An interview with Jocelyn Stacey, an assistant professor at the Peter A. Allard School of Law.
Bonus Episode presented by CBA National, After the pandemic: The rule of law in a climate disrupted world Ep 11
In this month’s episode, Yves Faguy speaks with Jocelyn Stacey, an assistant professor at the Peter A. Allard School of Law and author of The Constitution of the Environmental Emergency, to discuss how climate change is likely to disrupt how we govern ourselves under the rule of law.
This episode is presented by Lawyers Financial.
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Voice over: You are listening to the Canadian Bar Association National Magazine.
Yves Faguy: Hi, I’m your host Yves Faguy, I’m the Editor in Chief of CBA National Magazine. This episode of After the Pandemic is presented by Lawyers Financial. Get expert advice and quality insurance and investments with Lawyers Financial. And because they’re not-for-profit, you get exceptional value. Get started at LawyersFinancial.ca. For the last year, it’s now February 26th, 2021 as we record this, Canada and the world have been besieged by a virus outbreak that, in addition to a death toll of 2.5 million, has disrupted everything from our health and education to economic activity, our mobility, and the running of our system of justice even. Covid-19 was a shock to the system on so many levels, and having lived through the experience, we’ve learned a lot of lessons.
Hopefully, chief among them is that we ignore foreseeable risks at our peril, because there was nothing unforeseeable about Covid-19 after all, was there? So, this brings us to our topic this week, another highly probably threat that has largely been ignored, but that will surely have a major impact on all of our lives. The system risks posed by climate change have the potential to be extremely disruptive, not just to the economic and migration patterns around the world, but to how we govern ourselves under the rule of law. It begs the question, how will governments ensure that they operate with democratic and legal authority in responding to the coming climate emergency.
To help us understand these issues, Jocelyn Stacey is here with us today. She’s an Assistant Professor at the Peter Allard School of Law at the University of British Columbia, where she researches environmental crises and ways in which law creates, regulates and prevents these events. Jocelyn is also the author of a book, The Constitution of the Environmental Emergency. She’s currently working on SSHRC funded project called The Law of Disaster Exceptionalism: Reforming Law’s Role in Disaster. She’s also collaborating with the Tsilhqot'in National Government on Indigenous Jurisdiction in times of crisis and has a forthcoming report with the nation on the Covid-19 pandemic. So, welcome Jocelyn, thanks for joining us today.
Jocelyn Stacey: Thanks very much for having me.
Yves Faguy: It’s great to have you, I’m very excited about this conversation. It’s aa fascinating topic. I want to start a little bit jumping off the pandemic. It’s often been said that our handling of the pandemic has been a dry-run for the climate crisis that we face. Let’s start by talking about what the similarities are in your view when you look at how we’ve handled the pandemic and what we face in terms of the climate and where do the comparisons end.
Jocelyn Stacey: Yeah, so, I think that’s a good place to start. I’ve seen that reference, that connection, made a lot since the start of the pandemic. And so, I think it is useful to think about the connections between the pandemic and climate change. But let’s just start for a second by thinking about this idea of a dry run for climate change, because that almost implies some timing, right? That the something is coming before the other. And so, if we think back over this pandemic year, 2019 ended with catastrophic bush fires, raging across Australia, thousands of people in Victoria, Australia were evacuated and camped out on the beach, prepared to jump into the water as their emergency plan, right? As the fires tore through their town. And 2020 began with them being evacuated by the Australian Navy in a very dramatic fashion. And so, climate impacts have been experienced by communities for years now. And over the past year, while we’ve been dealing with the pandemic, communities have also been dealing with the climate crisis, right?
Managing wildfires, flooding, most recently and prominently we can think about the winter storm in Texas, right? And so, I think it is a useful kind of glimpse into a climate disrupted world, and that is one where we are facing multiple hazards and cascading disasters. So, that, I think, is important to keep in mind because I think a dominant narrative in Canada is that climate change hasn’t happened yet, but of course, it is happening, right? And it’s been happening for a while. But, yes, we all know that it is, you know, predicted to get much worse in terms of the impacts that we all experience on a daily basis. But let’s go back to this connection, you know, sort of more conceptually between the pandemic and climate change. So, I think what the pandemic is useful for in terms of wrapping our heads around climate change is really complicating the neat narrative that we have about disasters as exceptional events. And many of us hold onto these, right? This idea that a disaster is something that’s sudden and unexpected, it’s urgent and it’s temporary.
