This weekend sees a convention in Banff that ought to be of curiosity to all these involved in regards to the rule of legislation, and the forces undermining it. Titled “Indigenous Options for Environmental Challenges,” the convention’s “context” is the US$eight.6 billion (ultimately depend) judgment in an Ecuadorean court docket towards U.S. oil firm Chevron. Based on the convention’s web site, the Chevron case will probably be used “to contemplate the essential function of judicial treatments for violations of the rights of indigenous and different affected peoples… each in Canada and past.”
With the Trans Mountain pipeline enlargement on judicial maintain, and capital evacuating the Canadian oil patch on account of legislative uncertainties, the subject is well timed. But when “laborious instances make dangerous legislation,” then corrupt instances threaten very dangerous legislation certainly.
Two U.S. courts have decided that the Ecuadorean choice was the results of a fraud engineered by U.S. lawyer, Steve Donziger (who will seem on the convention). Donziger claims that is all a Chevron marketing campaign to “vilify him” for harmless “errors in judgment.” Earlier this yr, Donziger’s licences to apply legislation within the U.S. have been suspended.
Convention organizer Kathleen Mahoney, a legislation professor on the College of Calgary, advised me this week in an e mail that she denies the convention is about making use of “strain to bear on Chevron to return to the desk,” however these are the phrases used greater than a yr in the past in her letter to Donziger proposing the convention, and suggesting he assist it (the letter is reprinted beneath). The letter, a part of a contempt movement filed by Chevron towards Donziger, redacted till lately, was final month ordered totally disclosed by a New York court docket. The court docket exhibit exhibits Donziger handed the letter to colleagues with the remark: “Please don’t ship round. That is doubtlessly breakthrough stuff…. Kathleen is (former nationwide chief of the Meeting of First Nations) Phil Fontaine’s spouse and he or she is a serious pressure in Canada as a human rights lawyer and activist.”
When introduced with a duplicate of her letter this week, Mahoney defined that she had denied writing these phrases as a result of I had taken them “out of context and created a unsuitable impression.”
The Chevron case is predicated on environmental injury arising greater than 25 years in the past from the operations of Texaco, which Chevron acquired in 2001. Texaco paid for a cleanup and was launched from additional obligation by the Ecuadorean authorities. If this actually is “the biggest environmental disaster on the planet,” because the convention materials claims, that’s certainly as a result of state oil firm, Petro-Ecuador, Texaco’s former associate who has since operated within the area.
Donziger has tried to pursue the judgment in quite a few jurisdictions, and has up to now been universally unsuccessful. In Canada he sought to gather through Chevron subsidiary Chevron Canada. The latest rejection of his declare was delivered in Might by the Ontario Court docket of Enchantment. The judges concluded that the case (argued domestically by Toronto lawyer Alan Lenczner) boiled right down to “an exhortation that we should always do the suitable factor for his shoppers, untethered to the jurisprudence, the statutory rights of companies, or any discernible precept.” Lenczner has sought permission to attraction to the Supreme Court docket.
Chevron in the meantime is pursuing Donziger for allegedly failing to adjust to the provisions of the 2014 racketeering choice towards him within the U.S. The oil firm alleges that Donziger continues to lift — and hold — cash from “buyers” to pursue the case, regardless of a court docket order that any Ecuador-related moneys ought to be handed to Chevron.
The lately unredacted court docket reveals filed by Chevron additionally present those that have been both paid by Donziger or have been contracted to obtain a share of any settlement. Amongst them is Fontaine (who will not be Mahoney’s husband, however her associate). Based on paperwork disclosed by the court docket, Fontaine, now a advisor, would obtain a small share of the proceeds, plus bills, in return for “political, communication and strategic providers.” There’s actually nothing unsuitable with such work. Fontaine, who’s talking on the convention, didn’t reply to my request for remark. He has beforehand consulted for TransCanada on the now-defunct Vitality East pipeline. He was criticized for doing so throughout the Aboriginal neighborhood. This session is presumably extra widespread.
Others in line for a chunk of any settlement embrace Roger Waters of iconic rock group Pink Floyd. Waters is to talk on the convention on the “Use of Widespread Tradition and Music to Inform the Plenty.”
