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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.

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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 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)

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Financial services had a role, too

Re High debt, home values could thwart retirements: Sun Life CEO (Oct. 8): Upon reading Tara Perkins's article on certain comments by the chief executive of SunLIfe Financial, I was surprised by a couple of his observations. The suggestion that baby boomers have never experienced a period of rising interest rates ignores most of the decade of the 1980s, which saw mortgage rates rising to nearly 20 per cent. Most of the boomer generation will vividly recall this. The lightly veiled lecture on personal debt levels suggests this is due to inept financial planning by consumers – conveniently omitting reference to the change in market dynamics resulting from the hundreds of millions of dollars spent by the financial services industry to encourage consumers to assume more highly leveraged mortgages (and marketing products to facilitate this) as well as pushing more consumer debt/loans, personal credit lines and, of course, credit cards with ongoing and gratuitous increases in credit limits and facilitation of revolving credit. Consumers are where they are certainly due to some of their own decisions and actions, but also, in no small part, as a result of the ongoing cheerleading of our financial services industry.

Peter Currie, Osgoode, Ont.

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Contractors can tackle LNG obstacles

Re Petronas warns of long delay at LNG venture (Oct. 7): Petronas CEO Shamsul Azhar Abbas warned of higher labour costs for the company's proposed LNG project in British Columbia. The Progressive Contractors Association of Canada (PCA) assures Mr. Shamsul that our work force is capable of tackling the LNG construction challenges ahead with highly skilled and cost-effective labourers. Healthy competition between labour models in Canada has produced more effective labour organization. Each LNG proponent will choose the best labour model or combination thereof ("Open Managed Sites") for their project. PCA is a leader in the progressive unionized labour model. Our member companies build collaborative and multiskilled work forces, offering the most flexibility for B.C.'s evolving labour needs. Research shows that multiskilled journeypersons are more efficient and flexible throughout projects, making them more competitive and cost-effective for investors. Mr. Shamsul can have confidence that progressive unionized contractors are making the best investments in our work force to maintain a competitive edge for B.C.'s LNG future.

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Paul de Jong, president, Progressive Contractors Association of Canada (PCA), Edmonton

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