In a landmark ruling handed down on April 14 by the Ontario Court in Canada, the consumer boycott of forestry multinational Daishowa, launched by Toronto-based Friends of the Lubicon (FoL), was ruled to be not merely legal but a model of how such activities should be conducted in a democratic society. Dismissing Daishowa' s request for a permanent injunction on the boycott, Justice James MacPherson observed that the protection of the Canadian Charter of Rights and Freedoms must be extended to protect political expression on issues of public importance. Macpherson said the plight of the Lubicon Cree Nation of northern Alberta is precisely the type of issue that should generate widespread public discussion.
Daishowa is threatening to clearcut the Lubicon' s unceded traditional Alberta territory at the rate of up to 11,000 trees per day for a pulp mill. Daishowa-owned Brewster Construction clearcut Lubicon land in 1990, but since the boycott began in 1991, Daishowa has not logged on Lubicon land.
Getting SLAPPed
In 1996, Daishowa obtained a temporary court injunction on the boycott in Ontario. Then, Daishowa' s month-long lawsuit, which hit the courts in September 1997, sought to shut down the consumer boycott forever. The company claimed the boycott cost it an estimated $14 million in lost revenue.
FoL' s lawyer, Karen Wristen of Sierra Legal Defence Fund, says the civil lawsuit had all the hallmarks of a Strategic Lawsuit Against Public Participation (SLAPP), a suit in which the plaintiff' s motivation for going to court is more to stop the activist from speaking out than it is to truly seek redress.
David vs. Goliath
The Lubicon are a small aboriginal hunting and trapping society of about 500 people. They have never signed away their land rights. At trial, Fred Lennarson, long-time advisor to the Lubicon, testified that the massive oil and gas exploitation on their land, which started in 1979, has devastated the Lubicon, destroying its hunting and trapping economy. This caused the welfare rate to rise from under 10 percent to over 90 percent by 1983. He expressed the concomitant rise in depression, alcohol abuse and suicide and conveyed a terrifying litany of health problems suffered since resource exploitation accelerated including cancer, skin rashes, a tuberculosis epidemic, still births, miscarriages and birth defects.
Leafleting, Picketing and the Legal Argument
During the boycott, FoL handed out flyers in front of stores carrying paper bags made by Daishowa' s packaging division. Daishowa contended that these informational leafleting actions constituted secondary picketing since this leafleting was not in front of Daishowa premises, but in front of stores that bought from Daishowa.
Canadian labor law holds that secondary picketing is illegal in a labor dispute. Even though the boycott was not related to a labor dispute, Daishowa argued that the secondary picketing was illegal under this law. Daishowa alleged that the FoL' s boycott included threats, intimidation, inducing a breach of contract, wrongfully interfering with economic interests, conspiracy to injure (economically), misrepresentation and defamation.
Daishowa alleged that picketing, or the prospect of picketing, harassed, threatened or intimidated companies that carried Daishowa products. However, some of the companies FoL contacted wrote back saying they were joining the boycott. What' s more, other companies which FoL hadn' t contacted or picketed joined the boycott. In all, over 47 companies representing more than 4,300 retail outlets across Canada have joined the boycott. Kevin Thomas of FoL testified that the group never stopped anyone from entering a store, that people had a right to know how each company had voted on the Daishowa issue and had a right to choose whether or not they would shop at the stores.
Wrongful Interference with Economic Interests?
The issue of intent is particularly important. Daishowa claimed that FoL intended to economically harm Daishowa via the boycott. Daishowa claimed the boycott cost its paper bag business $5 million until the beginning of 1995 and $3 million a year since then.
In testimony, Thomas and Ed Bianchi of FoL stated the purpose of the boycott, was to encourage Daishowa to make a clear, unequivocal and public commitment to not log or buy wood cut on unceded Lubicon land until the land rights were settled and until a timber harvesting agreement was negotiated.
Trail Outcome
While permitting the consumer boycott to proceed, the Court imposed some restrictions on the language to be used by FoL in future communications. Observing that FoL' s use of the word genocide (to describe the process of cultural destruction in which the Lubicon find themselves embroiled) was carefully considered and honestly represented FoL' s viewpoint, Justice MacPherson found that the public would not have understood the term to have been used in this sense. He ordered that the word should no longer be used, nor should there be any further reference to an alleged breach on Daishowa' s part of an agreement made with the Lubicon in 1988.
FoL called for a moratorium on all boycott activities for ten days to permit Daishowa to decide whether or not it will give a clear, unequivocal and public commitment to refrain from cutting timber or buying timber cut from Lubicon lands until the Lubicon land rights issue has been settled and an agreement is struck between the Lubicon and Daishowa for forestry operations which respect Lubicon environmental and wildlife concerns.
Meanwhile, the US-based Lubicon Defense Project, is pressuring US West Dex directories to stop printing on paper purchased from Daishowa. US West customers are encouraged to include a letter with each phone bill payment protesting the use of Daishowa paper in the publishing of the directories. For more information contact Friends of the Lubicon at 485 Ridelle Ave, Toronto, ON, M6B 1K6 Canada; (416) 763-7500; (416) 603-2715 fax; fol@tao.ca; http://kafka.uvic.ca/~vipirg/SISIS/Lubicon/main.html. Lubicon Defense Project, 5009 46th Ave South, Seattle, WA 98118; (206) 722-5785.