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May 4, 2010 

Below is an article from the Winnipeg Free Press written by Winnipeg lawyer, Douglas J. Johnston about how money and lawyers can suppress freedom of speech. He talks about SLAPP lawsuits and if you read it you will see that a SLAPP lawsuit is exactly what has happened to my life. Since it was SLAPPed on me, I have been hamstrung from reporting on anything pertinent in Metis land. This is a direct form of oppression and should not be part of Canada.

Hopefully the Manitoba Government will stop these things from happening to others in our future.

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The group of cottage owners north of Toronto who faced a $3.2-million costs claim from a developer for opposing the building of a marina, condo/hotel complex and golf course on Lake Simcoe were victims of a contagion infecting Canada's justice system. It's a contagion best known by its acronym, SLAPP -- short for Strategic Litigation Against Public Participation.

Although technically not a lawsuit, but a costs award sought before the Ontario Municipal Board, the sum sought by the developer was so huge its object was clearly the same as a SLAPP lawsuit -- punish a citizen's group for opposing development and intimidate potential future opposition to such projects. Ultimately, the board didn't order the cottagers to pay any costs, but the threat of financial ruin weighed heavily on the families involved in the Innisfil District Association.

SLAPP suits are ordinary civil claims ---- defamation, inducement of breach of contract and interference with economic relations are the trio of legal actions most commonly employed -- launched solely to stifle public debate. It's routine for these suits to claim damages in the millions or multi-millions of dollars.

Their targets are grassroots associations -- homeowner organizations, environmental groups and neighbourhood-preservation coalitions -- that are usually unincorporated. This means they don't have the limited liability protection a corporation provides. Spokespersons and members are therefore personally liable and put at risk of having a judgment entered against them. The result: Individuals' personal assets -- homes, cars, bank accounts, wages, investments -- are up for seizure, garnishment or sale, if ultimately on the losing end of a lawsuit.

The sums demanded in SLAPP suits bear no logical relationship to the harm alleged to have been suffered. Humongous amounts, pretty much plucked out of thin air, are pleaded in statements of claim, inserted solely for the purpose of threatening peoples' livelihoods. Often these damage claims amount to a form of legalized extortion. Their blunt message: "Shut up and go away" or face potential ruin.

The most basic activities of citizens speaking out on issues of public concern or engaging in debate about public issues have given rise to SLAPPs. Individuals have been sued for writing letters to a newspaper, speaking to the media, circulating petitions, organizing representations to local government, picketing, making submissions to government agencies and even for testifying at public hearings.

Apologists for SLAPPs argue our justice system requires proof -- that you can't just launch a lawsuit and take it to the bank. A big-bankrolled litigant must still prove its case in open court, they contend.

But according to the U.S.-based Anti-SLAPP Resource Center, most SLAPPs aren't, ultimately, or even likely, legally successful. And most SLAPP plaintiffs -- the companies that initiate the lawsuits -- know this going in. They sue because even if they lose in court they win in the public arena by having silenced the opposition.

The United States is far ahead of Canada when it comes to anti-SLAPP legislation. In the U.S., state legislatures, alarmed at the proliferation of SLAPPs, made haste to halt them. Since 1992, more than half of American states have enacted legislation prohibiting use of the courts to shut down democratic debate.

In Canada, only Quebec has an anti-SLAPP law, passed in 2009. (British Columbia enacted an anti-SLAPP law in April 2001, but repealed it just five months later, following a change of government.) Quebec was prompted to act after a notorious SLAPP launched by American Iron & Metal Co. Inc. was fast followed by four similar suits.

Quebec modified its rules of civil procedure to permit a defendant to bring a motion for summary dismissal -- whereby a lawsuit can be turfed early on in proceedings -- of a SLAPP suit. The amendments also allow a judge, where he or she smells a SLAPP, to order a plaintiff to post a substantial dollar value as security with the court before being allowed to proceed with its suit. And what's known as punitive damages -- judicially found abuse of the civil justice system -- are also now codified in the rules. The overarching object of the changes is to punish plaintiffs who seek to use the courts to shut down public debate.

In a democracy, citizens shouldn't be afraid to get vocal and politically active for fear of being sued. When even ordinary participation in public-policy debate gives rise to a SLAPP, we've created a system where anyone with deep pockets can skew the workings of the political process.

