Sep 30/97: Clipping-The Lubicon Protest


The Globe and Mail: The Environment
Tuesday, September 30, 1997
Michael Valpy

[SISIS note: The following mainstream news article is provided for reference only. It may contain biased and distorted information and may be missing pertinent facts and/or context.]

A Court case about to conclude in Toronto may determine what Canadians can say on such great matters as the environment, consumption of diminishing resources, and the impact of public policy and material progress on aboriginal peoples.

The case involves an application brought by the giant Japanese-owned, paper-products firm, Daishowa Inc., for a permanent injunction halting the boycott campaign -- a successful crusade -- against its products by a Toronto-based group called Friends of the Lubicon.

Among others things, Daishowa wants a judicial finding that the campaign is tantamount to a conspiracy to harm the company and that the Friends defamed Daishowa by stating that its logging intentions on land claimed as traditional hunting territory by the impoverished Lubicon Cree of Northern Alberta amounted to genocide.

The implications of the case are fascinating.

They touch on the sort of freedom citizens' groups should have to protest against industrial pollution, against commercial development in environmentally sensitive areas, against corporate objectives perceived to be destructive of aboriginal peoples' culture.

They, in fact, touch on freedom of opinion and expression and freedom of association. And, given one of the central issues -- the use of the word "genocide" -- before Mr. Justice James MacPherson of the Ontario Court's General Division, they also touch on what Canadians might or might not be told about the impact on aboriginal culture of the large-scale exploitation of natural resources.

Friends of the Lubicon lost the legal battle 21 months ago against the imposing of an interim injunction against their boycott campaign.

An Ontario Court of Appeal majority decision stated the group acted with the intent to harm Daishowa -- rejecting the Friends' argument that they acted merely to support the Lubicon and to pressure the company to promise not to log land claimed by the Lubicon until the band's land claims are settled.

Daishowa has stated that it lost nearly $2-million in profit directly attributable to the Friends' campaign, which, among other things, was aimed at persuading customers and potential customers of Daishowa products to buy from other suppliers. The appeal court arrived too effortlessly at the decision that this loss constituted a tort -- a wrongful legal injury.

The fact of harm does not automatically mean an intent to harm. And when the action being subjected to legal analysis is profoundly entwined with the public value of Canadians' democratic freedoms, the courts should walk on eggs.

As it stands, the appeal court ruling is a sword for any corporation to grab to skewer citizen protest campaigns. What, for example, might the decision mean for any group that wanted to support the Labrador north coast Innu and Inuit by organizing a boycott campaign in response to the environmental threats posed by the potential developers of the Voisey's Bay nickel resource? The essence of Daishowa's argument is that the Friends' employment of what is known as secondary picketing was illegal because the group used illegal means: a plan to injure the company economically, a misrepresentation of the company's intentions vis-a-vis logging on Lubicon-claimed land and a defaming of the company by stating that its intentions amounted to genocide against the Lubicon.

Under the terms of the interim injunction, Friends of the Lubicon are "prohibited from using 'genocide' or 'genocidal' or other terms connoting genocide in written or oral communications."

I dropped into the courtroom yesterday morning to hear some of the genocide argument.

Lawyer Peter Jervis, counsel for Daishowa, tried to block Friends' lawyer Karen Wristen from calling as an expert witness University of Colorado Professor Ward Churchill, a recognized international authority on genocide and its relevance to the treatment of North American indigenous peoples.

Mr. Jervis argued that Prof. Churchill's evidence would be merely opinion, that genocide has no definition in case law and that a simple dictionary definition of genocide would suffice which, in any event, would be the way most Canadians understand the word (my Oxford dictionary calls it "deliberate extermination of a people"). Ms. Wristen wanted to establish that physically killing people is only one definition of genocide.

Judge MacPherson said he would hear Prof. Churchill's testimony and decide afterwards whether to admit it.

The professor gave a compelling dissertation on the word's origin, history and meaning in international law. The bottom line of what he said is that the definition of genocide includes causing serious psychological harm to a "race, nation or tribe" and deliberately inflicting conditions of life calculated in whole or in part to bring about a group's destruction.

Judge MacPherson admitted his evidence.


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