Ontario Court Decision Victory for SLAPP Suits


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



March 28, 1996



In May of 1995 the Lubicons were pleasantly surprised when Ontario Court Judge Francis Kitely declined to grant Daishowa an interim or interlocutory injunction restraining the Toronto Friends of the Lubicons from boycotting Daishowa paper products. It clearly didn't hurt to have the injunction application heard by a recently appointed Canadian judge whose views are still more heavily influenced by her appreciation of facts and law than by sensitivity to the nature of the interests involved.



Also unaccustomed to decisions from the Canadian courts which value constitutionally protected freedom of speech and the survival of a small aboriginal society over the financial interests of a large transnational resource exploitation company, Daishowa lawyers were obviously surprised by the Kitely decision as well. Consequently they immediately pulled all the stops and busily went about getting the Kitely decision reversed. In short order judges were appointed with a greater appreciation of the really important role played by transnational resource exploitation companies in a banana republic, first to consider and grant Daishowa leave to appeal the Kitely decision, and then to hear the Daishowa appeal and reverse the Kitely decision.



On January 24, 1996 the Toronto Friends of the Lubicon read in the newspaper that the Kitely decision had been reversed the day before. Contacting the court about the media reports, the Toronto Friends were told that they hadn't been informed of the decision because their volunteer Sierra Legal Defense Fund lawyers are based in Vancouver and the Ontario courts don't make long distance phone calls. (It's not likely that a better financed and connected Daishowa had to read about the decision in the newspaper.)



In a two to one decision, a panel of three judges ruled the Daishowa boycott illegal and granted Daishowa an interim injunction pending the hearing of Daishowa's application for a permanent injunction and compensation for losses now estimated at $8 million Canadian. While finding that all boycotts aren't necessarily illegal, the court held that boycotts intended to cause economic damage to the target company are illegal. (During the hearing the lone dissenting Judge commented that no boycott which caused economic harm to the target company should be legal, raising very real questions about whether his dissent was legitimate or filed simply to create the impression of evenhandedness without substantively affecting the impact of the decision.)



Toronto Friends lawyer Karen Wristen responded to the decision by characterizing the Daishowa legal action as a so-called SLAPP suit (Strategic Law Suit Against Public Participation) less concerned with claimed financial losses than with the desire to silence criticism of Daishowa's corporate actions. She said the decision "seriously jeopardizes freedom of expression". She pointed out that "Every successful boycott inevitably results in economic impacts on the company targeted". "Following this reasoning", she said, "it is difficult to imagine how any (successful) boycott could be said to be legal".



Daishowa Corporate Director Tom Cochran responded to Karen Wristen's remarks by denying that Daishowa's legal action is a SLAPP suit, because, he said ingeniously, Daishowa doesn't object to boycotts -- only to boycotts designed to inflict economic damage to the company. Apparently talking about the hundred employees who work for Daishowa's small packaging plant in Winnipeg, Mr. Cochran said "The Friends of the Lubicon think the livelihood of a hundred families is worth sacrificing for giving some Indians some land rights".



The Toronto Friends responded to Mr. Cochran's remarks by accusing Mr. Cochran of "using carefully selected words and images, such as job loss, to give an impression to the public which is patently false". Toronto Friends spokesman Kevin Thomas said "What's really at issue here is whether or not Canadians want to support the theft of unceded Indian lands and resources, and the destruction of an Indigenous society, simply to enhance the profits of a Japanese multinational corporation."



The Lubicons responded to Mr. Cochran's remarks by pointing out that "Canadian jobs aren't as risk because of the boycott of Daishowa paper products". Noting that Daishowa's timber lease in northern Alberta is several times bigger than the entire traditional Lubicon territory, and that Daishowa can consequently obtain the trees elsewhere necessary to feed its Peace River mill, the Lubicons said "Jobs are at risk because Daishowa refuses to make an unequivocal commitment to stay out of unceded Lubicon territory until Lubicon land rights are settled". "All Daishowa has to do for the boycott to be called off", the Lubicons said, "is to make that commitment".



This most recent decision is not the first time the Toronto Friends have had their hands tied by unsympathetic Canadian judges. In fact, except for a brief four month period immediately following the Kitely decision, the Toronto Friends have been effectively prohibited from pursuing the boycott since February of 1995 by a series of Daishowa-engineered court orders.



Faced with a multi-million dollar legal action sprung on them at the end of January 1995, the Toronto Friends asked for an adjournment of the hearing of the case from February until April of 1995 in order to raise necessary legal defense funds and enable newly obtained legal counsel to prepare a proper defence. Daishowa lawyers agreed to an adjournment on the condition that the court issue an order forbidding the Toronto Friends from contacting Daishowa customers, picketing Daishowa customers or encouraging the public to boycott Daishowa customers during the requested adjournment. The effect of this order was of course to enjoin the boycott starting in February of 1995 until May of 1995 when Justice Kitely rendered her decision that the boycott was legal.



