Daishowa Vs Lubicon – An Epic Battle

dvlWhen the FoL began their work in 1989, the Alberta government had already sold off the timber lease on the Lubicon’s traditional territories to Daishowa Canada, a division of Daishowa Paper Manufacturing, one of the world’s largest pulp and paper companies. In 1990, Daishowa began logging. The Lubicon asked for help and the FoL answered the call, asking the company to stop clearcutting until the tribe’s land rights had been settled. In 1991, after moral suasion failed, the FoL began a letter-writing and picketing campaign to persuade customers and companies to stop using Daishowa paper products.

The idea for the boycott emerged from one of Daishowa’s own paper bags. At an meeting in 1989, an FoL member “looked at the bottom of a paper bag [from] the pizza joint, and there was a little Daishowa logo on it,” recalls Kevin Thomas, a legal researcher and university student. “Suddenly we realized we had the ability to do something. We could talk to these companies and try to get them to switch their paper bag supplier. We figured that was worth a try.” By 1994, nearly 50 companies and 4,300 retail outlets later, the Daishowa campaign was one of the most successful consumer boycotts in North America–and, more notably, a small group of volunteers had convinced the multinational not to log on the disputed lands. Companies who joined the boycott include Pizza Pizza, Safeway, Holt Renfrew, Roots, Kentucky Fried Chicken, Country Style Donuts and Club Monaco.

In January 1995, Daishowa launched its lawsuit against the FoL. “We’ve suffered for three-and-a-half years and our customers have suffered for three-and-a-half years,” said Tom Cochran, Daishowa Canada’s director of corporate development. “We really had no choice but the courts.” Seeking unspecified damages, the company continued its year-to-year commitment not to log on Lubicon land until courts delivered a verdict. Cochran noted that the company’s goal was to put a “stop to all boycotting activity.”

Nearly three years after the lawsuit was first served, the full trial of Daishowa v. Friends of the Lubicon began in September 1997. A decision is expected this spring. But the decision, important as it will be, is only part of the story. In the years of pretrial wrangling, Daishowa has succeeded in severely limiting the activities of the FoL. With the exception of a four-month period in 1995, the defendants have been under a court order that essentially outlawed their boycott. The court order banned street-side pickets and demonstrations by making it an offense to directly communicate with consumers regarding the boycott and Daishowa’s activities in Northern Alberta. In addition, there’s been a court order against publicly using references to certain disputed moments in the Daishowa-Lubicon history and to saying specific words–“genocide,” for example–that were used to criticize Daishowa’s plan to log on Lubicon land. The pretrial period has, in many ways, been a period of punishment before a fair hearing. “People who look at the case for the first time wonder what it was that we did,” explains Bianchi, a film-maker and national co-ordinator of the Aboriginal Rights Coalition. “But the shoe never drops.”

With a “temporary” court order in effect now for three years (less that four-month span in 1995), Daishowa’s persistent legal efforts have increasingly been described as a SLAPP action–a Strategic Lawsuit Against Public Participation. Win or lose, many critics say that the intent of a SLAPP is to disable pesky activists and public advocates by dragging them into an expensive and exhausting civil suit. “It started in the United States, where a big powerful company hires its lawyers and because they’ve got trillions of dollars, they sue,” explains Toronto lawyer and civil-rights advocate Clayton Ruby. “They sue all the environmental protesters, all the people who are trying to organize against them. Some of those suits have merit; most of them do not. But the object of it is not to win the lawsuit, [it’s] to bankrupt those who you’re suing by the high cost of litigation.”

Kevin Thomas received his lawsuit several days after the other defendants; in true Kafka style, the papers had first been delivered to the wrong Kevin Thomas. “We didn’t know anything about civil law or what a tort was. It made for amusing reading at first,” he recalls. “We thought there was no way you could outlaw a boycott.”

After some initial inquiries, the Friends realized things were actually much more serious than they’d thought. With less than three weeks notice, they had to find a lawyer and file a defence to the lawsuit–no small matter for a volunteer group with a $3,000 annual budget, raised mostly through raffles and rummage sales. A week before the deadline, they found pro bono counsel with Toronto lawyer Clayton Ruby and were told, point blank, that they’d better get used to being in court. “Ruby said we were going to get creamed,” recalls Kenda, a native-rights activist. “But the more we worked on the case, the more [the lawyers] became optimistic.”

