Climate Migration: Practical Steps for Canadian Immigration & Refugee Lawyers by Rachel Bryce

Displacement due to climate change is an inevitable outcome of the growing number of regions being rendered unlivable due to climate change. The World Bank has estimated that up to 216 million people could become internal climate migrants by 2050.

Immigration and refugee lawyers can play an important role in 1) advocating for the creation of safe, regular, and just pathways for people who cannot remain in their countries of origin or residence as a result of climate change, and 2) considering the impacts of climate change on their clients’ circumstances and how arguments related to climate change impacts could support their legal strategy.

Internal vs. Cross-border Displacement

While the majority of displacement is still projected to occur within borders rather than across borders, the impacts of climate change and related displacement are significant and widespread. Without state action and global cooperation, climate change will impede access to basic needs for hundreds of millions of people; without action, people will face starvation, homelessness, and life-threatening illnesses.

With concrete and collective action, estimated displacement may be reduced by 80 percent.

States must continue cooperating to find just solutions to the negative effects of climate change, that predominantly affect lower-income countries, including adaptation investment via the loss and damage fund established through COP27, such as infrastructure development and settlement upgrading or movement within regions and adaptive internal migration efforts.

Creation of Safe, Regular, and Just Cross-border Pathways

Concurrently, wealthy states like Canada have an opportunity to create safe, regular, and just pathways for people who cannot remain in their countries of origin or residence. In my capacity as Co-Chair of the Climate Migration Working Group with the Canadian Association of Refugee Lawyers (“CARL”), we call on Canada to rise to this challenge – fulfilling both our moral and our legal responsibilities.

CARL’s 2023 Report proposes the following:

• Carve out an exception to s. 97’s ‘personalized risk’ requirement for climate migrants under a new subsection – s. 97(c)

• Create a proactive and broad policy response, which includes:

  • updating the humanitarian and compassionate guidelines to mandate examining officers to turn their minds to the hardships caused by environmental disasters and degradation (in conjunction with training materials for officers);

  • creating a public policy class under s.25(2) of the Immigration and Refugee Protection Act (IRPA) to provide protection to climate migrants (i.e., humanitarian visas);

  • issuing temporary resident permits to climate migrants;

  • issuing ministerial instructions to removal officers to consider the risks caused by environmental disasters and degradation in the context of a s.48(2) analysis;

  • allowing resettlement to Canada, (i.e., through private sponsorship); and/or

  • implementing pilot programs as needed to test any of the above prior to requisite legislative reform.

Practical Steps for Canadian Lawyers

All lawyers in Canada can help CARL’s efforts through reviewing the 2023 Report and raising the above proposals with their Members of Parliament (“MPs”).

Immigration and refugee lawyers may also consider raising climate effects within applications. At the risk of sounding trite, it is important that we apply the right strategy for the right client. With the law not yet developed, we must consider who may fit within the incredibly narrow path for refugee protection, versus who may better fit under the newly developing climate migrant humanitarian and compassionate (“H&C”)  pathway.

Whilst practitioners and academics widely agree there exists no legal term “climate refugee”, there may be narrow pathways for individuals displaced due – in part – to negative climate effects through existing refugee and human rights law principles.

Where the effects of climate change in a country lead to new or exacerbated persecution of a person or group of persons on a protected ground (i.e. race, religion, nationality, membership in a particular social group or political opinion), an individual may have a valid claim for refugee protection pursuant to section 96 of the Immigration and Refugee Protection Act.

Where the effects of climate change lead to a personalized risk of torture, a personalized risk to the individual’s life, or a personalized risk of cruel and unusual treatment or punishment, an individual may have a valid claim for protection pursuant to section 97 of the Immigration and Refugee Protection Act.

Where neither of these specific circumstances exist, the individual may better fit the definition of a “climate migrant”. CARL defines a climate migrant as a person:

1. who is outside of their country of nationality or former habitual residence;

2. whose country of nationality or former habitual residence has been or will during their lifetime be affected by a short- or long-term environmental disaster or by environmental degradation; and

3. who, if returned, faces on account of that disaster or degradation a risk to their life, liberty, or security of their person.

