Lawsuits designed to financially cripple small organizations or intimidate citizens into silence will no longer be allowed under the provincial government’s new anti-SLAPP legislation, welcomed as a step forward for free speech in B.C.

Strategic Lawsuits Against Public Participation (SLAPPs) are usually launched by powerful corporations or organizations to threaten and silence critics and discourage others from speaking out. Under the new legislation, which will be debated next fall, the courts can be asked to dismiss lawsuits that are designed to prevent the defendant from speaking freely on a matter of public interest.

Currently, the onus is on the person being sued to show that the organization suing them intends to silence legitimate criticism.

Attorney General David Eby, who presented the Protection of Public Participation Act in the Legislature Tuesday, said British Columbians deserve the freedom to peacefully engage in public debate without fear of unreasonable and financially ruinous legal action.

“Lawsuits that serve to silence and financially exhaust those exercising their right of expression exploit our legal system and only serve those with significantly deeper pockets,” Eby said.

Josh Paterson, executive director of the B.C. Civil Liberties Association, one of the organizations that has been appealing to the NDP government for legislation, said SLAPPs have become common in B.C.

“Many British Columbians and organizations in this province have been harassed, intimidated and litigated into silence by stronger parties with spurious — and in some cases outrageous — legal threats,” Paterson said.

The legislation, which is based on similar rules in Ontario, will allow SLAPP suits to be identified quickly, avoiding long and expensive trials, he said.

Even cases which are ultimately thrown out of court, or which never get to court, can be financially ruinous, pointed out Joe Foy, national campaigner for the Wilderness Committee. That organization was dragged through the courts by Taseko Mines Ltd. for five years.

The company launched the defamation case after the Wilderness Committee suggested on its website that opponents of Taseko’s proposed New Prosperity Mine, near Williams Lake, should comment on the federal government’s environmental review process.

“Those with financial means should not be able to use their means to limit the voices of others. You cannot put a price on free speech.”

The case was finally tossed out of court, with the B.C. Court of Appeal and the B.C. Supreme Court agreeing that the lawsuit was launched to silence critics on a matter of public importance, but there were still financial ramifications, Foy said.

The cost of insurance for directors and officers of the group soared from $2,000 to $7,500 a year — even though the Wilderness Committee was completely innocent — and staff time, spent collecting information and evidence, racked up a major bill, Foy said.

“All we were doing was encouraging our supporters to comment and, suddenly, you are stuck in a room with an 800 pound gorilla called Taseko who wants your blood,” said Foy, adding that, initially, neither level of government would lift a finger to help.

“That’s why we really appreciate what the provincial government is doing,” he said.

The situation is even more intimidating for individuals who speak out against something such as a neighbourhood development and are immediately slapped with papers for saying what they think, Foy said.

That was the case in Shawnigan Lake, when residents who spoke out against a contaminated landfill site, operated by South Island Resource Management Ltd., received legal letters.

Cowichan Valley Green MLA Sonia Furstenau, then a Cowichan Valley Regional District director, led the opposition to the contaminated soil site and, on Tuesday, she welcomed the government’s anti-SLAPP legislation.

“A vibrant public sphere is one of the fundamental components of a healthy democracy and no one should be afraid to voice their opinion on the issues that matter to them,” Furstenau said in an emailed response to a question from The Narwhal.

“Those with financial means should not be able to use their means to limit the voices of others. You cannot put a price on free speech.”

West Coast Environmental Law staff lawyer Erica Stahl said the legislation will go a long way towards strengthening democracy in B.C.

“If a corporation drags you to court for speaking out, you may spend years fighting the case — distracting you from the real public issues that need to be discussed and resulting in immense financial and emotional costs,” Stahl said.

B.C. previously had a brief experience with anti-SLAPP legislation.

In 2001 the former NDP government introduced Canada’s first such legislation, but it was repealed five months later by the newly elected BC Liberal government, which argued it would lead to a protest culture.

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The Wilderness Committee has won a landmark defamation case brought against it by Taseko Mines Ltd. but, despite the win, the non-profit environmental group will suffer financially after fighting the company in court for five years.

The case is being held up as a textbook example of why anti-SLAPP legislation is needed in B.C.

“We are very proud to have stood our ground, but B.C. very much needs anti-SLAPP legislation. We were completely innocent and yet this company was able to keep us in the courts for five years — and their pockets are much deeper than ours,” said Wilderness Committee national campaigner Joe Foy.

Strategic Lawsuits Against Public Participation (SLAPP) cases are usually launched by companies trying to silence their critics. B.C. briefly had Canada’s first anti-SLAPP law which was brought in by the former NDP government, but repealed by the BC Liberals who feared it would lead to a “protest culture” shortly after their election in 2001.

Ontario and Quebec are currently the only provinces with such legislation.

ICYMI: Laws Needed to Protect Citizens from Industry, Government SLAPP Suits: B.C. Civil Liberties Association

Now Foy says it’s time to bring back a law to stop deep-pocketed companies like Taseko Mines from dragging Canadians through the courts because the company doesn’t like what is being said about their project.

“The company didn’t like what we said about their risky, environmentally destructive open-pit mine proposal — so they took us to court,” he said.

“Some industrial projects should be stopped and people need to be able to say that without fear of getting sued.”

The B.C. Court of Appeal upheld the B.C. Supreme Court decision that the company’s lawsuit — which was seeking actual and punitive damages — was launched “to silence critics on a matter of public importance.”

