Did you know that Northeastern Ontario’s municipal leaders are petitioning the government to enact legislation which will silence the participation of environmental organizations who oppose clear-cutting and bitumen pipelines? It may come as a surprise to voters in centres like Greater Sudbury and North Bay that their tax dollars are going towards a lobbying effort which puts the interests of corporations ahead of citizens – but that’s just what’s happening.
In December, 2014, the Province of Ontario re-introduced “The Protection of Public Participation Act”. Bill 52, is the successor to Bill 83 – a bill which died on the order paper when the 2014 provincial election was called in May of last year. Also known as the “anti-SLAPP” bill, Bill 83 enjoyed broad support for striking a more favourable balance between the public’s right to participate in public processes, and the rights of individuals and corporations to protect their reputation. The reintroduction of anti-SLAPP legislation was identified by Premier Kathleen Wynne as a priority for her Minister of the Attorney General, Madeleine Meilleur, in the MAG’s mandate letter of September 25, 2014.
“SLAPP” – or, strategic lawsuits against public participation – has become an issue throughout the western world, and especially here in Ontario. Lawsuits have been filed with the primary purpose of achieving results outside of the legal system – including silencing citizens and citizens organizations which have been critical of a development proposal. Most often, the basis of these lawsuits has been the notion that in the course of public consultation, a corporation or individual has been libelled or slandered by a public participant, and that the lawsuit is necessary in order to protect the reputation of the corporation.
Of course, it’s the filing of the lawsuit itself which typically leads to favourable outcomes for the deep-pocketed corporation over the private citizen or citizens organization. Most often, the lawsuits are dropped when posts are removed from websites, or appeals to the Environmental Review Tribunal or Ontario Municipal Board have been dropped by citizens fearing personal insolvency trying to defend their actions. These lawsuits have led some to suggest that freedom of expression and democracy itself are being undermined (see: "Ontario must ban SLAPP suits to protect free speech", the Toronto Star, November 8, 2013). Ultimately, SLAPP suits throw up a barrier to one's Charter guaranteed right to freedom of expression.
Finding a Better Balance
Changes proposed through Ontario’s anti-SLAPP legislation would see these lawsuits fast-tracked, so that corporations filing the suit will need to prove that the suit merits the court’s continued attention. If the corporation can’t prove that there is merit to the libel or slander accusations it has made, the case will be dismissed in a timely manner – allowing citizens and citizen’s organizations to proceed with public input, consultation and taking a position on a matter of public interest without the fear of financial ruin. The Osler law firm has a good synopsis of the legislation available on its website.
Many jurisdictions in Canada and the United States have already enacted anti-SLAPP legislation. Despite good intentions, Ontario remains on the offside with this necessary protection for citizens. Interestingly, although it has been expressed that the government’s proposed anti-SLAPP legislation may enjoy broad, multi-party support, the government has been and continues to be lobbied by special interests – mainly corporate endeavours – who view anti-SLAPP legislation as a threat to their own bottom lines, most likely because it will negatively impact current corporate practices.
Corporate Lobbying Against Anti-SLAPP
Forestry giant Resolute Forest Products has employed the services of U.S.-based Edelman to lobby Ontario’s provincial government to abandon its pursuit of enacting anti-SLAPP legislation. Interestingly, Edelman, which Greenpeace describes as the “world’s largest PR and crisis management firm”, was the firm employed by TransCanada’s campaign to use a phony “grassroots” online campaigns to show support for TransCanada’s Energy East pipeline (see: "After TransCanada, logging giant Resolute employs Edelman for astroturfing and lobbying in Ontario", Greenpeace, December 8, 2014). Edelman’s astroturf campaign was exposed by the media – and quickly disowned by TransCanada (see: "Energy East pipeline 'advocates' targeted in TransCanada PR move", CBC, November 18, 2014)
It might be expected that companies like Resolute, who have been accused of filing lawsuits to silence opponents of their corporate practices (see: "Resolute sues Rainforest Alliance over 'biased' audit", CBC, May 21, 2014), might have adopted a position contrary to the interests of public citizens in their efforts to get the government to change its mind.
And of course, it might also be expected that filing this type of lawsuit in Ontario - a jurisdiction which doesn’t have anti-SLAPP legislation - makes more sense for a Montreal-based corporation which took exception to an environmental organization’s comments made regarding forestry practices in the province of Quebec (see: "Greenpeace hits back against Resolute Forest lawsuit", the Toronto Star, August 21, 2014). All of this points to the need for Minister Meilleur to stay the course on pursuing her mandate to enact anti-SLAPP legislation for the benefit of our Province and its citizens.
