Below the Radar Transcript

Environmental Law and the Politics of Extraction — with Eugene Kung 

Speakers: Fiorella Pinillos, Am Johal, Eugene Kung


Fiorella Pinillos 0:00
Hola oyentes, mi nombre es Fiorella Pinillos y este es Below the Radar, a knowledge democracy podcast. Below the Radar is recorded on the territories of the Musqueam, Squamish, and Tsleil-Waututh peoples. You’re listening to Climate Justice & Inequality, a Below the Radar series looking to highlight  the systemic forces that try to undermine climate justice movements, while forging towards a greener and more equitable world. For the next instalment of this series, we speak to environmental lawyer Eugene Kung, who works with West Coast Environmental Law on cases involving major energy projects. He and Am speak about how the law can be used as a tool for change. Que lo disfruten!


Am Johal  0:50 
Hello, welcome to Below the Radar. Delighted that you could join us again this week. And we're continuing with our series on climate change and inequality. And we have a special guest with us this week, Eugene Kung. Welcome, Eugene.

Eugene Kung  1:04
Thanks for having me, Am.

Am Johal  1:05 
Eugene. I'm wondering if we can begin with you introducing yourself a little bit. 

Eugene Kung  1:10 
Sure. So, hi, everyone. Nice to be in your ears today. My name is Eugene Kung. I am a staff lawyer at West Coast Environmental Law based here in the unceded territories of the Musqueam, Squamish and Tsleil-Waututh peoples. I've been a staff lawyer at West Coast for eight years now. And prior to that, I was a staffer at the BC Public Interest Advocacy Centre. I grew up in Burnaby. And my family has been here in these lands, in so-called Canada since the 1920s. My great grandfather and my grandfather were among the last of the head tax payers who entered into Canada. In fact, for my grandfather, his name wasn't Moonmen quad. He arrived on May 31 1923, which was just a year, sorry, just a month before the head tax era was replaced by the near prohibition, nearly entire prohibition on migration from China. And so yeah, I'm here as a Western-trained lawyer, but also with some, you know, deep personal and family experience with law as a tool of oppression. And as well come with the recognition and acknowledgement that in spite of having arrived here under, you know, clearly racist laws informed by founding ideologies of white supremacy, that, that my family and myself have also benefited from colonization. And it's kind of that tension that I bring to my work on a daily basis. 

Am Johal  2:51 
Yeah, that's a fascinating story about just the interplay between histories, oppression, the use of the law, and wondering if we can begin, Eugene, a little bit with just a few months back, you were on a panel related to climate justice with a few of your your colleagues and allies and wondering if you can give a bit of a snapshot on where you see the environmental movement today. And perhaps some of the blind spots that it's historically carried with it and and where you see, you know, opportunities for a more enriched way of working together, given the emergencies that we're in?

