Good News For A Change


Lubicon Lake Indian Nation
Little Buffalo Lake, Alberta
Phone: 403-629-3945
Fax: 403-629-3939

Mailing address:
3536 - 106 Street
Edmonton, Alberta T6J 1A4
Phone: 403-436-5652
Fax: 403-437-0719



September 7, 1995



Good news from the Canadian courts for a change. How it happened remains a matter of speculation but it clearly didn't hurt to have a newly appointed judge whose views are still more influenced by her knowledge of legal principles than by the nature of the interests involved.



Although Daishowa is appealing the decision and still seeking a permanent injunction, on May 19th Ontario Court Judge Justice Frances Kiteley declined to grant Daishowa an interim or interlocutory injunction restraining the Toronto Friends of the Lubicon from boycotting Daishowa paper products. (The purpose of an interim injunction would have been to enjoin the Toronto Friends from engaging in boycott activities until Daishowa's application for a permanent injunction can be heard.)



Justice Kiteley rejected Daishowa's accusations of wrongful interference with economic interests, inducing breach of contract, intimidation, conspiracy, defamation, injurious falsehoods and nuisance. She ruled that information pickets outside stores that use Daishowa products -- so-called secondary picketing -- are not illegal. And she also ruled that Daishowa would not likely suffer greater harm from lack of an interim injunction than the Lubicons would suffer from clear-cut logging should the interim injunction be granted and clear-cut logging proceed.



Daishowa's sole consolation was that Justice Kiteley found that the Toronto Friends "may have been intemperate". She therefore ordered them not to use the term "genocide". And she also ordered them not to mention the March 7th agreement between Daishowa and the Lubicons because, she said, the existence of that agreement isn't proven. Daishowa officials seized upon these limited restrictions and immediately issued a press release implying that they'd won the case by saying "The Ontario Court of Justice today granted a court order prohibiting the Friends of the Lubicon from using misleading and untruthful statements in its boycott of Daishowa Inc., and imposed restrictions on future Friends of the Lubicon conduct".



Following Daishowa's press release essentially proclaiming that it had won the court case Daishowa announced that it would be appealing its supposed court victory, since, as Daishowa spokesmen explained, "Daishowa remains concerned that an interim order was not made to protect its customers from secondary picketing and other unlawful boycotting activities". Needless to say people winning court cases don't normally appeal.



In fact Daishowa initially sought to enjoin all Lubicon boycott activity and failed. While prohibited from using the word "genocide" the Toronto Friends could continue informing Daishowa's customers about the threat which Daishowa poses to Lubicon survival. Moreover the point of the boycott is not WHETHER DAISHOWA AGREED to stay out of the Lubicon area at least until there's a settlement of Lubicon land rights -- although they did in fact agree -- but rather that Daishowa NOW AGREE to stay out of the Lubicon area at least until there's a settlement of Lubicon land rights.



There of course remained a very real problem with key Lubicon boycott organizers having to spend finite resources on legal expenses and being tied-up in court so that they can't work on the boycott. As much as anything that's the purpose of this kind of legal action by Daishowa. It's called a SLAPP suit. SLAPP is an acronym for Strategic Lawsuits Against Public Participation.



According to the attached commentary in the Toronto Globe and Mail SLAPP suits are "becoming a favoured tool of very large, very wealthy corporations to beat down their environmental critics". It describes SLAPP suits as "a perversion of justice -- the nasty playthings of the rich and powerful". It says "Their object is to block citizens from participating in the free political life of their society". In one U.S. case, the article says, SLAPP suits were defined by the judge as "suits without substantial merit that are brought by private interests to stop citizens from exercising their political rights or to punish them for having done so". It quotes the judge further as saying:



"SLAPP suits function by forcing the target into the judicial area where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more the litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success. The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits will often choose in the future to remain silent".



In the absence of hopefully forthcoming Canadian legislation preventing SLAPP suits Justice Kiteley had no choice but to proceed as though Daishowa's legal action were a legitimate injunction application. She made clear in the wording of her decision, however, that she's very much aware of what Daishowa is seeking to do with their application to enjoin the Toronto Friends from criticizing Daishowa's actions.



