This post is for Polly Higgins.
International Human Rights Court Recommends Fracking Ban Press Release by Dr. Tom Kerns, April 4, 2019, Permanent Peoples’ Tribunal Session on Human Rights, Fracking and Climate Change.
The Permanent Peoples’ Tribunal has just released its Advisory Opinion, recommending a worldwide ban on hydraulic fracturing, the extreme oil and gas extraction technique known as ‘fracking.’ The materials, and infrastructure of fracking inherently and necessarily violate human rights, the court decided in a Special Session on Human Rights, Fracking and Climate Change. The rights violated include the rights to life, to water, to full information and participation, and especially the rights of indigenous people, women and children.
Governments have an affirmative obligation to protect the rights of their citizens, according to internationally recognized human-rights Covenants and Declarations. When governments fail to adequately regulate harmful oil and gas industry practices, they fail to meet their human rights obligations. And when governments fail to take measures to prevent the advance of climate change and its impacts on the rights to life, liberty, and security, they are failing to meet their internationally recognized human-rights obligations. Widespread government failures have created a global “axis of betrayal,” according to the international court, in which governments and fossil-fuel industries collude – at great cost to people and the planet – in human-rights violations to their mutual profit.
The Special Session was conducted for five days in May of 2018. Four Preliminary tribunals had been conducted in the months prior to the Plenary hearings. The Pre-tribunals included rich oral testimony from Australia, the US states of Ohio and Virginia, and other places, supporting documentation, and findings from those Pre-tribunal’s local judges. All materials and reports from those Pre-tribunal hearings, all the Plenary session’s oral testimony and arguments, all Plenary session reports, amicus curiae briefs and full documentation are available, in both video and text formats, on the website for the Permanent Peoples’ Tribunal Session on Human Rights, Fracking and Climate Change.
[The Opinion] is also available on the website for the PPT Session on Human Rights, Fracking and Climate Change and on the Jurisprudence page of the Permanent Peoples’ Tribunal website at their headquarters in Rome.
Tom Kerns for the PPT Steering Group
ps And one more treat today: Kathleen Dean Moore’s reflections, recorded right after the conclusion of the Tribunal’s Plenary Session last May. You can hear, in Miranda Perrone’s interview with Kathleen, her remarks on the crucial importance of taking a human rights approach to climate change and fracking.
Jessica Ernst’s 2018 submission to the panel:
Dear Dr. Kerns and the Permanent Peoples’ Tribunal on Human Rights, Fracking and Climate Change.
Thank you for your emails. Sorry it has taken me so long to write you. I’ve thought long on this.
My lawsuit has so far resulted in endless delays and set backs by the courts, and setting terrible legal precedent which may harm many. I knew when I started my lawsuit in 2007 that our courts would never let me get anywhere – the legal club has been carefully set up to protect the oil and gas industry and its enabling regulators.
My lawyers advised it will cost me 10-12 years (we are already in year 11, with a trial nowhere in sight – even if we were ready to ask for a date, they are being set three years from now) and over a million dollars of my savings (and sacrificing my home) to perhaps win $20,000.00 at best (yes, you read that right), with the courts likely ordering me to also pay the legal costs of the defendants (which will bankrupt me) because I refuse to gag and settle. (In my professional view, gag orders for industry’s life and community threatening contamination of a vital public resource like water must be made illegal. AER’s outside counsel, Glenn Solomon, explains too well, how gag orders work to let oil companies keep polluting, “down the street.” https://www.youtube.com/watch?v=LKuCR3hHmf4)
I knew all this and expected my lawsuit to be dreadful, but I never expected the judges to be so obvious in their bias against the public interest and punishing me for trying to protect it (when NGOs lose lawsuits, they are usually not ordered to pay costs because their case was in the public interest. My case is clearly in the public interest, yet every loss, the judges have ordered me to pay the regulator’s costs even at the Supreme Court of Canada).
Main stream environmental groups (they get large donations from the oil and gas industry, our regulators and governments) have worked hard over the years to undo my work trying to warn people globally about the harms and risks caused by hydraulic fracturing. They’ve succeeded in most jurisdictions except where there is still democracy and people are willing to listen, wait and watch the evidence pile up proving how harmful and polluting frac’ing is.
