Canadian lawyers reject resolution calling for professional and personal climate responsibility

Lawyers for Climate Justice, a Canadian group of lawyers and law students, tabled a Climate Leadership Resolution at the Canadian Bar Association annual general meeting on February 17, 2021.   The Resolution adopts a definition of climate justice, requests that CBA members consider climate justice and the impacts of climate change in their submissions regarding potential law reform and in developing educational programming, and also urges lawyers to undertake individual actions, such as undertaking pro bono activities related to climate change, and reducing greenhouse gas emissions within their own practice operations.  After heated debate, the resolution was defeated. “Why we must reject the climate justice resolution” is a lengthly article based on one person’s views about the virtues of Canada’s energy sector, and concludes: “I suggest that we leave social and political advocacy on divisive issues to those organizations and experts (some of whom are our clients), who are better equipped than the CBA.” Apparently, a majority agreed.

As described by The National Observer , this was the second attempt to pass this Resolution  – it had also been defeated in 2020. In 2021, advocates gathered the support by the Aboriginal Law Section, Charities and Not-for-Profit Law Section, Labour and Employment Law Section, Municipal Law Section, and the Women Lawyers Forum of the Canadian Bar Association. They also lobbied through articles –  notably, Climate Conscious Lawyering,  a blog written by David Estrin, international environmental law expert and formerly Co-Chair of the International Bar Association Task Force on Climate Change Justice and Human Rights.  The Estrin blog provides the context of international efforts to insert climate change into mainstream legal discussion, citing  The  Climate Crisis Statement by the International Bar Association (May 2020) , which also calls on lawyers to take personal actions and to incorporate climate concerns in their professional activities and advice. It follows a report from the International Bar Association  Human Rights and Climate Justice Task Force, Model Statute for Proceedings Challenging Government Failure to Act on Climate Change . Estrin also cites the international Principles on the Climate Obligations of Enterprises , a 2018 report (since revised) which addresses the legal responsibility of business organizations to respond to climate change.  

Estrin concludes his blog with this:

“As of 2021, there can be no doubt that an ordinarily competent and careful lawyer must be aware of climate change issues and impacts, current and changing climate laws and policies, as well as current climate litigation approaches and results as relevant to legal advice; and must use these insights in advising clients. This awareness must also include an understanding of how achieving justice and human rights for current and future generations is increasingly expected, and indeed demanded, by governments, business enterprises, pension plans, investors and lenders who are making decisions on approving or financing projects or plans which could result in new GHG emissions or in simply maintaining current emissions levels. A lawyer’s failure to provide relevant advice pertaining to the implication and impacts of climate change to the standard expected by a reasonably competent lawyer may not only be professional misconduct, but may also amount to professional negligence. “

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