The defendants were also shocked to find out that their Charter-guaranteed right to freedom of expression didn’t necessarily matter, either. “We assumed early on that we had Charter protection,” says Thomas. “When Clayton told us we didn’t, that’s when we knew we were into something serious.”

Most Canadians assume that the 1982 Charter protects them unconditionally–a trump card against oppression and injustice, what Trudeau’s constitutional engineers once called the “people’s package.” But soon after the Charter was enacted, the courts made decisions that affirmed corporate entities were entitled to Charter protection, too. In fact, argues University of Victoria law professor Chris Tollefson, “Corporations have been the major benefactor of the Charter so far. For the most part, courts have treated corporations as human beings and extended to them all of the rights individuals are entitled to under the Charter.”

What this means is that large corporations like RJR-Macdonald tobacco company can successfully wage Charter challenges against government rules and regulations: in its 1996 Supreme Court victory, RJR-Macdonald won the right to more freely advertise cigarettes using the argument that Canada’s existing tobacco advertising laws violated its right to free speech. By contrast, the Charter has yet to emerge as a major factor in protecting freedom of expression for the Friends of the Lubicon. Sixteen years after its triumphant arrival, the Canadian Charter of Rights and Freedoms defends us from Big Government, but not from Big Business.

The reason is that there’s a double standard in Canadian law, a seldom-talked about legal distinction that draws a division between public and private in the application of constitutional justice. By and large, the court has determined that the Charter applies to relations between individuals and the state, but not between “individuals” whose relationship is essentially non-governmental and private. In private disputes, Charter freedoms have, at best, been considered “values” to be balanced–and often trumped–by property rights. Which is why a large tobacco corporation is more successful at winning rights from the government to “freedom of expression” than the Friends of the Lubicon have been in running a successful boycott against a private company.

One favourable signal for FoL defendants was a 1995 decision by Madame Justice Kiteley against Daishowa’s request for an interim injunction, which temporarily lifted the ban on boycott activities in 1995. But again, constitutional rights were to be weighed against property interests: the Charter “must be given consideration along with the competing interest of the plaintiff to profit,” while acknowledging the important “public interest in protecting the claims of aboriginal peoples.”

pmtFour months later, the Ontario Divisional Court reinstated Daishowa’s injunction because FoL’s picketing had caused undue economic harm and altruistic political motives could not justify “illegal” means. Daishowa has maintained that customer picketing, sometimes referred to as “secondary picketing,” is illegal because it encourages companies to break off their business with Daishowa, thereby causing harm to Daishowa’s profit.

“We are not trying to shut down any public discourse,” says Daishowa lawyer Peter Jervis. “We’re simply saying you can’t go to the customer of the person that you have the problem with and picket them and pressure them.”

The defendants have been free to picket Daishowa itself and send information to customers, assuming the language meets the terms of the court order. But by limiting picketing to situations that can’t directly engage consumers, the power of a consumer boycott falls apart. Under the current terms, protesters are free to protest an indifferent Daishowa central office that will gladly ignore them–as opposed to a direct campaign that informs consumers of the ethical and political possibilities of their purchases. “In Canada, we might not ban picket lines but we reroute them,” says Alan Borovoy, general counsel of the Canadian Civil Liberties Union. “So, the picket line becomes an exercise not in freedom of communication but in freedom of soliloquy.”

The current three-year-long injunction sanitizes the boycott, makes it polite discussion and keeps it well-removed from the nation’s shopping malls and franchise outlets. As a Lubicon adviser told Kevin Thomas, “You have constitutionally protected rights to run an unsuccessful boycott.” Interestingly, despite all the talk about the harms of unrestricted picketing, a total of only seven FoL pickets actually occurred in the four years preceding the lawsuit–three in front of Toronto Pizza Pizza outlets and four in front of Woolworth’s and its affiliates.

While much of the court proceedings focus on the economic harm to Daishowa, there’s relatively little to protect the defendants from the economic fallout of a lengthy lawsuit. Even if they win their trial, the costs alone may defeat the FoL. Despite three years of pro bono representation from some of Canada’s finest civil-rights crusaders, the Friends of the Lubicon have still managed to accumulate more than $50,000 in associated legal costs. Had the FoL paid the full costs for legal representation, the bill would be upwards of $700,000, given a standard lawyer’s rate of $200 an hour. (By some estimates, Daishowa has spent about $1 million on its legal expenses.)

