What’s necessary for good people to do nothing

When it comes to the climate emergency, Canada’s courts want people to choose between being ineffectual and doing nothing at all
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If, as the maxim goes, “the only thing necessary for the triumph of evil is for good men to do nothing,” we ought to ask just why it is that good people so often do nothing.

Last month, Vancouver-based educator and award-winning poet Rita Wong was sentenced to 28 days in prison for peacefully protesting the construction of the Trans Mountain pipeline expansion project (she was released early). Her act was in violation of a 2018 B.C. Supreme Court injunction ruling, which threatens those blocking construction with being found in contempt of court.

In a statement to the press, Wong explained her decision to take action:

On 24 August 2018, while BC was in a state of emergency because of wildfires caused by climate change —breaking records for the second year in a row; putting lives at risk, health at risk, and displacing thousands of people— I sang, prayed, and sat in ceremony for about half an hour in front of the Trans Mountain pipeline project’s Westridge Marine Terminal.

I did this because we’re in a climate emergency, and since the Federal government has abdicated its responsibility to protect us despite full knowledge of the emergency, it became necessary to act.

On social media Wong’s sentence was met with shock for its harshness. The judge, Kenneth Affleck, who has presided over numerous cases relating to Trans Mountain, had previously professed his belief that “a general deterrence” is now required in order to prevent people from violating the injunction (which he also issued). Wong’s imprisonment is consistent with that belief, part of a new escalation of punitive measures, which were previously limited to fines and community service, and then very brief jail time.

When we ask why good people do nothing, perhaps we should look to the decisions of authority figures like Affleck as an important case study.

Faith v. necessity

How seriously you take climate change — what measures you are prepared to accept being taken in response to it — has a lot to do with how much you believe that reigning institutional arrangements and practices realize and maintain a decent society. If you occupy a position of authority in one of those institutions, that distorting faith might cause you to mistrust established practice rather than risk deviating from the status quo, the one you believe generally promotes positive ends. And that might make you ill-suited to making decisions on a threat like climate change, where doing as we have always done will break our world.

An unduly strong institutional faith is suggested in a couple key instances of Affleck’s reasoning. The first was the resort to the injunction itself. Its intention is to prioritize rule of law in a way that avoids having to consider the reasons people might have been acting outside the law in the first place.

The necessity defence is premised on the idea that there are circumstances in which the rule of law cannot be adhered to if injury, loss of life, or serious moral transgressions are to be prevented.

Because all the court is concerned with is whether a person was or wasn’t knowingly engaging in activities forbidden by the injunction (and not why), normal injunction proceedings would not, therefore, require the presiding judge to engage deeply with defendants’ arguments.

But something occurred that caused Affleck to lay bare his reasoning, and the flaws in it, more clearly: the decision by Wong and others to turn to the “necessity defence.”

The necessity defence is premised on the idea that there are circumstances in which the rule of law cannot be adhered to if injury, loss of life, or serious moral transgressions are to be prevented. A classic example would be a driver breaking the speed limit or operating a vehicle without a licence in order to get a dying person to a hospital when no other option was available. Therefore, people committing illegal but preventative acts should not be found guilty of actions that, technically, constitute crimes.

The climate necessity defence is a variation of that, intended to protect those who, concluding that our institutions are failing to act quickly enough to prevent climate breakdown (or are willfully contributing to its acceleration), take direct action against major fossil fuel projects or operations. But for it to work, the ruling judicial system has to proceed from an understanding that the danger posed by climate change is of a unique nature.

The evident unnecessity of preventing cataclysm

And what we see reaffirmed by Affleck’s rulings is that the courts have little such understanding. Falling back on a previously established legal standard, he has argued he will only accept a very narrow sense of necessity, recognizing its application “only in circumstances where there was an imminent risk of an immediate peril that could be avoided by the wrongful act.” These are circumstances in which the accused cannot be said to have had any other choice; they no longer had the ability to act with “moral voluntariness.”

The climate crisis, however, is not that kind of emergency. Its prevention does not come down to a sudden moment of intense pressure in which a person acts reflexively to stop a single act, but rather a small and rapidly diminishing number of years in which major projects approved and carried out by powerful institutions that are slow and resistant to change must be stopped and dismantled.

These features of the climate crisis challenge and complicate our normal sense of emergency, immediacy, and imminence, and make it a different sort of problem than the kind that existing legal standards are good guides for addressing. A judicial system has two options: it can either evolve its standards for necessity to accommodate this, or it can proceed rigidly and cautiously, as though new threats emerging from new contexts should have little bearing on its practices.

Affleck's rulings are consistent with the second, and we see that perhaps most strikingly in the reason he provides for why the condition of moral involuntariness cannot be met:

Each of the applicants could have made a choice to do nothing in response to their concerns, no matter how distasteful they found that alternative, or each of the applicants could have continued with the options they had previously pursued, albeit with limited success, namely writing to politicians and lobbying government, no matter how frustrating they found those alternatives.