Daishowa spokesmen responded to the Kitely decision by announcing both that they'd won the case and that they'd be appealing the decision. They claimed that Daishowa had won the case because Justice Kitely ordered the Toronto Friends to stop using the term "genocide" to describe what was being done to the Lubicons. Needless to say the point of Daishowa's injunction application was to enjoin the boycott -- which they failed to do. While such slippery verbal gamesmanship is the rule for Daishowa spokesmen, it may be the first time in history that anyone appealed a court decision which they simultaneously claimed they'd won. (Contrary to the public pronouncements by Daishowa officials, Daishowa of course knew very well that they'd lost the Kitely decision. Recently Daishowa lawyers tried to convince the court to adopt wording for a court order on this most recent decision, which Daishowa of course really did win, which reads "THIS COURT ORDERS that the part of the order of Madam Justice Kitely dated May 19, 1995, wherein she refused to grant injunctive relief sought by the plaintiff (Daishowa), is set aside".)



Normally court dates aren't set until the appellant files papers spelling out the basis of the appeal. In this case, however, the Registrar followed the unusual procedure of giving Daishowa lawyers a September 21st court date based on their assurances that they would be filing their so-called "factum" shortly.



Daishowa's factum was to be filed by the end of the first week of August giving lawyers for the Toronto Friends a normal and expected period of about 6 weeks to respond with their "factum". When the Daishowa "factum" still wasn't filed by mid-August, lawyers for the Toronto Friends contacted the Registrar and asked that the September date be taken off the court schedule.



A request to have a date taken off the court schedule would normally be considered reasonable under the circumstances. However the Registrar failed to take the September date off the court schedule and was supported in leaving the date on the calender by Chief Justice Frank O'Driscoll who, without having reviewed the voluminous papers involved, arbitrarily decreed that lawyers for the Toronto Friends "can prepare in three weeks". (Needless to say Chief Justice O'Driscoll is not a newly appointed Canadian judge unappreciative of the important role transnational resource exploitation companies play in a banana republic.)



Lawyers for the Toronto Friends therefore made a formal motion to have the appeal hearing adjourned until a later date in order to allow time to properly prepare. The motion to have the appeal hearing adjourned until a later date was heard on September 6th by another corporately sensitive Canadian judge named Justice White.



Justice White asked Daishowa lawyer Peter Jervis if Mr. Jervis would consent to giving lawyers for the Toronto Friends an adjournment until the end of October if he issued another order prohibiting the Toronto Friends from picketing in the meantime. Mr. Jervis predictably replied that Daishowa would want an extension of the earlier February 6th order prohibiting the Toronto Friends from having any contact with Daishowa's customers until the case could be heard by Justice Kitely. Such an order would of course effectively enjoin the boycott again despite the Kitely decision that the boycott was legal.



Toronto Friends lawyer Karen Wristen argued that granting the order requested by Mr. Jervis would effectively reverse the Kitely decision without the appeal even being heard. She pointed out that none of the damages alleged by Daishowa had been proven. She observed that the boycott had been going on for four years and that Daishowa had only now brought a court action to try and enjoin it. She argued that Daishowa would suffer no particular additional damage in the month between the current hearing and the hearing of the appeal. She noted that enjoining boycott activities despite a court decision that the boycott is legal would adversely affect the momentum of the boycott. (Adversely affecting the momentum of the boycott is of course what the order was all about.)



Justice White granted an adjournment until October 18th or such later date as counsel may agree on the condition that the Toronto Friends be forbidden from conducting or threatening to conduct secondary picketing or boycotting from September 21st, when the appeal was originally set to be heard, to whatever date the appeal is finally heard. (The date eventually agreed was October 24-25.)



The January 23, 1996 decision reversing the Kitely decision was written by Madam Justice Marie Corbett. Justice Corbett's arguments and conclusions were supported by Justice John McRae, who provided no additional comment or analysis other than to scribble a hand written note on the last page of the decision reading "I agree". The third judge in the three judge panel, Justice Dennis F. O'Leary, filed a written dissent.



In her decision Justice Corbett establishes the framework for the decision by saying:



"In my view, peaceful picketing per se is not illegal, but may become unlawful if it is part of the commission of another independent tort. The proper approach is to determine if the evidence is sufficient to establish the commission of tortious or otherwise unlawful conduct. I therefore turn to the torts alleged to determine if a prima facie case has been raised."



Justice Corbett then proceeds to list the economic interference torts which Daishowa alleges the Friends have committed including intentional interference with contractual relations and economic interests, breach of contract, illegal conspiracy to injure and intimidation -- all of which were considered at length by Justice Kitely and expressly dismissed -- after which she reviews selected boycott informational materials distributed by the Toronto Friends. She concludes:



"There is sufficient evidence that the purpose of the picketing was to induce a Daishowa customer to cease to do business with Daishowa. The purpose as expressed to the customers of Daishowa and to the general public was to discourage the customer from doing business with Daishowa. Its purpose was not to induce customers of the secondary target (a third party to the dispute) to cease to do business with Daishowa's customers. The focus and aim was to persuade Daishowa's customers to cease trading with Daishowa so that the economic harm would be experienced by Daishowa. This would obtain the desired commitment as part of the overall objective to support the Lubicon.



