Sunday, January 6, 2012
First Nation communities don't have to deal with
SLAPP Suits from corporations
Submitted by Betty Krawczyk, Cumberland
four of clubs, according to some professional poker players, is the
unluckiest poker card of all. I think Stephen Harper is holding several in
his sweaty hands. Idle No More and Chief Spence, yes, but even before these
recent developments, First Nations held a big, fat ace in the hole. And just
what, you may ask; does this big, fat ace consist of?
It’s complicated, but in a nutshell, it’s First Nations communal lands.
Stephen Harper is hyperventilating to get at these lands and the water that
goes with them. He thinks he has achieved his goal by pushing through the
Omnibus Bill that overrides everything. By doing this he imagines he has
prohibited any meaningful protest of privatizing the water of Canada, along
with First Nations land claims. By keeping many of the Aboriginal reserves
poverty stricken and addicted, Harper dreams of pushing though one of his
favorite missions…that of privatizing the land on reserves and allowing
First Nations to borrow money on their lands or sell them off. Good
If you’re on Harper’s team, it is. Because by giving First Nations private
ownership of their lands Harper figures it wouldn’t be long before
Non-Aboriginals would gobble up the land and waters. Not only that, private
ownership of the reserves, where each person could own their own house (fee
simple) they could also be sued privately. They would actually be subject to
S.L. A.P.P. SUITS (hereafter referred to as SLAP Suits ) like everybody else
accused of protesting environmental destruction. This would also serve the
purpose of reducing treaty rights to a fallacy. Exactly what is a SLAP Suit?
It is called a “Strategic Lawsuit Against Public Participation”. And it
means exactly what it says. It’s a legal threat by corporations to sue
anybody in civil court, that is, for money, who tries to stop logging or
mining or development in ecological sensitive areas. In most cases of
environmental blockades, the naming of two or three of even one person on a
civil suit (SLAP Suit) is then enough to take the civil suit(s) back to
court and ask for an injunction that would include everybody who tried to
stop the corporate operation in that area. The injunction will demand that
the blockaders abandon their blockade or be charged with Contempt of Court
for breaking a judge’s order. There is no defense against a charge of
Contempt of Court that BC Courts recognize. And it is a rare judge who will
refuse such a request from a corporation. Most BC judges were corporate
lawyers before they became judges. Those who weren’t, go with the flow.
Did you know there are two types of law used by lawyers and judges? One is
called statute law which is based on the Criminal Code. The Criminal Code is
a body of law made by legislators and passed by Parliament. The Criminal
Code is the same in all provinces. The Criminal Code dictates how charge,
trial and sentencing should take place. The other kind of law is Case Law,
that is, law based on decisions that judges have made in the past from their
own interpretation of the Criminal Code and the Constitution. This can
differ considerably in different provinces. For instance, in BC, people
guilty of blockading a logging, mining or developing operation will be hit
with a SLAP Suit.
The corporations in BC are not usually after the modest assets of most
blockaders when they are named in the SLAP Suits. The corporations primarily
use the SLAP Suits to get the injunction. Then if the blockaders disobey
what the injunction says , which is always “Blockaders go home” then the
blockaders will be charged with Criminal Contempt of Court (for breaking a
judge’s order to stay away) and the whole thing then becomes a criminal
matter. At this point, the corporations no longer have to pay for lawyers as
the Attorney General becomes the prosecutor along with Crown Council.
However, if the blockaders actually have valuable assets, as happened in the
struggle over Eagleridge Bluffs, the threat of actually being hit with a
SLAP Suit and losing substantial sums of money and perhaps also spending
time in jail, was enough to cool the passion of most of the blockaders.
Neither Harriet Nahanee nor I worried about the money part, because we had
none to speak of and Harriet was part of a reserve that held their lands and
First Nations people who are part of a reserve are difficult to sue civilly
(Slap Suit) for eco-blockading.
If First Nations are arrested at all it for trying to protect the
environment, especially if it is in their own land claims, it would have to
be under the Criminal Code. Then they would have an actual trial. The Crown
would have to prove that the blockaders’ actions caused irredeemable harm
which would be hard for the Crown to prove. And at least the blockaders
wouldn’t have to worry about losing any land or water or other assets that
belong to the reserve through blockading. This is one of the main reasons
Stephen Harper wants to encourage First Nations, along with Canadian
Chambers of Commerce, business groups, and right wing think tanks, to accept
the model of privatizing reserve lands. A person afraid of having a lien
attached on her/his individual house by a corporation will not be as likely
to risk the threat of loss. As long as reserve lands are not privatized
First Nations people do not have that worry on their minds as they may seek
to start, or join an eco-blockade.
I heard Stephen Harper briefly on CBC this morning. I am sure his abrupt
decision to meet with Chief Spence early was after consultation with the
pipelines people. Meeting Chief Spence was the lesser of two evils. The
issue most worrying to him, I am sure, is the IDLE NO MORE movement. The
IDLE NO MORE people, mostly women, can’t be fooled any longer by government
manipulation of Indian chiefs. This is a grassroots movement started by
Aboriginal women that is not looking to chiefs for guidance or leadership
and they are blocking trains.
Mr. Harper warned that any disruption of industry will not be tolerated.
What Harper is threatening is massive arrests. As the courts can’t order
injunctions in the matter as First Nations people are not easily susceptible
to SLAP Suits, the blockaders would have to be arrested under the Criminal
Code and not under a single judge’s order from which there is no defense.
This would provide the stage for actual trials in open court where First
Nations people could argue their case on the world stage.
And if there would large numbers of First Nations people arrested and maybe
even sent to jail? As long as the blockades were peaceful, arresting large
numbers of Aboriginal people would be a huge embarrassment to Stephen
Harper, so much so that the entire world would turn against him. We would
need the creation of a great, huge, momentous support system on the outside,
composed of both First Nations and non- First Nations. This would insure
that the people inside were okay, that the world knew why they were there,
and to get their messages out.
Our BC old growth forests are gone, our watersheds are being subjected to
encroachment wherever we turn, we can see the smoke rising from the distress
of the earth with the worst yet to come. And now, contained within the
Omnibus Bill is the end of Canada as we know it. Again, IDLE NO MORE has it
This is too important to be left to chiefs who, however well meaning, get
sucked into the business of the government instead of the business of the
people. Just like most of our own chiefs. Let us hold hands and stand
together. We have our own aces. We have but to play them.
Next time: Why lawyers do not always serve the best needs of peaceful civil
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