Bear in mind that many individuals who migrate to other countries have multiple motivations for doing so. This phenomenon is referred to as “mixed migration”. 

Clients in Canada who attribute at least part of their reason to move to climate change may consider referencing this rationale through hardship assessments in applications for permanent residence on H&C grounds. Hardship due to climate impacts may include, but is not limited to:

• Loss of shelter/home due to climate change and inability to relocate internally;

• Increased prevalence of disease or negative health effects due to climate change (e.g. the Federal Court recognized poor air quality as a source of hardship in Arora v Canada (Citizenship and Immigration), 2023 FC 1002)

• Lack of access to clean drinking water or previously available food sources, i.e. ecosystem productivity and water availability impeded due to sea level rise

• Loss of livelihood due to climate change, i.e. desertification affecting the majority of arable land, water acidification affecting fish stock, flooding or earthquakes destroying clients’ resources/infrastructure permitting work; and/or

• Generalized violence or disruption following a climate shock, i.e. natural disaster.

Conclusion

In summary, immigration and refugee lawyers may wish to implement the following in their daily practices:

1. Add questions regarding climate change and its impacts on clients’ livelihoods to initial consultations, where appropriate.

2. Consider possible grounds for refugee protection or protected person status where the negative climate impacts connect to a ground of persecution or personalized risk to their life or risk of cruel and unusual treatment or punishment.

3. Consider including specific reference to hardship caused by climate change effects within applications for permanent residence on H&C grounds.

4. Get in touch with CARL’s Climate Migration Working Group with possible precedent cases for climate migrants or climate refugees. 

Rachel Bryce is a refugee and immigration lawyer in Toronto and the Co-Chair of the Climate Migration Working Group for the Canadian Association of Refugee Lawyers. She has researched and drafted reports on climate migration, presented at conferences and universities, and participated in interviews with media outlets across North America.

The Canadian Law Firm Climate Impact Report and What Lawyers and Law Firms Can Do, by Jennifer M. Wong

In late 2023, the University of Toronto Law Student Union (the "UTLU") published the groundbreaking Canadian Law Firm Climate Impact Report (the "Report"), calling out five of the most influential Toronto law firms for being "complicit in the climate crisis" by facilitating fossil-fuel transactions. Specifically, the Report states that energy-related transactions completed by Torys LLP, Fasken, McCarthy Tétrault LLP, Miller Thomson LLP, and Osler, Hoskin & Harcourt LLP from 2008 to and including March 2023, totalled over $618 billion. 

The Report examined litigation and transactional data from self-reported firm websites, and focused on firms that met the following four criteria:

• The largest employers of Canadian law students based on Toronto 2L summer job recruitment data collected by the independent student newspaper at the University of Toronto Faculty of Law, Ultra Vires;

• The largest overall law firms in Canada based on the number of lawyers;

• The firms with the most comprehensive websites of self-reported data; and

• Canadian home-grown firms. 

The authors of the Report note that it was subject to human error (including the limited understanding of law students as to what constitutes an energy-related business transaction), and that climate change is not solely driven by fossil fuels. 

Some parties will take issue with the methodology used by the UTLU, such as the report’s definition of complicity with the climate crisis, and whether the files sampled were representative. A confidential source at one of the offending firms told me that the cited transactions failed to paint the full picture of said firm’s fossil fuel-related work. Regardless of these points, the Report is the first of its kind and represents a huge step in ethical legal discourse. The Report demonstrates that the ethical ramifications of a legal practice are both quantifiable and measurable, and that various firms can be compared to one another. 

1. Should lawyers and law firms refuse clients on the basis of whether or not they are “exacerbating the climate crisis”?

