(Unedited)

Plaintiff

Defendants

Injunctions -- Interlocutory or interim injunctions -- Consideration of merits -- Balance of convenience -- Avoidance of disposition of issue -- Requirement of strong prima facie case -- Requirement of irreparable injury -- Labour relations -- Nuisance -- Civil rights -- Freedom of speech or expression -- Picketing, secondary picketing in a non-labour context -- Indians -- Lands -- Protection of Indian rights.

This was a motion by the plaintiff for an interlocutory injunction restraining the defendants from unlawfully interfering with the plaintiff's contractual and economic relationships through threats, intimidation and coercion, misinformation and defamatory statements and from secondary picketing and boycotting of the plaintiff's customers. The plaintiff was a subsidiary of a company involved in logging. The plaintiff manufactured paper bags for grocery and other stores. It had no connection with the logging activities of the associated company. The defendants were a group of individuals who were interested in protecting the rights of the Lubicon Cree. The associated company of the plaintiff got a logging contract that impacted on the Lubicon's land. The defendant then decided to organize a boycott campaign of the plaintiff's business. This campaign consisted initially of telephone or letter contact informing the customers of the plaintiff of the situation. Then written materials were sent out indicating that the plaintiff had an agreement with the Lubicon Cree that it would not begin clearcutting their land until their land rights settlement was negotiated. The defendants stated that plaintiff's actions would result in cultural genocide. Also included were press releases indicating which of the plaintiff's customers were currently part of the boycott. Finally there was a threat that a boycott of a non-boycotting company would be initiated unless the defendant received written confirmation that the customers would stop using the plaintiff's paper products. The plaintiffs claimed that it had lost 26 customers, that it had been deprived of the business of three companies and that four others had been targeted by the defendants. The plaintiff alleged losses 25 per cent of its business.

HELD: The application was allowed in part. Communication with the customers of the plaintiff and secondary picketing was not to be enjoined if certain conditions were followed. These were that the defendants were prohibited from indicating that the Lubicon had reached an agreement with the plaintiff, the defendants were prohibited from using the word genocide or similar words in its communications, the defendants were required to notify all of the plaintiff's customers when a land settlement was reached and that the boycott was to cease, and the defendants were to provide a list to the plaintiff of all of the customers of the plaintiffs they had contacted and copies of all correspondence that the defendants had with the plaintiff's customers were to be forwarded to the plaintiff. The test to be applied in this case was whether the applicant had established a prima facie case rather than whether there was a serious issue to be tried. The plaintiff failed to establish a prima facie case of misrepresentation, defamation, injurious falsehood, nuisance, wrongful interference with economic interests, including secondary picketing and the threat of secondary picketing, inducing breach of contract, intimidation and conspiracy. The plaintiff did establish a prima facie case that attributions of genocide on the activities of the logging company were misleading and constituted misrepresentation. With regard to the issue of irreparable harm, the plaintiff succeeded in showing that even if it recovered damages at the trial, the defendants would not be able to pay any large award. The loss to the plaintiff's reputation and business might not be permanent, given the indication by some customers of their intention to go back to using the plaintiffs products after the dispute had ended. The balance of convenience favoured the defendants as the Charter rights of the defendants were to be favoured over the economic rights of the plaintiff.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2(b).
Criminal Code, s. 423(1)(f), 423(2)

E. Cherniak, Q.C., and P. Jervis, for the plaintiff.
C. Ruby, H. Sachs and J. Copeland, for the defendants.

KITELEY J.:--

1. restraining unlawful interference with Daishowa's contractual and economic relationships through the use of unlawful means such as threats, intimidation and coercion, misinformation and defamatory statements, and the threat of secondary picketing and secondary boycotting of Daishowa's customers;

2. restraining secondary picketing and unlawful secondary boycotts of Daishowa's customers; and

3. restraining the communication of untruthful and defamatory statements in the course of their unlawful secondary boycott of Daishowa's customers.

1. communication by the Defendants with the public, including Daishowa's customers, of any truthful, non-defamatory information about any subject including information about Daishowa Inc. or its related companies;

2. lawful picketing by the Defendants including picketing of Daishowa premises or those of any of its related companies; and

3. the Defendant's boycott of Daishowa using lawful means.

1. a) Affidavits of Tom Cochran (Director, Corporate Development of Daishowa Forest Products Ltd.) sworn January 10, 1995, February 1, 1995, February 3, 1995, April 5, 1995, and April 25, 1995.

b) Transcript of Cross-Examination (on all but the affidavit dated April 25, 1995) taken on April 6, 1995.

2. a) Affidavit of Gordon Bunt (General Manager of the Packaging Division of Daishowa Inc.) sworn January 3, 1995.

b) Transcript of Cross-Examination taken on April 7, 1995.

3. a) Affidavit of Michael Overs (Chairman of Pizza Pizza sworn November 30, 1994).

b) Transcript of Cross-Examination taken on April 13, 1995.

4. a) Affidavit of Jack Love (Sales Supervisor, Ontario Region, of the Packaging Division of Daishowa Inc.) sworn January 5, 1995.

b) Transcript of Cross-Examination taken on April 10, 1995.>

5. a) Affidavit of Karen Winter (Sales Specialist, Retail Packaging for the Packaging Division of Daishowa Inc.) sworn December 22, 1994.

6. a) Affidavit of Don Shafer (President of the Comac Food Group) sworn January 27, 1995.

7. a) Affidavit of Brian Worts (Director of Retail Leasing for the Oxford Suburban Group) sworn January 31, 1995.

8. a) Affidavit of Guiseppe Sasson (Purchasing Manager of Fancy-Pak) sworn January 31, 1995.

9. a) Affidavit of Marc Robitaille (President of Omniplast Inc.) sworn March 21, 1995.

10. a) Affidavit of Fern Lukofsky (Account Executive for Progress Packaging) sworn April 4, 1995.

b) Transcript of Cross-Examination taken on April 13, 1995.

11. a) Affidavit of Koichi Kitagawa (President and Chief Executive Officer of Daishowa Forest Products Limited) sworn April 4, 1995.

b) Transcript of Cross-Examination taken on April 10, 1995.

12. a) Brief of Defendants' Responses to Undertakings.

13. a) Affidavit of Kevin Thomas sworn March 20, 1995.

b) Transcript of Cross-Examination taken on April 12, 1995.

14. a) Affidavit of Bernard Ominayak sworn March 21, 1995.

15. a) Affidavit of Joan Ryan sworn March 20, 1995.

16. a) Summary - Financial Reports (Daishowa Packaging Division).

17. a) Brief of Defendants' Book of Selected Exhibits.

18. a) Brief of Plaintiff's Responses to Undertakings and Exhibits.

19. a) Brief of Material Provided by Plaintiff Pursuant to Undertakings.

20. a) Affidavit of Suzanne Jarvie sworn April 25/95.

1. The statement of claim was issued on January 11, 1995 and was served on January 12, 1995 along with a motion record.

2. The motion for the injunction was originally returnable on February 6, 1995. On that occasion, an order was made on consent by Wright J. adjourning the motion for three months on condition that, in the meantime, boycott activities would be suspended, the defendants would not have contact with customers, and there would be no picketing. The statement of defence was required by March 2, 1995. Costs of that attendance were reserved to the Judge hearing the motion.

3. The statement of defence was served March 20, 1995.

4. Cross-examinations of various witnesses took place in April.

5. A motion was brought on April 21, 1995 by the plaintiff for an order to seal certain of the documents produced by the plaintiff in response to questions asked in cross-examinations about the damages alleged to have been suffered by the plaintiff. That motion was dismissed by Borins J. on condition that the plaintiff might renew the motion before the Judge hearing the main motion. Borins J. in his endorsement, reflected his "expectation that between its production and return date of the motion, the documents would be used by the Defendants only to argue the motion." Costs of that motion were reserved to the Judge hearing the motion.

6. At the outset of the hearing on April 26th, counsel for the plaintiff again made a motion to maintain the confidentiality of the documents. At the conclusion of submissions on April 28, 1995, judgment was reserved to this date. In order to address the expiration on May 6th of the order of Wright J. and the further motion with respect to confidentiality, an order was made pending judgment on May 19, 1995 continuing the order of Wright J. dated February 6, 1995 with the ongoing "expectation", as expressed by Borins J. dated April 21, 1995, that the materials in question would be used by the defendants only with respect to this motion.

[para6] Daishowa Inc. is a Canadian corporation with business premises in the provinces of Quebec, Ontario and Manitoba. It operates paper and sawmill operations in the Province of Quebec and has a packaging division which manufactures and sells a variety of packaging products throughout Canada. Daishowa Inc. is a subsidiary of Daishowa Forest Products Ltd. (DFPL). Daishowa Forest Products Ltd. is owned by Daishowa Canada Holdings Ltd. (DCHL) which in turn is owned by Daishowa Paper Manufacturing Co. Ltd. (DPMC) which is a Japanese corporation. Neither Daishowa Forest Products Ltd. nor Daishowa Canada Holdings Ltd. carry on logging or pulp and paper operations in Western Canada. The parent company DPMC has another subsidiary, Daishowa Canada Company Ltd. (DCCL). It is this latter company that negotiated a Forest Management Agreement in Alberta.

[para7] The packaging division of Daishowa is based in the City of Winnipeg. It currently employs approximately 100 people with several additional sales personnel in other provinces. Daishowa's primary business is the manufacture and sale of paper bags ranging from simple brown paper bags to high quality shopping bags used by retail clothing chains. The Daishowa packaging division does not have any manufacturing facilities outside of the Province of Manitoba. It does not use any wood fibre or other raw material from northern Alberta.

[para8] While not a party, the circumstances of the Lubicon Cree merit some description in order to appreciate the identity and objectives of the Defendants. Dr. Joan Ryan, who has a Doctorate in Anthropology, has been involved with documenting Lubicon Cree ethnography since 1980. More will be said below about the evidence contained in her affidavit. In brief, she indicates that the Lubicon people number approximately 500 and a majority reside in the northeast area of the Peace River district of Alberta. The Lubicon Cree experienced negative effects from oil well activity beginning in the 1950's.

[para9] According to the affidavit filed by Chief Bernard Ominayak, the Lubicon people were not included when Treaty 8, purporting to extinguish aboriginal land title in northern Alberta, was negotiated with the indigenous societies surrounding the Lubicon traditional territory. To date, no treaty purporting to extinguish the Lubicon Cree Nation's aboriginal title has been negotiated with them. They have also never ceded their rights to their traditional territory in any other legally or historically recognized way. The Lubicon Nation, therefore, takes the position that they retain unextinguished aboriginal land rights to a 10,000 square kilometre area ("unceded Lubicon territory") in northern Alberta.

[para10] Kevin Thomas resides in the City of Toronto. He works as a researcher for a Toronto law office and is currently working towards a Bachelor of Arts degree at the University of Toronto. Ed Bianchi resides in the City of Toronto. He has a Masters Degree in Film and Video Production and Environmental Studies and also lectures at York University. He works for the Canadian Broadcasting Corporation as part of the Training and Development team and is an independent video producer and director who operates a small production company which concentrates on educational projects. Stephen Kenda resides in the City of Toronto and is currently studying to become a Shiatsu massage therapist. He has a Bachelor of Applied Science degree in Electrical Engineering.

