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The CBA's Chevron Intervention: Why many Canadian

lawyers are appalled

http://www.hazmatmag.com/columns/cbas-chevron-intervention-many-canadian-lawyers-

appalled/

October 13, 2014

by David S. McRobert

The 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

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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.

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

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.

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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

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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

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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

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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

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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

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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

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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

David S. McRobert

David S. McRobert is an Ontario environmental lawyer, author and university lecturer. Between

October 1994 and June 2010, he was In-House Counsel and Senior Policy Advisor at the

Environmental Commissioner of Ontario and was involved in the establishment of the office.

Before that McRobert was a senior policy advisor in the Waste Reduction Office in the Ontario

Ministry of the Environment. From 1989 to 1991 he coordinated research and advocacy on waste

management and global warming at Pollution Probe. He also has worked for the Workplace

Health and Safety Agency in Toronto, the Ontario Round Table on Environment and Economy,

the Ministry of Labour and the Ministry of the Attorney General.

All posts by David S. McRobert

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