Peter Foster: Environmentalists around the world are trying to drag Canada’s legal system into disgrace

Financial Post 09/09/2016

If the Chevron suit isn’t thrown out, it will be another embarrassment for the Canadian legal system

Corporations have become increasingly vulnerable to reputational damage inflicted by powerful environmental organizations that misrepresent business activities and intimidate customers. Companies also find themselves subject to shakedowns over alleged environmental damage. It is all too rare for business to fight back, but two of the most significant examples are currently making their way through the Canadian judicial system.

The first is the suit brought by Montreal-based Resolute Forest Products against Greenpeace alleging “defamation, malicious falsehood and intentional interference with economic relations.” The second involves Chevron Corp.’s stout opposition to U.S. lawyer Steve Donziger’s attempt to bring a corrupt Ecuadorian judgment to Canada.

The two cases were linked this week when Greenpeace joined the assault on Chevron.

Last week, Resolute suffered an apparent setback when its attempt to bring into evidence Greenpeace’s persistent pattern of illegality worldwide was rejected by an Ontario Superior Court. At times it appeared as if Justice D.L. Corbett, who wrote the decision, was trying to bail Greenpeace out of its own defence. He asserted that the case wasn’t about Greenpeace as a global activist organization, even though Greenpeace itself had claimed that it was. He suggested that to investigate Greenpeace’s global reach would be like dragging in the entire forest industry. But forestry companies are entirely different and separate organizations, Greenpeace is not. He struck down Resolute’s claims about Greenpeace’s intimidation tactics, even though Greenpeace had never refuted them. He refused Resolute the right to amend its reply to Greenpeace’s defence. He also awarded Greenpeace costs.

This all looked suspiciously like left-leaning judicial activism.

There is abundant evidence that various Greenpeace national affiliates have been party to the intimidation of Resolute’s overseas customers. Also, Greenpeace’s fearsome reputation undoubtedly influences companies’ response to its approaches, so the source of that reputation would appear to be highly relevant. Greenpeace has certainly bullied companies — including Best Buy — to curtail business with Resolute, and has bragged about how much business it has cost the forestry giant.

Meanwhile the environmental attack dog has, as noted, suddenly popped up in the Chevron case, joining a bunch of Usual Suspect ENGOs — along with Unifor and the United Steelworkers — in an “Open Letter to the People of Canada.” The letter calls for “the authorities” to stop Chevron’s Canadian subsidiary from selling assets, as if the corporation might suddenly skip Canada under the cover of night, leaving its obligations unpaid.
As noted recently in this space, Canada represents the last hope for the rancid US$9.5 billion claim brought by Donziger — allegedly on behalf of poor, sick Ecuadorean villagers (whose condition has a lot more to do with their lousy government) — against the California-based oil giant. Last month, a U.S. appeal court unanimously affirmed a lower court finding that the claim was the product of fraud, racketeering, and judicial bribery. Donziger has also suffered legal setbacks in Brazil and Gibraltar.

As part of a last desperate Canadian push, ENGOs have been recruited to promote yet another pastiche of untruths, starting with the claim that the Supreme Court of Canada has expressed sympathy with the Ecuadorian case. In fact, it merely decided that the case could be tried here (although that was a controversial decision). A second well-worn false claim relates to Chevron’s alleged bribing of an Ecuadorian judge.

The letter and accompanying press release are filled with pompous comments from ENGOs. Particularly intriguing is one from Greenpeace Canada’s Melina Laboucan-Massimo: “The Canadian environmental and human rights community has joined forces with the affected communities in Ecuador because we recognize this to be one of the most important corporate accountability cases in history… Chevron must not be allowed to evade its legal and moral responsibilities simply because it has the might to fight on indefinitely in the courts.”

This statement is intriguing because Resolute’s case against Greenpeace is one of the most important cases involving ENGO accountability in history, one that Greenpeace’s considerable resources have enabled it to drag out (aided by a lethargic Canadian judiciary) rather than face its day in court.

Beatrice Olivastri, CEO of Friends of the Earth Canada, bloviated that “Canadians are working to make our country a place where the victims of transnational corporations can find justice.”

But the notion that every corporate shakedown on earth might wash up in Canada, inspired by the success of Donziger and his Ecuadorian cronies (including the country’s president Rafael Correa) in getting their case heard, could bring Canada’s legal system to a halt, not to mention into disrepute.

It seems that fraudulent overseas cases can be pursued in Canada, but legitimate Canadian cases cannot take into account persecutors’ illegal activities overseas. Greenpeace Canada can grandstand about Chevron in Ecuador, but Resolute cannot even mention Greenpeace’s lawless modus operandi in other countries. Meanwhile Greenpeace continues to claim that Resolute is a “Forest Destroyer.”

Greenpeace USA and its affiliates may not have such an easy time with Resolute’s RICO suit in the U.S. Meanwhile if the Chevron suit isn’t thrown out, it will be another embarrassment for the Canadian legal system, and raise questions about the ever-increasing irresponsible power of the environmental movement, and those in the political and legal community who facilitate it.