SLAPP against anti-fracking protest, 2013

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The SWN Resources SLAPP against anti-fracking protest, 2013[edit]

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 in the SWN Notice of Action With Statement of Claim [1].

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 advocates for 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[2] 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 individuals do not appear to have contributed much 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. This introduces the question of defamation of publicly recognized persons acting in the public interest.
    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 [3]
    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 and challenge the courts' reluctance to apply them" [4]. 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:
      1. 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:
      2. (a) the plaintiff could have no reasonable expectation that the proceeding will succeed; or
      3. (b) the principal purpose for bringing the proceeding is,
        1. (i) to deplete or exhaust the resources of the defendant, or
        2. (ii) to dissuade the defendant or other persons from engaging in public participation.
    6. relief in the form advised by The Ontario Bar Association [5] including:
      1. speedy hearing of a motion to dismiss an action (within 60 days);
      2. the reverse onus proposed by the advisory panel, including the proposed balancing of the action of the plaintiff against the harm to public participation;
      3. full indemnity costs to defendants if they are successful and damages to defendants in cases of findings of bad faith by the plaintiffs; and
      4. 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(s) for its activities, said permit(s) having been issued contrary to environmental and health laws, without consultation with and accommodation for First Nations rights (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 given by now-Premier David Alward of who was to deal with these issues on behalf of the government, e.g. who enforced environmental laws.
    2. No assessment of the well-to-wheels carbon emissions of hydraulic fracturing in general, nor in the NB context, was planned, announced or had been conducted. This is contrary to Canadian federal law as carbon emissions are controlled, however inadequately.
      1. The International Panel on Climate Change (IPCC) has estimated that, as an absolute maximum, one trillion tons of carbon can be emitted into the atmosphere without certainty of major climate disruption (it is unclear how ocean acidity might rise and the number is extremely controversial). Use of high-carbon fuels is incompatible with future human life on this planet[6]. Under this limit, most fossil fuels now extracted in Canada are worthless economic liabilities, including especially Tar Sands diluted bitumen products [7]. The risk of devalued unmaintained well heads and pipelines leaking oil is accordingly extremely high - no tolerance for their construction is reasonable.
      2. Uncontroversial recommendations include to avoid "building high-carbon energy generation" and extraction infrastructure [8] and to avoid locking in future usage patterns [9]
      3. Methane emissions from gas fields in particular are typically high [10][11] and both greenhouse gas intensive and explosive.
      4. Overall greenhouse gas emissions from fracking have been shown to be very high due to the pumping of water, movement of vehicles, and short term nature of the extraction in any particular place [12] [13]
    3. Medical professionals, including the province's Chief Medical Officer of Health had uniformly opposed the shale gas development on grounds of unexamined health risks and lack of disclosure of poisonous 'slickwater' chemicals
    4. An overwhelming majority Nearby Mayors and 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)
    5. 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.
    6. 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, including:
      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 assests of public utility NB Power, 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 claimed the right to give to another province - 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. A detailed legal argument regarding the illegality of the permit has already been made and is yet to be heard [refer item 15 to 32 of an application by Elsipogtog [14] ], salient facts as follows:
    1. No treaty ever ceded rights to below-ground resources anywhere in Atlantic Canada. [15]. Existing treaties have all been breached by the Crown but not by the Wabanaki Confederacy. There have been no treaty cases before the courts in Wabanaki territory, nor do the colonial governments have any proof of title to New Brunswick as a whole.
    2. Even where such treaties exist in other territories, the United Nations Special Rapporteur on Rights of Indigenous People has recommended strongly:
      1. Adopting a much less “adversarial” approach to dealing with aboriginal land claims and treaty disputes.
