Court Hearing Against Chevron Over $12b Pollution Judgment

Ecuador Indigenous Leaders In Canada for Critical Court Hearing Against Chevron Over $12b Pollution Judgment

TORONTO, Apr. 13 /CSRwire/ -Indigenous peoples and rainforest villagers from the Amazon Defense Coalition of Ecuador (FDA), the grass roots coalition trying to recover a historic $12 billion environmental judgment against Chevron, are scheduled to arrive in Toronto this weekend with the support of the Canadian Assembly of First Nations (AFN) for a four-day tour that will include a critical court hearing in Ontario that could re-shape indigenous rights and corporate law throughout the world.

The hearing, which will take place April 17-18 before a three-judge panel of the Ontario Court of Appeal, will determine whether Chevron can immunize itself from paying the Ecuador judgment by placing its assets in a wholly-owned subsidiary. Several Ecuadorian leaders from the FDA and AFN leaders, including National Chief Perry Bellegarde and former National Chief Phil Fontaine, are expected to attend the hearing.

Led by National Chief Perry Bellegarde, the AFN also passed a resolution by unanimous consent in support of the campaign by the Ecuadorians to enforce their judgment against Chevron’s assets in Canada, which are estimated to be worth at least $15 billion. The resolution called on Canada to consider legislation making it more “expeditious” for Indigenous peoples from other countries to enforce their judgments in Canada given that Chevron has succeeded in delaying resolution of the enforcement action for five years and the larger case for over two decades.

The AFN support for the case followed a high-profile tour of the affected area of Ecuador last September by former National Chief Phil Fontaine and Grand Chief Ed John, both of whom harshly criticized Chevron for failing to clean up billions of gallons of toxic waste it dumped onto ancestral lands and waterways. (See CBC article on trip and press release.) The Amazon area of Ecuador is home to 11 Indigenous groups – the most impacted by oil pollution being the Cofan, Secyoa, Siona, and Huaorani – and dozens of farmer communities.

Assembly of First Nations National Chief Bellegarde stated: “The AFN fully supports Indigenous peoples in all regions. We stand with our brothers and sisters in Ecuador in this lengthy legal battle against Chevron in support of their quest for justice and restitution for the severe environmental damage in their territories. This legal battle has now moved to the Canadian courts. It is critically important that Canada’s courts look at this enforcement action, brought by our relations in the Amazon, in the framework of Indigenous rights and Indigenous legal traditions and that it be resolved so that justice can be achieved.”

The issue in the Chevron matter before the Canadian court has a huge impact on First Nations and on the rights of all Indigenous persons worldwide, said Bellegarde. Chevron has argued that assets held by its wholly-owned Canadian subsidiary, Chevron Canada, should be off-limits to collection on the judgment even though Chevron reaps billions of dollars annually in profits from the subsidiary’s operations. If Chevron’s legal argument holds, it will be virtually impossible for First Nations and all human rights victims to collect on court judgments from private corporations once the corporations place their assets in a wholly-owned subsidiary. For more background on the Canadian enforcement action against Chevron, see this short memo for the media and this more detailed briefing memo.

Rafael Pandam, the President of Ecuador’s Amazonian Parliament who is a member of the FDA delegation, said, “The Indigenous nationalities and farmer communities of Ecuador are grateful to the Assembly of First Nations and all of our supporters in Canada for their support. Our issues with Chevron really impact the rights for all of the world’s 400 million Indigenous peoples. Like all polluters, Chevron must pay court judgments and should not be allowed to run from the law with convoluted technical arguments that undermine fundamental justice after more than two decades of litigation.”

“We are coming to Canada to demand the courts of that country put an end to Chevron’s forum shopping and technical games designed to deprive our people of compensation for the destruction of their lands, waterways, and livelihoods,” said Carmen Cartuche, the President of the FDA, the organization founded in 1994 that represents the interests of the 30,000 peoples in the affected area in the legal case. “We won the trial based on overwhelming evidence. It is time for Chevron to pay up so we can clean up our ancestral lands and deal with the worsening health issues afflicting our communities.”

After an eight-year trial that produced 105 technical evidentiary reports, an Ecuador court in 2011 found that Chevron deliberately discharged billions of gallons of benzene-laced formation waters into the waterways that crisscross ancestral lands. (Here is a summary of the evidence.) The dumping decimated traditional lifestyles and caused an outbreak of cancer and other health problems that have either killed of afflicted thousands of people, according to independent health studies and other evidence presented to the court.

The Ecuador trial court judgment was affirmed unanimously in 2013 by Ecuador’s Supreme Court. (That decision is here.) Chevron had insisted the trial on the environmental claims take place in Ecuador and had accepted jurisdiction there after filing 14 sworn affidavits in U.S. courts praising Ecuador’s court system. The case originally was filed in U.S. courts in 1993.

As the evidence against it mounted in the Ecuador trial, Chevron sold off its assets in the country and vowed to never pay the judgment. It also made its infamous “lifetime of litigation” threat and began retaliatory attacks against community leaders and their lawyers in courts around the world. The company has used at least 60 law firms and 2,000 lawyers on the case and recently was caught paying a witness $2 million to testify falsely about the case in U.S. federal court, leading to a criminal referral letter to the U.S. Department of Justice.

The Ecuadorians came to Canada to enforce the judgment in 2012 given that Chevron has substantial assets in the country and the Canadian court system has a reputation for fairness. Chevron immediately hired four large Canadian law firms and again has been trying to tie up the case in procedural knots, said Patricio Salazar, the lead lawyer for the Ecuadorians. Nevertheless, the Ecuadorians have won three straight unanimous appellate decisions against in Canada, including one from Canada’s Supreme Court on a critical jurisdictional issue.

Members of the FDA delegation will be holding a press event on Monday in downtown Toronto at 11 a.m. The court hearing will take place at 10 a.m. on April 17 and April 18 at the Ontario Court of Appeal at 130 Queen Street West.

For background on the Canadian lawyers for the FDA who are enforcing the Ecuador judgment in Ontario, see this profile of commercial litigator Alan Lenzcner and this profile of indigenous rights lawyer Peter Grant.

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