Allowing wealthy corporations or powerful government agencies to launch baseless court cases against citizens who speak out against them is putting a chill on free expression in B.C. and there is a growing need for legislation against SLAPP suits, says the B.C. Civil Liberties Association.

It is time to fight back against Strategic Lawsuits Against Public Participation (SLAPP), which aim to intimidate and silence critics by landing them with the often-unmanageable cost of defending themselves against an unwarranted lawsuit, said Micheal Vonn, BCCLA policy director, who believes SLAPP suits are undermining B.C.’s democratic health.

BCCLA is aiming to put pressure on the provincial government to bring in anti-SLAPP legislation, similar to changes introduced last year in Ontario, to help those threatened with legal action to defend themselves against those with powerful financial interests and deep pockets.

“We need a concerted movement for people to make their voices heard. We need to explain what SLAPP is, what it does, what devastation it can cause and how it skews and distorts the political process,” Vonn said.

“There is the ability to bring a suit that has zero merit and it could be weeks in court before it comes to the crux of the argument, and by that time, you may have spent your whole life savings,” said Vonn, emphasizing that corporations are careful to frame lawsuits in such a way that basic protections against “frivolous or vexatious” lawsuits do not click in until someone has already mortgaged their house or gone deep into debt.

“It is too late even if you win, because the process is the punishment,” she said.

Other jurisdictions, ranging from Quebec to Texas, have anti-SLAPP legislation and, in 2001, in the dying days of the NDP government, B.C. New Democrats briefly enacted anti-SLAPP legislation that was seen as ground-breaking.

But it was repealed five months later by the newly-elected BC Liberal government who argued it would lead to a “protest culture.”

Laws Needed to Protect Citizens from Industry & Government SLAPP Suits, Says @bccla https://t.co/4VS24Uc8MU #bcpoli #SiteC #KinderMorgan

— DeSmog Canada (@DeSmogCanada) October 7, 2016

Last year, the NDP again unsuccessfully tried to reintroduce anti-SLAPP legislation and the issue remains on the NDP to-do-list as the province heads into a spring election.

“People must be able to have their voices heard without the threat of expensive legal action,” said New Democrat justice spokesman Leonard Krog, when he introduced the motion.

“The rights of free speech and peaceful assembly are absolutely fundamental to any democratic society.”

A statement from the Justice Ministry, in answer to questions from DeSmog Canada, said the province has existing mechanisms for dealing with improper lawsuits or other abuses of legal process.

“These include court rules allowing for the early dismissal of frivolous claims, summary judgments, security for costs and awards of costs where a lawsuit is found to be without merit,” said the emailed statement.

“These mechanisms work to protect the public from abuses of legal process and ensure British Columbians can participate in public discussion without fear of retribution.”

Vonn disagrees.

“There has been a growing aggressiveness around SLAPPs. It has certainly affected environmental groups — but not just environmental groups — who have found themselves deeply hampered in public participation by having to deal with these suits,” Vonn said.

Recent cases that raised questions include:

• A $6.6-million lawsuit launched by Kinder Morgan against five members of the group Burnaby Residents Opposing Kinder Morgan Expansion — the suit was later dropped with the company picking up court costs;
• Taseko Mines was accused of filing a SLAPP suit against opponents of its proposed tailing plan at the New Prosperity mine;
• BC Hydro is being accused of using SLAPP tactics in civil suits against six protest campers at the Site C dam site — something that BC Hydro denies, saying it supports protests that do not disrupt construction;
• Numerous legal letters were delivered to residents of Shawnigan Lake who oppose a contaminated landfill site operated by South Island Resource Management Ltd.

“These are people like your neighbour, who are speaking their minds about something that affects them deeply,” Vonn said.

BCCLA and others working towards anti-SLAPP legislation envisage rules that would ensure early access to the court system to weed out potential SLAPP suits.

“The ultimate goal here is to basically level the playing field to make sure parties who are the targets of these sorts of suits have access to the courts early and they can present to the court to say why they think it’s a SLAPP suit and what remedy they are seeking,” said Chris Tollefson, Hakai Chair in Environmental Law and Sustainability at the University of Victoria and co-founder of the Pacific Centre for Environmental Law and Litigation.

With a fast-track procedure it would then be up to the court to give the case special scrutiny and decide whether there should be an early dismissal, he said.

