This time it’s the Province of B.C. trying to gag us, with a
new “Societies Act” containing a section that invites anyone to sue us if they
think we’re not acting in the public interest.
Acting in the public interest is not actually my job. Mine
is to advocate for protection for the ocean and for communities that depend on
ocean resources. I happen to think that this is in the broader public interest
as well; but the folks who want to send oil tankers through the 4th
most dangerous body of water in the world probably don’t agree. Prime Minister
Harper certainly doesn’t agree. And like it or not, for the moment, he’s the guy
who actually does get to say what the public interest in oil tankers is. Come election time,
we all get to tell him if he was right or not.
The people who definitely don’t get to say what the public
interest is are the ones who are looking to profit from endangering public
resources, like the ocean. But they are the ones most likely to take up this
new invitation to sue.
When I worked as an environmental lawyer, I reviewed dozens
of lawsuits against everyday citizens and non-profit societies who were
speaking out effectively against development proposals or in favour of
regulation of industry. Many of these were clearly what are called “SLAPP suits”:
strategic lawsuits against public participation. Advocacy chill is their purpose; they achieve
this by grinding meritless cases through the courts, costing valuable
charitable dollars and time and usually, along the way, getting a court order
preventing the defendant from continuing to speak out.
One thing that SLAPP suits always suffer from is a shortage
of really good law to hang their hats on—it’s hard to accuse someone of a civil
wrong when all they’re doing is exercising the right of free speech. Most of
the suits allege some kind of slander or libel; some use more complex and
arcane law. This proposed provision of the new Societies Act is like a gift:
here’s your civil wrong and it’s so vaguely worded that you can be in court for
years, grinding away at those nasty activists.
The worst thing about the new section, though, is that it
seeks to take the determination of what is in the public interest out of the
public domain, where it belongs. Governments are supposed to make that
determination, based on what they hear from the many voices advocating their
own views of public interest. They are accountable to the electorate for
whatever they deem to be in the public interest. Under this new proposal, a
judge would be asked to decide what is in the public interest, based on
whatever evidence the person who sues chooses to bring forward, and whatever
evidence the non-profit being sued can gather to respond to it.
Let’s just sketch that out. Say, for example, Enbridge
decides to sue Living Oceans, saying that its Northern Gateway pipeline is in
the public interest and our advocacy against it offends this new rule. Enbridge gives the court its deeply flawed
economic analysis and magic job numbers, says “health care and education” about
a thousand times, points out that I drive a car and rests its case. Living
Oceans can’t actually afford to hire an economist to counter the economic
evidence, so we respond with what we have: the scientific evidence that ocean
ecosystems do not recover from oil spills in places where highly toxic oil continues
to enter the environment, as it would do if the weathered, diluted bitumen were
to sink to the ocean floor.
Now how is a judge to determine whether or not we were
acting in the public interest based on that evidence? What of the First Nations’
rights and title, the opposition of the labour movement, the views of local
communities, farmers and ranchers; or for that matter, the health care and
education administrators who are apparently going to see all that Enbridge tax
revenue pouring into their coffers? Do we invite them all into the courtroom to
say their piece, or do we just ask the government to say what they deem the
public interest to be in this case?
If we just ask the government to tell the court what’s in
the public interest, then free speech just came to a screaming halt in the
Province of B.C. and no non-profit can ever criticize the government again. If
instead, we invite into the courtroom all of the many players whose rights and
interests must be considered in order to determine what the public interest is,
then we’ve just asked a judge to do the government’s job. The judge is an
appointee, who is not accountable to voters. Either way, it's wrong.
The proposed section 99 of the new Societies Act attacks one
of the fundamental freedoms of democracy, the right of free speech. I expect
that, if tested, it would prove unconstitutional for that reason. The Province’s
rationale for the proposal—that the public needs to be able to hold non-profits
to account for failing to act in the public interest—confuses entirely whose
job is whose. The public needs to be able to hold its governments to account
for failing to act in the public interest. Non-profits are supposed to help
articulate aspects of the public interest that often get overlooked. The public
can listen and support the non-profit, or not. Neither they, nor the
government, need the right to stop us from speaking.
Excellent post!
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