This legal challenge started on November 22, 2018, when Jennifer Nathan and I filed an application in the Supreme Court of B.C. We had been charged with criminal contempt of court for having disobeyed an injunction concerning the Trans Mountain pipeline expansion. The purpose of our application was to obtain “leave” (permission from the court) to call expert evidence at our trial about the emissions implications of Canada’s continued expansion of oil sands production to 2040, and about climate science and the advancing peril of climate change. The trial judge dismissed our application on December 3, 2018, after a two-day hearing.
We have appealed that decision to the British Columbia Court of Appeal. The appeal will be heard on July 7, 2020. Full details of our case, and the legal issues, are found elsewhere on this site.
We have funded this case ourselves, with support from many individuals in B.C., who we wish to acknowledge here. Our supporters are individuals who share our deep concern about the issues raised in this case. The core issue is the fatal incompatibility between the Government of Canada’s commitment to expand oil sands production to 2040 (directly facilitated by the construction of the Trans Mountain Pipeline expansion) and Canada’s promise to lower its total emissions by 2030 and to take action to limit the increase in the heating of the earth’s atmosphere to no more than 1.5°C.
We are not at present seeking any further funding contributions, for the reasons I explain below. After the appeal hearing on July 7, and once the Court of Appeal has given its decision whether to allow our appeal, we will be in a position to decide the next steps.
The first 18 months of this legal case, which included the trial-level proceedings and the initial stages of launching the appeal up to February 2020, has involved total legal costs of $72, 401.25. Of that amount, $39,844.45 covered the work of the experienced and dedicated criminal lawyer who helped guide this case through the important application in December 2018 to call expert evidence about climate science at our trial, and all the preparations for that application – and also our subsequent criminal trial in March 2019 when we were convicted of criminal contempt of court, the sentencing process after that, and the start of the appeal process.
The balance of the legal costs, $32,566.80, covered the expenses of taking the appeal process through to filing our written submission (the Appellants’ Factum) on November 18, 2019, and other steps including a one-day hearing on December 18 when two national public-interest organizations, who are not parties in our case, applied to participate in our appeal as “Intervenors”. Those applications were based on the Intervenors’ intention to provide the B.C. Court of Appeal with detailed written submissions on recent decisions by foreign courts that have given rulings on climate change issues similar to the questions that arise in our case. In the end, the B.C. Court rejected those applications brought by the proposed Intervenors. In our view, the foreign law cases were important in our appeal and we spent considerable time and resources on that, and in reviewing relevant judicial decisions from the U.S., Europe, and Australia.
Sources of funding
Of the total legal costs, the sum of $13,070 has come from generous supporters and donors. Of the supporters’ share, $7,250 was contributed by about 40 individuals through our GoFundMe site. A number of those donors were themselves arrested in early 2018 on Burnaby Mountain. The GoFundMe site also gave us a chance to see the enthusiasm and care so many people brought to this effort. We also received $820 from a private fundraising event held by a wonderful group of friends in August 2019. Two supporters who live in Surrey B.C. donated jointly the sum of $5000. Of the balance of our legal expenses, Jennifer Nathan and Lawrence Reason contributed $5000 and Diane Gooderham and I have put in $54,331.52.
To our opponents and those in industry and government who support the continued expansion Canada’s oil sands production and the LNG industry in B.C., we point out that this legal action has received not one penny of financial support from groups in the U.S. or from any organization in Canada.
We have now paid all of our legal expenses to date from these funds.
Current status of the appeal
Three months ago, in February, we decided that, for the final stage of this appeal, we would represent ourselves, without legal counsel. I will make the oral submission on behalf of the Appellants at the one-day hearing.
The original hearing date for the appeal, May 26, 2020, has been re-scheduled to July 7, 2020, due to the pandemic.
The Respondent, the Attorney General of British Columbia, filed its written argument (the Respondent’s Factum) on May 4, 2020. We filed the Appellants’ Reply on May 27, which is the final step in our written argument. We also filed on May 27 a Supplementary Appellants’ Factum, which is a relatively brief (6 ½ page) written submission addressing two foreign law decisions that are of direct relevance to our appeal. In this way, we have been able to bring to the Court’s attention some of the important foreign law decisions relating to climate change.