Mutual Interests in Combating Climate Change at COP 21 in Paris: We’re In This TogetherOctober 30, 2015
Corporations, First Nations, Inuit in Canada’s Arctic, and individual Canadians all have an interest in ensuring Canada plays a positive role in the coming international negotiations at the 2015 United Nations Climate Change Conference, (“COP 21”), being held in Paris, France from November 30 to December 11. While all face increasing environmental instability and rising costs of food and other goods affected by rising global temperatures, some such as Inuit in Canada’s Arctic may lose their homes, communities and traditional ways of life due to climate change. Corporations on the other hand may face fines, increased costs for due diligence measures, and potential jail time for company officers and directors for regulatory offenses that may result from foreseeable impacts of climate change.
In 2013 the World Bank released a report cautioning that the anticipated rise of global temperatures by 2 degrees Celsius, which I note is considered a best case scenario, will cause “widespread food shortages, unprecedented heat-waves, and more intense cyclones”, and “greatly harm the lives and hopes of individuals and families who have had little hand in raising the Earth’s temperature.” The report noted there is a 40% chance of global warming exceeding 4 degrees Celsius by 2100, which could in turn lead to continued rises in temperature as the global climate destabilizes. Global sea levels are expected to rise less than 70 cm if global temperatures rise no more than 2 degrees, whereas they may rise more than 100 cm if the temperature rises by 4 degrees. It is also anticipated that people in low-lying regions and the Arctic may be displaced as a direct result of climate change. Inuit and their traditional food supplies rely on the existence of solid ice during the winter, and a warming climate will affect ice quality, abundance of wildlife, and the safety of hunters who venture out onto the ice.
For corporations undertaking regulated activities that may be affected by a changing climate, the now inevitable impacts of climate change will result in increased costs and regulatory liabilities. Specifically, with climate change affecting weather, companies required to undertake due diligence in carrying out their operations will need to plan for extremes of weather as foreseeable occurrences. In a recent Ontario Court of Justice Decision, R v Unimin Canada Ltd., 2015 CarswellOnt 11640, a company operating an open-pit mine site and processing facilities, that had an approved Dust Management Plan, was convicted of failing to take all necessary steps to prevent emissions of its tailings when winds picked up the tailings as airborne dust and blew them away from its property and into the natural environment. The company took extensive measures to prevent dust emissions, but the unusually warm winter and “abnormally warm and dry spring and summer” meant its ordinary measures were inadequate to prevent the emissions. The company was sentenced to a fine of $325,000 and a victim fine surcharge, which was in addition to the $760,000 the company had already spent to enhance its Dust Management Plan to prevent further releases of tailings. Also remember that under most Canadian environmental and occupational health and safety laws, officers and directors may also be imprisoned if they directed, authorized or participated in the corporation’s commission of an offence, meaning people whose responsibility it is to ensure compliance with relevant laws must ensure that their planning can adapt to abnormal conditions and events caused by climate change.
On October 30, 2015, the United Nations Framework Convention on Climate Change Secretariat released a hopeful new report that nations may be able to reduce global emissions and limit the projected rise in global temperatures to approximately 2 degrees Celsius above pre-industrial levels without harming economic development. The report notes nations that are in the process of decoupling their greenhouse gas emissions from their economic growth, meaning that their economies may continue to grow while emissions decline. The report comes one month before the COP 21. The specific objective of COP 21 is to reach “or the first time, a universal, legally binding agreement that will enable us to combat climate change effectively and boost the transition towards resilient, low-carbon societies and economies.” For the sake of all Canadians, First Nations, Inuit, corporations and their officers and directors, let’s all hope the Government of Canada and the rest of the international community reach the binding agreement they’re aiming for.
Shane R. Hopkins-Utter, B.A. (Hon), M.A., J.D.*
*Practicing as the Shane R. Hopkins-Utter Law Corporation
 Adams et al, Turn down the heat : climate extremes, regional impacts, and the case for resilience – full report (English) (2013) online: <http://documents.worldbank.org/curated/en/2013/06/17862361/turn-down-heat-climate-extremes-regional-impacts-case-resilience-full-report> (last checked October 30, 2015)
 See International Bar Association Climate Change Justice and Human Rights Task Force Report, Achieving Justice and Human Rights in an Era of Climate Disruption (July 2014) at fn. 358 (citations omitted)
 See e.g. Sheila Watt-Cloutier, Petition To The Inter-American Commission On Human Rights Seeking Relief From Violations Resulting From Global Warming Caused By Acts And Omissions Of The United States 13-68 (Dec.7, 2005)
 UNFCCC Secretariat, Synthesis report on the aggregate effect of the intended nationally determined contributions (October 30, 2015), online: <http://unfccc.int/resource/docs/2015/cop21/eng/07.pdf> (last checked October 30, 2015)
 COP21, “COP21 Main Issues”, online: <http://www.cop21.gouv.fr/en/cop21-cmp11/cop21-main-issues> (last checked October 30, 2015)
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