Friends of the Lubicon winter update

20 January 1998

Friends of the Lubicon
485 Ridelle Ave
Toronto ON
M6B 1K6
T: 416-763-7500
F: 416-603-2715
fol e-mail: fol@tao.ca

What follows is an electronic version of our most recent update and mailout to supporters. For those who have been following the Daishowa v. Friends of the Lubicon trial, this is the situation as it stands in January 1998.

Message from Lubicon Chief Bernard Ominayak:

I know that in these times the economic situation is not good for anybody, especially for people who are going to school. It takes a lot of commitment, a lot of hard work to organize events and support causes like the Lubicon. ...

I would like to pass the message on from our people that they are very grateful to those who have taken time to show their concern for our human rights and aboriginal rights. We'll need these kinds of people if we are to survive in the next couple of years, which will be extremely hard on our people...

One of the basic fundamental things that our people have been able to hang onto is the fact that there are people on the outside like the Friends of the Lubicon who have put themselves on the line, are being sued for supporting us and are still standing up to that and holding their heads up. That means a whole lot to our people. After these many many years of struggle, we are still a proud people. It's nice to see people who are prepared to stand up for what they believe in. More importantly, there are people who are prepared to stand up for our community. That means a whole lot for our community.

FoL would like to take this opportunity to express our deepest heartfelt thanks to the over 1000 people and organizations who stood with us through 8 weeks of trial this past fall. Your moral, and financial support has provided inestimable solace in this protracted, arduous legal battle which began 3 years ago. We could never have made it this far without you! But the fight's not over.

The outcome of this trial will likely be appealed and our all-volunteer group currently has big bills to pay. Sierra Legal Defence Fund, bless their hearts, are providing their legal time for free. However, we are paying for associated legal costs. So far that's been over $40,000, with more to come.

If you couldn't make it to court, your financial contribution is still needed and greatly appreciated. Please send in a cheque today payable to Friends of the Lubicon. Address at the top of the page.

Greetings from FoL!

We hope this mailing finds you well.

We are writing to give you news of FoL's work since our last newsletter over a year ago. The tremendous resource drain of the trial on our group of a half dozen volunteers has delayed an update til now.

What's been happening?

Trial of Friends of the Lubicon (FoL) is now over. A decision is expected in February. Details of the court proceedings are in the Friends of the Lubicon Trial Update (Winter 1997 - 98).

In direct response to Daishowa's legal silencing of the Friends' boycott in Ontario, Montreal-based Amitie-Lubicons Quebec and Seattle-based Lubicon Defense Project have commenced campaigns in support of the Lubicon against Daishowa. For more info about those, please view the internet home page cited below or contact us for their mailing addresses.

In the first part of '97, FoL organized an art auction fund-raiser featuring some fabulous art work generously donated by over a hundred artists. Proceeds went towards legal costs. The show went so well we're doing it again! More info on this year's art auction is in the Urgent Art Appeal.

Then in May, representatives of FoL & the Lubicon Nation participated in a speaking tour of 4 northwest coast USA cities organized by USA groups including Lubicon Defense Project.

>From mid-summer until Christmas, we were swamped either preparing for or attending court.

We thank you for taking the time to read this mailing and encourage your support in any way possible.

In All Due Respect for the Sacredness of the Creation

Friends of the Lubicon (New Year 1998)

Upcoming Events and Dates 1998

Jan 23 Quebec City protest at Daishowa
Feb ?? Toronto The trial decision
Feb 07 Windsor FoL information talk
Feb 26 Toronto FoL information talk
Feb 28 Hamilton FoL information talk
Mar 18 Toronto Submission deadline for Art Show and Auction.

