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Fighting SLAPPs

No to Trans Mountain Pipeline Vancouver

How do we protect the democratic right to freedom of expression and assembly from huge multinational corporations that have almost unlimited resources and influence? Surely, ordinary citizens don't stand a chance.

This conclusion is wrong! We must overcome our cynicism and fear and begin to learn from those who have stopped multinationals in their tracks. In a recent book on SLAPP suits and community action, for example, Normand Landry maintains that to be successful against giant corporations we have to "...weaken the networks of support available to corporations that use SLAPP suits, break their economic alliances, counter their public relations campaigns and attack their public images" and Landry maintains "this has been done successfully in Quebec, Canada, Europe, Australia and the United States." (Landry, 2014)

We know it has been done in British Columbia as several recent SLAPP suits by transnationals demonstrate. So, what do we do? Based on a study of collective action against SLAPP suits, Landry argues that to be successful we need to:

. illustrate the excessive nature of the legal actions of the corporation issuing the SLAPP suit;

. show clearly the imbalances that exist between the parties;

. publicly contrast the public interest of the defendants' actions to the private interests (associated with greed and egotism) of the party that has instigated the legal proceedings;

. deal with the human consequences of these actions - and oppose, therefore, the dehumanization associated with legal disputes;

. position the conflict not as a private dispute but as a public issue that determines and defines the limitations of the political rights of a community.

Landry issues the following important caution, as do many other organizers: "The real danger of these proposed actions [demonstrations] is that the misdeeds of activists will serve the cause of the parties that instigated proceedings after public participation by the defendants. Hence the frequent appeal of lawyers [for] caution and withdrawal.... These misdeeds can be made up of verbal offences toward the plaintiffs, the use of language that can be instrumentalized by the opposing party before the courts or the exercise of illegal actions (civil disobedience can, at this stage, antagonize the courts). Caution, therefore, is always a good idea on these questions." (Landry, 2014)

Pablo Iglesias, the founder of a new Spanish political party and Professor of Political Science, explains how he helped build an effective social movement and political party in Spain. Iglesias argues that demonstrators must be careful at every stage about how they are seen and characterized, using much more graphic language to convince volunteers how to build a movement.Iglesias argues that wearing clothes and carrying flags that don't resonate with the ordinary person is counter-productive and warns people away rather than brining them into the movement. For Iglesias, "That’s how the enemy wants us. He want us small, speaking a language no one understands, in a minority, hiding behind our traditional symbols. He is delighted with that, because he knows that as long as we are like that, we are not dangerous." (Iglesias, 2014)

John Sanbonmatsu makes the same point. In answer to a question about organizing social movements, he points to the success of the civil rights movement and argues that the present emphasis of the "politics of expression" has failed. He notes that "there's no reason to fetishize expression today. And in fact, perhaps it's gotten in the way of an efficacious politics." In other words, demonstrators shouting out whatever comes to mind is not always the best idea and that strategy and planning is important and should not be replaced by allowing a so-called "diversity of tactics."(Sanbonmatsu, 2013)

The key to success is to effectively utilize traditional and social media to educate family, friends and colleagues to the problem of the lack of protections for speaking out and organizing protests against projects that will have environmental harm. We need to organize mass demonstrations and town halls to build a movement - not a series of events - against destructive corporate practices. We need to resist corporate and government bullying tactics and build a movement that can effectively protect the environment in the long term. To do this we need to understand the basics of organizing and demonstrating. We can't fall victim to the notion that every strategy and tactic is effective and that a lack of coordination will be successful in building an effective environmental movement. We need to work with the media and elected officials when ever possible. In the case of Kinder Morgan, everyone including the corporate giant realized that it had created a nightmare and that it had lost all social license.

The notion that bringing people together just to protest without working to build a movement based on common principles just doesn't work in the long term. We have a short term emotional release, but no long term change. Long term change requires coordination, planning and shared values about how to organize. Drama and spectacle are short term. Building community based on mutual respect and dialogue is long term.