"Interference with the economic relations of Daishowa and its customers could reasonably be expected to cause damage to Daishowa and this result must be taken to have been intended. The question then becomes to what extent is the ultimate or overall intention, or goal, or purpose, pertinent in respect of the intentions which with the acts were undertaken. The answer to this question is the same as determining whether there is sufficient justification for interference with economic relations.



"The ultimate moral goal cannot justify an otherwise illegal act in the absence of some duty to interfere.



"In conclusion, there is a prima facie case that the Friends induced a breach of contract, intended to injure Daishowa in its economic relations with its customers and did harm to Daishowa by the unlawful means of misrepresentation and intimidation. Picketing and the threat of picketing was one of the means used by the Friends and was an essential part of the tortious conduct".



Having thus dispensed with moral goals that threaten corporate profits, Justice Corbett proceeds to deal with the issue of freedom of expression under the Canadian Charter of Rights and Freedoms. No problem. She finds that the Charter applies to the common law "only in so far as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom". She says "The Charter does not apply to private litigation in the absence of government action". Since "no governmental action is involved", she says, the parties "owe each other no other constitutional duties". (In other words there is no freedom of expression guaranteed under the Canadian constitution when it comes to being critical of the actions of transnational resource exploitation companies in Canada. Being critical of the actions of transnational resource companies in Canada is bad for Canada's colonial "hewers of wood and drawers of water" economy and just simply won't do.)



In discussing this same point Toronto Friends lawyer Karen Wristen earlier argued that the Charter may not apply to common law but that common law which is inconsistent with Charter values should be changed. The logic of Karen Wristen's position seems unimpeachable -- at least if the Canadian Charter of Rights and Freedoms is to be more than an ineffectual ornament which Canadians can point to as they sanctimoniously lecture others about human rights abuses elsewhere. However Justice Corbett disagrees.



Again using her peculiar literary style Justice Corbett says the issue at hand is "whether the common law prohibiting secondary picketing should be modified in consideration of freedom of expression". She points out that "the common law provides that secondary picketing is unlawful when used in furtherance of the torts of economic interference and conspiracy to harm". Under these circumstances, she says, the common law requires no modification. She says picketing in non-labour cases receives Charter protection only if it does not encompass unlawful acts. (In other words you're free under the Canadian constitution to express your views about the actions of transnational resource exploitation companies just as long as people don't stop patronizing those companies as a result of what you say. Jabbering away without effect is a constitutionally protected right of all Canadians. Expressing views which adversely affect the profits of transnational resource exploitation companies, however, is bad for Canada's colonial economy, isn't protected by the Canadian Charter of Rights and Freedoms and just simply won't do.)



Regarding Justice Kitely's conclusion that "peaceful picketing in a non-labour contest is not illegal per se", and application of the test of a prima facie case in circumstances where picketing was sought to be enjoined, Justice Corbett says Justice Kitely "erred" in finding that "there was no prima facie case that the Friends committed one or more of the torts of economic interference alleged by Daishowa". Moreover, Justice Corbett says, Justice Kitely "erred" in finding that there was "insufficient evidence of unlawful means or of an intention to cause harm to Daishowa and in finding there was sufficient justification to cause such harm". Justice Corbett says:



"In my view a prima facie case has been established and there are serious issues to be tried. Irreparable (financial) harm (to Daishowa) has occurred and will continue to occur which cannot be adequately compensated for in damages. In these circumstances, the balance of convenience requires the granting of an interlocutory injunction enjoining the Friends from intentionally interfering with Daishowa's contractual and economic relations by unlawful means, including pickets and threats of picketing aimed at Daishowa's customers. Other lawful boycotts are not enjoined."



Justice Corbett's definition of what constitutes a "lawful boycott" is clearly one which does not work. Organizing an ineffective boycott is a legally protected right of all Canadians.



Also clearly protected by law in Canada -- at least according to Justices Corbett and McRae -- is the right of transnational resource exploitation companies to reap profits without being financially "inconvenienced" by criticism from Canadians about how they do it. The prospect that the embattled Lubicon society might finally be finished off by clear-cut logging carries so little weight in Justice Corbett's balance of convenience calculations -- at least when balanced off against the financial inconvenience caused to poor Daishowa by the boycott -- that it's hardly worth mentioning except in an unenforceable throw away sentence which could have easily been written by Daishowa spin artists. She says "the balance of convenience also requires that Daishowa continue its self-imposed moratorium in logging on the lands on which the Lubicon claim traditional rights pending trial."



First of all the phrase "self-imposed moratorium" is a Daishowa propaganda line which Daishowa spokesmen use to disguise the fact that Daishowa has been blocked in its unending efforts to clear-cut unceded Lubicon territory -- largely by the boycott. As Justice Kitely rightly noted, there would likely be no "self-imposed moratorium" without the boycott.



