gender inequalities. Female-dominated industries, including healthcare, eldercare, education, service, and hospitality, are among the hardest hit by COVID-19. While dramatic layoffs in these sectors are partly to blame for the exodus of women from the labour force, that factor in isolation is an oversimplification of the global problem. Women are leaving the workforce in all sectors because the pandemic is causing their support networks to collapse. This trend was propagated as a “shecession” by The New York Times in May and the label stuck. As the pandemic has forced us into our homes, the tasks of caring for and educating our children have landed disproportionately on the shoulders of women. As stated in an August 17, 2020, CBC News article entitled Pandemic threatens to wipe out decades of progress for working mothers: “While one might think, in 2020, that strain would fall equally on the shoulders of all parents, that’s not what the data shows. During COVID-19, women’s participation in the Canadian workforce has fallen to a level not seen in decades.” Many women have been working and caretaking full time, with little reprieve. When women exit the labour force due to COVID-19, a ripple effect on
their professional and financial goals will be felt well into their future. This, in turn, will hurt the consumer economy. But that is not the end of it. Women bring important and unique skills and philosophies to the labour market, and along with those traits comes innovation. Diversification drives success. As an October 17, 2020, article in TIME magazine entitled If We Had a Panic Button, We’d be Hitting It states: “A 19-year, 215-company study out of Pepperdine University found a strong correlation between companies hiring women executives and their profitability, resulting in 18-69% boosts for the Fortune 500 firms with the best records of promoting women.” Focusing more narrowly on the legal profession in BC, women leave at higher attrition rates than men. The Mapping Her Path: Needs Assessment Report prepared by The Justice Education Society of BC in 2016, confirmed that only 37% of lawyers in British Columbia are women while women comprise over 50% of law school graduates. In addition to historic levels of attrition, the pandemic is reversing hardearned progress toward creating more equal and diverse workplaces. This is in large part due to the gender pay gap and systemic gender bias that still exist. In dual income families, it is usually the lesser paid spouse who leaves the workforce to see to caretaking responsibilities.
One silver lining of this crisis, however, is that norms are being challenged at every turn. Firms with no remote work policies have become fully operational from home. Workplaces with nine-to-five office hours are offering flexible schedules, including alternate hours, split days, and reduced workloads. The unconscious bias that having a child playing in the background of your video-conference — or sitting on your lap — means you are less committed to your career, is being confronted. For many of us, we have been juggling full workloads and caretaking responsibilities for 10 months now, and the strain of the situation is taking a toll. So consider seizing this opportunity for change. As an employer, be mindful of exploring flexible approaches that prioritize diversity and inclusion in the face of COVID-19. As a colleague, be empathetic as parents and caretakers juggle the roles of parent, caretaker, and lawyer. As a parent and caretaker, be vocal about your personal responsibilities and offer solutions to your employer and colleagues that allow you to achieve your goals without burning the candle at both ends. Together, let’s curb the COVID-19 “shecession” and avoid women burning out altogether.
Jennifer J.L. Brun
president@cbabc.org DECEMBER 2020 / BARTALK 3
BARTALK EDITOR
Deborah Carfrae EDITORIAL COMMITTEE CHAIR
Brandon Hastings
EDITORIAL COMMITTEE MEMBERS
Tonie Beharrell Baljinder Girn Eryn Jackson Greg Palm Lisa Picotte-Li Randy Robinson Crystal Tomusiak Sean Vanderfluit
BARTALK SENIOR EDITOR
Carolyn Lefebvre
STAFF CONTRIBUTORS
Alyssa Brownsmith Michaela David Travis Dudfield Eileen Huster Sanjit Purewal Jo-Anne Stark
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A VIRTUAL COFFEE WITH DR. GUNDERSON
Dismantling systemic racism in the legal profession Dr. Lisa Gunderson is an award-winning educator and leader on issues that impact BIPOC populations, especially on racial identity and mental wellness. This one-hour Q&A session builds on the popular Systemic Racism in the Workplace webinar. Dr. Gunderson discusses pressing issues and answers further questions on systemic racism, equity and power/privilege in the legal arena. Thu, Jan 14, 2020 | 12:30pm – 1:30pm CBA members: Free| Non-members: $75 Register
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EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC
A Renewed Hope
Advocacy after the election
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ith the provincial election complete, and the appointment of a new Cabinet, CBABC will renew its advocacy to bring legislation and law reforms and justice policy solutions to the attention of MLAs and press for those changes. Work is underway on CBABC’s Agenda for Justice 2021 (“Agenda”), which will launch in January. It contains a series of CBABC recommendations to government in a wide range of areas. The Agenda explains how the solutions offered are necessary to strengthen the economic environment for everyone in BC, to protect vulnerable citizens, and to recognize and harness the knowledge from diverse demographics in our province. The documents are in plain language to help expand public understanding of how justice system issues affect day-to-day life in BC. How was the Agenda developed? By the CBABC membership. Over the past weeks, Sections, committees and working groups reviewed from CBABC Submissions over the past few years, progress and relevancy of past Agenda recommendations, justice system partner recommendations, and recent feedback from members through the Thoughtexchanges issued through News + Jobs and to specific CBABC groups. This includes conservations with and review of information from the Association of Legal Aid Lawyers, BC Law Institute, the First Nations Justice Council, the BC Human Rights Commission, and many more. If you haven’t yet participated in a Thoughtexchange, I hope you will soon. You’ll see them in your weekly
e-blast, News + Jobs. The crowdsourcing software platform allows participants to make suggestions anonymously and then rate other’s suggestions. The behind-the-scenes data analysis and the rating system means the most popular ideas in the conversation rise to the top, allowing us to gauge support before making recommendations. The reports generated from members’ participation in Thoughtexchanges have provided a further source of information to CBABC groups to inform their decisions. They help us ensure we have a fair and informed source of information as the Board sets the advocacy priorities and agenda. Following the release of the Agenda, President Brun, myself, the Board of Directors and subject-matter experts from the CBABC membership will continue to engage with the MLAs through formal meetings, written submissions, and committee appearances. Building relationships with new Cabinet ministers is key to CBABC’s advocacy with the provincial government. We will lead initiatives on behalf of the legal profession and in partnership with our justice system partners. This brings me to some recent formal feedback you gave us. In August, the CBA Nanos Survey revealed that 42.6% of BC members answering the survey say that CBA delivers on its promise for advocacy better than other organizations, with 26% saying we meet the same level as others. The Board of Directors works hard to ensure the necessary resources of
volunteers, staff support, and technological resources to meet and exceed members’ expectations. The Nanos Survey results are another important part of receiving member feedback and assessing our progress. Beginning in 2017, CBA partnered with NANOS to survey members once or twice a year about everything from professional development programming to advocacy priorities and everything in between. The results are considered by the CBABC Board and CBA National Board when setting advocacy and strategic priorities and by staff to introduce new programs and services and retire others. This “member intelligence” as we call it, gives you a voice about what you value, what is important, and how we are doing in delivering the benefits of membership. The political landscape of our province and indeed the world is changing, providing opportunity for ideas to be accelerated into action. There is renewed energy to bring legislative and justice reforms forward and see further progress for the benefit of clients, the rule of law, the administration of justice, and a sound foundation for democracy. Your contributions as CBABC members make that possible. Thank you!
Kerry L. Simmons, QC
ksimmons@cbabc.org DECEMBER 2020 / BARTALK 5
feature SELINA LEE-ANDERSEN
What’s the Deal with the Paris Climate Agreement?
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hen the Paris Agreement came into force in November 2016, it marked the start of a renaissance period for climate change policy, one that represents a global paradigm shift toward a lower-carbon economy. As of November 1, 2020, 189 countries had ratified the Paris Agreement (out of 197 Parties to the United Framework Convention on Climate Change [“UNFCCC”]). Canada ratified the Paris Agreement on October 5, 2016 and has committed to reducing its greenhouse gas emissions by 30% below 2005 levels by 2030. In 2019, the federal government announced that it will develop a plan to achieve net-zero emissions by 2050, supported by legally-binding, five-year emission reduction milestones. The Paris Agreement articulates a series of global goals to enhance climate adaptation efforts and capacity-building, as well as strengthen resilience and reduce vulnerability to climate change. The Paris Agreement also establishes a long-term emissions goal of peaking global emissions as soon as possible, with a view to achieving net zero emissions in the second half of this century. Countries have also committed to an ambitious goal of holding the increase in global average temperature to well below 2°C above pre-industrial levels, while they pursue efforts to limit the temperature increase to 1.5°C above preindustrial levels. 6 BARTALK / DECEMBER 2020
At the 24th Conference of the Parties (“COP 24”) held in Katowice, Poland in November 2018, UNFCCC parties produced the Katowice Rulebook, which sets out the details for implementing the Paris Agreement. In addition to the rulebook, COP 24 also saw the completion of the Talanoa Dialogue, a year-long assessment of progress toward the Paris Agreement’s long-term goals, which was designed to inform countries’ efforts to update their climate targets (referred to as Nationally Determined Contributions) in 2020. At COP 24, Canada played a leading role in advancing various emission reduction initiatives under the Paris Agreement, including laying the groundwork for a global carbon market, promoting the Powering Past Coal Alliance (which Canada and the UK founded at COP 23), and advancing the work of the Local Communities and Indigenous Peoples Platform. COP 25 was held in Madrid in December 2019 against a backdrop of growing civil unrest with the rise of movements such as Extinction Rebellion and the Fridays for Future school strike for climate, which began in earnest in August 2018 when Greta Thunberg staged a single person protest outside the Swedish parliament. The “Greta effect” resulted in a series of significant climate strikes around the world in 2019. COP 25 had an
important role as the stepping stone for more ambitious emission reduction comments to be presented by governments at COP 26, which will be held in Glasgow, Scotland in November 2021 (originally scheduled to take place in November 2020, COP 26 was postponed due to the COVID-19 pandemic). Negotiations at COP 25 were fractious and ultimately disappointing in terms of the lack of progress made. Many urgent decisions were deferred to COP 26, including decisions on the robustness of the rules for setting up an international carbon market and the issue of “loss and damage,” which involves providing compensation to countries already suffering from the impacts of climate change. Despite the US withdrawal from the Paris Agreement, which became effective on November 4, 2020, global efforts to reduce emissions continue full steam ahead. China announced in September 2020 that it would achieve carbon neutrality by 2060. In addition to Canada, a growing number of countries are pledging to become carbon neutral by 2050. Federal and provincial efforts are well underway to implement emission reduction initiatives under the Pan-Canadian Framework on Clean Growth and Climate Change. Canada has endorsed the global goal of keeping rising average temperatures to within 1.5°C above pre-industrial levels — how this is translating into federal, provincial, and municipal climate action continues to evolve. Selina Lee-Andersen practises environmental and Aboriginal law with McCarthy Tétrault LLP in Vancouver.
feature JENNIFER GRIFFITH
Please Keep Your Garbage Out of My Patch
I
n recent months, ecotourism operators, working with Indigenous Nations, removed 130 tonnes of garbage from British Columbia’s coastline. This garbage consisted mainly of plastics. On October 7, the federal government, following up on a January 2020 commitment to ban harmful single-use plastic, announced that it will prohibit grocery checkout bags, straws, stir sticks, six-pack rings, plastic cutlery and certain food takeout containers. The government plans to do this by the end of 2021, through regulations under the Canadian Environmental Protection Act, 1999. The ban on single use plastics is one element of Canada’s proposed integrated approach to address plastics pollution.1 It follows the release of the Government of Canada’s Science Assessment of Plastic Pollution Report (“Report”), which anticipates an increase in physical effects of macro- and microplastics if steps are not taken to reduce them in the environment. The Report has identified a potential link between plastics pollution and climate change.2 The problem of plastic pollution in the ocean is not something new; but the awareness of it has been increasing steadily in the last decade, particularly with the advent of reports of ocean garbage patches. First “discovered” by a sailor in 1997, the Great Pacific Garbage Patch, which covers an area three times the size of France and consists of plastics and other debris concentrated by
ocean currents into a swirling vortex of trash, is the largest of a number of such patches. These concentrated areas of marine debris, consisting of microplastics, along with larger plastic items such as fishing gear, are one symptom of a broader issue: the use of the ocean as the world’s cesspool.