Municipal Opposition to Anti-SLAPP
Despite what many of us have come to expect from industry, what will probably come as a real shock to Ontarians is that an organization comprised of elected municipal councilors from northeastern Ontario have also been lobbying the government to water down its desire to protect free speech. Worse yet, this organization, the Federation of Northern Ontario Municipalities (FONOM), has been using your tax dollars to lobby the provincial government to take actions counter to the interests of the public.
FONOM is comprised of elected councillors and heads of council from many northeastern Ontario municipalities, including Greater Sudbury. For the privilege of being a part of a larger body which co-ordinates issues for discussion with provincial representatives, FONOM charges fees to each municipality, which are paid with taxpayer’s dollars.
While I believe that FONOM does some good work in advancing municipal interests to the provincial government, their opposition to anti-SLAPP legislation clearly runs against the interests of northern voters – the very same citizens who pay the taxes which keep FONOM in business.
Freedom of Expression
Recently, FONOM modified its outright opposition to anti-SLAPP legislation, by requesting that the province amend the proposed Act so that it would only protect the free speech of “volunteers” and community organizations with budgets less than $100,000. I guess in its wisdom, FONOM appears to believe that there are two standards for engaging in free speech. FONOM apparently thinks it’s ok to be protected from non-meritorious SLAPPs if you’re a private citizen, but if you’re hired by that private citizen to offer your professional opinion on an environmental matter in front of a review tribunal, well, you’re fair game. Or if you’re a citizen’s organization forced to raise a lot of money to fight applications against deep-pocketed developers at the Ontario Municipal Board – too bad.
What FONOM doesn’t seem to get is that you can’t put a price on free speech, ever. It’s either a right that you have – or you don’t have it.
Hiring professionals to provide evidence on one’s behalf is almost a minimum requirement to be taken seriously at many of the province’s quasi-judicial tribunals, including the Ontario Municipal Board and the Environmental Review Tribunal. Further, it’s not unusual for legal and other bills for citizen’s groups to climb well beyond the $100,000 threshold that FONOM wants established. An illustrative case in point regarding both of these matters played out a few years ago in the Town of Innisfil, over a development known as Big Bay Point – a case where lawsuits were filed by a developer against citizens and citizens organizations, as well against legal counsel hired by those citizens! (see: "Democracy suffers under barrage of strategic lawsuits", the Toronto Star, February 26, 2008)
And then there are First Nations – organizations of citizens which may have a different take on how consultation over resource development ought to play itself out than do some who comprise FONOM’s membership.
Extremist Rhetoric has No Place in Public Discourse
Of course, FONOM claims to be concerned about those “environmental organizations” which “have shown a disregard for facts” and who “benefit financially from attacking our resource sectors” by receiving “grants from foreign sources to attack our economy” and who put at risk our “way of life in Northern Ontario”. I’m putting a lot of this language into quotations because it’s the language which FONOM uses to voice its concerns about anti-SLAPP legislation (see: "Mayors slam groups with disregard for 'Northern way of life'", SooToday.com, February 20, 2015).
Does this type of over-the-top rhetoric sound familiar to anybody else? (see: "Radicals working against oil sands, Ottawa says", CBC, January 9, 2012)
It's egregious for our elected officials at any level to characterize environmentalists as being somehow anti-Canadian. It's bad enough when it's done so through the lens of party politics. But of course, in Ontario, at the municipal level, we don't have political parties. The elected officials who comprise FONOM's membership are all elected through non-partisan processes. Yet somehow the organization still believes that it's appropriate to vilify environmentalists in this manner. FONOM would do well to remember that many of these environmental organizations are comprised of Northern Ontarians who are concerned about the decisions made by those looking after our natural resources. We live in the same communities as you. Our kids play hockey on the same teams.
Greenpeace SLAPP'ed by Forestry Giant
Of course, like Canada's federal government, FONOM hasn’t offered one shred of evidence in defense of its wild accusations. I’m at a complete loss about what, exactly, FONOM means when it suggests that environmental eNGOs are attacking our economy. If FONOM is thinking about the current lawsuit filed by Resolute Forest Products against Greenpeace and two of its directors, then it remains wholly unclear to me how that might be considered an attack on the North’s resource-based economy.