But SLAPPs don't just impair the political process. They're also an abuse of the judicial system. Our civil justice system shouldn't let itself become a legal bazaar where anyone, for the price of a lawyer and a court filing fee, can commence a claim that suppresses the expression of opposing ideas.

Ontario's Liberal government is reportedly weighing whether to follow Quebec's anti-SLAPP lead. It, and all other provinces, Manitoba included, can't act soon enough. Legislation to protect grassroots activism is past due.

Quebec aside, SLAPPs' unchecked spread has fostered a Canadian justice system that dispenses something less than justice.

Douglas J. Johnston is a Winnipeg lawyer.

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 Métis show the way

Canada's Métis have always held to goals distinct from Canada's First Nations and such distinctness might be a model for status Indians. After all, in the rush to find solutions to what ails First Nations, policymakers forget the valuable clues that exist in what the Métis have done and are doing right.

For example, most studies of income disparity between aboriginals and the rest of the population consistently point out that Métis, as a separate aboriginal group, do better than status Indians and the Inuit. The Métis also fare better than on- and off-reserve First Nations in median income and educational attainment.

A recent study by a left-leaning think tank alluded to this observation, but did not explore the ramifications. "It would, therefore, not be surprising if that group were more integrated into the mainstream economy over time because of urban residency, access to equivalent programs and services, and greater choices and opportunities," reads the study by the Canadian Centre for Policy Alternatives.

Increased involvement in the economy due to urbanization is certainly part of the reason for better socio-economic outcomes. So far, so good. However, one significant difference has been the relationship between the Métis and the federal government. While maintaining a fierce sense of cultural identity and historic nationhood, the Métis have resisted a "protective" relationship with the federal government.

In his book, Quiet Revolution West: The Rebirth of Métis Nationalism, John Weinstein, a former adviser to successive Métis leaders explored the historic role of the Métis in the founding of Manitoba. Weinstein notes how, when the federal government of John A. Macdonald negotiated the transfer of 1.4 million acres to the children of the Métis under the Manitoba Act, the intent was to respect the Métis as a separate people.

It was clear the Métis, who formed the majority of the province of Manitoba at the time, wanted a land base for their community under self-governing institutions. However, they were more interested in political powers than the protection of the Crown offered to the Indians and they rejected the restrictive treaty and Indian Act reserve system.

For various historic reasons, much of this Métis land base was lost. However, in other Western provinces, self-governing Métis communities exist. There are eight autonomous Métis settlements in Alberta and they work closely with the provincial government, another departure from treaty Indian-Ottawa relationship, where delegated powers are too often scorned. (Unfortunately, and important to note though, Métis in these communities do not enjoy full ownership rights as individuals and cannot use land as collateral.)

For Métis who have not moved to the cities, the Métis settlements offered a land base under self-governing institutions, yet avoided the restrictions of Crown protection, treaties, and a system of constant approval from the minister of Indian Affairs. In other words, having this system allows the Métis to retain land and autonomy, while enjoying greater integration into mainstream society.

For those First Nations who desire to remain on their lands and enjoy self-government, perhaps this model offers more hope. Retaining historic claims to territory and autonomy does not have to come within a restrictive reserve system, as the Métis have demonstrated.

In research over court cases involving Métis land grants under the Manitoba Act, it was revealed the Métis preferred land held in fee simple, rather than in restrictive collective tenure held by the Crown, as in the case of Indians. The Métis preferred the benefits and protections of private property.

The Métis demonstrate that one can be nationalist, yet aggressively involved in the modern economy. According to Weinstein, when the Hudson's Bay Company asserted its trade monopoly in the 19th century, they were opposed by a Métis middle class which insisted on the free trade of furs and the continuation of export industries; the latter included the opening up of a trade route between the Red River to St. Paul, Minn., in order to gain access to the American market. In 1845, after the Métis petitioned the governor of the Red River settlement for special status, one of their later demands was for a declaration of free trade ("le commerce est libre").

Fee simple land, trade, commerce, an absence of Ottawa's Indian Act and voluntary integration: to improve the condition of First Nations, it seems the best remedies may be right here in Canada.

Joseph Quesnel is a policy analyst with the Frontier Centre for Public Policy. He is the author of Discussing the Elephant in the Room: Indian Property Rights.

Republished from the Winnipeg Free Press print edition April 29, 2010 A15