In Canada, Chevron Trying to Block Ecuadorians From Using U.N. Declaration to Support Historic Pollution Case
Key Courtroom Clash Over Rights of Indigenous Peoples Slated to Take Place in Toronto
TORONTO - In a Canadian court, Chevron is trying to block submission of a legal brief over how the company’s attempt to evade paying a $9.5 billion environmental judgment in Ecuador violates both Canadian and international law regarding the rights of indigenous peoples.
In a submission before the Ontario Court of Appeal in Toronto, Ecuadorian rainforest communities cite the United Nations Declaration on the Rights of Indigenous Peoples in support of their lawsuit to collect the Chevron debt in Canada. The judgment against Chevron was affirmed unanimously in 2013 by Ecuador’s highest court.
A hearing over Chevron’s attempt to block the new argument is scheduled for January 16 before the Ontario Court of Appeal in Toronto. If the submission is allowed, the Ecuadorians plan to use the U.N. Declaration during a critically important appellate hearing scheduled for April that will help determine whether they can seize the assets of a Chevron subsidiary in Canada to force the company to comply with the Ecuador judgment.
“Chevron’s attempt to deny the latest legal petition concerning indigenous rights from being heard is gutless and a sign of the company’s increasing desperation,” said Patricio Salazar, the lead Ecuadorian lawyer for the affected communities.
“The arguments that Chevron is trying to suppress outline in clear terms the numerous ways in which the company has violated international law by polluting indigenous ancestral lands and then deliberately obstructed legitimate efforts to seek compensation through the courts,” said Salazar.
In the legal brief, the Ecuadorian communities cite several provisions of the United Nations Declaration to support their lawsuit to seize Chevron assets in Canada. These include “the right to … prompt decisions through just and fair procedures for the resolution of conflicts” and “fair and equitable compensation” for their territories that have been damaged by oil extraction and other environmental harms.
The U.N. General Assembly approved the Declaration On The Rights of Indigenous Peoples in 2007 by the overwhelming vote of 144-4. The document since has been adopted as domestic law by both Canada and Ecuador, but it obviously did not exist for several years after the litigation against Chevron began in 1993.
Chevron, which sold its assets in Ecuador during the trial, recently had its General Counsel threaten the Ecuadorian communities with a “lifetime of litigation” if they persist in pursing their claims. The case has lasted a whopping 24 years largely because of Chevron’s forum shopping and use of at least 60 law firms and 2,000 legal personnel to file thousands of procedural motions to delay the process at almost every important juncture.
Chevron’s attempt to deny the Ecuadorians the right to file arguments based on indigenous rights – as distinct from simply filing its own legal brief to oppose it – is unusually aggressive, although not surprising given the company’s long record of trying to undermine the claims of the communities. Chevron was found guilty by three layers of courts of Ecuador of having deliberately dumped billions of gallons of toxic oil waste as a cost-saving measure, causing a spike in cancer rates and creating a public health catastrophe. Conditions are so bad that locals call the area the “Amazon Chernobyl”.
For more than two decades, Chevron has tried to block the Ecuadorian communities who live in the Amazon from pressing their claims. The latest Chevron maneuver is to assert that its assets in Canada are immune from collection because they are held by a wholly-owned subsidiary. The communities won the judgment after a hard-fought trial that lasted from 2003 to 2011 and produced 105 technical evidentiary reports relied on by the court to confirm Chevron’s responsibility for the dumping of toxic waste.
Given that Chevron only operates in Canada through its wholly-owned subsidiary, the company is effectively trying to block the indigenous groups from collecting their judgment on a technicality that could negatively impact indigenous rights throughout the world, said Luis Yanza, a community leader in Ecuador and one of the architects of the lawsuit.
“People should justifiably be horrified at the implications of Chevron’s arguments, which could lead to corporate impunity for acts of environmental destruction the world over,” said Yanza, who works with the Front for the Defense of the Amazon, the group that brought the lawsuit on behalf of the dozens of affected Ecuadorian communities.
The latest legal submission cites the U.N. Declaration to argue that if Chevron escapes liability by placing its assets in a subsidiary, then all 400 million indigenous peoples on the planet would effectively have their rights curtailed when they try to obtain compensation from private companies for environmental harms. Chevron operates its oil production operations only through 1,500 wholly-owned subsidiaries around the world.
The submission by the Ecuadorians also cites recent decisions by Canada’s Supreme Court that provide constitutional protection to indigenous rights in the country. “The special relationship of indigenous peoples to their lands has been recognized repeatedly by Canadian courts,” according to the submission.
Canadian indigenous leaders, including former National Chief Phil Fontaine and Grand Chief Ed John, met in September with community leaders in Ecuador's Amazon and toured Chevron’s former production sites before condemning the company for failing to address its pollution problem and for trying to delay the justice process. They also laid a wreath and said prayer at the gravesite of legendary local nurse Rosa Moreno, who recently died of cancer due to exposure to pollution after treating hundreds of local residents for oil-related illnesses over a three-decade career.
Greenpeace co-founder Rex Weyler, who also visited the affected area, sharply criticized Chevron for its failure to address the concerns of the communities in Ecuador where it operated. Chevron in recent years was found to have fabricated evidence to evade paying the Ecuador judgment, leading to a criminal complaint being filed before the United States Department of Justice. (See this article on the case by Weyler.)
Chevron repeatedly has been accused of calculating that it is cheaper to pay hundreds of lawyers to extend the litigation rather than pay for a comprehensive clean-up of the damage it caused to the indigenous and farmer communities in the rainforest, said Salazar.
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