Eugene Kung  3:31
Yeah, sure. So I mean, I think it's uncontroversial that we are in a massive, existential crisis for human civilization in the form of the climate crisis. And unfortunately, as we're seeing, that crisis is disproportionately impacting those who are the least responsible for the problem and who also have the least ability to adapt and mitigate. And this is the core of a kind of justice and climate justice analysis and approach to this problem. Of course, it's bigger than just an ecological problem. And in spite of the fact that it's been primarily environmental organizations like the one that I work for who've been talking about climate change for a long time. It actually has many, many more dimensions into, you know, the economy, obviously, health, and almost any social issue, housing, these are all impacted by climate. And it's my view that we're at a moment, especially within the environmental movement, where it is not only critical to change and shift from a conservation mindset to a justice mindset, which is something that we've been working towards for a long time. But just even for the relevance of the work of the environmental movement. This shift is really critical and, you know, by that, I mean, when the kind of modern environmental movement as we know it in terms of in the Northern Hemisphere, particularly the West, emerged in the 1960s and 70s, you know, that narrative of Silent Spring kind of catching a lot of people's attention, and then people all of a sudden starting to pay attention to population and these types of issues. In the attempt to put these issues on the political map, most mainstream and emerging environmental organizations at the time, essentially replicated all of the other dynamics and axes of power. So patriarchy, ableism, middle class kind of ethic, and out of that came what I call the kind of conservation approach to environmentalism. And, you know, there's no doubt that there was progress made. And it since that time, you know, we now have every party in our current election with a climate, some form, at least, of climate policy, without kind of getting into the comments of the effectiveness of those, but the fact that every party now recognizes that they need to address these issues, and not just ignore them as we had, is significant. And we also, of course, have Green Party, not just here, but around the world. And so as a political force, certainly this is undoubtedly been thrust into that arena. But the problem is, in my view, that we are now and have for some time been on a plateau of what you can accomplish with an approach that a) replicates those dynamics of power that I mentioned, but b) looks at the environment and environmental issues as a standalone siloed issue that is independent of the things I talked about earlier: health, education, the economy, the reality is that environmental issues ecological, the ecological conditions on which our civilization, our societies exist, is the fundamental underlying conditions from which everything else can flow, whether that's, again, health, economy, housing, education, and so on. And so it's my view that in order to actually achieve the changes and the scale changes that we need, we actually need to stop thinking about the environment as a separate issue and understanding it as a fundamental kind of baseline condition for our continued existence. And that's a shift, I think that it can be uncomfortable, it's a shift that requires really a re-examination internally for a lot of environmental organizations who are still very much connected to that conservation mentality very much, you know, embedded within some of those power structures.  

Am Johal  7:46 
I was gonna ask about it in terms of the law as a site of resistance, a place where there's the opportunity for progressive policymaking be made. At the same time, the law upholds certain things that keeps back progressive change from from happening and wondering if you can sort of reflect on, you know, legal cases you've been involved with, and where it is a site of possibility.

Eugene Kung  8:09 
Yeah, I mean, I think it starts with a recognition that law is one of, if not the primary, tools of colonization. We see that in obvious ways through things like the Indian Act, and in the ways that legal cases are interpreted. But we also see that in you know, I'm thinking about the the recent case of the Supreme Court of Canada that involved Indigenous religious freedom related to a mountain that was slated to become a ski hill, and the inability of our courts in spite of all of their opining about Indigenous rights to recognize, you know, a religious or spiritual significance in this case of a mountain because it didn't fit within this kind of Western notion of religion. And so there's still absolutely a long way to go. My view and my approach of it is that law at the end of the day is a tool. And like any other tool, you need to understand the problem, you need to choose and apply the right tool, whether that's legislation, litigation, law reform, or whatever. And do so in a skilled way. And that is... that can sometimes result in major change. You know, when I was younger, one of the things that made me think about law school was reading about and seeing the same sex marriage reference go through the Supreme Court of Canada, which, of course, you know, was a significant change in our laws and our norms. I would argue that in some ways, it was ahead of where many of the Canadian public were at the time on this issue. And now it's almost like, you know, it's almost like second nature, like people wouldn't even question that. So law absolutely can be a tool for change. And this is what I aspire to do with my daily practice, you know, but it's a challenge, right, because the structures are set up to, in particular, to protect private property. And as I said, as a major tool of colonization. So take, for example, the 2018 Tsleil-Waututh case, which was the case that quashed or overturned the initial approvals for the TransMountain pipeline expansion.