Secondly the Ontario Provincial court can't enforce an order for Daishowa to continue the so-called "self-imposed moratorium" -- both because unceded Lubicon territory isn't located in the Province of Ontario, and also because that part of Daishowa which holds timber rights in the unceded Lubicon territory was shrewdly left out of the legal action by Daishowa and consequently isn't even before the Ontario courts.



Lastly, and most importantly, ordering Daishowa to continue its so-called "self-imposed moratorium" is totally useless as a way to supposedly take Lubicon interests into account because Daishowa doesn't plan to clear-cut in the unceded Lubicon territory until next fall -- after having obtained a permanent injunction from sympathetic Canadian courts under Canadian laws heavily biased in favour of corporate interests over human rights and civil liberties -- or at least after having used Canadian laws and the Canadian courts to so badly beat up on the Toronto Friends that they'll retain little enthusiasm for trying to reactivate the boycott. What Daishowa is seeking to do is to use the courts to suppress criticism of both what they've done and what they're planning to do -- not to immediately proceed with clear cut logging of unceded Lubicon lands which they don't plan to do in any case.



Daishowa's strategy is clearly to use the Canadian courts to stifle public debate over the demand that Daishowa agree to stay out of the unceded Lubicon territory until there's a settlement of Lubicon land rights and an agreement negotiated with the Lubicons respecting Lubicon wildlife and environmental concerns. They intend to suppress public criticism of Daishowa's continuing efforts to clear cut unceded Lubicon lands whether the Lubicons like it or not. They seek to force the effective winding down of a boycott which has served as a main focal point for public discussion of the involved issues -- a boycott which has taken several years to gear-up and which will take several more years to gear-up again. They plan to tie up key boycott organizers in court in order to punish them for speaking out and so that they have to spend all of their free time dealing with lawyers and legal requirements and raising money to meet legal expenses. They want to send others the message that criticizing Daishowa can be a very costly proposition indeed. And they want to have a permanent injunction in place by next fall forbidding criticism of their actions before commencing clear-cut logging in the unceded Lubicon territory.



Judge Kitely understood what's at issue and what's at stake in Daishowa's legal action and sought to prevent what one U.S. judge characterized 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". Justices Corbett and McRae, on the other hand, represent an exaggerated example of the problem presented by SLAPP suits.



The Toronto Friends aren't prepared to allow a Japanese forestry company to prevent them from speaking out about important issues in their own country. They are therefore continuing to battle Daishowa in court and are appealing the Corbett decision. In this on-going David and Goliath struggle they deserve and need the support of everyone concerned about the plight of the Lubicons, about free speech, about human rights, about civil liberties, about the environment and about how huge transnational corporations like Daishowa use their vast wealth and power to just simply do whatever the hell they please to the rest of us.



Although lawyers working on behalf of the Toronto Friends aren't charging for their time, the Friends are still incurring significant court costs, administrative costs, travel and accommodation costs. The trial alone is expected to cost in excess of $20,000. Those able to assist this struggle financially should contact the Toronto Friends at:



Phone: 416-763-7500

Fax: 416-603-2715

e-mail: k.thomas@utoronto.ca

or by mail at:

485 Ridelle Avenue

Toronto, Ontario M6B 1K6

Canada



Lastly the best way to respond to this effort by Daishowa to use Canadian laws and the Canadian courts to suppress criticism of their actions in Canada is by letting Daishowa know that their legal gangsterism isn't working -- that instead of suppressing criticism their tactics are making more and more people aware of their despicable behaviour. Take every opportunity to inform others about what Daishowa is doing. Take every opportunity to publicize what Daishowa is doing. Let Daishowa know that you're well aware of what they're doing and that you're joining the boycott of Daishowa paper products. Let Daishowa know that the only way they're going to escape growing criticism is to start demonstrating more acceptable corporate citizenship starting with an unequivocal public commitment to stay out of unceded Lubicon territory until there's a settlement of Lubicon land rights and an agreement negotiated with the Lubicon people respecting Lubicon wildlife and environmental concerns.



Additional information on the boycott can be obtained by communicating with the Toronto Friends at the above indicated phone/fax/e-mail and/or mailing address. (Legally they can't "intentionally interfere with Daishowa's economic and contractual relations by unlawful means including pickets and threats of pickets aimed at Daishowa's customers" but they can provide useful information on things like boycott techniques, who supports the boycott and who buys Daishowa paper products.)



Additional information on the plight of the Lubicon can be obtained by contacting the Lubicon Lake Indian Nation at:



3536 - 106 Street

Edmonton, AB T6J 1A4

Phone: 403-436-5652

Fax: 403-437-0719



People wishing to communicate their views to Daishowa should address their letters to



Mr. Tom Hamaoka

Executive Vice President

Daishowa-Marubeni International Ltd.