“I think there’s a very significant issue of democracy in play here if we think of democracy as being a system where people are not only protected, but encouraged to express themselves even in ways that might be controversial, in ways that challenge government or private companies. If that is something that we are serious about, we need to take steps to protect that wherever there’s a threat,” Tollefson said.

Enacting legislation should be an issue that crosses party lines, he said.

“This should not be party political. There should be no question really that this is something that one needs to do regardless of what party you support,” Tollefson said.

Image: B.C. legislature. Photo: Jason Baker via Flickr CC by 2.0.

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Nothing remains at the Rocky Mountain Fort site where Peace Valley farmers and First Nations camped for 60 days in the hopes of stopping clear-cut logging for the Site C dam. The camp was dismantled in March and the old-growth spruce and cottonwood forest was logged, as BC Hydro prepares to convert the Class 1 heritage site into a Site C waste rock dump.

But one notable thing still stands: the civil lawsuit BC Hydro filed in January against five campers and a supporter, a suit the B.C. Civil Liberties Association describes as a matter “of grave concern.”

The 13-page lawsuit accuses six Peace Valley residents of conspiracy, intimidation, trespass, creating a public and a private nuisance, and “intentional interference with economic relations by unlawful means.”

Most worrisome for the people named is that the suit seeks financial damages for BC Hydro that could result in the loss of their homes, life savings or other assets. Five of the six already stand to lose their houses, farms, land or traditional territory to the nearly $9 billion Peace River dam.

Josh Paterson, executive director of the B.C. Civil Liberties Association (BCCLA), says the association is extremely concerned about the civil suit because it could put a chill on freedom of expression. It might cause others “to think twice before they talk about their political opinion.”

SLAPP style #SiteC suit by @BCHydro might stop others from expressing political opinion https://t.co/bO9dZGmsPc @SavePeaceValley #bcpoli

— DeSmog Canada (@DeSmogCanada) May 25, 2016

BCCLA’s unease is heightened because BC Hydro is a Crown corporation, says Paterson. “For a government agency to come down in that way is of grave concern. What it does is send a message, perhaps deliberately, that ‘you’d better be careful if you plan to oppose these kinds of developments’…BC Hydro as a public institution should be very cautious about making these kinds of claims for damages it would impose.”

The civil suit, according to University of Victoria law professor Chris Tollefson, bears some of the hallmarks of a SLAPP suit, a strategic lawsuit against public participation.

SLAPP suits can stifle freedom of speech and quash opposition to controversial projects like the Site C dam, which Premier Christy Clark has vowed to push “past the point of no return,” despite four on-going court cases against the dam by Treaty 8 First Nations and Peace Valley landowners.

A fifth on-going legal action, launched by the Blueberry River First Nations, claims treaty rights have been violated by the cumulative impacts of Site C and other industrial development in the Peace.

“If the end result is that they face financial or personal ruin, a key implication is that others won’t want to follow in their footsteps and take that risk,” says Tollefson. “Then free speech becomes a luxury that only those who have nothing, or those who are incredibly rich, can afford.”

Tollefson, an expert on SLAPP suits, says it is the first time he has ever heard of a Crown corporation seeking damages from an individual in B.C. “or anywhere else for that matter,” for lawfully and peacefully exercising their right to protest on a matter of public interest.

Those named in the suit include farmers Ken and Arlene Boon, Helen Knott, a social worker from the Prophet River First Nation, and Yvonne Tupper, a community health worker from the Saulteau First Nations.

Esther Pedersen, a Peace Valley farmer whose land was used to helicopter two survival shacks across the river for the campers and to collect food donated by community members, was also named. The suit includes “Jane Doe” and “John Doe,” leaving open the possibility for other Site C opponents to be singled out as well.

After BC Hydro filed the civil suit, it launched an injunction application to remove campers from the fur trade fort site on the Peace River’s south bank, near the confluence of the Moberly River. That area was deemed to be so ecologically and historically important that the B.C. government had made four designations to protect its heritage resources, wildlife and old-growth forests. The government even went so far as to set aside the land to become part of a future B.C. protected area.

But BC Hydro had obtained the necessary government permits to log the forest and convert the fort site area into a 216-hectare rock dump for potentially acid-generating waste rock from Site C construction. After the camp was ruled illegal by the courts, the people named in the suit said they were law-abiding citizens and promptly dismantled their encampment.