“We are very proud to have stood our ground, but B.C. very much needs anti-SLAPP legislation. We were completely innocent and yet this company was able to keep us in the courts for five years — and their pockets are much deeper than ours.” https://t.co/AqDhiuHNBE

— DeSmog Canada (@DeSmogCanada) December 17, 2017

However, the lower court award of special costs to the Wilderness Committee, ordered because the judge agreed the company had unduly dragged out the court case, were struck down by the appeal judges.

The Wilderness Committee has insurance that will help cover many of the costs, but the group will still be in the hole for about $20,000, plus staff time and effort, and the increased cost of insurance will be an ongoing expense, said Foy, who added that the cost would have been huge without insurance.

The threat of such suits inevitably has a chilling effect when people want to speak out against a project, said Foy.

“It could be someone speaking at a public meeting and the next thing, you have papers served and, before you know it, you have ferocious lawyers breathing down your neck,” he said.

The provincial government has not made any commitment to bring in anti-SLAPP legislation since coming to power, but a spokesman for the Ministry of the Attorney General said anti-SLAPP legislation is under consideration.

“Government is looking at SLAPP lawsuits and exploring legislative options that are fair for the people of British Columbia,” he said.

Other groups pushing for the legislation include B.C. Civil Liberties Association, Union of B.C. Municipalities and Ecojustice.

The Taseko saga started in 2012 when the company claimed the Wilderness Committee had defamed the company in comments on the Wilderness Committee website about Taseko’s proposed New Prosperity open-pit copper and gold mine near Williams Lake, in Tsilhqot’in Nation territory.

The controversial project, bitterly opposed by the Tsilhqot’in Nation, was approved by the B.C. Environmental Assessment Agency, but twice rejected by the federal government.

The initial plan involved draining Fish Lake — considered sacred by the Tsilhqot’in — to store toxic tailings. The second incarnation, after the proposal was rejected by the federal government, came up with an alternate plan for tailings, but the federal Environment Ministry determined that the seepage would be toxic to fish in nearby waterways.

In addition to the Wilderness Committee decision, this month, Taseko Mines has lost two judicial review applications made to the Federal Court of Canada. Both were asking for reviews of federal decisions, claiming a lack of procedural fairness.

The court dismissed both applications and ordered Taseko to pay the court costs of the Tsilhqot’in Nation and the federal government.

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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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Over 140 groups, including environmental organizations, unions and freedom of expression advocates have signed a petition urging the Ontario legislature to enact strong legislation to prevent the abuse of Strategic Lawsuits Against Public Participation (SLAPPs).

According to a press release from Greenpeace Canada, anti-SLAPP laws have already been implemented in Quebec, a majority of US states (28) and several other countries "to prevent powerful companies and individuals from lodging meritless lawsuits, often for defamation, which are designed not to protect reputation but to silence critics."

These lawsuits "make it more difficult for civil society to act as watchdog of the powerful," curbing freedom of expression by saddling defendants, "often public interest advocacy groups, with with massive legal fees, draining their resources and distracting them from their core work," says Greenpeace.

Shane Moffatt, forest campaigner for Greenpeace Canada, said that "these meritless lawsuits tangle up our courts and waste taxpayers' dollars," and that "it is time to move quickly to protect Ontarians when talking about the issues that matter most to them."

The petition presented to Ontario MPPs has been signed by over 140 groups, including Greenpeace Canada, Canadian Journalists for Free Expression, Council of Canadians, Marineland Animal Defense, and the Centre for Law and Democracy. The petition expresses concern at the increasing use of SLAPPs and denounces it as a form of "legal harassment" by corporations and governments that is a "growing threat to meaningful citizen participation."

The groups stand behind the right of individuals and organizations "to freely express opinions on issues of public interest, including the future of Canada's forests, without fear of lawsuit."

The petition cites "citizens reporting of environmental violations, filing complaints with government agencies, contacting the media, speaking at public meetings, participating at hearings before administrative tribunals or engaging in public campaigns" as among the activities that provoke SLAPPs.  

"Deep pocketed corporations must be prevented from attacking organizations or individuals with abusive lawsuits to shut down public debate," said Maude Barlow, national chair of the Council of Canadians. "They undermine the court system and impose a chilling effect on public debate."

Several of the groups supporting the petition have been targeted by SLAPPs. Greenpeace Canada is fighting a $7-million defamation lawsuit brought by logging giant Resolute Forest Products, donations towards fighting which can be made online. Marineland Animal Defense founder Dylan Powell is facing a $1.5 million SLAPP from Marineland. Both cases are for engaging in public interest criticism.

The issue of SLAPPs being abused came to prominence in Ontario when Big Bay Point residents were hit with a $3.2 million lawsuit by developers.

"Our organizations play a crucial role in shining a light on issues the public would otherwise never be aware of," said Powell, of Marineland Animal Defense. "Unfortunately, case law offers little protection and this legislative void will be used as leverage until anti-SLAPP legislation exists."

"The need for effective anti-SLAPP laws has been proven around the world," said Toby Mendel, Executive Director of the Centre for Law and Democracy and Annie Game, Executive Director of Canadian Journalists for Free Expression. "It is critical that Ontario and other Canadian jurisdictions bring themselves into line with these global developments."

Organizations can sign the petition letter online.

Image Credit: CNW Group / Green News

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