And in some ways, the law supports that narrative, right? We’ve got states of emergencies that toggle on and off, right? So, we’ve got this dichotomy between emergency and normalcy, right? So, you know, disasters are thought to be sudden, neither the pandemic, as you’ve pointed out, nor climate breakdown and its impacts are sudden or surprising, right? We’ve got very good scientific evidence about this, and we’ve got warnings that – from multiple credible sources about what’s going to happen and the risks that we face, right? Urgency, yes, both of them demand a response, climate change, you know, occurring over a much longer timescale. But look, like, the pandemic has been going on for quite some time now, as well, and I think really sort of challenges our understanding of, you know, both an urgent, again, in terms of our ability, we had the ability to prepare for this much better.
And also, this idea that emergencies are temporary, right? And so, the idea that once the threat is addressed, we’re going to go back to normal. So, of course, many of us, right, are waiting for the Covid vaccine, right? And the sort of more acute impacts of climate change, like wildfires, those pass, right? And then, you got back to something that’s not a wildfire after the fact. But the reality is much more complicated than that, right? So, the pandemic has been useful, I think, to make that visible, right? So, we think about the way in which governments and agencies prepare for emergencies as sort of through these stages of preparation, response, recovery. For the pandemic, that’s all happening at the same time. Clearly, that’s all happening at the same time with climate change, as well, right? All of these things are mixed together. And I think it’s important to keep in mind that this is much more complicate, and we’ve got good research that shows us this, for those that are the most vulnerable to disasters, right?
The exceptional event, what some of us experience as exceptional, right, for those that are really vulnerable to disasters, you know, it’s really not that exceptional, it’s really just an extension of the everyday, right? So, the fact that institutions and our laws have failed those, right, who experience housing insecurity, systemic discrimination in the healthcare system, disproportionate environmental harms, like air pollution. So, you know, what may appear to be exceptional to some of us really isn’t, you know, for those that are most vulnerable. And I came across a really good quote in The Atlantic by Ed Yong, he was writing about the US experience with Covid. But this is general, this is the – the sentiment here applies more broadly, and I think he puts it really well. So, he says, “The US cannot prepare for these inevitable crises if it returns to normal, as many of its people ache to do. Normal led to this.
Normal was a world ever more prone to a pandemic, but ever less ready for one.” And so, I think that is what the pandemic has helped us – has helped make visible, right? Is that we can’t sort of hold onto this clean dichotomy between emergency and normalcy, right? And that emergencies really need to be transformative, right? And we know with climate change it has to be transformative. But really, all emergency or disaster scenarios need to be, because whatever we were doing before is what made us vulnerable to these impacts in the first place. So, hopefully the pandemic has helped us, yeah.
Yves Faguy: So, that’s interesting, but having said that, there are some differences that I can conceive of, which are that, you know, Covid arrived, I mean, I guess we probably could have responded a little bit quicker or quite a bit quicker, but at the same time, it’s still something that demanded an immediate response, right? Governments opened up the pocketbook, suddenly, you know, we toyed with shutdowns, we imposed shutdowns, we did it differently from one jurisdiction to the next. And, you know, we found ourselves in this situation where we couldn’t do anything without a vaccine, essentially. And so, it required us to shut everything down. I’m wondering, you know, how does that compare to the immediacy of the climate challenge where, you know, we tend to, you know, even knowing, even those of us who know about climate, we will, you know, still head off in our SUVs and leave our bad habits in the city, so to speak. How does that factor into how governments need to adapt their response?
Jocelyn Stacey: Yeah, well, I think it’s important to distinguish between sort of the personal and the institutional, right? And so, yeah, of course we all have different ways of conceptualizing these events and adjusting our daily behaviour, but really, we should be expecting more of our public institutions in terms of preparing for very, you know, soundly predicted – and in many – and when we’re talking about climate change, the estimates that we have coming out of the intergovernmental panel on climate change have borne out to be largely conservative, right? It’s a consensus based model for putting out that data, right? So, at the very least, acting on that, right? And so, when we think about what our public institutions do, they are operating at the level of systems, right?
Putting in place laws and policies and institutions that are, you know, that are, in many ways, sort of rehearsing for these worst case scenario events, right? So, I think when we take that perspective on what our decision makers should be – how they should be operating, we have much more continuity from, you know, what we would otherwise perceive in terms of our normal daily life as normal versus an emergency.
Yves Faguy: So, considering how our institutions have responded to the pandemic, what should give us comfort and what should give us cause for concern when thinking ahead?