All above talks & the protest are organized by groups other than FoL. We gladly welcome further requests to speak to any group, private or public.

late March or early April Toronto "THIS" magazine March/April edition launch night.
FoL trial is the cover story. Art Auction preview night.
Jun 3-6 Toronto Benefit Art Show & Auction, A-Space Gallery
401 Richmond St.W. #110

For all upcoming events please call the FoL Hotline 416-763-7500 or e-mail fol@tao.ca

Volunteers are needed to help with the Art Auction. Please contact us if you can help between now and June. Contact info above

Lubicon supporters' home page: http://kafka.uvic.ca/~vipirg/SISIS/Lubicon/main.html

FoL trial updates web page: http://www.tao.ca/~fol/

to receive Lubicon e-mail updates, e-mail majordomo@tao.ca and include in the body of the e-mail the command: subscribe fol-l

Friends of the Lubicon (FoL) Trial Update

(Winter 1997-98, Toronto) In February 1998, Ontario Court Judge Justice James MacPherson is expected to deliver his decision on the legality of the Friends' consumer boycott of Daishowa paper products.

The following description of the trial & associated events was taken mostly from an update produced by FoL & distributed this past fall to supporters attending the Daishowa vs. FoL trial.

In 1996, forestry multinational Daishowa obtained a temporary court injunction to outlaw the Daishowa Boycott in the province of Ontario, Canada. The consumer boycott was organized by supporters of the Lubicon Lake Cree Nation whose unceded traditional territory Daishowa threatens to clear-cut at the rate of up to 11,000 trees per day. Lubicon land is in the province of Alberta.

Furthermore, Daishowa's trial action, which hit the courts in September 1997, seeks to shut down the consumer boycott forever. The company claims the boycott has cost it an estimated $14 million in lost revenue.

Rights of Canadian citizens to criticize corporations via leaflet, protest, and boycott in support of political, social, and environmental justice issues are on the line. Lubicon survival as a distinct society is at stake.

A Political Trial

The highly political nature of the trial was strikingly hammered home by the high-level, federal and provincial, Canadian government officials called to testify by Daishowa. For example, Harold Millican, the current federal negotiator who is supposed to be negotiating in good faith with the Lubicons toward a settlement of Lubicon land rights, had no problems testifying against the Lubicon. The intimate nexus of corporate and government interests vs. native, human and citizen rights was abundantly apparent at the trial, which took 28 days to hear in court in the period from September 2 to Dec 12, 1997.

Getting SLAPP-ed

FoL's lawyer Karen Wristen of Sierra Legal Defence Fund, says the civil lawsuit 'has all the hallmarks of a SLAPP suit - Strategic Lawsuit Against Public Participation. That is a suit in which the plaintiff's motivation for going to court is more to stop the activist from speaking out than it is to truly seek redress in court."

Clayton Ruby, FoL counsel for court hearings in 1995, explains 'SLAPP is a suit, and it started in the United States, where a big powerful company hires lawyers. And because they've got trillions of dollars, they sue. They sue everybody in sight. They sue all the environmental protesters, all the people who are trying to organize against them. Some of those suits have merit, most of them do not. But the object of it is not win the lawsuit, the object is to bankrupt those who you are suing by the high cost of litigation.'

Kevin Thomas, FoL defendant, describes "This whole case is about corporations controlling what anybody says about them. It's a silencing action."

David vs. Goliath

Meet Daishowa. In December 1996, days after Daishowa-Marubeni International announced plans for construction of a new $900 million paper mill just west of Lubicon territory in Alberta, the business journal Nikkei Weekly reported that its 50% owner Daishowa Paper Manufacturing Co. expected "consolidated net profit to reach Yen 14 billion ($123.9 million US) for the year" ending in March 1997. In June 1996, another journal, Nihon Keizai Shimun, specified that "the current balance sheet for the group at 19.9 billion yen was the highest since FY88." According to the article, "overseas subsidiaries all came into the black including its Canadian holding company (which owns Daishowa Inc. and other assets) which rose out of a 2.6 billion yen deficit to a 2.5 billion yen ($22 million US) profit. .... Profits at Daishowa Marubeni International (which makes pulp, owns a $580 million pulp mill in Peace River, Alta and has logging rights in almost the entire unceded Lubicon territory,) tripled to 5.5 billion yen ($4 8 million US)". With forestry-related operations in Japan, Australia, U.S.A. and Canada, Daishowa's sales worldwide have been over $3 billion a year. Daishowa Inc., a Canadian subsidiary of the Daishowa Paper Manufacturing Co. Ltd. of Japan, makes pulp and paper, owns a packaging plant and is suing the Friends.

