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Ottawa aids firm in genocide case
Talisman sued in U.S. over Sudan role
Washington asked to intervene in court
RICK WESTHEAD AND MADELAINE DROHAN
TORONTO STAR
As Prime Minister Paul Martin joins other leaders of the world's eight major industrialized nations today in a summit focusing on aid for Africa, documents show his government asked the U.S. government this year to persuade its courts to dismiss a suit against Talisman Energy Corp. for assisting genocide in Sudan.
The Calgary-based oil company is being sued in U.S. District Court in New York by the Presbyterian Church of Sudan and a number of Sudanese individuals for complicity in genocide perpetrated by the Sudanese government.
Talisman, which sold its Sudanese oil operations in 2003, denies the claim.
Talisman spokesperson Barry Nelson said yesterday he couldn't comment on the diplomatic efforts because the U.S. judge had imposed a gag order on the litigants.
"The judge in the case has cautioned both parties not to try the case in the media," Nelson said.
Still, the company has persuaded Ottawa — and through it, the U.S. government — to weigh in on its side to have the case dismissed.
Documents obtained by the Toronto Star show Martin's government sent two diplomatic notes to Washington — one last July and the most recent this year — complaining that trying a Canadian company in a U.S. court raises serious foreign policy issues.
In a six-page diplomatic note to the U.S. State Department, Ottawa asked that U.S. officials intervene in an ongoing class action lawsuit filed four years ago against Talisman by Sudanese refugees who charge the Calgary company stood by as Sudan's military murdered and displaced thousands of people living on or near prospective oil exploration sites.
"The `Talisman case' is problematic," says the note, which is initialled, bears the official seal of Canada's embassy in Washington and was sent Jan. 14.
The memo goes on to say the U.S. court's action "infringes on Canada's conduct of foreign policy" and that by assuming jurisdiction over Talisman, whose shares are widely available for trading on the New York Stock Exchange, the U.S. courts have created a "chilling effect" on Canadian companies considering investing in Sudan.
If the lawsuit in New York proceeds and Canadian exporters and investors were to abandon plans for Sudan, the note claims, "our ability to promise `peace dividends' to the Sudanese, using the trade support services carrot and stick approach would thus effectively be eliminated by the U.S. courts."
After receiving the recent missive from Canada, the State Department asked the U.S. Department of Justice to send a similar note of concern to the court, which it did on March 15.
The State Department said it took no position on whether Talisman was guilty of the allegations, but shared Ottawa's concern about trying a Canadian company in a U.S. court for activities that took place in another country. The court has asked all parties involved in the case to file submissions on this question and will rule on this particular point later.
The chain of events involving the two governments dates back to March 2004, when Talisman sent a letter to Martin's senior foreign policy adviser outlining ways the government could help Talisman in the court case. That letter, obtained under Access to Information, suggested the government argue the court case was an extraterritorial application of U.S. law. The government subsequently made this exact claim in its diplomatic notes.
Last night, the federal government said its interest in the case stemmed from its contention that the U.S. court does not have jurisdiction in a legal matter involving a Canadian company operating in Africa.
Sébastien Théberge, a spokesman for Foreign Affairs Minister Pierre Pettigrew, said Canada was not an active participant in the legal proceedings.
"Canada did not intervene in this case, nor did we file any document in the court," he told the Star's Les Whittington. "However, we have expressed to the United States that a U.S. court was exercising extraterritorial jurisdiction."
Théberge declined to comment when asked if the government was concerned about public reaction in Canada to the developments in the case.
Meanwhile, independent MP David Kilgour sent a letter to the Prime Minister yesterday, criticizing the government's support of Talisman.
"Many view such an intervention as a demonstration of a lack of concern for justice for the victims of the regime's brutal oil-fuelled crimes against humanity in southern Sudan," Kilgour wrote.