[para11] Thomas became interested in the plight of the Lubicon Cree when he was in high school. The Friends of the Lubicon is an unincorporated group which was formed in 1988 after two of the defendants visited the community of the Lubicon Lake Cree Nation in Little Buffalo, Alberta. At the time of that visit, the community had been devastated by a tuberculosis epidemic. The group was formed to assist the Lubicon to improve their conditions. All members feel a strong moral and emotional commitment to the Lubicon community and its well being. Friends of the Lubicon is an entirely volunteer organization. Thomas, Bianchi and Kenda are members of the Friends of the Lubicon.

[para12] The Friends of the Lubicon are not alone in supporting the Lubicon Cree Nation. A significant number of other organizations (over 30) have been involved including: The National Association of Japanese Canadians, The Assembly of First Nations, the Toronto Branch of the United Nations Human Rights Committee, The David Suzuki Foundation, The Canadian Peace Alliance, The Daishowa Boycott Coalition, The Lubicon Solidarity Network, and the unit on Public Responsibility of the Anglican Church of Canada.

[para13] The Friends of the Lubicon is a loosely organized group numbering at any one time from the three named individuals to 15 or 20 who attend meetings held more or less regularly at two week intervals. The general objective of the Friends of the Lubicon is to increase the level of public knowledge of the plight of the Lubicon Cree and encourage a land claims settlement. This objective is met in a number of ways including speeches, attendances at rallies such as the Earth Day Rally, presentations at schools and, lobbying government Ministers and officials to expedite a settlement.

[para14] The "Daishowa Boycott" is only one of many of the activities of the Friends of the Lubicon. Mr. Thomas indicated in his cross-examination on April 12, 1995 that, in the year preceding the order of Wright J. on February 6, 1995, only 15-20% of the meetings had addressed boycott issues while the balance had been public education and lobbying. Based on the cross-examination of Thomas, it would appear that there is no formal co-ordination of activities of the supportive groups and individuals working on behalf of the Lubicon Cree. It does appear, however, that copies of press releases and other reports of activities are forwarded to the Lubicon Cree Nation with the anticipation that, in that way, there will be a general dissemination of its activities.

[para15] In 1987, DCCL began negotiations with the Alberta Government to obtain a licence to log in northern Alberta. In February, 1988, announcements were made that DCCL intended to construct a $500 Million bleached kraft pulp mill in northern Alberta and would also harvest in the adjacent area. (Daishowa-Marubeni International Ltd. (DMI) is a company which is jointly owned by DPMC and Marubeni Corporation which is a separate Japanese Corporation. In 1992, DCCL transferred its interest in the pulp mill and all related logging rights to DMI.)

[para16] It is evident from the cross-examination of Kitigawa, Vice President and General Manager of DCCL in February 1988, that prior to entering into any arrangement with the Alberta Government, he was aware that the Lubicon Cree were claiming a significant portion of the land on which harvesting was intended. Kitigawa indicated that, in his negotiations with the Province, it was agreed that whatever land area was taken away for the reserve would be replaced. [para17] It was apparent in February 1988 that DCCL intended to begin construction of the pulp mill in 1988 and that construction would take two years. Harvesting of trees would take place in the winter of 1989/90 in order to have stockpiles ready in 1990 when the mill would be operational. Prior to the agreement with the Alberta Government, other companies had logged in northern Alberta. For the most part, previous logging was of softwood to make lumber. DCCL planned to operate a pulp mill for which hardwood was required. Northern Alberta has an abundant supply of hardwood, particularly aspen.

[para18] The announcement in February, 1988 was based on the assumption that a Forest Management Agreement (FMA) subsequently would be negotiated which would address cutting schedules and environmental issues.

[para19] DCCL intended to harvest by patch cutting which was described by Kitagawa as clear cutting but on a smaller scale based on historical data which indicated regeneration of aspen on a 60 year cycle.

[para20] At the time of the Calgary Olympics in February 1988, the Lubicon Cree staged a significant protest to publicize its concerns about the lack of resolution of its land claim. In February, following the announcement by DCCL, considerable media reports, both print and radio, reflected the concerns of the Lubicon Cree. Ominayak indicated in his affidavit that it was his understanding that, when the pulp mill operated, it would take about ll,000 aspen trees a day to produce the anticipated l,000 metric tons of dehydrated pulp. A demonstration was planned by a Vancouver based organization called United Native Nations to take place at the Vancouver offices of DCCL on March 7, 1988.

[para21] Prior to that protest, Kitagawa called Ominayak to discuss the concerns which, according to media reports, Ominayak had. Since Ominayak intended to be in Vancouver for the protest over the noon hour, Kitagawa and Ominayak agreed to meet at 12:30 p.m. on March 7th, 1988.

[para22] The events which occurred at this meeting had a significant impact on what occurred in the years that followed and the allegations in these proceedings. To describe it as a turning point for the Lubicon Cree and the Friends of the Lubicon is an understatement. Since it figures so prominently, some attention to detail is required.

[para23] The meeting, in summary, follows: Ominayak asserts that "Mr. Kitagawa agreed to stay out of the entire traditional Lubicon territory until there was a settlement of Lubicon land rights and an agreement negotiated with the Lubicon people respecting Lubicon wildlife and environmental concerns." Kitagawa asserts that it was a "let's get to know each other" type of meeting and that no agreement was reached.

[para24] At the meeting were three representatives of the Lubicon Band (Ominayak, Fred Lennarson and Miles Richardson), two representatives of the United Native Nations (Ron George and Chief Aaron Greycloud), two representatives of DCCL (Koichi Kitagawa and Tom Hamaoka), and a consultant retained by DCCL (Henry Wakabayashi). Mr. Wakabayashi took notes of the meeting and a typewritten version was prepared and attached to Kitagawa's affidavit. It is apparent that Kitagawa agreed that the "reserve lands" were an area on which there would never be logging. Indeed, Kitagawa acknowledged that in the telephone call prior to the meeting. However, Ominayak had indicated that the Lubicon Cree claimed rights to a further 4,000 square mile area as its "traditional lands." The "traditional lands" and the "area of concern" are synonymous.

[para25] Ominayak's affidavit describes his version of the meeting. There was no cross-examination on this affidavit. Kitigawa provided his version of the meeting in his affidavit.

He was cross-examined at length on his recall of the events and was aided by the seven pages of notes produced by Wakabayashi. In the motion materials, there are many pages devoted to the events of the meeting. While eight people attended the meeting, we have evidence from only two.

[para26] The Court is therefore put into the unenviable, indeed impossible, position of receiving conflicting evidence on a very critical event.

[para27] Based on the materials, it is apparent that Ominayak and Kitagawa both believe very strongly in their understanding of what transpired.

[para28] There is some justification for the position advanced on behalf of Ominayak that can be found both in the notes of the meeting and in the evidence of Kitagawa. On page 6 of the notes, the following remark is attributed to Kitagawa: Will negotiate before proceeding.

[para29] In his cross-examination, Kitagawa gave the following evidence:

Q 295 Certainly.

A. "will negotiate before proceeding" now that I see it, I refer that to the negotiation of the Forest Management Agreement before proceeding. That had not been finalized as a document. That had to be negotiated with the government.

Q 296 Despite the fact that the comment, "will negotiate before proceeding" is made sandwiched between Mr. Lennarson's (the Lubicon's advisor) comments and Ominayak's answers. Despite where it comes at the meeting, your view is that you are talking not about negotiating with the Lubicon but now you are saying that you are negotiating with the government?

A. Let me rephrase that. There would be two aspects of that. One would be to negotiate the area of concern with the Lubicon, and two would be to negotiate the documentation with the Alberta government. (emphasis added)

Q 297 Is it your recollection that you made that clear at this point in the meeting?

A. Yes.

Q 298 What do you recall your words were? It's key.

A. The key is that we would not harvest on their reserve area. Two, the final area of the FMA had yet to be ... the final document of the Forest Management Agreement had yet to be worked out. (emphasis added)

[para30] In his responses, Kitagawa has referred to both the reserve area, about which there was no dispute, and the area of concern. If one took the answer to Q 296 in isolation, it is reasonable to understand how Ominayak came to the conclusion which he did.

[para31] The demonstration continued during this meeting. At the conclusion of the meeting, the native representatives called off the demonstration. As Ominayak said at paragraph 26 of his affidavit:

... Based on that agreement the Lubicon people called off the growing national protest over the timber lease granted to Daishowa. We would never have agreed to call off the growing nationwide protest if Daishowa had not agreed to stay out of our unceded traditional territory until there was a settlement of Lubicon land rights and an agreement negotiated with the Lubicon people respecting Lubicon wildlife and environmental concerns.

[para32] Although this is a pivotal event in these proceedings, it is not possible for the Court to make any findings at this stage as to the results. All of those in attendance would be required to give oral evidence. An opportunity should be afforded to Kitagawa to resolve what appear to be inconsistencies in his evidence as indicated from the excerpt above.

[para33] At this stage, the most that can be said is that both Kitagawa and Ominayak appear to honestly hold their respective views about what transpired.

[para34] Lennarson had agreed at the meeting to forward to Kitagawa a map demonstrating the "area of concern." He did so by letter dated March l4, l988 in which he pointed out:

... The area outlined in blue is the area over which the Lubicon people intend to retain wildlife management and environmental protection responsibilities post-settlement.

[para35] Kitagawa responded to Lennarson by letter dated March 25, 1988 in which he wrote:

The wildlife management and environmental protection responsibilities will be spelled out in our Forest Management Agreement, however, we will endeavour to cooperate and consult with the Lubicon people prior to the planning and harvesting of the timber resources.

[para36] Upon receipt of that letter, Ominayak wrote to Kitagawa by letter dated April 2, 1988 in which he begins and ends by saying: "Apparently we failed to communicate adequately during our meeting on March 7, 1988." He went on to indicate:

As we told you during our meeting on March 7th, we don't intend to allow logging in our traditional area at least until our aboriginal land rights are settled.

... Any effort to proceed with logging in our traditional area prior to settlement of our aboriginal land rights and/or negotiation of an appropriate agreement with us will be blocked -- on the ground if need be.

[para37] If Kitagawa replied to that letter, it was not included in the material.

[para38] In August, 1988, Kitagawa became President and Chief Executive Officer of DFPL, the parent company of Daishowa Inc.

[para39] In 1989, the Forest Management Agreement was signed.

[para40] DCCL acquired at least one local logging company, Brewster Construction (Brewster).

[para41] Ominayak deposes that, on August 17, 1990, an Alberta Provincial Forestry Ranger gave him a document entitled "Proposed Timber Harvesting Activities 1990/91." The document indicated that the Alberta government had granted five timber leases in the unceded traditional Lubicon territory to four different logging companies. All five of these licences were for "Timber Harvesting for Mill Facility."

[para42] On August 31, 1990 Daishowa spokesman Wayne Crouse was reported in the newspaper to have said that a wholly owned Daishowa subsidiary and three other Daishowa related companies "will be logging in the area that is claimed to be the traditional (Lubicon) hunting and trapping areas this winter."

