Panel 1A: Transnational Human Rights Based Tort Litigation
Séance 1A: Litiges en responsabilité délictuelle basés sur les droits de l’homme transnationaux
November 13, 2014
Founder and CEO,
Philippe Kirsch Institute
Weir Foulds LLP
Frances A. Vasques
White and Case LLP
B.A Global Politics and Communication Studies
The core issues discussed during this panel concern civil litigation in relation to human rights abuses by resource extraction industries. Although the way in which international law should be interpreted for these cases remains widely contested, there is a steady progression towards a consistent means of evaluating this type of subject matter in Canada.
Scott Fairley began with the case of The Presbyterian Church of Sudan, et al v. Talisman Energy, Inc. This is a case in which Talisman Energy, a Calgary-based energy and natural resources company, was ultimately sued in the U.S. Federal Court for human rights violations in Sudan. The question here is, could cases like this be entertained in Canadian courts? The answer is yes, they already have; however, it is important to understand the underlying factors within American legal development, particularly this new kind of international tort litigation. This U.S. development is the emergence of Alien Tort Statute (ATS) litigation. ATS grants jurisdiction to U.S. federal courts on “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Canada doesn’t have an “ATS,” although there have been many attempts to get it. The Canadian counterpart is our plain common-law. The speakers all agreed that our domestic law will be influenced greatly by international law in the future.
Frances A. Vasquez stated that the case of Kiobel v. Royal Dutch Petroleum set a precedence that made future cases be dismissed due to lack of U.S. context. The issue was that Nigerian nationals alleged that Royal Dutch aided and abetted the Nigerian Government in committing international law violations in Nigeria. On appeal the entire complaint was dismissed on the grounds that international law did not recognize corporate liability. The mere corporate presence of defendants in the United States was not enough to create “domestic claim” under the ATS. The speakers agreed within this discussion that Kiobel brought up the question of corporate liability, especially with in the context of statutory interpretation. The case of Mastafa v. Chevron Corp is currently ongoing and facing these problems. The speakers noted that liability for the “aiding and abetting” of parent corporations is recognizable under customary international law within Canada.
This is where Murray Klippenstein introduces Canadian domestic tort liability based on violations of international law. Based on the doctrine of adoption, rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The incorporation of such rules is justified because international customary laws, like the law of nations, is also the law of Canada. The current case Klippenstein is working on, Choc v. Hudbay, is being approached as a pure tort case, from the ground up. The case involves human rights abuses in Guatemala having to do with a gang rape as well as a torturous public murder. The parent corporation is being completely negligent; at the Supreme Court, Klippenstein stated, “We are not changing the law, we are simply applying the law.” He chose to emphasize the rule of law in this matter and as a result, Justice Brown accepted that. James Yap followed up by stating that what is going on here are indeed crimes against humanity. These extraction companies need to be held liable, therefore the application of common law of negligence law is appropriate. Hudbay is still at trial and there have been numerous cross-examinations of the plaintiffs being held across Canada. Klippenstein believes that the plaintiffs are incredibly powerful in the search for the ultimate truth.
Conclusively, even in the absence of a statutory equivalent of ATS, international tort litigation has arrived in Canada to address these pressing concerns. International human rights/civil litigation will continue to ensure that extraction companies be held liable for any negligence. There is indeed no shortage of existing law to apply in the wake of alleged serious abuses of international human rights.