Noah Novogrodsky, director of the University of Toronto's International Human Rights Program, said in an interview it is not unusual for a foreign government to make its views known in a court case, but they usually do it themselves by filing what is called an amicus brief.
"What's troubling in this case is that it's not very transparent," the lawyer said.
"I think this case is embarrassing for the government of Canada because it demonstrates the shortcomings of Canadian law," he said, adding Canadian law is "inadequate" for dealing with serious crimes like genocide and needs to be changed.
Securing Ottawa's support is only one of a number of tactics Talisman has used to try to get the case thrown out of U.S. court. Its lawyers had argued the case should be heard in either Sudan or Canada. However, a U.S. judge ruled in 2003 that it should continue in the U.S. because the plaintiffs could not get a fair hearing in Sudan, and Canada did not have a sufficiently strong law on genocide.
Talisman tried to have the case dismissed again, arguing that corporations should not be subject to international law. That reasoning was rejected last month by U.S. District Court Judge Denise Cote, who said there was no legal basis to dismiss the four-year-old suit and pointed out that "corporations may be held liable under international law."
Talisman's roots in Sudan date to August 1998 when the Calgary company announced it had made a friendly $295 million bid to buy Arakis Energy Corp., whose assets included a one-quarter stake in the Greater Nile Petroleum Operating Co.
Within months of Talisman's arrival in the East African nation, the company came under fire for the investment amid charges it had been complicit in the Sudanese government's move to displace hundreds of thousands of civilians as it bolstered its control of more oilfields.
But it has steadfastly denied that.
The Martin government's actions are a far cry from those of the previous Liberal government. In 1999, then-foreign affairs minister Lloyd Axworthy commissioned a report on whether Talisman's presence in Sudan was exacerbating the war there. The review reported that this was the case, but did not recommend sanctions.
(Arakis Energy Corp... Someone did NOT properly read Dune! (or thought the Harkonen were cool...))
Other than that, wtf? "We want the company to be tried in Canada because our genocide laws are weaker!" Now that's the Canada I know and love.
Talisman sued in U.S. over Sudan role
Washington asked to intervene in court
RICK WESTHEAD AND MADELAINE DROHAN
TORONTO STAR
As Prime Minister Paul Martin joins other leaders of the world's eight major industrialized nations today in a summit focusing on aid for Africa, documents show his government asked the U.S. government this year to persuade its courts to dismiss a suit against Talisman Energy Corp. for assisting genocide in Sudan.
The Calgary-based oil company is being sued in U.S. District Court in New York by the Presbyterian Church of Sudan and a number of Sudanese individuals for complicity in genocide perpetrated by the Sudanese government.
Talisman, which sold its Sudanese oil operations in 2003, denies the claim.
Talisman spokesperson Barry Nelson said yesterday he couldn't comment on the diplomatic efforts because the U.S. judge had imposed a gag order on the litigants.
"The judge in the case has cautioned both parties not to try the case in the media," Nelson said.
Still, the company has persuaded Ottawa — and through it, the U.S. government — to weigh in on its side to have the case dismissed.
Documents obtained by the Toronto Star show Martin's government sent two diplomatic notes to Washington — one last July and the most recent this year — complaining that trying a Canadian company in a U.S. court raises serious foreign policy issues.
In a six-page diplomatic note to the U.S. State Department, Ottawa asked that U.S. officials intervene in an ongoing class action lawsuit filed four years ago against Talisman by Sudanese refugees who charge the Calgary company stood by as Sudan's military murdered and displaced thousands of people living on or near prospective oil exploration sites.
"The `Talisman case' is problematic," says the note, which is initialled, bears the official seal of Canada's embassy in Washington and was sent Jan. 14.
The memo goes on to say the U.S. court's action "infringes on Canada's conduct of foreign policy" and that by assuming jurisdiction over Talisman, whose shares are widely available for trading on the New York Stock Exchange, the U.S. courts have created a "chilling effect" on Canadian companies considering investing in Sudan.