[para43] Ominayak's affidavit reflects the various meetings, conversations, media reports and events, the details of which are not repeated here. By the end of October, 1990, he reported that a Daishowa subcontractor, Buchanan, commenced logging in the unceded Lubicon territory. On November 19, 1990 Brewster began clearcutting fifteen to twenty-six hectare stands of spruce and aspen on unceded Lubicon land. Thomas further reports that Lennarson informed him that the Lubicon were told on November 23rd that the area that Brewster was planning to log was about one thousand hectares in seventy days. Thomas indicates that one hectare is the size of approximately two football fields and equates fourteen hectares a day to almost thirty football fields a day. Ominayak asserts that, in the interval between the late summer and fall of 1990, Daishowa spokespersons variously denied the existence of the March 7, 1988 agreement, reneged on it, or altered its terms.

[para44] Based on the materials before the Court, it is not apparent the extent to which logging did take place that winter. Logging can only occur in the winter months when the ground is frozen.

[para45] It is apparent from the materials filed by Ominayak and Thomas that these events caused considerable consternation for the Lubicon Cree.

[para46] On August 16, 1991 it was reported in an article in "Windspeaker" that:

Jim Morrison, general manager of Daishowa's Edmonton office, said in an interview Daishowa has no plans for a major logging operation this fall.

However, a subsidiary - Brewster Construction - does plan to log in unceded Lubicon land but nowhere near the two hundred and forty-three square kilometre proposed reserve area. (emphasis added)

[para47] A resident of Quebec had written to Hamaoka by letter dated July ll, 1991 to which James Morrison (General Manager, Edmonton Office DCCL) responded on August 22, 1991. Among other points made by Morrison, he indicated as follows:

Brewster Construction Ltd. was acquired in October of 1989 and subsequently became a subsidiary of Daishowa Canada. This sawmill has been in existence for 13 years and has been harvesting its timber quotas on the east side of the Peace River without incident or confrontation for the past 12 years. All of Brewster's timber quotas are outside the specified reserve area for the Lubicon Band. Last year, recognizing the sensitivity of the negotiations, Brewster modified its logging plans for new areas, in the hope that talks would be restarted. However, further delays are no longer possible. (emphasis added)

[para48] A copy of that letter was made available to Ominayak shortly thereafter.

[para49] While the details are not provided in the material, it is apparent that the planned logging in the area of concern that winter was again a cause of concern. A meeting took place on October 28, 1991 which included Ominayak, Wayne Thorp (General Manager Alberta Woodlands, DCCL), and one other. By letter dated October 31, 1991, Thorp wrote to Ominayak and indicated as follows:

Thank you for meeting with Mr. Heinen and myself on October 28, 1991 to clarify our confusion regarding the sensitive geographic area of concern to the Lubicon Lake Indian Nation.

As we discussed in the meeting, Daishowa possesses many different maps that vary considerably from the one you sent attached to the letter dated March 14, 1988 to Mr. Koichi Kitagawa.

As I promised at our meeting, please find attached a map showing the approximate location of the area of concern which you have referred to as the "lubicon territory still used and occupied by Lubicon people" (transferred from the map you sent Koichi Kitagawa on March 14, 1988 and confirmed at our meeting of October 28, 1991).

As we also advised you, Daishowa's Peace River Pulp Division or Subsidiaries will not be harvesting or purchasing from any supplier within the sensitive area of concern during this coming logging season. (emphasis added)

[para50] That letter is attached as an exhibit to the affidavit of Tom Cochran, Director, Corporate Development of DFPL. Both Thomas and Ominayak indicate in their affidavits that the first they saw that letter was after the motion record was served with a copy attached as an exhibit. The map referred to in the letter is not attached in the copy filed as an exhibit. Ominayak states in his affidavit that, at the meeting on October 28th, no commitment was made not to purchase timber cut in the unceded traditional Lubicon territory.

[para51] This is the first year of Daishowa's self-imposed moratorium. Based on the evidence of Ominayak and Thomas, that step was not communicated to the Lubicon Cree.

[para52] By letter dated November 6, 1991, Thomas wrote to Hamaoka at DCCL and indicated as follows:

... We are writing to you today to inform you of our intentions vis-a-vis this impending crisis. While you were willing to honour the March 7, 1988 agreement with the Lubicon Nation not to log in their territories until a settlement of their land rights was in place, we kept our energies directed at the federal government's refusal to resolve Lubicon land rights. However you have flagrantly broken the terms of that agreement by planning the clear-cutting of Lubicon territories through your subsidiary Brewster Construction, making you an active agent in the destruction of the Lubicon peoples land and future.

We expect from you a clear, firm and public commitment to not cut and not to purchase any wood cut on unceded Lubicon territory until after a settlement of Lubicon land rights and negotiation of a harvesting agreement with the Lubicon people that takes into account Lubicon wildlife and environmental concerns. Until such time we are initiating a public boycott campaign of Daishowa products. (emphasis added)

This campaign will encompass all Daishowa products which reach the public, including all paper products and chip board. We are currently negotiating with many of your clients who have shown an interest in the Lubicon Nation's concerns and are reconsidering their contracts with Daishowa.

... There is no need for Daishowa to go through the kind of public ordeal you are heading for. Now is the time for a clear public commitment from Daishowa. Otherwise we will have no choice but to mobilize our membership to the utmost of our capabilities. We will expect your response promptly. (emphasis added)

[para53] Morrison responded by letter dated November 8, 1991, the text of which is as follows:

This is in reply to your letter to Mr. Tom Hamaoka dated November 6, 1991. In recent weeks, Daishowa Canada has been attempting to dispel the negative effects of some of the misleading reports published in the press. Therefore, we have attached for your perusal, a copy of Daishowa Canada's position paper which outlines the Company's efforts respecting the Lubicon situation.

You may not be aware that Daishowa Canada (and its subsidiaries) have elected to avoid the area of concern to the Lubicons this winter .... (emphasis added)

[para54] Morrison did not refer to his letter to Ominayak dated October 31, 1991.

[para55] Thomas wrote again to Hamaoka by letter dated November 10, 1991. Since this letter contains considerable detail with respect to the position taken at that time, communicated subsequently to customers in the boycott campaign, and hence part of the basis on which tortious conduct is alleged, it is reproduced here:

We are in receipt of Mr. James P. Morrison's letter dated November 8, 1991, with the attached five-point 'position paper', via fax. We appreciate the speedy reply.

Unfortunately, the matter is not resolved as of yet. In particular we have three main points which need to be clarified before we will consider disengaging our public action campaign.

1) In your point number 3, you make note of a legal obligation to purchase incidental aspen from independent sawmillers, farmers and loggers who have their own permits and quotas, and salvage aspen from other industrial activities, within the FMA area. If you are indeed legally obligated to do so, doesn't this contradict your promise not to accept this aspen! What is the province's position on this matter?

As people who have monitored your company's activities over the last few years, we haven't forgotten the awful tap-dance between Daishowa and the province of Alberta last winter when Daishowa first pushed forward its plans to break their March 7, 1988 agreement with the Lubicon Nation by beginning logging operations on unceded Lubicon territories. Faced with a possible confrontation on the ground and growing public outrage, Daishowa suggested on October 5, 1990 that they were abandoning logging plans for the winter, a decision which had to be approved by provincial Forestry Minister LeRoy Fjordbotten and Premier Don Getty. The provincial end of this 'good-cop-bad-cop' combination refused to give Daishowa sub-contractors alternate sites for logging operations outside of unceded Lubicon traditional territories; so, on November 19, 1990, while Fjordbotten was saying that Daishowa subsidiary Brewster Construction would not be logging in "the area of concern," Brewster was already clear-cutting spruce and aspen in unceded Lubicon territories. In fact Buchanan Lumber Ltd. had been working on roads in the Lubicon area as early as October 29, having been "given the go-ahead" by provincial forestry officials. On November 14 Buchanan was actively logging and Brewster had bulldozed a couple of logging roads on Chief Bernard Ominayak's trapline east of Bison Lake.

2) The "area of concern to the Lubicons" you refer to throughout the document is never clearly defined. We are concerned with the ambiguity expressed. In fact, the very day you wrote us, the Edmonton Journal reported that Daishowa has been using faulty maps in a related dispute, despite having been provided with clear maps delineating the entire unceded Lubicon traditional territory. Any public commitment made by Daishowa Canada Co. Ltd. must include clear representation of the area covered by the agreement.

3) Most of the promises made in the enclosed 'position paper' are quite clearly limited to this winter only. Does this mean that, barring a resolution of the Lubicon Lake Nation's land rights with both lev!»overnment in the meantime, we have to repeat this scenario next year, and the year after that? Our position, as expressed to you in our letter of November 6, 1991, is that we expect Daishowa to make a clear, firm and public commitment to not cut and not to purchase any wood cut on unceded Lubicon territory until after a settlement of Lubicon land rights and negotiation of a harvesting agreement with the Lubicon people that takes into account Lubicon wildlife and environmental concerns. Mr. Hamaoka, principles are not a matter of convenience. This is a matter of the very survival of an aboriginal society and regardless of how long it takes to resolve the land rights of the Lubicon Nation is still wrong to clear-cut in their unceded traditional territories before such a settlement is in place. It's wrong today and it will still be wrong tomorrow. If you sincerely wish to see justice done, no other position is tenable.

Your optimism concerning recent discussions with Tom Siddon is astounding Mr. Siddon did little to justify the opinion that these talks "may lead to a resumption of their negotiations." In fact that meeting between Siddon and Ominayak had no real substance to it. For the record, Mr. Siddon told Edmonton Journal reporters that he was once again dusting off the Federal government's unacceptable "take-it-or-leave-it" offer of January 1989, minus approximately 40% of the initial offer which has now been promised to the government-created Woodland Cree band. Perhaps Siddon felt that three years of government-sponsored disruption of Lubicon society would have made them desperate enough to accept a clearly insulting offer. This hardly constitutes a healthy atmosphere for the resumption of negotiations -- if anything it illustrates that the federal government is as low and untrustworthy as ever.

Which brings us to the primary issue at hand: trust. On what grounds should we trust another vague statement from Daishowa? In public and private statements over the past year your position has changed frequently and dramatically. For instance:

* On March 7, 1988, at a meeting between Daishowa officials and Lubicon representatives, an agreement was made in front of witnesses that Daishowa would not log on unceded Lubicon traditional territories until a settlement of Lubicon land rights had been reached with both levels of government. Daishowa then moved to break that agreement last winter by commencing logging in unceded Lubicon territory through subsidiaries like Buchanan and Brewster.

* In an April 12, to 1991 letter to the chairperson of the Toronto-based Task Force on Churches and Corporate Responsibility, Daishowa General Manager of the Edmonton Corporate Office James P. Morrison claimed that "Daishowa at no time made a commitment to the Lubicon Band that involved their traditional territory." He suggested instead that the March 1988 meeting was held to explain to the Nation "the provisions contained in the proposed Forest Management Agreement" (between Daishowa and the Alberta Provincial Government).

* In a meeting held on September 24, 1990 in the Lubicon settlement at Little Buffalo, Wayne Thorp and Tom Hoffman from Daishowa were asked about the agreement. Mr. Thorp said that "Daishowa is respecting that agreement, Daishowa is not logging in the Lubicon area." Stu Dornbierer of Daishowa clarified this position by saying "a distinction has to be made between Daishowa and these logging companies", referring to the Daishowa subsidiaries who were doing the dirty deed. On September 27 Mr. Akidat of Daishowa subsidiary Brewster Construction further mentioned the agreement, claiming that as a recently purchased subsidiary they didn't feel bound by it.