Jocelyn Stacey: So, you’ve invited an environmental law expert to your podcast, which means I’m not going to have a lot of good news. I don’t specialize in the good news business, but here’s where I can draw some comfort. So, one is that the space of political possibility I think has been revealed to be larger than many previously had thought or were being told, right? And so, once that decision to act in response to the pandemic had been made, as you noted, right, there were pretty dramatic decisions to make to close things down over a fairly rapid period of time. And there were also really important decisions made that are directly related to the kinds of responses we need to see in light of climate change. So, responses that deal with housing insecurity, for instance, right?
So, concerted efforts being made in some cities, right, to find housing for those that were unhoused on, you know, on an order of magnitude of sort of greater, you know, greater urgency than we had seen before. We had free public transit for a time, right? We have other changes like landlords being prohibited from evicting tenants who couldn’t pay to deal with, you know, some of the social inequality, you know, issues that underpin so many – so much f vulnerability to disaster. So, I think I take some comfort in that, right? That there are possibilities, right, that can be realized that maybe previously seem out of reach. I also think that, you know, we’ve got some pretty good examples within Canada of the – of a contrast between provinces that have relied on independent public health officers that are acting independently on the basis of scientific expertise with relatively little apparent, at least political, interference.
And so, I think because we’ve got that contrast between provinces that we really should be taking those lessons forward. And I guess the other piece of sort of good news coming out of the pandemic is – that I’ve sort of found encouraging – is the recognition that Canadians jurisdictions have shown with respect to Indigenous people. So – and the obligation that – the obligations that Canadian governments have towards Indigenous people. So, we see that in terms of priority for vaccinations, support in most of the country for Indigenous leaders who have chosen to control the borders of their own territories. And so, I think that’s, you know, that’s quite a ways ahead of where we would have been if this had happened a number of years ago.
Yves Faguy: So, let’s rewind a little bit and, you know, because you’ve chosen a pretty interesting subject area of expertise and given, you know, all that’s happened over the last year, you know, you’ve obviously given a lot of thought to the environment, ecological sustainability, and how that plays in, how that is an important feature of the rule of law. So, you’ve talked about what’s hopeful, but what are your concerns in how we’ve addressed the pandemic or how – what are the concerns that you have given how they’ve addressed the pandemic?
Jocelyn Stacey: Yeah. Yeah, so, the big one I think is the lack of a precautionary approach. And I think, you know, this was a key recommendation coming out of the Campbell Commission on SARS, precaution being, you know, the principle that dictates that governments act swiftly and strongly before there’s complete scientific evidence. And it’s an approach that the SARS Commission, right, found was crucial in public health. And this is a longstanding principle in environmental law, as well, right? And so, you know, it is concerning looking at the pandemic response to see that we didn’t really – we had a delayed response, right, based on what was happening around the world, you know, based on sort of taking up really precautionary recommendations or orders around wearing masks, for instance. And the approach that we followed in Canada has not been, you know, sort of the maximally precautionary approach that we’ve seen work in other countries.
So, it was a reactive approach not a precautionary approach right from the beginning. And so, I guess what gives me some concern, right, is that if you’re relying on a reactive approach, that means you fall back on familiar tools or practices, and some of the tools that have been used in the pandemic are ones that I think are pretty devastating to think about in the context of climate change. So, we now have border closures, right, that have been rehearsed on a widescale, right? Much wider than would have been previously imagined. And we can certainly foresee those being used to deal with climate migration.
We can think about vaccine nationalism, right, as countries compete to make sure that they’re the first to get the most vaccines for their people. And so, these kinds of things translate to something that’s been called the armed lifeboat, which is talked about in climate change circles, where that as climate impacts mount, wealth countries will take care of themselves and the global south, you know, which has had far less responsibility for climate change, causing climate change, is going to be left on its own. And that probably translates to the wealth divide within countries, as well. So, that, to me, is concerning, right, in thinking about the sort of specific measures that have been used in response to the pandemic and how those translate to the climate emergency.
Yves Faguy: What does that say, then, about how we need to think about the rule of law, then, when you talk about those concerns, and you’re raising issues of inequality, obviously, and how we’re dealing with different socio-economic segments of our population and people from other countries, how does the rule of law play into that?
Jocelyn Stacey: Yeah. So, this is – it’s a good question, and, you know, something that I’ve written and thought quite a bit about. And so, the concept of the rule of law that I’ve worked on is one that understands the rule of law as public justification. And I can say a little bit more about that in a second, but it’s really a context-specific, context-sensitive understanding of the rule of law. Right? So, and that’s really important when we’re talking about emergencies, because some of these measures that I’ve just talked about are appropriate in a pandemic, right? And you can implement those measures in a way that accords with the rule of law. Whereas we should have concerns from a legality perspective, right, if they’re being invoked in other instances.