      2. Recognizing that “resource extraction” should not occur on lands subject to aboriginal claims without “adequate consultations” and the “free, prior and informed consent” of the Aboriginals affected.
    3. The Alward government is aligned with other right-leaning and Conservative federal and provincial governments who "ignore Anaya’s recommendations for consultation on resource extraction projects, including oil and natural gas in Alberta and British Columbia, is their mad scramble revealed in recent news reports to override opposition to shipping tar sands oil to the BC coast for export. The Globe and Mail is reporting the relentless push of the federal government for pipeline approval, while the Vancouver Sun reports yesterday the incredible threat by an Alberta/BC government working group that if tar sands pipelines are not approved, then large quantities of bitumen will flow to the coast via rail." [16]. Similar threats, and the deliberate refusal to upgrade rail safety that resulted in the mass murder at Lac-Megantic, intended to generate spectacular "accidents" to promote pipelines east including Line 9 and "Energy East". Facing similar violent assault akin to mass murder tactics in NB, and other aspects of genocide [17] [18] the tactics taken were reasonable and restrained.
    4. "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.
    5. Rights to the vast amounts of water that the fracking process requires were unsettled and remain unsettled - so First Peoples were legitimate claimants to those as well.
    6. Public officials, notably the federal Energy Minister, have engaged in hate speech and consistent falsification of facts re the origin and nature of First People's objections and issues with energy projects [19]. In British Columbia in particular, the vast majority of coastal citizens have been labelled "radical" simply for agreeing with the First Peoples (Yinka Dene) on pipelines.[20][21]. Direct funding for some propaganda projects have come directly from US sources [22]. Resultant media shoes the government labeling concerned citizens as "environmental terrorists" to quell opposition to reckless disregard of populations dependent on uncontaminated ecosystems for their survival. Intimidation and threat of further abuse of public power is inherent in the terms of reference and framing of issues employed, similar to the McCarthy era [23].
    7. Public reviews, notably the National Energy Board re the Enbridge Northern Gateway pipeline, have been used as means to identify and assist CSIS to spy on opposition [24]. This is part of a general policy of inventing absurd "threats" and definitions of "non-violent attack" [25] by these agencies. Accordingly these inconsistent processes, are often conflicted with decisions seeming to be made at the behest of project advocates. [26], are not trustworthy and do not adequately provide for the concerns of First Peoples or homeowners.
    8. Local concerns of the Local Service Districts of NB, as with those of landowners [27] and local governments in BC [28], are underplayed and rarely acknowledged by media or government accounts, putting additional and undue pressure on First Peoples as the representatives of the opposition.
  1. That the protesters named in the suit were not leading the blockade nor could they order any other person to participate or not participate;
    1. Named defendants personally were not responsible for any harms SWN had suffered.
    2. Named defendants seem to be proxies under some doctrine of group responsibility, further indicated by restrictions against appeal as long as any blockade continued by any party.
    3. Un-named defendants "John Doe" and "Jane Doe" have not been clearly defined. No criteria to determine who is or is not potentially named in this suit or evidence of any person subject to any claim who is still unidentified has been outlined, nor any statement of what evidence would be required to name a person in this suit. Clearly the vast majority of persons in the suit are actually un-named and none of them could have made more than a tiny contribution to any harms alleged by SWN.
    4. Suits against un-named defendants are an intimidation and abuse of process if there is no clear definition of a class. Class actions can proceed in NB only with specific approval of the court to define a class of plaintiffs or of defendants that would be subject to scrutiny & appeal. The New Brunswick court has not outlined any process for this to occur, so all claims against John and Jane Doe must fail for lack of prosecution and/or lack of due notice and disclosure, if no such criteria or process is set by the courts in due course. Persons who do not know they are involved or may be named cannot act to protect themselves against being named in future as a "John Doe" or "Jane Doe", cannot preserve evidence or even ask others to write down their memories.
  1. Further abuses of process by government are evident as outlined in the application for injunction against shale gas, seismic testing and development, casting grave doubt on the likelihood of fairness in any trial or other provincial proceeding:

