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Another slap in the face for critics of Canadian mining companies? Barrick Gold settles SLAPP suit against Noir Canada

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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).

Upcoming conference 21-22 Oct 09: Environmental Assessment at a Crossroads

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The Ontario Association for Impact Assessment (OAIA) invites interested researchers, students and faculty to attend their upcoming conference  (see UniversityPoster2009) at the Ontario Science Centre, Toronto, on October 21st and 22nd 2009.

Student registration is $75. The OAIA is dedicated to supporting students, and is hosting a range of networking events at the conference.

Canada goes Rogue

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On April 2, Toronto Star revealed that Canada played the central role in thwarting a Geneva-based United Nations Human Rights Council resolution asserting water as a human right. In what could have been a landmark declaration protecting communities from the threat of expropriation or profiteering, water rights activists including respected environmental and civil society leaders from Canada left with a sense of foreboding, ever more fearful that without a clear verdict from the Council, corporate interests will increasingly take precedence over the right to life in a water-stressed world.

Sadly, this US-backed stance (with Canada possibly playing the role of proxy, as the US does not hold a seat in the body) is only the latest affirmation of the accelerating corporate tilt of Canadian policies in the international arena as witnessed recently in climate change talks in Bali. As acerbically noted last December by Peter Gorrie, talks like those held in Bali or for that matter in Geneva are beginning to follow a predictable script:

Long days of desultory talks are followed, as departure time looms, by chaotic – often angry – marathon negotiations. When agreement is almost at hand, Russia, pretty much invisible to that point, raises a furious complaint, only to be mollified by what amounts to a pat on the head.

Canada dominates the Fossil of the Day awards for obstruction, even though, as at the just-completed 13th annual meeting in Bali, it might have spent most of the two-week event on the sidelines. The United States remains intransigent until the last minute, when it dramatically relents.

A deal is made. It never exceeds the lowest expectations. Officials praise it; environmental advocates express disappointment.

While this trend preceeds the current government's gutting of climate change initiatives (Canada fell far behind its Kyoto commitments years ago), it has grown worrisome with Canada now joining a small but influential group of obstructionist countries who actively resist international initiatives and obligations. This was most odiously embodied in September 2007 by our stunning rejection alongside the US, Australia, and New Zealand of the Declaration on the Rights of Indigenous Peoples. This also led the Conservative minority government to favour the "Asia-Pacific Partnership on Clean Development and Climate" in April 2007 as a strictly voluntary, technology-based alternative to Kyoto, making good on their promise to pull out of Kyoto's binding emission reduction targets.

While one may take umbrage from the fact that such treaties are often toothless and wildly ineffective, the "take my marbles and go home" attitude reflects a certain contempt for the international state system in favour of a looser and more opportunistic coalition of actors that reflect the interests of particular alliances such as NATO and governments with strong corporate ties. Moreover, the disrespect extends to the countless Canadians drawn from civil society who have played important roles in the treaty making process. Most alarmingly though, it represents a dramatic shift from a country that has for many years inhabited the respectable terrain of a consensus-forging middle power in the international imaginary, to a more naked role as a loyal lieutenant of Empire and servant of big business. Back to the Future indeed.

The Carbon Con?

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Up until a decade ago, the concepts of carbon offsetting and carbon trading were deeply controversial. They were largely seen within the environmental community as a dangerous free market hijacking of the greenhouse gas problem that would allow rich countries and polluters to escape from the consequences of their actions while buying credits of dubious worth from less industrialized and thus less polluting regions of the world.

Unfortunately, this criticism has grown silent as Al Gore, who disappointed environmentalists in his eight years as Vice-President, has successfully rehabilitated his image in recent years. There is much to commend with his resurrection, as he has taken principled stands against the Iraq War, in defense of the US Constitution and science-based reasoning, and of course, his tireless advocacy on climate change. He has become the Oscar and Nobel-prize winning hero he never could during his tragic run for the presidency in 2000. However, one thing has not changed -- he remains a steadfast advocate of the emissions trading or "cap and trade" system, which he played a large role in introducing to Kyoto before the US abandoned the treaty in 1997.

Recently, the UK-based Independent, one outstanding newspaper that has covered climate change extensively, reiterated these critiques as voiced by mainline environmental and indigenous rights groups. Here's a sample of what they said:

"Taking a dodgy accounting proposition, which is that you can somehow identify the amount of carbon that any given new bit of forest picks up out of the atmosphere and sequesters, and make that correspond somehow to emissions elsewhere," is how Greenpeace sees carbon offsetting, according to its senior climate adviser Charlie Kronick. "It can't be done. The methodology is poor, and the logic isn't very good either. Once the carbon you've put in from fossil fuels is up there, nothing is going to make it go away."

Friends of the Earth's Marie Reynolds points out that not only is offsetting no substitute for real emissions cuts, but there is no guarantee, when you plant a tree, what the future of that tree will be. Robin Oakley, Greenpeace's climate and energy campaigner, agrees: "The issue with offsetting is that, fundamentally, it doesn't undo the damage done by carbon pollution. The vast number of players in the offsetting market are not reducing emissions in any accountable or measurable way."

In some cases, local people, far from benefiting, suffer when huge new plantations spring up. Survival International campaigner David Hill says: "Numerous reports show how indigenous peoples have suffered as a result of carbon projects: invasion of their land, evictions, the destruction of villages and crops, reduced access to or destruction of traditional resources, and violent conflict."

For a more detailed look at the history and record of the carbon trading concept, it would be worthwhile to check out the book, Carbon Trading: A Critical Conversation on Climate Change, Privatisation and Power, which through numerous case studies and economic analysis finds the entire regime to be both "ineffective and unjust." Sobering reading indeed.

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