“Every one of these cases costs a small fortune,” says Karen Wristen, the FoL’s lawyer from the Sierra Legal Defence Fund (SLDF). “It’s a tough go–and we can’t take them all on.” And without pro bono representation or a fat legal budget, public interest groups and citizens burdened with a SLAPP action can only turn to legal aid. In many provinces, this kind of lawsuit would not even be covered by legal aid. In fact, Wristen notes, any lawyer considering the suit on its economic merits would be professionally inclined to strongly recommend an out-of-court settlement. For most defendants, fighting a SLAPP action cannot be considered a viable economic pursuit. “They can be resolved quite cheaply: apologies, retractions, conditions against various activities,” says Wristen. “Ninety-nine per cent of them are resolved like this.”

After building up fears by citing millions of dollars in boycott losses, Daishowa finally stated its claim against the defendants during the trial’s final summations in December 1997: a request for $1 in compensation from the FoL. It was both a symbolic gesture of corporate goodwill and a realistic admission that the group couldn’t supply Daishowa with a fraction of its $14-million claim. (Back in July 1996, Daishowa’s Tom Cochran was still building up the fear factor: “There is compensation that’s due, and we’re quite determined to get a damage settlement.”)

But costs aside, one of the most unsettling things about lawsuits such as this one is that they affect a much broader community than the people fighting in court. For example, the Daishowa suit names the three defendants but also specifies “Jane Doe, John Doe and Persons Unknown,” a legal caveat that assumes if you know about the suit and the temporary injunction, you then have an obligation to observe its terms. This is the basis upon which Daishowa’s counsel threatened contempt of court proceedings against the defendants for a segment about the trial that was broadcast last June on Big Life, the CBC Newsworld show. They also demanded that the segment not be rebroadcast. Nothing became of the threat, but it was added to a long list of jousts and squabbles that are endemic to the case. (For three months in 1996, Daishowa did succeed in keeping professor Tollefson–who’s written extensively about SLAPPs–from talking about the suit while a trial judge deliberated about placing him under a special injunction.)

A SLAPP, as David Suzuki noted, can chill whole communities. When the Friends first entered into the world of the lawsuit, they lost group members who couldn’t afford legal trouble. “There was no group for a while,” says Kenda. “Just the three of us going to meetings with lawyers.” And because court orders are enforced at the request of the plaintiff, one never really knows what’s permissible and what’s not: there can be substantial grey areas within the terms of an injunction. “Self-censorship affected us a lot at first,” says Thomas. “Sometimes we’re still a little more timid than we need to be. It’s important to be factual and honest. But the problem is when factual and honest is illegal.”

On one level, none of this is Daishowa’s fault. The company has no real legal obligation for how its actions affect the situation of the Lubicon Cree. Provincial and federal governments are, arguably, the primary authors of the troubles surrounding the Lubicon claim. Indeed, in 1993, when Jean Chretien was in opposition, he acknowledged federal culpability in a letter to the Friends, writing, “We believe that the government has reneged on its fiduciary responsibility to the Lubicon People.”

Nor can Daishowa be blamed for logging trees in Alberta. Daishowa, like any other corporation, has only taken advantage of the opportunities Canada makes available: hardwood trees cost the company about $1.40 a tonne in provincial timber rents; the final pulp product brings about $900 a tonne on the market. If you build it, the saying goes, they will come.

Nor can Daishowa be blamed for the gaping hole in Canada’s constitutional edifice that allows for the steam-rolling of Charter rights.

“This is the only case I’ve ever heard of where a company is being boycotted for something it’s not doing,” argues Daishowa lawyer Peter Jervis. In narrow, contractual terms, this may be true: technically, Daishowa doesn’t owe Canadians a damn thing, besides periodic taxes and rents on harvested trees. And it hasn’t logged on Lubicon land since 1990. Plus, there’s the jobs of 118 workers in the Canadian packaging division that will be lost, Jervis claims, if the boycott continues. From an economic perspective–which is the dominant perspective in civil law–Daishowa positions itself as a victim in the lawsuit. (This despite the parent company’s reported consolidated profit of $123.9 million (U.S.) for 1997 and its Canadian units posting an estimated profit of $22 million (U.S.). Daishowa’s Koichi Kitagawa even testified during the trial that its Canadian packaging division enjoyed increased profit during most of the boycott–a testimony to the corporation’s ingenuity and ability to find new markets not affected by the boycott.)