Indeed, up until just prior to the lawsuit, Greenpeace had been working in partnership with Resolute through the Forest Stewardship Council – up until May, 2013, when Greenpeace published a report drawing critical attention to Resolute’s unsustainable forestry practices. Greenpeace urged Resolute to reform its ways, in keeping with the spirit of the voluntary Forest Stewardship Council agreement. Instead of taking meaningful action to address criticisms, Resolute filed defamation lawsuits against Greenpeace and personally against two Greenpeace directors. (for more information, Greenpeace has documented this story on its website.
Perhaps what would have been a much better outcome for Northern Ontario’s economy would have been for Resolute to reform its business practices so that better regard was had to the health, viability and sustainability of northern ecosystems. By deciding to pursue business practices which put corporate interests ahead of the public’s and the environment’s, it may very well be that Resolute has damaged its own fiscal sustainability (see: "Resolute feud with Greenpeace drags on profits: Corporate Canada", BloombergBusiness, January 12, 2015).
Corporations Protected through Existing Laws
None of this is to suggest that it’s ok for environmental organizations to defame corporate entities. In fact, anti-SLAPP legislation won’t have an impact at all on a corporation’s ability to bring meritorious defamation suits forward – the key, though, is that there must be some merit to the suit – merit which can be demonstrated in a timely manner to the courts. If a court can be convinced to hear the argument that libel has occurred, it’s not going to shut down legal proceedings. Only those proceedings which clearly have no merit will come to a grinding halt.
FONOM Embarrasses Northern Ontarians
FONOM clearly needs to get with the times. It’s over-the-top rhetoric it is using to lobby our provincial government over anti-SLAPP legislation is, frankly, an embarrassment to all northerners. The very idea that our northern way of life could ever be put at risk by well-meaning environmentalists which advocate for the reform of outdated business practices lacks anything akin to credibility. And the notion that somehow all of this is being done in the interests of shady, monied foreign-owned corporations simply defies logic.
FONOM’s support of the Energy East pipeline, in defiance of the environmental damage that reversing existing aging natural gas infrastructure for the flow of bitumen will do, is yet another example of how out of touch with the times FONOM appears to be. In its call for the Ontario Energy Board to approve the project – without the benefit of considering climate change impacts – FONOM has clearly abandoned any ability to claim that it’s looking out for the economic interests of Northern Ontarians. Instead, FONOM appears to be acting clearly on behalf of corporations, and not acting in the interests of the citizens who elect its members – and who pay for its bills.
It’s past time for FONOM to change its ways and focus on advocacy which will meet the real present and future needs of Northerners. Impeding anti-SLAPP legislation and favouring non-renewable fossil fuel resource projects like the Energy East pipeline have no place as part of a sustainable economic development strategy for Northern Ontario. Frustrating the participation of citizens and organizations to become true partners in development will run counter to the sort of collaborative systems which are already replacing failed 20th century consultation models. Calling for the investment in fossil fuel infrastructure to allow the expansion of the tar sands at a time when it’s well known that the majority of fossil fuel reserves must stay sequestered in the ground simply defies economic logic.
Greater Sudbury's Future Role in FONOM
I, like many Greater Sudburians, would like to know whether Greater Sudbury’s representatives on FONOM, including former FONOM Director and Greater Sudbury Mayor Marianne Matichuk voted in favour of motions 2014-14 (opposition to anti-SLAPP) and 2014-17 (support for Energy East) when she represented our community on FONOM’s board. These motions were adopted by FONOM at its May, 2014 meeting in Sault Ste. Marie.
Our new municipal council representatives to FONOM must apply pressure to have these motions overturned – and indeed, to motivate FONOM to change its ways. Our elected municipal officials, including Greater Sudbury Mayor Brian Bigger, must demand that the FONOM back off of its support for the Energy East pipeline and drop its opposition to anti-SLAPP legislation. If FONOM can’t be successfully pressured to join the 21st Century and work in favour of Northern Ontarians, then our municipal councils should start questioning whether it’s past time for the use of municipal tax dollars for the continued support of FONOM.
(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)
(originally published at the Northern Ontario Bloggers Syndicate, www.nobs.ca, as "Northern Ontario Gets a "SLAPP" in the Face from FONOM", March 2, 2015)