* The next attempt to redefine the agreement came from James Morrison of Daishowa who said on November 17, 1990 that your agreement with the Lubicons provided only that you would stay out of unceded Lubicon lands until the Grimshaw accord was negotiated. The Grimshaw accord, as you recall, was an agreement on a proposed land base between Alberta premier Getty and the Lubicon Nation, negotiated in October 1988 after blockades were set up on Lubicon territories. This accord, however, could never have been anticipated in March 1988 when the Daishowa-Lubicon agreement was made. It had never even been proposed.

* Later that same month Mr. Morrison reversed his claim and said for the first time that there had never been an agreement at all. This time he said you had met in March 1988 merely to talk about the state of Lubicon negotiations with the province. This is also noteworthy in that there were no negotiations with the province happening at that time.

* Morrison contradicted himself again by falsely claiming that there was an agreement, but that it only applied to logging in new areas, and that the Lubicons had told Daishowa that Daishowa could continue to log in traditional logging areas. Two days later Daishowa publicly direct Buchanan to continue logging operations, breaking the former myth that Buchanan was an independent operator and thus not subject to the Daishowa agreement.

* Most recently, James Morrison sent a letter on August 22 to a concerned Quebec citizen which resembled the position paper you sent to us. However in that position paper Morrison made it clear that while full-scale clear-cutting operations hadn't proceeded as planned last year, "further delays are no longer possible."

Does Daishowa rely on the short-term memories of the TV generation as a basis of its public policy? Or are you so sure that people won't compare your contradictory public statements that you feel free to change your position at your convenience? I'm sure by now you can see why nothing short of a clear, firm and public commitment of the sort we are demanding is acceptable. Without such a commitment, how can we be sure that Daishowa's position won't change again next week?

As we have stated in the past, until we see the aforementioned firm and public commitment from Daishowa which is acceptable to the Lubicon Nation, we will continue to mount a full-scale challenge to Daishowa's plans through a public boycott and action campaign. No doubt by now you will have heard from several of your many clients who have been contacted by us. Each day we are identifying and approaching new clients who are concerned with the issues being raised here. I believe it is in your best interests to make a commitment as soon as possible. We will look forward to hearing from you.

[para56] As Thomas indicated in his cross-examination, until even that date in April, 1995, he had not had a response from Hamaoka or any other Daishowa representative.

[para57] On November 11, 1991, the Friends of the Lubicon issued a press release. The text of this release is objectionable to the plaintiff. It appears to be the first press release announcing the boycott. Because of the significance of the press release, it is reproduced here:

For Immediate Release
November 11, 1991

Attn: News Desk

It's Five Minutes to Midnight for the Lubicon Cree
Stop Daishowa/Stop the Clear-cutting

Within the next few days, the land at Lubicon Lake will be frozen, and Daishowa - a transnational paper manufacturing company - will begin clear-cutting the traditional, unceded territory of the Lubicon Cree Nation in northern Alberta.

Stop the Genocide

The Lubicon see the impending destruction of their forest as the final stage of a genocidal process that began with the onset of government-backed oil and gas development in the late seventies. It is essential that the pressure be kept on Daishowa to stop any cutting on Lubicon territory.

You can make a change

Friends of the Lubicon (Toronto) join with all supporters of the Lubicon people to condemn this action and to demand that Daishowa make a clear, firm and public commitment to not cut on unceded Lubicon territory until after settlement of Lubicon land rights and negotiation of a harvesting agreement with the Lubicon people that takes into account Lubicon wildlife and environmental concerns.

Demonstration

Friends of the Lubicon call on everyone to support the demonstration against Daishowa on

November 14, 1991, from 4 to 6 pm
at 161 Bay Street (Bay & Front)

More Lies from Daishowa

A March 7 agreement between the Lubicon and Daishowa provided that Daishowa would stay out of the unceded Lubicon territory until there was a settlement of Lubicon land rights.

Since then, Daishowa officials, including Canadian Vice President Mr. Tom Hamaoka, have claimed that

* their subsidiary and subcontractors weren't covered by the agreement

* terms of the agreement were satisfied by the totally unrelated Grimshaw Agreement

* the agreement only provided there would be no logging in "new areas"

* the agreement only covered the proposed reserve area

* there wasn't and never had been any agreement.

Daishowa says 'It's not our problem'

On a recent visit to Japan, Lubicon chief Bernard Ominayak was denied a meeting with Daishowa officials who said the destruction of Lubicon land was not their concern - that it was solely an issue between the Lubicon and the federal government.

On October 7, Daishowa VP Tom Hamaoka, in a speech to the Edmonton Chamber of Commerce said: "Daishowa is not here to be a mediator: we're here to do business."

In the same speech, Mr. Hamaoka said: "The Canadian and the Provincial governments simply must face up to their responsibilities across Canada to settle Native land claims." He said "It's totally unacceptable to subject business - foreign or domestic or innocent third parties - to hostile threats and potential violent actions associated with unresolved land claims."

Ottawa promised the Lubicon a reserve in 1930. There have been no negotiations between the Lubicon and the federal government since January 1989.

Boycott Lubicon supporters are calling for a boycott against those businesses that refuse to stop using Daishowa paper products.

[para58] In anticipation of the demonstration on November 14, 1991 at the Daishowa Toronto offices, the Friends of the Lubicon prepared a leaflet. The text is similar to the press release.

[para59] The timing of this press release and demonstration is significant given the correspondence which had just been exchanged. Thomas had written to Hamaoka by letter dated November 10th asking for a response. These materials were prepared and distributed before there was any possibility of a response. At his cross examination, Thomas was questioned at great length about why the press release had been issued without affording a reasonable opportunity to Hamaoka to respond. As he indicated in his cross-examination:

Q 71 Speaking of contradictions and speaking of inconsistencies, do you agree with me that the press release of November 11th, 1991 which says "Within the next few days Daishowa will begin clear cutting the traditional unceded territory of the Lubicon Cree Nation is inconsistent with the written statement you have received from Daishowa Canada three days before which says Daishowa has elected to avoid the area of concern? Would you agree with me that the two documents are inconsistent?

A. Actually I would not agree with it because as I have said clearly the very same day that there was this vague statement from Daishowa concerning the area of concern, there was a report in the Edmonton Journal where Daishowa was reported to be using faulty maps in a related dispute which discussed the area of concern. So they could be logging on Lubicon territories and saying it is not area of concern but it is something else.

[para60] On November 26, 1991, the Friends of the Lubicon issued a press release, the contents of which were similar to the one reproduced above. However, in addition, it announced a press conference on November 28, 1991 to launch the national boycott of Daishowa products.

[para61] As Thomas had indicated in his letter of November 10, 1991, a boycott campaign was underway. Before detailing those efforts, it is necessary to appreciate the means by which Daishowa Inc. carries on its business.

[para62] The following are the two types of relationships between the Plaintiff and its customers:

1. Through informal, ongoing relationships based on trust, Daishowa had oral discussions with its customers at which time the parties negotiated terms regarding price and volume.

2. Alternatively, after a tender was accepted, a distributor would issue to Daishowa a "piece of paper" representing an open purchase order. This order would set out the volume of specified products the customer in question will require over a certain time period. Daishowa would then manufacture the product to ensure it would be available to the customer when delivery was required. If, for some reason, the customer switches suppliers or no longer requires the bags it originally ordered, the common practice is for the customer to purchase the existing manufactured products it already ordered as well as the raw material that Daishowa already purchased. When a customer switched suppliers, it was considered a regular aspect of doing business and, therefore, is not regarded as a breach of contract or an opportunity to sue for performance or non-payment of monies owing.

[para63] The customers of Daishowa Inc. fell into a number of general categories:

(1) fast food companies such as A & W, Kentucky Fried Chicken, Pizza Pizza, Swiss Chalet, Country Style Donuts, etc.;

(2) major and small retail chains across Canada including Woolworth (Kinney), Holt Renfrew, Bootlegger Stores, Club Monaco, Roots and other similar customers;

(3) other large accounts such as Canada Safeway or the Liquor Control Board of Ontario: and

(4) smaller retail grocery or other stores or chains.

[para64] The Daishowa packaging division does not have any manufacturing facilities outside of the province of Manitoba. It does not use any wood fibre or other raw material from northern Alberta.

[para65] According to both Ominayak and Thomas, the plans for the boycott began in the summer of 1991. In response to undertakings by Thomas at his cross-examination, he produced approximately 200 pages of copies of correspondence, enclosures, press releases and newspaper reports prepared in the course of the boycott.

[para66] In general, the boycott campaign included the following elements:

(1) A representative of the Friends of the Lubicon contacted a customer by telephone. That contact was followed up with written material. Sometimes, the original contact was by letter. The request was made to stop using Daishowa products.

(2) The written materials varied. Thomas indicated that copies of exactly what was sent to any customer were not retained. However, he did provide what was described as a sample package. This included a 5 page backgrounder outlining events that occurred since 1939-40. There are only three references to Daishowa, two of them indicating that "in 1990 Daishowa started clear-cutting on Lubicon land, breaking an agreement it made with the Lubicon that it would not do so until Lubicon land rights were settled." The third reference indicated that in 1991 "A national boycott of Daishowa is launched to protest that company's intention to log Lubicon land." (This backgrounder must have been updated from time to time since the version provided ends in 1993 and consequently could not have been the same version used in 1991).

The material also includes copies of Updates prepared by the Friends of the Lubicon from time to time, again not all of which existed at the outset.

Also included in the information package were copies of letters from other customers of Daishowa confirming that they were joining the boycott. Press reports were included that referred to customers joining the boycott.

The sample information package includes Morrison's letter, dated November 8, 1991 (and the position paper referred to in that letter), and Thomas' letter dated November 10, 1991 (reproduced above).

(3) There was follow up by phone, letter or fax that increasingly encouraged co-operation. The typical method of encouragement was to indicate that the customer's business would be the subject of a boycott. In two cases, a consumer boycott took place.

(4) When the customer agreed to stop using Daishowa products, a press release was issued. In most cases, the customer provided a letter which was also circulated.

[para67] In 1991 the standard initial letter to the customer was as follows:

On March 7, 1988 an agreement was made between the Lubicon Lake Cree Nation of northern Alberta and Daishowa, a multinational paper company. Part of this agreement stated that Daishowa would not begin clearcutting Lubicon land until their land rights settlement has been negotiated. Daishowa has broken this agreement. As soon as the land freezes, Brewster Construction Company, a wholly owned subsidiary of Daishowa, will begin clearcutting Lubicon land. This, as well as previous destruction of their land by government sponsored oil and gas development, will result in the cultural genocide of the Lubicon people.

The Canadian Peace Alliance has contacted you previously requesting that you stop using Daishowa paper products.

This letter serves as notice to you that a boycott of your company will be initiated unless we receive from you written confirmation by November 25, 1991 of your intention to stop using Daishowa paper products.

[para68] The material provided indicates that 35 customers of Daishowa Inc. were contacted between 1991 and 1995. To consider the allegations made by the Plaintiff, it becomes necessary to review these efforts. It would appear that not all correspondence has been provided. The following analysis is done in chronological order based on the documented initial contact with the customer as provided by the defendants.