[29]

    1. "Impermissible self-help" by the Government in affirming the legality of its alleged permit to SWN resources, and the colour of intimidation in favour of this claim that must inevitably pressure the courts in SWN's favour
    2. Consistent and deliberate misrepresentation and sudden variances of the status of SWN's alleged permit and the Government's duty to consult First Peoples, as detailed from item 15 of that application [http://s3.documentcloud.org/documents/835110/elsipogtog-application-for-injunction.pdf

Regarding mitigation of damages, the defendants claimed (as above) that the harms are diluted to effectively nil for any named defendant, due to mass participation in protests and blockades. And further that (as stated in paragraph 36 of the Elsipogtog application): "36. Any damages that SWN may allege are or will be: (a) self-generated by its uncompromising persistence in making commercial engagements and pursuing its exploration programme without regard for the rights" [30] of all others including the defendants, First Peoples and specific Bands or First Nations or Local Service Districts or others they represent formally or not. And "36 (b). Clearly compensable in damages, including by way of a claim by the respondent SWN against the Crown for failure to furnish valid licenses and permits." [31] Thus, not the defendants' to pay except as diluted by their ownership of public assets stewarded by the Crown, which may be reduced thereby. Ex parte injunctions ore ordinarily granted only where there is evidence that harm done is clearly irreparable and not compensable by money alone.

Willi Nolan and Jane Doe Statement of Defence Against SWN SLAPP suit[edit]

(Excerpt) WILLI_NOLAN_JANE_DOE.26Nov2013 STATEMENT OF DEFENCE (FORM 27A)[edit]

"The right of peoples and nations to permanent sovereignty over their natural wealth and
resources must be exercised in the interest of their national development and of the well-being
of the people of the State concerned."
General Assembly Resolution 1803 (XVII) in 1962 the Commission on Permanent
Sovereignty Over Natural Resources
“In no case may a people be deprived of its own means of subsistence… ”
Covenant on Civil and Political Rights and the Covenant on Economic, Social and
Cultural Rights, Article 1 (1966)

STATEMENT OF DEFENCE - WILHELMINA (WILLI) NOLAN (as named defendant) and/or

Re: Notice of Action and Statement of Claim Cause Nos. MC/659/13 and MC/663/13 Court of Queen's

Bench of New Brunswick, Trial Division, Judicial District of Moncton

[... end of Excerpt]

A copy of the Willi Nolan-Jane Doe Statement of Defence is available online here - https://docs.google.com/file/d/0B5JmzR9UoeLQYUFsdHh3OEVpajQ/

Potential counterclaims[edit]

Other potential counterclaims:

  1. For costs against SWN's ex parte interlocutory injunction - on grounds that it was based on defamation of public persons, apparent perjury and was never properly served. Service to a few of the named individuals began only after the provincial court had already dismissed the SWN application for a permanent injunction.
  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 and contrary to the expressed disapproval of existing traditional governments of the Original peoples of the territory.
  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 and for failure to perform due diligence regarding misrepresentations and reckless behavior by the province.

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 determining that requirements for consultation and accommodation processes were met. Such a conspiracy could be evidenced by the readiness of the Government to change laws and regulations quickly to ensure the exploration proceeded expeditiously, such as the granting of variances for conducting seismic testing in ecologically sensitive wetland areas. 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 private First Nations corporations - including the infamous ""Chief to Chief Consulting". Evidence on discovery may also reveal direct and improper interference by Government with the RCMP at all points, in particularly those attack and targette4d police brutality against certain protesters which took place in 2013 on June 5th, June 14th, June 21st, September 29th and Oct. 17th. A public inquiry like The Ipperwash Inquiry might reveal similar interference and direction from the Premier's office. In the Ipperwash inquiry, Premier 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:

Other pipeline providers such as Kinder Morgan TransMountain and Northern Gateway who also oppose the Energy East pipeline may want to provide resources to stop their competitors Energy East; it is said that this will be fought on similar grounds.

Injuncting SWN[edit]

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, PEI and other regions in Wabanaki territory until native claims are settled.

Other legal responses[edit]

RCMP complaints[edit]

Complaints and other actions against the RCMP for desecrating ceremonies and using excessive violence against peaceful protesters during the [[RCMP attack on fracking protest. Reports about police violence which occurred during the spring, summer and fall of 2013, notably that on 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” [32]
  • 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 Tyson Peters and 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[edit]

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.

The NB Ombudsman reported that he has received an unprecedented number of complaints his office about shale gas development in the province and will do his best to stand up for citizen concerns within his limited mandate.

UN complaints[edit]

James Anaya, the United Nations Special Rapporteur on Rights of Indigenous People [33][34] has left Canada [35] but has yet to formulate his final report.

He referred to aboriginal issues as a "crisis" [36] [37] [38] [39] and issued a "stern warning" [40] for Canada to act on and to deal with it.

