Sunday, January 6, 2012


With Impunity

First Nation communities don't have to deal with SLAPP Suits from corporations

Submitted by Betty Krawczyk, Cumberland BC


he 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 capitalizing, right?

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 assets communally.

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 right.


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 disobedience.


Shiver Rhodes Publishing | Blog:







© Copyright (c) 2012 The Valley Voice