First, there is the issue of whether law firms and individual lawyers should be refusing clients based on their alleged offences. My law school ethics course hammered home the idea that all clients, no matter how heinous their alleged or actual crimes, deserved equal representation. My instructor, Professor Allan Hutchinson, highlighted the "last lawyer in town problem" - even if one took ethical issue with representing a client, if there was no one else to represent them, one had an ethical duty to represent this client.

Practically speaking, few are under any illusion that lawyers will abandon their lucrative fossil fuel clients for the sole purpose of "divesting" themselves from fossil fuels. These clients represent billions of dollars in billings, which the Report itself recognizes. Law firms, however, have the opportunity to take on more environmentally-aligned clients. There is innovation in the private practice sphere - in 2015, Bates Wells, a firm located in London, UK implemented a client-screening process that accounts for environment and social governance (“ESG”) values. The firm is also a B Corporation, demonstrating high social and environmental performance according to the B Impact Assessment score attained by the firm. 

Bates Wells raises three important points for ethics discussions. First, the ethics of taking on certain clients can be empirically measured based on existing tools, such as ESG metrics. It is unnecessary for firms to have internal debates every time a client is screened, unless the ESG metrics flag a client as a reputation risk. Second, an ethical practice can be synonymous with economic perspectives. Skeptics of an ethical, profitable model of a law firm would say otherwise, but Bates Wells is still in business in 2024 and boasts of their innovative approach to legal practice. Third, the process of screening clients can be undertaken simultaneously with the conflict check process, which is typically automated and done prior to taking on a certain file. This eliminates the need to bog down the client intake process further than necessary. 

In addition to the idea of re-shaping a private law practice to screen clients for climate-related reputation risks, lawyers can also specifically seek to represent “greener” clients as a way to align their practice with their personal ethics. For example, West Coast Environmental Law ("WCEL"), based in Vancouver, BC, operates the Environmental Dispute Resolution Fund ("EDRF") - lawyers and experts are hired at reduced rates with the $150,000 grant fund disbursed by WCEL to represent individuals, community groups, non-profit organizations and First Nations across British Columbia who need financial help defending their communities and environment.

As of December 2023, the Law Society of BC acknowledges pro bono work as a way for lawyers to collect CPD credits. While this is a step in the right direction, the mandated 12 hours a year per lawyer also includes continuing education responsibilities. Further steps are needed to incorporate pro bono or reduced rate work into each lawyers’ practice.

Most firms use the billable target model to track lawyers' productivity and dedication to the firm. Such models usually don't incorporate work that is done pro-bono or treat reduced rate work as less valuable to the firm than full-rate work. In order to offset the simple fact that the overwhelming majority of fossil fuel companies legally outgun environmental initiatives, a re-work of the billable target model is needed. For example, such a model could credit lawyers for any time spent in service of environmental initiatives like the EDRF up to 50 hours a year. This would be a large step towards evening the playing ground for environmental organisations.

2. Can lawyers fairly be associated with their clients’ crimes in the context of a climate emergency?

Second, some lawyers may take offence with the Report conflating the "crimes" of fossil fuel companies with lawyers' and law firms' morality. Can a lawyer’s or firm’s decision to represent a certain “climate offending client” fairly be seen to reflect their personal ethics? As my memory of Professor Hutchinson would say, a lawyer is a neutral advocate - zealous, perhaps, but admirable nonetheless for their dedication to representing their client's best interests. The example always used is that of the appalling alleged serial killer, a person whose crimes fly in the face of human decency, but who is nonetheless deserving of full legal representation.

The answer to whether lawyers and law firms are morally complicit in the climate crisis is simple - of course we are. In addition to the unavoidable personal contribution of greenhouse gases into the environment, we are steeped in a legal system and operate within a society which struggle to address climate change. So what does the Report reveal? Does it truly hold a mirror up to the legal profession’s role in facilitating climate change or can we all go home with a clean ethical bill of health because we are “neutral advocates”? 

