Are Canada’s lawyers embracing sustainability?

May 18, 2011 by Stephen Hazell

Human activities collectively are not sustainable in that they are reducing the capacity of global ecosystems to support healthy societies and prosperous economies.  This is not a new idea. The United Nations Commission on Environment and Development—which popularized the sustainability concept—released its Our Common Future report nearly 25 years ago. Our Common Future’s definition of sustainable development is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” has been widely adopted in Canadian law. The Canadian Environmental Protection Act was enacted 23 years ago, and the Kyoto Protocol was signed nearly 15 years. I studied environmental law at Queen’s University 30 years ago.

How are Canada’s lawyers doing in embracing sustainability as a key to any prosperous future for humanity? Not so well, the evidence indicates.
My focus here is on Canada’s private law firms and bar associations not on not-for-profit law groups such as Ecojustice that litigate or lobby on behalf of the environment.
This paper summarizes two lines of evidence.  The first is a survey of the stated commitments to environmental sustainability of Canada’s law firms, the second examines the Canadian Bar Association’s federal lobbying on environmental sustainability issues.

Survey of Canada’s Twenty Largest Firms

The survey reviewed the websites of Canada’s twenty largest law firms1using a standard set of keyword searches to determine the level of commitment to environmental sustainability of each of these firms.  The following measures as set out on their respective websites were utilized:

  • Policy to green office operations (such as  by implementing the Canadian Bar Association’s Greening Law Office guide)
  • Donations to, or pro bono legal services on behalf of, environmental charities
  • Commitment to an ethic of environmental sustainability in the practice of law

Six of these law firms have a stated commitment on their websites to green their law office operations. The other fourteen do not.  The six law firms that do present a green office policy (usually overseen by a committee of lawyers) include Borden, Ladner, Gervais LLP, Davis LLP, Heenan Blaikie LLP, Miller Thomson LLP, Ogilvie Renault LLP, and Stikeman Elliot LLP. This means that 70 per cent of Canada’s largest law firms have not yet seen fit to make a public commitment to take even the most basic steps to reduce their environmental footprint (e.g., printing documents double-sided, turning off lights in unoccupied offices).

Few of the largest twenty law firms publicly report making donations or providing pro bono legal services to environmental charities. Exceptions include Blake Cassels & Graydon LLP, which received a Lexpert Award for providing pro bono services to the Evergreen Brickworks project, McMillan LLP which received the same award for pro bono services to Islands First, and Stikeman Elliot which supported the Climate Challenge in conjunction with the David Suzuki Foundation. Given the otherwise good record of law firms in supporting charities, the lack of support to environmental causes is striking.

None of the largest firms has made a commitment to a sustainability ethic in their law practices that comes close to matching that made by a few smaller firms.  For example, Olthuis, Kleer, Townshend prominently states on its website that “We support justice for aboriginal peoples, protection of the environment, and advancement of human rights.”
However, several of the largest 20 firms make important, if more limited claims on their websites.   Bennett Jones LLP states a commitment to “advancing sustainability”, while Heenan Blaikie LLP states that its environmental policy includes initiatives “illustrating our desire to preserve the environment and limit the impact of our activities”. Miller Thomson LLP commits to takes steps to “increase environmental awareness and foster sustainable approaches in [its] activities” and Ogilvie Renault LLP “is committed to minimizing our environmental footprint through sustainable business practices”. Stikeman Elliot LLP was named one of Canada’s “Green 30”environmentally friendly employers.

Canadian Bar Association

The National Environmental, Energy and Resources Law Section (Environment Section) is the vehicle through which the Canadian Bar Association advocates on federal environmental policy issues.  The Environment Section claims to “represent(s) a broad range of interests related to environmental law from every part of the country” and includes “lawyers acting for conservationists”.2  In my experience, these statements are dubious. I doubt that any lawyer sincerely concerned about environmental sustainability could support the positions taken by the Section on two recent House of Commons bills addressing climate change and accountability of Canadian mining companies operating in developing countries.

On behalf of CBA, the Environment Section opposed Bill C-377, the proposed Climate Change Accountability Act in a letter dated February 11, 2008.3 Bill C-377 would have required the federal government to set regulations to reduce greenhouse gas emissions to 25% below 1990 levels by 2020, and to 80% below 1990 levels by 2050.  Bill C-377 was based on guidelines set by the United Nations Framework Convention on Climate Change and are essentially the same targets as those adopted by the European Union and announced as objectives of U.S. President Obama's New Energy For America strategy.

The Environment Section argued that “Bill C-377 sets very high standards for change which are inconsistent with targets set out in existing international agreements”. The first part of the statement is true, but these “very high standards for change” are deemed to be essential by the international scientific community if dangerous climate change is to be avoided.  The second part of the statement is untrue:  Bill C-377 would have set deeper targets for emissions reductions than the Kyoto Protocol, but over a much longer time frame than those for Kyoto.  Rather than enact Bill C-377, the Environment Section disingenuously calls for Canada to meet its international legal obligations under the Kyoto Protocol.

On behalf of CBA, the Environment Section also opposed Bill C-300, the proposed Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act in a letter dated November 27, 2009Bill C-300 proposed corporate responsibility standards for Canadian extractive companies that receive federal financial support for mining and oil and gas activities in developing countries.  The House of Commons Committee considering the private member’s bill heard testimony and received reports about alleged human rights and environmental abuses by Canadian mining companies including Barrick Gold, Goldcorp, Hudbay and Pacific Rim in a number of developing countries. 

The Environment Section opposed Bill C-300 on the grounds that it would impose “serious obligations on Canadian companies” (they would be accountable for corporate human rights abuses and environmental violations unlike other companies) as well as “severe consequences for any violation” (they would no longer receive financial support from Export Development Corporation).  Instead of enacting Bill C-300, the Environment Section urges that the proposed changes be developed through “international consensus” (a guarantee for delay at best, inaction at worst).

My conclusion from both of these lines of evidence is that Canada’s private bar remains largely on the sidelines in the struggle to protect global ecosystems and achieve sustainability in human activities. Given that lawyers are often the most heavily represented profession among Canadian politicians, this is not a hopeful conclusion for those seeking political action to achieve sustainability. 

1. According to Law Times February 28, 2011  p.9.

2. Letter dated November 27, 2009 from Jim Thistle, CBA Environment Section Chair to Kevin Sorenson, Chair of House of Commons Standing Committee on Foreign Affairs and International Development, p. 1.

3. Letter dated February 11, 2008 from Sean Foreman, CBA Environment Section Chair to Bob Mills, Chair of House of Commons Standing Committee on Environment and Sustainable Development.

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