In my experience, professionally and personally living frac’d, ordinary civil citizens don’t have human rights when it comes to being harmed by the oil and gas industry in Canada.
And we don’t have access to justice either, as proven by the Supreme Court of Canada in their intentionally dishonest (reference listed below) ruling in Ernst vs AER where the judges protect the law-violating regulator and damage our Charter (https://deansblog.osgoode.yorku.ca/2017/01/damaging-the-charter-ernst-v-alberta-energy-regulator/).
The Alberta Court of Queen’s Bench has shown bias in every proceeding so far, protecting the regulators and Encana in my case, and in the future, by giving Encana and the Alberta government their chosen case management judge. The judges on the Court of Appeal of Alberta were shockingly rude, patronizing, and allowed Glenn Solomon, the lawyer for the AER, to interrupt and loudly yell out during my lawyer’s presentation of arguments calling him a liar. They said such ridiculous things about our Charter of Rights and Freedoms and my case, I could not believe I was in a Canadian courtroom.
I read the materials you advised me to read for the Tribunal. None of it relates to my case. I have lived frac’d now for 15 years and trying to access the legal system for 11 of those, going nowhere but backwards financially, physically, emotionally, spiritually, legally. Our regulators give industry more and more fresh water with which to frac, and deregulating to enable the harms while lying to the public, saying they are increasing regulations to make frac’ing safe.
Ex Prime Minister Steve Harper wouldn’t even give Canadians the right to safe water.
The “rights” our laws say we have in Canada are useless trying to access justice for water lost or polluted by frac’ing, or health harm suffered by families (the Diana Daunheimer case against Angle/Bellatrix was ordered settled last year by the same case management judge as in my case).
….I list below a few references for further reading:
1. Investigative journalist Andrew Nikiforuk’s book on the history and science of hydraulic fracturing:
Slick Water: Fracking and One Insider’s Stand Against the World’s Most Powerful Industry Hardcover – Published by Greystone Books, Sep 18 2015.
2016 09 12: Andrew Nikiforuk wins USA National Science in Society Award for Slick Water. “NASW’s Science in Society Journalism Awards honor and encourage outstanding investigative and interpretive reporting about the sciences and their impact for good and ill.”
The judges said, “Here’s an excellent book with a strong protagonist who carries the narrative and turns a potentially wonky and bureaucratic matter into a page-turner. The author is facile with the science, and also with the story telling.”
They added, “We found it a compelling read with clear, crisp writing. We were struck not just with the main character’s amazing persistence in pursuing justice against all odds, but also the author’s persistence as he nailed down the details. We came away inspired.”
The final judging committee consisted of Thomas Hayden (Stanford University), Martha Mendoza (Associated Press) and Gene Russo (Proceedings of the National Academy of Sciences).
2. My June 2013 gas migration paper, written simply with easy access to references for ordinary citizens to help them protect their loved ones, communities and water from frac’ing, and to start uncovering some of the cover-ups: Brief review of threats to Canada’s groundwater from the oil and gas industry’s methane migration and hydraulic fracturing
French Translation by Amie du Richelieu, June 16, 2013
3. Jessica Ernst Open Letter to Chief Justice Beverley McLachlin Regarding False and Seriously Damaging Statements in Justice Rosalie Abella’s Supreme Court of Canada Ruling, Ernst v AER, January 25, 2017h
The Supreme Court of Canada’s ruling: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16325/index.do
The dishonest statement by Justice Rosalie Abella (Global Jurist of the Year in 2017, the year the ruling was released in my case) was called out by J McLachlin and three other judges in their dissent ruling in my case, but only the defamatory statement by J Abella was repeated in the court’s summary sent to Canadian media. Media published the lie. The smear worked, few are interested in my case anymore.
4. My talk in Malton, North Yorkshire, UK last October. It sums things up.
5. Osgoode Hall Law School Dean Lorne Sossin’s CV and Damaging the Charter: Ernst v. Alberta Energy Regulator. Dean Sossin is stepping down from this position effective April 30, 2018 (https://hennickcentre.ca/news/dean-sossin-step-down-spring-2018/). [December 17, 2018, he was appointed by the Canadian government to serve as judge of the Superior Court of Justice of Ontario]
In conclusion, I think a submission from me about my case will only bring harm to the credibility of the Tribunal’s ruling. Authorities, including our not so honest or integral judges will dismiss it if I have any part in it. Sad, but true. This is the main reason why I have taken so long to get back to you; this has been a tough decision to make. …
I will be following the Tribunal closely. In my experience, it is much more important than any “real” court or judgement on frac’ing in Canada. [Emphasis added]
“If there is magic on this planet, it is contained in water.”
