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Once again a SLAPP against Noir Canada!

by Dominique Caouette, Catherine Dorion, Louis Dumont, Francis Dupuis-Déri, Jean-Marc Larouche, Lucie Lemonde, Normand Mousseau, Christian Nadeau, Pierre Noreau, Marcelo Otero, Éric Pineault, Michel Seymour, Sid Ahmed Soussi, Pierre Trudel et Daniel TurpFree Speech at Risk

After three years of lobbying by the mining company Barrick Gold against the authors of Noir Canada and the publisher Écosociété, and pending a trial that was the culmination of a SLAPP, Barrick Gold has signed an out of court settlement with the authors and the publisher.

It is understood that the multinational company has chosen to retreat from what was possibly another (golden?) opportunity to consider once again the allegations made against mining companies circulating around the world, claims which would then have been reported in the media during the trial. Now this is precisely what the authors of Noir Canada discussed in their book. In this work supported by an imposing apparatus of footnotes, the authors document from multiple credible sources (including newspaper reports, reports from Amnesty International and Human Rights Watch) allegations that several Canadian mining companies have been engaged into controversial activities in Africa.

It was in order to silence these questions that Barrick Gold has filed its lawsuit. During three years of their lives, the authors and the publisher have been subjected to repeated interrogations, were forced to mount a massive documentation and lived the nightmare of a possible bankruptcy. More than 12 000 citizens, sixty publishing houses, internationally renowned newspapers and 500 professors in Quebec and Canada have supported the publication of Noir Canada and have argued that the lawsuit of $ 6 million brought by Barrick Gold was as a matter of fact a SLAPP (Strategic Lawsuit Against Public Participation).

Malicious prosecution

The Quebec Superior Court ruled that the prosecution was “abusive and disproportionate” and demanded that Barrick covers the legal fees of the authors, but was not willing to dismiss the action. It is therefore necessary first to regret the “cautious attitude” of the court that chose not to draw the logical conclusion from its own reasoning, after openly questioning the unfairness of the judicial action taken by Barrick : “Why is this procedure apparently so excessive? The Court infers that beyond the restoration of its reputation, Barrick seems to be trying to intimidate the authors. ”

Barrick’s lawyers were willing to challenge the decision of the Superior Court. They even wanted to challenge the obligation to pay the legal fees of the other party. In this way they suggested that they would be willing to engage everyone in a protracted legal battle, with unequal arms, extending over many years. All this served to to force an out of court settlement that would allow them to save face, and such a settlement was one that was promoted even by the Quebec Superior Court. However, this might also be a settlement in which Barrick’s lawyers could seek to impose their censorship once again upon the book.

Unfortunately, this is exactly what happened. The out of court settlement provides for the cessation of the publication of Noir Canada and, one imagines, the prohibition of the authors and the publisher to say what they really think of that settlement. Can they describe the settlement as a case of censorship and as a final stage in the SLAPP saga they have been experiencing?

A narrow legal perspective

Since the beginning of this case, the authors insisted that their goal was to discuss publicly the responsibility of Canadian mining companies concerning what happened in the context of the exploitation of mineral resources in Africa. For, they asked themselves, why should we avoid at all costs the public debate on this issue in Canada? The authors saw the need to overcome the code of silence that prevailed at home while the rest of the world was talking about the implications of mining companies in controversial activities. But Barrick did not hear it that way. Instead of making these issues a matter of public interest and initiate a discussion in the political arena, the company preferred to use the courts by confining the debate in the legal arena.

The worst aspect of this case is the threat that the lawsuit and its conclusion in the form of an out of court settlement, impose on the entire social science research in Quebec and Canada. When some organizations, public or private, do everything not to be the subject of research because of the impact of their activities or policies, it is just a necessity or a scientific responsibility to try to understand these activities and their interactions with legal, political and financial spheres. However, a work in social science does not provide a legal case. The arguments and ideas put forward can be based on solid documentation and allow the formulation of legitimate questions, but they do not take the form of a legal proof.

In this regard, the “admissions” that are made in the out of court settlement concerning the lack of evidence that could incriminate Barrick, are not new disturbing facts. These remarks were already contained in the book because the authors never claimed to hold a legal proof against Barrick.

Commentators who adopt a narrow legal perspective will be tempted to conclude that it is an admission of weakness on the part of the authors to write that they did not provide legal evidence against the activities of Barrick in Africa. But this interpretation actually betrays a complete misunderstanding of the critical work done in social sciences.

The out of court settlement

Still the reader may wonder why the authors have nevertheless “accepted” another SLAPP from Barrick Gold. Why did they “choose” to comply with these conditions? Those who ask these questions have no idea of the kind of psychological pressures that can take place in thèse circumstances. The consequences of this lawsuit are enormous for the authors. Lives have been turned upside down forever. One must be aware of the fact that the out of court deliberative process does not in general take the form of a conversation over a cup of tea. In the case of a continuing SLAPP, a poisonous atmosphere often prevails, even if one is looking for an out of court settlement. The lawyers try to demoralize the opposition. Thus, the authors and the publisher did not choose anything. They were desperately trying to extricate themselves from a legal unbearable straitjacket.

Despite the ferocity with which Barrick’s lawyers have practiced censorship, it is remarkable to note at the end of this process the strength of character of the authors and the publisher. They strongly reaffirmed the rationale for the publication of their book.

Moreover, the admissions required by Barrick in fact reveal a certain weakness on the part of the company itself. It can only win its case by exerting an enormous pressure on its opponents. But in so doing, it shows that the lawsuit was from the very beginning not a procedure meant to refute but rather to silence the authors and their legitimate questions.


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