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. “

Architects, planners, and engineers working for climate change mitigation and adaptation

low carbon resilience coverA joint statement, “Advancing Integrated Climate Action”  was released in Fall 2018 by the Canadian Society of Landscape Architects , Canadian Institute of Planners , Royal Architectural Institute of Canada, and the Canadian Water & Wastewater Association, acknowledging their ethical and civic responsibilities to address climate change issues, undertaking to improve professional development, and calling on all levels of government and Indigenous leaders to  show meaningful leadership in “advocating for integrated climate action and upholding commitments in the Paris Agreement.”  The 3-page Joint Statement, which includes much more,  is here.

What lies behind this statement? A team of researchers at Simon Fraser University in Vancouver, in cooperation with the Pacific Institute for Climate Solutions (PICS) in Victoria, surveyed and interviewed planning professionals in British Columbia, and provincial and national professional associations on the issue of “low carbon resilience (LCR)”. The final report of their research,  Low Carbon Resilience: Best Practices for Professionals – Final Report   , was released in December 2018, providing case studies, tools and resources. The report includes a conceptual model of Low Carbon Resilience, as well as  best practices case studies of how LCR can be mainstreamed – for example,  local government planning in the City of Hamburg, Germany ; the British Columbia Energy Step Code ;  and the construction and operation of a major health facility, the Christus Spohn Hospital in Corpus Christie Texas . The report also addresses the needs and possibilities for training and continuing professional development, and describes the database of key LCR-related tools and resources which is under construction.

An earlier report,  Professionals’ Best Practices for Low Carbon Resilience Summary of Phase One Engagement of Professionals and Professional Associations and Proposed Research Agenda summarizes the responses regarding individual attitudes and the role of professional associations .  The report identified “siloed thinking among professions” as a barrier to climate change action – leading, for example, to a lack of awareness of  the interconnections between zoning requirements, agricultural uses, biodiversity and infrastructure engineering in decisions about development and infrastructure planning.

The rationale behind the research:  “This project focused on the key role professionals play as change agents in climate action, and what is needed for all sectors to advance uptake of LCR-based practices. Communities and businesses rely on professional planners, engineers, developers, lawyers, and other experts for guidance, design, development, implementation, operations, maintenance and replacement of all aspects of society’s systems. Professionals are seminal in supporting and supplementing capacity at the local scale, where climate change impacts are felt most prominently, and where the greatest burden of response typically resides. It is therefore urgent that professionals are equipped to help local governments think through cost-effective plans that transcend outdated planning.”

It should be noted that Canadian professional engineers are an important part of this system, and  have long addressed their professional role related to climate change.  Engineers Canada’s  most recent Policy Statement on Climate Change details that history, sets out their position and makes recommendations for government.  In May 2018, Engineers Canada issued comprehensive guidelines for standards, practice and professional development in  National Guideline: Principles of Climate Adaptation and Mitigation for Engineers.

B.C. Engineers Recognize Professional Challenges of Climate Change

The Association of Professional Engineers and Geoscientists of British Columbia (APEGBC) has published a position paper which asserts that the sector’s professional standards and duty to protect public safety now imply a need to consider climate change as part of engineering and geosciences practice. A Changing Climate in British Columbia: Evolving Responsibilities for APEGBC and APEGBC Registrants states that engineers and geoscientists in particular face new professional challenges in light of uncertainty surrounding the climatic future. Fulfilling the professional standards outlined in the Engineers and Geoscientists Act has become more complicated, as project planning and providing advice to decision makers now must account for potential extreme weather events or unprecedented ongoing climatic stresses which may impact long-term safety and resilience. Some engineers are already being asked to consider climate change by their employers and clients, as they were during the development of legislated flood assessments in B.C.

In recognition of the gaps in current knowledge, training, and professional codes, APEGBC states it will implement professional development opportunities, update training procedures and codes, and ensure improved access to sound climate change data along with recommendations about its appropriate use. Entirely new professional guidelines may eventually be introduced. In the position paper, APEGBC instructs its registrants to remain informed and states that engineers and geoscientists are uniquely positioned, given their technical expertise, to help navigate the process of adaptation and building resilient communities.
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LINKS
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A Changing Climate in British Columbia: Evolving responsibilities for APEGBC and APEGBC Registrants is available at: https://apeg.bc.ca/News/News-Releases/APEGBC-Releases-Climate-Change-Position-Paper
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“Engineers Leading the Way on Climate Change” Blog post at the West Coast Environmental Law website at: http://wcel.org/resources/environmental-law-alert/engineers-leading-way-climate-change
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Canada’s New Voluntary Fracking Code of Conduct

The Petroleum Services Association of Canada has unveiled a new voluntary fracking code of conduct, signed by 11 companies. The code, which covers technical and environmental standard practice and guidelines for company engagement with stakeholders, comes after six months of nation-wide meetings with environmental and community groups, local governments and land owners. Industry representatives claim that most companies already follow the standards in the code, and that compared to other jurisdictions, Canada has long had stricter regulations on fracking. Read the press release by the Petroleum Services Association of Canada at: http://www.psac.ca/wp-content/uploads/PSAC_Media_Release_October_30.pdf and the Statement of Principles and full Code of Conduct from a link at: http://www.oilandgasinfo.ca/working-energy-commitment/hydraulic-fracturing-code-of-conduct/.

Professional Associations have a Role to Play in Climate Change

A report published by West Coast Environmental Law starts from the position that climate change is a cross-cutting issue that affects advice and decision-making in many different professions, including architects and engineers, professional foresters, biologists, insurance professionals, accountants, and city planners. The report calls for an enhanced role for professional associations using the existing tools, such as codes of conduct and ethics, standards of practice, requirements for continuing professional development, and policy statements. In one example, the author suggests a statement of ethical responsibility to “act in the public interest (including promoting sustainability); not speak beyond one’s expertise or competence; not make misleading statements or falsify data; and act with due diligence”. The report describes exemplary climate change initiatives underway by such groups as the Canadian Institute of Planners, Professional Engineers and Geoscientists of BC (APEGBC), and Greenhouse Gas Management Institute (GHGMI).

LINKS

Professionals and Climate Change: How professional associations can get serious about global warming, written by Andrew Gage and published by West Coast Environmental Law (WCEL), a British Columbia “non-profit group of environmental law strategists and analysts dedicated to safeguarding the environment through law”. Available at:
http://wcel.org/sites/default/files/publications/Professionals%20and%20Climate%20Change_0.pdf