1. Liquor Control Board of Ontario

[para69] By letter dated August l5, 1991, Kenda wrote to the Chairman of the LCBO. In this letter, he asked whether the Chairman knows that:

Daishowa Canada Ltd. is violating a March 1988 agreement not to log unceded Lubicon Lake Indian territory.

[para70] The letter further asserted that:

Daishowa's clear cutting continues to accelerate the cultural genocide.

[para71] In his closing paragraph, he stated:

Rather than sustaining support for this morally indefensible cultural slaughter and in keeping with Ontario's commitment to ameliorate the plight of aboriginal people, The Friends of the Lubicon strongly urge the LCBO to employ an alternate source for its paper bags.

[para72] By letter dated September 20, 1991, Mr. Brandt indicated that Daishowa was the only supplier in Canada of the bags with handles designed for elderly and handicapped persons. While the needs of customers had to be appreciated, he indicated he would have the purchasing department consider the request.

[para73] By letter dated October 24th, Kenda asked for a meeting. By letter dated October 27th, Kenda wrote to the Ontario Liquor Board Employees' Union, apparently enclosing the preceding correspondence, reciting the violation of the March 1988 agreement and asking for support in convincing the LCBO to stop using Daishowa products.

[para74] By letter dated December 17, 1991, Kenda wrote to Marilyn Churley, Minister of Consumer and Commercial Relations, with copies to the Premier and other Government officials. He enclosed materials, referred to the support of other organizations for the boycott, and requested a meeting.

[para75] By letter dated January 21, 1992, Kenda enclosed a book and confirmed the meeting on February 17.

[para76] By undated letter (but before February 17), Kenda reported that Safeway, Mr. C's Donuts and NOW Magazine had stopped purchasing Daishowa paper goods. He asked for support for the boycott and indicated that it will be called off:

When Daishowa unequivocally and firmly agrees not to log or buy wood from unceded Lubicon lands pending a Lubicon land rights settlement and an agreement concerning Lubicon wildlife and environmental concerns.

[para77] On February 17, Kenda issued a press release reporting that "the Ministry has decided to stop using Daishowa paper products." He added that the LCBO would be switching to 4 bottle string handled bags. The release contained the following:

... Although her ministry will no longer be using Daishowa, Ms. Churley added that she could not issue a statement in support of the boycott as the issue of a boycott was a policy matter. Policy matters are handled by the caucus.

Friends of the Lubicon spokesperson Stephen Kenda feels that regardless of what the Ministry says, it's clearly the Daishowa boycott and the sustained pressure of the Lubicon supporters that has pushed the LCBO to dump Daishowa. Kenda added "We are pleased that the LCBO is showing the ethical sense to let its Daishowa contract lapse; it's hard to believe that anyone would want to support the clearcutting of the Lubicon Indian Homelands.

The LCBO joins Mr. C's Donuts, Cultures Fresh Foods, Ho-Lee Chow, the Body Shop, Now Magazine and others who have made the switch away from Daishowa. The LCBO move leaves Pizza Pizza further isolated in its pact with Daishowa. Country Style Donuts, another Daishowa user, is said to be on the verge of joining the boycott and will make its decision soon.

Daishowa is a Japanese transnational paper giant. An international boycott of Daishowa is attempting to stop Daishowa's plans to clearcut unceded Lubicon Lake Indian lands in northern Alberta.

2. Cultures

[para78] On November 6, 1991, Bianchi sent the standard initial letter reproduced above. Bianchi received a response dated November 14, 1991 as follows:

After careful research into the current situation in Alberta, Cultures Fresh Food Restaurants has decided to stop using Daishowa products.

Please note that while Cultures will no longer be purchasing paper products from Daishowa, there exists a large inventory of Daishowa paper products with the Cultures logo. Until the inventory is depleted, new paper products from our new supplier will not be seen in Cultures Fresh Food Restaurants for some time. (emphasis added)

[para79] Apparently, that letter did not reach Bianchi before he sent his letter dated November 20th which is used in other cases and reproduced here:

Please be advised that we are holding a press conference in Ottawa on November 28 to announce a national boycott of Daishowa paper products.

Lubicon Chief Bernard Ominayak will be part of the Press Conference. He will be joined by representatives of other organizations who support the Lubicon Cree.

Those businesses that refuse to stop using Daishowa products will be named as boycott targets.

We sincerely regret having to send you this correspondence. We had hoped you would be more understanding and cooperative. Changing paper suppliers is little to ask when the alternative involves the genocide of an aboriginal community. This struggle has lasted over 50 years and unless PEOPLE take action NOW to correct this injustice there will be no chance for the Lubicon people.

The traditional territory of the Lubicon - their environment - is essentially our environment as well. If the Lubicon lose, we all lose.

[para80] We hope to hear from you before November 28.

[para81] (Note that this letter was used on several occasions. It will be referred to below as the "press conference letter.")

[para82] It is apparent that the November 20th letter reached Bianchi because, by letter dated November 29, C. Hadden, on behalf of the Friends of the Lubicon, acknowledged the letter and their support and confirmed that Cultures was mentioned in the press conference as supporting the boycott.

[para83] An article in the Edmonton Examiner appeared in the December 14-15 edition reporting on Cultures' support.

3. Knechtel Food Stores

[para84] Bianchi sent the standard initial letter dated November 6, 1991 and followed up with a fax on November 15 in which he stated as follows:

We are aware that Daishowa Canada Co. Ltd. has sent you a copy of their current "position" on the Lubicon Lake Nation situation. Enclosed is our reply to that "position" as well as an editorial from last Monday's Edmonton Journal on the subject of negotiations.

As you can see, Daishowa has still not made a clear, firm and public commitment not to cut or buy wood cut on unceded Lubicon territories until after a land rights settlement has been reached with both levels of government and negotiation of a harvesting agreement with the Lubicon Nation which takes into account Lubicon Wildlife management and environmental concerns. Until such a time we are continuing all action against Daishowa.

We hope you'll support this action by choosing a different supplier for your packaging. Don't hesitate to call if you have more questions or concerns. (emphasis added)

[para85] On November 20th, Bianchi sent the press conference letter. By letter dated November 25, 1991 Knechtel responded as follows:

First of all Mr. Bianchi, I would like to thank you for your numerous correspondences you have sent me over the last few weeks concerning the Lubicon Nation.

I have had time to read both sides of the problem and I have to side with the Friends of the Lubicon.

Mr. Bianchi, I have notified Daishowa and Bruce Edmeades (the distributor) of Knechtel's intention to source a new supplier for the "K" print paper bag, after existing supplies have run out.

... I have to agree with you, Mr. Bianchi, in this environmental and survival struggle: if the Lubicon lose - we all lose. (emphasis added)

[para86] Once again, this letter did not reach Bianchi before he sent a letter dated November 25th similar to the press conference letter above but asking for a response by November 27th which was the day before the press conference.

[para87] Knechtel was referred to as supporting the boycott in an article in the Toronto Star on November 26th, in the Edmonton Journal on November 29th, and in the Edmonton Examiner.

[para88] By letter dated November 29th, C. Hadden acknowledged and thanked Knechtel, and confirmed that its support was mentioned at the press conference on November 28th.

4. Ho Lee Chow

[para89] Bianchi sent the standard initial letter dated November 6th, 1991. He sent the press conference letter dated November 20, 1991. He sent a further press conference letter dated November 25, 1991, however, he requested a response by November 27th.

[para90] By letter dated November 25, 1991, Ho-Lee-Chow advised:

On behalf of Ho-Lee-Chow restaurants, I am pleased to inform you that we are in the process of depleting the remaining printed Daishowa paper products in stock, and have already switched our business to a supplier which does not utilize Daishowa Products. (emphasis added)

[para91] C. Hadden wrote by letter dated November 29 thanking Ho-Lee-Chow for its support and confirming that its support had been mentioned at the press conference.

5. Pizza Pizza

[para92] In some respects, this is the most controversial customer. It is one of two customers where a consumer boycott was actually carried out.

[para93] Bianchi sent the standard initial letter dated November 6, 1991 and the press conference letter dated November 20, 1991. Bianchi sent the second press conference letter dated November 25, 1991 asking for a response by November 27, 1991, or else Pizza Pizza would be added to the boycott list.

[para94] Bianchi sent a letter dated November 26, 1991 pointing out that a response had not been received notwithstanding the deadline that was set for yesterday (which would be the 25th when the November 25th letter required a response by November 27th). The letter enclosed copies of letters of support from two other companies "who have made the decision to cancel contracts with Daishowa" as well as related press coverage and indicated:

As it stands, we were set to name four companies who would be subject to a boycott at our press conference in Ottawa this Thursday. However, with the agreement of these other companies, yours is the only one which will be named.

We are simply asking you to find a new supplier for your paper products. The moves made by these other companies shows that this is not a lot to ask when the survival of a whole community is at stake.

Should you make a similar commitment not to use Daishowa products, we will not need to initiate a boycott of Pizza Pizza outlets. We will look forward to hearing from you.

[para95] On November 28th, the day of the press conference, a press release was issued by the Friends of the Lubicon. This release specifically referred to Pizza Pizza and announced a demonstration at its Yonge & Elm outlet on the following Saturday. The text is similar to the first press release.

[para96] Pizza Pizza was referred to in articles in the Toronto Star and the Edmonton Journal concerning the boycott.

[para97] On December 11, 1991 the Friends of the Lubicon issued "an open letter concerning the boycott of Daishowa" that was addressed to Pizza Pizza (the production includes only the first page). The author expressed disappointment that Pizza Pizza has refused to meet. It also indicated a need for Daishowa to make:

a clear, public and unequivocal commitment not to cut or to buy wood cut on unceded Lubicon territories until a land rights settlement is reached with both levels of government and a harvesting agreement negotiated with the Lubicon Lake Nation.

[para98] On December 12, 1991, The Friends of the Lubicon issued a press release that was similar to the release set out above but identified various Pizza Pizza locations where demonstrations would occur.

[para99] On December 29, 1991, a press release was issued by the Friends of the Lubicon indicating that:

Lubicon supporters have resolved to flood Pizza Pizza's central phone lines (967-1111) on New year's Eve (Dec. 31) with calls proffering New Year's greetings coupled with appeals in the spirit of the season to boycott Daishowa paper products.

[para100] On January 21, 1992 and January 30, 1992, The Friends of the Lubicon issued further press releases.

[para101] On March 3, 1992, Lorn Austin, Executive Director of Pizza Pizza issued a press release that defended Daishowa, and while asserting that the franchise owners were the scapegoats of this dispute, stated that joining the boycott was the only responsible course of action.

[para102] On March 4, 1992, the Friends of the Lubicon issued its own press release calling off the boycott against Pizza Pizza but remarking that they had "kicked their [i.e. Pizza Pizza's] butts."

[para103] An article appeared in the Toronto Star on March 4th. Bianchi took exception to parts of the article and wrote to the Editor by letter dated March 9, 1991 in which he stated as follows:

... First, Friends of the Lubicon is not an "anti-logging" group. We are a working group on the Lubicon Nation's struggle and have provided direct support to the Lubicon Lake Cree since 1988. We ARE anti-Daishowa because its plans to clear-cut Lubicon territory threaten the Lubicon community, ignore the rights of the Lubicon people, and are environmentally irresponsible.

