SLAPP against anti-fracking protest, 2013

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The SWN Resources SLAPP against anti-fracking protest, 2013 focused on the claim by that company to have suffered approximately $60,000/day in expenses due to the blockade and accompanying protest of its seismic testing, a prelude to hydraulic fracturing in NB for "shale gas". The company also claimed legal costs for seeking a partly successful injunction.

Because of simultaneous fundraising efforts required for persons arrested in the RCMP attack on fracking protest, 17 Oct 2013, funds available for these civil defenses were very limited. This may have been part of a deliberate strategy by SWN and the Alward regime to ensure there was no fair trial on the merits of respondents' claims.

The civil respondents claimed as follows:

  1. That the lawsuit is a SLAPP, an abuse of process[1] intended to silence opponents of SWN, not to recover actual damages that were suffered by a company engaged in legal activities.
    1. The prospects of recovery of the claimed damages are very slim, insofar as each individual contributed little to SWN's inconvenience; Legal costs would dwarf these recovered costs, so the objective seems to be hampering the respondents in their public participation.
    2. Persons targeted are largely those cited or quoted in the media, not those who were particularly adamant in the blockade.
    3. An improper motive is evident in selecting only ten people out of thousands - intended to target/burden them personally.
    4. Land use planning in NB, like Ontario, has been lately characterized by intimidation tactics that are contrary to the principles of expanding public consultation in general [2]
    5. violations of other "rules to deter abusive lawsuits, including Strategic Lawsuit Against Public Participation [SLAPP] [that] exist in both the common law and civil law jurisdictions of Canada but that... appear to be ineffective because of the courts' reluctance to apply them" [3]. A robust statement of the criteria for abuse from the model act sponsored by the Uniform Law Conference of Canada may be more readily supported by pro bono help. Citing that model Act:
The court may find a party to be in bad faith or to be attempting to defeat the ends of justice if it finds that:
(a) the plaintiff could have no reasonable expectation that the proceeding will succeed; or
(b) the principal purpose for bringing the proceeding is,
(i) to deplete or exhaust the resources of the defendant, or
(ii) to dissuade the defendant or other persons from engaging in public participation.
    1. relief in the form advised by The Ontario Bar Association [4] including:
speedy hearing of a motion to dismiss an action (within 60 days);
the reverse onus proposed by the advisory panel, including the proposed balancing of the action of the plaintiff against the harm to public participation;
full indemnity costs to defendants if they are successful and damages to defendants in cases of findings of bad faith by the plaintiffs; and
suspension of any other activities in the proceeding unless this would cause undue hardship to the plaintiff.
  1. That SWN had no legally issued permit for its activities, said permit having expired and having been issued contrary to environmental and health laws, without consultation with First Nations (as required by the Canadian constitution), and contrary to standing treaties with First Peoples (as required by the People themselves).
    1. All reasonable avenues of protest, inquiry and reporting of this violation of law had been exhausted - there was literally no answer ever given to the standing question of who was to deal with these issues on behalf of the government, e.g. who enforced environmental laws.
    2. Medical professionals had uniformly opposed the shale gas development on grounds of unexamined health risks and lack of disclosure of poisonous 'slickwater' chemicals
    3. Nearby local service districts had uniformly opposed the development and had their concerns ignored. Those concerns including
      1. ownership of water access - this being potentially very competitive with all agricultural and household water uses
      2. enforcement of environmental law re testing, extraction of large amounts of water, re-injection of said water with or without excessive pressure, emissions, truck traffic, access to wooded lands, and so on.
      3. health factors: non-disclosure of chemical compounds - no assessment health/ecosystem effects without disclosure of chemical compounds - lack of geology reports confirming safety (migration of chemicals from lower to higher layers)
    4. The testing process was itself destructive or reported as destructive, and in any case permitting it to proceed would have divided the communities into those at immediate risk and those at no risk, making a 'divide and conquer' strategy entirely likely and easy.
    5. That the consent of two New Brunswick cabinets/govts was not in itself a sign of due diligence or due process, as these governments had previously made many questionable and "reckless" energy policy decisions
      1. Orimulsion - a gross failure of due diligence that resulted in billions in losses to NB Power and thus the people of the province
      2. Lepreau, whose refurb was called "reckless" by Lloyds of London, which was also conducted against expert advice
      3. attempting to sell NB Power assets including the dam on Tobic native territory whose title was unsettled, with no attempt to settle or even notify Tobic of the intended transfer or whatever rights or titles the province had - nor likely was Hydro Quebec informed of the dispute.
  2. That First Peoples legal and traditional representatives had already rejected SWN and evicted it from the land. The citizens merely enforced this order.
    1. No treaty ever ceded rights to below-ground resources.
    2. "Indians" recognized by treaty are not confined to those recognized in the Indian Act and include persons not resident on First Nations and without the "status" defined by the racist criteria of the Canadian govt (a model copied by apartheid South Africa & Nazi Germany). The coalition of protesters was the most legitimate representation that these people have had.
    3. Rights to the vast amounts of water that the fracking process requires were unsettled and remain unsettled - so First Peoples were legitimate claimants as well to those.
  3. That the protesters named in the suit were not leading the blockade nor could they order any other person to participate or not participate; That they personally were not responsible for any harms SWN had suffered.