With regard to Daishowa's oft-repeated claim that the boycott is unreasonable, unnecessary, malicious and even racist in singling out Japanese-owned Daishowa for a boycott especially given Daishowa's supposedly good-faith, good-will, "self-imposed moratorium" on clear- cut logging in the Lubicon territory, Justice Kiteley found:



"It is a reasonable inference based on the material available that there was a direct connection between the boycott activity and the decision to carry on the self-imposed moratorium...In other words, the boycott was successful in its stated aim to prevent logging until Daishowa made a clear, public and unequivocal commitment not to cut or buy wood cut on unceded Lubicon territories until a land rights settlement has been reached with both levels of (Canadian) government and a harvesting agreement negotiated (by Daishowa) with the Lubicon people."



Regarding Daishowa's argument that Daishowa paper products shouldn't be boycotted because the Daishowa-owned company that markets Daishowa paper products isn't that part of the Daishowa conglomerate which actually does the logging or holds logging leases in Alberta, Justice Kiteley found:



"Materials produced by the plaintiff (Daishowa) clearly indicate that, for purposes of corporate image, all of the subsidiaries and related companies are described as part of one entity. Indeed, the plaintiff (Daishowa) agrees that primary picketing (as distinct from so-called secondary picketing) and other activities may be directed to the plaintiff (Daishowa) and its related companies...Obviously, it was the plaintiff's choice which (Daishowa) corporation would be named in these proceedings. Under all these circumstances, the defendants ought not to be subject to any suggestion that the wrong corporate target has been their objective."



On the question of the so-called "balance of convenience", or, in other words, who would face the greatest potential injury should an interim injunction be granted or not granted pending the hearing of the application for an permanent injunction, Justice Kiteley asked Daishowa lawyer Earl Cherniak if she shouldn't take possible extinction of Lubicon society into account. Dropping Daishowa's feigned concern for the plight of the Lubicons, Mr. Cherniak argued that possible extinction of Lubicon society isn't a relevant consideration -- that all that was before the court was whether the Toronto Friends had engaged in allegedly "illegal" activities such as secondary picketing.



Judge Kiteley found:



"because of the relationship between the defendants and the Lubicon Cree, the interests of the Lubicon Cree merit modest consideration in this issue of the test to be applied.

Considerable (boycott) efforts in the past have been made in late summer and early fall -- just before logging season. If the trial does take place in January, 1996, that will be in the middle of the logging season. Without the boycott, on the evidence, there is greater likelihood that logging will take place. If the defendants are successful at trial, and if logging is undertaken in the interval, the Lubicon Cree may have been unnecessarily exposed to the dislocation and hardship anticipated by (Lubicon Chief) Ominayak and (anthropologist) Ryan (who filed an affidavit on the genocidal consequences of massive resource exploitation activity in unceded Lubicon territory).

Furthermore, at the rate of 11,000 trees (taken) per day, hundreds of thousands of trees will have been harvested -- only to be regenerated in 60 years...the delay in logging for one more winter is inconvenient to the plaintiff but far less inconvenient than the harvesting of thousands of trees which may ultimately be found to be the property of the Lubicon Cree"



Normally all a corporation has to show to get an interim injunction in Canada is that there's a so-called "serious issue to be tried" and that they are likely to suffer some damage if the activity they are seeking to enjoin is not stopped. Actually proving the charges on which the application is based is then left to the hearing of the application for a permanent injunction.



In this case Justice Kiteley decided to apply a more rigorous test -- a so-called "strong prima facie case" test -- regarding charges made against the Toronto Friends by Daishowa. A "prima facie case" is one which appears to be legitimate barring evidence to the contrary. Justice Kiteley said that she decided to use the more rigorous test because:



"The consumer boycott began in 1991 and has developed considerable momentum. Indeed, the plaintiff excuses its delay in launching these proceedings earlier because the effect of the boycott was not immediate but rather cumulative. If the boycott is prohibited as a result of this motion (asking for an interim injunction pending the hearing of the application for a permanent injunction), a hiatus between February 6, 1995 (the date the Toronto Friends agreed to suspend their boycott activities until the hearing of the application for an interim injunction) and early 1996 (the date when Daishowa indicated it will be ready for the hearing on the application for a permanent injunction) would occur. It is unlikely that the defendants could reconstitute the boycott should they be successful at trial. Consequently, the harm to the defendants will be complete; they will be deprived of the use of the single most important tool to accomplish their objective".