One of the key elements of a successful strategy is enlisting elected officials to the fight for anti-SLAPP legislation. Over 28 States in the US have anti-SLAPP legislation as does Australia and Quebec and an anti-SLAPP bill is before the Ontario legislature. The BC NDP also introduced an ANti-SLAPP Act in May 2015 in British Columbia. However, the BC NDP proposal is still a long way from being enacted. Landry explains that the The necessary conditions for governments to adopt anti-SLAPP law depends on three things:

. The presence of dramatic cases of SLAPP suits;

. The urgency and necessity of taking action, and;

. The existence of clear, effective legislative remedies relatively easy to adopt and that could be applied to correct the situation.

These conditions came together in the early 1990s when the BC NDP government enacted the first anti-SLAPP legislation in Canada, following the demands of environmental and other civil society groups, and the lead of a growing number of jurisdictions in the United States. While the BC anti-SLAPP legislation had serious flaws in its final form, it recognized a real need and the possibility of a solution.(1)

We have to build on this early attempt to develop effective legislation and begin once again to build a social movement to convince elected leaders of the need for law reform. As Normand Landry argues, these same social and political conditions moved politicians in Quebec to enact anti-SLAPP legislation and more recently in Ontario where an anti-SLAPP bill is in second reading before the Ontario legislature.(2) The same conditions motivated the BC NDP to introduce anti-SLAPP legislation in May 2015 after Kinder Morgan's failed attempt to silence protestors on Burnaby Mountain.

However, while these are obviously necessary conditions: they are not sufficient for the enactment of anti-SLAPP legislation by government. There are enormous benefits to stopping anti-SLAPP legislation and one barrier can be the incentive of corporations and/or interested parties to ensure by one means or another that politicians do not enact anti-SLAPP laws. This is arguably why anti-SLAPP legislation has not been re-enacted in BC since the first BC NDP legislation. Nevertheless, while corporations seek to move political debates and protests over the protection of the environment from a public forum to the private sphere of the courts, residents, environmental groups, unions, associations are following the example of other provinces and countries to stop SLAPP suits.

Clearly, there have been dramatic cases of SLAPP suits in BC that gave force to the enactment of legislation. In particular, the Trans Mountain civil suit against five defendants on Burnaby Mountain Conservation Land drew national and international attention. Kinder Morgan through its Canadian subsidiary, Trans Mountain, drew large-scale demonstrations against drilling and seismic testing on Burnaby Mountain Conservation Land. The demonstrations began in advance of plans to bore a hole through Burnaby Mountain to construct a pipeline to carry diluted bitumen from the Alberta tar sands to the Westridge terminal where huge Aframax class tankers will ship it through Burrard Inlet and second narrows for processing largely in China.

The demonstrations were almost continuous from September 2014 through December 2014 when Trans Mountain work was completed. The demonstrations grew from a few concerned Burnaby residents to many hundreds of people, some from other coastal areas of BC and some from across Canada and generated largely sympathetic local and national media coverage. Following the demonstrations and on the heels of a $5.6 million civil suit against five defendants. But after a series of Trans Mountain fiascos and mounting negative media, the company offered the five defendants a "discontinuance." A discontinuance simply put the civil suit to sleep without providing any guarantee to the defendants of settlement of payment for damages or court costs. The offer generated more media attention when two defendants accepted Kinder Morgan's offer, but nothing like the media coverage when one defendant took Trans Mountain back to court arguing for recognition of the civil suit as a SLAPP suit and court costs. By May 2015, even the industry was warning corporations that:

“… as the public reaction to Kinder Morgan’s suit shows, energy companies should use their legal recourse in the courts – however it might be defined – with both caution and restraint. Both Coleman and Cowan say that companies should carefully consider the optics of engaging in a suit against a critic rather than engaging with critics in an open dialogue. To the public, a case that is dismissed as a SLAPP is often seen as an attempt by a company to gag a small, independent critic. Public support tends to fall with the oppressed – whether the oppression is perceived or real.” (Alberta Oil Magazine, May 2015)

It is true that Kinder Morgan had created a public relations nightmare for itself and the President of Trans Mountain was forced to appear on television to say that the $5.6 million civil suit was going to be discontinued with payment for costs. One of the defendants, Alan Dutton, who had refused to settle challenged Trans Mountain in court, arguing that it was not a settlement, did not deal with charges of defamation and adequately deal with the mounting costs of defense and argued that the lawsuit was, in fact, a SLAPP suit. The resistance to Trans Mountain kept growing as residents realized that the promises were hollow and that "settlement" did not mean the end of the legal and political fight with Kinder Morgan.