So, the idea that the rule of law is fundamentally a requirement of public justification, what that means is that what we should expect and legal authority flows from decision – public decision makers exercising public power in a way that is publicly justified on the basis of deep-seated constitutional principles. So, in Canada, public law in Canada, two of those core principles are reasonableness and fairness. And there are lots of folks in Canada – the public law world that elaborate versions of this and we see it echoed in the Supreme Court of Canada’s recent watershed decision in Vavilov where the court affirms that we need to develop and strengthen a culture of justification in public institutions. So, let’s just talk about the theory that lies behind that a little bit more.
So, what underlines that understanding of the rule of law as public justification is a particular kind of relationship between lawmaker, decision maker and those who are subject to the decisions that are being made, right? So, law is not just a command or a rule that’s being handed down. Instead, it’s a reciprocal relationship between decision maker and those that are affected by that decision. And it’s a reciprocal relationship because the decision maker, in order to comply with the rule of law, must be contemplating who’s on the receiving end of that. It must be fair and reasonable in some sense to those who are being subject to that decision. And if a decision doesn’t do this, or is perceived not to do this, then the rule of law requires avenues for contestation, right, for that public justification to be compelled, right?
So, that’s a very, very sort of brief glimpse into that sort of theory of the rule of law. And the reason that I think that this is important to defend and elaborate in the context of environmental decision making or environmental law is that we often deal with important – well, in this case, emergency scenarios where there will be legislation in place that confers discretion and sometimes a great deal of discretion. And that obligation of justification nonetheless remains intact, right? So, that is a requirement, right, to act with legality.
Yves Faguy: You know, we talked a little bit about timelines, as well, and, you know, as we noted earlier, Covid has, you know, has been a long emergency, a long drawn out emergency, that’s lasted over 12 months now. But it could, by comparison, be relatively brief compared to a climate emergency or a series of cascading climate emergencies, or a sustained climate emergency. And so, I mean, time must be a major consideration here when you are calling upon, for example, emergency powers and where the state is acting with a bit of a firmer hand in these things. And so, how do states make sure that they still are functioning with legal and democratic authority? I understand that they have to, you know, they have to justify it, but that becomes a little bit more complicated, does it not? In a sustained crisis.
Jocelyn Stacey: Yeah, I think that’s right, right? And so, you know, as I’ve pointed out from the perspective of this understanding of the rule of law, that obligation of public justification can’t be derogated from even in times of emergency, right, even if you’re in that cascading emergency scenario. And so, what that should mean, and it should mean especially because of all we know about climate change, is that democratic deliberation and lawmaking are happening in advance, right, about how we handle predictable climate related disasters, so that when those decisions need to be made, right, and sometimes do need to be made in a very sudden way, because things have played out in a way that’s different than anticipated, they’re made in a way where that response is justified because that process of justification has long been underway.
And so, I think what that means for us right now is that we do really well to think about what kinds of public institutions we need in place to ensure that culture of justification that the Supreme Court of Canada has endorsed, right, how that can be sustained through, you know, an enduring kind of emergency situation, climate emergency, what we imagine when we think about those cascading climate crises. And David Dyzenhaus, who is a law profession at the U of T, he writes a lot about this, and he uses a metaphor that I quite like called “constitutional furniture,” right? And so, the idea that we think about how different institutions help us maintain that culture of justification. Of course, as lawyers, we think about the courts, right? If you need to compel an explanation from a decision maker, you go to the courts. But – and the courts are obviously important, but that’s not the only sort of piece of the puzzle here.
And so, I think we need to think more creatively about what kinds of institutions we need to help us through the coming, you know, years of climate disruption. Are those citizens’ assemblies, right, that bring together members from the community and scientific experts to figure out, you know, how do we put in – how do we implement a local declaration of climate emergency? Or is it a commission, right, that builds on experience that we have with human rights commissions, for instance, and has the ability to address issues more systemically, right, and can support in a more accessible way claims that are related to climate harms.
So, I think it’s really important for us to start thinking creatively about that. And then, the final piece to go back to the question about inequality, you know, really, we need to urgently and continually act to counter systemic discrimination and to reduce socio-economic inequality and to reform the institutions that perpetuate that, because what we know is that any kind of crisis is going to amplify those inequalities. And we’ve seen that through the pandemic, right? So, more of those systemic reforms to get us in a better place going into, you know, the increasing climate impacts that we’re expected to experience.
