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The Need for Anti-SLAPP Legislation in BC

The Need for Anti-SLAPP Legislation in BC

By Carol Baird Ellan

As the Trans Mountain Keystone Kops move into place to rubber stamp a pipeline that will carry tonnes of oilsands bitumen to the coast for export through Burrard Inlet on a proliferation of tankers, it seems likely there will be renewed protests. The same will hold true as Site C proceeds despite opposition, and other projects that people, in particular LEAP proponents, perceive as threats to the environment and future of the planet.

In relation to Kinder Morgan, the Liberal government, after campaigning on the promise that the Kinder Morgan proposal would be redone “ from scratch ” has since endorsed the existing highly tainted National Energy Board process, with the weak promise to “engage Canadians, including indigenous communities” in a “deeper” post-recommendation consultation over a period of mere months, toward a December decision that looks more and more like a fait accompli.

As pointed out by Kennedy Stewart in a recent Vancouver Sun article, with 115 indigenous groups and many other interested parties, a consultation conducted over such a short time can be nothing but lip service. And given the degree of consultation that is dictated for such matters by Supreme Court case law, it seems unlikely to satisfy constitutional requirements or even the government’s own elaborate recipe for consultation. The stage would seem to be set in respect of both the TransMountain and Site C projects for much more by way of public demonstration.

But what I want to talk about today is the woeful state of protest rights in BC. In stating that it seems inevitable people will find themselves on Burnaby Mountain, in Burrard Inlet, or in the Peace River Valley protesting these projects, because of the state of the law in BC I must add an immediate disclaimer, lest I set myself up for liability as a defendant in a strategic lawsuit. I must be clear that I am not encouraging illegal behaviour or anything that might interfere with a multimillion dollar corporation’s ability to earn multimillions more at the expense of indigenous groups’ land interests or the safety of the community and environment. Such remarks could place me in jeopardy of being the subject of a lawsuit claiming that because I incited interference by speaking against the project, I should pay that company the multimillions it may lose if protests prevent or delay the project. I must also be clear that I intend in no way to malign the intentions or good will of the projects’ proponents, lest I be the subject of a defamation suit for damaging their good reputation by suggesting their motives are less than pure and public-minded.

If my fear of legal action seems too farfetched to you, let’s revisit the case of Alan Dutton. Dutton did not even go to Burnaby Mountain in the November 2014 round of pipeline protests, but he did organize a protest group called Burnaby Residents Opposed to Kinder Morgan Expansion (BROKE) and he did speak out against the pipeline expansion.

Dutton found himself the subject of a lawsuit claiming he was part of a conspiracy to prevent Kinder Morgan’s efforts to advance the project by clear cutting parts of the Mountain for testing. While the law provides for frivolous and vexatious lawsuits to be refused at a fairly early stage of the process; the threshold for determining that a lawsuit is unfounded is not low enough to permit a court to discontinue the kind of action that was brought against Alan Dutton. Dutton’s attempt to knock out the litigation was rejected by the BC Supreme Court.

Nonetheless, it is hard to see the suit as anything but a strategic lawsuit against public
participation (SLAPP); an action by a monolithic multinational with deep pockets directed at silencing a few significant voices. After the Supreme Court’s ruling, Kinder Morgan settled its action against two out of five of the protesters out of court and the defendants were spared the obligation to pay Kinder Morgan’s legal costs. The other three declined the settlement but Kinder Morgan nonetheless discontinued its action against them, without covering their legal costs. Ultimately, Kinder Morgan paid the tariff costs of Dutton’s expenses incurred in the application to have the lawsuit dismissed. Despite the fact that the costs Kinder Morgan paid amounted to a fraction of his actual costs, Dutton sees Kinder Morgan’s concession as a public victory for him and vindication of his challenge to their case as a strategic lawsuit.

One available inference is that Kinder Morgan was eager to drop the civil suit against all five defendants because of growing negative public reaction to the suit itself. The company eventually executed a unilateral, some might say gratuitous, discontinuance, despite two prior favourable rulings. Included in some of the negative media coverage at the time was a warning in an article by an oil trade magazine about the negative public reaction SLAPPs can cause, referring specifically to Kinder Morgan’s case against Dutton.

