Law Times

Page 8 November 18, 2013 Law Times • Focus On Environmental Law What should lawyers do about climate change? Questions include setting up environmental court, compensation to victims BY CHARLOTTE SANTRY Law Times T he effects of climate change are increasingly arising in litigation matters ranging from aboriginal treaty rights to alleged breaches of environmental protocols. But could lawyers be doing more to actively mitigate the effects of climate change, and would reforms to the justice system help the courts deal more effectively with those who damage the environment? Toronto lawyer David Estrin, a partner in Gowling Lafleur Henderson LLP's environmental practice, is searching for answers to these questions. Together with British barrister Baroness Helena Kennedy, Estrin is co-chairing the International Bar Association's task force on climate change and human rights. The association established the task force in January 2013 in order to contribute to global discussions on these issues and provide legal expertise. Estrin co-chaired an event on Oct. 9, 2013, in Boston aimed at gathering some early thoughts ahead of a planned report due next year. Although people often view climate change through an environmental lens, it has a potentially significant impact on people and communities, he says, explaining that many of the ethical dilemmas boil down to issues of fairness and human rights, areas lawyers can provide strong direction on. For example, Estrin argues, rising sea levels, desertification, and the ensuing political unrest will hit developing countries particularly hard. "There's going to be a huge predicted displacement of people in those countries. . . . We will have climate change refugees," says Estrin. Should these developing countries receive compensation? And if so, how would the world allocate the degree of liability among more industrialized countries? The question arose at the Boston conference and is one of the issues the task force is considering. "Whether or not that 'The legal system may need a great deal of tuning up,' says David Estrin. [type of compensation system] would be widely accepted is one of the many things we're looking at," says Estrin. He also wants to address barriers in the legal system that may be preventing communities from issuing lawsuits against those who damage the environment. "The legal system may need a great deal of tuning up," he says. "We're looking at greater access to the courts both domestically and at an international level." One idea on the table is an international environmental court. "This court would allow not only governments to bring claims but also provide access to corporations and non-governmental organizations," says Estrin. Prominent British regulatory lawyer Stephen Hockman has for several years strongly advocated the idea of an international environmental court. Speaking as a delegate at the Boston conference, he said it would need to have "a constitutionally different role from a traditional court" and sit "somewhere between the traditional justice role and the legislative role." He went on: "One only has to look at the way in which supreme courts around the world . . . are not only deciding cases but establishing principles in the area of law which they're dealing with." An international environmental court would have the "same very important role in developing principles, thereby affecting public perception of these issues and contributing very much to the sort of work that the panel has spoken about." It's clear that international agreements such as the Kyoto Protocol are proving far less effective than hoped. Canada pulled out of the protocol in late 2011, sparking an unsuccessful application for judicial review last year. Meanwhile, an Environment Canada report last month found Canada's greenhouse gas emissions are likely to reach 734 megatonnes by 2020, a two-per-cent increase from previous estimates published last year. This country has the 12th-highest greenhouse gas emissions per capita, behind the United States, Australia, and oil-rich nations such as the United Arab Emirates, according to United Nations data. Some lawyers have suggested that, instead of international protocols, countries with shared interests could pursue bilateral or trilateral agreements. "Once you see some agreements among a few countries, that might help to put in a more global system," says Estrin. Another way individual lawyers can contribute is by drafting clauses in international trade agreements ensuring parties respect the human rights implications of climate change, he says. Agreements could also contain provisions enabling parties to pursue companies for human rights violations. Such a provision would amount to "a precondition that a corporation would have to come forward with clean hands; in other words, demonstrate they're actually reducing greenhouse gases," says Estrin. The association created the task force following a challenge posed last October by Mary Robinson, former president of Ireland and United Nations high commissioner for human rights. Robinson described a vision for a world "where global justice and equity underpin a people-centred developmental approach to addressing the impacts of climate change." She added: "There's clearly a role for the legal profession in pursuing this vision because climate change is not just an environmental or economic issue, it's a human rights issue and therefore it creates a concomitant moral imperative to act." Climate experts are "struggling" with important questions that "the IBA must become involved in considering," she said. These questions included: How can the world support developing countries in taking meaningful action on emissions reductions? Are there ways to share the burden of reducing greenhouse gas emissions equitably? Are we doing enough to share the benefits of low-carbon development equitably? She concluded: "You have a very powerful voice because you are the International Bar Association, so I challenge you to be with us on this journey to bring about greater climate justice." Estrin says there's a growing recognition among lawyers that they need to make a "proper contribution" to the debate. "It's a growing phenomenon," he says. 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