Second, Friends of the Lubicon never said Pizza Pizza bags contain wood cut from trees on Lubicon Land. If that's the case, then Pizza Pizza knows something we don't! Friends of the Lubicon asked people to boycott Pizza Pizza because it was using Daishowa products.

Finally, although everyone has a right to their own opinion, misleading and inaccurate propaganda disguised as fact must be revealed. When Pizza Pizza says "Daishowa is causing no problems for the Lubicon people" it ignores the fact Daishowa's clear cutting operation would destroy what is left of the Lubicon's land, and virtually eliminate any chance the Lubicon have for building a decent future. Pizza Pizza's statement shows how little they understand the situation in Alberta.

[para104] An article appeared in the March 12-19, 1992 edition of NOW Magazine in which Bianchi is quoted as saying:

We're very pleased Pizza Pizza has decided to join the boycott: ... It's unfortunate they did it for purely economic reasons and not because of the threat Daishowa poses to the Lubicon community. Still, it's a very important turn of events.

[para105] The same article quoted a spokesperson for Pizza Pizza indicating that the boycott is only temporary:

We're going along with the boycott until the land dispute with the federal government is settled. (emphasis added)

6. The Added Touch

[para106] The pattern was followed in November, 1991. It ended when a letter dated November 23, 1992 was sent to the Friends of the Lubicon as follows:

The Added Touch wishes to emphasize its position that it does not support any political or social cause other than to promote charity and goodwill throughout the community. On the subject of the Lubicon Indians and the Daishowa logging rights, The Added Touch has no comment.

However, for the record, The Added Touch purchased 20,000 large shoppers from a company in June 1991 which at the time was using recycled Daishowa paper products. Since that time, we have switched suppliers for reasons other than the Lubicon Issue which is evident in the more recently purchased small and mid size shoppers. (emphasis added)

7. Country Style Donuts

[para107] The initiative began in early November, 1991. However, it appears in this instance that Country Style Donuts had some communication with Daishowa. This is evident from the fax sent by Thomas dated January 27, 1992:

The enclosed are recent communications from Daishowa in which they offer their position on the impending clearcuts of Lubicon traditional territory. While Daishowa has been telling you since early January they plan to send you a written promise not to clearcut until there's a settlement of Lubicon land rights, they've been clearly saying the opposite to everyone else. (emphasis added)

Rather than waiting for a promise that doesn't seem to be forthcoming, it would seem appropriate for Country Style to write Daishowa informing them that contracts won't be renewed unless they make such a promise. In our experience you have to push these guys to get them to move on anything.

What do you think?

Kevin

P.S. Mr. Hamaoka is adept at stretching the truth or simply making things up when it suits his purposes. The enclosed pieces are no exception and I'd be willing to contradict his statements with hard facts at your convenience.

[para108] On March 27, 1992, the Friends of the Lubicon issued a press release indicating that Country Style Donuts had joined the boycott of Daishowa paper products, joining 10 others.

[para109] By letter dated June 13, 1992 Thomas thanked Country Style Donuts, not only for joining the boycott, but for efforts to obtain a statement from Daishowa not to cut in unceded lands.

8. The Body Shop

[para110] It is not apparent when initial contact was made.

By letter dated December 5, 1991, The Body Shop:

... confirm[ed] that [it] chose to remove Daishowa products from all of our Canadian Stores in January of 1991 upon learning of the dispute between Daishowa Canada and the Lubicon Lake Cree Nation.

Since that time, we have not purchased additional Daishowa products and will not do so until the current situation is satisfactorily resolved. (emphasis added)

9. NOW Magazine

[para111] The only correspondence is a letter from NOW Magazine to Koichi Kitagawa dated January 8, 1992 which indicated as follows:

... We have since been distressed to learn that Daishowa is permitting and profiting from lumbering operations on land claimed by the Lubicon nation of Alberta, despite Lubicon opposition.

This is unacceptable to us and millions of other Canadians who take native rights very seriously. Accordingly, NOW magazine will not buy any more Daishowa products until the Lubicon claim is resolved. I trust you will advise your head office of the serious damage done to your reputation in Canada by operations prejudicial to the vital interest of native people. (emphasis added)

10. Safeway

[para112] The only material produced is a press release dated January 20, 1992 by Alberta Environmental Alliance/Alberta Action Network which reports that Safeway had agreed to stop using Daishowa products following a joint letter from the two organizations issuing the press release. In addition to stopping the use of Daishowa paper bags at its counters, the release indicated that "Safeway also agreed to conduct an internal review to ensure that it is neither using nor selling Daishowa products." The release referred to Daishowa having broken an agreement not to log until an agreement had been made.

11. Mr. C's Donuts

[para113] The only material produced is a letter dated February 24, 1992 from the company indicating:

... Six months ago, we had requested that our distributor change their supplier of paper bags from DAISHOWA when we became aware of the controversy surrounding this issue.

12. Water Sports

[para114] By letter dated March 17, 1992, Thomas forwarded information, reported that Daishowa had not cut that winter, but suggested Daishowa would do so next winter "when the heat is off." He indicated that the "economic pressure" of the boycott had probably held them off that winter.

[para115] By letter dated June 17, 1992, Thomas sent copies of letters from other companies that had joined the boycott and indicated:

Your participation in the boycott of Daishowa is still essential. They fully plan to continue logging this winter unless people like ourselves put pressure on them to stop logging activities until a land rights settlement is reached for the Lubicon people. We appreciate your commitment to this matter and your decision to join the boycott.

[para116] On June 18, 1992, Water Sports sent its own confirming letter indicating that existing stock would be used before a new supplier would be used.

13. Maison Du Fromage

[para117] The initial letter was sent March 26, 1992. A response was received dated May 13, 1992 confirming that no further purchases would be made and indicating agreement that:

... resource development on unceded Lubicon lands must only occur with the permission of the Lubicon people.

14. Bootlegger

[para118] In a letter dated May 23, 1992, Sara McDowell, on behalf of the Friends of the Lubicon, indicated that they had been monitoring the negotiations between Bootlegger and the Daishowa Boycott Coalition in Calgary. In view of a refusal to support the boycott, Bootlegger outlets in the Toronto area would be boycotted. The letter describes the campaign previously undertaken against Pizza Pizza and its final acquiesence. It further stated:

The planned clearcutting of unceded aboriginal land and the subsequent genocide of an entire aboriginal culture is a crime against humanity and the environment we all live in.

[para119] By letter dated May 27, 1992, Bootlegger referred to its earlier correspondence but concluded:

Unfortunately, your plight as it turns out, is of a different nature, but one you have chosen to involve us in despite our reasoning with you. We strongly object to your methods, but advise you that we are seeking out new packaging suppliers. (emphasis added)

15. Cumberland Terrace

[para120] The initial letter from Thomas is dated July 3, 1992. By letter dated November 17, 1992, Thomas confirmed that an alternate supplier would be found. He further stated:

... We are pleased that [you] have chosen to help isolate a company whose environmental and human rights record is questionable - so questionable, in fact, that this month Daishowa was named to Survival International's top ten list of "companies that do not listen or care" specifically because of their continued threat to clearcut unceded Lubicon Lake Nation territories.

[para121] On November 19, 1992, Cumberland Terrace sent its own confirming letter indicating that, when current supplies were depleted, an alternate supplier would be obtained.

16. A & W

[para122] By letter dated July 3, 1992, Naomi Robinson forwarded an information package with the initial letter and asked that:

you ... make a decision in advance not to buy Daishowa paper products when the time comes to re-order.

[para123] By letter dated September 3, 1992, Thomas followed up and indicated:

time is not on our side. Daishowa is planning to begin logging again this fall, which means that those who oppose this move have got to make their voices heard immediately. Therefore we will be expecting to be informed of your decision regarding paper suppliers by September 11 at the latest.

[para124] In this letter, Thomas also indicated that, failing a response by September 11th, or a negative decision, they would begin a boycott of A & W.

[para125] A reply was received in the form of a telephone message confirming that A & W would stop using Daishowa products but refusing to put it in writing. The telephone message ended as follows:

I'd like you not to call me back and I'd like you also to arrange it so that none of the other organizations you're associated with calls us either. We've spent a lot of time on this issue. It's been very painful and unpleasant thing for us to come to this decision, and I would like this to be the end of it." (emphasis added)

[para126] On September 25, 1992, Thomas wrote to A & W confirming receipt of the message and indicating that a verbatim transcript would be distributed in lieu of the letter requested.

[para127] On September 27, 1992, Naomi Robinson issued a press release confirming that A & W had joined the 16 other companies then participating in the boycott. There was no mention of the breach of the 1988 agreement. It did, however, point out that the information available:

... suggests that Daishowa plans to begin clearcutting unceded Lubicon territories as soon as the ground freezes this fall.

[para128] The release concluded with this:

The Lubicon society has been devastated by ongoing oil and gas exploration and Daishowa now presents the greatest single threat to their survival. The federal government is continuing to sabotage Lubicon affairs and has repeatedly proven unwilling to negotiate in good faith, therefore only massive public pressure can stop this impending genocide.

17. Cowboy Chuck's

[para129] Thomas sent an initial letter dated July 28, 1992. By this time, the initial letter had been modified by deleting reference to the breach of the March, 1988 agreement.

However, it referenced the cutting in the fall of 1990 and named the companies already in the boycott.

[para130] A reply was received dated October 9th, 1992 confirming that, when supplies were exhausted, an alternate supplier would be found. The author also offered to use his influence with another individual to do the same.

18. Hospital for Sick Children

[para131] In November, 1992, Kenda sent a lengthy letter to nine individuals. In this letter, he forwarded various identified materials including correspondence between Friends of the Lubicon and Daishowa illustrating respective positions and rationales. A similar letter, again with many copies, was sent to a doctor on January 15, 1993. On January 27, 1993, Kenda sent a letter to the President of the Hospital for Sick Children Foundation in which he outlines the communications which had occurred but from which a clear resolution had not been achieved as to whether an alternate supplier would be found. He indicated that he had received letters of support from eight individuals at the Hospital. Letters to three doctors were sent on the same date to the same effect.

[para132] By letter dated March 23, 1993, the Hospital confirmed that it would stop using Daishowa paper products.

[para133] A press release was issued on March 29, 1993 confirming the Hospital's participation in the boycott. There is no reference to the 1988 agreement or to genocide. However, the release indicated a belief that "boycott pressure has been significant in keeping Daishowa off Lubicon land for 2 consecutive winters" while stressing the need to maintain the pressure to prevent cutting in the fall.

19. KFC

[para134] An initial letter such as that sent to the Hospital was sent by Kenda on September 21, 1992. In this letter, there is no mention of the March 1988 agreement or of genocide.

[para135] A similar letter, dated October 1, 1992 was sent to another corporate official. It appears the KFC readily agreed to stop purchasing Daishowa products but refused to put that commitment in writing. As a result, Kenda wrote by letter dated October 26, 1992 requiring a written commitment or a nationwide KFC boycott would begin November 5th.

[para136] A response was received by letter dated October 27, 1992, an excerpt of which is as follows:

KFC Canada currently purchases limited quantities of a "carry-all" bag from Daishowa, accounting for a fraction of one per cent of all packaging purchases. Plans have been under way for some time to replace this product with updated packaging, manufactured by another supplier, as part of a major package re-configuration and design project.