Two relevant recommendations in his interim report were:

  • Adopting a much less “adversarial” approach to dealing with aboriginal land claims and treaty disputes.
  • Recognizing that “resource extraction” should not occur on lands subject to aboriginal claims without “adequate consultations” and the “free, prior and informed consent” of the Aboriginals affected, as required under the United Nations Declaration on the Rights of Indigenous Peoples.

The extreme violations and disregard of the UN and rights of indigenous peoples must be noted explicitly to Anaya before he issues his final report.

The United Nations certainly should receive a complete account of these events and encouraged to specifically address , from an international law point of view, the abuse of aboriginal rights and people who have never ceded lands.

genocide charges[edit]

The Convention on the Prevention and Punishment of Genocide [41] specifices that:

  • "Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
    • (a) Killing members of the group; or attempting such murder by unnecessary discharge of lethal weapons
    • (b) Causing serious bodily or mental harm to members of the group; by for instance targetting innocent, peaceful protesters or bystanders for direct or legal harassment, as happened on 17October2013
    • (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; for instance the theft or pollution of its water supply, or the implicit threat to subject it to "accidents" caused by excessive transport of explosives by rail without adequate safety measures
    • (d) Imposing measures intended to prevent births within the group; including the use of toxins and tetragens unnecessarily on women of child bearing age, and imposing stresses that may introduce miscarriages
    • (e) Forcibly transferring children of the group to another group. As occurred with residential schools or which commonly occur upon criminal convictions.

It is obvious that the proponents of shale gas development in New Brunswick have met at least some of these criteria for the crime of genocide against protesters of the Original Peoples of Wabanaki

  • Article III: The following acts shall be punishable:
    • (a) Genocide;
    • (b) Conspiracy to commit genocide;
    • (c) Direct and public incitement to commit genocide;
    • (d) Attempt to commit genocide;
    • (e) Complicity in genocide."

A [[formal genocide charge against the Harper and Alward governments, among others, could accordingly be assembled on the evidence at present. Should this proceed, it will place the SLAPP firmly in a political context and draw global attention to it.

CRTC complaints[edit]

(please strengthen this sections add reference links, etc)

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 peaceful protesters who are being sued for costs, with people who are accused of detaining others and destroying equipment. These are really two different stories but Sun News deliberately fuses them into one, failing to differentiate according to established journalistic practices and standards [42].

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.


REFERENCES

Unrevised Journals, Legislative Assembly of New Brunswick. Fourth Session. 56th Legislative Assembly. April 6, 2010

well-to-wheels GREET Model: The Greenhouse Gases, Regulated Emissions, and Energy Use in Transportation Model

International Panel on Climate Change (IPCC)

New Brunswick Deaf to Local Government Concerns Around Shale Gas Allan Marsh, chair of the Local Service District (LSD) for Saint-Charles, says conflict not over. CBC News Oct 18, 2013

Fracking: Myths and Facts The Council of Canadians

Fracking – An Unconventional Poisoning Silver Investor

New Brunswick Chief Medical Officer of Health's Recommendations Concerning Shale Gas development in the Province Government of New Brunswick

Oil Production and Environmental Damage Draft Author: W. Corbett Dabbs (December 1996), American University, Washington DC.

Wall, Alward push for oil pipeline development Lee-Anne Goodman, The Canadian Press, October 29, 2013

Mi'kmaq Warrior risks losing leg after being shot by RCMP rubber bullet CENSORED NEWS: Indigenous Peoples and Human Rights

Wetlands take a Blasting Protect Albert County

Shale gas Complaints to Ombudsman Unprecedented - New Brunswick CBC News

Chair of NB Energy Institute's academic research record in question CBC News Oct 1, 2013

LaPierre projects require review says former volunteer Environmental decisions, such as reduced watercourse buffers, should be 'verified' CBC News Sep 24, 2013

The Ipperwash Inquiry: Justice for Dudley George Chiefs of Ontario

12 more opposed to shale gas arrested as RCMP turn violent on National Aboriginal Day Miles Howe, Halifax Media Coop

United Nations Declaration on the Rights of Indigenous Peoples UN.org

Ethics guidelines: Canadian Association of Journalists CAJ