– Loren Eisely, The Immense Journey, originally published in 1957 (the year I was born).
[Refer also to:
Law of Nature and the world-changing work of Polly Higgins by George Monbiot, 30th March 2019, published March 28, 2019 in The Guardian
Those who destroy the living world should be charged with the international crime of ecocide
Why do we wait until someone has passed away before we say how much we honour them? I believe we should overcome our embarrassment, and say it while they are with us. In this spirit, I want to tell you about the world-changing work of Polly Higgins.
She is a barrister who has devoted her life to creating an international crime of ecocide. This means serious damage or destruction of the natural world and the Earth’s systems. It would make those who commission it – such as chief executives and government ministers – individually and criminally liable for the harm they do to others, while creating a legal duty of care for life on Earth.
I believe it would change everything. It would radically shift the balance of power, forcing anyone contemplating large-scale vandalism to ask themselves, “will I end up in the Hague for this?”. It could make the difference between a habitable and an uninhabitable planet.
There are currently no effective safeguards preventing a few powerful people, companies or states from wreaking havoc for the sake of profit or power. Though their actions might lead to the death of millions, they know they can’t be touched. Their impunity, as they engage in potential mass murder, reveals a gaping hole in international law.
Last week, for example, the research group Influence Map revealed that the world’s five biggest publicly-listed oil and gas companies, led by BP and Shell, are spending nearly $200m a year lobbying to delay efforts to prevent climate breakdown. BP has successfully lobbied the Trump government to overturn laws passed by the Obama administration to prevent companies from releasing methane – a powerful greenhouse gas – into the atmosphere. The result – the equivalent of another 50 million tonnes of CO2 over the next five years – is to push us faster towards a hothouse Earth.
Hundreds of dead dolphins are currently washing up on French beaches, often with horrendous injuries. Why? Because trawler companies fishing for seabass are failing to take basic precautions to prevent them from being caught. The dolphins either drown in the nets or, when pulled up wounded, are stabbed to death (to make them sink) by the fishermen. For a marginal increase in profits, the trawler companies could be driving common dolphins towards regional extinction.
In West Papua, which is illegally occupied by Indonesia, an international consortium intends to clear, without indigenous people’s consent, 4000km2 (the size of Somerset) of stunning rainforest, to plant oil palm. Its Tanah Merah project is ripping a hole in the largest expanse of pristine forest left in Asia, swarming with species found nowhere else. According to an investigation by Mongabay, if the scheme continues, it will produce as much greenhouse gas every year as the state of Virginia.
When governments collaborate (as in all these cases they do), how can such atrocities be prevented? Citizens can pursue civil suits, if they can find the money and the time, but the worst a company will face is a fine or compensation payments. None of its executives are prosecuted, though they may profit enormously from murderous destruction. They can continue their assaults on the living planet.
Suits against governments, such as the successful case against the Dutch state, seeking a legal order to speed up its reduction of greenhouse gases, may be more productive, but only when national (or European) law permits, and when the government is prepared to abide by it. Otherwise, at international summits, where the perpetrators share platforms with the states that should hold them to account, we ask them nicely not to slaughter our children. These crimes against humanity should not be matters for negotiation, but for prosecution.
Until 1996, drafts of the Rome Statute, that lists international crimes against humanity, included the crime of ecocide. But it was dropped at a late stage of drafting at the behest of three states: the UK, France, and the Netherlands. Ecocide looked like a lost cause, until Polly Higgins took it up ten years ago.
She gave up her income and sold her house to finance this campaign on behalf of all of us. She has drafted model laws to show what the crime of ecocide would look like, published two books on the subject, and, often against furious opposition, presented her proposals at international meetings. The Earth Protectors group she founded seeks to crowdfund the campaign. Recently she has been working with Vanuatu with a view to tabling an amendment to the Rome Statute, introducing the missing law.