Potential counterclaims

Other potential counterclaims:

  1. For costs against SWN's ex parte interlocutory injunction - on grounds that it was based on perjury and never properly served.
  2. For costs opposing SWN's unsuccessful attempt to extend and make permanent that injunction - it is conventional in Canada for losing parties to pay winning parties' costs
    1. A submission to avoid a detailed accounting of time for preparation and presentation - which must usually keep track of every 15 minute increment - only chance of recovering costs for self-represented defendants - would be to ask that each side bears own costs - since the action was partly successful.
  3. A third party claim against the Alward government for issuing the licenses without the required consultation,
  4. A third party claim against the Alward government and possibly federal agencies that the licenses were invalidly issued based on a fraudulent consultation process. Federal government had jurisdiction over waters when the so-called permits were issued originally.
  5. A counterclaim against SWN for participating in the fraudulent consultation process.

The latter (non-cost) claims could allege conspiracy between the Government and SWN to proceed with shale gas exploration and exploitation without undergoing proper environmental assessments and consultation processes. Such a conspiracy could be evidenced by the readiness of the Government to change laws and regulations quickly to ensure the exploration proceeded expeditiously. Also, the gratuitous intervention of the province on Oct. 18 in the SWN injunction suggest conspiracy and a coverup.

There is evidence also of improper manipulation of the process by Government and/or SWN in offering bribes to the First Nations chiefs (no direct evidence yet but lots of closed meetings with those chiefs - and the infamous "Chief to Chief" organization). Evidence on discovery may also reveal improper interference by Government with he RCMP at all points, in particularly those leading up to the Oct. 17 raid/attack. An inquiry like that into Ipperwash might reveal similar interference and direction from the Premier's office. Mike Harris was called to testify under oath in the inquiry and the Harris quotes verified were damning to his administration.

Unfortunately, defendants would be opening themselves to huge costs awards against them if these claims fail - so a judicial inquiry like Ipperwash is the ideal way to uncover these truths. However, civil expenses pursuant to eventually forcing such an inquiry might be funded by:

Injuncting SWN

Litigation to support an injunction against shale gas exploitation in New Brunswick is now also possible. If stated broadly it could also prevent PetroWorth activity in Cape Breton and PEI until native claims are settled.

Other legal responses

RCMP complaints

Complaints and other actions against the RCMP for excessive violence during the RCMP attack on fracking protest, 17 Oct 2013 should proceed as fast as possible as they provide key evidence for the civil defense as well. Especially:

  • Genocidal, racist legal opinions contrary to Canadian law and court findings were shouted at unarmed people by armed officers, e.g.
    • “Crown land belongs to the government, not to f*cking natives” [5]
  • Police video and testimony of one accused during the bail hearings (subject to publication ban) shows the RCMP unnecessarily firing multiple rubber bullets or "sock rounds", both of which are very painful, at Seven Barnard and (verify?) Coady Stevenson (in the back). There are many eyewitnesses to the use of pepper spray and rubber bullets and/or sock rounds into the crowd gathered on highway 134 near Rexton on Oct. 17.
  • RCMP also seemingly fired 4 rounds of live ammunition in the woods right beside the crowd of people on highway 134. A woman was shouting "that is my son in there" so police knew there were people in the woods.
  • There is very little or no evidence that anyone in the crowd was actually armed during this entire day. (The Crown prosecutor did indicate that Germaine Breau earlier was carrying a hunting rifle with a scope but no video of this, nor any evidence that he aimed or fired, is seemingly available.

Ombudsman complaints

NB has an Ombudsman to deal with complex multi-agency complaints. The handling of these matters definitely is within his mandate at least to comment on. Any statement or investigation would be useful to the civil respondents.

UN complaints

James Anaya has left Canada but has yet to formulate his final report. He certainly should receive a complete account of these events and encouraged to specifically make note of the abuse of aboriginal rights and people who have never ceded lands, from an international law point of view.

CRTC complaints

Sun News Network has refused to correct facts or gone silent on stories that do not fit their editorial stance. They have mocked Supreme Court of Canada-validated positions on treaty rights and rights of indigenous peoples and been utterly silent on the duty to consult or Canada's UN DRIP stance.

They have run photo after photo of burning police cars and posted inflammatory and racist sound bites and captions on Sun News Network facebook pages, even to the point of angering their own base on the issue of representing legal guns as a political threat.

Their "stories" deliberately attempt to associate the peaceful protesters who are being sued for costs, with the people who detained others and destroyed equipment. These are really two different stories but Sun News deliberately fuses them into one, failing to differentiate.

Formal CRTC complaints against this Network would help defuse any perception that freedom of the press is at risk in the confrontations between Warriors and Sun News Network. It may also reassure those who are very concerned about this racist news coverage that it is being dealt with in some appropriate way, and may defuse or prevent future incidents of direct interfering with their personnel.

Sun News itself could be removed entirely from the airwaves with a class action suit that rendered it financially infeasible. Having been denied access to basic cable and being kept viable only by Harper regime ads for Canada's Economic Action Plan, i.e. public funds, it may be possible to get these withdrawn, removing Sun News' only viable source of advertising.