Suite 3500 - Park Place

666 Burrard Street

Vancouver, B.C. V6C 2X8

Phone: (604) 684-4326

Fax: (604) 681-8659


NOTE: ATTACHMENTS NOT REPRODUCED HERE ARE AVAILABLE ON REQUEST

Attachment #1: "Pickets vs. Profits: Daishowa SLAPPs Friends of Lubicon", Sierra Legal Defence Fund, October 1995


Attachment #2: "LUBICON: TURNING THE TABLES", Sierra Legal Defence Fund, October 1995


Attachment #3: "Daishowa wins appeal against group's boycott", Toronto Globe & Mail, January 24, 1996


Attachment #4: "Daishowa wins appeal against group's boycott", Edmonton Journal, Jnuary 25, 1996


Attachment #5: NEWS RELEASE

FOR IMMEDIATE RELEASE - January 25, 1996



ONTARIO COURT RULES CONSUMER BOYCOTT ILLEGAL IN DAISHOWA INC. vs. FRIENDS OF THE LUBICON





VANCOUVER: A decision handed down January 23 by the Ontario Divisional Court has struck a serious blow against democratic rights of expression, declaring a consumer boycott to be illegal. According to Toronto-based Friends of the Lubicon, the decision may affect all future boycotts.



The Friends began a consumer boycott in 1991, to help the Lubicon prevent clearcutting of their lands. Timber licenses covering virtually all 10,000 square kilometers of Lubicon territory are held by Daishowa Marubeni International Ltd., a subsidiary of the Japanese-owned Daishowa conglomerate. The grassroots Friends of the Lubicon organized a boycott against paper bags and other paper packaging products manufactured by Daishowa Inc., another member of the Daishowa group.



Now the Divisional Court has ruled the Friends' boycott illegal and granted Daishowa Inc. an interlocutory injunction forcing a temporary halt to the boycott until Daishowa's case seeking a permanent injunction can be heard.



In granting Daishowa's injunction, the Court found that the Friends' primary intent in boycotting Daishowa Inc. was to cause economic damage to the company, and not to support the Lubicon Nation. Although the Court held that boycotts are not necessarily illegal, it ruled that they are illegal when specifically intended to cause economic damage to the boycott target.



"This decision seriously jeopardizes freedom of expression," said lawyer Karen Wristen of the Sierra Legal Defence Fund which is representing the Friends of the Lubicon. "The Court has said essentially that the intention to cause economic harm made this boycott illegal. Every successful boycott inevitably results in economic impacts on the company targeted. It is difficult to imagine how any boycott could be said to be legal, following this reasoning." Consumer boycotts are commonly used as an important component of grassroots movements for social change.



Kevin Thomas of the Friends of the Lubicon confirmed today that the Friends will appeal this decision.



The Divisional Court decision itself was an appeal from a lower court ruling last May. The judge in that case held that boycotting is a form of "expression" as described in the Canadian Charter of Rights and Freedoms, and refused Daishowa's injunction application on the grounds that an injunction would deny the Friends their democratic right to freedom of expression on a matter of public concern.



The three appellate judges were not unanimous in their ruling against the Friends of the Lubicon. One dissenting opinion agreed with the judge below that Daishowa's injunction application should have been dismissed, and strongly upheld the legality of the Friends' "secondary picketing" activities. These informational pickets targeted consumers who might have unwittingly ended up obtaining Daishowa paper products while patronizing a retailer using those products.



The Friends' boycott against Daishowa Inc. was launched in 1991 among the company's Ontario customers. So far, some 47 major retail chains have been persuaded to switch from Daishowa to new suppliers in support of the Lubicon Nation. The company claims the boycott has cost it $8 million in lost sales.



This latest decision will afford some relief to the Lubicon Nation, at least: the court has restrained Daishowa from logging on Lubicon land until trial. The Lubicon believe the company had planned to begin cutting there as early as this winter.



The Friends of the Lubicon are a group based in Toronto, whose purpose is to assist the Lubicon Cree of northern Alberta in resolving their land rights issues.



The Sierra Legal Defence Fund (SLDF) is a Vancouver-based charitable organization that donates legal services to the environmental community across Canada. It is funded through individual donations and private foundation grants.



-30-



Contact:

Friends of the Lubicon

Kevin Thomas 416-631-4048

Stephen Kenda 416-763-7500

Sierra Legal Defence Fund

Karen Wristen 604-685-5618


Attachment #6: Transcript of Calgary QR77 Radio News Broadcast (6:30 A.M.), Friday, January 26, 1966

QR77: A spokesman for the Lubicon Indian Band says that he is not surprised that an Ontario court granted an injunction to stop the Friends of the Lubicon from picketing and boycotting Daishowa. The Lubicon have been involved in a land claim dispute with Alberta and the Federal Governments for decades. On the telephone line, Friends of the Lubicon representative Kevin Thomas. Kevin, good morning.



Kevin Thomas, Friends of the Lubicon (Toronto): Good morning.



QR77: Kevin, what's the story?



Thomas: Well, essentially the boycott that we've been running against Daishowa for about 4 years to try to keep them from clear- cutting Lubicon territory has been shut down by court order. And...