Against this backdrop, Jane Shin, a Member of the BC Legislature for Burnaby-Lougheed, urged strong action and began to organize constituency meetings. The Environmental Defense Working Group (EDWG) received two grants from West Coast Environmental Law and hired a law firm to draft recommendations for effective anti-SLAPP legislation and began a series of consultations with political leaders to support legislation.

In May 2015 Leonard Krog, MP for Nanaimo and Justice critic for the BC NDP, introduced an anti-SLAPP Bill in the 2015 Spring sitting of the BC legislature. The Bill waits for second reading.

The EDWG has since met with members of the NDP caucus to discuss legislative recommendations and is starting to meet with unions and affected groups and Dutton is pursuing other legal action as well as organizing resistance. The EDWG recommendations can be found here.

Help us push back against transnationals. Join the movement.

Notes

(1) For a history of Canada's first anti-SLAPP legislation and recommendations for effective anti-SLAPP legislation, see Scott, Michaelin and Chris Tollefson (2010) and West Coast Environmental Law's (2000) "Developing a Response to Strategic Lawsuits Against Public Participation." For current proposals for effective legislation click here.

(2) See Bill 52, An Act to amend the Courts of Justice Act, the Libel and Slander Act and in order to protect expression on matters of public interest, 1st Sess, 41st Leg, Ontario, 2014 (second reading March 23, 2015)

References

Alberta Oil Magazine May 2015 http://www.albertaoilmagazine.com/2015/04/anti-slapp-laws-canada-energy-...

Anti-SLAPP Advisory Panel (Ontario): Report to the Attorney General, "Moran Report". 2010.

Canan, Penelope and George W. Pring. 1988. "Strategic Lawsuits Against Public Participation." Social Problems, Vol. 35, No. 5

__________. 1988. "Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches." Law and Society Review, Vol. 22, No 2.

Chantler, Neil. 2015. "Suggestions for a New and Improved Protection of Public Participation Act for BC." Vancouver, Environmental Defence Working Group.

Iglesias, Pablo. "What it takes to build mass movements." (https://www.jacobinmag.com/2014/12/pablo-iglesias-podemos-left-speech/).

Landry, Norman. 2014. Threatening Democracy: SLAPPS and the Judicial Repression of Political Discourse. Winnipeg, Fernwood Book Publishing.

Pring, George and Penelope Canan. 1996. SLAPPS: Getting Sued for Speaking Out.Philadelphia, Temple University Press.

Sanbonmatsu, John. "Postmodernism and the Politics of Expression" in Capital and Its Discontents: Conversations with Radical Thinkers in a Time of Tumult. Sasha Lilley (Ed.), 2011. PM Press, Oakland.

Scott, Michaelin and Chris Tollefson. 2010. "Strategic Lawsuits Against Public Participation: The British Columbia Experience." Review of European and Community International Environmental Law 19(1): 45-57.

Sheldrick, Byron. 2014. Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression.Wilfred Laurier University Press.

Shragge, Jeremy E. 2011. “Recommended Legislative Measures to Counter Strategic Lawsuits Against Public Participation.”

West Coast Environmental Law. 2000. "Developing a Response to Strategic Lawsuits Against Public Participation." Submissions on The Ministry of
the Attorney-General’s Consultation Document.

Wilkins, Hugh, et al. 2010. "Breaking the Silence: The Urgent need for anti-SLAPP legislation in Ontario." Canadian Environmental Law Association and EcoJustice.

Wilts Rodney, Oliver Brandes and Bram Rogachevsky. 2002. The West Coast Environmental Law SLAPP Handbook.Vancouver, West Coast Environmental Law.

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