On the charge that the Toronto Friends had engaged in "illegal" secondary picketing, Daishowa lawyers relied on old labour laws from the 1930s designed to break labour unions. Lawyers for the Toronto Friends argued that secondary picketing in the context of a consumer boycott is of a significantly different nature than secondary picketing in the context of a labour dispute -- that it is an important means of expression in a democratic society and that Lubicon supporters should be able to address the Daishowa issue when a consumer is actually making a purchase at a store which uses Daishowa paper products.



Justice Kiteley agreed with lawyers for the Toronto Friends. She found:



"Hersees has long been the leading case on secondary picketing in the labour context. However, it is apparent that the law has evolved to the extent that secondary picketing in a non-labour environment is not unlawful. To adapt language from Bering v. Salem (adopted by Adams J., in Dieleman):



"If the court were to deprive picketers of the words which most clearly embody the moral position of those picketers, it would eviscerate completely the debate concerning the rights of aboriginal people to assert claims to unceded lands.



"Peaceful picketing designed to:



a) communicate the plight of the Lubicon Cree;



b) inform the consumer of the actual or potential role

which the retailer in question plays in the debate; and



c) enable the consumer to make an informed choice at the

point of purchase, in other words, enable the purchaser

to use the power of money to communicate a reaction



IS LAWFUL (capitalization added)."



Justice Kiteley went on to say about the charge of secondary picketing:



"An injunction should not issue that would restrain public discussion on matters of public interest such as aboriginal land claims. On the evidence, the picketing in this case is of that nature.



"If secondary picketing in a non-union context is not unlawful, then threats to evoke secondary picketing are likewise not unlawful. The threat itself is a useful tool to effect public discussion on matters of public interest as is evident here where only two of the many customers resisted the boycott until the picket actually occurred.



"Secondary picketing and threats to that end are a form of freedom of expression protection by the Charter (of Human Rights and Freedoms in the Canadian Constitution)."



The charge of nuisance was thrown out because the picketing hadn't occurred on land owned or occupied by Daishowa -- and because any nuisance caused by the picketing was, on the evidence presented, not "substantial or unreasonable".



The charge of conspiracy was thrown out because Justice Kiteley found that Daishowa had been unable to show that the primary purpose of the Toronto Friends had been to cause injury to Daishowa -- or that any damage suffered by Daishowa had been caused by unlawful acts by the Toronto Friends.



The charge of wrongful interference with economic interests was also thrown out because Daishowa failed to show that the primary purpose of the boycott was to injure Daishowa. On the contrary, Justice Kiteley said:



"...on the evidence, I find the intention of the defendants at all times was to provide support to the Lubicon Cree in resolving their land claims and, toward that end, they have worked extensively to obtain the following from Daishowa: a clear unequivocal and public commitment not to log or buy wood from unceded Lubicon territory until a land rights settlement is reached and a timber harvesting agreement is negotiated.



"While injury to the plaintiff is the result of the boycott, it is not the intention of the defendants to cause injury".



The charge of inducing breach of contract was thrown out because contracts weren't broken but only not renewed. Not renewing contracts of course isn't illegal. Moreover, Justice Kiteley said:



"The defendants can be found not liable if there is evidence that they felt that they had a moral duty to intervene or if they took action to protect against interference with the defendants' own rights. As indicated above, I find that the articulation and pursuit of that objective reflects a moral duty which would constitute justification (even) had I been satisfied (that contracts had been breached). However, the plaintiff has failed to establish a fundamental component of this tort; namely, that any contracts were breached."



The charge of intimidation was thrown out because the threat of secondary picketing was found to be legal -- and because the Toronto Friends were found to have no intention to injure Daishowa's customers. Instead, Justice Kiteley found, "...the defendants' intention was to communicate a message to consumers to enable those consumers to make informed choices at the point of purchase."



The charges pertaining to misrepresentation and defamation were grouped into three main categories:



1.) logging operations;



2.) the March 7, 1988 agreement between Daishowa and the Lubicons;



3.) genocide.



Regarding logging operations Daishowa claimed that neither Daishowa Inc. nor Daishowa Canada Co. Ltd. has ever logged or used wood from the unceded Lubicon territory. Justice Kiteley dismissed charges that the Toronto Friends had engaged in misrepresentation or defamation when they talked about the continuing threat of Daishowa clear-cutting Lubicon territory because, she said:



"In view of my finding that the corporate entities are all a group, the statement that Daishowa has logged or is about to log is not misleading. A subsidiary did log in 1990. Logging was announced in 1991. Logging is intended under the Forest Management Agreement (with the Alberta Provincial government). Likewise, the statements about logging status are not defamatory because they fall within the category of fair comment...