Our intentions are to deplete current inventories of the Daishowa bag and discontinue it's production.

It should be understood that this decision was made on it's own financial and operational merits, independent of the ongoing issues between the Lubicon people and Daishowa.

[para137] By letter dated October 28, 1992, Kenda confirmed receipt and expressed disappointment as to the rationale. He indicated that he nonetheless considered that KFC had joined the boycott.

[para138] A press release, dated October 28, 1992, was issued by the Friends of the Lubicon confirming that KFC had joined the boycott albeit reporting the expressed reason. This press release does not refer to the March 1988 agreement but closes in similar terms as the A & W release with reference to genocide.

20. Morgan Scott Group

[para139] An initial letter was sent by Kenda dated December 7, 1992 which was similar to the Hospital letter. No further correspondence is provided. It does not appear that Morgan Scott participated in the boycott.

21. Hudson's Bay Centre

[para140] A letter dated January 14, 1993 was written to the Friends of the Lubicon confirming that the Merchants' Association would be finding an alternate supplier when the current supply was used. This letter also indicated:

I would like to mention that we are not passing judgement on Daishowa Canada Inc. company (sic), given that we are not fully aware of the entire situation, but only responding to the strong requests of the Friends of the Lubicon.

Cindy, you will be pleased to know that Daishowa Canada Inc. company (sic) has just issued a press release saying that they will continue to refrain from harvesting in the areas of concern to the Lubicon this winter. I have attached the release for your reference.

[para141] On January 21, 1992 (should be 1993), Thomas issued a press release confirming that the Hudson's Bay Centre was the 23rd company to join the boycott. This release also contained the following:

Daishowa's response to inquiries by the Hudson's Bay Centre concerning Daishowa's plans to clearcut almost the entire unceded traditional territory of the Lubicon Nation was to send the Centre a copy of the attached press release. Although dated November 25, 1992, no media source contacted so far has acknowledged ever receiving or even hearing of such a release. The release announces that Daishowa will not log in the disputed area this winter. Despite lofty and transparent claims of corporate responsibility, it's clear that it is only public pressure in the form of the boycott campaign that has once again held back Daishowa for another winter. Daishowa's past history has shown that they are all too willing to continue clearcutting on Lubicon land as soon as this pressure is off, therefore the announcement of a one-season moratorium is insufficient. On the contrary, it gives us even more reason to increase the boycott pressure until we get a clear, public and unequivocal commitment not to cut or buy wood cut on unceded Lubicon territories until a land rights settlement is reached with both levels of government and a harvesting agreement negotiated which takes into account Lubicon wildlife and environmental concerns.

22. Woolworth's

[para142] This is the second customer which was picketed.

[para143] By letter dated February, 1993, Nancy Graham, on behalf of the Friends of the Lubicon, sent a package. As indicated above, a sample package was provided in response to an undertaking. The sample was that which was forwarded to Woolworth's and consisted of over 25 pages described earlier.

[para144] A further letter was sent on March 23, 1993 that was similar to the Hospital letter. Another letter dated May 15, 1993, was sent confirming a conversation with an official that the next paper bag purchase after the current contract expired would be based on "business considerations." Kenda asked for reconsideration of the rationale.

[para145] By letter dated June 2, 1993, Kenda indicated that he required a response by June 8th, otherwise a boycott would be undertaken. By letter dated June 14, 1993, Kenda reflected his disappointment with Woolworth's refusal to meet or engage in a dialogue. He indicated that a news conference would be held on June 23rd to announce the boycott unless a written commitment was made in the interval.

[para146] By letter dated November 23, 1993, Kenda indicated that the boycott would centre around Northern Reflections. It also pointed out:

Direct competitors Roots and Club Monaco have examined our information concerning the multi-national and government plundered Lubicon.

[para147] By letter dated January 8, 1994, the Western Canada Wilderness Committee confirmed to Woolworth's that it had received a commitment "for economic reasons" that Woolworth had not renewed its contract to purchase Daishowa paper products. It is apparent from the letter that WCWC had an arrangement whereby its materials were sold in Woolworth's stores. In this letter, the author indicated that, if Woolworth's did buy Daishowa paper products, those materials would be removed from the store.

[para148] On January 12, 1994, a press release was issued by the Friends of the Lubicon, the headlines of which were:

WOOLWORTH SURRENDERS TO DAISHOWA BOYCOTT PRESSURE

TORONTO PAPER SUPPLIER, OMNIPLAST INC., LOSES ITS BIGGEST CONTRACT

[para149] An excerpt from the press release is as follows:

Succumbing to intense public pressure, the over 1600 stores of Woolworth Canada Inc. have swelled the ranks of the international boycott of Daishowa-Marubeni paper products in support of the Lubicon Cree Nation of northern Alberta to over 4300 stores.

... The Woolworth decision comes after over a half year of public action organized by the Lubicon solidarity network of which Friends of the Lubicon (Toronto) is a part. Actions have included store front pickets, protest phone-in's, fax attacks, a mail campaign, boycott information dissemination and "anything else we could think of to kick their asses." Lubicon supporters count the Woolworth decision as their biggest victory to date in their battle to help prevent the resumption of clearcut logging on unceded Lubicon land by Daishowa.

23. Cruickshank's Inc.

[para150] In a letter dated May 3, 1993, Cruickshank's confirmed that it would use an alternative source when next ordering. The letter also indicated:

... We hope that this new supplier will suit our purposes and in so doing we fully support your endeavour and hope this will help you. (emphasis added)

24. Roots

[para151] The initial letter, dated May 10, 1993 was sent by Kenda and was similar to the Hospital letter. By letter dated April 4, 1994 Roots indicated:

At Roots, we support a strong philosophy to preserve what we have today, for future generations. This means a concern with our environment and materials within our environment.

After assessing the situation in Alberta, we decided that Roots would no longer support Daishowa Canada Co. Ltd. in purchasing our paper products.

Once our inventory from Daishowa depletes, we will be working with our new suppliers. ...

[para152] The Friends of the Lubicon issued a press release dated April 5, 1994. There is no reference to the March 1988 agreement or to genocide.

25. Bowring

[para153] The only letter is dated May 17, 1993 from Bowring thanking Thomas for his patience and indicating:

... the dispute is amongst the Provincial Government, Daishowa-Marubeni and the Lubicon Indians.

For the purpose of expense control only, the Canadiana Shoppe will be converting to poly bags once its existing stock of paper bags is depleted.

26. Mr. Smith Boutiques

[para154] The initial letter sent by Ben Bradshaw on behalf of the Friends of the Lubicon was dated June 8, 1992. It appears from subsequent correspondence that this letter was actually sent in 1993. It encloses the material referred to in other letters but the letter itself makes no mention of the 1988 agreement or of genocide.

[para155] Bradshaw followed up by letter dated February 17, 1994. It does not appear that Mr. Smith Boutiques joined the boycott.

27. Club Monaco

[para156] Thomas wrote on August 23, 1993. After a follow up in January, 1994, a response was received dated March 4, 1994 confirming that it would place no future orders of Daishowa paper products.

[para157] On April 5, 1994, Club Monaco was referred to in the same press release as Roots.

28. Holt Renfrew

[para158] On February 17, 1994, Bradshaw wrote enclosing the information package. A further letter, dated March 30, 1994, was sent in which he indicated that, failing a response by April 12, 1994, a boycott would begin. By letter dated April 25, 1994 Holts indicated conversations had taken place between Kenda and Holt's counsel. It further advised that an alternate supplier would be found.

[para159] A press release dated April 25, l994 was issued by the Friends of the Lubicon indicating that the picket scheduled to begin April 30th was cancelled because Holts had agreed to participate in the boycott.

29. The Nature Shop

[para160] Kenda sent the initial letter dated May 9, 1994.

A response, dated May 31, 1994, was received and confirmed that the nine retail locations operating as The Nature Store and The Canadian Naturalist would find an alternate supplier.

30. Aquascutum Canada Inc.

[para161] Kenda sent the initial letter dated June 10, 1994. A follow-up was sent August 17, 1994 in which reference was made to a documentary shown by the CBC's "The Journal" which concluded that "The Lubicon Lake Indians have survived half a century of official neglect and political deceit ... [but] ... cannot survive the destruction of the land around them." In this letter, Kenda asked that a new supplier be obtained when the current supply was exhausted. Further material is not provided but it appears that Aquascutum joined the boycott.

31. Cobblestones

[para162] Kenda sent the initial letter dated June 14, 1994. It does not refer to the March 1988 agreement or genocide. It did indicate that 46 companies, representing over 4300 retail outlets, had committed in writing to joining the boycott.

[para163] By letter dated January 6, 1995, Kenda confirmed his understanding that another supplier had been retained and asked for a letter to that effect.

32. Soapberry

[para164] On August 21, 1994, Lise Fournier, on behalf of the Friends of the Lubicon, sent an initial letter. This was a follow-up from previous telephone conversations.

[para165] A response dated November 16, 1994 was received and an excerpt of which is as follows:

Careful research into the situation in Alberta has prompted us to stop purchasing paper bags made by any company associated with Daishowa Canada. Our current stock is almost depleted and we will be using more environmentally responsible paper products throughout our stores within a few weeks.

Good luck in your continued efforts. We strongly endorse the boycott of Daishowa and hope others join us. (emphasis added)

A press release dated November 18, 1994, was issued by The Friends of the Lubicon which ended:

Will Daishowa come onto Lubicon land clearcutting as they did in 1990?

33. ROM

[para166] The initial letter written by Kenda was sent July 9, 1994. In a response dated September 23, 1994, the President indicated that the situation would be reassessed when the existing inventory was depleted.

[para167] Kenda followed up with a letter dated October 5, 1994 in which there were two references to genocide. It stated that, absent a response by October 17, 1994, a boycott would begin.

[para168] The ROM Reproductions Association responded by letter dated October 13, 1994 pointing out its particular interest in preserving the heritage of the peoples of Canada and fostering a respect for the environment. It reinforced that, with a supply of bags likely to last "a number of years," it could only commit to a reassessment at that time.

34. & 35. Laura Secord and Movenpick

[para169] Letters were sent in January and February, 1995.

Neither referred to the1988 agreement or to genocide, however, it enclosed the information package.

[para170] As indicated above, the foregoing review is based on the productions of the defendants. Some of the many affidavits filed on behalf of the plaintiff refer to the same materials as well as to additional materials, including letters between the plaintiff and some customers.

[para171] Based on a review of all of the affidavits, exhibits, and productions, the following observations can be drawn:

1. As time passed, the initial letter and follow up letter became increasingly more informative and less antagonistic.

2. The information package provided as a sample contained statements about genocide and breach of the March 1988 agreement. It is not possible to ascertain whether that package was similarly more moderate over time.

3. The information package and many letters included Daishowa's own position paper and correspondence. It is a reasonable inference that, if DCCL had responded to Thomas' November 10, 1991 letter, it too would have been included in the package.

4. Some customers took the initiative to communicate with Daishowa before making a decision. In some cases, the plaintiff contacted the target customer directly (through Gordon Bunt or Tom Homaoka) and exchanged correspondence or had meetings.

