Barrick Gold’s lawsuit against the authors and publisher of the book Noir Canada: pillage, corruption et criminalité en Afrique, a French language exposé of the practices of Canadian mining companies in Africa, has been settled out of court.
(See Barrick Gold’s press release, a Le Devoir news story (in French), and a story in the Winnipeg Free Press)
The defamation lawsuit was a classic example of a “SLAPP” – a Strategic Lawsuit Against Public Participation, employed by powerful individuals and corporations to intimidate critics and stifle scrutiny of their actions, typically by claiming that the criticism amounts to libel or slander. Such lawsuits have been employed in efforts to silence indigenous people, environmentalists, labour groups, human rights activists and others who try to oppose logging, mining, resource extraction, pollution, dam-building, and other activities that they believe are harming or may harm health, safety, welfare, or ecological integrity in affected communities.
The Québec Superior Court had ruled that the lawsuit was an abuse of process designed to intimidate Barrick Gold’s critics, and that Barrick should pay the defendants’ legal fees. Despite this important victory, and facing the prospect of a lengthy knock-down, drag-out legal battle, the defendant authors and publisher decided to settle the case out of court. As part of the settlement (according to the Barrick press release), they agreed to cease publication and reprinting of the book, and to make a “significant payment” to Barrick.
Barrick explicitly agrees, in its press release, that the authors and the publisher, Écosociété, wrote and published Noir Canada in good faith, in the belief that it was legitimate. It also acknowledges that
“Noir Canada was written to provoke a public debate about controversies surrounding the presence of Canadian interests in Africa and to call for the creation of a public inquiry about this Canadian presence in Africa. [The authors] still maintain this position and continue to inquire about the role of private corporations active as commercial partners with African political representatives engaged in armed conflicts.”
But how much room does this settlement leave for such investigation into and public debate about the connection between Canadian companies and environmental damage, armed conflict, and human rights violations around the world? A group of Québec intellectuals thinks that it will have a chilling effect, and I believe their concerns are well founded. Their commentary was published in Le Devoir yesterday, in French. An English translation was posted today on the blog Free Speech at Risk. It is important reading.
Here is a bit of what they said:
“Still the reader may wonder why the authors have nevertheless "accepted" another SLAPP from Barrick Gold. Why did they "choose" to comply with these conditions? Those who ask these questions have no idea of the kind of psychological pressures that can take place in thèse circumstances. The consequences of this lawsuit are enormous for the authors. Lives have been turned upside down forever. One must be aware of the fact that the out of court deliberative process does not in general take the form of a conversation over a cup of tea. In the case of a continuing SLAPP, a poisonous atmosphere often prevails, even if one is looking for an out of court settlement. The lawyers try to demoralize the opposition. Thus, the authors and the publisher did not choose anything. They were desperately trying to extricate themselves from a legal unbearable straitjacket.
“Despite the ferocity with which Barrick's lawyers have practiced censorship, it is remarkable to note at the end of this process the strength of character of the authors and the publisher. They strongly reaffirmed the rationale for the publication of their book.
“Moreover, the admissions required by Barrick in fact reveal a certain weakness on the part of the company itself. It can only win its case by exerting an enormous pressure on its opponents. But in so doing, it shows that the lawsuit was from the very beginning not a procedure meant to refute but rather to silence the authors and their legitimate questions.”
This episode underlines the need for anti-SLAPP legislation in Canada. In the United States, around half of the states have anti-SLAPP laws protecting the right to public participation, allowing courts to dismiss abusive lawsuits, award legal fees to SLAPP defendants, and allow them to launch “SLAPPBack” lawsuits against those who launch SLAPPs. British Columbia had such a law briefly in 2001, enacted by the departing New Democrats and repealed quickly by the incoming Liberal government. Québec introduced draft anti-SLAPP legislation in 2008, which was enacted in 2009—too late to stop Barrick from bringing its lawsuit. Ontario is mulling the prospect (see a thoughtful paper on this by Osgoode Hall Law School student Christine Kellowan, posted days before the Noir Canada settlement in an effort to renew the debate that had appeared to die down in the last year).