QR77: What was the premise by which they were able to arrive at that conclusion? What did they say?



Thomas: It's a little hard to explain in that it doesn't make much sense to me. But what they've decided is that boycotts aren't necessarily illegal but they do become illegal when they are specifically intended to cause economic damage to the boycott target. In other words, once you start to hurt the company's profits, then suddenly it becomes illegal to run the boycott.



QR77: Who has the right to those lands?



Thomas: Who has the right to the lands? I would say definitely the Lubicons have the right to the lands.



QR77: And who has the cutting rights to the land?



Thomas: Daishowa has leases granted by the Alberta Government.



QR77: So the dispute then with the Alberta Government is because the Lubicon do not believe that those cutting rights or that land is in any way shape or form the rights of the Alberta Government?



Thomas: That's right.



QR77: Under what area of trees or where do they come from to suggest that that land is theirs and that the cutting rights are theirs?



Thomas: It's quite simply an aboriginal right in that the Lubicon people have never signed any kind of treaty or ceded their land in any way to Canada and therefore they haven't got any kind of land rights settlement with the Federal Government. The Government doesn't own the land.



QR77: Can you explain to us -- do you have anything specific about what the Ontario court said and how they arrive at this conclusion and why would it have anything to do with what's going on in Alberta?



Thomas: Back in 1991 when Daishowa wanted to go and continue their clear-cutting operations we started a boycott and I think the public pressure has kept them off those lands for 4 years. What this decision has done is make the boycott illegal because, according to Daishowa, it has cost them $5 million worth of damage. What we're talking about here of course is simply peaceful picketing, handing out information, things like that. The basic tools of any kind of democratic dissent. And these have now been taken away from us by the Ontario court.



QR77: Is it going to be appealed?



Thomas: Definitely. We'll be taking this as high as necessary to have it overruled because this is an abomination.



QR77: Isn't there really a history though with the Lubicon that the courts have not looked kindly on most of the claims of the Lubicon?



Thomas: The courts have actually been downright nasty to the claims of the Lubicon. Especially in Alberta. And now it's happened in Ontario. We haven't expected very much from the courts but we've been drawn into this conflict in the courts against our wishes essentially.



QR77: Could this whole injunction be classified as permanent, or do you believe that you'll have any luck in any kind of a redress of it?



Thomas: It's a temporary injunction in that it lasts only until we go to trial to decide whether it's going to become permanent. But unfortunately a precedent is set here in the Appeal Court. So that even if we do get to trial, if this precedent isn't overturned any boycott right in Canada could be made illegal under this precedent.



QR77: Is Daishowa cutting now?



Thomas: Daishowa is not cutting right now. As I said, I think the public pressure of this boycott has kept them away from those lands.



QR77: Well now though with this injunction against the Friends of the Lubicon do you think they'll go in and start to cut?



Thomas: I think they'll definitely go in and start to cut as soon as the court case is done. Right now it's too much in the public eye and I think they don't like being in the public eye whatsoever.



QR77: Kevin Thomas, thank you for your time today.



Thomas: You're welcome.



QR77: Kevin Thomas with Friends of the Lubicon.


Attachment #7: "Daishowa wins court court", Native Network News, January 1996


Attachment #8: "Lubicon boycott ruled illegal", NOW, February 1-7, 1996


Attachment #9: "Business triumphs over political rights", Law Union News


Attachment #10: "Ont. court rules against consumer boycott", University of Toronto Varsity News, February 8, 1996



Friends of the Lubicon say SLAPP suits used to muzzle their dissent

ONT. Court rules against consumer boycott



by Meg Murphy

Varsity Staff



A precedent-setting Ontario Court decision has ruled consumer boycotts illegal if they are intended to make a dent in a company's profitability.



But all boycotts are undertaken with the intention of having an economic impact on the company, says Karen Wristen, a legal representative from the Sierra Legal Defense Fund and the defense lawyer in this Ontario Court case.



"This means any boycott could be considered illegal and no political activist will know if what they plan is illegal," said Wristen.



Wristen is representing the Friends of the Lubicon, a grassroots group that supports Lubicon Cree land rights, against a suit launched by Daishowa Inc. that claims the Friends' boycott of Daishowa products has unfairly cost the company over $4 million in lost business.



An Ontario divisional court has ruled the Friends boycott illegal because the purpose of the picketing was to induce Daishowa customers to cease doing business with the B.C. based logging company, says Wristen.



But the boycott was not organized in a blind desire to cause economic harm to a corporation, says Steven Kenda, a spokesperson for the Friends of the Lubicon.



"The boycott was our means of protesting the clearcutting of Lubicon land before land right issues are settled", he said.



But according to Tom Cochran, director of corporate development at Daishowa Forest Products, the Friends have no right to harm business by informing Daishowa customers about the company's clearcutting activities.



"If they have a complaint against the company, fine. You can come after us but do not go after our customers," said Cochran.



He adds that Daishowa has stopped clear cutting activities in order to show "good will".