It may be a matter of perspective as to whether Kinder Morgan can be said to have bowed to public pressure, or simply decided that, by its chilling effect on public discourse, their lawsuit had fully achieved its purpose. One thing would seem to be clear, however: The suit could never have been seriously intended to recover the $5.6 million Kinder Morgan says it lost from delays caused by the protestors. None of the five individuals could ever have paid those kinds of damages. One of the first questions lawyers usually ask before commencing an action is whether there is any hope of financial recovery. (Their fees tend to hang in the balance.) Nor, in my opinion, could these defendants, or certainly at least Dutton himself, have been held responsible for Kinder Morgan’s losses (if any were proven), given that thousands of individuals from all kinds of movements attended the protest. (Another early question lawyers tend to ask is whether causation can be established against a particular defendant: again, the fees…).

In BC we do not have legislation against strategic lawsuits. Many countries, and two Canadian provinces, do. Such legislation is generally aimed at an early dismissal of actions that are identified as SLAPPs, sparing defendants significant costs and huge inconvenience. The former NDP government enacted anti-SLAPP legislation in BC in 2001, but the Campbell Liberals immediately repealed it when they came into power that same year.

The cold reality in BC, without anti-SLAPP legislation, is illustrated by Alan Dutton’s case, and now, by the litigation arising out of the Site C Dam protests. Individuals who may have a public voice, and but a tenuous connection with a larger group of protesters that commits civil disobedience by interfering with the progress of an unpopular project, can theoretically be held liable for the actions of the whole group; or at very least financially broken, and muzzled, until (failing sufficient public clamour) the justice system grinds out a hard-fought dismissal after a full trial.

NDP MLA for Nanaimo and Opposition Spokesperson for the Attorney General Leonard Krog introduced a Bill in May 2015 that would block frivolous, antidemocratic lawsuits and NDP MLA for Burnaby Lougheed Jane Shin has spoken in favour of the legislation. But it hasn’t advanced past first reading in the legislature, and it seems unlikely the Liberals would be in favour, given their resounding abrogation of the earlier Act, industry opposition, and now the apparent willingness of a government agency, in the form of BC Hydro, to engage in a strategic lawsuit . Again, the unlikelihood of any worthwhile level of financial recovery from the defendants would tend to belie any suggestion of a legitimate claim for economic loss.

Wikipedia has a very good summary of the concept of SLAPPs and a comparison of different countries’ approaches for those who want to know more about this topic and options for addressing the issue. I also highly recommend the Canadian Civil Liberties Association’s interview with Alan Dutton as a crash course in what is needed to rectify the state of the law in Canada. Dutton makes the point, a very good one, that until Canada acts federally in this area, we are likely in violation of the 1976 International Covenant on Civil and Political Rights (ICCPR) as well as our own Charter of Rights and Freedoms, which protects, as fundamental, freedom of expression, association and peaceful assembly.

Dutton’s take on all this? He says that SLAPPs privatize public disputes, forcing legitimate public issues into the background and superseding them with a corporate attack on individual civil and political rights. The best counter to that, in his experience, is public pushback against SLAPP suits. He says “groups involved in speaking out and organizing peaceful protests can win against giant corporations by fighting back. The strategy of trying to settle against a powerful corporation is not always, or even often, the best course of action. We need to fight back and make every issue a matter of public debate, because this is exactly what a strategic lawsuit is supposed to stop!” So, he says, don’t accept the muzzle enlist vocal opposition to the tactic!

My own view is that these protests are catalyzed by the failure of governments to engage in proper consultation with parties and groups affected by these projects before providing approvals and issuing permits. The resulting conflict is eminently foreseeable, and preventable, by those same governments. Perhaps they are the ones who should be held responsible for any resultant economic loss when the public and affected groups react as they are entitled to do, in legitimate, peaceful, albeit passionate protest against highhanded and environmentally destructive endruns and backroom deals.

Now, who’s up for a good old protest? Disclaimer - These remarks are not intended in any way to suggest obstruction by protest or to incite any interference with legitimate economic endeavours that have governmental approval...