As with all international conventions, signatory states must implement their commitments through domestic legislation. Canada’s Oceans Act is aimed at implementing aspects of the Law of the Sea Convention, while most aspects of the MARPOL Convention are implemented domestically under the Canada Shipping Act, 2001. In addition, the Canadian Environmental Protection Act, 1999, prohibits the disposal of materials at sea without a permit, and the Fisheries Act regulates activities which may cause damage to fish and fish habitat. Although Canada’s population is small, it has the longest coastline of any country in the world. The impending ban on single-use plastics is another step by Canada to prevent plastic pollution. It will eliminate, through legislation, the potential for certain plastics to end up in the ocean.
The ocean garbage patches are an example of the classic “Tragedy of the Commons” first described by the biologist Garret Hardin in 1968. Reacting to pollution, he wrote: “Prohibition is easy to legislate (though not necessarily to enforce); but how do we legislate temperance?”3 The nature of the world’s oceans as a “commons” is undisputed. Canada is a signatory to the United Nations Convention on the Law of the Sea, which has its genesis in a declaration of the General Assembly of the United Nations that the seas beyond the limits of national jurisdiction are the common heritage of humankind. Part XII of the Law of the Sea Convention deals with the protection and preservation of the marine environment. Canada has also adopted many elements of the International Convention for the Prevention of Pollution from Ships (“MARPOL”). MARPOL Annex V prohibits the discharge of garbage into the sea, including the discharge of plastics as well as mixed garbage containing plastics.
The prohibition of these plastics in Canada, however, is not a panacea for ocean garbage patches. It will take a global effort, consisting of both legislation and temperance on all our part, to prevent the ongoing concentration of plastics in the ocean garbage patches by ensuring plastics do not enter the oceans in the first place. We must all keep our garbage out of the common patch. bit.ly/bt1220p7-1. Science Assessment of Plastic Pollution, October 2020, at p. 80, bit.ly/bt1220p7-2. 3 Science, 1243 Science 164 (3859) 1243-1248. 1
2
Jennifer Griffith practises with Donovan & Company in Vancouver representing Indigenous Nations and sailed through a five square mile garbage patch between Zihuatenejo and the Galapagos Islands. DECEMBER 2020 / BARTALK 7
feature CARRIE MOFFATT
Barriers to Climate Action in Municipalities
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ocal governments bear the direct impacts of climate change and are faced with addressing their communities’ unique needs with limited resources and legislative authority. For example, municipal stormwater and sewer pipes have to be upgraded and repaired to deal with increasingly severe storm events, sea walls and dykes have to be reinforced to address rising sea levels, and local water consumption must be carefully managed to address longer droughts. All of these challenges are expensive to address, and local governments are limited in their ability to raise revenue to recoup the costs or proactively implement climate-resilient infrastructure. These financial challenges are compounded by the hurdles that are placed on local governments through legislation that has, at times, failed to keep up with the types of issues, such as climate change, that modern cities and towns in BC are grappling with. A key challenge is with respect to business regulation. The Community Charter prohibits municipalities from assisting businesses, which includes providing any sort of grant, advantage, benefit, or tax or fee exemption. Depending on the circumstances, this prohibition may not apply to the City of Vancouver, which is governed by the Vancouver Charter. One exception to this rule is where a local government is providing assistance to a business that is conserving or developing heritage property or increasing 8 BARTALK / DECEMBER 2020
the community’s knowledge of local history. No such exception exists for providing assistance to businesses that are, for example, aggressively reducing greenhouse gases (“GHGs”), creating zero waste, or developing alternative energy solutions for the local market. Allowing local governments to provide assistance to local businesses or match grants provided by other levels of government could go a long way to support innovative climate initiatives and bolster the resilience of local economies. Another challenge for municipalities is addressing GHG emissions. Energy efficiency in buildings and improving the ways in which communities construct, demolish, or heat and cool buildings are important aspects of GHG reduction. The City of Victoria estimates that nearly 50% of its community GHG emissions come from buildings. While the Community Charter appears to grant municipalities with broad authority to regulate buildings for the purpose of reducing GHGs, this is severely limited by the Building Act and its numerable exceptions and regulations. In an effort to harmonize building regulations, around 2017, the province largely stripped municipalities outside of Vancouver of the ability to regulate building construction or cater building requirements to the unique needs of individual communities.
The Building Code does contain an Energy Step Code that many municipalities have opted into, which addresses energy efficiency measures. However, the Step Code standards do not always directly translate to a reduction in GHGs. Many towns and cities are seeking to respond to their communities’ call to do more and move faster in regulating new construction but are hamstrung by the restrictions in the Building Act. Finally, the Community Charter provides that the protection of the natural environment is concurrent jurisdiction shared between the province and municipalities. Unlike most municipal legislation in Canada, bylaws adopted under this head of authority requires ministerial approval. With the BC Court of Appeal’s decision in Canadian Plastic Bag Association v. Victoria (City) 2019 BCCA 254, it is unclear if every bylaw enacted to address climate change as one of the goals requires ministerial approval. This has potentially posed a significant limitation on local governments. With their smaller size and geographic scope, local governments have the ability to be more nimble than other levels of government. Municipalities across BC are optimally positioned to monitor, respond to, and proactively address the unique impacts climate change presents to their respective regions. Allowing municipalities to have greater access to resources and legislative authority would strengthen their ability to achieve their climate targets and address climate change challenges. Carrie Moffatt is an Assistant City Solicitor at the City of Victoria. The views expressed here are her own. LinkedIn.
nationalmagazine CBA NATIONAL MAGAZINE
CBA NATIONAL MAGAZINE
Climate Change Disclosure
The Legal Profession and Climate Action
THE RULES AROUND PUBLIC DISCLOSURE OF CLIMATE-RELATED RISKS ARE EVOLVING RAPIDLY.
Along with the economic, social, and political environment in which it operates, the Canadian law related to climate change is evolving rapidly. Laws and stakeholder expectations about the public disclosure of climate change-related risks is no exception. Disclosure of climate change-related risks differs from many other forms of public disclosure. This is because of the uncertainty about the effects of such risks, and, in many cases, the length of time those effects take to materialize. As society’s focus on climate change has grown in recent years, stakeholders, major institutional investors, and governance entities are increasingly demanding more robust and specific climate change-related risk disclosure to inform their business decisions. In Canada, climate change-related risk disclosure is informed by both international and Canadian entities. At the international level, two of the major driving influences on climate change-related risk disclosure standards are the Taskforce on ClimateRelated Financial Disclosure (“TCFD”) and the Sustainability Accounting Standards Board (“SASB”) framework. The TCFD has provided a common international disclosure framework using four widely adoptable recommendations about climate-related financial disclosures. The SASB Framework assists in identifying the information needed by investors, lenders, and insurance underwriters to appropriately assess and price climate-related risks and opportunities. The SASB Framework also offers an industry-specific analysis of existing climate-risk disclosure. Moreover, its standardized disclosure framework aligns with the initiatives of both the Securities Exchange Commission and the Financial Stability Board.
Read the full article
CLIMATE CHANGE IS A COLLECTIVE BURDEN, AND ADDRESSING ITS IMPACTS MUST BE DONE EQUITABLY AND FAIRLY, WITH ETHICAL AND LEGAL CONSIDERATIONS IN MIND.
That, at least, is the central idea at the core of climate justice. But according to Meredith James, a lawyer at Woodward & Company Lawyers LLP in Victoria, it isn’t always clear to legal professionals how their responsibilities align with the global need for climate action. “As we come to understand the enormous scope and severity of the current and future impacts of climate change, lawyers are increasingly recognizing that they have a role to play in responding to the climate crisis,” she says.
Read the full article
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DECEMBER 2020 / BARTALK 9
Indigenousmatters RANDOLPH W. ROBINSON
Environmental Sustainability and Customary Indigenous Law
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ndigenous artists are incorporating customary laws into environmental sustainability efforts to move into a climate friendly future. Customary Law encompasses Indigenous elder teachings of traditional ways of knowing. First Nations’ elder knowledge is considered crucial to the educational pathways being carved out by First Nations students today. I recently interviewed my brother, Dave Robinson, Anishinaabe sculpture artist, to hear about his efforts to respect the environment through customary Indigenous practices and protocols with Coast Salish Knowledge Keeper Shane Pointe. Dave described his journey with carving that started about eight years ago while transferring from Langara College to the University of British Columbia’s (“UBC”) Native Indian Teacher Education Program within his observational practicum working on a carving project for Vancouver’s Take a Hike program. “We began a 12’ Red Cedar log sculpture named Many Beings; which received a pole raising ceremony from... Shane Pointe... I realized in the moment that... I became a carver, and inherited the responsibility of knowing and taking the necessary actions I am aware of to start and finish each carving project in a good way.” Dave has since produced a series of wooden sculptures that “... allude to the importance of the social, emotional, physical, and intellectual experiences that develop when incorporating Indigenous knowledge when carving with community.” In creating his sculptures, Dave has also 10 BARTALK / DECEMBER 2020
honed his gratitude for community gift-giving — an Indigenous practice. Three years ago, while carving a 24’ Red Cedar sculpture, Dave encouraged Polygon Homes to recycle and donate several trees near UBC Farm for the purpose of carving with Vancouver School Board (“VSB”) youth. This community aspect of carving has become important to Dave in tying together customary Indigenous practices with education and environmental knowledge. At a recent
“gifting ceremony” held at Lord Byng Secondary on October 4, 2020, Dave was part of an event where thirty sculptures were gifted to community educational institutions, health clinics, and individual persons. Dave found that, “the event was an important marker for my sculpting practice because I redistributed the wealth of Red Cedar Medicine that was given to me, transformed and gifted back to the community. My mother Dr. Jocelyne Robinson shared with me that in our traditional territory Timiskaming [Quebec], hunting was done on family tracts of land. Permissions to hunt on a neighbours land could be obtained through agreements of equal shared resources of your land.” Comparative permissions protocols were extended as part of Dave’s engagement in traditional Coast Salish cultural ceremonies for his carving practice.