In my opinion, the Report raises the question of how lawyers choose to exercise their personal ethics in the course of their professional practice. All lawyers are required to be competent, including climate competency, and to meet the minimum bar of the professional ethics standards as outlined by the law societies of various jurisdictions. However, the Report highlights the gap that this ethical regime leaves in an extractive and capitalist society. The Report calls on law students, lawyers, firms, and clients to fill this gap by exercising their personal ethics in their engagement with the legal profession. The conclusions and recommendations of the Report include a call to action for: 

1. Law students - to consider how their employment at certain firms might exacerbate the climate crisis; 

2. Offending law firms - to stop representing fossil fuel clients who are contributing to and profiting from the climate crisis; and  

3. Clients -  to consider whether they want to be represented by a law firm which also represents fossil fuel companies. 

Fossil fuel companies have been able to buy the very best legal representation money can buy for decades. This is why the offending law firms are all firms a first-year law student would die to work for. From 1L, we are told that working for a big firm is the best way to get our feet wet in a variety of practice areas, to taste each area before we settle down and specialise. In reality, what happens is that we gain practice in commercially-viable practice areas with clients that are able and willing to pay (read: fossil fuel advocacy and other corporate interests), and causes "brain drain" for non-profits and other organisations that could use bright, enthusiastic legal representation. At best, social justice files are for when an associate has spare time, notwithstanding the 2,000 billable hour target set by upper management.

In reality, firms can and should invest more resources in diversifying their client bases. Having a portfolio of many clients builds one's professional network, leading to more work from different sources. A broad client base also provides a firm more economic stability - if one client leaves that firm, the sting won't be felt nearly as much as a firm who depends on only a few large clients to keep it afloat. From a social justice perspective, acting for both sides means that a firm's intellectual capital won't be spent solely on furthering the interests of the fossil fuel industry. Of course, there are bound to be conflicts of interest in any given legal practice, but this should not affect a majority of prospective clients. 

3. Conclusion

The debate as to whether law firms and individual lawyers should be refusing clients based on their alleged offences offers the opportunity to examine the billable target model utilised by most firms. A revamp of the billable target model is needed in order to incorporate pro bono and reduced rate work, bringing lawyers recognition and career success in representing environmental non-profits, First Nations, and other environmentally-minded parties. Further, conflict checks should also include ethical concerns which are quantifiable and measurable.

As mentioned, the issue as to whether lawyers should be associated with their clients’ crimes obscures the fact that firms would do well to invest resources in diversifying their client bases to include “greener” clients. If lawyers and law firms are to be advocates for meaningful environmental change, this is going to require conscious effort from both individual lawyers and firms to ensure that the structures we use value efforts to combat the climate crisis and represent like-minded clients. 

L4CJ has a new Board of Directors

Lawyers for Climate Justice is now incorporated as a federal not-for-profit corporation, and its inaugural Board of Directors met for the first time in September. These nine individuals from across Canada have a breadth of knowledge, and represent diverse practice areas. Check out our Board page to learn about them! We thank everyone who applied to be a Board member; we were heartened to have received applications from so many dedicated, exceptional candidates.

L4CJ Marches for the Climate

On September 15, 2023 Lawyers for Climate Justice (L4CJ) joined the global march to end fossil fuels. A contingent of L4CJ lawyers met in Victoria and marched to #endfossilfuels and demand a #fastfairforever transition.

Join Our Board of Directors!

Lawyers for Climate Justice (L4CJ) is seeking practicing and non-practicing lawyers with a wide range of experience and expertise – plus a passion for climate justice – to join our Board of Directors.

Background

L4CJ is a multi-disciplinary group of lawyers that is focused on advancing climate justice within the legal profession in Canada. Our main goals are to: 

• Engage with the legal profession in Canada to build climate competency in recognition of the wide-ranging implications of climate change for the rule of law, for justice, and for justice system actors, by conducting educational and informational events and disseminating climate change information within the legal system;

• Strive for climate competency and resiliency in the legal profession in Canada through education by and cooperation with law schools and law societies across Canada; and

• Assist those who work within the justice system to recognize and adapt to climate change and its justice implications, including the links between adaptation, decarbonization, decolonization, and equality, by providing information and resources. 

