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The CBA's Chevron Intervention: Why Many Canadian Lawyers are Appalled


4858685698_3f70db3e49The Canadian Bar Association (CBA) — a venerable part of the Canadian legal and political establishment with a membership of 37,000 lawyers, judges and law students across Canada — is facing a public relations disaster and significant controversy related to a decision made by its Executive Board (led by President Michele Hollins, herself a corporate lawyer [surprise, surprise] based in Calgary).

The CBA’s intervention in the Supreme Court of Canada in the case of Chevron Corp. v. Yaiguaje has highlighted the triumph of corporatism within a supposedly neutral organization purporting to represent a broad range of interests and perspectives, including animals rights advocates, as well as feminist, environmental and aboriginal lawyers who take a more critical approach to social change and law reform.

(Update: If you are concerned about this intervention, you can let the CBA know by conveying your disapproval with the National Board of the CBA who made this decision, and whose contact details are here: http://www.cba.org/CBA/about/board/default.aspx)

In 2011, after an eight-year trial, an Ecuador court determined that Chevron had deliberately dumped billions of gallons of toxic waste into the Ecuadorean rainforest when it operated hundreds of well sites from 1964 to 1992. The dumping caused a wave of cancers and other environmental problems that have decimated indigenous groups, according to the court decision.

However, as often seems to be the case, hugely profitable and well lawyered companies suddenly find themselves bereft of assets in the nations where they originally caused mayhem and health problems, but enriched in the grand old USA or some other nation where their multinational is based. Thus, back in 2011 Chevron had no more assets in Ecuador and the victims began to try to enforce the judgement in countries where Chevron has assets, such as Canada.

In Canada, many communities can understand the utter despair of the Ecuadorean villagers. In the late 1990s, the Ontario environment ministry began to threaten to take action against Outboard Marine Corporation (OMC) for dumping Trichloroethylene (TCE) and other toxic chemicals into the soil and groundwater surrounding its properties in Peterborough, Ontario (where I live).  But OMC, the makers of durable chain saws, outboard marine engines such as Evrinrude, snowmobiles and other gasoline powered equipment, had discovered its cupboards were bare and closed up its Peterborough shop and Canadian operations, transferring its assets to the USA (where the company still operates profitably). After a lengthy hearing at the Ontario Environmental Review Tribunal, in 2000 the remnants of OMC and its impoverished corporate directors offered the ministry a paltry settlement of $15 million to clean up the mess. But in 2011 the money for treating the contaminated groundwater and soil in the Landsdowne and Monaghan of Peterborough (the affected area) ran out. Now the environment ministry is running the clean up and no doubt will for years to come. Paid for by Ontario taxpayers. Good deal for OMC. Bad for the victims of its pollution in Peterborough who find they cannot sue for compensation now that they have been able to connect the dots and understand how OMC’s air and water pollution caused childhood cancers and other serious health problems in the residential areas that were literally dozens of feet from the polluting OMC operations between 1910 and 1990.

(Full disclosure: I coordinated a research project on the issue and tried to help local residents, many who are suffering from cancer [or have suffered] and other illnesses, organize a legal action on this problem in 2012 and 2013.)

Members of the CBA, and former members who have felt compelled to resign over this issue, are in revolt and are organizing to express our deep concerns about the Chevron Intervention. On Saturday, the Globe and Mail newspaper published a letter that I have reproduced in full below. I signed this letter and fully support its arguments.

Additional background on the Chevron legal case can be found on a Facebook page set up to raise concerns about the intervention.

Law Students and Aboriginal Rights Activists Voice disgust with CBA at protest on Oct 9, 2014

Law Students and Aboriginal Rights Activists Voice disgust with CBA at protest on Oct 9, 2014

Photo 2 Oct 9 2014 Photo 4 Oct 9 2014 - Our Integrity not for sale

I have been a member of the CBA since I began law school in August 1984. I joined right away to take advantage of the publications and the high quality educational events that the CBA and its provincial and territorial branches provide.

