He’s had a love of the wilderness since he was a child, but became an avowed environmentalist after a couple of summers planting trees in Alberta’s oil sands. After seeing law as a road to effecting change, he worked as a civil litigator in Saskatchewan before joining Ecojustice as a forestry lawyer. He talks to Canadian Lawyer about Ecojustice’s role and following his passions.
Q. What are the major issues that Ecojustice is currently pursuing?
A. The environmental issue that is top-of-mind for everybody these days is climate change. Ecojustice is no exception, in that a good percentage of our program work is focused on addressing the issues of climate change. One of the ways that manifests itself is trying to address sustainable extraction of resources. One of the more recent high-profile cases that we did was challenging an environmental assessment of the Kearl oil sands project that was put forward by Imperial Oil, because it failed to address the significance of greenhouse gas output from the project itself [Pembina Institute v. Attorney General (Canada)].
So let me give you a little more background on that: a tar sands project is proposed, an environmental assessment occurs, the environmental panel concludes that the greenhouse gases that would be emitted by the project are insignificant. But it just so happens that those greenhouse gases are equivalent to 800,000 vehicles per year, and so, in that context, it seemed unreasonable that they would come to the finding that they did.
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We judicially reviewed the decision and won, and then won on appeal. The result of which is that the panel had to reconsider its finding about insignificance. That decision has created a precedent which raises the threshold for environmental assessment of tar sands projects in Canada.
Q. What are your responsibilities as the executive director?
A. The executive director is the professional assistant to the board of directors. We are a non-profit charity, so we are guided by a board of directors. I am tasked with essentially implementing the strategic vision of the board and developing that within the organization. I was acting executive director as of October of last year, and then formally named in April of this year. For the period I was acting executive director, I carried a caseload and found that it was unworkable. And for the large part, with the exception of a few files, I’ve divested myself of my litigation role.
Q. Will you go back to practising?
A. It depends. At this point, I’ve embraced this role, and the current responsibilities don’t permit me to carry a caseload. In my foreseeable future, which could be long-term, is that this is the role that I’m happy in and will continue in.
Q. Do you think there is a benefit to being a lawyer leading this organization?
A. I think so. We’ve been led by lawyers and non-lawyers. The previous executive director was a non-lawyer who did an outstanding job. . . . There is merit to having a lawyer at the helm. The merit is essentially that law can be complex and there’s myriad issues that an executive director has to confront and understand and grapple with. It’s an impediment to not have a grounding in law in terms of overseeing an organization that at the end of the day has to achieve excellence in law.
Q. How many lawyers and offices does Ecojustice have?
A. Currently we carry 12 lawyers in offices in Vancouver and Toronto. We will soon be opening and office in Alberta.
Q. How would you say Ecojustice’s work differs from that of a 'regular' environmental law firm?
A. I don’t know if there is a “regular” environmental law firm. Our mission, though, is fairly distinct from those that do exist in Canada. Our mission is to use the law to address issues of environmental significance and to create legal precedents that will create long-standing protection for the environment. The other [similar environmental] law firms, and there are only a few in Canada, none have litigation, especially test-case litigation, as its core focus. The other thing I’d say what distinguishes us is that we maintain a specific science arm. We employ some of the leading scientists in Canada, the specific purpose of which is to complement our litigation strategy and to develop positions on science that will result in policy or law change. In terms of a complementary law program, that’s somewhat exceptional in Canada.
Q. Tell me what led you to get involved with Ecojustice.
A. The roots of this lie in the fact I was raised in the Prairies and my family were inveterate campers and that toured me and my siblings across the country in a camper, and I saw a lot of Canada’s wilderness and it created in me a love of the wilderness.
Then fast-forward to my time as a young undergrad, where I worked as a tree planter for a tree-planting company for several years, in the course of which I tree-planted in clear-cuts across Western Canada. One of those areas was the Alberta tar sands.
I think only afterward can you evaluate the impact of an experience. Sometimes it’s not known to you at that point in time. But often I look back and see that the seeds of my environmental activism were sown at that time, when I was in the tar sands.
Just to give you an impression: we lived on the tar sands facility — we were planting for Syncrude at the time, but planting for a contractor — we got dropped off in the middle of an oily beach with oily sand as far as the eye could see. This was the area that was reserved after they’d undertaken the mining operation, and this was for the purpose of reclamation. So, basically, we planted in a row . . . and we did that for weeks. And the next year, we went and replanted all the area that we had planted before, because it died.
And through the course of that, it was the first time I had come across environmental degradation in a way that moved me. Even planting in earlier clear-cuts did not move me like seeing what was happening on the tar sands. It was at that point that I started to think about environmentalism.
I had always had a passion for becoming a lawyer. Subsequent to that I ended up working as a ministerial assistant in the Saskatchewan government. . . . Through that job, I started to learn how laws shape society and how society can shape laws. . . . I decided by the time I went to law school that I wanted to be an environmental law lawyer. I graduated from law school at the University of Saskatchewan, recognizing that the opportunities to practise — and when I meant environmental law, I wanted to work for environmental organizations as opposed to law firms that represent companies that are into resource extraction — there are extremely very few opportunities for a person to practise environmental law in Canada. There are probably only about four organizations that employ lawyers, and so I went to work in a law firm in Saskatchewan, which is now Robertson Stromberg Pedersen [LLP]. . . . I became a junior civil litigator there and worked there for five years. From my perspective, I got a thorough grounding in law in the trenches.