"In the context of the history of aboriginal peoples in Canada and, specifically, their attempts to secure control over unceded lands, I find that the statements contain political commentary and social expression. The statements regarding the status of logging operations amount to fair comment in that they are expressions on a matter in which the public has an interest. Based on the evidence, I find that these statements reflect the legitimate concerns and honest beliefs of the defendants."



On the issue of whether the Toronto Friends had engaged in misrepresentation when they told people that Daishowa had agreed in March of 1988 to stay out of the Lubicon territory at least until there was a settlement of Lubicon land rights -- and then broke that agreement -- Judge Kiteley noted that the evidence is contradictory. She said Lubicon Chief had filed an affidavit insisting that there had been an agreement which Daishowa chose not to challenge on cross- examination. The other evidence on whether or not there had been an agreement, she said, was in the form of an affidavit from Daishowa executive Koichi Kitigawa denying that there had been an agreement, notes of the meeting at which the agreement was reputedly made taken by Daishowa consultant Henry Wakabayashi, and cross examination of Mr. Kitigawa on his affidavit and on Mr. Wakabayashi's meeting notes.



Upon examination of this evidence, Justice Kiteley said, "some justification for the position advanced on behalf of Ominayak can be found both in (Wakabayashi's) notes of the meeting and in the evidence of Kitigawa". In particular, she said, she was referring to notes by Mr. Wakabayashi in which he quotes Mr. Kitigawa as saying "will negotiate before proceeding" -- and to Mr. Kitigawa's statements about this quote made during cross examination.



When asked during cross examination about the quote attributed by him in Mr. Wakabayashi's notes, Justice Kiteley noted, Mr. Kitigawa said:



"There would be two aspects of that. One would be to negotiate the area of concern with the Lubicon, and two would be to negotiate the documentation with the Alberta government."





When Mr. Kitigawa was asked "Is it your recollection that you made that clear at this point in the meeting", Justice Kiteley said, Mr. Kitigawa replied "Yes".



"If one took (this answer by Mr. Kitigawa) in isolation", Justice Kiteley said, "it is reasonable to understand how Chief Ominayak came to the conclusion he did". She said:



"an opportunity should be afforded to Kitigawa to resolve what appear to be inconsistencies in his evidence as indicated from the excerpt above. At this stage, the most that can be said is that both Kitigawa and Ominayak appear to honestly hold their respective views about what transpired".



Being unable to conclusively rule one way or another on whether there was an agreement, Justice Kiteley instructed the Toronto Friends to refrain from mentioning it. Such an instruction, she said:



"will not result in a restraint on public discussion on matters of public interest. The defendants are still at liberty to pursue their fundamental belief that Lubicon land rights should be resolved by the Lubicon Cree and government regardless of any agreement with the plaintiff and whether any such agreement has been breached".



Justice Kiteley added that she is "unable to find that the statements with respect to the (March 7th) agreement or breach of it are defamatory or constitute injurious falsehood". She said "I find that the statements constitute fair comment based on the affidavits of (Chief) Ominayak and (anthropologist) Ryan".



On the issue of alleged misrepresentation concerning the use of the term genocide, Calgary anthropologist Dr. Joan Ryan filed an affidavit stating:



"I believe that if Daishowa is permitted to proceed with any clear-cutting before the settlement of the land claim, the Lubicon people will cease to exist as a viable Band able to restructure its culture and able to create a future for their children. In other words, the process of genocidal destruction of the Lubicon Cree society will be completed".



Those who have been following the Lubicon struggle are aware that Dr. Ryan's conclusions about the genocidal consequences of massive resource activity in the traditional Lubicon society are shared by any number of qualified independent observers including the World Council of Churches and the then Curator of North American Ethnology at the prestigious Museum of the American Indian/Heye Foundation.



Daishowa lawyer Cherniak argued that even if significant damage has been done to Lubicon society, it was done by the oil companies prior to Daishowa's involvement in the area. That argument of course misses the point being made by Dr. Ryan; namely, in her view clear- cut logging on top of all of the other damage would constitute the final death knoll for Lubicon society.