In June 2012 I was elected to a volunteer position on the Executive of the Aboriginal Section of the Ontario Bar Association, the Ontario branch of the CBA and I continue as a member at large on that Executive. Between 1993 and 1995 and then between 2002 and 2005 I was a member of the Executive of the Environmental Section of the OBA. I have prepared more than ten articles for OBA newsletters in the past four years alone (and many back in the 1990s)  and I have spoken at professional development programs. I never believed I would ever consider resigning my position in the OBA because of decisions made at the “centre of the universe” in Ottawa (and Toronto, I suppose) by the CBA’s Executive.

On Monday, October 6, 2014, the Law Times published a cover page article describing how members of the Canadian Bar Association (CBA) were considering resigning from the CBA, including many volunteers who were members of Section Executives.  (Full Disclosure: I was interviewed for that article and my comments and a photo of me appeared in the widely circulated electronic and print versions of the article.)

You can read the Law Times article here

Here is the article from the Globe & Mail:

I congratulate the students and protestors who voiced their concerns about the CBA’s Intervention earlier this week.  I was there with you in spirit and suggested to some journalists they should interview the students who represent the future of the Canadian Bar Association (CBA) and its provincial and territorial branches. I agree with Professor Gail Henderson at the University of Alberta (see her post on the Facebook page) that in theory the CBA intervention highlights the fact that The Corporation as a legal concept needs reconsideration. The challenge is to figure out how to build deep awareness so that we can start a broad and intelligent social discussion amongst a wide range of stakeholders and interests that eventually could lead to incremental reforms. The Occupy Protests in 2011 and the evolution of the worldwide Green Party and the related Green and Ecofeminist movements, etc in the past fifty years shows that progress has been halting. Corporations, through green-washing and their massive media machine, are masters at co-opting the values and alternate visions for development that Greens and many Aboriginal peoples seek to promote. One step forward, three steps backwards.

http://en.wikipedia.org/wiki/Occupy_movement

These materials on corporations may be of interest. There are thousands of other references. My law school colleague (LLM, 1987-88) Joel Bakan wrote the book that was the basis of the series broadcast on TVO: http://tvo.org/program/120323/the-corporation

[As described on the TVO’s web site, “The Corporation” invites players, pawns and pundits on a graphic and engaging quest to reveal the corporation’s inner workings, curious history, controversial impacts and possible futures. Case studies, anecdotes and true confessions reveal behind-the-scenes tensions and influences in several corporate and anti-corporate dramas. Each illuminates an aspect of the corporation’s complex character.]

One of the classic books on problems posed by corporations was published way back in 1893: http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/cook/Corporations.pdf

Public Citizen, the successor to Ralph Nader’s groups in the late 1960s, does great work: http://www.citizen.org/Page.aspx?pid=183

There is much work to do on promoting a coherent dialogue about greater accountability and transparency among corporations, their directors and shareholders for the serious social disruption and environmental externalities caused by their operations.  The CBA’s intervention in the Chevron case will not contribute to this dialogue.  Indeed, the CBA’s money would be much better spent on a round table process to start a review of the dimensions of corporate social responsibility in the 21st century and the types of law reform necessary to develop and promote concepts of social, economic, cultural and environmental sustainability in Canada’s and the international community’s corporate community.

 

Some Resources and Further Reading on the Chevron case:

http://basicsnews.ca/2014/01/legal-ruling-will-allow-rain-forest-indigenous-peoples-to-pursue-chevron-in-canada/

http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/canadian-bar-association-feels-backlash-over-chevron-intervention/article20869596/

http://www.csrwire.com/pressreleases/37398-Indigenous-Villagers-Plan-to-Seize-Chevron-s-106-Million-Arbitral-Award-In-Ecuador

http://chevrontoxico.com/assets/docs/chevron-v-yaiguaje-factum-35682.pdf

Position of the Canadian Bar Association:

http://www.cba.org/CBA/news/Message-from-the-President/01-10-14-EN.aspx

 

 

Open letter to The Globe and Mail and The Canadian Bar Association

(published in Report on Business on p. 2, Saturday, Oct. 11, 2014; published in Report on Business online, Friday, Oct. 10, 2014)

From the Online version:
WHAT READERS THINK
Oct. 10: An open letter to the CBA- and other letters to the ROB editor

Link:

http://www.theglobeandmail.com/report-on-business/rob-commentary/oct-10-an-open-letter-to-the-cba–and-other-letters-to-the-rob-editor/article21067533/?cmpid=rss1

Contributed to The Globe and Mail
Published Friday, Oct. 10 2014, 5:26 PM EDT

An open letter to the CBA

Open Letter on the Canadian Bar Association’s intervention in Chevron v. Yaiguaje: We, the undersigned members of the Canadian Bar Association, and former members who have felt compelled to resign over this issue, are writing to express our deep concerns about the CBA’s intervention in the Supreme Court of Canada in the case of Chevron Corp. v. Yaiguaje.

