On December 3-4, 2018, an application was made in the Supreme Court of British Columbia for leave to raise a common law defence, known as the “defence of necessity”, in a criminal proceeding related to the Trans Mountain pipeline project. I am charged with criminal contempt for having blocked an access road at the Westridge Marine Terminal, located on the shoreline of Burrard Inlet, on August 20, 2018. My co-accused in this application is Jennifer Nathan, also charged as a result of her action in March 2018. We are bringing this application together.
At the conclusion of a two-day hearing on December 4, the presiding judge, Affleck J., dismissed our application, without reasons. At that time, he stated that he would deliver his written Reasons for Judgment some time in January. On January 17, 2019, six weeks after the hearing ended, the judge issued his written judgment, which sets out the reasons for his decision.
We wish to make available copies of the documents we prepared in support of our application, which were filed with the court on November 22, 2018. They explain to the court the grounds of our application. These documents, once they are filed, are accessible to the public in the court registry.
Four documents explain the substance of this case:
- Notice of Application & Charter Notice: this 55-page document provides a summary of the proposed evidence and the legal basis of our case;
- Outline of Proposed Evidence (Exhibit “A” to the Affidavit of David Gooderham, sworn on November 21, 2018): the Outline is a 119-page detailed summary of the evidence we propose to call at trial about the projected growth of oil sands emissions and data about Canada’s projected emissions to 2030;
- Second Affidavit of David Gooderham: sworn November 21, 2018, this document sets out evidence concerning my belief and understanding about the peril of climate change and the emissions implications of expanding oil sands production in Canada;
- Affidavit of Jennifer Nathan: affirmed November 21, 2018, this document describes her background as an educator and high school science teacher who has for many years attempted to advance an understanding of climate change.
To understand the legal process in this case, it is helpful to know that, as persons charged with criminal contempt (for disobeying a court order), we do not have any automatic right to raise the defence of necessity at trial. We are obliged to bring this application seeking “leave” (i.e., permission) to raise the necessity defence and to call relevant evidence needed at the trial to support that defence. In bringing this pre-trial application on December 3, we are bound to outline to the presiding judge the evidence we propose to call at trial. The purpose of the Outline of Proposed Evidence, therefore, is to provide the court with a summary of the evidence we wish to call.
The pipeline project
In Canada, now, we are committed to two major policy pathways:
- A commitment to cut the annual level of Canada’s total emissions 30% by 2030 below the 2005 level. The target is 517 million tonnes (Mt) of CO2 Because Canada’s total emissions are currently projected to be about 728 Mt per year by 2020, or close to that, cuts of about 200 Mt will have to be achieved within the next decade, to meet the target.
- An ambitious plan to expand Canada’s oil and gas industry, and specifically to expand oil sands production from 2.526 million barrels per day (bpd) in 2015 to 4.236 million bpd by 2030 – with further production growth to 2040. The Government of Canada’s data shows that greenhouse gas (GHG) emissions from oil sands production will be about 44 Mt higher by 2030 than they were in 2015.
The core question behind all the evidence about pipelines, oil sands, climate policy, and emissions trends is whether the two major policy pathways are consistent, or compatible. The question can be put this way:
Can we achieve a 30% cut in Canada’s total emissions by 2030, down to 517 Mt, if missions from expanding oil sands production keep rising?
There is also a crucial second question: is the planned expansion of Canada’s oil sands production to 2040, which is the economic rationale for building the Trans Mountain Project, compatible with Canada’s commitment under the December 2016 Paris Agreement to keep the rise in global surface warming to less than 2°C?
These two questions are not impossible to answer. But the Government of Canada did not provide Canadians with answers before it gave final approval to the Trans Mountain Project on November 29, 2016.
Our belief is that, unfortunately, the answer to these questions is “no”. In the Outline of Proposed Evidence (document II), we lay out in detail the sources of the evidence we plan to call at trial, which will show that the planned expansion of oil sands production in Alberta to 2030 and to 2040 is not consistent with Canada’s promised climate commitments. The key evidence on that point is found in Parts 8, 9, 10, and 13 of the Outline, and in Appendices M, N, and O.
Global emissions, atmospheric carbon, and warming
The Outline of Proposed Evidence also includes a summary of the available evidence about the current trend of global emissions, and about the magnitude of the deep emissions cuts we will need within the next twelve (12) years to keep the increase in the earth’s average global surface temperature to less than 2°C above the average over the period 1850-1900.
The clear evidence on these points is found in Parts 14 to 18 of the Outline.
The legal issues
The Notice of Application and Charter Notice (document I) under the heading “Legal Basis”, at pages 25 to 55, sets out a full analysis of the legal issues. Necessity is a rarely invoked defence with deep roots in English common law, which, in extraordinary circumstances, may excuse a person who has disobeyed the law. A discussion of the necessity defence is found at pages 25-29. An accused must be able to show that, in disobeying the law, she or he was acting to avoid an imminent peril, and that there was no reasonable lawful alternative means to avoid the peril. The Crown will argue that necessity does not apply in our situation.
The second defence we rely on is based on section 7 of the Charter of Rights and Freedoms (see pages 42 to 54 of document I).
Here is how we summarize our belief and understanding of the situation all of us are now facing:
The warming of the earth is already far advanced. The impacts are already degrading human and natural systems. The losses are irreversible. We know that, if we act to the full extent of our capacities now and during the next twelve years, we have it in our power to halt this unfolding peril and curb the losses. We will not be able to avoid the further losses that will be caused as surface warming increases from the current level of 1°C to 1.5°C, and we probably cannot curb the deepening losses that will occur as warming moves above 1.5°C to 2.0°C. But our opportunity is to at least limit the further loss and peril as warming moves significantly above 2°C. The scientific evidence is clear that the greatest losses and risks to human systems and natural systems will occur as warming approaches and then exceeds the 2°C. That is the immediate peril we can act to avoid.
— Notice of Application, “Factual Basis”, paragraph 80 at page 24
For that reason, we, along with many other people since March 2018, have acted to block access to the Westridge Marine Terminal, in an attempt to stop or delay the construction of the Trans Mountain expansion project.
In our application on December 3-4 at the Court House in Vancouver we applied for leave to call evidence from climate scientists and others expert witnesses, who are qualified to testify on the matters set out in the Outline of Proposed Evidence. The purpose of that was to show that our beliefs are reasonably based on the available scientific evidence, and to show the gravity of the peril.