L4CJ is governed by a Board of Directors. We are currently looking to fill up to three open volunteer positions. The Board provides governance, leadership, and administrative oversight and plays a pivotal role in the functioning of the organization.

Qualifications

In particular, we are seeking the following qualifications, skills, and experience:

• Member relations;

• Website Development; 

• Accounting;

• Search Engine Optimization and communications;

• Organizational management; and

• Board governance experience.

Even if your skills and experience do not fall within these categories, we welcome and encourage you to submit an expression of interest. Enthusiasm, a willingness to learn, and the energy to take on new initiatives are also very valuable.

Expectations 

L4CJ expects its Directors to commit to the following:

1. Attend and participate in regular Board meetings (held approximately every two months) over a two-year term;

2. Take on additional Board roles, such as secretary or treasurer, and undertake those duties in a timely manner;

3. Assist in work between meetings, including preparing meeting agendas and background documents/research and responding to emails in a timely way;

4. Use your personal and professional skills, relationships, and experience to advance the interests of L4CJ; and

5. Represent L4CJ within the legal community and your spheres of influence. 

Diversity of Experience

The Board of Directors is committed to recruiting and supporting skilled candidates for the Board that reflect the diversity of the legal profession in Canada. We encourage applications from women, persons of colour, persons with disabilities, and members of Indigenous, 2SLGBTQI+, cultural, religious, and linguistic communities. At this time, we are only accepting applications from lawyers who are called to the bar in a Canadian province or territory. 

To Apply

1. Please send an expression of interest (maximum 300 words) by June 30, 2023 to christie.a.mcleod@gmail.com. This is a space for you to tell us a little bit about who you are, why you are interested in joining the L4CJ Board, and about your background and experiences.  

   Please do not include a resume or CV.

2. Depending on the level of interest, L4CJ may schedule an interview with potential candidates and its current Board members.

Please note that based on the information you submit, as well as the interview, the current Directors will develop a slate of its endorsed candidates to provide to the members, who will vote in new Board members by majority vote of those members who participate.

If you have any questions about the application process or the Board itself, please contact christie.a.mcleod@gmail.com. 

The Impacts of Climate Change on Labour Law & The Role of Labour Lawyers In Responding to the Climate Crisis, by Sydney Lang

In light of growing concerns around the climate crisis evidenced in the latest IPCC report, it is crucial that labour lawyers develop a climate-competent practice. Climate change will have an impact on workplace health and safety, job security, and pensions, among other things. Labour lawyers can play an important role in advising and supporting their clients on climate-related changes to their members’ workplaces.

What are the impacts of climate change on workers and the future of work?

Climate change presents a threat to the enjoyment of basic human rights for everyone, and it affects already vulnerable people “first and worst.” The Office of the United Nations High Commissioner for Human Rights has observed that “the climate crisis is a human rights crisis.”

Climate change will continue to have a disproportionate impact on racialized and Indigenous communities. Dr. Ingrid Waldron has noted that in Canada, “Indigenous and African Nova Scotian communities have been the most impacted by environmental racism.” Environmental racism impacts workers: the Coalition of Black Trade Unionists and the Adapting Canadian Work and Workplaces to Respond to Climate Change (ACW) project have been leading the “Green Is Not White” research initiative which calls for non-toxic workplaces and “green collar jobs” for immigrant workers.

Climate change has occupational health & safety consequences. Rapidly rising temperatures increase the risk of heat stroke, severe dehydration, exhaustion, and can even be life-threatening, which has a disproportionate impact on those who work outdoors. Chemicals evaporate faster at high temperatures, increasing the risk of poisoning due to inhalation of chemicals in the workplace. High temperatures can also worsen air quality which exacerbates respiratory illness and cardiovascular diseases. These risks may be compounded for migrant farm workers. Climate change causes more extreme weather events including violent storms, floods, and landslides, as well as forest fires due to drought. These events have a significant impact on the occupational health and safety of first responders such as firefighters responding to increasing occurrences of wildfires and nurses and paramedics responding to the victims of extreme weather events amidst potential infrastructure failures.