Justice Kiteley found that the term "genocide" cannot be used to characterize actions taken by Daishowa to-date and that "attributions of genocide are (therefore) misleading and constitute misrepresentation". However, she said:



"I cannot find that a prima facie case of defamation has been proven. The statements made by Ominayak and by the defendants are most certainly within the category of fair comment."



Justice Kiteley consequently ruled that the Toronto Friends cannot in the future use the terms "genocide" or other terms connoting genocide -- but that comments previously made by the Toronto Friends in this regard are neither defamatory nor "injurious falsehoods".



The ruling that the March, 1988 agreement couldn't be mentioned because it hadn't been proven, and that past comments by the Toronto Friends weren't defamatory, didn't stop Daishowa spokesman Tom Cochran from characterizing the Kiteley decision quite differently in a press statement issued the same day as the judgment was released. The Daishowa press release says, in part:



"Madam Justice Francis Kiteley imposed strict restrictions on future Friends of the Lubicon conduct, including forbidding them from making false statements that Daishowa had made or breached any agreement with the Lubicon Indians, and prohibiting other untrue and defamatory statements".



That kind of fooling around with the truth is of course classic Daishowa. No matter how indignantly Daishowa officials may proclaim that they're supposedly honourable men, the fact is from the very beginning Daishowa officials have said whatever seemed to serve their purpose at the time -- without regard to either the facts or the truth or even what others know absolutely to be the case. Apparently unable to change that licentious style in the face of Justice Kiteley's decision, Mr. Cochran has now effectively done basically the same thing with her decision. Hopefully Mr. Cochran's creative treatment of the Kiteley decision, both in this press release and in subsequent media interviews, will be taken into account by judges assessing the credibility of Daishowa evidence in the future.



In media interviews following release of the decision Mr. Cochran also makes much of "other restrictions" placed on the Toronto Friends. During the attached interview with CKUA's Tasha Larson on May 19th, for example, he insists "there was an injunction granted against the Friends of the Lubicon that restricts an awful lot of the conduct and the activities and the defamatory language that they've been using in the past". He says "So we do have an injunction against them". He admits "We don't have...everything we asked for". "However", he says, "there's an awful lot of restrictions -- I mean there's two pages worth of restrictions that the judge has imposed on the Friends of the Lubicon about how they're to conduct their boycott in the future".



In fact -- beyond not mentioning the March 1988 agreement or using the word "genocide" -- the only other constraints imposed by the Kiteley decision are that the Toronto Friends will send Daishowa copies of letters sent to customers of Daishowa, that Daishowa will be informed of any Daishowa customers contacted by Friends of the Lubicon, and that any Daishowa customers contacted by the Toronto Friends will be informed if the situation is resolved. Needless to say none of these conditions would adversely affect the boycott. A free and open discussion of the issues between the parties has always been an essential part of the boycott -- with customers typically sharing correspondence all around and seeking to hear both sides before taking a position. Moreover the Toronto Friends will be only too pleased to notify customers of Daishowa if a Lubicon settlement is achieved and/or Daishowa ever decides to do the honourable thing.



Briefly freed from the constraints of their earlier agreement not to contact Daishowa customers until the interim injunction application could be heard by Justice Kiteley, the Toronto Friends were once again able to start contacting Daishowa customers. On June 5th the Swiss-owned restaurant chain Movenpick announced that they will no longer buy Daishowa paper products. Contact was also initiated with other Daishowa customers and plans were being made to expand the boycott.



Daishowa lawyers were outraged by Movenpick joining the boycott and made renewed charges that the Toronto Friends were supposedly still engaging in misrepresentation and threatening their customers. Nothing was new about these renewed charges -- all of it had been argued before Justice Kiteley.



On June 30th Justice Donald Steele granted Daishowa leave to appeal Justice Kiteley's decision. Justice Steele had earlier authored the infamous Temagami decision which was recently described in a commentary printed by the Toronto Globe and Mail as "one of the most aggressively anti-Indian judgments of the century".



Justice Steele's reasons for granting leave to appeal are predictably more in line with the type of thinking the Lubicons have come to expect from the Canadian courts. Justice Steele has of course also been a Canadian judge longer than Justice Kiteley and has a greater appreciation of the concerns of large, wealthy transnational corporations exploiting natural resources in Canada.