5. Some customers replied affirmatively almost instantly.

6. Some of the press releases were copied to Daishowa thereby giving Daishowa an opportunity to send its own press release in response.

7. There were opportunities when the viewpoints of Daishowa and the Friends of the Lubicon were canvassed in the media.

8. The Friends of the Lubicon were not alone. There is no question that Toronto customers were specifically the focus of the Friends of the Lubicon, however, other organizations and individuals (none of whom are parties to these proceedings) were also involved.

9. Some customers changed suppliers apparently for reasons other than support for the boycott. Whether the reason given was primarily for public consumption or not cannot be ascertained.

10. Initially, the request was to terminate the customer's contract with Daishowa. Over time, the focus was to find a new supplier when current inventory was exhausted.

11. There is no evidence that any contracts were broken.

In most cases, the customer indicated that the switch would be made when the supply was exhausted.

12. Undoubtedly, Pizza Pizza and Woolworth's (the only two customers picketed) were influenced by the picket to change suppliers.

13. Some of the retail outlets were franchises or similar arrangements. This means that decisions made may have been influenced by the contractual arrangement between head office and the outlet (as with Pizza Pizza).

14. According to the evidence, Daishowa issued press releases in late 1992, 1993 and 1994 indicating that it was continuing the self-imposed moratorium that began in 1991. Thomas indicated that they had not been made available to Ominayak or to Thomas at the time of issuance. The only one specifically referred to is in the letter from the Hudson's Bay Centre in which the customer forwarded a copy (presumably received from Daishowa) to the Friends of the Lubicon. Much of the concentrated effort by the Friends of the Lubicon (and others) was in the summer and fall in anticipation of winter logging. It is a reasonable inference, based on the material available, that there was a direct connection between the boycott activity and the decision to carry on the self-imposed moratorium (whether the announcement was widely disseminated or not).

In other words, the boycott was successful in its stated aim to prevent logging until Daishowa made a clear, public and unequivocal commitment not to cut or to buy wood cut on unceded Lubicon territories until a land rights settlement has been reached with both levels of government and a harvesting agreement negotiated with the Lubicon people.

15. There is no evidence of violence or threat of violence.

16. Some customers were plainly irritated by the boycott.

17. Some customers (for example Holt Renfrew and the ROM) may have been particularly vulnerable to the boycott because of previous boycott activity.

18. There is no evidence that any customer was unable to fill its paper product needs elsewhere.

19. Some customers were clear that their choice of alternate supplier was temporary and that business with Daishowa would resume when the issues were resolved.

20. The defendants approached distributors directly (Omniplast, Progress Packaging, and Fancy Pak).

21. A concerted effort was made by the plaintiff to counteract the actions of the defendants and others.

It produced a position paper and a fact book which were designed to inform the reader of Daishowa's position. The extent of its circulation is unknown.

In addition, Daishowa Inc. removed its name from packaging materials to make it more difficult to identify the source of supplier.

22. Affidavits were provided by executives of three customers of Daishowa Inc.: Michael Overs, Chairman of Pizza Pizza; Don Shafer, President of the Comac Food Group; and Brian Worts Director of Retail Leasing for the Oxford Suburban Group. In each case, the executives reported on the steps taken by the defendants and the extent to which each had communicated with Daishowa Inc. The affidavits specifically stated:

a. Overs (Pizza Pizza): his refusal to be "threatened or blackmailed into joining a boycott"; his ultimate conclusion that he "had no choice but to give into this blackmail;" his assertion that "it was only the economic pressure on my independent and entirely innocent franchises which forced me to give in to the pressure;" his belief that "our franchises were being exploited by these intimidation tactics;" and his agreement to "stop dealing with Daishowa, under protest."

b. Shafer (Company's Coming Bakery Cafes): his assertion that "we were clearly being pressured, intimidated and coerced into joining the boycott of Daishowa, even though this was over our objections"; his conclusion that "we ... (would) not give into their pressure and continued to purchase from Daishowa notwithstanding the boycott."

c. Worts (Woolworth's): his description of Kenda as "threatening and offensive in his tone" and "rough and ill-mannered;" his decision to stop using Daishowa for reasons unrelated to the boycott but he did not so advise the defendants "because we did not want them to believe that their contact with our company had pressured us into this response."

23. The plaintiff includes 26 customers as representing discontinued supply services.

24. In that group, at least two stated that the reason for changing suppliers was unrelated to the boycott (Bowring, KFC) and the LCBO refused to state a reason publicly.

25. The materials produced by the defendants indicated that they, or other individuals or groups, approached 35 customers.

26. Excluding the LCBO (where no public statement was made but the evidence suggests the boycott was the reason), the defendants assert that 24 of the 35 companies changed suppliers because of the boycott.

27. In the most recent of the defendant's materials, the Friends of the Lubicon indicate that "at least 43 companies representing 4300 retail outlets have joined the boycott."

[para173] The evidence of damages is supported by:

a) The affidavit of Bunt where he attributes lost revenue to some specific customers.

b) The "scrambled" analysis by numerical (but otherwise unidentified) customers.

c) Undertakings from the cross examinations from which there has been no further examination.

d) Hundreds of pages of invoices and bills of lading (with customer name removed) to support the analysis contained in the undertaking.

a) Because of the plaintiff's concerns about confidentiality, scrambled data was provided. Accordingly, one cannot ascertain the amount of loss attributed to a particular customer.

b) Some customers indicated expressly that the change in suppliers was for reasons other than a boycott. Even if that were the reason for public consumption only, should those be included?

c) Other individuals and groups were involved. The defendants indicate involvement with 35 customers but the most recent material indicates that 43 companies have joined the boycott. It is impossible to ascertain the extent to which the defendants' own actions contributed to or caused the customer to change paper suppliers. Consequently, it is impossible to attribute a particular loss, and therefore particular damages, to these defendants. The other individuals and groups are not parties.

d) The extent to which lost revenue leads to lost profit is not apparent at this stage.

e) The plaintiff has attempted to counteract the boycott effect by seeking, and apparently, obtaining business elsewhere, thereby moderating the effect of the lost revenue. The extent to which (if any) this "mitigation of damages" should be taken into consideration cannot now be ascertained.

[para178] Counsel for the plaintiff took the position that the cross-examinations could double as examinations for discovery, that little more was required in the way of productions from the defendants, that no examination would be required of the other defendants, and that the plaintiff would be ready for trial in late 1995 but preferably early 1996. He estimated that the plaintiff's case would take 6-8 days.

[para179] Counsel for the defendants indicated that considerable work had yet to be undertaken on damages, that examinations were not complete, that much of the plaintiff's evidence was based on information and belief necessitating an analysis of the sources of the information, and that a trial would take "months" and would not be heard for "many months." She added that, with the disparity of resources between the parties, a trial was "out of reach of the defendants" and that "the reality is that there will not be a trial."

[para180] In making his submissions as to whether the test for granting an interlocutory injunction is a "serious issue to be tried" or a "prima facie case," counsel for the defendants urged the latter because it falls within the exception noted in RJR- MacDonald Inc. v. Canada (Attorney-General) (1994), 111 D.L.R. (4th) 385 (S.C.C.), that the higher test should be applied where, as here, "a trial is fictional: the only chance the defendants has is today because they will not be able to mount a defence to a trial".

[para181] Later, counsel for the defendants indicated that, if a trial did take place, the defendants would not have the resources to be represented but they would personally participate, testify, and provide an explanation to the judge as best they could.

[para183] In addition, Professor Joan Ryan provided a detailed affidavit describing the plight of the Lubicon Cree based on her personal experience and study in the years following her doctorate in Anthropology in 1973. In summary, she described:

a) The traditional society and lifestyle is dependent on their territories for hunting, trapping, fishing and gathering; for harvesting subsistence foods and hides; for spiritual connections, for social interactions and for the socialization of the coming generations. The Lubicon lands and lives are intimately and inexorably connected.

b) Oil and gas developments in unceded lands began in the 1950's which increased activity and decreased game in the area.

c) The completion of an all weather road in 1979 greatly increased access to the area with concomitant problems associated with car accidents, alcohol consumption, drugs and interference with traplines.

d) A significant reduction in income from trapping and a consequential increase in dependency on social assistance.

e) Significant changes in diet due to reduction in moose, medicinal plants, and berries resulted in nutritional and spiritual loss.

f) In summary, a loss of income, employment, spirituality, traditional medicine and potable water, leading to depression, anger, loss of role by elders, and suicides.

the deliberate and systematic destruction of a racial, political or cultural group.

[para186] Dr. Ryan also expressed the following opinion:

[T]he vision of having Daishowa cut 11,000 trees per day is so formidable that the Lubicon people cannot imagine how they will survive ... the struggle of the Lubicon people over the last fifteen years has now reached the point where people are exceptionally weary, depressed, losing hope, losing strength and endurance.

In February, 1995, Daishowa made an announcement indicating they were changing their previously announced policy and would not purchase aspen salvage logs from seismic roads and well sites on unceded Lubicon traditional lands. The Lubicon people feel a constant threat that Daishowa will begin clear cutting. This feeling has been aggravated by the unilateral change in policy and the injunction application, which makes the threat seem even more real. In my opinion, the uncertainty and lack of security caused by these threats have a destabilizing effect on the community. This uncertainty has caused fear for the future, a sense of loss of control, and has made the community less able to solve its problems. I believe that if Daishowa is permitted to proceed with any clear cutting before the settlement of the land claim, the Lubicon people will cease to exist as a viable Band able to restructure its culture and able to create a future for their children. In other words, the process of the genocidal destruction of the Lubicon Cree society will be completed.

[para189] After considering the matter with his clients, counsel for the defendants indicated that they would consent to give an undertaking in the following terms:

Our clients cannot consent to an injunction prohibiting them from saying that an agreement not to log until the land claim was settled and until Lubicon wildlife and environmental concerns were met was reached at the meeting of March 6, 1988, because we believe Chief Ominayak when he says under oath there was an agreement on that date. To consent to an injunction would call into question his words. However, I have instructions from my clients that if the Court requests it, they will undertake to this Court not to assert that such an agreement was made March 7, 1988, and that undertaking will remain in effect for whatever period your Honour thinks appropriate.

If this court finds that some of the activities of the Defendants were tortious, it is submitted that the core of their activities were lawful and constituted an important contribution to public debate and discussion on an important issue. If it is found that some of the means used by the Defendants were improper, the Defendants undertake to this Honourable Court to monitor their activities more carefully in the future and avoid any improper activity. That being so, the balance of convenience favours dismissing the Plaintiff's application for an interim injunction, since no further unlawful activities will take place.

1. Interlocutory injunctions

2. The causes of action alleged by the plaintiff in the statement of claim.

[para192] In RJR-MacDonald Inc., the applicants challenged the constitutional validity of the Tobacco Products Control Act on the grounds that it is ultra vires the Parliament of Canada and invalid as it violates s. 2(b) of the Charter. The Quebec Superior Court had granted the applicants' motion, however, the Court of Appeal allowed the respondent's appeal and found that the Act was not ultra vires. Although the Act infringed s. 2 of the Charter, it was justified under s. 1. The Supreme Court of Canada granted leave to appeal. The Governor-in-Council then published amendments to the regulations under the Act which stipulated that larger, more prominent health warnings must be placed on all tobacco products. Further, the packa