Dave was mentored by Uncle Shane Pointe and was able to share his Medicine Wheel Puzzle Project Log with VSB through an honouring ceremony. “My Mother Dr. Jocelyne Robinson also came, and shared knowledge of her Dream Narrative: Ekwânamo Dream project. This ceremony incorporated Algonquin and Coast Salish Knowledge Keepers.” Dave anchored Shane Pointe’s teachings with his own learning by sharing several sculptures he’d carved with recycled wood over the course of two years with community members. Dave described the importance of asking for guidance and permission from Coast Salish peoples, on Musqueam land at UBC, as invaluable to his experiences as a visitor to this community. “I asked Coast Salish Knowledge Keeper Shane Pointe for permission to carve and live on Coast Salish Territory and was granted that privilege. When I start carving projects it is important to ask for help and permission to begin our work in a good way. This protocol was followed.” Dave’s future carving projects, including a 100’ Red Cedar sculpture, aim to bring together youth linking both Indigenous knowledge and Western science to engage in respectful relationships for each other and Mother Earth. PHOTO: October 04, 2020 — Cedar Sculpture Gifting Ceremony held at Lord Byng Secondary. Artist and educator, Dave Robinson, repurposed logs from Polygon for gifting to community members. Randolph W. Robinson is an Algonquin lawyer from the Timiskaming First Nation. He is currently appointed the Representative of the Canadian Bar Association’s Aboriginal Lawyer’s Forum.
FRANCES ROSNER
The BC Human Rights Tribunal Leads the Way for the Implementation of UNDRIP The BC Human Rights Tribunal is at the forefront for implementing the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) — in keeping with BC’s commitment to implement UNDRIP through the Declaration on the Rights of Indigenous Peoples Act that came into force on November 28, 2019. The tribunal set out to examine the human rights framework in BC to determine why Indigenous peoples were not filing human rights complaints and on January 15, 2020 released the report: Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights, prepared by Ardith Walpetko We’dalx Walkem, QC. The report confirmed that both individual human rights violations against Indigenous peoples and systemic discrimination remain pervasive in BC. Several barriers to accessing the tribunal were cited in the report, including (but not limited to) the fundamental differences in the ways that Indigenous peoples define human rights, not knowing that the tribunal existed or how to access it, and not thinking that filing a complaint would make a difference. Nine recommendations were made to reduce the barriers, including increasing Indigenous representation at all levels of the tribunal; creating education materials and training to bridge the gaps in knowledge to prospective
Indigenous complainants, and within the tribunal, through cultural competency training and traumainformed practice; and by removing procedural barriers within the tribunal. Key changes extended beyond the scope of the tribunal and relate to broadening the concept of human rights to incorporate human rights principles as reflected in UNDRIP and Indigenous legal traditions in the Human Rights Code and in the tribunal’s operations and practices. Importantly, the report calls upon the tribunal to advocate for the inclusion of cultural identity in the Code as a protected ground.
created a space for people to identify traditional names. The committee is also overseeing the development of the BC Human Rights Tribunal Indigenous Cultural Competency and Humility Framework with current initiatives that include monthly meetings for tribunal members with a cultural training component and monthly small group work for all staff and members. Importantly, the tribunal wrote a letter to the Ministry of Attorney General advocating on an urgent basis to add Indigenous identity as a ground of discrimination. The tribunal relied on Ms. Walkem’s explanation that discrimination based on race, colour, ancestry, and place of origin “do not adequately address the discrimination Indigenous peoples report experiencing” and that amending the Code would “send a message of inclusion and reflect the individual and collective nature of Indigenous human rights” 1 in keeping with UNDRIP. The letter had to be updated with an expanded list of Indigenous, legal, and human rights organizations supporting the amendment — who share in the tribunals commitment to transform human rights for Indigenous peoples in BC. This collective effort, originating and led by Indigenous peoples, in partnership with the tribunal is exactly how we decolonize our laws and institutions.
Further recommendations were made to create a committee comprised of tribunal staff, Indigenous lawyers and cultural leaders or academics armed with knowledge of human rights to develop the Expanding our Vision Implementation Plan. Checkpoints at specified intervals were suggested to keep the tribunal on track with the plan and in June 2020, the tribunal released the Report on Implementation of Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights. This report indicates that the tribunal has made significant gains against its implementation plan by creating a diverse and representative Expanding Our Vision Implementation Committee, appointing two Indigenous members for 6-month terms, and taking further significant steps to attract Indigenous candidates for a Tribunal Member position. The tribunal revised its forms to use plain language and
1
The Report, p. 7
Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.
DECEMBER 2020 / BARTALK 11
feature MAYA STANO
A Changing Tide Protecting our common heritage to Earth’s oceans in the climate change era
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arth’s vast oceans cover over 70% of its surface, and play a key role in regulating our planet’s climate. However, the bulk of our oceans are deemed “high seas,” and lack a comprehensive approach to protecting our common interest therein. A new Global Ocean Treaty may soon begin to address this gap in international law. International custom over the oceans began with the Freedom of the Seas doctrine, which emerged in the early 17th century when Dutch navigation rights were asserted in Portuguese territorial waters. The resulting doctrine limited national rights to a narrow sea-belt surrounding a nation’s coastline (“imperium terrae finiri ubi finitur armorum potestas,” meaning the dominion of land ends where the power of arms ends, which translated to the limit of a cannon shot); the remainder of the oceans were deemed free for all. This principle — based on an assumption of inexhaustible abundance — enabled the ocean’s resources to be exploited as common property. However, problems emerged after the Second World War as demand for ocean resources amplified. A change in the tide occurred in 1967, when UN members were urged to come to an agreement on fair and responsible use of the world’s oceans. Some 15 years later, agreement was reached on the UN Convention on the Law of the Sea (“LOSC”), which set limits on how much ocean a nation could claim as its own, and confirmed that high seas 12 BARTALK / DECEMBER 2020
(covering the ocean beyond Exclusive Economic Zones) remained outside any national jurisdiction (i.e., are “the common heritage of all mankind”). Within the high seas, states retained the right to conduct activities for peaceful purposes. Natural resources in the high seas remained a complicated matter. While LOSC permits all States to exploit marine life, it also encourages cooperation to conserve resources and ensure their sustainability. However, lack of enforcement of international law at the high seas, along with the inability of LOSC to adequately deal with current challenges (such as overfishing, plastics pollution, and climate change), highlights the failings of LOSC for current times. Climate change, in particular, challenges effective implementation of LOSC. Healthy oceans play a critical role in regulating global climate by shielding earth from solar radiation, producing oxygen, storing heat, and absorbing anthropogenic CO2. The absorption of that excess carbon, however, acidifies our oceans by lowering the water’s pH, thereby killing marine habitat and harming marine life. Fishing has exacerbated the impacts; nearly 90% of the world’s marine fish stocks are now fully exploited, over-exploited, or depleted. Climate change will further impact these populations, on which some three billion people depend on for their immediate nutrition.
What can be done to protect our common interest in our oceans? LOSC was negotiated before climate change had global attention. Concurrently, the United Nations Framework Convention on Climate Change, which came into force in 1994 (the same year as LOSC did), largely focuses on landbased mitigation and adaptation. The 2015 Paris Agreement offers little more, as it mentions the ocean only once, in its preamble. Targeted initiatives are however underway. In 2015, the UN General Assembly adopted a resolution to develop a legally binding agreement for conservation of marine life beyond national waters. The corresponding Global Ocean Treaty could require environmental impact assessments, management and conservation capacity building, international sharing of benefits from marine genetic resources, and use of area-based management tools, including marine protected areas. Scientists have urged that a target of protection of 30% of the world’s oceans by 2030 is crucial to increase resilience and help mitigate the impacts of climate change. This therefore represents an historic opportunity to advance governance over marine conservation and sustainable use of marine resources, and thereby protect our common ownership interests and corresponding duties of care owed to our valuable oceans. Editorial note: For those unfamiliar with maritime law, the word “mankind” is a term of art in the law. Perhaps as the laws are modernized, that too will change. Maya Stano is a Gowling WLG associate lawyer who practises natural resource, environmental and Indigenous law.
feature ANNA JOHNSTON
The Need for a Canadian Climate Test
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or years, the question of whether a particular project’s greenhouse gas (“GHG”) emissions are at odds with Canada’s climate promises has plagued climate activists, project proponents, and decision-makers alike. Under the Paris Agreement, Canada has promised to reduce its emissions by 30% below 2005 levels by 2030. The government has also committed to achieving net zero emissions by no later than 2050. However, Canada has missed every GHG reduction target it has ever set, and it is unclear whether or how it will meet its 2030 goal. As of 2018 (the latest year for which data is available), Canada’s emissions were 729 megatonnes of carbon dioxide equivalent (“Mt CO2 eq”), 218 Mt CO2 eq above the 2030 target. And last November, the United Nations Environment Programme found that Canada was set to miss the target by 15%. Meanwhile, high-emitting projects continue to be put forward. In BC, the proposed expansion of the Kitimat Liquefied Natural Gas (“LNG”) plant would emit an additional four Mt CO2 eq per year, and larger LNG projects have already been approved. In Alberta, Suncor is proposing to expand its tar sands operation Base Mine, which would add another three Mt CO2 eq into the atmosphere annually. How can decision-makers determine whether any given amount of GHG emissions will thwart Canada’s ability to meet its reductions targets?
In 2019, the federal government enacted the Impact Assessment Act, SC 2019, c 28, s 1 (the “IAA”), which, among other things, requires impact assessments to consider the extent to which designated projects will help or hinder Canada’s ability to meet its climate commitments. While federal assessments considered projects’ climate impacts under previous legislation, for the first time, the IAA requires projects’ emissions to be considered in the context of Canada’s emissions reductions targets. However, comparing individual projects against national targets will remain a challenge. How should assessments consider regional fairness? For example, how many big emitters can be approved in Alberta without leaving other provinces’ economies on the hook for a disproportionate amount of reductions? Similarly, is it reasonable to approve major petroleum projects if it means sectors like buildings, transportation, and agriculture will be forced to shave greater emissions from their operations? And what about projects with lifespans beyond 2030, or even 2050? How do we account for four Mt CO2 eq that will be emitted in 2050 when we must be at net zero? Federal guidance states that if federal emissions targets are set, assessments will consider the project within the context of those targets.
The Liberal government has committed to introducing net zero legislation that could go a long way to providing the kind of framework needed to ensure that projects align with Canada doing its fair share to avoid a climate catastrophe. For example, if that legislation requires the federal government to set five-year carbon budgets (the total GHGs Canada can emit within a five-year period) for different regions and sectors, those budgets would provide much-needed clarity to authorities when determining whether projects align with long-term GHG reductions goals. Of course, federal climate targets must respect the constitutional division of powers. The Supreme Court of Canada’s decision on the Greenhouse Gas Pollution Pricing Act is expected early next year. Depending on how the Court defines the scope of federal jurisdiction over climate, that decision could be a helpful guide in framing federal authority over setting climate targets and pathways for meeting them. Otherwise, the federal government may need to boldly assert authority to set and meet regional and sectoral carbon caps. Given the intensity of the climate crisis and need for urgent action, the time is now for project-level decisionmaking to clearly align with our climate commitments and obligations.
