Justice Philip Jeyaretnam: Speech delivered at Conversations with the Community on 26 July 2024

SINGAPORE COURTS – CONVERSATIONS WITH THE COMMUNITY
26 July 2024

Advancing the Environmental Rule of Law – Roles and Responsibilities of the Community

 

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I.     Introduction

1.    We face a global environmental challenge – the challenge of anthropogenic climate change. As an island nation, Singapore is literally on the front line of one of the principal effects of climate change, namely rising sea levels around the world. In fact, in December 2023, the Alliance of Small Island States (AOSIS) – of which Singapore is a member⁽¹⁾ - said of the draft of the final agreement at COP28 that: “We will not sign our death certificate. We cannot sign on to text that does not have strong commitments on phasing out fossil fuels.⁽²⁾

2.     More recently, Singapore submitted a written statement to the International Court of Justice (ICJ) in its ongoing case on the Obligations of States in respect of Climate Change.⁽³⁾ In a press statement on that ICJ proceeding dated 22 March 2024, our Ministry of Foreign Affairs explained that, as “Singapore is especially vulnerable to the impacts of climate change”, we are “committed to participating in collective, multilateral, and rules-based efforts to seek solutions founded upon international law to address climate change.” ⁽⁴⁾

3.     As the cartoon now on screen suggests, polar bears, like all of us in this room, hope that progress in global talks will be more than "glacial".

4.     In our daily lives, we rely upon the rule of law to structure many aspects of our existence, from our contracts with our employers, to the goods and services we purchase, to the personal injuries or property damages we may sustain on the road. The rule of law also applies to our response to international ecological challenges.

5.     Singapore’s climate policy flows from a developing global consensus concerning the environment, namely that mankind is not its master but its steward. We are responsible for the environmental welfare of future generations and for other creatures and the earth generally. This policy informs the court’s adjudicative role. I now turn to address the challenges that I have outlined in three parts. First, the role that judges and courts play in adjudicating claims in the area of environmental law and climate change litigation. Secondly, the environmental rule of law in the context of issues concerning the conservation of biodiversity in the ecosystem. Finally, the tricky task of human beings living with nature and embracing acceptance of wild animals in our midst.

II.     The role of judges and courts in adjudicating claims in environmental law and climate change litigation

International claims in environmental law and climate change litigation

6.     Public interest environmental litigation is becoming increasingly frequent. In the right circumstances and under the right legal framework, such lawsuits can be effective. 

7.     I begin with the decision of the Hague District Court in The Netherlands in Vereniging Milieudefensie and others v Royal Dutch Shell plc, C/09/571932 (“Milieudefensie v Shell”), handed down on 26 May 2021. I should say that there is an outstanding appeal against this decision lodged by Shell which was last heard on 12 April of this year, and an appellate decision is expected in November 2024.⁽⁵⁾ 

8.     The court at first instance held that Shell had to reduce its emissions by 45% by 2030 based on the unwritten standard of care found in the Dutch Civil Code:⁽⁶⁾ “an important characteristic of the imminent environmental damage in the Netherlands and the Wadden region at issue here is that every emission of CO₂ and other greenhouse gases, anywhere in the world and caused in whatever manner, contributes to this damage and its increase”,⁽⁷⁾ such that an omission on Shell’s part to take necessary steps to reduce its CO₂ emissions in line with Paris Agreement targets would violate its unwritten duty of care owed to victims of climate change and global warming, including residents of the Wadden region.⁽⁸⁾ 

9.     Thus, in the words of the Hague District Court, “much may be expected of [Royal Dutch Shell] in this regard, considering it is the policy-setting head of the Shell group, a major player on the fossil fuel market and responsible for significant CO₂ emissions, which incidentally exceed the emissions of many states and which contributes to global warming and climate change in the Netherlands and the Wadden region.⁽⁹⁾

10.     In common law countries there has been litigation brought by activist shareholders against directors positioning neglect of environmental targets in the business of a company as a potential breach of directors’ duties to act in the best interest of the company. An example is ClientEarth v Shell plc and others [2023] EWHC 1897 (Ch) (“ClientEarth v Shell”). This was a lawsuit brought by an environmental law organisation, ClientEarth, against the directors of Shell before the English High Court. The allegation was that Shell's directors were breaching their duties by failing to take adequate steps to reduce greenhouse gas emissions in order to comply with the targets set out in the Paris Agreement.

11.    ClientEarth sued as a shareholder in Shell, a British company, despite having acquired just 27 shares.⁽¹⁰⁾ Normally, directors do not owe fiduciary duties to shareholders directly. They owe them to the company as a separate legal entity.⁽¹¹⁾ However, a shareholder can seek the permission of the court to bring a derivative action, effectively standing in the shoes of the company.⁽¹²⁾ Whether to grant such permission depends on the court’s exercise of its discretion.