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Yves Faguy: I’m just wondering, though, if we as, you know, citizens, I think a lot of people have been prepared to, you know, respect the dictates of the state because, you know, we see, you know, it might be a little bit longer than we would have liked, but we do see a sort of an exit point from this lockdown or from, you know, we see vaccines coming in, you know, we see our liberation, so to speak. But the climate and, again, back to the length and duration of the possible crisis is an issue, and so, do we as citizens need to be bracing for a change in our relationship with the state? And I think a lot of people are worried about that, it’s a pretty legitimate question.
Jocelyn Stacey: Yeah. I agree. I think it’s a really important question. And I guess I would say, we shouldn’t be bracing, we should be agitating, activating, mobilizing for a change in our relationship with the state. Thinking back to that quote from Ed Yong, right, the pre-pandemic normal is what got us into this situation, and so, our current relationship with the state is the one that has us in the position of facing this growing climate crisis. And so, I really do think we need to be advocating for more democratic decision making, for access to justice that can be realized for everybody, not just those that can afford a lawyer to go to court, you know, and at the very least, we need to be electing people who demonstrate commitments to the rule of law and democratic norms, and who have the capacity and hopefully the willingness, right, to take science seriously. So, absolutely I think we are going to see a number of pressures from different places in terms of the role of the state moving ahead. And I think as citizens, right, we need to be not only prepared for that, but we need to be changing that and challenging that.
Yves Faguy: And so, when we look ahead, as well, what is the role, you know, what do lawmakers need to do in terms of facilitating our transformation into a climate resilient society?
Jocelyn Stacey: Yeah, yeah, it’s a good question. And so, really, you need a panel of experts, I think, of different areas of law to answer this one, because I have no doubt that there are important roles that law can play in facilitating climate resilience in virtually every area of law, right? We think about municipal and planning law, insurance law, corporate law, human rights law, so perhaps this is your next podcast series, right? There’s just – there’s really no end to this, right? So, I guess the point that I’ll make in the context of this broader conversation is that the role that law should play right now is to stop making us less resilient to climate change. So, there’s a lot of – so, right, you’ve framed it in a positive way, what can we do to make us more resilient to climate change, let’s at the very least stop making us less resilient to climate change. And so, I’ll just, you know, pluck some low-hanging fruit for you.
So, law should be preventing the coal expansion that’s currently being contemplated in BC and Alberta. It should be preventing fossil fuel subsidies on the orders of billions of dollars every years. It should stop ignoring the social costs of carbon, right? Which means all of the climate harms that we can now associate, you know, with some degree of not precision, but we can estimate, right, with each tonne of carbon dioxide equivalent that gets released into the atmosphere, or, you know, in economic-speak, we need to internalize those externalities in our decision making. And it should stop – the law should stop criminalizing Indigenous land and water defenders, right?
So, I think there’s a kind of common narrative, and I’m not saying that you’re the one that’s perpetuating it, this is very common, that law is either neutral or it’s helping us solve the problem of climate change, right? We’ve had climate law for a very long time, and it’s the law that’s caused climate change, right, by authorizing, supporting, and promoting fossil fuel-based economy. And so, I think a really good place to start in making us more resilient is to just stop doing all of those things.
Yves Faguy: Well, it’s funny, because when it comes to climate change, a lot of our attention here in Canada has focused on pipelines, we’ve talked a lot about that recently again, and we’ve also looked at the – we’ve also discussed a lot about the greenhouse gas pollution pricing act, just by way of background, the Supreme Court of Canada has heard the appeals and the carbon pricing challenge and it’s reserved judgment. You know, obviously, there is a tension between the provinces and the federal government, and we can also bring in conversations about, you know, Indigenous groups, as well. But, so, what do these disagreements say about our ability to tackle the climate crisis using legal mechanisms? Because, you know, it’s, like, lawmakers who make the laws, and if they don’t get along, how do we make sure that law gets [them out of the way] to tackle climate change?
Jocelyn Stacey: Yeah, when we approach it from the perspective of the Greenhouse Gas Pollution Pricing Act reference, GGPPA reference, it’s not looking good, is it? So, this is legislation that is centred on carbon pricing, right, which is the preferred tool by economists for, you know, as a climate change mitigation measure because it’s minimally intrusive, it has a low administrative burden, it’s an act that puts in place the federal backstop, which means the province and the territories have all the space they want for regulation above that minimum, that backstop minimum. And this reflects a model of national standard setting coupled with local experimentation, that combination of unity and diversity, that is sort of at the core of the rationale for federalism, for having a federal model in the first place.