That case, you know, held the federal government to account. It said very clearly that they fell well below the line set by the Supreme Court of Canada, in terms of consultation and accommodation, and sent, you know, and as a result, quashed that original approval. The downside of when you win a case like that, is that you get more consultation or more process, which is essentially what happened. And with each progressive round of consultation, it, you know, kind of erodes away that perception, at least, of inadequate consultation. And so as a result, after the second approval, even though, in my view, the consultation was as bad if not worse, given that the people who were consulting the federal government, were now also the proponents, the owners of that project, it wasn't quite enough for the federal court in that case, to overturn that second decision. So there's certainly, you know, part of the approach of seeing law as a tool is understanding what you can do with that tool and what the limits are of those tools. At the same time, I think, you know, we definitely, absolutely are seeing some shifts that have the potential to really benefit us in the long term. In particular, I'm talking about increasing the involvement of Indigenous nations in decision making. And so we see that starting to be embedded in some of the environmental assessment legislation. But more importantly, I think it's what I'm seeing is nations themselves, Indigenous nations themselves, applying their own unextinguished laws that have not that were not created or don't require Canadian law to be valid, and asserting and applying those in contemporary cases. We've seen that with mining, you know, with a couple evictions recently. Of course, we've seen that in the oil and gas sector, as well. And so it's a combination of those, I think that can hopefully get us to a place where, you know, decisions are not solely driven by maximizing profit.

Am Johal  12:46
And it seems like the current context of Indigenous land claims, as well as legal cases that are directly going forward or almost some of the best ways to slow down. extractive development, those that are putting greenhouse gas emissions into the atmosphere. I'm wondering if you can speak as well sort of broadly, you know, being involved in the environmental movement. Its demographics have shifted over time, but there's still probably blind spots existing within the movement, and particularly its connection with BIPOC communities. And I'm wondering, what more can the environmental movement do to better reflect the diversity of communities and, and people that are in the province that are part of the environmental movement, and sort of what are the implications of not doing that?

Eugene Kung  13:37 
That's a really good and really important question. It's something that, you know, certainly has been on the radar within the environmental movement for some time. I think it has, it has to go beyond just translating your pamphlets or your materials into another language. It has to go to the staff level to the governance level, fundamentally having people who are from BIPOC communities involved in the work and the campaigners. And even in the short time that I've been doing this work, short in the big picture about, you know, the last 15 or 20 years or so, I've seen a shift in the people who are involved in, you know, in the rallies and the marches and who shows up for those. It is much more diverse than it used to be, however, it is still, in many ways, very, still, still, white-dominated in many cases, there's a lot within that, you know, so I think certainly doing our own internal work to unpack unconscious biases, and even understanding what it is to be an environmentalist, if that's the label that you want to apply. Again, for me, I actually think the path forward is to move beyond a kind of notion of environmentalism, and embed that within all of our decision making. And pointing out the values that exist in many other cultures around what we would kind of, in a Western frame, think of as conservation. So within like Confucian Asian cultures, for example, that kind of notion of not wasting anything or preserve, you know, like, these are all these are threads that actually run through many cultures, but are, perhaps, not expressed or reflected within the environmental movement. And so that's certainly a big part of it. And I think what we've seen and what I personally want to work towards is working in solidarity with other social movements and understanding that Migrant Justice work is climate justice work, that they are not separate or competing in any way. And, you know, sometimes the nature of campaigning, the nature of these types of things is to try and focus and be as narrow as possible, just because sometimes, you know, the scope and the scale of some of these problems can be overwhelming. You know, just climate change alone is a huge issue. But without addressing or recognizing and actively working towards these goals of working in solidarity with other social movements, as I said at the beginning, I just don't see how it can get us to where we need to go at the pace that we need to get there in terms of the climate crisis.

Am Johal  16:34 
In your time working at the BC Public Interest Advocacy Centre, you were involved in cases that involved slum lords, I think temporary foreign workers, tree planters... I was wondering if you can speak a little bit to that period of your work as a lawyer.