12.    In ClientEarth v Shell, the English High Court held that ClientEarth was not acting in good faith.⁽¹³⁾ The court considered that the real reason behind the lawsuit was to pursue ClientEarth’s activist policy agenda and not to remedy mismanagement that prejudiced the members’ interests.⁽¹⁴⁾ Accordingly, the High Court refused permission to commence a derivative action. Permission to appeal was refused.⁽¹⁵⁾ 

13.    ClientEarth’s response in their press release of November 2023, was that the courts had “missed a critical opportunity to grapple with the enormity of the climate crisis and clarify directors’ legal duties in light of the significant risks it presents to companies and shareholder value.”⁽¹⁶⁾ 

14.    This case offers the reminder that the courts do not enter the policy arena except when this is clearly mandated by the legal framework. Chief Justice Sundaresh Menon has described this as a posture of “judicial modesty”, recognising that our role is limited to the adjudication of rights and obligations based on the content of the law and not a judge’s own personal leanings or policy preferences. 

15.    Nonetheless, under the right circumstances, an environmental lawsuit may succeed. How we understand the meaning of legal rules is often shaped by present circumstances – including and especially the pressing problems of the present. As James Allsop IJ of the Singapore International Commercial Court put it, in his own discussion of climate change litigation before the courts, “legal policy to develop the law, drawn in part from the necessities of the age, will always be present in the judicial task.⁽¹⁷⁾ 

16.     Indeed, in the very recent New Zealand case of Michael John Smith v Fonterra Co-operative Group Limited and others [2024] NZSC 5, the New Zealand Supreme Court confirmed the potential relevance of tikanga Māori (or Māori customary law) to informing the common law’s approach to climate change claims.⁽¹⁸⁾ This is an example of a customary system that rests on a relationship between humans and nature different from that under the common law system, which is based on the principle that we are the masters of our environment. That different approach to stewardship and a gentler, more in tune relationship with the environment in customary law systems is finding its way into (at least New Zealand’s) common law. 

17.    Returning to the two illustrative cases concerning Shell, what explains the difference in their outcomes? In ClientEarth v Shell, the plaintiff was attempting to assert the derivative rights of a shareholder, seeking permission to stand in the shoes of a company to vindicate the company’s rights, but was held not to be seeking to protect the company’s interests.  

18.    By contrast, in the class-action lawsuit in Milieudefensie v Shell, the plaintiffs were seeking to vindicate their own rights under the Dutch Civil Code read together with the European Convention on Human Rights.⁽¹⁹⁾ The outcomes were different as the contents of the legal norms engaged in each case were different.

19.    Another arena in which climate change concerns are being litigated is the field of Investor-State Dispute Settlement, or “ISDS”. In the ISDS case of Lone Pine Resources Inc v The Government of Canada (“Lone Pine v Canada”), there was a legal challenge filed by an investor, Lone Pine, who held the rights to mine for oil and gas under the St. Lawrence River. The challenge was against the decision of the Government of Quebec to revoke exploration permits on environmental grounds.⁽²⁰⁾ In finding that the Government of Quebec did not violate international law and the treaty obligation to accord fair and equitable treatment to Lone Pine’s investments, the tribunal majority considered the environmental public policy concerns animating Quebec’s legislation. The tribunal majority gave weight to “the Quebec Government’s intention to encourage the sustainable development of natural resources with a view to protect [sic] the St. Lawrence River”.⁽²¹⁾

Litigation over Singapore’s environmental laws and regulations

20.    Singapore’s judicial approach applies legal frameworks consistently with the rule of law in the light of expressed policy objectives. An example of this approach is the High Court case of Ventura Navigation Inc v Port of Singapore Authority and others [1989] 1 SLR(R) 609 (“Ventura Navigation”). It concerned the grounding of a tanker in Malaysian waters resulting in the rupturing of its tanks and the escape of oil which polluted Singaporean waters. The case turned on the interpretation and application of legislation designed to address the problem of maritime oil pollution, namely, the Prevention of Pollution of the Sea Act 1971 (“the 1971 Act”) and Merchant Shipping (Oil Pollution) Act 1981 (“the 1981 Act”).⁽²²⁾ 

21.    The High Court held that the plaintiff was liable for the oil pollution damage that resulted under s 14(1) of the 1971 Act,⁽²³⁾ which stated that where oil from any vessel flows or drifts into Singapore waters, the vessel owner is liable for all costs of the port authority’s measures to remove the oil pollutants and prevent any damage caused in Singapore as a result.⁽²⁴⁾ The vessel owner could not rely on a statutory limitation under the 1981 Act, which applied only  to oil tankers given that the vessel was not carrying oil but other chemicals.