But whatever Daishowa’s legal obligation, it simply can’t be ignored that there are also major historical and social considerations in this case. Daishowa may own its timber lease, but some of the land isn’t necessarily theirs to harvest. The people of Lubicon Lake were one of several remote tribes left out of the federal government’s 1899 Treaty Eight, which, the Lubicon claimed, left a 10,400-square-kilometre area untreatied (246 square kilometres of which have been requested as part of the Lubicon’s settlement proposal).

Nor is Daishowa’s arrival in Alberta without consequence. By 1988, with its new $500-million pulp mill planned only 105 kilometres from the Lubicon’s Little Buffalo settlement, Daishowa’s arrival in the Lubicon Lake area meant that a second wave of intensive resource exploitation was inevitable. Dr. Ryan, who did extensive field work with the Lubicon in the 1980s, found that the accelerated decline of the traditional hunting economy created profound despair. “People who had once been fit were sitting at home depressed, smoking and drinking,” she reported. Likewise, with the boreal forest under siege, the spiritual base of the society was profoundly shaken. “If they cut down the trees, my life is over…I’m dead,” one elder told Ryan. “My soul is out there on the land and I’m waiting to die.”

Bianchi and Thomas had visited the Lubicon settlement in 1987 and had seen the TB epidemic up close. To them, Daishowa represented the final chapter in a determined–and possibly tragic–60-year struggle for the survival of a tribe whose culture and spirit had been eroded by multiple waves of disappointments and setbacks.

Which leads us to the forbidden word of the trial, the term that helped launch the original lawsuit and the temporary injunction: “genocide.” As the Friends’ 1995 statement of defence argued, “The Lubicon community took the position that to permit logging on its territory by Daishowa would have the effect of `finishing off’ their band.” The boycott campaign often referred to the Lubicon people as victims of “genocide”–a reference to the Canadian government’s historic pledge to rid Canada of aboriginal society. (“Our object,” pledged Indian Department deputy minister D.C. Scott in 1921, “is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian Department.”)

Daishowa, understandably, bridles at the suggestion that they may be involved in a genocidal process. “If you’re going to boycott,” says Jervis, “make sure the information is truthful.” Citing a Webster’s dictionary version, Daishowa’s counsel argued that “the plain, ordinary meaning of genocide is killing people.”

By contrast, First Nations scholar and American Indian Movement leader Ward Churchill testified that a much more nuanced definition of genocide has also been in circulation since the Second World War. “Genocide is not synonymous with mass murder,” said Churchill. “There are plenty of ways to accomplish de-nationalization [through] non-lethal [means, whereby] the individuals might remain healthy but the genocidal process dissolves a group.”

In civil law, the principle of “fair comment” is sometimes invoked to protect people who, without malice, participate in public discourse. Which isn’t an argument for permitting hate crimes or defamation so much as acknowledging that difficult issues provoke different opinions and require socially relevant interpretations–that there may be more to “genocide” than a dictionary definition. Wristen asks, “How robust is our democracy? Words like `genocide’ put that to the test. You have to look at the context and the circumstances of where the word was used. Was it used to defame the plaintiff or was it used fairly and with justification?”

Daishowa sees its relationship with the land one way; the Lubicon Cree and the FoL read it another. Is Canada big enough to accommodate both these views?

The decision on the Daishowa v. Friends of the Lubicon trial that arrives this spring may well clarify the Charter status of the defendants, but it won’t for all Canadians: even with a favourable decision for the FoL–total dismissal of Daishowa’s allegations and reimbursement of legal expenses–any court will avoid making broad statements. “They’ll stay close to the facts,” says Wristen, noting the reluctance of Canada’s judiciary to be seen as “legislating” new laws within court decisions.

Even after the decision, questions will abound: Is it unlawful to communicate with fellow consumers via pickets and demonstrations? Are conscientious, outspoken shoppers not tolerated in Canada? The case is a good bet to reach the Supreme Court because it so profoundly embodies a growing crisis surrounding the Canadian Charter: the devolution of citizen freedoms in an age of shrinking government and a growing trend toward recognizing corporations as having Charter-protected rights.

Leave a Comment