Last week, Polly was diagnosed, at the age of 50,with an aggressive cancer that has already spread through much of her body. The doctors have told her she has six weeks to live. Given her determination, and the support of those around her, I expect her to defy the prediction, that she has met with amazing fortitude. “If this is my time to go,” she told me, “my legal team will continue undeterred. But there are millions who care so much and feel so powerless about the future, and I would love to see them begin to understand the power of this one simple law to protect the Earth, to realise it’s possible, even straightforward. I wish I could live to see a million Earth Protectors standing for it – because I believe they will.”
She has started something that will not end here. It could, with our support, do for all life on Earth what the criminalisation of genocide has done for vulnerable minorities: provide protection where none existed before. Let it become her legacy. [Emphasis added.]
Government of Canada names Lorne Sossin in judicial appointments in province of Ontario by York University, December 17, 2018
Osgoode Hall Law School Professor Lorne Sossin will be leaving York University to serve the Government of Canada as a judge of the Superior Court of Justice of Ontario in Toronto. Sossin’s appointment was announced Dec. 13 by Minister of Justice and Attorney General of Canada Jody Wilson-Raybould.
The appointment was made under the new judicial application process introduced on Oct. 20, 2016, which emphasizes transparency, merit and diversity, and will continue to ensure the appointment of jurists who meet the highest standards of excellence and integrity.
Sossin, a longtime faculty member at Osgoode Hall Law School, replaces Justice E.M. Stewart, who elected to become a supernumerary judge effective Sept. 26.
Earlier this year, Sossin stepped down from his post as dean of Osgoode, which he held since 2010. As dean, Sossin pursued initiatives for accessibility in legal education, the expansion of legal clinics and experiential learning, community engagement and reconciliation with Indigenous Peoples.
“Lorne has made an enormous contribution to legal education generally and to the Osgoode-York community in particular,” said Mary Condon, dean (interim) of Osgoode Hall Law School. “We are going to miss his inspiring leadership, including on Indigenous issues, keen legal mind, inclusiveness and wonderful optimism. We wish him all the best in this exciting new chapter of his career and hope that he will stay in touch.”
Prior to his appointment as dean, he was a professor with the Faculty of Law at the University of Toronto (2002-10). He is a former associate dean of the University of Toronto (2004-07) and served as the inaugural director of the Centre for the Legal Profession (2008-10). Previously (1997-2002), he was a faculty member at Osgoode Hall Law School and in the Department of Political Science at York University.
His teaching interests span administrative and constitutional law, the regulation of professions, civil litigation, public policy and the judicial process.
After graduating from Osgoode Hall Law School in 1992, Sossin was a law clerk to former chief justice Antonio Lamer of the Supreme Court of Canada, a former associate in law at Columbia Law School and a former litigation lawyer with the firm of Borden & Elliot (now Borden Ladner Gervais LLP).
He was admitted to the Ontario bar in 1996, and holds doctorates in political science from the University of Toronto (1993) and in law from Columbia University (1999).
A prolific writer, Sossin is the author, co-author, editor or co-editor of 12 books and more than 100 articles and book chapters across a wide variety of legal fields, including administrative and constitutional law, legal process, legal ethics and civil litigation. He was the recipient of the 2012 David Mundell Medal for excellence in legal writing and was twice selected as one of Canadian Lawyer’s Top 25 Most Influential Lawyers.
Sossin has contributed as a board member to numerous organizations, including the National Judicial Institute, the Law Foundation of Ontario and the Law Commission of Ontario. He also served as the vice-chair of the Ontario Health Professions Appeal & Review Board and the Health Services Appeal & Review Board, and as the integrity commissioner and the open meeting investigator for the City of Toronto. Sossin has been active in several community organizations, including as Chair of Reena’s Board of Directors.
“Teachers, mentors, colleagues and friends here have enriched my experiences in the classroom, in scholarship, in the life of the University and in my life outside the University in more ways than I can count,” said Sossin. “While I am looking forward to the adventures to come, I wanted to express how incredibly lucky I have been to be a part of the Osgoode and York community.”
Federal judicial appointments are made by the governor general, acting on the advice of the federal cabinet and recommendations from the minister of justice. ]