22.    Thus, the environmental rule of law operates by the consistent and logical application of laws meant to safeguard the environment, with a clear appreciation of the environmental purpose behind them.

23.     There is a further aspect I will touch on, namely regulations meant to ensure that companies do not misrepresent the ecological friendliness of their products and services – “greenwashing”.⁽²⁵⁾ To name just a few, consumers are empowered to sue corporations for an “unfair practice” under the Consumer Protection (Fair Trading) Act 2003, with the Second Schedule specifying that unfair practices include misrepresentations that goods or services have characteristics or qualities they do not have.⁽²⁶⁾ Appendix L of the Code of Advertising Practice – a self-regulating industry code of the Advertising Standards Authority of Singapore – states that the basis of any environmental claims made in advertisements and commercials must be “explained clearly and should be qualified where necessary” and claims of environmental friendliness must not be made unless the advertiser can “provide convincing evidence that their product will cause no environmental damage.”⁽²⁷⁾ And the Singapore Exchange’s Mainboard Rules include sustainability reporting requirements and ‘climate reporting’ requirements which are mandatory for listed issuers in the financial industry, agricultural industry, energy industry, buildings industry, and transportation industry (with climate reporting rules operating on a ‘comply and explain’ basis for all other listed issuers). These include proper disclosures of how climate-related risks are likely to impact the company’s future financial position, performance, and balance sheet.⁽²⁸⁾

24.    These rules keep corporate actors open and honest in their practices and transparent about the impact of climate change upon their industrial processes or their future financial position. The consistent, even-handed application of such rules by courts and regulators are part and parcel of the environmental rule of law, protecting the integrity of our marketplace by keeping corporate actors accountable to consumers, shareholders, creditors, and other interested stakeholders in wider society.

III.    Legal regulations in the field of biodiversity conservation and anti-poaching and anti-animal trafficking measures

25.    I now turn to conservation and biodiversity. Of great concern is the poaching and trafficking of wildlife, which is not only inherently cruel to animals but also endangers entire species. Common examples include the poaching of elephants for ivory and tigers for their skins and bones.⁽²⁹⁾ 

26.    Singapore has enacted the Endangered Species (Import and Export) Act 2006 (“ESA 2006”), to give effect to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, often referred to as “CITES”. The purpose behind CITES – and, by extension, the ESA 2006 – is to regulate the trade and movement of endangered species in order to safeguard their long-term protection. 

27.    The recent case of Public Prosecutor v Leow Seng Lee [2024] SGDC 76 (“Leow Seng Lee”) concerned individuals involved in a massive smuggling operation of live birds from Malaysia to Singapore.⁽³⁰⁾ I have illustrated this on screen with a photograph of the white-rumped shama, which is a wonderful but endangered songbird. Unfortunately, a talent sometimes becomes a magnet for doom and disaster. The white-rumped shama has been much in demand by trappers precisely because of its wonderful song. Fifteen shamas died in this shameful smuggling operation. In relation to sentencing, account was taken of the statutory purpose behind the legislation. The District Judge observed that in the Second Reading of the 2022 legislation which amended the ESA 2006 to stiffen the penalties for such offences, the Government had “explained that as an international trading hub, Singapore is committed to the global fight against illegal wildlife trade, which threatens the survival of endangered species and harms habitats and ecosystems around the world.”⁽³¹⁾

IV.     Living with Nature: the increasing interaction and co-existence between humans and animals

28.    I end on what it means for human beings to live in harmony with nature and to work towards a world of better co-existence between humans and animals. By “co-existence” here, I mean adopting the mentality that humans are just one species out of many within a broader ecosystem. As the cartoon illustrates, we may think of wild animals as intruders when, on a broader timescale, we are the intruders.

29.    The International Fund for Animal Welfare, or IFAW, has called this the challenge of “living with wildlife in the anthropocene”, ie, the modern era of a natural world that is dominated by humans.⁽³²⁾ 

30.    One of the case studies given by IFAW concerned coyotes in North America, IFAW observed how rural communities were increasingly adopting non-lethal methods of coyote management, including using guardian animals, deterrence devices, and fences to protect calves, lambs, and adult sheep from coyote predation, as opposed to killing them.⁽³³⁾ 

31.    What are the implications of this for us here in Singapore? We are, after all, a city-state. In this highly urbanised environment, it is tempting to think that our interactions with nature should be regulated and controlled to serve a densely concentrated human population. Collectively, however, our society has chosen a different path, one that is encapsulated in the phrase “Biophilic City in a Garden” used by Deputy Prime Minister (DPM) Heng Swee Keat, in his dialogue with Dr Jane Goodall in 2019.⁽³⁴⁾ By this, he meant that, even as a city-state, we must live in harmony with nature and wildlife by integrating green spaces into our highly urbanised island. 