Anna Johnston is a staff lawyer at West Coast Environmental Law Association and co-chair, Environmental Planning and Assessment Caucus of the Canadian Environmental Network. @WCELaw | @inlawandequity DECEMBER 2020 / BARTALK 13
feature SEAN JONES
Protecting Biodiversity Requires Paradigm Shift in Forestry
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rotecting the biodiversity of British Columbia’s forests, and managing those forests through impending climate change, will require more than ad hoc measures, such as cordoning off protected areas from harvesting. Protecting biodiversity requires a paradigm shift in the legislation governing forestry. The BC forestry regime, like most extractive sectors, is a product of mid-twentieth century objectives — extract as much of our natural resources as fast as we can for the best price we can get. But, the wealth and economic expansion created by that thinking was costly not just to biodiversity and ecological values, but also Indigenous territories. A recent report to the government of British Columbia, A New Future for Old Forests, documented how this outmoded trade-off continues to put biodiversity at risk. It explained how BC still views biodiversity conservation as a constraint on harvesting and limits such conservation measures to ensure they have only approximately 4% impact on total harvesting. This bias toward harvesting timber at the expense of preserving ecosystems is hardwired into BC’s forests practices and pricing to prevent forest managers from changing their harvesting systems to better protect natural processes even when they want to. The result is a forestry economy dependent on harvesting from old growth forests with the attendant risk to biodiversity — the biodiversity 14 BARTALK / DECEMBER 2020
of almost all of BC’s most productive forests are, or soon will be, at extremely high risk. Fortunately, the solutions are in sight and opportunities to implement them should be high on BC’s legislative agenda. The process of reviewing, and then amending, the Forest and Range Practices Act is underway. BC must ensure the amended legislation
recognizes that ecosystems are not renewable, and that protection of ecosystem health is a priority. This includes recognizing the value of ecosystems as natural infrastructure and the role they play in sustaining healthy communities and economic sectors such as tourism. But this paradigm shift in values, also requires a paradigm shift in who is managing those values. A New Future for Old Forests identified government-to-government agreements between BC and First Nations as the number one condition for change, noting that such agreements had widespread support across all sectors. Where those government-togovernment agreements exist, there
is a higher standard of care for the land base, greater innovation in forestry practices and increased monitoring and oversight — a particular failing of the current regime. BC is taking some small steps in this direction with modernized land use planning and other pilot projects with First Nations. But, those land use plans and forest stewardship plans will sit inside the legislative regime. To be effective, legislative change is needed to enable the shared governance required. BC’s Declaration on the Rights of Indigenous Peoples Act (“Act”) empowers ministers to enter into the
government-to-government agreements necessary to shift forestry management and governance to the shared decision-making model required. The Act also requires BC to take all measures necessary to ensure that its laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). When BC is amending the Forest and Range Practices Act, its legislative commitments to UNDRIP must be given effect. Not doing so, will mean more than a lost opportunity, it will mean lost ecosystems. Sean is a partner at MLT Aikins, practising in environmental, regulatory and Indigenous law. He has worked in every natural resource sector in BC.
advocacy CBABC ADVOCACY UPDATE OUT WITH THE OLD, IN WITH THE NEW... We are nearing the end of 2020, and what a year it has been! The one silver lining has been the movement within the justice system to embrace new technologies and process that allow legal services and court matters to resume during the pandemic. CBABC continues to advocate for initiatives to ensure that legal services are accessible during these challenging times. In this issue, the Advocacy Update announces some changes and highlights the advocacy plans of SOGIC, the Sexual Orientation & Gender Identity Community in CBABC. As described in the Executive Director’s column, CBABC will launch An Agenda for Justice 2021 in January based on member submissions. Before the end of the year, members will find new CBABC web pages with curated Legislative Updates, Calls for Consultation, and CBABC Submissions. It is now easier to learn about issues of interest to you, engage with your colleagues to develop CBABC positions, and read our Submissions. As always, send your feedback to feedback@cbabc.org. SOGIC exists to address the needs and concerns of lesbian, gay, bisexual, transgender, queer, two-spirited, non-binary, intersex, asexual, polyamorous, and other sexual or gender minority people within the CBA. This year, SOGIC
\ EMAIL: ADVOCACY@CBABC.ORG focusses its advocacy around three core themes: 1. Calling for designated legal aid measures for the lesbian, gay, bisexual, trans, queer, two-spirit, intersex, asexual, non-binary, polyamorous, and other sexual minorities community; 2. Understanding more about the interaction of people in this community with the legal profession and the justice system; and 3. Greater inclusion of individuals from this community within the legal profession. First, SOGIC built on SOGIC’s past submission to the Review of Legal Aid Services by preparing a submission included in An Agenda for Justice 2021. It calls for funding to establish a legal aid clinic for this community, provide SOGIC competency training to existing legal aid service providers and administrators, and additional resources for legal aid providers who support, serve, and represent the community. SOGIC made a second recommendation for An Agenda for Justice 2021 calling for a more thorough collection of disaggregated data on variables such as race, ethnicity, disability, sexual orientation, gender identity, and gender expression. This information will increase understanding about how this community and other disadvantaged communities interact within the legal community and the wider justice system. This seeks to amplify the recent report of BC’s Office of the Human Rights Commissioner calling for legislative reform to better collect this data and immediate steps to begin collecting such data in key priority areas.
Finally, SOGIC is undertaking several advocacy initiatives aiming to improve inclusion for its members within the legal profession. These include ongoing consultation with the Law Society of BC for improvements to the Professional Legal Training Programs. SOGIC is also liaising with the Vancouver Bar Association to add gender neutral spaces to the Vancouver Courthouse Barrister’s Lounge and is advocating for gender neutral and accessible washrooms in BC courthouses generally. SOGIC sees the recent provincial election and the reconvening of the Legislature as an excellent opportunity for reinvigorated advocacy on a wide range of policy issues affecting the lesbian, gay, bisexual, trans, queer, twospirit, intersex, asexual, nonbinary, polyamorous, and other sexual minorities community, and always welcomes input and collaboration from its members and allies, and wider community stakeholders on all of its advocacy initiatives. Send your comments to feedback@cbabc.org. As CBABC members look forward to 2021, we must remember that it is those who adapt to a situation who will thrive and even flourish. And with that in mind, Access to Justice Week January 24-30 will highlight lawyers who are using non-traditional programs, business models and resources to better serve our communities. These innovators (and disrupters) are part of a new breed of legal professionals who use a more client-focused approach in delivering legal services to their clients. Watch News + Jobs for details!
DECEMBER 2020 / BARTALK 15
sectionupdate Sections Addressing Climate Change A range of Sections have hosted meetings which touch upon climate change, and in particular, legislative changes in provincial and federal environmental laws. They have also held meetings to discuss the protection of the environment via legislation, as well as the role Indigenous peoples play in the development of projects that could impact the environment.
quasi-judicial regulatory agency which hears appeals from certain decisions under statutes such as the Greenhouse Gas Reduction (Renewable and Low Carbon Fuels Requirement) Act, and the Water Sustainability Act, among others.
In addition, they hosted Robert Wickett, QC, Vice-Chair of the Environmental Appeal Board (“EAB”), to discuss his insights on practice and procedures before the EAB, an independent, 16 BARTALK / DECEMBER 2020
In the following fiscal year, Gareth Morley returned to speak on more recent references, alongside Joseph Arvay, QC, counsel for the plaintiffs in La Rose et al. v. Canada. During this meeting, the speakers discussed La Rose, a lawsuit brought by Canadian youth and dismissed by a Federal Court judge, which alleged that Canada contributes to emitting greenhouse gases that are incompatible with a stable climate.
uuu Natural Resources Law and Aboriginal Law — Vancouver Island
uuu Environmental Law The Environmental Law Section hosted a variety of meetings related to laws concerning the protection of the environment. Earlier this year, the Section executives reviewed significant environmental law decisions and developments from 2019, including the cost recovery procedures of the Environmental Management Act in relation to remediating contaminated sites. They have also more recently reviewed changes to provincial and federal environmental laws in August, where they discussed new and amended laws relating to climate change, including the Canadian Energy Regulator Act.
Gareth touched upon the need to choose between federalism and confronting climate change, mentioning references in the Saskatchewan and Ontario courts upholding federal legislation.
uuu Constitutional Law/ Civil Liberties
The Constitutional Law/Civil Liberties Section offered two similar meetings in both the 2019-20 and 2020-21 fiscal years concerning federalism and climate change. In 2019, the Section hosted Gareth Morley, legal counsel for the BC Ministry of Justice, who was involved in the constitutional challenge held by provinces against Canada’s Greenhouse Gas Pollution Pricing Act. In this meeting, held in-person in both Victoria and Vancouver,
The Natural Resources Law Section hosted Sandy Carpenter, Co-Founder of Canadian Regulator and Indigenous Law, to discuss reconciliation and the honour of the Crown in regulatory decisionmaking. They referenced cases such as Redmond v. British Columbia (Forests, Lands, Natural Resource Operations and Rural Development), 2020, and Fort McKay First Nation v Prosper Petroleum Ltd, 2020, both of which are concerned with the interests of Aboriginal peoples and their objections to development projects to take place on their territories. In November 2019, the Aboriginal Law — Vancouver Island Section hosted a social, which featured Mark Gustafson of JFK Law to provide an overview of environmental regulatory law updates.
professionaldevelopment \ EMAIL: PD@CBABC.ORG
WEBSITE: CBAPD.ORG \
PROFESSIONAL DEVELOPMENT FOR A NEW SOCIAL CLIMATE As the legal profession in British Columbia adapts to a new social climate as a result of the COVID-19 pandemic, new ways to conduct a legal practice, and collective movements around equity, diversity, and inclusion, CBABC continues to develop relevant and timely professional development. COVID-19 PD Programming has focused on delivering current and relevant information to support lawyers and their practice. The CBABC COVID-19 Resource Hub continues to be updated with Branch news and advocacy efforts; updates from provincial and federal courts, LSBC and others; expert advice to support your business; resources on wellness and practice management; and relevant PD programming from across the CBA. The legal community continues to adapt to practising law virtually. PD programming to support this shift has included: Effective
Document Management in Digital Hearings (On-Demand Recording) Tribunals and their Work since COVID-19 (On-Demand Recording) Using Technology to Enhance your Practice Prince George Connects: Virtual Updates and Practice Management Civility and the Legal Profession during COVID-19 (On-Demand Recording) BC
Equity, diversity, and inclusion have been societal hot button topics in 2020. CBABC has provided opportunities for lawyers to strengthen their awareness and develop cultural competency by taking specific actions to address the Calls to Action, identifying and applying tools to disrupt systemic racism in the workplace; and developing an understanding of key personal, social, and legal issues within the LGBTQ2SI+ community. Utilizing
the Reconciliation and Response Plan in Your Firm (On-Demand Recording)
Understanding
Systemic Racism in the Workplace — Shifting from Perpetuating to Disrupting
LGBTQ2SI+
Law Webinar Series — Part 1: An Introduction to Trans-Competent Lawyering
LGBTQ2SI+
Law Webinar Series — Part 2: A Focus on Key Trans Legal Issues
PROFESSIONAL DEVELOPMENT ON THE HORIZON — WINTER 2020-2021 This winter’s professional development focuses on the legal community’s need to adapt to a changing world by being better prepared on a personal and professionally level. Upcoming PD programming includes: Victoria
and Surrey Provincial Court Early Resolution Process Lawyers with Disabilities and Accessibility Issues Business Law and Working with Indigenous Clients Young Lawyer Series — Enhancing Your Professionalism LGBTQ2SI+ Law Webinar Series Part 3: A Focus on Substantive Queer Issues Supporting
Adverse
Childhood Experiences and the Family Justice System
uuu We welcome your thoughts and suggestions. Email pd@cbabc.org.
