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Peter Foster: Corruption, Pink Floyd and Aboriginal rights walk into Banff’s ‘post-normal’ law conference

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This weekend sees a conference in Banff that should be of interest to all those concerned about the rule of law, and the forces undermining it. Titled “Indigenous Solutions for Environmental Challenges,” the conference’s “context” is the US$8.6 billion (at last count) judgment in an Ecuadorean court against U.S. oil company Chevron. According to the conference’s website, the Chevron case will be used “to consider the critical role of judicial remedies for violations of the rights of indigenous and other affected peoples… both in Canada and beyond.”

With the Trans Mountain pipeline expansion on judicial hold, and capital evacuating the Canadian oil patch due to legislative uncertainties, the topic is timely. But if “hard cases make bad law,” then corrupt cases threaten very bad law indeed.

Two U.S. courts have determined that the Ecuadorean decision was the result of a fraud engineered by U.S. lawyer, Steve Donziger (who will appear at the conference). Donziger claims this is all a Chevron campaign to “vilify him” for innocent “errors in judgment.” Earlier this year, Donziger’s licences to practice law in the U.S. were suspended.

Conference organizer Kathleen Mahoney, a law professor at the University of Calgary, told me this week in an email that she denies the conference is about applying “pressure to bear on Chevron to come to the table,” but those are the words used more than a year ago in her letter to Donziger proposing the conference, and suggesting he support it (the letter is reprinted below). The letter, part of a contempt motion filed by Chevron against Donziger, redacted until recently, was last month ordered fully disclosed by a New York court. The court exhibit shows Donziger passed the letter to colleagues with the comment: “Please do not send around. This is potentially breakthrough stuff…. Kathleen is (former national chief of the Assembly of First Nations) Phil Fontaine’s wife and she is a major force in Canada as a human rights lawyer and activist.”


Phil Fontaine, former three-term national chief of the Assembly of First Nations, at the National Arts Centre with his partner, law professor Kathleen Mahoney.

Caroline Phillips/Ottawa Citizen files

When presented with a copy of her letter this week, Mahoney explained that she had denied writing those words because I had taken them “out of context and created a wrong impression.”

The Chevron case is based on environmental damage arising more than 25 years ago from the operations of Texaco, which Chevron acquired in 2001. Texaco paid for a cleanup and was released from further obligation by the Ecuadorean government. If this really is “the largest environmental catastrophe in the world,” as the conference material claims, that is surely due to the state oil company, Petro-Ecuador, Texaco’s former partner who has since operated in the region.

Donziger has tried to pursue the judgment in numerous jurisdictions, and has to date been universally unsuccessful. In Canada he sought to collect via Chevron subsidiary Chevron Canada. The most recent rejection of his claim was delivered in May by the Ontario Court of Appeal. The judges concluded that the case (argued locally by Toronto lawyer Alan Lenczner) boiled down to “an exhortation that we should do the right thing for his clients, untethered to the jurisprudence, the statutory rights of corporations, or any discernible principle.” Lenczner has sought permission to appeal to the Supreme Court.

Chevron meanwhile is pursuing Donziger for allegedly failing to comply with the provisions of the 2014 racketeering decision against him in the U.S. The oil company alleges that Donziger continues to raise — and keep — money from “investors” to pursue the case, despite a court order that any Ecuador-related moneys should be passed to Chevron.

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Steven Donziger in 2013.

Fred R. Conrad/The New York Times files

The recently unredacted court exhibits filed by Chevron also show those who have been either paid by Donziger or were contracted to receive a share of any settlement. Among them is Fontaine (who is not Mahoney’s husband, but her partner). According to documents disclosed by the court, Fontaine, now a consultant, would receive a small percentage of the proceeds, plus expenses, in return for “political, communication and strategic services.” There is certainly nothing wrong with such work. Fontaine, who is speaking at the conference, did not respond to my request for comment. He has previously consulted for TransCanada on the now-defunct Energy East pipeline. He was criticized for doing so within the Aboriginal community. This consultation is presumably more popular.