This case involves efforts by indigenous villagers in Ecuador to have Canadian courts enforce, against Chevron’s assets in Canada, a multi-billion dollar pollution judgment obtained in a court in Ecuador. The Ontario Court of Appeal unanimously accepted that the villagers can seek enforcement of the judgment in Canadian courts. Chevron is appealing to the Supreme Court. The CBA has decided to intervene in the Supreme Court to oppose enforcement of the judgment, based on arguments regarding jurisdiction and piercing the corporate veil.

When the CBA intervenes in a case, it is taking a position on behalf of the legal profession as a whole. That cannot be done lightly. The process for making such a decision is critical, as it must ensure that a sufficient consensus exists within the profession in support of the CBA’s position.

In our view, the process by which the CBA decided to intervene in this case was seriously flawed. The intervention was approved by the executive against the advice of its own legislation and law reform committee, the civil litigation “section” (the name for a practice-specific group of lawyers), and the unanimous opposition of the National Sections Council Executive. Relevant sections, including aboriginal law; environmental, energy and resources law; and constitutional and human rights were not consulted. The firm selected to conduct the intervention acts for Chevron in other matters. Recently, following complaints, the issue went to a last-minute meeting of the National Board, but members were denied the right to raise “process concerns.” This is not a legitimate way for the CBA to approve an intervention.

This intervention is also contrary to the CBA’s own intervention regulation. This regulation requires either that the intervention be consistent with an existing CBA policy (there was none here), that it be a matter of compelling public interest that the CBA formally adopts as policy before authorizing the intervention (the CBA has produced no such policy, despite being asked for one), or that it be a matter of special significance to the legal profession (again, none here). There is no question that the Chevron case raises issues of significance. It could clarify the law in this area, and affect how lawyers, particularly corporate counsel, advise their clients. But that is true of almost any case before the Supreme Court. The CBA’s intervention regulation requires more than important legal issues to justify an intervention.

The CBA can hardly be oblivious to the broader implications of intervening in a case in which vulnerable people face tremendous odds in their effort to seek redress for the harm caused to their lands and interests by environmental pollution. If it wants to be broadly representative of the profession in Canada, it has not only to limit its interventions to cases where there is a deep consensus. It also has to ensure that its position does not clash so jarringly with the core values of the bar, including our commitments to access to justice and to the public interest. Chevron can quite readily make its arguments on the corporate veil and the application of the judgments of foreign jurisdictions. It has the means to do so and hardly needs what is only a fraction of the Canadian Bar Association to support its arguments.

We want to express our deep disappointment with the CBA’s decision to pursue this intervention. In doing so, it purports to speak for all of us; it does not. We ask that the CBA immediately reverse its decision to intervene.

Table Officers of the National Aboriginal Law Section (See the full letter and 113 signatories at https://www.facebook.com/CBAChevron)