But Kevin Thomas, a spokesperson for the Friends of the Lubicon, says Daishowa has stopped logging due to the consumer boycott.



"The boycott stopped logging for four years and I think that is why we are in court," said Thomas.



Wristen says law suits involving large corporations suing activists for causing undue economic damage have become popular in the last five years.



She says these law suits are less about economic reprisal then the desire to silence opposition.



This is a SLAPP suit (Strategic Law Suit Against Public Participation) designed to squash public dissent against corporate behaviour, says Wristen.



For the past 20 years in the United States, corporations have been bringing forward law suits against activists' efforts on the grounds that they intend to harm a company's profitability. "SLAPP suits are used to shock, scare, and shut up opposition," said Wristen.



Kenda says Daishowa's case has no grounds in terms of a means of economic reprisal.



"It does not make sense because during the time the boycott was on, the profits of the paper bag company went up," said Kenda.



But Cochran says this is not a SLAPP suit because Daishowa does not object to boycotts, per se. They object to boycotts designed to inflict economic damage to the company.



"I don't see how it could be a SLAPP suit," said Cochran. "We are not trying to stop the boycott. But the Friends of the Lubicon go after the customers instead of the company. They broke the rules.



"It looks bad to have people picketing outside your storefront."



Wristen says SLAPP suits are dangerous because defendants often stop raising concerns because they cannot afford to pay the legal bills.



"Activists end up having to decide, what is more important, your house or your legal bills?" said Wristen.



Wristen says people must become aware that corporations are using the judicial system to silence dissenting voices.



"If you are being sued it may be...used to shut you up," she said.



Cochran says threatening the financial viability of a small subsidiary of Daishowa Inc. is not worth it.



"(The Friends of the Lubicon) think the livelihood of a hundred families is worth sacrificing for giving some Indians some land rights."


Attachment #11: FOR IMMEDIATE RELEASE:





LUBICON SUPPORTERS APPALLED BY DAISHOWA OFFICIAL'S RACIST STATEMENT



February 9, 1996, Toronto: Daishowa Director Tom Cochran was quoted in Toronto's "Varsity News" on February 8th saying "(the Friends of the Lubicon) think the livelihood of a hundred families is worth sacrificing for giving some Indians some land rights".



Mr. Cochran was referring to the boycott of Daishowa products organized in support of the Lubicon Lake Indian Nation. The boycott was recently shut down by an Ontario court injunction on January 23, 1996. The boycott was asking Daishowa to make a clear, public and unequivocal commitment not to log or to buy wood cut on unceded Lubicon territories until the land rights are settled and a harvesting agreement is negotiated.



There are approximately one hundred people employed at Daishowa's packaging plant in Winnipeg. "In typical Daishowa fashion, Mr. Cochran is using carefully selected words and images, such as job loss, to give an impression to the public which is patently false," said Kevin Thomas of the Friends of the Lubicon. "What's really at issue here is whether or not Canadians want to support the theft of unceded Indian lands and resources and the destruction of an Indigenous society to enhance the profits of a Japanese multinational corporation."



Ms. Lorraine Land, co-chair of the national interchurch Aboriginal Rights Coalition, expressed shock at Cochran's comments. "Our hope is that Daishowa will publicly apologize to the Lubicon Cree for the misleading, and frankly racist, remark. The very lives of the Lubicon, not merely livelihood, depend on a just settlement of their land rights after 60 years of promises. The Lubicon issue has emerged as one of Canada's most serious human rights issues and for Daishowa to play a race-baiting game in public doesn't help the escalating tensions that the Lubicon face, at all."



"It's Daishowa's relentless drive for profit at the expense of `some Indians', the environment, and now -- with their recent court injunction -- basic democratic rights that puts both Canadian jobs and Canadian society at risk," Mr. Thomas responds. "Mr. Cochran should not try to fool people into thinking otherwise."



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For more information contact:



Mr. Stephen Kenda, FOL (416) 763-7500

Mr. Ed Bianchi, ARC (613) 235-9956 or (613) 526-3871


Attachment #12:

LUBICON LAKE INDIAN NATION MEDIA RELEASE



February 15, 1996



In response to a recent Ontario Court decision enjoining the Toronto Friends of the Lubicon from boycotting companies which use Daishowa paper products, Daishowa Corporate Development Director Tom Cochran told a reporter "The Friends of the Lubicon think the livelihood of a hundred families is worth sacrificing for giving some Indians some land rights". Few statements could communicate more clearly Daishowa's attitude toward the Lubicon people and Lubicon land rights.



Mr. Cochran's quote also makes very clear that Mr. Cochran and his Tokyo-based Japanese masters consider Canadians to be ignorant, racist and stupid. There's no other way to understand why Daishowa would expect that Canadians would respond positively to such a factually inaccurate and race-baiting line.



The Lubicon people have a higher opinion of Canadians than the Japanese owners of Daishowa. Our view of Canadians is based in experience with Canadians like the Toronto Friends of the Lubicon and with the great support Canadians have shown the boycott which Daishowa lawyers are trying to use legal means to shut down.