Justice Steele said "There are important issues involved relating to interlocutory (interim injunction) issues and should not be refused merely because a trial may be held late in 1995". He said "In my opinion there are several issues warranting leave".



Justice Steele questioned the "appropriateness" of Justice Kiteley's use of a more rigorous "prima facie case" test in assessing the claims and charges made by Daishowa. He said that he has "doubt as to the decision finding that secondary picketing in non-labour disputes is not illegal per se". He said that he "doubt(s) the effect of picketing in political protests as being primary and not secondary in this case". He said that he "doubt(s) the finding that the intent of the (Toronto Friends) was political motivation and that this allows the overriding of the intent to harm economically and interfere with the normal business relations of others". He said that he "doubt(s) the correctness of the decision in its application of Charter (freedom of expression) principles to the parties herein". And he said that he also "believe(s) that the (Kiteley) decision conflicts with the decision in HERSEES OF WOODSTOCK V. GOLDSTEIN.



The hearing of the Kiteley appeal was scheduled for September 21st. Lawyers for the Toronto Friends asked that the hearing be adjourned until the latest possible date in order to properly prepare. (In addition to the fact that the Toronto Friends had to obtain different legal counsel following the hearing of the interim injunction -- the lawyers who'd so skilfully handled the defence on a pro bono (free) basis could not continue doing so -- Daishowa's legal papers pertaining to the appeal were not delivered to lawyers for the Toronto Friends in a timely way.)



In fact the way the dates for the hearing of the appeal were set is also much more in line with what the Lubicons have come to expect from the Canadian courts -- lending credence to the notion that lawyers for Daishowa might have been a little lackadaisical about their interim injunction application but that they're now doing all they can to assure their Japanese corporate clients of a satisfactory judicial outcome.



Normally court dates aren't set until the appellant files papers spelling out the basis of the appeal -- the so-called "factum". In this case the Registrar followed the unusual procedure of giving Daishowa lawyers the September 21st court date based on their assurances that they would be filing the Daishowa factum shortly. Daishowa's factum was to be filed by the end of the first week of August -- which would have given lawyers for the Toronto Friends about 6 weeks to respond with their factum. When it still wasn't filed two weeks later lawyers for the Toronto Friends contacted the Registrar and asked that the September date be taken off the court schedule. For some reason the September date was not taken off the court schedule.



Under pressure from lawyers for the Toronto Friends the Registrar went to Chief Justice Frank O'Driscoll about the request that the September date be taken off the court schedule. Chief Justice O'Driscoll -- who has also been a Canadian judge longer than Justice Kiteley and has a much better appreciation of the needs of transnational corporations operating in Canada -- responded that he couldn't understand what lawyers for the Toronto Friends were complaining about. Without having reviewed any of the involved papers Chief Justice O'Driscoll said "It's only an injunction application". He said "They can prepare in three weeks."



Lawyers for the Toronto Friends therefore made a formal motion to have the date to hear the appeal adjourned until the latest possible date. The motion to have the appeal hearing adjourned until the latest possible date was heard on September 6th by Justice White.



Justice White asked Daishowa lawyer Peter Jervis if "the bottom line is Steele said secondary picketing is illegal"? Mr. Jervis agreed "that's the bottom line".



Justice White asked Mr. Jervis if Mr. Jervis would consent to giving lawyers for the Toronto Friends an adjournment until October 18th if he issued an order against secondary picketing in the meantime.



Mr. Jervis opposed the granting of an adjournment arguing that the appeal hearing should proceed immediately.



Justice White said "I'm going to grant an order". He asked Mr. Jervis "What terms do you want?"



Mr. Jervis said that Daishowa would basically want an extension of the order issued last February 6th prohibiting the Toronto Friends from having any contact with Daishowa's customers until Justice Kiteley could hear the application for an interim injunction.



Toronto Friends lawyer Karen Wristen argued that such an order "would substantially grant the injunction in advance of having heard the appeal". She pointed out that none of the damages alleged by Daishowa have been proven. She said that boycott activities have been going on for four years and that Daishowa only now brought a court action against the Toronto Friends. She said that Daishowa would suffer no particular additional damage in the month between now and the hearing of the appeal. She said enjoining boycott activities would adversely affect the momentum of the boycott.