If the lawsuit in New York proceeds and Canadian exporters and investors were to abandon plans for Sudan, the note claims, "our ability to promise `peace dividends' to the Sudanese, using the trade support services carrot and stick approach would thus effectively be eliminated by the U.S. courts."
After receiving the recent missive from Canada, the State Department asked the U.S. Department of Justice to send a similar note of concern to the court, which it did on March 15.
The State Department said it took no position on whether Talisman was guilty of the allegations, but shared Ottawa's concern about trying a Canadian company in a U.S. court for activities that took place in another country. The court has asked all parties involved in the case to file submissions on this question and will rule on this particular point later.
The chain of events involving the two governments dates back to March 2004, when Talisman sent a letter to Martin's senior foreign policy adviser outlining ways the government could help Talisman in the court case. That letter, obtained under Access to Information, suggested the government argue the court case was an extraterritorial application of U.S. law. The government subsequently made this exact claim in its diplomatic notes.
Last night, the federal government said its interest in the case stemmed from its contention that the U.S. court does not have jurisdiction in a legal matter involving a Canadian company operating in Africa.
Sébastien Théberge, a spokesman for Foreign Affairs Minister Pierre Pettigrew, said Canada was not an active participant in the legal proceedings.
"Canada did not intervene in this case, nor did we file any document in the court," he told the Star's Les Whittington. "However, we have expressed to the United States that a U.S. court was exercising extraterritorial jurisdiction."
Théberge declined to comment when asked if the government was concerned about public reaction in Canada to the developments in the case.
Meanwhile, independent MP David Kilgour sent a letter to the Prime Minister yesterday, criticizing the government's support of Talisman.
"Many view such an intervention as a demonstration of a lack of concern for justice for the victims of the regime's brutal oil-fuelled crimes against humanity in southern Sudan," Kilgour wrote.
Noah Novogrodsky, director of the University of Toronto's International Human Rights Program, said in an interview it is not unusual for a foreign government to make its views known in a court case, but they usually do it themselves by filing what is called an amicus brief.
"What's troubling in this case is that it's not very transparent," the lawyer said.
"I think this case is embarrassing for the government of Canada because it demonstrates the shortcomings of Canadian law," he said, adding Canadian law is "inadequate" for dealing with serious crimes like genocide and needs to be changed.
Securing Ottawa's support is only one of a number of tactics Talisman has used to try to get the case thrown out of U.S. court. Its lawyers had argued the case should be heard in either Sudan or Canada. However, a U.S. judge ruled in 2003 that it should continue in the U.S. because the plaintiffs could not get a fair hearing in Sudan, and Canada did not have a sufficiently strong law on genocide.
Talisman tried to have the case dismissed again, arguing that corporations should not be subject to international law. That reasoning was rejected last month by U.S. District Court Judge Denise Cote, who said there was no legal basis to dismiss the four-year-old suit and pointed out that "corporations may be held liable under international law."
Talisman's roots in Sudan date to August 1998 when the Calgary company announced it had made a friendly $295 million bid to buy Arakis Energy Corp., whose assets included a one-quarter stake in the Greater Nile Petroleum Operating Co.
Within months of Talisman's arrival in the East African nation, the company came under fire for the investment amid charges it had been complicit in the Sudanese government's move to displace hundreds of thousands of civilians as it bolstered its control of more oilfields.
But it has steadfastly denied that.
The Martin government's actions are a far cry from those of the previous Liberal government. In 1999, then-foreign affairs minister Lloyd Axworthy commissioned a report on whether Talisman's presence in Sudan was exacerbating the war there. The review reported that this was the case, but did not recommend sanctions.
(Arakis Energy Corp... Someone did NOT properly read Dune! (or thought the Harkonen were cool...))
Other than that, wtf? "We want the company to be tried in Canada because our genocide laws are weaker!" Now that's the Canada I know and love.