In contrast, the Lubicon are a small aboriginal hunting and trapping society of about 500 people. They live on their unceded traditional territory in the boreal forest about a five hour drive north of Edmonton, Alberta. They have never signed away their land rights to anyone in any legally or historically recognized manner.

At trial, Fred Lennarson, long-time advisor to the Lubicon, testified in court to the massive oil and gas exploitation which started in 1979 and has devastated Lubicon society by destroying the hunting and trapping economy. This caused the welfare rate to rise from under 10% to over 90% by 1983. He noted the concomitant rise in depression, alcohol abuse, suicide. He related a terrifying litany of health problems suffered since resource exploitation accelerated including cancers, skin rashes, a tuberculosis epidemic, still births, miscarriages and birth defects. He called it a heart-wrenching situation in which many women were reluctant to get pregnant because of fear of what might happen to their baby. Several people in the courtroom broke down and quietly sobbed.

Lennarson continued that Daishowa announced a pulp mill in 1988 that required the 'harvest' of up to 11,000 trees a day from Lubicon land. He said the Lubicon were horrified at the prospect and that Daishowa posed a serious threat to the Lubicon.

Lubicon Chief Bernard Ominayak's unwavering testimony supported statements made by the Friends regarding Daishowa's plans to log Lubicon land. The Chief repeatedly emphasized for the court that clear-cut logging would "finish off" his people. In responding to the proposition of Daishowa's lawyer that "reforestation" would over time remediate the clear-cut land, Ominayak responded:

"these are points we can argue all day long. I mean, for example, it depends on the money question. We have scientists, you have so-called experts that you can hire to give you a lot of their expertise pertaining to clear-cut logging, and you can hire ten that will say 'clear-cut logging is great and it improves the wildlife, improves this , improves that, improves the water.'

Now somebody on the other side can hire ten and they will tell you exactly the opposite. And it's the same with the ozone layer. There's scientists saying it's disappearing and there's a great, great concern on the part of many people. Now, at the same time, there's scientists on the other side who are saying something totally different, there's nothing to worry about.

So in this context, I don't know where we begin and where we end with a lot of the so-called reforestation. But I'll guarantee you one thing: that there's no way that anybody, whether it's a giant Japanese pulp mill and their expert, there's no way that they're going to be able to compete with the Creator and what he's put on this earth by way of trees. That I know."

Daishowa-owned Brewster Construction clear-cut logged on Lubicon land in 1990. Since Lubicon supporters began the boycott, in 1991, Daishowa has not logged Lubicon land.

The Slingshot : Leafleting, Picketing & Secondary Picketing -- the nub of the legal argument

On a few occasions during the boycott, Friends of the Lubicon peacefully handed out flyers in front of stores carrying paper bags made by Daishowa's packaging division. On another few occasions, lealfeters were accompanied by people carrying protest placards. Daishowa contends that these informational leafleting actions amounted to picketing. Since this leafleting was not in front of Daishowa premises, the primary disputant, but rather in front of stores that bought from Daishowa, the leafleting, they say, amounts to secondary picketing.

Canadian labour law from the '30's established that secondary picketing is illegal in a labour dispute. Daishowa argues secondary picketing is illegal for this consumer boycott even though it is not related to a labour dispute. So far, the courts have avoided saying that secondary picketing is illegal per se. However, any consumer boycott or leafletting may be ruled illegal if unlawful means are used. Unlawful means that Daishowa alleges the Friends used during the boycott or during leafleting include threats, intimidation, inducing a breach of contract, wrongfully interfering with economic interests, conspiracy to injure (economically), misrepresentation, defamation, & injurious falsehood. These unlawful acts are also referred to as "torts".

Friends of the Lubicon deny unlawful means were used. Informational leafleting (picketing) not a threat

The Friends peacefully conveying to the public, at the point of purchase, the truth about Daishowa's plans to clear-cut on unceded Lubicon territory and asking the public to support the Lubicon Nation by boycotting companies that carry Daishowa products is an unlawful act in Daishowa's eyes. According to Daishowa, the Friends giving notice that a leafleting action will take place in front of a store carrying Daishowa products constitutes a "threat" of an unlawful act and so is unlawful conduct. Daishowa alleges that picketing or the prospect of picketing harassed, threatened or intimidated companies that carried Daishowa products.