The convention appears to symbolize what is likely to be described as “post-normal legislation,” which joins post-normal science and post-normal economics in “privileging” emotions and id over fact. What’s vital is to get “the suitable impression.” It’s a legislation of taking sides. (Mahoney, nearing the top of our correspondence, despatched me an e mail asking “Do you’re employed for Chevron?”)
Other than the Ecuadorean plaintiffs (specifically, Donziger), the convention’s “platinum” sponsors embrace the Laborers’ Worldwide Union of North America (LIUNA), and the Centre for Worldwide Governance Innovation (CIGI). Why a union can be supporting a campaign that will inevitably value jobs maybe requires some rationalization to its members. CIGI communications adviser Kristy Smith, when requested about her establishment’s involvement, declared that the case towards Chevron was “pretty sturdy.” When requested to elaborate, she replied: “The case has vigor. It dates again to class motion lawsuits that started in 1993 so the narrative, historical past and affect of the case has been vital.”
A post-normal perspective if ever there was one. By no means thoughts the justice. Really feel the vigor.
The convention’s gold sponsor is the Social Sciences and Humanities Analysis Council, a government-funded group whose grants additionally assist anti-corporate witch-hunts and opposition to Trans Mountain. Maybe essentially the most shocking sponsor is the Royal Financial institution. I contacted a spokesperson to ask if the financial institution knew precisely what it was supporting. I had obtained no reply by press time.
That Donziger’s corrupt case washed up in Canada is disturbing sufficient. That it’s nonetheless going six years later is an indictment of the Canadian authorized system. That it’s being pursued through a post-normal legislation convention supported by unions, government-funded establishments and a serious financial institution, and whose organizers appear keen to hide its objective, is outrageous.
One convention session is titled “Formation of a International Motion to Battle International Corruption.” They may begin with Steve Donziger.
The next letter was filed as an exhibit in a New York court docket by Chevron. It was lately ordered publicly disclosed by the choose within the ongoing case during which Steven Donziger has been in search of implement an Ecuadorian court docket judgment fining Chevron US$eight.6 billion for environmental injury in Ecuador. A number of subsequent rulings exterior Ecuador have refused to implement the judgment towards Chevron, with courts ruling that the unique order was secured by Donziger’s authorized crew utilizing fraudulent means, together with judicial bribery. Donziger denies these have been greater than “errors in judgment.”
On this letter, despatched final yr, College of Calgary legislation professor Kathleen Mahoney suggests to Donziger convention in Canada, with the suitable individuals attending, may assist his case towards Chevron — if there have been funding accessible for such an occasion. The convention, “Indigenous Options for Environmental Challenges,” takes place this weekend in Banff. Mahoney and Donziger are each scheduled to current.
Thanks to your notice. I’ve as you realize just a few concepts that would maybe be of some help going ahead with the case, considered one of which is a convention at my college with nationwide and worldwide specialists.
The emphasis can be on restorative justice and would deliver collectively specialists from a wide range of backgrounds — legislation, atmosphere, historical past, enterprise, philosophy, local weather change specialists, and many others., together with in fact among the claimants themselves.
The idea can be to re-frame the case, assuming decision within the type of a win-win settlement If we may get illustration from the oil trade right here in Calgary, the epicentre of the oil trade in Canada, that will, I feel, deliver vital strain to bear on Chevron to return to the desk as an alternative of following their scorched earth coverage which doesn’t fly properly in Canada.
Let me know what you assume. I’ve raised the idea with just a few of my senior colleagues on the legislation college and so they assume it could be an incredible thought. I would wish some vital funding to drag it off. I feel if we received funding, we may work on a timeline of getting (the) convention within the spring. I may get a variety of legislation scholar volunteers I’m certain. We even have public curiosity legislation clinic that could be a doable useful resource. Let me know what you assume,
All the very best,
Kathleen Mahoney FRSC, QC
Fellow of the Royal Society of Canada
Sir Allen Sewell Fellow
Barrister and Solicitor
Professor of Regulation