Ken Boon says he and his wife Arlene made a personal request to BC Hydro CEO Jessica McDonald to drop the civil suit when McDonald recently visited their farm.

Peace River Valley farmer Ken Boon at the Rocky Mountain site encampment. Photo: Sarah Cox.

Accompanied by a driver and an aide, McDonald spent two hours with the Boons. “We basically agreed to disagree,” says Boon of the visit, which he characterizes as cordial and personable. “We showed her around the farm.”

The Boons will lose productive fields to flooding and when riverbanks slough into the dam reservoir, a deep body of water that will stretch for 107 kilometres along the Peace River and its tributaries. The Boon’s home and farm buildings are slated to be destroyed, to make way for the $530 million re-location of Highway 97 away from the flood zone.

Boon says McDonald was willing to drop the suit, but only if the Boons were prepared “to sign a document basically stating we would not impede further work or stand in the way of the project.”

The Boons declined to sign. They believe it is their constitutional right to oppose Site C, which will flood at least 6,500 hectares of prime farmland and, in the words of a government-appointed panel that reviewed the project, have “significant adverse effects” on the environment and on lands and resources used by First Nations.

In late April, BC Hydro launched a second civil suit, this time against hunger striker Kristen Henry and three others camped outside the Crown corporation’s head office in Vancouver to protest the Site C dam project.

The Vancouver campers packed up 10 days later, saying they did not have the money or the inclination to fight BC Hydro in court. BC Hydro claimed “hundreds of thousands” of dollars from them in damages, the four campers stated in a press release.

BC Hydro said the camp had forced it to take expensive measures to step up security, including spending $30,000 for new door handles to which people cannot chain themselves, up to $60,000 a month to hire the company Xpera Risk Mitigation and Investigation to monitor the campers, and up to $35,000 a month to boost general security measures.

Even though that camp, too, is gone, the civil law suit stands, Dave Conway, BC Hydro’s Site C community relations manager, confirmed in an email. Conway said in a separate email that the crown corporation cannot comment on the civil suit against the six Rocky Mountain fort campers due to the fact that it is an “on-going court action.”

The majority of U.S. states, along with Ontario and Quebec, have anti-SLAPP suit legislation. In 2001, the NDP government in B.C. passed similar legislation, called the Protection of Public Participation Act. Six months later, that legislation was repealed by the newly-elected B.C. Liberal government.

Such legislation, says Tollefson, aims to expedite justice and provide the courts with tools to dismiss SLAPP suits early on “so a very deep-pocketed corporation doesn’t get to drag it out and benefit from simply being better endowed.”

Image: Ken Boon on his farmland in the Peace Valley. Photo: Emma Gilchrist.

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In April of this year, the Human Rights Council at the UN presented a report on the urgent need for laws that regulate Internet surveillance practices to protect human rights standards. As the months go by, that need is becoming more and more apparent. As allegations of spying fly with the exposure of programs like PRISM and the Trans-Pacific Partnership, it seems that Canadians may have real cause for concern when it comes to individual privacy.

“Canadians should know that they live in a borderless environment when it comes to North America.”

Rosenberg is not at all surprised at the reach of the government’s ability to collect information. He is, however, pleased that the issue is gaining some public momentum. 

“Companies probably want to be responsible with your information,” he said. The thing that has changed drastically in recent years is that the collection and storage of information has become cheap and easy. What has changed “is the scope."

But, Rosenberg argues that individuals who endeavour to commit acts of terrorism will work around known surveillances. “9/11 changed things a lot. You have these people who were doing a lot of planning over the Internet. If the Internet had been monitored in some fashion, could it have been anticipated? That’s not clear at all. The [Boston Marathon Bombing] just happened and that wasn’t anticipated.” 

But proponents of the bill – like Public Safety Minister Vic Toews – suggested those who opposed the legislation, “supported child pornographers."

So are we on a runaway train? Rosenberg thinks we might be. The only way to reverse the problem, he says, is through transparency.

“We are almost out of control [of the collection of information]. The problem is, we expect government to be responsible. What we need to do is, we need to know what type of information is being collected. What that information is being used for should be apparent and that it’s secure. The government claims the right to do what they want [with our information]. How did they get this right? Did they ask? The government would say: no this is just what we’ve always been doing. We just do it better now. We do it faster. We get more information. We can answer questions more quickly and we can be more efficient.” 

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.