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Canadian resource firms step up legal fight against green groups

Source: Thomson Reuters Foundation - Tue, 22 Jan 2013 11:15 GMT
Author: Kristen Courtney
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TORONTO, Canada (AlertNet) - Risks are growing for climate and environmental activists who take a stand against Canadian firms involved in the resource extraction and energy businesses, because companies are increasingly using the law to fight back.

On Dec. 5 2012, lawyers for EthicalOil.org, a lobby group that supports the exploitation of oil sands, sent a fax to the Canada Revenue Agency alleging that the Sierra Club of Canada Foundation was flouting tax laws and urging the agency to investigate. EthicalOil.org has hit three other environmental NGOs with similar complaints: Tides Canada, Environmental Defence and the David Suzuki Foundation.

Those faxes follow a spate of defamation lawsuits in Canada, in which resource companies have claimed that their corporate reputations are being damaged by the campaigns of environmental activists and NGOs.

Civil rights groups and legal experts say such tactics may be putting a chill on free speech in Canada – and the repercussions could soon spill beyond the country’s borders. In April 2012, the Supreme Court of Canada confirmed that Ontario-based companies can sue for defamation in Ontario courts, even for comments published or posted outside the province.

Expect “more cross-border libel suits”, wrote Joost Blom, a law professor at the University of British Columbia, in a commentary on the case. Ontario’s libel law is still very favourable for plaintiffs, says Blom, and these recent Supreme Court decisions confirm that companies headquartered in Ontario will typically be able to sue for libel in an Ontario court, regardless of where the defendants are located.

Indeed, with over 75 percent of the world’s mining and exploration companies headquartered in Canada, according to 2008 government data, environmental groups around the world should watch Canadian developments carefully. The worry that mining industry watchdogs in other countries might be silenced out of fear of being hauled into a Canadian court “is a legitimate enough concern”, says Blom.

LOGGING ROOTS

Canadian companies began taking environmental activists to court in the 1990s, often to remove protestors from logging sites. By the late 1990s, firms also began suing activists for monetary damages even after they had decamped from those sites, aiming to make them think twice about their next protest, according to Andrew Gage, a lawyer with West Coast Environmental Law. The idea then spread beyond the forestry sector.

In 2008, Barrick Gold and Banro Corp., both Toronto-based mining companies, sued three Quebec academics and their publisher for defamation following the publication of Noir Canada, a book that examined allegations of environmental damage and human rights violations by Canadian mining companies in Africa.  

Barrick settled its $6 million claim in October 2011 after securing an agreement to end publication of the book. This was despite a preliminary court ruling in August 2011 that the lawsuit appeared abusive and that Barrick seemed to be trying to intimidate the authors and publisher. Banro’s $5 million claim is still before the courts.

In March 2012, Taseko Mines Ltd. of Vancouver, British Columbia, sued the Western Canada Wilderness Committee for defamation. According to legal documents filed by Taseko, the NGO’s website inaccurately describes Taseko’s New Prosperity gold and copper mine project in British Columbia and its environmental effects, damaging Taseko’s reputation.

“We make a significant effort to provide the facts to the public, to communities, and to regulators… so that debate can take place along the facts,” Taseko spokesperson Brian Battison told AlertNet. “And we think that other organisations that have significant influence should also have a responsibility to be factual.”

When the Wilderness Committee received Taseko’s complaints, it did change some of the language on its website, said its national campaign director Joe Foy. But it stuck with statements it felt were fair and accurate, according to court documents.

Libel law, Foy argues, is being used in the wrong way. “It was meant to prevent nasty personal attacks. But it wasn’t meant to make people question whether they should participate in public policy decisions,” he told AlertNet. “There are a lot of ways to set the record straight… but the place to do this is through public debate and through media,” he added. A court date has not yet been fixed in the action.

Whatever a court decides, the mere threat of a lawsuit can deter environmental groups from criticising resource companies, said lawyer Gage, who often has to warn community groups seeking advice that they risk being sued for their campaigns, even when they sound quite reasonable. In many cases, they decide not to go ahead with those campaigns, he added.

‘SLAPP’-ED DOWN

Opponents of lawsuits like these call them SLAPPs, which stands for “Strategic Litigation Against Public Participation”. And Ontario, home of Canada’s largest corporations, has seen a surge in them over the past decade, according to the Canadian Environmental Law Association.

The Ontario government appointed an Anti-SLAPP Advisory Panel of legal experts in May 2010. “SLAPPs can intimidate opponents, deplete their resources, reduce their ability to participate in public affairs, and deter others from participating in discussions on matters of public interest,” they concluded. The panel recommended that the government pass a law to make it quicker and easier for public interest defendants to have these cases thrown out by the courts.

Other jurisdictions around the word have passed anti-SLAPP laws over the past several years. For example, Australia passed its Defamation Act in 2005, which removed the rights of most corporations to sue for defamation. The Canadian province of Quebec passed anti-SLAPP legislation in 2009. And now Britain - widely considered one of the best jurisdictions in which to sue for defamation - appears set to do the same as its Defamation Bill nears the end of its progress through the House of Lords.

But Ontario has not yet acted on the panel’s recommendations. One member of the Ontario Legislature introduced a bill to do so, but it died when the legislature’s last session ended in October. It will probably be tabled again when the legislature reconvenes.

‘PSYCHOLOGICAL WARFARE’

Meanwhile, a new legal front seems to be opening up in the fight between oil and gas companies and groups that oppose the rush to exploit Alberta’s oil sands. It is also one that would not be caught by the kinds of anti-SLAPP laws that have been proposed.

EthicalOil.org asserts in its 65-page fax to the Canada Revenue Agency that the Sierra Club of Canada Foundation may be breaking the law. “When charities do partisan political work, they STOP being charities,” the organisation argues. “They also violate charities law; which prohibits (such) activity.”

John Bennett, executive director of the Sierra Club of Canada, told AlertNet the complaint is based on “a misunderstanding about the operations and structure” of his organisation.  He dismissed the complaints as “a campaign to discredit environmental organisations”, and an attempt to make them less effective.

Bennett noted that the Sierra Club of Canada Foundation was audited as recently as January 2011. “I think once the auditors take a look at it, we’ll be completely exonerated… nevertheless, it does distract us from our real work,” he said.

In a recent email to members, Bennett wrote: “A hundred years ago big industry sent thugs to smash printing presses. Today, it’s lawyers, accountants and the petro-pundits - but the effect is the same… it’s psychological warfare really.”

Bennett is concerned that such legal tactics could result in “a cooling of support - both institutional and public - for environmental organisations, and a reaction by environmental organisations to be more moderate to avoid this kind of scrutiny and attack”.

“I think it’s a very scary time,” he said.

Kristen E. Courtney is an environmental and natural resources lawyer in Ontario, Canada, and a Fellow in Global Journalism at the Munk School of Global Affairs at the University of Toronto.

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