And yet, here we are, right, waiting on the Supreme Court of Canada to issue a judgment in a very divisive case in terms of the positions that the provinces have taken on this. So, I’ll say I’m quite worried about the Supreme Court of Canada’s decision, not so much about the outcome, although, of course, you know, waiting to see what the outcome is, but really about the reasoning of the court, its sensitivity to the broader implications of the decision, and its sensitivity to the really deep disunity we face in the country over a needed transition of fossil fuels. And so, the decision, again, not just in terms of the outcome, but really in terms of how the court frames it and the reasoning and the tone that it takes, I think has really important implications for, you know, the tone of the debate, the political debate, and the relationships between governments moving forward on climate change mitigation.
And so, I think like all decisions, all environmental federalism decisions that get handed down by the Supreme Court of Canada, this is going to have pretty important implications for, you know, outlining or providing further contouring to the scope of federal jurisdiction, you know, over climate change, which is really, you know, becoming an all-encompassing issue.
Yves Faguy: What happens if it’s a unanimous ruling? Versus it’s a split – you get split decisions?
Jocelyn Stacey: Yeah, well, so, I think a unanimous ruling hopefully helps, you know, hopefully helps us move forward, right? That we’ve now got in place a very, you know, robustly upheld statute that does really the minimum of what’s required as a country in terms of, you know, meeting our international commitments for climate change. Carbon pricing is not the only regulatory tool in the toolbox, so to speak, right? But it is an important one, right? And it certainly has taken on some symbolic importance in this – in our debates over climate change mitigation. So, I think a unanimous ruling helps us move ahead, right, and stop sort of debating decisions that, frankly, should have been taken, you know, at least a decade ago, right? Because there’s so much more important work that needs to be done.
And, you know, even if it’s not a unanimous decision, really, I do think that sort of the tone that the court takes, maybe being the grown-up in the room, right, about the challenges that we face in terms of climate change and how the – our constitutional structure can support us in dealing with this. So, I take, you know, a little bit of comfort from the Saskatchewan Court of Appeal, which ruled on this, you know, before it went to the Supreme Court of Canada, and the majority wrote – I’ve got the quote here – the majority wrote, “If it is necessary to apply established doctrine in a slightly different way to ensure both levels of government have the tools essential for dealing with something as pressing as climate change, that would seem to be entirely appropriate.”
So, there’s lots of constitutional law folks out there that will say, “We don’t need to change the doctrine here, we’ve got, you know, what we have is enough to uphold this legislation,” but even still, I think, you know, the court in the Saskatchewan Court of Appeal here is relying on a living tree metaphor, right? Understanding that constitutional law is always interpretive, it’s always adapting to its social and political context, and that context now includes climate change.
Yves Faguy: There are also Indigenous law and legal – laws and legal traditions which are weaved into the fabric of our legal canvass, so to speak. What part do they play in our management of climate crises to come?
Jocelyn Stacey: Yeah, I think this is a really vital question, and I’m glad you’ve asked this. So, I think maybe just to situate this a little bit, you know, I think about work by Kyle White and other Indigenous folks that write about Indigenous climate change studies. And they talk about climate change as intensified colonialism, right? So, climate change is causing further displacement of Indigenous peoples, as the landscape changes due to climate change, further disruption to legal orders that stem from relationships to the land. So, really, it is important, right, to think about the role of Indigenous peoples and the role of Indigenous legal orders when we’re thinking about, you know, our climate disrupted future.
So, you know, just – I guess a couple of thoughts to maybe provoke some further thinking on this, because I certainly don’t think of myself, nor should I think of myself, as an expert in this area, but I think there are sort of two kind of pathways that I can see. So, one is that learning about Indigenous legal orders, which are premised on fundamentally different relationships to the land than Western legal systems are, I think is what helps us and allows us to decolonize Canadian environmental laws, right? So, when you think back to what I was saying earlier about, you know, the law as it was pre-pandemic or the law as it was pre-climate emergency was what got us into this emergency in the first place, so I think that that’s one pathway for thinking about it.
The other is that the Canadian state needs to make space for Indigenous legal orders to allow them to flourish, right? And that begins with recognizing and support the right of Indigenous peoples to self-determination, implementing the UN Declaration on the Rights of Indigenous Peoples, and it also – I mean, I know that I’m repeating myself – it also means mitigating climate change. But part of the reason why making space for Indigenous legal orders is so important, right, not – certainly for its own sake, right, as – because Indigenous peoples are self-determining, but also for thinking about Canada moving forward, is that, you know, if we project ourselves into that climate dystopia future, maybe not yours and mine, but our kids, right, the cascading climate crises that you’ve mentioned already, you know, we often hear about these worst case scenarios, right? Or the climate apocalypse.