Many industries are facing increased instability and impacts on job security as a result of climate change and the transition away from fossil fuels, including the mining, oil and gas, automobile, and manufacturing industries. “Climate change bankruptcy”, bankruptcy caused, in part, by climate-related incidents, may be a new reality that employers will need to mitigate. For example, PG&E was facing $30 billion in potential liabilities in 2019 following a series of wildfires, made more likely by climate change, connected to its equipment. Climate-related dangers, such as wildfires, extreme heat, flooding, drought, and storms, will continue to have an impact on business operations and liabilities. Oil-reliant industries, and those known for their “booms and busts,” may become increasingly unstable.

What can labour lawyers do about it?

1. Address the impacts of climate change in the workplace through green collective bargaining. “Greening” clauses can address commuting, extreme weather, green procurement, training, & workplace committees. The ACW has compiled a collection of such clauses from Canadian collective agreements in a database to support unions who want to fight climate change by bringing environmental issues into their collective bargaining priorities. Labour lawyers can advise their clients about these opportunities to  address the climate crisis through their contracts.

2. Support unions in educating their members and trustee representatives on how their pension fund “invests their retirement capital” and demand more transparent climate-related disclosures. In its legal backgrounder on duties to manage climate change, Ecojustice highlights that while “most large public sector pension administrators and investment managers have acknowledged and started to assess climate-related risks, few have set targets or established credible plans to align with the emissions reductions needed to prevent catastrophic climate change.”

3. Support and contribute to union research on the impact of climate change on work & how their members’ work itself can contribute to fighting climate change. Several unions have released research on the impact of climate change on work, for example, the “Climate Change and Just Transition” report published by the ACW and the United Steelworkers in 2018. Others provided submissions for the 2021 Federal Just Transition Consultations, including Unifor who recommended the federal government generate decent unionized jobs in the green economy. The Hospital Employees’ Union has advocated for climate action at the provincial level.

4. Join groups like Lawyers for Climate Justice that have called on bar associations to adopt a definition of climate justice and urge lawyers to take an active role in addressing climate change. Lawyers can also support student and worker-led initiatives, such as Law Students for Climate Accountability, that have published reports and called on law firms to recognize their role in exacerbating climate change.

5. Consider the impacts of climate change on all areas of your practice and seek out continuing professional education opportunities. The Honourable Justice Brian J Preston SC in New South Wales, Australia published an article on Climate Conscious Lawyering where he discusses the ethical dimensions of legal practice: “ethical thinking about climate change and its consequences should pervade all aspects of legal practice.” Labour lawyers can develop policies that minimize the climate impacts of their practice and support their clients in identifying and responding to climate related risks. 

6. As the economy transitions, jobs in the more heavily-unionized fossil fuels sector may transition into non-unionized jobs in emerging industries, such as wind and solar, or to other lower-carbon sectors. Labour advocates have pointed out that “green jobs” must also be unionized jobs to ensure that workers have fair and safe working conditions. This will require a large effort by the labour movement and organizers, and support from labour lawyers, to ensure that workplaces in emerging sectors are unionized.

7. Labour lawyers, unions and their members have an important role to play in speaking out about the impact of climate change on workers and advocating for community and political action to both mitigate these risks and prevent further warming.

Sydney Lang is a union-side labour lawyer at Cavalluzzo LLP and a climate and mining justice organizer in Toronto. She has worked on campaigns and research projects related to fossil fuel divestment, corporate accountability in the Canadian mining industry, and a just transition.

We are looking to establish a network of labour lawyers interesting in advocating and sharing resources around climate change. If you are interested in getting involved, please contact Sydney Lang (slang@cavalluzzo.com), Jodie Gauthier (jgauthier@blackgropper.com), or Michael Thorburn (mhft@stanford.edu).