In a stunning blow to Canadian activists, an appellate court in Ontario on January 23, 1996 declared a consumer boycott against Daishowa Inc. illegal and imposed a temporary injunction against the boycott's organizers.
The boycott was organized by Friends of the Lubicon, a Toronto-based unincorporated voluntary organization formed in 1989 to assist the Lubicon Cree Nation of Northern Alberta in resolving their land rights disputes with the governments of Alberta and Canada.
In 1989, the government of Alberta granted land timber licenses to virtually all 4,000 square miles of Lubicon territory to a unit of Daishowa.
In 1991, in an effort to pressure Daishowa not to clearcut the land until the Lubicon's land rights were resolved, Friends of the Lubicon organized a boycott against paper bags manufactured by Daishowa.
The boycott worked, as more than 45 companies, included fast food chains, stopped buying bags from Daishowa, forcing the company to hold off clearcutting for the last four years. The company reacted harshly in January 1995, suing the organizers of the boycott, claiming tortious interference with Daishowa's business.
One leader of the boycott and a defendant in the lawsuit filed by Daishowa is Kevin Thomas, a legal researcher in Toronto.
We interviewed Thomas on April 2, 1996.
CCR: What is the Lubicon Cree Nation?
THOMAS: Lubicon Cree Nation is a native group living in northern Alberta. There are currently 500 members whose traditional hunting and trapping territory covers approximately 4,000 square miles. They are fighting for a land rights settlement with the governments of Alberta and Canada which would give them a reserve area of about 95 square miles.
CCR: What are the positions of the governments of Alberta and Canada?
THOMAS: This dispute has been going on for about fifty years. Currently, they are negotiating with the federal government. The government's says that the Lubicon are a distinct people, and they should have a reserve settlement, but they've done everything in their power to prevent a settlement. The problem is the area in which the Lubicon live is incredibly rich in oil and gas. Since that oil and gas was discovered, the place has been overrun by almost every oil and gas company you can think of, and they've pumped out over $8 billion in oil and gas from Lubicon lands.
CCR: Who does the land belong to?
THOMAS: To the Lubicon people.
CCR: Why did they give the oil and gas rights to the companies?
THOMAS: They didn't. The Lubicon people never signed any treaties. They never ceded their lands to the government at any point in Canadian history. However, the government of Canada and the government of Alberta claim that they have the right to the land. And therefore the governments have given permits to oil, gas, and forestry companies.
CCR: When did you start the Friends of the Lubicon?
THOMAS: About a dozen of us started it back in 1988.
CCR: What was the impetus to starting the group? THOMAS: A couple of us had been up to northern Alberta. We had seen the community. We had been in contact with them for a few years. When we actually got there and saw the conditions that they lived in, that was enough to spur us to want to do something about it. CCR: What were the conditions that you saw?
THOMAS: The Lubicon's hunting and trapping economy was destroyed by oil development. Since that started, Lubicon have gone from relative security and health to abject poverty. There is a 95 percent welfare rate. When I visited there in 1987, they were in the midst of a tuberculosis epidemic that affected about a third of the community. There is alcoholism, suicide, an epidemic of still- births and birth defects, and a whole myriad of poverty-related social problems which never existed before the companies moved in.
CCR: What took you there?
THOMAS: My uncle lives out in Alberta. Originally, he told me about the situation. He was familiar with it. When I first heard about it, I had a hard time believing it. I wrote to them and asked for more information. The more I read about it and checked out the different sides, the more I became convinced that there was something really wrong here.
CCR: So, originally, this campaign didn't start out as a group to fight Daishowa?
THOMAS: No. In fact, that was the farthest thing from our minds. Forestry practices weren't a big deal there until 1989. In 1989, the rights to almost the entire province of Alberta were sold off to Mitsubishi and Daishowa, two giant multinational paper companies. The government gave Daishowa the rights to clear cut almost the entire Lubicon territory. This came after all the years of oil and gas development on the Lubicon lands. So, the opening up of clearcutting to Daishowa was the last straw. They couldn't see their land ripped apart.
CCR: What has Daishowa done to the land so far?
THOMAS: In 1990, through a subsidiary called Brewster Construction, they began clearcutting. The pulp mill Daishowa built in Peace River, Alberta requires about 11,000 trees a day. That's about 70 football fields per day. The Lubicons were determined to stop that kind of destruction on their lands. That year, the clearcutting was stopped because of an arson attack at a logging camp. The company felt it was unsafe to continue. The next year, when Daishowa declared they were going back in, the Lubicon people put out a call for help, saying they didn't feel they could stop this alone. They asked people from the outside to become involved and pressure Daishowa not to clearcut.
CCR: What did you do?
