Canadian Lawyer - sample

30 N O V E M B E R / D E C E M B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m lenging relationship these lawyers negotiate. While seeking legisla- tive reform, for instance, they may easily find themselves suing the same governments they are hoping to persuade. CELA's McClenaghan views the relationship as a viable and necessary one, in which both the government and the public value CELA's lack of a pecuniary interest in the outcomes. "People appreciate that CELA does on-the-ground case work, as well as test cases and law reform," she says. "Government is calling on us all the time, just like the other specialty [legal aid] clinics, to join advisory committees or to give them some input on a particular law reform initiative." And McClenaghan points to CELA's reputation for pragma- tism, with a focus on incremental changes, such as those to limit air pollution over decades, not years. While steel mills may be pollut- ing, for instance, and their emissions are in need of close monitor- ing, steel is needed to make windmills, she notes. "We can be very pragmatic because we know you can't completely solve everything in an instant, so you need to make advances all the time." Clogg, also a seasoned litigator and campaigner on behalf of environmental protection, puts more emphasis on the carrot and the stick approach. "You have to create sufficient pressure to get government to talk to you and to have enough leverage to achieve the changes you want," Clogg says. "The crux of government relations is about relationships, though. You can maintain strong relationships by honest communication, [for instance], by giving government officials a heads up before you do things." Part of a successful strategy, she adds, is acknowledging con- straints on government while at the same time helping supply the information it may need. "They need to have the political space to move in the direction that we want them to go," Clogg says, "or even those [directions] that are consistent with their own policy or mandate. "That's the dance of it," she adds. "But they are not unrelated. It would be very naive to think you could come to the table and be taken seriously if you did not have the weight of political or legal or financial leverage behind you." At least one environmental non-profit has made the deci- sion to focus the majority of its efforts on litigation as a tool to obtain objective decisions and raise the profile of environmental issues. Ecojustice is entirely funded by private donations and is the largest environmental non-profit in Canada, with offices in Ottawa, Toronto, Calgary and Vancouver. Under executive dir- ector Devon Page, the board and staff decided several years ago to refocus on litigation, with law reform remaining a key priority. Recent successes include a lawsuit launched in 2016 on behalf of the World Wildlife Fund, which sought an order for the federal government to remove Shell Canada's long-expired 1971 oil and gas exploration permits in Lancaster Sound, part of a proposed new federal marine park in the far north. The matter was settled in August 2017 when Shell voluntarily relinquished 30 permits, allowing the boundaries of the park to be expanded. For Ecojustice staff lawyer Kaitlyn Mitchell (no relation to Lisa), the size and funding depth at Ecojustice, as well as the tighter focus on litigation, means relative freedom from the fundraising and other activities that can eat up precious time and energy. True to the pattern of litigators in this field, she recalls a childhood love of — and concern about — nature, one that led to the early focus that eventually helped her obtain a non-profit position in her field, where jobs are notoriously hard to come by. After obtaining her LLB with a certificate in environmental law from Dalhousie, Mitchell worked as a summer student at Ecojus- tice and then landed an articling position at CELA. She joined the staff in 2010 and now focuses on environmental rights issues, both in terms of the campaign to achieve a national environmental bill of rights and related litigation. After a decade practising exclusively in the non-profit sector, she says it is both highly satisfying and, at times, a struggle: The services are free, the demand is huge and it's tempting to take on yet another meritorious claim. "There's a serious risk of burnout," Mitchell says. What might help is more firepower on the non-profit side or even more stable funding. Both Estrin and Doelle have suggestions on that front. Estrin notes that costs rules could be updated, so principles that originated in 19th-century commercial law — loser pays — are modified to protect plaintiffs from ruinous financial Ecojustice staff lawyer Kaitlyn Mitchell 'Sometimes, it seems that, because there's so much going on, so many problems facing the environment, that we are at risk of the general public reaching a point where they feel powerless or overwhelmed and less motivated to act.'

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