All the while, I was seeking environmental law opportunities. Serendipity — or whatever, I had an automated search set up on my computer — resulted in my returning from holidays one time in 2000 and finding my internet search had captured a job in the Vancouver office of the then-Sierra Legal Defence fund for a forestry lawyer. . . . I was hired because I had such a varied background and had experience with government and as a lawyer.
I forgot one other step in the chain. Before I worked in the Saskatchewan government as a ministerial assistant, I worked for the Canada Games . . . . By the time I left, I was the media liaison, fairly well versed in media relations. So it all culminated in me going to Vancouver in 2001 to start work as their forestry lawyer.
Q. What role does Ecojustice have to play with environmental issues at the fore with the public?
A. If environmental issues have moved to front-of-mind with the Canadian populace, it’s in part because of the role that Ecojustice has played. Because one of our key roles is educating the public — and policy and decision-makers — about the state of the environment. And I would agree with you that environmental issues are more front-of-mind than they ever have been in the Canadian public in any event, but they’re not necessarily front-of-mind for political leaders across the country. . . . I think now, more than ever, we have to do what we do, which is tackling significant environmental issues, and try to create precedents that will help protect the environment, and trying to ensure the development of laws that effectively protect the environment.
Q. What advice do you have for a young lawyer who wants to get involved in social justice and environmental law?
A. Follow your passions. There may not necessarily be a place for you now, but, if you build your skills, this is a burgeoning area of law, and there will be a place for you in the future. Do what I did. Go get a job at a law firm and practise in the real world before you hit the rarefied air of environmental law.
Q. What’s the best part about working at Ecojustice?
A. There’s a lot of things. It’s kind of an easy answer. Whenever you answer that question, you start off with what’s not so great about working at Ecojustice. You’re not so well paid as your peers in industry, and you’re always confronted with a lack of resources. But at the same time, and I’ve said this before, it’s an undeniable luxury to be able to follow your passions. . . . The law in Canada is changing, but, just like other areas of expertise, you have to lose before you can win. You have to go into the courts and raise awareness, educate the public and the judiciary — take your lumps and create the atmosphere for meaningful change. Being a part of that is pretty exciting.
Q. Is there one case you’ve worked on that you feel has had a big impact?
A. What I would say is there is one case that has drawn on my passion more than any others . . . I started in Victoria as a forestry lawyer, and when I started they had forestry laws that required sustainable management of the forests, which were subsequently repealed. That started a whole raft of spotted owl litigation. So for eight years I’ve been the spotted owl lawyer. Spotted owls are the most endangered bird in Canada. They’ve gone from historic populations of about 1,000 birds in British Columbia, the only province in which they are found, to 16 owls today. I think the fact of the declining numbers indicates that the litigation hasn’t necessarily been that successful. But in terms of changing policy across the landscape, that case and awareness of the issue help drive federal species-at-risk legislation and is currently helping to drive complementary provincial legislation across the country.
Q. With Ecojustice, getting the message out must be a big part of the battle. What are the strategies of the organization to do that?
A. We’re in a time of flux. Media and generating public awareness is part of the limited-capacity situation we always find ourselves in, but the principle way we do that is by simply trying to draw attention to the cases with media. The perspective we apply when we launch a case is, first, educate the public; secondly, launch the litigation; and, thirdly, speak to a solution, whatever that may be — and lots of times it’s not litigation. Litigation buys you a one-time reprieve, perhaps, but it doesn’t address the systemic issue that resulted in the degradation that you might be fighting. The way we look at it, one-third of our time is dedicated to public awareness about the issue. And currently we do that by building relationships with media across the country and ensuring that we generate media reports on the issues.
Q. Do you have lawyers who do pro bono work for you?
A. We almost find ourselves in a situation where we don’t have enough people to orchestrate the help that we’ve been offered. One of the features of our work has been working at the Supreme Court [of Canada], which is consistent with our desire to create precedents that will have a lasting effect. In the last few years, we have been fortunate to have the assistance of leading counsel in Canada to assist us in Supreme Court litigation.
Q. If someone wanted to get involved, what can they do?
A. If they’re a lawyer that wants to help with our work, all they have to do is contact one of our offices and speak to the co-ordinating lawyer. One of the wrinkles is that if we get the calls from [someone] at a big firm is that quite often they’re conflicted. Problem number 2 is that lawyers who make a living through law have a hard time offering the amount of time it takes to develop environmental litigation. That’s why we’ve turned to, say, using senior lawyers strategically at the Supreme Court, where we’ll prepare the case and have them come in and do the advocacy. But in terms of, take this case from A to Z, it’s uncommon to find a lawyer who can devote that much time to us. And we’ve sort of been stymied in our ability to find those types of lawyers who’ll work alongside us but not be paid. It’s a challenge. There’s no shortage of lawyers who’ll offer strategic support, so that’s what we’ve turned to. In part we bear some responsibility because we are too busy to manage that side and make sure it happens.
Other issues:
We are one of Canada’s most successful environmental organizations, which means that we have approximately 19,000 people who regularly donate to us, and we have a number of prominent people who support us, both publicly and with legal assistance and with money. At the end of the day, we turn away far more of the cases than we can take. The vast majority of enquiries that we get for our assistance are turned away, and that’s simply because we are constantly confronted with a lack of resources. That’s the single biggest frustration of working here. We know what we have to do, and we know how to do it, but we can’t do it, because we don’t have the money. I don’t want this to be my final message, but, at the end of the day, it’s difficult to separate Canadians from their money in terms of supporting charitable initiatives. We’re the same as every other in that regard. We just fight for a dollar at the end of the day to try and do what we do. Hopefully that’ll change.