DECEMBER 2020 / BARTALK 17
feature LISA PICOTTE-LI
Tragedy of the Climate Crisis Other ways to take action toward climate solutions
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emember first year property law and the tragedy of the commons? There may have even been images of cows, with one field showing the lush green sustainability of shared resources and others showing individual cows grazing according to their own self-interests and, collectively, turning the field into a depleted resource. The lesson then centered around conflicts between private and public interests, impacts of regulation, and, when there was more progressive discussion, the responsibilities of the global commons and the rights of Indigenous peoples. The tragedy of the commons usually goes something like this. In a situation where there is a common pasture, unowned and available to all, it is in the self-interest of each animal herder to maximize the use of the commons, even to the detriment of the community. Animal herders will add animals to the pasture to maximize their own profits, even when the commons can no longer sustain them. Because the tragedy of the commons is seen to be inevitable, it is recognized that one of the roles of government is to manage shared resources. Regulators exist because private and public interests do not always align. But regulators are bound by authority and jurisdiction, so that actions are accountable to a defined mandate. These boundaries promote balance, so government interference does not overreach into private markets, but they also impose limitations. These limits become apparent when the tragedy of the commons is the planet and the solutions for climate change require inter-jurisdictional collaboration. 18 BARTALK / DECEMBER 2020
The consequences of the climate crisis range from devastating to existential risk. We have experienced more frequent and intense fires, floods, heatwaves, and storms. The current trajectory will continue to create an environment of costly emergencies. At worst, the environment will become uninhabitable for human beings. Despite priorities focused on the well-being of the planet, the reality is that the Earth will survive this — but we may not. So here is the call to action. Changing the course of the current climate trajectory will not be shifted by the interests of a few, the interventions of the powerful, or even altruism for the community. All of these must work together and optimize self-interest to serve a larger purpose. Below are three alternative areas for driving change toward better climate outcomes. 1. THE CLIMATE CRISIS IS A HUMAN RIGHTS ISSUE Extreme weather events affect marginalized groups more severely, particularly where there are wealth disparities, socioeconomic differences, and the racialization and genderization of inequalities. Vulnerable populations are disproportionately impacted by climate changes as they are, for example, more likely to be situated in areas of toxic air, are less able to protect themselves from extreme weather events, and experience more risks related to basic rights like sanitation and housing. Positive climate action can be undertaken through a lens focused on human rights.
2. THE CLIMATE CRISIS IS A SAFETY ISSUE Workers are the first to experience the effects of climate impacts, including disease and injury. Construction and transportation workers, emergency responders, commercial fisheries, and agricultural workers, among others, are exposed to more severe conditions than the general public. These hazards can be characterized as occupational risks to influence health and safety preparation and amplify the delivery of healthier work environments, reduce energy consumption, and drive toward better climate outcomes. 3. THE CLIMATE CRISIS IS A SECURITY ISSUE The scale of climate change threatens processes, systems, and equipment that were not designed for extreme heat, disruptive weather patterns, or rising sea levels. There is health and food security; security of the environment; access to land, water, and resources; and security of economic, social, and political systems. These “commons� require cross-functional solutions that involve all segments of society. The way that the climate crisis is framed dictates strategies for creating solutions. The tragedy of the commons can still be averted, but it requires considerations beyond selfinterest and communal property, and a shift toward fundamental changes in governance, ethics, and creative approaches for greater responsibility.
Lisa Picotte-Li is the director of operations at a provincial safety regulator and adjudicates correction and discipline of federal inmates. The views are those of the author.
updates CONNECTING WOMEN LAWYERS BC WLF UPDATE — by Kyla Lee
CBA NATIONAL MAGAZINE
Competitive Barriers
Spotlight: Jessica Clogg
HOW REFOCUSING ON SUSTAINABILITY REQUIREMENTS COULD RESHAPE COMPETITION LAW.
Jessica Clogg is the Executive Director and Senior Counsel at West Coast Environmental Law. She has had a passion for environmental law after being inspired from an incident in her childhood. While growing up in a town dependent on logging, the clearcutting in her area of town caused flooding that washed houses away. Clogg then sought to understand why and how that happens.
Back in 2013, a group of electricity producers in the Netherlands proposed the closure of five old coal-fired power plants as part of the transition to a more environmentally sustainable energy industry. The producers applied to the Dutch Authority for Consumers and Markets (“ACM”) for permission to go ahead.
When Clogg started out in environmental law, she was one of only a few women lawyers in the field. She has a vivid memory of showing up to a lengthy negotiation regarding forest certification standards, and being the only woman present. When she joined West Coast Environmental Law in 2012, she was the only woman in an Executive Director position among the national environmental agencies. Since then, Clogg has noticed a shift, with many more women lawyers currently practising environmental law. Right now, Clogg is leading a program called “Climate Law in Our Hands.” The program is about demanding accountability from polluters for climate harm, which may eventually lead to a class action lawsuit brought by local communities affected by pollution. She is currently engaging at the community level to be in dialogue with citizens about the harm they experience from pollution and the impact of climate change. Her aim is to build dialogue from the ground up to support and sustain the interest of others to hold fossil fuel polluters accountable.
CLEBC Update CLEBC WELCOMES THREE NEW BOARD MEMBERS CLEBC is delighted to welcome three new CLEBC Board Directors this year, Laurel M. Courtenay, Melanie J. Mortensen, and Brent Olthuis. Laurel has practised as a barrister and solicitor in the field of administrative law for 25 years. She is currently legal counsel in the Legal
The agency, which acts as the Netherlands competition authority, studied the proposal, which would have shut down 10% of generation capacity in the country, and turned it down. The ACM determined that the closures would indeed reduce environmental damage. But because the associated carbon-dioxide emission rights weren’t going to be cancelled, the benefits weren’t sufficient to offset the expected jump in consumer utility rates.
Read the full article
Services Branch (“LSB”) of the Ministry of Attorney General where she practises employment law and teaches administrative law fundamentals to statutory decision-makers.
representing Vancouver County. Brent has a broad practice in the areas of civil, commercial, administrative, and constitutional law with the firm Hunter Litigation Chambers in Vancouver.
Melanie is the Law Society of BC (“LSBC”)/CBA appointee representing Victoria County. She is the Legislative Counsel & Designated Deputy Chief Legislative Counsel for Members’ Drafting in the Office of Legislative Counsel with the Ministry of Attorney General.
CLEBC thank Laurel, Melanie, and Brent for their interest in supporting CLEBC and look forward to benefiting from their experience and new perspectives. You can read more about CLEBC’s Board of Directors here.
Brent is the LSBC/CBA appointee
DECEMBER 2020 / BARTALK 19
nothingofficial TONY WILSON, QC
Only Nixon Could Go to China
It’s time for BC to tax all services to help pay for the pandemic
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t still drives me bonkers that lawyers’ bills in BC are subject to 7% Provincial Sales Tax (on top of 5% GST), yet the accounts of most other service providers in BC are not; particularly accountants, consultants, and realtors. We all know the old trope sold to the legal profession in the 90s by the NDP government of the day. The PST on legal services would be used to fund Legal Aid. But the billions of dollars in revenue generated by the PST on legal services for the past three decades has always gone into the sinkhole of general revenue. It’s never been specifically dedicated to fund Legal Aid. A recent Vancouver Sun article calculated that the BC government collected nearly three times more in PST on legal bills than it directly paid to fund legal aid. Decades of long battles by the Law Society, the CBABC and other organizations to eliminate the PST on legal services have been fruitless (and not for lack of trying). Unfortunately, I can’t see PST on legal services ever being repealed. That ship has sailed. This isn’t going to make me particularly popular among realtors, accountants, or the magical thinkers in BC Liberals (who strangely campaigned on the elimination of the PST for a year), but the PST should be expanded to include most, if not all services. Or better yet, we should reinstate the HST under a different acronym (like, say “BCVAT”). Gordon Campbell tried a decade ago. But in one of the biggest public policy blunders in Canadian political 20 BARTALK / DECEMBER 2020
history (by one of BC’s best Premiers), the HST was poorly sold, poorly planned, poorly implemented and the government of the day failed to anticipate a campaign of disinformation and fake news about the tax; much of it propagated by former Premier Bill Vander Zalm (who had a political axe to grind with the Campbell Liberals). Because the government picked the wrong statute under which to hold the referendum, and a question that might have well said “watch us shoot ourselves in the foot,” the government played to lose. Campaigning was left to those in favour of the tax and those against it. And who is ever in favour of a tax, anyway? The HST was defeated by some 76,000 votes, which I recall, was the population of Nanaimo at the time. If you know a compound word that begins with “cluster” and ends with a word that rhymes with “truck,” that would describe our dance with the HST a decade ago. I’ve always been a believer in taxing consumption rather than income or wealth. So now that there’s a majority government in Victoria, it’s time to rethink a sales tax on all services, in part, because it’s unfair for lawyers to charge 7% PST but not accountants or realtors. And it’s also timely because the government needs the money to deal with COVID-19, the opioid epidemic, and our cash strapped municipalities (taking the burden off property taxes).
If there’s been PST on legal services for 30 years, then why on earth shouldn’t PST be expanded to include the bills of accountants and commissions paid to realtors? The problem is, under PST, nobody gets the Input Tax Credits to offset PST. But they would under HST. So bring it back. Had Campbell mandated a lower PST component for the BC HST so that it totalled 10% or less for a few years, removed the application of the HST from kids clothing, bicycles, and other politically correct goods and services, and entered a revenue sharing deal to help fund municipalities based on a percentage of the HST raised within their borders, Campbell might have avoided both his resignation and the referendum. Perhaps the new provincial government in Victoria can learn from those mistakes. There’s an old Vulcan proverb that “Only Nixon could go to China.” Maybe the same is true for the BC NDP. If it’s anything like how well they’ve handled the pandemic (they get full marks from me), perhaps they’ll get the HST right this time.
Tony Wilson, QC is a franchise lawyer at Boughton in Vancouver and is now a Life Bencher of the Law Society, so don’t phone him anymore to complain because it won’t help. The views expressed herein do not reflect the opinions of the CBABC, or their respective members.
announcement LAW FOUNDATION OF BRITISH COLUMBIA
INVESTING IN LEGAL SERVICES FOR WOMEN
HOW A CLINIC FOR WOMEN EMERGED TO FILL GAPS IN FAMILY LAW SERVICES It is well-recognized that the high cost and complexity of the family justice system means that it is effectively impossible for many people to access their legal rights. Former Chief Justice Beverley McLachlin has referred to this plainly as an access to justice crisis, and that many women, in particular, who need legal support in the family justice system simply can’t afford it. In 2014, a report from West Coast LEAF, jointly funded by the Law Foundation and Status of Women Canada, found that gaps in access to family law had a disproportionate impact on women and gender equality. That report recommended the establishment of a women’s family law clinic — a “one-stop shop” for women with family law problems. In 2016, the Rise Women’s Legal Centre (“Rise”) was established by West Coast LEAF and the Peter A. Allard School of Law at the University of British Columbia. Rise serves all individuals who self-identify as women, and provides legal services related to family law and immigration. Rise began with a two-fold mission: to address the gap in legal services and to help train law students in family law. Staff at Rise operate with an understanding of the particular challenges that women face in family matters and in the justice system. Kim Hawkins, who has been executive director and legal counsel at Rise since the beginning, said the clinic was “swamped” the second the doors opened in May 2016. Over the next two years they served more than 600 women. “There was really no going back, because the need for service was so high.”
