Riaz Sayani-Mulji (1L)
Shameful. That is how I would describe the Canadian Bar Association’s (CBA) conduct over the past few weeks.
After its national board upheld its decision to intervene at the Supreme Court of Canada (SCC) in Chevron v Yaiguaje, the CBA was met with letters of resignation, international criticism, and a protest organized by the U of T Law Union and Anti-Chevron Canada.
There were numerous issues with the intervention. That the CBA’s National Aboriginal Law and Environmental Law Sections were not consulted. That Blakes was retained to handle the intervention, even though it represents Chevron on other matters. That the CBA framed the intervention as necessary because “fundamental corporate law principles” were at stake, ignoring the access to justice issue at the core of the litigation.
A week after our demonstration, the CBA did a complete about-face. It decided to withdraw the intervention, on the basis that the factum drafted by Blakes did not meet the requirements of CBA’s Intervention Policy. Whatever that means.
The case is more than 20 years old, spanning courts in the United States, Ecuador, and now Canada. From 1964-1990, Texaco (acquired by Chevron in 2001) drilled more than 350 wells in the Amazon, netting a cool $30 billion in profits from the extracted oil. In the process, they intentionally dumped more than 18 billion gallons of “production water,” consisting of oil and other carcinogens, into the waterways used by the Indigenous peoples of Ecuador for drinking, fishing, and bathing.
The effects of this dumping—often called the “Chernobyl of the Amazon”—are difficult to describe in words. Children have died just by swimming in the contaminated water. Cancer rates are 30 times higher in affected areas relative to the rest of the country. Birth defects and miscarriages are common. Two Indigenous peoples of Ecuador, the Tetetes and Sansahuari, have been wiped out due to the environmental destruction.
For perspective, the dumping led to pollution levels 30 times higher than the Exxon Valdez disaster in Alaska. Whether you call it ecocide, genocide, or something else, what happened in Ecuador was injustice of the largest scale.
The Indigenous communities of Ecuador organized themselves. In 1993, they filed suit in the United States. The litigation was moved to Ecuador, and it appeared that the plaintiffs would win, despite extensive delays and a series of dirty tricks by Chevron (e.g. attempting to bribe a judge).
Chevron ultimately sold all of its assets in the country. In 2013 when the Supreme Court of Ecuador awarded the plaintiffs $9.5 billion in damages, Chevron avoided having to pay a cent. However, after hiring 60 law firms and more than 2000 legal personnel, and spending $2 billion on legal fees to fight this claim—including, at one point, securing a global anti-enforcement injunction against the plaintiffs—Chevron’s time may finally have come.
Now, the plaintiffs are attempting to obtain the damages award through Chevron Canada’s assets and shares. Last year, the Ontario Court of Appeal ruled that the Ontario courts are an appropriate jurisdiction for recognition and enforcement of the foreign claim.
Justice MacPherson wrote: “Before the Ecuadorian judgment was released, Chevron, speaking through a spokesman, stated that Chevron intended to contest the judgment if Chevron lost. He said: ‘We’re going to fight this until hell freezes over. And then we’ll fight it out on the ice.’ Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction. At this juncture, Ontario is that jurisdiction.”
Which brings us back to the CBA. While the withdrawal of the intervention is a small victory, questions remain as to how this intervention came about in the first place. With so many procedural irregularities, it seemed the CBA was prepared to go to any length to get to the SCC and make arguments in favour of Chevron. At the very least, this demonstrated the extent to which the powerful in Canadian law—Bay Street firms and their corporate clients—have sway in the legal profession’s largest advocacy organization.
Moving forward, members need to demand accountability. Perhaps it’s time to say goodbye to the CBA and look to alternative institutions that actually care about access to justice, like the Law Union of Ontario.
Most importantly, this debacle has helped shed light on one of the worst corporate crimes of our time. Legal professionals outraged by the CBA’s conduct must continue working in solidarity with the Indigenous communities decimated by Chevron. The SCC is hearing Chevron’s appeal on December 11. Let’s hope this brings the plaintiffs one step closer to justice, and to Chevron finally cleaning up its mess.
