Yaiguaje v Chevron: The Hummingbird and the Forest Fire

by Graham Henry* (3L)

A group of Ecuadorians from a remote part of the Amazonian rainforest hold a $9.5 billion judgment from the highest court of their country against one of the largest companies on earth—but this company will not pay. Last fall, the Supreme Court of Canada ruled on a preliminary motion confirming that Ontario court had jurisdiction to adjudicate enforcement of the Ecuadorian judgement in Canada. Earlier this month, the plaintiffs returned to Canadian courts in an attempt to have this judgement enforced in yet another chapter of what has been called the biggest case in the world.

As a result of over thirty years of oil exploration and extraction by Texaco (now owned by Chevron), an area of 1500 square kilometers was disastrously polluted to such a degree that the health, livelihoods, and futures of the people in these communities were, and continue to be, threatened. Beginning in 1993, a group of forty-seven impacted indigenous people began a legal battle to hold Chevron accountable for this damage. In 2011, after more than fifteen years of litigation and hearings spanning the Americas, the highest court in Ecuador issued a $9.5 billion dollar judgement for the plaintiffs. However, Chevron had by then sold all their remaining assets in Ecuador and refused to honour the judgement, alleging fraud and unfairness. Due of this development, the plaintiffs have had to turn to foreign jurisdictions to enforce this ruling.

In May 2012, the plaintiffs commenced an enforcement action against Chevron in the Ontario court system. This quickly climbed the judicial ladder on the preliminary question of jurisdiction and by late 2014 was before the Supreme Court of Canada. Gascon J, writing for the majority, rejected the jurisdictional tests proposed by Chevron and found that Canadian courts did have jurisdiction over this matter.

The case is now before Justice Hainey of the Ontario Superior Court, where oral arguments on a number of pre-trial motions were heard between September 12th and 15th in Toronto. The Plaintiffs sought to have the statement of defence struck because the defences presented have already been fully litigated in Ecuador. On the other side, the Defendants argued the claim should be dismissed because Chevron Canada is a distinct legal entity from Chevron Corporation and they allege that the decision in Ecuador was the result of bribery and corruption. Justice Hainey will deliver his ruling on these motions in the coming weeks but, no matter the outcome, this case is anything but over. In a 2015 press release (since removed from their website) Chevron has said of the judgement that they will “fight until hell freezes over . . . and then we’ll fight it out on the ice.”

With the case now deep in the morass of our legal system, it is important to remember the people affected by this environmental disaster. This group of activists who would not let their environment, communities, or bodies be polluted with impunity. An event held on September 15th at OISE brought these stories to the forefront in a panel discussion on the case. Organized in part by the International Human Rights Program of the University of Toronto, this panel consisted of Humberto Piaguaje, the executive coordinator of the Union of People Affected by the Oil Operations of Texaco; Pablo Fajardo, main lawyer of the Union; and Cory Wanless, lawyer at Klippensteins Barristers and Solicitors in Toronto.

They shared stories of the impact this pollution has had on their lives, and of the struggles fighting a party as determined and deep-pocketed as Chevron. They shared their hope for a world where corporations will be held accountable for their wrongs no matter where they are committed. While this story is certainly about damage to the Ecuadorian rainforest and the people living there, all the panel members described it as something more. They described this case as a landmark opportunity to redefine the norms of how we do business, and to set a powerful precedent: You cannot pollute a foreign part of the planet, walk away, and hide behind deep pockets, legal fictions, and an army of lawyers.

Pablo Fajardo finished the evening with a story of the hummingbird:

When a massive forest fire swept through the jungle, all the animals fled. All except for the tiny hummingbird. As the other animals looked on in despair, the hummingbird started flying frantically to the pond, sucking up some water, flying back, and spitting it on the fire. Back and forth, back and forth he went. The Lion stopped as he passed and said, “Hummingbird, what are you doing!? You can’t possibly put out that fire with those little droplets of water!” The Hummingbird ignored him and kept flying back and forth, focused on his goal. “Hummingbird,” the Lion roared, “what are you doing!?”

The Hummingbird responded, without missing a beat, “I am doing what I can.”

How are we, in Canada, going to do what we can to help that Hummingbird?

*Editor’s note: the author of this piece will be articling at Lenczner Slaght Royce Smith Griffin LLP next fall, which is one of the firms representing the plaintiffs in this case.