Kim Hawkins
With support from the Law Foundation starting in 2018, Rise was able to create a family law case manager position, a family advocate support line, and a virtual legal clinic, which serves women in BC outside the Lower Mainland.
But another goal of Rise was to help address the low numbers of law students choosing to pursue family law, which was known as an emotionally challenging practice area with lower salaries. “There wasn’t a lot happening in the field that would get students excited about working in family law,” said Veenu Saini, program director at the Law Foundation of BC. Rise adopted an “incubator” model: law students who have completed their externship at Rise may also complete their articles at Rise and are mentored by Rise’s staff lawyers, in order to gain experience and eventually build their own family law practices — an initiative that has already led to two former students branching off on their own to create a family law practice serving marginalized women. Hawkins said that the frontline experience students receive, combined with deeper training on the systemic issues of access to justice for women, has helped to keep students excited about approaching the unique challenges of family law. “We’ve grown away from being just a student clinic in many ways,” she said. “It really has expanded out from that, and we’ve been able to participate in systemic conversations about women and family law that are going on.” If you would like to learn more about innovative projects supported by Law Foundation funding, you can see them in the recently released Annual Report.
DECEMBER 2020 / BARTALK 21
feature JESSICA WILSON AND KARISSA KELLN
Microplastics and Climate Change Regulatory response to the current science
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n October 2020, Environment and Climate Change Canada (“ECCC”) published its findings on the current state of science regarding plastic pollution in the report, “Science Assessment of Plastic Pollution.” The report provides that plastic pollution, including microplastics (defined in the report as plastics less than five millimeters in size), is pervasive and may be contributing to climate change. This article discusses the Canadian government’s proposed regulatory response to these findings. Studies indicate that plastics emit greenhouse gases when exposed to solar radiation and suggest that, one of the most common plastics found in the ocean today, low density polyethylene, releases greenhouse gases as it breaks down. Research suggests microplastics pollution may also be impacting how effectively greenhouse gases are sequestered in the ocean. Historically, the oceans have absorbed between 20% and 40% of CO2 emissions from humanrelated activities. Microscopic plants (microalgae) and animals (zooplankton) capture carbon at the oceans’ surface and transport it deep into the oceans where it can be stored. However, recent research suggests that microalgae and zooplankton are being impacted by microplastics pollution. Studies show that microalgae are being contaminated with microplastics pollution, which is reducing these plants’ ability to trap carbon through photosynthesis. These same studies suggest that microplastics pollution can reduce the reproductive success, metabolic 22 BARTALK / DECEMBER 2020
rates, and longevity of zooplankton. Accordingly, these studies suggest that microplastics pollution may be interfering with this natural carbon sequestration system in the ocean. Global action is underway to address microplastics pollution, and Canada has been involved in these multilateral governmental efforts. Under Canada’s G7 presidency in 2018, the Canadian government helped develop the Ocean Plastics Charter with a goal to improve management of plastics, including: a) working with industry toward 100% reusable, recyclable, or recoverable plastics by 2030; and b) addressing sources of microplastics. On October 7, 2020, ECCC released the next steps in its plan to move Canada to zero plastic waste by 2030. The first step is a proposed Order published October 10, 2020, which adds “plastic manufactured items” to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (“CEPA”). The definition of “plastic manufactured items” is still undetermined, but the addition of this category of products to CEPA will likely allow the Canadian government considerable discretion to label plastic substances as toxic. Another step is a proposed ban on plastic grocery bags, stir sticks, sixpack rings, cutlery, straws, and food service ware by the end of 2021, imposed under the regulation-making powers of CEPA.
Alongside the proposed Order, ECCC published a discussion paper on the “proposed integrated management approach to plastic products to prevent waste and pollution,” which suggests a more cyclical economy system to reduce plastic pollution by eliminating some sources, incentivizing recovery and repurposing, and ensuring endof-life responsibility from manufacturers. The paper also suggests establishing performance standards for things such as recycled content and posits that such a transition to a more circular economy for plastics would save costs, increase competitiveness, stimulate innovation, create new jobs, and reduce the amount of plastic entering
the environment. The paper indicates that the integrated management approach would involve regulatory and non-regulatory actions to achieve the management objective. Do you have comments on the Canadian government’s approach to plastic regulation? Submissions on the proposed Order and the discussion paper are being accepted by ECCC until December 9, 2020. Write to ec.plastiques-plastics.ec@canada.ca.
Note: Sources used in the preparation of this article are available upon request from the authors. Jessica Wilson and Karissa Kelln are Business Law lawyers with Harper Grey, LLP in Vancouver.
feature DUSTIN KLAUDT
Canadian and Foreign Climate Litigation Survey
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anadian courts are hearing climate litigation across various legal areas. Foreign courts have already confronted several similar cases. Canada’s courts (like its governments) have been relative laggards on climate positive decisions. This lukewarm record is likely to change, as climate change’s negative impacts intensify. Further future litigation will respond to try to accelerate government climate mitigation and adaptation efforts. Recently, foreign courts have compelled government climate action and many more plaintiffs continue to seek greater government and corporate climate accountability. The Dutch Supreme Court held that national greenhouse gas (“GHG”) reduction target, and results toward achieving that target, were insufficient to meet both international obligations and the scientifically backed reduction levels (Canada’s current 2030 target similarly fails to meet these levels). That failure violated constitutionally protected rights to life and private and family life under European law (Canada’s Charter section 7 rights are similar). The Irish Supreme Court held that its national climate mitigation plan was insufficiently specific on short term climate goals to reach Ireland’s 2050 goals and quashed the plan. The Court of Appeal for England and Wales, rejected an environmental assessment approval of a third runway at Heathrow Airport, due to the failure to consider international obligations under the Paris Agreement of 2015 and the precautionary principle
required by other international treaties. Courts in Australia and South Africa have also rejected environmental approvals of new coal projects, where climate change was not adequately considered by decision-makers. Canadian climate litigation is equally diverse. The Supreme Court of Canada has reserved judgment on appeals of several carbon pricing references, on whether the federal legislation is onside of constitutional division of powers. Lower appellate courts have split on this question, with Saskatchewan’s and Ontario’s courts upholding the current legislation and Alberta’s reaching the opposite conclusion. A recent Ontario Superior Court decision also found legislation imposing mandatory stickers at gas pumps, negatively discussing carbon pricing, violates Charter expression rights. Other cases also seek to use Charter rights, with limited success so far. The Federal Court recently found that several youths’ claims, that Canada’s collective actions and inaction on climate change violate Charter sections 7 (life, liberty, and security of the person) and 15 (equality) rights, were nonjusticiable as the government conduct impugned and remedies sought were too broad and imprecise, thus encroaching on Canada’s general policymaking functions. These echo past Canadian climate litigation decisions finding that the federal government’s
failure to adhere with Kyoto Protocol compliance legislation and subsequent withdrawal from the Protocol were similarly non-justiciable. A recent Quebec Superior Court decision found a similar claim, which only challenged Canada’s insufficient national climate targets (like the Dutch approach), was justiciable, at least for the purposes of a class action certification. That Court, however, did not ultimately certify that action for procedural reasons. Another related Charter claim, which impugns the Ontario government’s reversal of its past more ambitious GHG reduction target, is reserved in Ontario, where a Court has previously rejected a challenge to the province’s cancellation of its cap-and-trade carbon mitigation scheme, based on breach of statute. A fourth Charter claim (brought by Indigenous persons) seeks the added relief of legislative modifications to allow the cancellation of high emitting energy projects. Like abroad, individuals have also sought (though unsuccessfully) to use climate arguments in challenges to individual projects, which have both failed to overturn regulatory approval of the controversial Trans Mountain pipeline or excuse protestors of that project from contempt charges. Undoubtedly, climate litigation is heating up globally and will continue to be a hot button issue also confronting Canadian courts as long as the climate crisis persists. I recommend several resources to keep track of the climate litigation temperature on an ongoing basis. Dustin is an associate with Robert Fleming Lawyers and is completing graduate studies on climate change litigation (LLM candidate, Osgoode Hall) and has previously published on this subject. DECEMBER 2020 / BARTALK 23
feature DAVID W. L. WU
What’s the Point of Climate Change Litigation?
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common line of argument for defendants in climate change litigation is that any Greenhouse Gas (“GHG”) emissions a particular defendant is responsible for is miniscule compared to the overall global output of GHG emissions. This “drop in the bucket” argument is often intertwined with issues regarding causation or redressability. For example, in one of the earliest climate change cases, a number of US States, cities, and organizations brought a lawsuit against the Environmental Protection Agency (“EPA”) for its failure to set emission standards of CO2 and other GHG emissions for new motor vehicles. The EPA argued that the amount of GHG emissions from new motor vehicles was so insignificant that it did not contribute meaningfully to the plaintiffs’ harms, and that any relief the Court might grant would not meaningfully mitigate climate change, pointing to other nations like India and China, which were increasing their emissions: Massachusetts v. EPA, 549 U.S. 497 (2007) at 523-524. Similar arguments continue to be made in climate change litigation worldwide and have been successful, see e.g. Juliana v. United States, 947 F. 3d 1159 (9th Cir., 2020). These arguments are now being made in Canadian climate change litigation as well, and indeed were accepted by the majority in the Alberta Court of Appeal in 24 BARTALK / DECEMBER 2020
Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 at para. 324. Most recently, similar arguments were made by Canada in a successful motion to strike a Charter challenge brought by youths in Federal Court, arguing there could be no meaningful remedy in the context of a justicability defence (La Rose v. Canada, 2020 FC 1008). There is undoubtedly some attraction to these arguments. Climate change is an international problem caused by cumulative emissions that everyone emits. It requires an international solution. One court cannot solve climate change. But that misses the point. The point is not to solve climate change with one case. As Justice Stevens stated in
In the context of climate change, every “drop in the bucket” makes a difference. Every reduction in emissions leaves more room in the global carbon budget and more time to mitigate and adapt. Massachusetts, this “argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked....
Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop... They instead whittle away at them over time...” (at 524). The same could be said for human rights litigation. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) did not end racial segregation overnight, nor did it resolve issues of racial discrimination that are still prevalent today. But these tentpole cases can serve as inspiration and hope for movements to achieve greater justice. They signal to society that things must change. In the context of climate change, every “drop in the bucket” makes a difference. Every reduction in emissions leaves more room in the global carbon budget and more time to mitigate and adapt. As the Supreme Court of the Netherlands stated, “no reduction is negligible”: Ugrenda v. The Netherlands, 19/00135 at para. 5.7.8. There simply is no other choice. If judges “throw up their hands,” as Justice Stanton dissenting in Juliana accuses the majority of doing, the judiciary would succumb to the fatalistic collective action problem that have paralyzed lawmakers globally for decades. Rather the judiciary must ensure that emitters of GHG emissions are responsible and accountable for their fair share of emissions. That is how we will overcome this collective action problem. David W. L. Wu, associate at Arvay Finlay LLP
feature MATT HULSE AND JULIA CROOME
A Heads Up on Climate Accountability in BC
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y March 31, 2021, the BC government is required — by law — to establish “greenhouse gas emissions (“GHG”) targets for individual sectors” of the BC economy. These “sectoral targets” form part of BC’s “climate accountability” framework — the governance structures and processes to help ensure we follow through on our climate commitments. So what does this mean for BC lawyers and our clients? The need for “climate accountability” arises from the failure of jurisdictions around the world, including Canada and BC, to meet the GHG targets they have set for themselves. Repeatedly — and to great fanfare — our politicians have set ambitious long-term GHG targets yet dodged the tough work of setting the near and medium-term policies required to achieve those targets. The United Kingdom was the first country to implement a climate accountability framework through the 2008 Climate Change Act. The Act sets a 2050 emissions target, requires 5-year carbon budgets, sets planning and reporting requirements, and establishes ministerial responsibilities and an independent advisory body. The Act has been instrumental in reducing the UK’s emissions and has served as a model for climate accountability legislation in jurisdictions around the world, including New Zealand, Germany, and Sweden. Canada is now getting in on the game, with legislation expected in late 2020 or early 2021. In BC, we have the Climate Change Accountability Act, SBC 2007, c 42.
This Act sets emissions reductions targets for 2030, 2040 and 2050 (40%, 60%, and 80% below 2007 levels), requires an “interim” target between now and 2030, requires sectoral targets, establishes an advisory committee (the Climate Solutions Council), and requires the Minister to make an annual report to the Legislature. This report includes emissions data, actions and expenditures to reduce emissions and manage climate change risks, expected outcomes of these actions, and plans to achieve the various targets. BC is the first North American jurisdiction to incorporate sectoral targets in its climate accountability framework, so the ongoing process to establish the targets is treading new ground. Sectors must be chosen with sufficient granularity to allow easy identification of heavy emitters and climate leaders (i.e. by not having a catch-all “industry” sector). The targets must be set realistically — based on available low-carbon technologies — but also fairly and ambitiously, to ensure that all sectors pull their weight in helping achieve our climate goals on time. Effective targets are important to hold sectors (and responsible ministries) to account for their emissions. They will guide the development of targeted climate policies, and will create certainty for businesses and industry to plan current and future operations, over multiple timelines. For example, we can see targets being referred to by a variety of stakeholders in environmental assessments.
Public consultation to-date on the development of sectoral targets has been limited and the March 31 deadline is fast approaching. Fortunately, the fun does not have to stop there. The Act implies that the Minister will set plans to continue progress toward the sectoral targets; ideally the Minister will establish multi-stakeholder roundtables for each sector to develop these plans. This would be an effective way for government to obtain buy-in and expertise of industry, academics, non-governmental organizations, and Indigenous organizations. The Minister must also review the targets before the end of 2025 and every five years after. Here, the targets can
be revised to reflect updates in available technologies and climate science. This is another opportunity for stakeholder roundtables to shape the future of their sector. Beyond a brief introduction to climate accountability, this article should flag that individual sectors of the BC economy will have emissions targets to guide their progress over the next decades. Lawyers should consider the opportunities and challenges that these targets may present to clients who operate in these sectors in order to achieve their objectives and secure a healthy climate for us all. Matt Hulse and Julia Croome are lawyers at Ecojustice. DECEMBER 2020 / BARTALK 25
guest MICHAEL BUTTERFIELD
Coming Back from Cancer
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ny life-changing illness is challenging for a lawyer’s practice. A serious diagnosis also has a huge psychological impact. A chronic illness, like diabetes, may be manageable and you will have time to adjust. An urgent care illness, like cancer that requires surgery and months of treatment, will have a far more immediate and debilitating effect. The impact of illness on your practice will depend a great deal on your business association. Larger practices often have the infrastructure to support a lawyer needing medical accommodation or going on extended medical leave. Solo practitioners do not have that safety net because they are the sole income generator for the practice. As a solo practitioner, I faced these challenges last January when I was diagnosed with colorectal cancer (“CRC”). My diagnosis was in midJanuary and my surgery was about four weeks later. 2019 had been a very successful year for my practice. I was transitioning to providing unbundled legal services and had an advertising campaign planed for January. This all came to an abrupt stop. There was a week between my colonoscopy and confirmation I need urgent surgery. During that week, nothing really changed. I was willfully blind and detached from the emotional impact of the diagnosis. That changed one morning as I was driving home from court. I started thinking about the “what ifs.” I thought about my wife, Jayne. I was still rational at 26 BARTALK / DECEMBER 2020
this point. We have lots of insurance. The investments are in good shape. It was when I started thinking about my son that the hammer dropped. He was 15. If I died now, I would miss him getting his driver’s license, graduating, going to university, getting married. I had to pull over. I started thinking about how I would leave him. The pain he would feel. I know that pain, as I lost my mother at age 9. Had I done a good enough job for him? Had I prepared him for the world? I was overwhelmed with grief, fear, and anger. It took me a couple of hours just sitting there on the side of the road facing my fears. What was immediately apparent was that I needed to transition my clients to competent counsel. In the back of my mind, I was worried about money. Jayne also works in the practice and Butterfield Law is our family’s sole source of income. I had disability insurance through CBIA / Lawyers Financial. This provided some income replacement and business operation expenses. I knew I would be off work for 6-12 months. I considered looking for a locum, but there was no time to bring someone new on board. I decided to suspend my practice and transfer all of my clients. In the milieu of confusion, it is very difficult to plan. I found out that, on average, CRC kills 26 Canadians per day. If I had my colonoscopy
earlier, I would have likely prevented the cancer, but no one ever really wants a colonoscopy. It’s embarrassing to talk about, but CRC is preventable, treatable and beatable. If you are over 50, or have a family history of colon cancer, talk to your doctor. Learn the symptoms and get tested. I underestimated how painful or long the recovery would be. I had broken bones before and had other injuries, but nothing prepared me for this pain. I was also paranoid of addiction and avoided medication. I underestimated the psychological strain of my illness. A lawyer’s strength is the flexibility of their reason, but you cannot think your way out of cancer. If you face this, be scared, be angry, be selfish. Above all, be honest with yourself. Accept your limits. Reach out to colleagues and friends for help. There are specialized counsellors for you and your family. I returned to work part-time in September 2020. I will likely be parttime for a year. The surgery wrecked my body. There were complications which are now chronic. I will probably never run a trial again. As I solo practitioner, I have the flexibility to modify my practice. I am grateful to my wife, Jayne, my colleagues and my friends, who have supported me. Never make the mistake of thinking you are alone. Even if you are a solo practitioner, you are part of the greater community of lawyers. We are here to help.
Michael Butterfield has recently set up Colorectal Cancer BC on Facebook. The page is designed to build awareness and encourage testing for colorectal cancer.
guest ZAHRA JIMALE AND JENNIFER SMITH
Making a Case for Cultural Humility Being good ancestors
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or many of us, this year has been a per iod of intense vulnerability and deep reflection. The COVID-19 pandemic is having a significant impact on all aspects of life, including intensifying health, economic, racial, gender, and social inequities. Unsurprisingly, the pandemic has greater impacts on people already experiencing a number of intersecting inequities. Amidst the pandemic is a long overdue awakening to the realities of systemic racism. Although the pandemic seems unmanageable, the systemic racism that gives rise to and perpetuates inequities can be addressed so that the impacts of such crises are not exacerbated. We must find a way to be good ancestors, otherwise the devastating and deadly impacts of systemic racism and discrimination will continue perpetually and will be exacerbated during crises. Abolishing systemic racism and discrimination requires us to increase our individual and collective awareness of bias, including implicit bias, its effects, and how to address it. Each of us interprets everything we see and experience through a unique worldview shaped by many factors. These interpretations influence and shape how we perceive others, favourably or unfavourably, and result in conscious and unconscious (implicit) biases. We are often unaware of how implicit biases impact our understanding, views, decisions, and actions. This lack of awareness coupled with the pervasive
nature of implicit bias makes it a significant contributor to systemic racism and discrimination. However, biases can be unlearned through ongoing reflection, increased selfawareness, curiosity, and respectful dialogue. This, in essence, is the practice of cultural humility. We must move beyond more familiar concepts, such as cultural competence, and reject the idea that we can master or achieve competence in any culture other than our own. Cultural competence refers to a set of skills and attitudes for working effectively and respectfully with people of diverse backgrounds, assuming we can achieve fluency. The practice of cultural humility is a more nuanced and reflective approach to uncovering and addressing implicit biases. Cultural humility requires commitment to lifelong learning about self and others through genuine and respectful curiosity and dialogue, and willingness to abandon harmful views and assumptions. The practice of cultural humility calls on us to remain curious and self-aware, to avoid assumptions, keep biases in check, and make necessary changes. This practice requires us to closely examine our views, decisions, and actions, as well as our contributions to the systems that perpetuate inequities. Curiosity and respectful dialogue are
the cornerstones of cultural humility. Curiosity about one’s self is necessary to examine and challenge our beliefs. Curiosity also means learning about others with openness, including learning about the ongoing legacies of their historical and present-day realities. As we consider a practice of humility when engaging with one another, it behooves us to also consider a practice of humility when engaging with the natural world and the species with whom we share a home. This practice would require us to step back, slow down and realize that we are not competent in the cultures of the natural world. The pandemic
induced changes to the ways we interact with the natural world have resulted in observable changes, including reduction in greenhouse gas emissions and the return of bird and mammal species to locations unvisited for years. As we reengage, we need to be curious about our biases and be willing to adjust our expectations and behaviours. The practice of humility, and in particular cultural humility, can help us become good ancestors, reducing inequities and creating a more sustainable world for future generations. Zahra Jimale is a lawyer, mediator, and educator. Jennifer Smith is a lawyer, adjudicator, and educator. DECEMBER 2020 / BARTALK 27
pointcounterpoint CBA NATIONAL MAGAZINE by Steve Major
Counterpoint: The Case Against the Proposed CBA Resolution for “Climate Justice” THE CLIMATE CHANGE RESOLUTION IS DIVISIVE AND NOT IN THE FUNDAMENTAL INTEREST OF THE CBA. CBA NATIONAL MAGAZINE by Meredith James
Point: Lawyers Have a Role to Play in Responding to Climate Change CLIMATE CHANGE RAISES ISSUES OF JUSTICE AND EQUALITY. LAWYERS FROM ALL PRACTICE AREAS HAVE A ROLE TO PLAY IN CRAFTING A RESPONSE.