Signatories to the Open Letter to the CBA re the Chevron Intervention

1. Michael Jerch – Chair of National Aboriginal Law Section; past Chair and Co-Chair of Manitoba Aboriginal Law Section
2. Ming Song – (resigned); Vice-Chair of National Aboriginal Law Section; formerly on National Board of Directors; formerly on National Finance Committee; formerly on B.C. Provincial Council; past Chair and Vice-Chair of B.C. Vancouver Aboriginal Law section; past Chair of Young Lawyers Conference
3. Garth L. Wallbridge – past Chair of National Aboriginal Law Section
4. Peter R. Grant – past Chair of National Aboriginal Law Section; past Chair of B.C. Small Practitioners Section
5. Peter W. Hutchins – past Chair of National Aboriginal Law Section
6. Aimée Craft – past Chair of National Aboriginal Law Section
7. Christopher Devlin – past Chair of National Aboriginal Law Section; National Aboriginal Law Section’s sub-committee on law and legislative reform
8. Jeffrey F. Harris – past Chair of National Aboriginal Law Section; past President of Manitoba Branch
9. Kathryn Deo – (resigned); National Aboriginal Law Section Executive; past Chair and Co-chair of B.C. Vancouver Island Aboriginal Law Section; Co-Chair 2014 National Aboriginal Law Conference
10. Cheryl Milne – Secretary of National Constitutional & Human Rights Section; past Chair of Ontario Constitutional, Civil Liberties and Human Rights Section
11. Derek A. Simon – Secretary of National Aboriginal Law Section
12. Krista Robertson – Treasurer of National Aboriginal Law Section
13. Julie Jai – past Chair of Ontario Aboriginal Law Section and current Executive member; Ontario Constitutional, Civil Liberties & Human Rights Law Section Executive
14. Richard Ogden – Chair of Ontario Aboriginal Law Section
15. Laura Zizzo – Secretary of Ontario Environmental Law Section
16. Matt Boulton – Treasurer of B.C. Vancouver Island Aboriginal Law Section
17. Lorraine Land – (resigned); National Aboriginal Law Section Executive; past Chair of Nunavut Aboriginal Law Section
18. Wade R. Poziomka – Secretary of Ontario Constitutional, Civil Liberties and Human Rights Section; Ontario Labour & Employment Law Section Executive
19. David McRobert – Ontario Aboriginal Law Section Executive; formerly on Ontario Environmental Section Executive
20. Judith Rae – Ontario Aboriginal Law Section Executive
21. Lisa Fong – Vice Chair of National Ethics Professional Responsibility Committee; Treasurer of B.C. Health Law Section
22. Gray Taylor – past Chair of National Environment, Energy & Resources Law Section
23. Diane Soroka – Federal Court Bench and Bar Liaison Committee
24. Veronica Singer – National Equality Committee
25. James McDonald – Co-Chair of Ontario Labour & Employment Law Section
26. Allison Fenske – Chair of Manitoba Aboriginal Law Section; Manitoba representative on the National Pro Bono Committee
27. Bonnie D. Missens – past Vice-Chair Saskatchewan Corporate Counsel North; past Aboriginal Liaison
28. Laura Bowman – (resigned); Ontario Environmental Law Section Executive; past co-Chair of Nunavut Environmental, Energy & Resources Law Section
29. Brian Hebert – past Chair of Nova Scotia Aboriginal Law Section
30. Tim Thielmann – Chair of B.C. Aboriginal Law Section Vancouver Island
31. Leigh Anne Baker – Chair of Yukon Aboriginal Law Section; past co-Chair of B.C. Vancouver Island Aboriginal Law Section
32. Karen Ensslen – Program Coordinator of Ontario Constitutional, Civil Liberties & Human Rights Law Section Executive
33. Lisa Glowacki – Co-Chair of B.C. Constitutional & Civil Liberties Section
34. David Leitch – Ontario Aboriginal Law Section Executive; past Chair of Ontario Official Languages Committee
35. Drew Mildon – B.C. Provincial Council Representative for Victoria County; National Aboriginal Law Section Executive; past Chair of B.C. Vancouver Island Aboriginal Law Section
36. Kate Blomfield – Co-Chair of B.C. Aboriginal Law Vancouver Section
37. Grant J. Gray – past Chair of Criminal Justice Sub-Section for Kelowna, B.C.
38. Kim Gilson – past Chair of Manitoba Aboriginal Law Section