Eugene Kung  16:49 
Yeah, I mean, it was an interesting time, certainly, for me. This was the first place that I worked as a lawyer, after being quite resistant to the idea of actually practicing law, which I was throughout all of law school. And so, I felt lucky that I was able to find an organization that shared my values, and also provided a really interesting area of work to learn and grow. And so, you know, part of the work included utilities regulation, which is partially how I was able to earn and learn my energy economics chops, which are certainly helpful in fighting things like the TransMountain pipeline. But we also have this very clear mandate to work on social justice issues, on racial justice issues. And I will say, you know, we've just talked about the kind of composition of many environmental groups. I was very lucky in that sense that when I was at BCPIAC, we were primarily staffed by people of colour, and in particular, some amazing women of colour who, you know, who really I learned a lot from, and I learned a lot of analysis from. And so some of the work that that led to, as you mentioned, included, you know, representing temporary foreign workers who had been exploited by Tim Hortons, and what turns out to be like a national corporate program, which actually changed our immigration laws to allow more temporary foreign workers into the food and beverage sector, and became part of their business model, right? The tree planter case was both fascinating and very challenging in the sense that the power dynamics that existed within that were so obvious. And the replication of the pattern that we saw from the transatlantic slave trade was was something that was quite shocking. And, you know, for those who may not remember, this is a case that involves a number of tree planters from who were refugees from Western Africa, primarily, who were hired by a small tree planting company, who kind of low-balled all of their bids and took advantage of the province's policy to go for the lowest bid, regardless of the content. And as a result, in order to cut corners, they treated their workers very, very poorly from being housed in trailers, rather than tents, crammed in, to subpar and unhealthy food, to the absence of sanitary facilities, bathrooms, and so on. And they were literally shitting in the bush, if I can say that. And, you know, the huge human rights violations, very obvious kind of discrimination based on race in place of origin, in terms of the Human Rights Tribunal, but a bigger, even bigger kind of systemic issues. And one of the things that was interesting about that was that the owners of the company were South Asian. And at one point during the Human Rights Tribunal hearing, you know, one of the owners said, well, you know, I can't, I couldn't be racist, because people call me by racial slurs, and therefore I'm not racist. And of course, that's not how it works. But it was fascinating in terms of unpacking this discussion around not just racism, but white supremacy, and the spectrum that relates to that. And as we were talking about that, we had a professor, who was an expert on anti-Black racism, come and testify, and talked about this notion of the spectrum. And it was, I guess, not that surprising, but certainly something of note that, I then looked around the room and the spectrum was perfectly replicated within the room. So all we had was the witness stand, which was primarily the workers, you know, people who had been victimized and people who brought the complaint, who were primarily Black. We had the accused, the owners who were, as I said, South Asian, across from them, or the prosecutors, which was myself and my colleague, Sarah Khan. And then at the head of the table, we had the adjudicator, the decision maker, who was an older white guy, right. So we just perfectly replicated the spectrum, even within the microcosm of this one hearing. And so, you know, I learned a lot from that, I think, again, it's part of that work was to really focus on the systemic issues, and not just the individual, you know, cases of racial slurs or microaggressions, or the types of things that we see by like placing it in this larger systemic context.

Am Johal  21:47 
Now, in terms of cases that you're currently looking at, or you see points in the law, for in terms of advancing environmental interests, what are the kind of interesting points that you're kind of focusing on these days?

