ROUNDTABLE: CLIMATE DEFENDERS AND THE NECESSITY DEFENCE

Centre for the Law and the Environment Assistant

Mar 13, 2023

Social media card announcing the Necessity Defence Panel

Facing an increasingly severe climate emergency and a rapidly closing window for collective action to avert the most catastrophic effects of global heating, countless individuals around the world find themselves with no choice but to engage in non-violent direct action in defence of the climate system and the human and other beings whose lives depend on it, and in defence of the Indigenous peoples whose lands, air and waters are sacrificed to prop up fossil fuel-dependent extractivist economies.

These individuals face increasingly draconian laws and increasingly aggressive enforcement tactics by industry, police and prosecutors. Many of them, when facing criminal prosecutions for trespass, nuisance, property damage or violation of civil injunctions awarded to private companies, have tried to invoke the ancient common law defence of necessity to excuse non-violent acts of civil disobedience that might otherwise be unlawful. A few have succeeded; most have failed.

A handful of courts in the United States have acknowledged that the necessity defence should, in principle, be available to climate defenders if legal avenues for protest are ineffective, and have allowed such defendants to put the necessity defence to the jury. So far, however, no climate defendant has been acquitted on this basis.

Canadian courts have been less receptive to the necessity defence in cases involving environmental or Indigenous land defenders. British Columbia courts have been especially hostile, refusing to allow anti-pipeline protesters even to raise the defence. The BC Court of Appeal has ruled that environmental defenders have many alternatives to breaking the law, including simply doing nothing as the climate emergency passes a point of no return. It has also ruled that the necessity defence is never available to avoid legally authorized harm, such as a tar sands pipeline or clearcut logging of old growth forest.

The Centre for Law & the Environment (CLE) at the University of British Columbia hosted a roundtable discussion of experiences with and future prospects for the necessity defence for environmental and climate activists charged with crimes in Canada and the US. The discussion featured a Canadian climate defender and retired lawyer who was barred from raising the necessity defence in his trial for criminal contempt of an injunction against protesting the Trans Mountain Expansion pipeline; a lawyer who represented Greenpeace Canada in its unsuccessful bid to intervene in the Trans Mountain case; the executive director and managing attorney of the Climate Defense Project, which has represented climate defendants in numerous criminal cases in the US; and the co-director of a powerful series of documentary films on necessity, climate activism and Indigenous land defence.

WATCH A RECORDING OF THE SESSION

ABOUT THE PANELISTS

David Gooderham

David Gooderham practiced law in Vancouver for thirty-five years in civil litigation. He was called to the Bar in British Columbia in 1975 and retired at the end of 2012. He attended the University of Toronto, taking an honours degree in economics and political science and an LLB from the University of Toronto Law School in 1970. His litigation practice was focused on defamation law, representing publishers and media, and a broad range of defence work on behalf of local governments, school boards, and other public bodies.

For the past ten years, he has been examining the environmental review processes and reports that the Federal Government has used to justify the ongoing expansion of Canada’s oil production. He has documented the repeated failures and refusals of the government, and its energy agency the CER (formerly known as the National Energy Board), to consider the available evidence of climate science and to assess the global emissions implications of plans to continue increasing Canada’s oil production to 2030 and 2040. His writings have included submissions to Environment Canada in June 2016 critiquing the draft report Review of Greenhous Gas Emissions Estimates for the TMX pipeline expansion and to the Ministerial Panel for the Trans Mountain Pipeline in August 2016. In March 2022 he was invited to testify before the Parliamentary Standing Committee on Environment and Sustainable Development regarding the proposed “cap” on “upstream emissions” released by oil extraction activities in Canada and proposed subsidies to support the deployment of CCUS at oil sands production sites in Alberta, which, as government reports acknowledge, will be accompanied by the continued growth of Canada’s oil production and exports.

In August 2018 he was arrested for peacefully disobeying an injunction at the entrance to the Marine Terminal for TMX pipeline expansion. Charged with criminal contempt of court, on November 22, 2018, he filed an application (with co-defendant Jennifer Nathan) in the B.C. Supreme Court to raise the common law defence of necessity. The application was dismissed by the trial judge, and an appeal of that decision was dismissed to the B.C. Court of Appeal on September 21, 2020.

Jan Haaken | Portland State University

Jan is professor emeritus of psychology at Portland State University, a clinical psychologist, and an award-winning documentary filmmaker. Prior to the Necessity films, Haaken directed six feature films, including Our Bodies Our Doctors (2019), Milk Men: The Life and Times of Dairy Farmers (2016), Mind Zone: Therapists Behind the Front Lines (2014), Guilty Except for Insanity (2008), Queens of Heart: Community Therapists in Drag (2006) and Diamonds, Guns and Rice (2005). Her films focus on stressful jobs performed in liminal spaces and on the social margins. From refugee camps, war zones, psychiatric hospitals and abortion clinics to dairy farms, drag bars and hip-hop clubs, Haaken’s documentaries focus on people working in various border zones and their insights on the world around them

Alex Marquardt | Climate Defense Project

Alex is the Executive Director of Climate Defense Project (CDP), a legal nonprofit that advises and supports the climate movement primarily in the United States. CDP has been a leading advocate of the climate necessity defense — also known as the choice-of-evils defense — in which nonviolent protesters have argued for the legal justification of minor lawbreaking to address the climate emergency. Since 2019, CDP has also assisted a growing number of student-led campaigns in filing complaints that ask U.S. state attorneys general to investigate whether university-held fossil fuel investments violate charitable fiduciary laws. CDP’s work has received mention in Forbes, The New Yorker, The Nation, and other publications. In 2018, psychologist and documentary filmmaker Jan Haaken made a short film in which CDP’s work is featured, Necessity: Oil, Water, and Climate Resistance. Alex has written about the climate necessity defense, fossil fuel divestment, and climate justice in The Nation, Fast Company, The Hill, and The Boston Globe. He has been interviewed on Portland-based radio station KBOO and has given presentations at Harvard Law School, the Climate Litigation Accelerator at NYU School of Law, the U.C. Berkeley College of Environmental Design, the Public Interest Environmental Law Conference, and the Washington State Bar Association.