In other words, the accused still had time, in the last years left to avoid extremely dangerous climate change, to choose between resorting to ineffectual actions or doing nothing at all. Ask yourself: Does this seem right? Does this seem like the standard that would be adopted by a system that recognizes what we are facing?

The fateful upshot of Affleck’s logic here is to effectively make it impossible for the necessity defence to ever apply to efforts to block the projects that are now accelerating the most serious challenge humanity has ever faced.

Robust delusions

But it’s in a ruling made last year that Affleck’s faith in the system is probably most clearly revealed:

What seems to have been forgotten when the excuse of necessity is argued in this instance is that we live in a robust democracy. Governments change their policies when public pressure is brought to bear and governments themselves not infrequently leave office following elections and therefore policies of one kind or another change.

The reasoning here raises some questions. For instance, just how effectively can public pressure be brought to bear when non-obtrusive protest is all that is permitted and when states have long understood how to corral, ignore, and neutralize dissent of that sort?

But the biggest is whether “robust” is really the best way to characterize a democracy

  • that does not extend to the economic sphere, where vital questions over production and distribution crucial to a renewable transition are currently left mostly to private actors concerned with short-term profit;
  • that, because it has never adopted environmental rights into its constitution, leaves governments enormous leeway to approve environmentally destructive projects;
  • that has no real way to represent the interests of future generations and non-human life (importantly, Wong’s public statement notes that she was acting in accordance with a more expansive sense of law that includes Indigenous and natural law);
  • where the Senate, an unelected body of Parliament, can and has defeated climate legislation passed in the House of Commons;
  • whose mainstream media regularly fail to report on the seriousness of climate change while giving space to dehumanizing conspiracy narratives about foreign-funded environmentalists; and
  • that can be so distorted by a climate change–denying fringe party that environmental groups risk losing charity status by asserting that climate change is real, apparently now a politically partisan act.

In effect, Affleck appears to be rejecting the necessity defence in part because he perceives the democratic system — the same one that has so long failed on climate change that it has left people with no option but to turn to civil disobedience — as being far more functional than it has proven to be.

He adds,

To display public and mass contempt for court orders, which orders in their myriad forms are one of the foundations of the rule of law, without which we could not enjoy our robust democracy, cannot be reasonably characterized as a necessity that the law excuses. The excuse of necessity has no air of reality in these proceedings.

But if we must respect the rule of law because it is a precondition for democracy, it is strange that we would not also be concerned about the preconditions for the rule of law. Is the rule of law really served by exposing people across the world to heightened risk of disaster and conflict?

Contemptible courts

So, why is it that good people so often do nothing? Why, in so many pivotal moments in which people could have opposed the coming of the worst chapters of our history, might they feel compelled to stand by?

Because, often, authority figures use their power to deter actions that are morally necessary. They do this not necessarily out of malice, malfeasance, or conspiracy, but simply out of a sense that their highest responsibility is to maintain the current functioning of the institutions they serve, even to the point that they cannot see that circumstances have changed, and that falling back on the old logics is now dangerous. They come to inhabit their institutional roles the way that once-sophisticated software unevolvingly governs anachronistic machines.

In an open letter last year, one of the founders of the Canadian Association of Physicians for the Environment reminded Affleck that he’d been left behind before when times changed:

Your decisions around the [Trans Mountain] protesters could be interpreted as willfully blind to an essential reality of our time. But you’ve seen this kind of situation before. In 2005, as a lawyer, you argued on behalf of Imperial Tobacco that public officials should not be allowed to ask for reparation from the tobacco industry for injury caused by its products. You argued this case all the way to the Supreme Court of Canada, only to see that public officials, in a changed world, were granted the right to seek such reparation.

Today, however, it would be hard to find any scientist or health professional or even any adult who would argue that tobacco companies should be so protected.

Those who are actively and willfully committing the world to devastation for power, wealth, or privilege count on exactly this, on men like Affleck to remain unable to see the perils of the roles they play so reliably. Consider recent remarks by Alberta premier Jason Kenney:

As Trans Mountain begins to prepare for its construction restart, the federal and local authorities must ensure the rule of law is enforced and that construction is not illegally blocked. History has shown us that there are a small minority of individuals who are willing to break the law to prevent responsible resource development in Canada, and they must not be allowed to essentially veto a project that is vitally important – not only to Alberta, but to all of Canada.

As epitomized by Affleck’s rulings, the Canadian judicial system is not equal to the challenge presented by the climate emergency.

Something will need to change if it is to play a role more significant to the crisis than preventing good people from doing what is necessary to stop it.

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