Eugene Kung  22:03 
Well, I think, in general without giving too much away, I think where there is a lot of exciting work happening and it's not certainly not just me or West Coast is a much broader movement is something I mentioned earlier, which is the revitalization and application of Indigenous law. So not only is that an exercise in sovereignty and self determination by those nations. But it also, I think, brings into focus something that a lot of people, whether they're Indigenous or not, can relate to in terms of their frustration. And by that, what I'm talking about there is that the people who make decisions about the land are also connected to that land that they're making decisions about, you know. In other words, this kind of having placed based decision making, and I think what we see, again, whether you're Indigenous or not, is a frustration with, you know, someone in Victoria or Ottawa, making a decision about an area where they may never have been, or if they have been, they're certainly not connected or even accountable, necessarily, to those who are living there. And, you know, you don't have to look any further than some of these mega industrial projects, like TransMountain, Site C, Coastal Gaslink, and so on to see that happen. So I do think that there's a lot of interest and actually kind of pent up desire to have that type of regional local governance apply, in a way again, that is not just about maximizing profit. And I think it actually goes, you know, it kind of goes beyond the traditional left-right spectrum. You know, my observation is that a lot of the frustration that Donald Trump tapped into, was that similar notion of, you know, elites making decisions that don't reflect what everyday people are experiencing. And unfortunately, I don't agree with those policies and values, obviously. But I do think that there is something to this notion of, who's the decision maker and who's impacted, and why should it be happening somewhere far away? And that's brought to an even more absurd level, of course, in Canada, and you almost become immune to it as a lawyer, because it's so common, but almost every court document and and many, many other legal documents, you know, Canada is called her majesty in right of Canada, like it is literally still this notion of the queen or the representative of the queen, making these decisions. And so that disconnect, I think, is something that many people feel, internally, maybe without expressing it in such a way but that I do think that as more Indigenous governance and decision-making emerges and becomes part of our kind of everyday discussion and the types of things that people think about. So timelines that are not just about the next quarter or next election cycle, but actually have a much longer tail. That type of decision making, I think, is something that many people can get behind. And I've seen that firsthand, you know, the Tsleil-Waututh Nation's independent assessment of the TransMountain pipeline, which I was very honored and privileged to be a part of, applies Tsleil-Waututh law to the project, but also backs it up with, you know, contemporary cutting-edge scientific studies on oil spills, and all these types of things. And I remember having a conversation with someone who I will describe with, with nothing but love as a Burnaby soccer mom, which my mom was also a Burnaby soccer mom, talking to me about, you know, we don't need the National Energy Board. What we have is a much better decision-making document in the Tsleil-Waututh assessment. And so, you know, just reflecting on that, and how that type of conversation didn't happen, at least I didn't see it when I was growing up as a Burnaby soccer kid, you know, seeing those shifts. And at the end of the day, it's because it makes sense, you know, this the the system that we have, which gives legal personhood to corporations, which forces those corporations by law, to maximize their profits, at the expense of everything else, and how that's become normalized within our society and our economy. You know, it is absurd, but people don't necessarily see that observed. So I think pointing to some of these other alternatives, these plausible alternatives that are out there that actually are much more, you know, felt within the kind of core of how people see some of these problems and challenges that we're facing,

Am Johal  27:01 
In terms of pipeline politics, which have, you know, always been very intense here. How do you see the near future in terms of where fragmentation or polarization is going to be? There's a federal election going on right now. It'll be finished by the time this episode comes out. But those politics are never too far away, given that we're right next to Alberta. And just wondering if you have anything to say kind of on what you see playing out over the next few years on that front?

Eugene Kung  27:31 
Yeah, well, I mean, I've spent a lot of my last number of years working to oppose the TransMountain pipeline. And, and, you know, my background and my undergrad was in political science. And so I'm a little biased in a way, but where I've kind of landed is that this pipeline is mostly a political issue. And it's become, on both sides, a symbol for something, perhaps bigger than what it is, right? For opponents, it's this symbol of going the wrong way on climate, of violating Indigenous rights, of breaking promises, of reconciliation. And for those who are proponents, you know, it's about jobs and kind of investor confidence and the ability to, quote unquote, get things done. And so we have a very polarized, you know, kind of debate or discussion on this project, in spite of the fact that the reality of this moment we're in is that, and it's something that's being felt, you know, around the world, by pipeline and other energy infrastructure companies, is that capital, finance is shifting its view of these projects, because we are in a transition whether people like it or accept it or not. An energy transition that is driven by and necessitated by the climate crisis. But that, in many ways, has been coming for some time. And so, what we see now is, you know, I think today, if TransMountain was proposed, it would never pass. Even the very industry heavy or industry favorable regulatory processes that we have, because on its face, it's just a terrible economic decision. Right? Pipelines and other infrastructure generally have, for a long time, been accepted as infrastructure that can pay itself off over 50 or 60 years of a used and useful life. And if you look at the original TransMountain pipeline built in the early 1950s, you know, that's an example of infrastructure that can, you know, be paid off over a long amount of time. But if we understand, if we take a look at the climate science and take it seriously, and recognize that we have less than 10 years to completely shift, and turn things around, just to have a chance at a livable and healthy and safe environment and climate. All of a sudden, you know, it's simple math, if you have 10 years to pay off what used to pay off in 50 years, you have to charge five times the amount. And the margins on all of these projects are so slim to begin with that this is why we're seeing huge shifts, not only in capital, but in insurance coverage, right, who are in a way leading this charge within the financial sector, because they're already paying for climate change. They're already losing money. The Fort McMurray fires from a couple of years ago cost the insurance giant, Munich Re, 10 years of profits in Canada. So the fact that we're seeing forest fires getting worse and worse every year, once in 100 year floods happening every three or four years, you know, this is a huge shift for the insurance sector whose kind of whole model is based on historic claims. And so yeah, lots of changes certainly happening and in a way, it's inevitable. For me what I see our challenge in the environmental sector is to accelerate that shift, given the timeline that we have, rather than, you know, what many have called this kind of new climate denialism, which, you know, acknowledges the problem, but doesn't actually put forward solutions that actually meaningfully change anything.

