Coming home to roost

After nearly two years, the Cambior case has finally set foot in court. At stake: the right of people around the world to seek global justice in the global marketplace

by PHILIP PREVILLE

On Wednesday morning, Steve Michelin of the law firm Michelin Cusmariu made a routine trip down to the courthouse at 1 Notre-Dame East in old Montreal. In his hand he held four copies of a document titled "Motion for Authorization to Institute a Class Action," a standard part of the paperwork necessary for any class-action lawsuit: a symbol of jurisprudential red tape, the kind of thing people resent having to pay lawyers for.

His task was simple: he presented the motion to the court clerk for an official judicial stamp. A court bailiff then went to the head offices of Canadian mining giant Cambior Inc., the respondent, to present them with their copy.

With the business-as-usual atmosphere surrounding this little routine, chances are that neither the court clerk nor the bailiff nor the Cambior receptionist had any idea of just how important that document was. In fact, this motion represents a potential legal precedent never before seen in Canada: it argues that an organization representing 23,000 people from a foreign country should be recognized in a Canadian court. And, if granted, the motion could go a long way toward putting an end to environmental piracy in developing countries by Canadian corporations.

For Michelin, one of three Montreal lawyers working on the case, the issue at stake is nothing less than corporate responsibility. "I'm no tree-hugger and we're no environmental law firm," he says. "But if something happens and you're responsible, you have to face the music."

On a smaller scale, the filing of the motion also represents a small moment of triumph for the people involved in the case. It is the culmination of over 18 months of work by three local lawyers: Steve Michelin and James Hughes of Michelin Cusmariu and independent practitioner Kurt Johnson. "The wait has been frustrating," Johnson says, "but it's the reality of the situation, working pro bono with volunteers on a case in which your clients are on another continent."

Back on August 9, 1995, at the Cambior-owned Omai gold mine in Guyana, a former British colony on the northeastern tip of South America, a crack in the wall of a tailings pond released over 3.2 billion litres of cyanide-laced effluent into the Omai and Essequibo rivers. The Guyanese government immediately labelled the area an "ecological disaster zone." In response to the spill, Cambior provided local inhabitants with uncontaminated water for the next 10 days and offered settlements of $150 Canadian to some residents for damages. "Cambior did the most piggish thing in the world," Johnson says. "The disaster happened and they basically did nothing."

In Guyana, opposition to Cambior's tactics quickly galvanized into an organization called the National Committee for Defence Against Omai (NCDAO). But the NCDAO failed to accomplish much at first. The mine reopened less than six months after the spill and has continued to release cyanide-laced sludge into the ecosystem. The NCDAO talked tough, threatened to fight back and found allies and lawyers in Canada. They even served legal notice to Cambior that a lawsuit was forthcoming. That was over a year ago and many observers were convinced the case would never see the light of day in a court of law. Now, as the two-year anniversary of the spill approaches, the gears of the legal system have finally been set in motion.

And those gears have a lot of grinding to do. Civil cases are the trickiest of lawsuits: they force hundreds, sometimes thousands of people--and their lawyers--to jump through a complicated maze of hoops. Before the 23,000 people in Guyana can actually sue Cambior for damages, a judge must first recognize them as a "class" in a Quebec court.

In order to get that recognition, the legal team intends to pull a trick out of the corporate hat: they found what could be a "loophole" in the Quebec Civil Code. The Civil Code says you can sue any company that is domiciled in Quebec, but it doesn't say you have to be a Quebec or a Canadian resident in order to sue them.

Just to be on the safe side, the legal team created a Quebec-based non-profit organization, Recherches Internationales Québec (RIQ), to represent the Guyanese people as the official plaintiff in the case. Still, Johnson says RIQ was not set up as a ruse to fool the court, insisting that "there is nothing written anywhere that says these [Guyanese] people can't be recognized in our courts."

This recognition procedure began with the filing of the motion yesterday and it's a step into uncharted legal territory. "As far as we know, this is unprecedented. A Canadian company has never been held responsible in a domestic court for negligent action in the developing world."

And Johnson says it's this first step--securing the recognition--that has the most far-reaching ramifications. "Once we get into the damages part, those are simply facts specific to the Omai case," Johnson says. "The real precedent is the recognition issue, because it's the one that could apply to other cases."

The bottom line is that if the people of Guyana are recognized in a Canadian court, then people from any other country who find themselves in a similar situation could also be recognized. And that means Canadian companies operating abroad will have to think twice before going ahead with environmentally risky projects. If you're a Canadian multinational, it will no longer be sufficient to have some developing country's government in your back pocket; the people there will now be able to take you to court in your home town.

Karyn Keenan of Probe International, an environmental group which has been actively working with the NCDAO, says using a Canadian court as the forum for this dispute is significant for two reasons. First, she says, "it means the system is finally making the connections between first-world companies and their third-world operations," giving legal weight to what environmental groups have been trying to point out for decades.

Second, it means the settlement can be much larger. "The majority of a company's assets are located in its home country," Keenan says. "Hearing the case in Canada means there's much more money at stake."

So if this is the era of the global marketplace, it may also turn into the era of global litigation. And because of the nature of the case, people from both sides of the fence are keeping close tabs on this one.

Greenpeace Quebec, which is working on a number of similar cases, sees the Omai case as a critical one. "We deplore double standards," says Greenpeace's Johanne Fillion. "Companies can go into developing countries, use old technology, take advantage of lax environmental standards and leave indigenous people with a contaminated ecosystem and food chain.

"There are lots of cases like this one. They do things they could never get away with in Canada. As far as we're concerned, if Cambior is responsible, they should be held responsible in Canada, not in Guyana."

Environmental groups are not the only organizations monitoring the situation. Mining, logging and oil companies--companies that exploit a country's natural resources--are also paying attention to the case, though they are reluctant to comment on it. But Dermod Travis, the Canadian spokesperson for the NCDAO, thinks he knows just how serious this case is for the corporate community. "If this motion is granted and the Guyanese are recognized in a Canadian court," Travis says, "every other mining company in Canada will want Cambior's head on a platter. It won't matter whether damages are awarded or not."

Indeed, Travis's comments raise the spectre of an anticlimactic conclusion to the motion: Cambior may settle out of court before the Guyanese people get any official legal recognition, which would circumvent the precedent altogether. Michelin and Johnson expect there to be a great deal of legal wrangling before they have a chance to argue their motion before a judge.

By all accounts, a lot is riding on that motion. Probe International's Keenan cites a similar case, in which a group of New Guineans tried to sue an Australian company in Australia; once they were granted recognition, the case was settled out of court.

And she underlines the fact that the New Guinean group eventually did get a settlement--and there may be many more such settlements to come in the future. "These kinds of cases are are increasingly frequent," she says. "Groups are bringing cases to court on behalf of people who would otherwise never have legal recourse. It's a significant trend, and it is having an impact."

For more information see The Latin American gold mine