THOMAS: We were a bit stumped at first, but luckily somebody was eating at a pizza joint here in Toronto. This person looked at the bottom of a paper bag in the pizza joint, and there was a little Daishowa logo on it. Suddenly, we realized we had the ability to do something. We could talk to these companies and try to get them to switch their paper bag supplier. We figured that was worth a try.
CCR: What was the size of the paper bag market for Daishowa?
THOMAS: We didn't know. In fact, we were pretty much novices when it came to boycotts. We have found out since then that at least in Canada, they have a large share of the market on paper bags. But there are other companies, luckily, which provide the same bags at the same cost. The company says that their total sales are for paper bags are about $20 million to $25 million. They claim that the boycott has cost them about $3 million in lost sales a year, a total of about $8 million so far.
CCR: When did you call for the boycott?
THOMAS: We called for the boycott in the summer of 1991. We started out by contacting four chain companies that bought paper bags from Daishowa -- Cultures, Pizza Pizza, Ho-Lee-Chow and Knechtel Grocers. These are chains that bought a large number of Daishowa paper bags. We phoned these companies, then wrote to them, and sent them information about the company and told them why they should find a different supplier. Three of them -- Cultures, Ho-Lee-Chow and Knechtel -- agreed with us and found a new supplier.
CCR: When you approached these companies, you argued what?
THOMAS: We said the situation with the Lubicon was desperate. We were asking Daishowa to hold off clearcutting until there was a land rights settlement after which they could negotiate with the Lubicon as to what happens on Lubicon land. But the land rights had to be decided first. That seemed reasonable to most people. These fast food chain companies figured that this was the kind of controversy they didn't want anything to do with, so they backed away from Daishowa. Originally, Pizza Pizza told us they wouldn't switch even if hell freezes over. Many companies resent their consumers having any say in the way they run their business. They are annoyed by consumers actually being involved in decision-making. Secondly, Pizza Pizza got a cut rate on their bags. We were told that Daishowa gave them a better price so they would stick with the company. So, we handed out flyers in front of one of the Pizza Pizza stores, we conducted publicity campaigns, so that people who shopped at these Pizza Pizza stores would know where their money was going. That was enough to convince Pizza Pizza in the end, after three months, to switch suppliers.
CCR: So, all four targeted companies eventually switched from Daishowa to other paper bag suppliers. What was Daishowa's response to this consumer pressure?
THOMAS: Daishowa announced that they were not going to log that season. In northern Alberta, they can only log in the winter season, because that is the only time the ground is frozen enough to get heavy equipment in. So, they said they would not log that season, but they would wait until next year. We thought that was a pretty transparent maneuver. They were trying to wait out the public pressure and then, when the heat was off, they would go off again. We said that we wanted a commitment not to log until there was a land rights settlement with the Lubicon. We continued to contact more of their customers and continued to build the boycott. The boycott grew and grew.
CCR: How did it grow?
THOMAS: It is a painstaking process of identifying customers and contacting them. We found it easier as we went along, because most of them had heard about the campaign through the media. It became very well known. One of the Daishowa sales people complained that everywhere he went, he would find people who had heard about the boycott, and they didn't want to deal with him. Even on the golf course, he says, people would bring it up.
CCR: How many companies have joined the boycott against Daishowa?
THOMAS: About 47 companies have stopped buying Daishowa paper bags. That represents about 4300 retail outlets in Canada. That's a lot of paper bags. That's a lot of people touched by the boycott. The huge public involvement in this issue is the real victory here. Consumers have supported Native land rights by refusing to shop at stores that carried Daishowa paper bags or by shopping at stores that had joined the boycott. The boycott took Daishowa's name out of the back pages and made the company a public issue.
CCR: Why the focus on paper bags?
THOMAS: Daishowa doesn't sell directly to the public anywhere. Daishowa sells to other companies, and paper bags are the most recognizable of its consumer products. They also sell lumber products, paper board, and packaging.
CCR: But $20 million is a fraction of Daishowa's income.
THOMAS: The company claims that the financial damage inflicted by the boycott is a big deal for them. But the main issue is not money. It's having the public eye on them. They don't want the public to know what they're doing, much less speak about it.
CCR: The company's response was not to log in Alberta?
THOMAS: Each year, the company added another year long moratorium in the Cree area. They continued to clearcut in other areas of Alberta. As the boycott continued, the only way they could try to sidestep the issue was by agreeing not to log in the Cree areas. The problem is now they are running out of easily accessible areas to clearcut elsewhere in Alberta. So, the heat is coming down on the Lubicon people.
CCR: In early 1995, they filed the lawsuit against your group, seeking an injunction to stop the boycott. Do you believe the pressure to clearcut more land led to the effort to stifle the boycott?