Under cross-examination by Daishowa's lawyer Peter Jervis of Lerner & Associates, FoL defendant Kevin Thomas stated "we would give notice that we would picket a business". Thomas denied this was a threat saying that "a threat implies some sort of illegal force used on someone."

FoL had leafleted in front of Pizza Pizza and Woolworth stores when they decided not to join the Daishowa boycott back in the early '90's after being approached by the Friends. Thomas denied that FoL picketing was a threat. "People were able to go into Pizza Pizza and Woolworth on their own free will," he said. "People went in and out and had a choice to shop there. What we were doing (was to) put information out to the public and let the customers decide whether to shop or not." Therefore he added a picket was not a threat but purely informational.

Boycott is not coercion, it's democracy!

Daishowa's lawyer Jervis argues that companies that bought from Daishowa "effectively had no choice" because FoL would picket until the companies stopped doing business with Daishowa.

This ignores that after the Friends contacted companies and provided them with information, some companies wrote back to FoL saying that they were joining the boycott because of concerns for the Lubicon situation with Daishowa. Other companies joined the boycott with no mention by the Friends that they would be picketed.

Beyond that, some companies were told of the possibility of a boycott if they continued to use Daishowa products. Thomas testified what concerned those retail companies was that FoL would tell the stores' customers that the company was choosing to buy Daishowa and that the customers might then decide not to shop there. He testified that FoL never stopped anyone from entering a store and that people had a right to know how each company had voted on the Daishowa issue and had a right to choose whether or not they would shop at the stores. Thomas stated that at a leafleting demonstration at a Pizza Pizza outlet, customers entered the store and bought food while other customers took the leaflet offered and chose not to patronize the company. That, Thomas said, is not coercion, it's democracy!

Inducing Breach of Contract - What contract?

Jervis alternately argues in public that FoL's boycott was to meant force Daishowa's customers "to end their contracts with Daishowa". However, Daishowa has not produced any contracts into the record and has admitted that Daishowa had no contracts with the exception of one company. That contract was not breached but rather allowed to expire and not renewed as the company switched to using a re-usable cloth bag.

Wrongful Interference with Economic Interests - What about Lubicon Interests?

To prove this tort Daishowa must show that the Friends intended to economically harm Daishowa, that actual financial loss occurred and that unlawful means were used to bring about the loss.

Here is where the issue of intent is particularly important. Daishowa claims that the Friends intended to economically harm Daishowa via a boycott. Daishowa claims the boycott cost their paper bag business $5 million up until the beginning of 1995 and $3 million a year since then. Some 47 companies representing over 4300 retail outlets across Canada joined the boycott. Daishowa contends the boycott used unlawful means such as misrepresentation.

In testimony from both Kevin Thomas and Ed Bianchi of the Friends, FoL's purpose of the boycott, clearly stated in most of FoL's written material produced at trial, was to encourage Daishowa to make a clear, unequivocal and public commitment to not log or buy wood cut on unceded Lubicon land until the land rights were settled and until a timber harvesting agreement respecting Lubicon wildlife and environmental concerns was negotiated.

While Daishowa claims a loss of revenue of over $12 million to date, Daishowa's Koichi Kitagawa admitted that the packaging division's profits went up every year during the boycott, that production capacity was stable during the boycott, that "5 or 10" new employees were hired during the boycott. He admitted that Daishowa downsized their packaging division work force by 1/3 before the boycott began. Daishowa's Gordon Bunt indicated that their packaging division's expanding business in America and higher prices made up for the lost revenue.

Despite this evidence, Daishowa witnesses indicated that the survival of the packaging division plant would be threatened if the courts did not grant a permanent injunction against the boycott. With nearly $1/2 a billion available to spend on a new paper mill, decade high profits, & threatening to clear-cut the forest of the impoverished Lubicon, for Daishowa to be feigning helpless victim of a Lubicon boycott is like King Kong screaming in fear of Fay Wray.