32.    Living in harmony with nature is not easy when otters may raid one’s koi pond, monkeys enter one’s kitchen and hornbills may snatch a pet bird.⁽³⁵⁾ It requires difficult adjustments in our behaviour in order to accommodate wild animals. The onus is not just on urban city planners but also on everyone to work together as a community to nurture and cultivate Singapore’s green spaces, without compromising human safety and well-being. This shift is again underpinned by the rule of law, with the strengthening of laws protecting wild animals.⁽³⁶⁾ Our approach remains that animals will be the objects, rather than the subjects, of our laws. The animals will not themselves be coming to court to start litigation, and I imagine that the law is likely to stay that way for some time. But at its heart, this vision of a Biophilic City in a Garden reflects the shift in mindset that I have adverted to earlier: we are stewards and not mere exploiters. We must pass to our children and grandchildren a world and an environment that is once more on the mend.

33.    With that objective in mind, let me end on a personal note. I am also a writer and some of my stories have concerned animals, the environment and Singapore as an urban jungle. In one of them called Painting the Tiger, the protagonist Ah Leong takes his two-and-and-a-half year old son to the zoo. [Extracts shown on screen] The boy is initially fidgety and bored, until he sees the majesty of the tiger. Later, Ah Leong contemplates the fate of tigers across the world and is inspired to paint a tiger. He despairs about the fate of the tiger, until his son, freshly awakened, sees the painting: His eyes lit up. A smile like a falling tree, cracked his face. ‘Tiger, ‘ he said, ‘King Jungle’. 

34.    The wonder, awe and majesty of nature is truly precious. We must not lose it. There is a role for others besides judges, lawyers, lawmakers or policymakers. Artists, activists and environmental NGOs all have important roles to play. Indeed, it is an urgent issue for the whole community. I look forward to continuing this conversation. Thank you.

V.     Coda

[Editorial note: During the question-and-answer segment of the event, the observation was made that unlike other jurisdictions, the Constitution of the Republic of Singapore makes no provision for environmental rights. Justice Jeyaretnam was invited to offer his views on the difficulties that presents for climate litigation in Singapore. His Honour’s response, which has been edited for fluency, is reproduced below.]

35.    It is important when looking at climate litigation elsewhere to keep in mind the context in which it takes place. Some countries may sign up to international agreements before they even have a practical plan for implementing them, and that creates a gap that potentially allows for climate litigation. There are also other countries where the executive – the arm of government charged with getting things done – is not effectively tackling practical problems in accordance with legal mandates. That is where you see people resorting to the courts, and we have seen the courts taking on the task of meeting those problems in countries like India and Pakistan. 

36.   The Singapore context is quite different. The approach taken by the government has been to sign up to international treaties only when it is ready to implement them. Once signed up, however, there will be legislation in place to put Singapore’s treaty obligations in play.

37.    This leads me to what our Chief Justice has described as “judicial modesty”. In the context of climate change policy, many of the “how” questions – how can we tackle a climate problem; how do we reduce emissions; how do we adapt as climate change occurs – are multifactorial and polycentric. There are all kinds of considerations to be accounted for, and many stakeholders will have to be heard in order to come up with an answer. That is a natural role for the executive. It is not a natural role for the courts, because the courts adjudicate upon issues on a bilateral basis: one side complains, and the other side will perhaps be asked to do something about it.

38.    There is a very interesting recent decision from the Supreme Court of India that illustrates the difficulties with judicial intervention in the space of climate change policy.⁽³⁷⁾ It relates to the conservation of the Great Indian bustard, which is a terrific but very endangered bird found in the deserts of Rajasthan. A few years ago, the Supreme Court of India made an order requiring power transmission lines in the desert to be placed underground because there was evidence that overground transmission lines were a factor in the decline of the Great Indian bustards. 

39.    Now, that order was made about three years ago. As you can imagine, it was really not an order that could be implemented. Doing so would have been hugely expensive. It would have also effectively put an end to solar power projects in the desert – which is really the place where solar panels should be – because the economics of transmitting power underground was never going to work. So, the Supreme Court of India recently rescinded its earlier orders and took a different approach. 

40.    From this example, you see two different environmentally desirable objectives coming into conflict with one another. One is preservation of the Great Indian bustard. The second is the promotion of solar power. Dealing with such policy choices and trade-offs is a task for the executive and the legislature. It is when they come up with legislative answers that the courts can then step in to adjudicate upon and enforce them.

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