Justice White granted an adjournment to October 18th or such later date as counsel may agree on the condition that the Toronto Friends will be forbidden from conducting or threatening to conduct secondary picketing or boycotting from September 21st, when the date of the appeal hearing was originally set to be heard, until whatever the date the appeal is finally heard. Justice White did not, however, grant Daishowa's request that the Toronto Friends be barred from all communication with Daishowa customers. The Toronto Friends may communicate with Daishowa customers about the situation just as long as they don't conduct or threaten to conduct secondary picketing or boycotting.



After some discussion between the Registrar and lawyers for both sides the date for the hearing of the appeal was set for October 24- 25.



Lawyers for Daishowa understandably want to proceed as fast as they can in order to recover some credibility after the Kiteley decision. Justice Steele's reasons for granting them leave to appeal, Chief Justice O'Driscoll's reaction to lawyers for the Toronto Friends seeking adequate time to prepare and the fact that Chief Justice O'Driscoll will now be appointing the panel of judges to hear the appeal, give Daishowa lawyers a level of confidence that the appeal will be heard by judges with a good appreciation of the problems faced by large, wealthy, transnational companies seeking to exploit natural resources in Canada.



If it can be judicially arranged Daishowa would undoubtedly like to outlaw the right of Canadians to protest their activities before the winter season when it is believed that Daishowa intends to proceed with long-delayed plans to clear-cut unceded Lubicon territory. Proceeding with the clear-cutting of unceded Lubicon territory before outlawing the right of Canadians to criticize their actions might well adversely affect both the political situation and what's politically possible with the court case.



Legal defence of the Toronto Friends has now been taken over by the Sierra Legal Defence Fund. Much gratitude is owed to prominent Toronto lawyer Clayton Ruby and his colleagues Harriet Sachs and Jill Copeland who contributed their time and did such a fine job arguing the case of the Toronto Friends before Justice Kiteley. While involvement of the highly regarded Sierra Legal Defence Fund alleviates some of the financial worry about how it will be possible to carry on the court case, the Toronto Friends will still require financial help to cover things like court costs, air travel for lawyers, air travel for witnesses and so on.



People concerned about the plight of the Lubicon, about Daishowa's legal harassment of the Toronto Friends and about efforts by transnational corporations to use Canadian law and Canadian courts to suppress criticism of their actions in Canada, should let Daishowa know how you feel about their continuing threat to clear-cut the unceded Lubicon territory, about Daishowa's offensive and unacceptable legal action against the Toronto Friends -- and that you support and will work to spread the word about the boycott unless Daishowa makes a firm, unequivocal public commitment to stay out of the Lubicon territory until Lubicon land rights are settled and an agreement has been negotiated with the Lubicon people respecting Lubicon wildlife and environmental concerns.



Sample letters already written to Daishowa and other related materials are attached. A copy of Justice Kiteley's 131 page decision is available upon request.


(Attachments enclosed with the actual paper mailout are listed below but not part of this electronic mailout. Interested parties may ask for paper copies by contacting the Lubicon office.)

Attachments:



#1 February 06, 1995, letter from Yuki Kokokoro to Daishowa

#2 March 23, 1995, CBC Radio Broadcast

#3 April 03, 1995, letter from Polaroid to Daishowa

#4 April 1995 Alberta Native News article

#5 Spring 1995 The Boycott Quarterly article

#6 April 16, 1995, Catholic New Times article

#7 April 28, 1995, Washington Post article

#8 May 01, 1995, Globe and Mail article

#9 May 19, 1995, Friends of the Lubicon News Release

#10 May 19, 1995, Lubicon Lake Indian Nation Press Release #11 May 19, 1995, Daishowa Press Release

#12 May 19, 1995, Broadcast News Report

#13 May 19, 1995, CBC Radio News Broadcast

#14 May 19, 1995, CKUA Radio News Broadcast

#14 May 19, 1995, CKUA Radio Alberta This Evening Broadcast #14 May 19, 1995, CBC Radio As It Happens Broadcast

#15 May 20, 1995, Edmonton Journal article

#16 May 1995 Native Network News article

#17 May 26, 1995 CBC Morningside Program

#18 June 1-7, 1995, Victoria Monday Magazine article

#19 June 07, 1995, Friends of the Lubicon News Release

#20 July l12, 1995, Globe and Mail article