THOMAS: That's exactly it. They had waited four years, assuming the boycott would go away. They eventually realized the boycott wasn't going away, that the public was going to continue to be involved, and they had to do something. So they sued us.
CCR: How did you hear about the lawsuit?
THOMAS: We first heard about it from a reporter. They served us later that day. It was kind of a shock at first -- we hadn't broken any laws, so how could they take us to court? But they charged us with nuisance, intimidation, secondary picketing, inducing breach of contract, and conspiracy to injure, among other things. In a few instances, we went to stores that carried Daishowa bags, and handed out flyers in front of the stores, telling customers about Daishowa and the Lubicon. There is a Canadian labor law which outlaws secondary picketing -- going to a customer you have a dispute with and picketing. The law hasn't been applied in consumer cases before. This is a whole new area. In our case, where the picketing was purely informational, using these kinds of laws against us violates basic constitutional rights like freedom of expression.
CCR: The lawsuit made news in Canada. What was your response?
THOMAS: We had to pour most of our efforts into defense. We were lucky that prominent lawyers here in Toronto who had experience with this, volunteered their services. They have been very helpful. The company is trying to get a temporary injunction until trial. At trial, the court decides whether the injunction is permanent, and whether we have to pay damages to Daishowa. In May 1995, a local Ontario judge ruled against almost every one of the company's arguments and refused to give them an injunction. The company appealed the decision. In January 1996, an appellate court granted the injunction. The court ruled that we are not allowed to conduct this boycott.
CCR: What did the appellate court rule in January 1996?
THOMAS: The court said that most of the torts we were charged with hinged on our 'intent' -- we had to be doing this boycott for malicious reasons. They said that we must have known that running a boycott would cause economic harm to the company. Therefore, if we knew that, it must have been our intention to cause harm. And if it was our intention to cause harm, then the boycott becomes illegal. That was the court's strange logic.
CCR: But that was your intent, right?
THOMAS: No. Our intent is to support the Lubicon and to try to prevent clearcutting on their land. It doesn't make sense to think of a boycott as intending to harm a company, because without that broader purpose, we have no beef with Daishowa. We couldn't care less if they make more or less money. If you believed our real intent was to hurt Daishowa, then you'd have to believe that even if Daishowa agreed to the Lubicon's demands we'd continue to boycott them just to see their profits plummet, that being our real purpose. Our only reason to be involved with them whatsoever is because of the Lubicon.
CCR: So, the appellate court judge issued a temporary injunction in January, 1996 --
THOMAS: Right. And we are scheduled to go to trial on September 30, 1996. The problem now is that the appellate court ruling could be broadly interpreted to shut down almost any consumer boycott in Canada. Think about it. If a boycott is successful, the company can argue that the you intended to cause harm to the company. If you intended to cause harm, according to this ruling, your boycott is illegal. That's a scary precedent.
CCR: So, right now you are prohibited from telling me or anyone else not to buy goods from Daishowa?
THOMAS: Well, it is fairly vague, but I think what we are not allowed to do is go and tell the customers of a fast food chain that uses Daishowa products about the boycott. I can't tell you - - you're not allowed to know -- that the money you spend buying, say, a certain Washington newspaper, goes towards buying Daishowa newsprint, and what effect that might have on the Lubicon people. They're trying to take the public out of a public issue.
CCR: What impact will this ruling have on your activism?
THOMAS: It has shut us down. For now. But the ruling has generated much support for us and adverse publicity for the company. I don't think they like the publicity and I don't think they are aware of how much support is coming in and how much this has potential for actually building support in Canada and especially in the United States, where this lawsuit would never survive a Constitutional challenge.
CCR: Will this decision be overturned?
THOMAS: It's an open question. The courts here have had a history of supporting the rights of large corporations over Native people, environmentalists, unions and activists. We are appealing the decision, and hoping the courts will act responsibly.
CCR: But the company is still not logging the Lubicon area.
THOMAS: Right. The company is concerned that should they start logging now, it might generate more adverse publicity and outrage. People are upset that a company can come into Canada and start screwing the native people here. And then when people want to regulate corporate behavior, or complain about it, or express their opinion, they use the courts to shut them down.
CCR: Is there resentment in Canada that here you have a foreign company coming in and intimidating Canadian citizens?
THOMAS: Definitely, there is a resentment about that. And there has always been some resentment about the fact that the majority of the profits and jobs from Daishowa's operations are shifted out of the country. There is a valid national sentiment there. But I don't think that Daishowa is acting any differently than a Canadian multinational would under similar circumstances.
For more information, contact:
Kevin Thomas, Friends of the Lubicon
485 Ridelle Avenue
M6B 1K6, Canada.
Telephone: (416) 763- 7500
Fax: (416) 603-2715