At the Canadian Bar Association (“CBA”) 2020 annual general meeting (“AGM”), I put forward a climate leadership motion developed with colleagues from across Canada and supported by the Aboriginal Law Section, Labour and Employment Law Section, Municipal Law Section and Women Lawyers Forum. Although the motion did not pass, the CBA Board of Directors decided to nullify the vote and to re-table the resolution at the next AGM because of technical difficulties with the voting process. The debate regarding this motion at the AGM made clear that we could do more to explain why we believe that responding to climate change raises issues of justice and equality, and why lawyers from many practice areas have a role to play in responding to the impacts of a changing climate and developing solutions to speed our transition to a less carbon-intensive society. I welcome the opportunity to have that discussion here and in the leadup to the next AGM. NO DEBATE REGARDING THE SCIENCE OF CLIMATE CHANGE
The CBA has already recognized that climate change, and Canada’s response to it, have profound environmental and economic implications for Canada’s future. In a 2011 resolution, the CBA urged the federal, provincial and territorial governments to take immediate action to work together to develop and implement comprehensive national climate regulations that include mandatory greenhouse gas emission reductions and carbon pricing. In 2016, Canada ratified the Paris Agreement and joined the global consensus that we must hold the increase in global average temperature to well below 2°C above pre-industrial levels, and pursue efforts to limit the increase to 1.5°C, to avoid the worst impacts of climate change. Although I understand my friend Mr. Major takes issue with the mechanics of the Paris Agreement, he has not disagreed that the temperature targets are valid.
Read the full point article 28 BARTALK / DECEMBER 2020
A “climate justice” resolution was recently proposed to the Canadian Bar Association at its Annual General Meeting. I oppose this and was invited to elaborate as to my reasons why. I have two children and am concerned about the health of our one, and only, planet. However, and I say this respectfully, if ever a resolution was ill-timed, it is this one. Not only was it wrong to propose it before the COVID-19 outbreak; it is absolutely tone-deaf now. What does “climate justice” mean? Ask ten lawyers this question, and you will probably get ten different answers. The proponents have expressed their lengthy definition of it below, the components of which could also be defined in a multitude of ways...
Read the full counterpoint article
tips TIPS FROM
CANADIAN COMMENTARY ON CLIMATE CHANGE LAW
Climate change law is a topic so swiftly expanding in scope it is nearly impossible to confine within traditional classification schemes used by libraries or legal publishers. It is, to put it mildly, a cross-disciplinary field of interest. Or to put it more colorfully, a fiercely verdant hybrid of seemingly incompatible practice areas: from carbon finance, to corporate governance, to public health, to Indigenous rights, to international treaty law, to refugee law, etc. While legal commentary on climate change law is diverse, a worthwhile place to start contextualizing the topic is to focus by jurisdiction. In Canada, we are lucky to have canlii.org which includes a nicely expanding database of free commentary, from the newsletters, magazines, and papers cataloged by CanLII Docs, to the more informal case commentaries and summaries contained in CanLII Connects. A good example of the latter is the piece by Omar Ha-Redeye titled “Climate Change Law as a Sui Generis Area of Policy and Law,” where he canvasses ways for developing an area of climate change law. For journal publications on climate change and its intersection with law, we also recommend searching our HeinOnline database, something that lawyers can access from the comfort of their home offices through Courthouse Libraries BC’s Remote Access to Subscription Databases service (visit courthouselibrary.ca to learn more under “How We Can Help”).
Who owns what? The Land Owner Transparency Registry records information about who has an indirect interest in BC land. Find out more at landtransparency.ca.
DECEMBER 2020 / BARTALK 29
LOTR – Farm – Bar Talk F I L E NAM E :
16 OCT 2020 F INAL S IZ E :
Final size: 100% CO LO U RS :
practicetalk DAVID J. BILINSKY
Evolving Views on How to View Security Taking a hypothetical approach r Further on up the road baby, things gonna change... r — Music and lyrics by J.L. Hooker, C. Thompson, C. Santana; recorded by Santana.
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he State Bar of California’s Committee on Professional Responsibility and Conduct has just issued Formal Opinion No 16-0002. It looked at a lawyer’s ethical obligations with respect to unauthorized access by third persons to electronically stored client confidential information in the lawyer’s possession. In some ways it parallels what is set forth in s. 10-4 Security of Records of the Rules of the Law Society. What is illustrative is that “the Committee adopted an approach that posed questions lawyers should consider in order to comply with the duties of competency and confidentiality. In light of ever-changing technology, the Committee concludes that an on-going engagement with that evolving technology, in the form of security issues to consider and reconsider, was preferable to a “bright line” or “categorical approach.” The Committee looked at four scenarios: An attorney’s laptop is stolen; an attorney’s smartphone is left in a restaurant overnight; a firm is infected by Ransomware and a lawyer’s laptop was accessed while the lawyer was using an unsecured public Wi-Fi network. Hypothetically the Committee looked at the factors to consider in each scenario. 30 BARTALK / DECEMBER 2020
The requirement to make reasonable efforts to protect client information from unauthorized disclosure or destruction was affirmed. California went further, however, and stated that: “Given the obligation to preserve client confidences, secrets and propriety information, it is appropriate to assume that reasonable clients would want to be notified if any of that information was acquired or reasonably suspected of being acquired by unauthorized persons.” In BC, we have an obligation to notify the Executive Director of the Law Society but the Rules and Code are silent on the duty to notify a client
Given the obligation to preserve client confidences, secrets and propriety information, it is appropriate to assume that reasonable clients would want to be notified if any of that information was acquired or reasonably suspected of being acquired by unauthorized persons. if the firm lost control or custody of any of the lawyer’s records [104 (a)] or if anyone had improperly
accessed or copied any records [10-4 (b)]. California also affirmed the American Bar Association formal opinion of 18-483 that holds: “lawyers with managerial authority within a law firm must make a reasonable effort to establish internal policies and procedures designed to protect confidential client information from the risk of inadvertent disclosure and data breaches as the result of technology use, which includes monitoring the use of technology and office resources connected to the Internet and external data sources.” They also held that a law firm should: “consider preparing a data breach response plan so that all stakeholders know how to respond when a breach occurs.” This opinion, I believe, foreshadows what could be eventually adopted in other jurisdictions. Prudent firms may wish to examine the formal opinion with a view to revamping their policies and procedures to reflect this evolving thinking because further up the road, I believe, the thinking is gonna change. The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members. David J. Bilinsky, Practice Management Advisor (on leave), Law Society of British Columbia Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com
dave’s techtips As a First Step Check if you have adequate insurance to protect yourself against various losses, including data breaches, cyber-losses, cyber-extortion and social engineering (phishing) fraud scams. uuu THE LAW SOCIETY
has a good breakdown of the coverages that are available that the Law Society insurance does not cover. uuu THE SEDONA
CONFERENCE CANADA has prepared a commentary on privacy and information security for legal service providers — Principles and Guidelines (Aug 2020) that is well worth reviewing. uuu THE SEDONA
CONFERENCE has also prepared a Commentary on a Reasonable Security Test (Sept 2020). This Commentary begins with a brief summary of the importance of having a test, the reasoning behind a cost/benefit approach for the test, and what issues the test does not address. Part I sets
out the proposed test and the explanation of how it is applied. Part II provides review and analysis of existing resources that offer guidance on how “reasonable security” has been defined and applied to date and explains how they bear upon the test. uuu CREATE A DATA
BREACH PLAN before you are hit with a breach that will allow you to deal quickly and decisively with any possible data breach. Lawyers Mutual of North Carolina has published a Data Breach Incident Response Plan Toolkit by Tom Widman, founder, president and CEO of Identity Fraud, Inc.
uuu INSIDE YOUR DATA
BREACH PLAN Sharon Nelson, David Ries, and John Simek have written “Be Prepared — Planning for When Your Law Firm Suffers a Data Breach.” This article is a nice compact review of the issues to consider placing inside your data breach plan. uuu PROTECT PERSONAL
INFORMATION AND DATA BREACHES The Office of the Privacy Commissioner of Canada and The Office of the Information and Privacy Commissioner of Alberta has published “Security Personal Information — A Self-Assessment Tool for Public Bodies and Organizations.” This comprehensive tool is an incredible resource for any organization seeking to examine their systems and procedures to protect personal information and data breaches. uuu DLA PIPER
has summarized Canadian privacy statutory data breach obligations. uuu THE CANADIAN
BAR ASSOCIATION has published an article in 2015 written by Jeffrey Kaufman entitled, “Law Firm Privacy Compliance in 10 Steps.” © 2020 David J. Bilinsky
DECEMBER 2020 / BARTALK 31
barmoves Who’s Moving Where and When Warren Scrooby
Maryanna Dinh
joined Singleton Urquhart Reynolds Vogel LLP as an associate.
joined Hunter Litigation Chambers as an associate. Maryanna will continue to develop her practice in general civil litigation.
J. Geoffrey Howard
Emily Hoff
has formed his own firm, Howard Employment Law (“HEL”), in Vancouver effective August 31, 2020. Geoff is joined at HEL by associate Sebastian Chern and plans to add another lawyer in coming months.
shortly after completion of her articles and being called to the British Columbia Bar, Emily joined Everson Law as an associate in July 2020.
Kaitlin Kuefler
Laura Moore
joined Singleton Urquhart Reynolds Vogel LLP as an associate.
joined Everson Law as an associate in September 2020 after transferring from Ontario and completing the requirements to become a member of the British Columbia Bar.
Junki Hong
Angela Yousofi
joined the KSW Lawyers Employment & Labour group. Junki is a trial lawyer with a background in employment law, intellectual property, and commercial litigation.
joined Clark Wilson LLP’s Capital Markets, Securities, Mergers & Acquisitions Practice.
Alejandra Henao
Debbie Preston
joined the KSW Lawyers Employment & Labour group. Ale has a particular expertise in WorkSafeBC matters, and also practises employment and human rights law.
joined Clark Wilson LLP’s Employment & Labour and Insurance Practices.
32 BARTALK / DECEMBER 2020
Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.
TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BARMOVES.
Nick Carlson
Jessica Hames
joined Clark Wilson LLP’s Banking, Insolvency & Restructuring and Business Litigation Practices.
joined Hammerco Lawyers as an associate in the Litigation group. She is specializing in personal injury and sexual assault litigation.
Lee J. Marriner
Quinlan Winton
has recently joined the insolvency law practice of Gehlen Dabbs as an associate.
joined Singleton Urquhart Reynolds Vogel LLP as an associate.
Seung Wan (John) You
Britt Redenbach
joined Koffman Kalef as an associate in their Litigation/Arbitration/Dispute Resolution group. John was called to the British Columbia Bar in 2016.
joined MLT Aikins in Vancouver as Counsel. Britt practises largely in the areas of corporate/commercial, corporate finance and securities, mergers and acquisitions, and corporate governance.
DECEMBER 2020 / BARTALK 33
Take advantage of CBA's complimentary on-demand programs to complete your annual CPD requirements. Keep up with technology trends in the practice of law. Explore ethical issues and professionalism. Stay on top with practice management modules to ďŹ nd clients and get paid. Be well with programs dedicated to lawyer well-being. INVALUABLE PROFESSIONAL DEVELOPMENT. ALL IN WITH YOUR MEMBERSHIP. cba.org/FreePD
BRITISH COLUMBIA
DECEMBER 2020 / BARTALK 34