Am Johal  31:41
Yeah, and it seems like beyond the exposure of the insurance industry is also the exposure of the chartered banks and by extension, the federal government, in terms of loan guarantees and other pieces. So there's definitely a lot of economic questions on the table that remain. I'm wondering if you have anything to add, Eugene? Anything else that you wanted to mention that we didn't get to?

Eugene Kung  32:03 
Well, you know, I do think we're in a moment in human civilization where... that is a turning point,  things are going to change whether we like it or not. And the question is, really, how we manage or enter into this transition, right? It can be a planned and smooth-er  transition is what a lot of people are advocating for, and things like the Green New Deal. And the just transition type language, or can be a collapse, which will bring with it a lot of suffering, unfortunately, and struggle, and as I said, at the top, that will disproportionately be felt by those who are the least responsible for the problem. Either way, we need to change the way that we approach our relationship with the natural world. You know, a way, and at the end of the day, it's about stories, the story we tell ourselves about our relationship with that natural world, right, so on the kind of dominant, neoliberal extractivist view is that, you know, the world is the earth and the natural world around us is here for humans to exploit and benefit from and the worth of anything can only be measured in that benefit. So a forest’s value is only calculated by how many board feet of lumber you can extract or how many sheets of paper or whatever product you're making. That's in stark contrast from a worldview that is held largely by Indigenous peoples, but also broadly around the world as well, and other non-Western cultures, which recognizes that humans are also animals who are of the natural world, and for whom that world's health is directly linked to our own health. And, you know, really, this can be both a radical shift and a very subtle shift in many ways. You know, it's not about just stopping everything. And, you know, going back to the stone age as some kind of right wing proponents try to try to try to argue in hyperbole but re-examining how we exist in the world and re-examining our economic system in particular, that requires growth, constant growth in order to remain stable. And for whom that growth has been primarily driven by consumption, that has been fueled by debt. Like this is the moment we're in right now. It's been building for some time, and whether we hit the economic limits of this system first, or the ecological limits of the system first or both at the same time. You know, I think this is, unfortunately, where we seem to be heading towards and and so this is why I'm really interested in what alternatives are out there. What are other ways to think about our role? What are different ways to think about an economy that allows people to be healthy and safe, but that doesn't require, you know, constant growth in order to maintain stability because that ultimately is just not going to be sustainable.

Am Johal  35:32 
Eugene, thank you so much for joining us on Below the Radar.

Eugene Kung  35:37  
Thank you so much for having me, Am.


Fiorella Pinillos 35:41
This has been our conversation with Eugene Kung, and the fourth part of our limited run series, Climate Justice & Inequality. Visit the show notes for links to some of the cases Eugene referenced in the episode and to read writings by Eugene. Stay tuned for the next episode, as we wrap the series with a conversation between Am Johal and  Grand Chief Stewart Phillip. Gracias por escucharnos!


Transcript auto-generated by and edited by the Below the Radar team.
September 21, 2021

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