Tuesday, October 21, 2014

Parties Gearing Up For Chevron's Ecuadorean Pollution Case at the Supreme Court


The Canadian Bar Association (“CBA”) announced last week that it was withdrawing its application to intervene before the Supreme Court of Canada in the pollution case of Chevron Corporation et al. v. Yaiguaje, et al.  The original US$19 billion judgment of a court in Ecuador was one of the largest judgments ever imposed by a court for environmental pollution.

The CBA said that its Intervention Policy required that its Legislation and Law Reform Committee sanction the factum before it could be filed with the court.  In this case, the Committee concluded that while the factum was well-drafted and of a high standard of quality, it did not meet the specific requirements of CBA’s Intervention Policy.  As a result, the CBA concluded that without certification of the factum, its intervention could not move forward and would be withdrawn.

 

The withdrawal was reported as an “eleventh-hour reversal” by the CBA.   It had planned to intervene at the Supreme Court on behalf of Chevron in its on-going battle involving enforcement of the judgment obtained by Ecuadorian indigenous plaintiffs for pollution of their lands in the Amazon basin rainforest.  After a lengthy legal battle that has lasted nearly 20 years, an Ecuadorian court found Chevron liable for oil pollution.  The nearly US$18 billion damages awarded in 2011 was reduced by appeal courts in Ecuador to US$9.5 billion.  

 

Chevron has refused to pay and has condemned the judgment as a product of fraud and bribery.  It has obtained a US District Court fraud ruling against the plaintiffs’ US lawyers and others. 

News outlets reported that lawyers working in aboriginal affairs, environmental law and civil law had all objected to the CBA’s decision to support Chevron’s arguments. 
The original decision of the CBA sparked protests across the country, with some lawyers resigning their CBA members.  Reports say that critics complained that the action was being driven by Blake, Cassels & Graydon LLP, which prepared the factum on a pro-bono basis but also does corporate work for Chevron.

Other interveners, notably the International Human Rights Program at the University of Toronto’s Faculty of Law, MiningWatch Canada and the Canadian Centre for International Justice have argued in their factums filed with the Supreme Court that the jurisdictional requirements proposed by Chevron are novel and unnecessary and “are tantamount to asking this court to raise additional barriers for those attempting to enforce judgments obtained against transnational corporations for environmental or human rights harms”.   
Chevron has argued that its legal battle with the Ecuadorians has nothing to do with Canada and its Canadian subsidiary.  However, the Canadian Human Rights interveners argue that the well-established legal principle of separation of identity between a parent company and its subsidiaries should be disregarded in this case, “The rigid application of common law principles regarding the strict separate of parent corporations from their wholly owned and controlled subsidiaries has been repeatedly cited as an unjustified and unjustifiable barrier to justice and remedy that is out-moded in our current globalized world”.   

I will keep you posted.

Regards,

Blair
 



 

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