39. Marian Foucault – Secretary of Aboriginal Law Section for Vancouver Island
40. Jeff Langlois – Co-Chair of Vancouver Aboriginal Law Section
41. Caitlin Mason – Legislative Liaison of B.C. Vancouver Island Aboriginal Law Section Executive
42. Mitchell Couling – past Treasurer of B.C. Vancouver Island Aboriginal Law Section
43. Merrill Shepard – National Aboriginal Law Section Executive; past Chair of Vancouver Aboriginal Law Section
44. Jeff Howe – National Aboriginal Law Section Executive
45. Catherine Fagan – National Aboriginal Law Section Executive
46. Robin Campbell – National Aboriginal Law Section Executive
47. Jameela Jeeroburkhan – National Aboriginal Law Section Executive
48. Leah M. Bitternose – Saskatchewan Aboriginal Law Section North
49. Larry Innes – organizing committee of 2014 National Aboriginal Law Conference
50. Holly Vear – B.C. Vancouver Island Aboriginal Law Section Executive
51. Seema Lamba – Ontario Constitutional, Civil Liberties & Human Rights Section Law Executive
52. Ken Stuebing – Ontario Workers’ Compensation Executive
53. Rosanne Kyle – formerly on B.C. Vancouver Aboriginal Law Section Executive
54. Yuki Matsuno – Co-ordinator of B.C. Westminster Family Law Section; formerly Co-Chair of B.C. Women Lawyers Forum (BC) Education Committee
55. Matthew Nefstead – past Legislative Liaison for B.C. Vancouver Island Aboriginal Law Section
56. Susan Ursel – formerly on Ontario Constitutional, Civil Liberties & Human Rights Law Section Executive
57. Kenning Marchant – formerly on National Environment, Energy & Resources Law Section Executive; formerly on National Aboriginal Law Section Executive
58. Kevin Scullion – past Chair and current member of Ontario Aboriginal Law Section Executive
59. Neo J. Tuytel – past Legislative Liaison of B.C. Vancouver Environmental Sub-Section
60. Heather Mahony – past Co-Chair of Aboriginal Law Vancouver Island Section
61. Laura Bonenfant – B.C. Vancouver Island Aboriginal Law Section Executive
62. Janice LaForme – Ontario Aboriginal Law Section Executive
63. Saba Ahmad – Ontario Aboriginal Law Section Executive & newsletter editor
64. Angelina Schliephake – Ontario Aboriginal Law Section Executive
65. Sue Lott – Ontario Constitutional, Civil Liberties and Human Rights Section
66. Camille Labchuk – formerly on Ontario Animal Law Section Executive
67. Katherine Koostachin – Ontario Aboriginal Law Executive
68. Allison Russell – B.C. Vancouver Aboriginal Law Section Executive
69. Alan Hanna – B.C. Vancouver Island Aboriginal Law Section Executive
70. Barry Robinson – Alberta Environmental Law Section-South
71. Kaitlyn Mitchell – Ontario Environmental Law Section Executive; Ontario Animal Law Section Executive
72. Sarah Rauch – B.C. Equality and Diversity Award recipient; Children’s Law Committee
73. Erin Gray – (resigned); member
74. Leah Mack – member
75. Karenna Williams – member
76. James Beddome – member
77. Natasha Gooch – member
78. Eamon Murphy – member
79. Dyna Tuytel – member
80. Stephen Thom – member
81. Camille Israël – member
82. Charles Hatt – member
83. Virginia Mathers – member
84. Maya Stano – member
85. Elin Sigurdson – member
86. Joshua Philips – member
87. Micha J. Menczer – member
88. Matt McPherson – member
89. Charles Vincent – member
90. Michael McClurg – member
91. Anastasia M. Lintner – member
92. Errol Mendes – member
93. Clarine Ostrove – member
94. Crystal Reeves – member
95. Sarah Ciarrocchi – member
96. Jeff Huberman – member
97. Delaney Greig – member
98. Gary W. Wanless – member
99. Gerry Phillips – member
100. Savannah Carr-Wilson – member
101. Mae Price – member
102. Emily Beveridge – member
103. Sam Harrison – member
104. Karey Brooks – member
105. Jim Reynolds – member
106. David Estrin – member
107. Andrew Lemieux – member
108. Kylie Buday – member
109. Brenda Gaertner – member
110. Iliad Nazhad – member
111. Dave Steele – member
112. Tim Watson – member
113. Anne Gregory – member
114. Steven Barrett – member
115. Andrew Unger – member
116. Ethan Poskanzer – member
117. Gavin Kotze – member
118. Sean Jones – member
119. Paul Joffe – member

Last updated Friday, Oct. 10 2014, 5:28 PM EDT