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But it was repealed five months later by the newly-elected BC Liberal government who argued it would lead to a “protest culture.”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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Liquefied Natural Gas (LNG) development in British Columbia could produce 73 million tonnes of carbon pollution per year by 2020, according to the Pembina Institute. This would bring the carbon footprint of LNG development in B.C. to three-quarters as much as that of the oilsands, currently Canada's fastest growing source of climate pollution.

Alison Bailie of the Pembina Institute writes in The Tyee, that the estimate is at the "lower end" of the development scenario required to realize the B.C. government's hopes for annual revenue from LNG exceeding $4 billion. The province would need to produce four to six trillion cubic feet of shale gas per year by 2020 to reach that number.

The scale of that kind of natural gas production would require five to seven LNG facilities and over 10,000 wells with an accompanying network of roads, pipelines, compressors and gas processing plants.

Pembina's estimate for the industry's carbon pollution refers just to LNG production in B.C. This includes pollution from extraction and processing of the gas from shale gas fields, transportation of the gas to LNG facilities on the coast, and liquefaction and storage of the LNG until it is loaded onto carriers (tankers).

The figure doesn't take into account carbon pollution released from burning the natural gas in Asia, which could produce additional carbon pollution exceeding 200 million tonnes a year.

Image: From Pembina Institute infographic titled "British Columbia's LNG Boom."

B.C. has a legally binding target for carbon reduction which requires the province's annual carbon pollution from transportation, buildings, agriculture, forestry and other industry to be below 43 million tonnes by 2020, and below 13 million tonnes by 2050.

If B.C. sticks to its plans for LNG and ends up producing 73 million tonnes of carbon pollution from a single industry, there's little doubt that the province will miss its reduction target. Bailie notes that even Minister of Energy and Mines Rich Coleman, responsible for the province's natural gas development, admitted on CBC's Early Edition that "meeting our [reduction] goals will be a challenge" in the face of LNG development plans.

The B.C. government could, like other governments, choose to simply ignore or alter the reduction targets, or add special accounting for LNG. But with evidence of of the real-world impacts of missing reduction targets building up, including declining fisheries, flooded coastal communities and increasingly vulnerable forests in B.C., ignoring the target seems particularly unwise.

Provincial MLAs will be debating rules for carbon pollution and taxes for LNG development in the upcoming legislative session this month.

As Bailie points out, when it comes to LNG development, there are still options the province could take that wouldn't involve abandoning its climate commitments.

For example, the government could prioritize creating jobs in lower-carbon sectors like clean, renewable energy — a sector that is growing globally. This would reduce the need to expand LNG production for economic growth, and "less LNG development means lower carbon pollution with jobs and GDP growth elsewhere," writes Bailie.

Restricting LNG projects so as to make a smaller carbon footprint, instead of making as many plants as possible, would also significantly reduce the projected carbon pollution levels.

The BC government would also be better equipped to make choices on how to balance LNG projects with climate concerns if it undertook a strategic environmental assessment on LNG development, instead of separate assessments for each proposed project.

Following the success of the provincial carbon tax and establishing an LNG tax could encourage the industry to minimize its carbon pollution. Standards and taxes set by the government could also encourage innovative technology to aid renewable energy goals, such as capturing and storing carbon pollution at shale gas processing plants, writes Bailie.

If LNG development proceeds according to the B.C. government's current plans, it could create a climate challenge on par with the oilsands. But the government still has the option to limit the growth of the natural gas sector and control its carbon emissions, while prioritizing low-carbon job creation in the clean energy sector.

"The implications for our climate must be an important part of those decisions," writes Bailie, because "British Columbians will live with the consequences — whether positive or negative — in the decades to come."

Image Credit: Province of British Columbia / Flickr

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