NEWS
11/15/2019 11:15 EST | Updated 11/15/2019 13:16 EST

Activists Need To Talk Climate Change Without Getting Sued, Top Court Hears

Supreme Court heard arguments this week about strengthening legislation designed to stop strategic lawsuits.

Jonathan Hayward/THE CANADIAN PRESS
Members of the Tsilhqot'in First Nation hold a rally outside the federal court in downtown Vancouver, Jan. 30, 2017. The rally was to bring attention ahead of a federal court case involving Taseko Mines. THE CANADIAN PRESS/Jonathan Hayward

When the Wilderness Committee learned that a large Canadian mining company had proposed an open-pit copper and gold mine and tailings pond in the middle of B.C.’s wilderness, it opposed the project with all its might.

For the grassroots, non-profit environmental group that meant getting people fired up. 

“We don’t have many tools. We don’t have a lot of money. All we have really is our ideas and words and we are used to fighting it out that way,” Joe Foy, national campaign director, told HuffPost Canada.

The Wilderness Committee published a series of articles in early 2012 about Taseko Mines’ proposed project, and its threat to wild salmon, rainbow trout and grizzly bears, how it would pollute the region’s water and the strong opposition of the nearby Tsilhqot’in Nation.

In response, the multimillion-dollar company slammed the group with a defamation suit, triggering a five-year court battle that cost hundreds of thousands of dollars in legal fees. Taseko claimed in court documents that the online publications portrayed it as having a “callous disregard” to the environment, which damaged its reputation.

Joe Foy/Supplied
Joe Foy of the Wilderness Committee, based in B.C.

The Wilderness Committee was aware of the “chilling effect” the lawsuit could have on it and other groups, so it fought it, said Foy. It argued Taseko had launched a Strategic Lawsuit Against Public Participation, also called a SLAPP suit, and eventually a judge dismissed the case. 

SLAPP suits are used by powerful entities, including corporations and individuals, to stop critics, often social and environmental activists, from speaking out, according to the Business and Human Rights Resource Centre. Quebec, Ontario and most recently B.C. have passed legislation to deter SLAPP suits from being filed in the first place, and to allow judges to dismiss cases early in the court process. 

Environmental groups say anti-SLAPP laws that protect speech are critical to the fight for climate action. That’s why two prominent organizations, Greenpeace Canada and Ecojustice, went to the Supreme Court Tuesday to argue for more protection.

If climate activists have the threat of being sued over their heads, then our prospects of addressing climate change go way down.Josh Ginsberg, Ecojustice

Canada’s highest court is currently considering two unrelated defamation cases, which the defendants argue are SLAPP suits. For the first time it is fine-tuning the law and weighing in on how it should be interpreted. Ecojustice and Greenpeace are interveners, alongside civil rights groups, media organizations and a clinic for women experiencing violence.

“Climate change is subject to a huge amount of activism including a lot of speech that is often controversial but essential for us to have a robust debate,” Ecojustice lawyer Josh Ginsberg told HuffPost. 

“If climate activists have the threat of being sued over their heads, then our prospects of addressing climate change go way down. It drains their resources and takes the focus off of the real issues.” 

Greenpeace is currently fighting what it calls a SLAPP suit by a forestry company, and Ecojustice has represented environmental groups in similar cases. 

Under Ontario’s anti-SLAPP legislation, a defendant in a lawsuit can request it be dismissed at any time, if what they said could be considered in the public interest. Then it’s up to the plaintiff to prove how the defence’s argument could fail, and if the damages outweigh the public interest. 

During this process, both environmental groups want judges to consider the context in which a disputed statement was made.

“We want the court to think about what the biggest societal implication is here,” said Greenpeace lawyer Priyanka Vittal. “Is this going to create a chilling effect where no other grassroots organizations are going to speak out because they’re too scared?” 

The court could look at a company’s history filing lawsuits, the power imbalance, and where the defendant made the claim, such as during a public consultation process, according to Ecojustice’s factum. It wants judges to recognize that statements related to environmental decisions and policymaking are presumptively in the public interest. 

The Wilderness Committee, for example, posted its articles when the federal government was considering and requesting comments about Taseko’s proposal, and that should’ve helped their case, Foy said. 

Darryl Dyck/The Canadian Press
Members of the Chilcotin First Nation march in Vancouver during a protest against Taseko Mines's proposed Prosperity Mine, Dec. 13, 2013.

“I really worry about the individual who says something at a local meeting about a development next to an elementary school, and then the developer is dragging them through the courts,” Foy said. “It’s terrifying.” 

The federal government eventually rejected Taseko’s mine because of the environmental harm it would case, but it’s now permitted to do exploratory drilling

Even today, however, the Wilderness Committee is still impacted by the lawsuit. Its liability insurance covered close to $200,000 in legal fees, which Taseko doesn’t have to pay back, but it is now saddled with insurance fees nearly $7,000 more than before the lawsuit, Foy said. 

But he’s glad they fought it all the way to the end. 

“We are really proud of what we did, and how we did it,” said Foy. “It’s our responsibility to speak out clearly and strongly about these industrial projects.”