Others in line for a piece of any settlement include Roger Waters of iconic rock group Pink Floyd. Waters is to speak at the conference on the “Use of Popular Culture and Music to Inform the Masses.”

The conference seems to represent what might be described as “post-normal law,” which joins post-normal science and post-normal economics in “privileging” feelings and identity over truth. What is important is to get “the right impression.” It is a law of taking sides. (Mahoney, nearing the end of our correspondence, sent me an email asking “Do you work for Chevron?”)

Apart from the Ecuadorean plaintiffs (namely, Donziger), the conference’s “platinum” sponsors include the Laborers’ International Union of North America (LIUNA), and the Centre for International Governance Innovation (CIGI). Why a union would be supporting a crusade that would inevitably cost jobs perhaps requires some explanation to its members. CIGI communications adviser Kristy Smith, when asked about her institution’s involvement, declared that the case against Chevron was “fairly robust.” When asked to elaborate, she replied: “The case has vigor. It dates back to class action lawsuits that began in 1993 so the narrative, history and impact of the case has been significant.”

A post-normal perspective if ever there was one. Never mind the justice. Feel the vigor.

The conference’s gold sponsor is the Social Sciences and Humanities Research Council, a government-funded organization whose grants also support anti-corporate witch-hunts and opposition to Trans Mountain. Perhaps the most surprising sponsor is the Royal Bank. I contacted a spokesperson to ask if the bank knew exactly what it was supporting. I had received no answer by press time.

That Donziger’s corrupt case washed up in Canada is disturbing enough. That it is still going six years later is an indictment of the Canadian legal system. That it is being pursued via a post-normal law conference supported by unions, government-funded institutions and a major bank, and whose organizers seem eager to conceal its purpose, is outrageous.

One conference session is titled “Formation of a Global Movement to Fight Global Corruption.” They might start with Steve Donziger.

———

The following letter was filed as an exhibit in a New York court by Chevron. It was recently ordered publicly disclosed by the judge in the ongoing case in which Steven Donziger has been seeking enforce an Ecuadorian court judgment fining Chevron US$8.6 billion for environmental damage in Ecuador. Several subsequent rulings outside Ecuador have refused to enforce the judgment against Chevron, with courts ruling that the original order was secured by Donziger’s legal team using fraudulent means, including judicial bribery. Donziger denies these were more than “errors in judgment.”

In this letter, sent last year, University of Calgary law professor Kathleen Mahoney suggests to Donziger that a conference in Canada, with the right people attending, could help his case against Chevron — if there were funding available for such an event. The conference, “Indigenous Solutions for Environmental Challenges,” takes place this weekend in Banff. Mahoney and Donziger are both scheduled to present.

Hi Steven,

Thanks for your note. I have as you know a few ideas that could perhaps be of some assistance going forward with the case, one of which is a conference at my university with national and international experts.

The emphasis would be on restorative justice and would bring together experts from a variety of backgrounds — law, environment, history, business, philosophy, climate change specialists, etc., including of course some of the claimants themselves.

The concept would be to re-frame the case, assuming resolution in the form of a win-win settlement If we could get representation from the oil industry here in Calgary, the epicentre of the oil industry in Canada, that would, I think, bring significant pressure to bear on Chevron to come to the table instead of following their scorched earth policy which does not fly well in Canada.

Let me know what you think. I have raised the concept with a few of my senior colleagues at the law faculty and they think it would be a great idea. I would need some significant funding to pull it off. I think if we got funding, we could work on a timeline of having (the) conference in the spring. I could get a lot of law student volunteers I am sure. We also have public interest law clinic that is a possible resource. Let me know what you think,

All the best,

Kathleen

Kathleen Mahoney FRSC, QC

Fellow of the Royal Society of Canada

Trudeau Fellow

Fulbright Fellow

Sir Allen Sewell Fellow

Barrister and Solicitor

Professor of Law

 

 

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