But then, what happens next? Nobody talks about what happens next, right? It’s just climate apocalypse and the end. But here in North America, we have relevant experience, right? Indigenous peoples in North America have experienced a profound societal transformation through colonization. And it’s not the end, right? And so, Indigenous peoples have experience in governing through both profound and enduring crisis and transforming and revitalizing their legal orders. And so, making space for those legal orders right now I think is of critical importance, right, as we all think about, right, those – the challenges that you’ve, you know, that you’ve put to me in terms of what we know we’re going to face as a legal system, right, and legal systems in the face of climate crisis.
Yves Faguy: So, would you say that our, you know, our federal structure, with Indigenous legal traditions woven into that, does our federal structure act as a barrier to needed climate action? Or could it be – or is that too negative a view? Can it find a path towards getting our governments to address this in the way that we need it to be addressed?
Jocelyn Stacey: Yeah. I think it’s a good question. It’s a hard question to answer, because there are so many ways in which intergovernmental relationships can play out. Certainly, it operates in – as a barrier in some ways, right, as we’ve talked about with the Greenhouse Gas Pollution Pricing Act reference case. There are always sort of challenges when we’re thinking about crises in terms of coordination and cooperation, but, you know, ultimately, we need that, right? We need that kind of cooperation and coordination moving forward. And so, I think there’s a lot of potential there for a federal structure to help us, right, in dealing with these challenges when you harness sort of the strengths, right, from all levels of jurisdiction and all orders of government.
You know, maybe on a more, I guess, concrete or hopeful sort of path forward, we can think about other avenues where there’s some untapped potential, right? I think, you know, climate mitigation, as we’ve talked about, we face some conflict, climate adaptation, though, I think there’s more hope for cooperation. And so, one of the places that has some potential for this right now is that the federal government plays a significant role in providing financial assistance to local governments and provinces and territories in the aftermath of disasters, right? So, floods, wildfires, extreme storms, all of these things that we know are amplified by climate change. And, you know, I have now a bit of an outdated stat on this, but the financial burden is significant.
You know, a report in 2016 by the Commissioner of the Environment and Sustainable Development found that the federal government spent more on disaster recovery between 2009 and 2015, so a six-year period, than in the previous 39 fiscal years combined, right? That increase has almost certainly continued if we think about the floods and wildfires that have happened post-2015. So, one would think that would create some financial pressure on – to start preventing and mitigating these – and adapting, right? And adapting so that we’re more resilient to these types of events. So, I think there’s certainly some potential on the part of the federal government to tie that financial relief to disasters to some climate change adaptation objectives, right, in order to facilitate and support, right, there are big capacity issues, as well, and to support that adaptation that needs to happen.
Yves Faguy: There’s also, I mean, there’s another player in all this, which is our courts, and, you know, litigants and public interest in litigation. And so, we’ve seen climate litigation proliferate worldwide, we’ve seen some here in Canada, as well. I’m just wondering, you know, how much can we achieve through that? You know, situate us – like, how much can that really do versus, you know, what our, like, lawmakers are expected to do?
Jocelyn Stacey: Yeah, so, courts are typically the institutions of last resort, right? So, when we think about climate litigation and, you know, what’s been getting attention recently are the youth climate challenges that, you know, are happening here in Canada and around the world, so, we’ve got the [Leroux’s] plaintiffs that are bringing constitutional challenge against the federal government, the [Mathur] plaintiffs going to trial in Ontario with the challenge – constitutional challenge against the Ontario government. And so, you know, they’re doing this and seeking judicial intervention because other mechanisms of accountability have failed to stop government decisions that are perpetuating, right, dependence on fossil fuels and exacerbating the risks that these kids and youth and future generations face.
So, you know, this is part of, you know, as you’ve noted, cases around the world, you know, parties that are vulnerable to climate harms bringing these kinds challenges. It’s been called the Rights Turn in climate litigation. What it’s been very effective at doing, I think, is shifting the narrative about climate change, right? So, it’s not only – you know, we used to think of climate change as a scientific phenomenon, right? And certainly, thinking about the economic implications and the policy dimensions of climate change. But these cases have really shifted that narrative as – towards being about climate justice, right? And I think that that’s an important shift that has an impact both inside and outside the courts. There’s a paper by some UK scholars that I quite like, it’s called The Legally Disruptive Nature of Climate Change.