Canadian jobs aren't at risk because of the boycott of Daishowa paper products. Jobs are at risk because Daishowa refuses to make an unequivocal commitment to stay out of unceded Lubicon territory until Lubicon land rights are settled. All Daishowa has to do for the boycott to be called off is to make that commitment.



There are other places Daishowa can strip the forest bare in their relentless global pursuit of profit. Their timber licence in northern Alberta alone is several times bigger than the entire traditional Lubicon territory. There is no other place where the Lubicons people can exist.



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For more information contact: 403-629-3945/403-436-5652


Attachment #13: Canada's Future Forest Alliance

Box 329, New Denver, British Columbia, Canada V0G 1S0

Phone (604) 358-2333, FAX: (604) 358-7950, e-mail: vws@web.net

MEDIA RELEASE



February 23, 1996



Environmental Groups take Lubicon Boycott Issue to the International Community



A coalition of environmental groups from Canada and the United States have vowed to carry on the struggle of the Daishowa boycott on an international level.



A recent decision by the Ontario Divisional Court has ruled that the Friends of the Lubicon boycott against Daishowa is illegal. The court has granted Daishowa Inc. an interlocutory injunction, forcing a temporary halt to the boycott until Daishowa's case seeking a permanent injunction can be heard.



The Friends of the Lubicon began a consumer boycott in 1991 in order to help the Lubicon Cree people prevent clearcutting on their lands. A Forest Management Agreement (FMA) completely blanketing all 10,0000 square kilometres of Lubicon territory is held by Daishowa Marubeni International's subsidiary of the Japanese-owned Daishowa multi-national logging company.



"Consumers have a right to know that the products they are purchasing are coming from clearcut logging and forest destruction," stated Colleen McCrory, Chairperson of the Valhalla Wilderness Society. Clearcut logging and roadbuilding will cause widespread destruction to Lubicon lands. Daishowa's new 1,000 metric ton/day pulp mill will need vast forested areas of the Lubicon's traditional territory which will clearcut 11,000 trees each day or approximately 4 million trees each year."



The Lubicon people have already been suffering severe hardship as a result of the environmental damage inflicted upon their lands by the oil and gas industry.



Daishowa Director of Corporate Development, Tom Cochrane was quoted in the Toronto Varsity News on February 8th, 1996 as saying "the Friends of the Lubicon think the livelihood of a hundred families is worth sacrificing for giving some Indians some land rights."



"We are shocked by this blatantly racist remark by a Daishowa representative," said Grey Jones, Executive Director of Western Canada Wilderness Committee in Edmonton. "This kind of racist speech does not belong in Canada."



The Ontario Divisional Court ruling must be appealed in the highest court in Canada as it jeopardizes the very foundation of the Canadian people's basic democratic right to freedom of expression. "It is a sad day when Canadians cannot tell their fellow citizens not to buy certain products from companies which are causing environmental damage and human suffering. In Canada, there are no laws against clearcutting and forest destruction, but if you dare to speak out against these injustices, you can't even depend on the courts to protect your democratic rights," said McCrory.



"Environmental groups in Canada and the United States will take this issue to the international community in support of the Lubicon people and the boycott of Daishowa. We will be asking groups in the United States to help the Lubicon. There is already a well organized boycott of Mitsubishi across the US," state Chris Genovali, of the U.S. Pacific Environment & Resources Centre.



Genovali said, "PERC is interested in protecting the boreal forest worldwide. We thought Canada was a very democratic country, but after seeing first hand the hardship of the Lubicon and then hearing of this court ruling, we are very concerned. We will be watching this issue very closely."



For more information call:



Colleen McCrory/Valhalla Wilderness Society (604-358-2333) New Denver, B.C.



Grey Jones/Western Canada Wilderness Committee (403-433-5323) Edmonton, Alberta



Chris Genovali/Pacific Environment & Resources Centre (604-388-9292) San Francisco, Calif. USA


Attachment #14: "Banned boycott to go abroad", Calgary Herald, February 25, 1996


Attachment #15: "Groups to put Daishowa boycott on world stage", Edmonton Journal, February 26, 1996


Attachment #16: "A right to profit, Money, a court rules, is worth more than life", commentary by Kim Goldberg, Nanaimo Times, February 27, 1996


Attachment #17: "Environmentalists go international with Lubicon boycott issue", Alberta Native News, March 1996


Attachment #18: "Incomprehensible picket laws in need of clarification", Toronto Star, March 20, 1996


Attachment #19: "The right to boycott denied", The New Canadian, March 21, 1996


Attachment #20: "Ontario Court Bans Boycott", The Boycott Quarterly, Spring 1996


Attachment #21: "Boycott Daishowa for Boycotts' Sake", Editorial, The Boycott Quarterly, Spring 1996


Attachment #22: "Court ruling against boycott backfires on Japanese company", Ottawa Citizen, March 22, 1996