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.