And so, again, we think about the disruptive impacts of climate change being about the environment, about, you know, our – how we interact socially, right, we think about the economic impacts, but we don’t necessarily think about the legal impacts of climate change and how it’s going to be legally disruptive. And so, I think what these youth climate challenges do, right, is that they disrupt us, right? They’re forcing the courts to think about the adjudicatory rule in light of these rights based claims that extend rights based protection out in time and space. And so, I think that’s really useful, right? I think that that’s – and the courts really are going to have to engage with that.
It’s also important, though, that it’s not just the youth that are being legally disruptive here in relation to climate change, right? Disruption is also happening when we think about the legally dubious Alberta Inquiry, or the legislation to protect critical infrastructure in Alberta, right, as the current government seeks to double-down on fossil fuel extraction. You know, I have no doubt that a fossil fuel industry is going to come up with a multitude of creative arguments about how and why the court should interpret law to defend against potential liability claims or to challenge government decisions that have adverse impacts on the industry. So, all of this is going to be legally disruptive and the courts, you know, can’t relegate climate change to the spheres of science or politics, they really are going to have to engage with the myriad legal issues that will come – that have been and will continue to come before them. And so, you know, I think the legal profession really has to engage with climate change as a legally disruptive phenomenon.
Yves Faguy: So, just as a final question, turning to the future, how do you, you know, what is it that you’re going to be looking out for and, you know, what are you most hopeful about?
Jocelyn Stacey: So, Yves, you know, I’m on the record as saying that hope and being hopeful is not the right way to think about climate change. And a couple of years ago, I gave a speech to law students and lawyers in Vancouver, drawing on work of others that said that courage is the best way to think about this, right? So, that really, what is required, you know, of everyone in our, you know, lawyers in their capacity as lawyers, in our capacity as citizens, is a commitment, right, to starting us on a path that addresses, you know, the climate injustices that we’re already seeing. And to being committed to doing that work even if we don’t see the results in our lifetime, right? Or if we don’t see the results right here in our own backyard. And so, I’m always a little bit, I think, resistant to the idea that we need to feel hopeful to do this work, because it’s very easy to not feel hopeful and then to disengage from it.
So, certainly, you know, where I look to, and some of the things that I feel excited about in the field of climate change, are the revitalization of Indigenous legal orders, are the commitments that are being made, as imperfect as they are, to implementing the UN Declaration on the Rights of Indigenous Peoples, because I think that then provides further toeholds, right, to allow those legal orders greater space, right, to operate and it will benefit not only Indigenous peoples but all of us. You know, I’m very curious about where the discourse of climate emergency and the proliferation of climate emergency declarations takes us. There certainly have been some really interesting proposals that have come with climate emergency declarations in terms of really engaging citizens in deliberative democratic decision making as we try to figure out our climate future. So, those are some of the spaces that I’m watching and I think have, you know, again, promised to be legally disruptive, but hopefully legally disruptive in the right direction, even if we don’t have any certainty in terms of the outcome.
Yves Faguy: No, and I hear your point that it’s more important to be brave than just to be blindly hopeful. Listen, on that note, we have to end the interview, but thank you so much, Jocelyn, for helping us think through some of these existential questions, in part, and about living in times of emergency and what it means for the world of law and what we need to do and how we need to approach the coming climate crisis and the climate crisis that is here with us today already. I’ve been talking with Jocelyn Stacey, an Assistant Professor at the Peter Allard School of Law at the University of BC. You could follow her on Twitter @JocelynStacey. Thank you so much for joining us.
Jocelyn Stacey: Thanks for having me here.
Yves Faguy: I’ve been speaking with Jocelyn Stacey, an Assistant Professor at the Peter Allard School of Law at the University of British Columbia. You can follow her on Twitter @JocelynStacey. You can also hear this podcast and others on our CBA channel, The Every Lawyer, on Spotify, Apple Podcasts, Google Podcast and Stitcher. Subscribe to receive notifications for new episodes and to hear some French, listen to our Juriste Branché podcast. If you enjoyed this episode, please share it with your friends and colleagues and if you have any comments, feedback, and suggestions, feel free to reach out to us on Twitter @CBAnatmag and on Facebook. And check out our coverage of legal affairs at NationalMagazine.ca. A big thanks to our podcast editor Ann-Catherine Désulmé, and thank you all for listening to this month’s episode of After the Pandemic, catch you next month.