Misrepresentation, Defamation, Injurious Falsehood: "Genocide"

Daishowa claims that FoL's use of the word "genocide" was a misrepresentation, has defamed Daishowa (defamation) and was communicated with malice (injurious falsehood).

During the boycott, the Friends had used the word "genocide" to describe the ongoing process of societal disintegration which started with the devastation of the Lubicon traditional economy by the destructive effects of massive government-backed oil and gas exploitation on Lubicon land.

FoL defendant Kevin Thomas testified that the Lubicon see logging on their land as part of a genocidal process. He claimed logging would adversely affect hunting, trapping, culture, religion and their way of life. FoL defendant Ed Bianchi testified that "what the Friends were trying to communicate is that this planned logging was part of the genocidal process."

Much testimony of witnesses supporting the Friends has gone to the issue of "genocide".

Dr. Joan Ryan, author, professor emeritus of anthropology at the University of Calgary, and expert witness, detailed spiritual, cultural and economic loss suffered by the Lubicon people since the ingress of oil and gas extraction activities in the early '80's. Dr. Ryan testified that she relied upon the Webster's dictionary definition of genocide - the deliberate and systematic destruction of a racial, political or cultural group -, her observations and study to conclude that the Lubicon have been subjected to cultural genocide.

Professor Ward Churchill, author of 16 books, Chair of Ethnic Studies at the University of Colorado and indigenous activist, testified that the word genocide was coined in 1944 in a book by jurist Raphael Lemkin. Lemkin said genocide has two phases: the destruction of a group's national or cultural pattern and the imposition of the national pattern of the oppressor. It was important to distinguish genocide from other processes like mass murder, said Churchill. Physical killing is only one method to implement genocide, he stressed. Churchill said that 80% of Lemkin's examples deal with non-lethal means of affecting genocide such as the imposed transfer of children from one group to another group. Genocide, he said, referred to a coercive dissolution of a group. Individual members may all survive but they survive in a form of compulsory incorporation into the cultural, political and national structure of the oppressor group. The original group, definable as a people, no longer exists.

Churchill then dealt with the classifications of genocidal conduct through Lemkin's definition, the initial UN draft in 1946 and the final United Nations Convention on Genocide ratified in 1948.

Archbishop Ted Scott, former Primate of the Anglican Church of Canada testified for the defence. Reverend Scott had participated in the World Council of Churches visit to the Lubicon community in 1984. He said that he believes strongly in the rule of law and he believes strongly in good law.

FoL's lawyer, Karen Wristen presented the letter which the World Council of Churches had sent to then-Prime Minister Pierre Trudeau concerning the Lubicons in 1984. The letter says that the actions which government and oil companies had taken with regard to the Lubicon could have "genocidal consequences."

Reverend Scott said that the World Council of Churches took the view that people are involved in a cultural context and that when you destroy the culture they live in you destroy the very meaning of their lives as human beings. He said that many Aboriginal peoples around the world see their relationship with nature differently than others in the Western world. He said the Holy Earth has a special importance to them and it has a biblical importance as well. He said that Aboriginal peoples view themselves as part of nature, not over it. He said that the actions of the oil companies may destroy the whole pattern of life for the Lubicons. They were previously self-sufficient, he explained, but the onset of oil development disturbed their whole sense of relationship with nature.

Reverend Scott said that the church's concern for the Lubicons was not just about them but also about the environment, which is everyone's concern.

For more info, please contact
Friends of the Lubicon
485 Ridelle Ave
Toronto, ON, M6B 1K6
T: 416-763-7500
F: 416-603-2715
e-mail: fol@tao.ca

Lubicon supporters' page http://kafka.uvic.ca/~vipirg/SISIS/Lubicon/main.html

trial updates at http://www.tao.ca/~fol/

To receive Lubicon e-mail updates, e-mail majordomo@tao.ca & include in the body of the e-mail the command: subscribe fol-l

URGENT ART APPEAL

Friends of the Lubicon (FoL) still face phenomenal legal costs from a protacted arduous legal battle brought to trial in the last 4 months of 1997. A judgment is expected in Feb '98.

Three years ago, forestry multinational Daishowa launched a multi-million dollar lawsuit against FoL, a small, volunteer grassroots activist group fighting for the rights of the Lubicon Lake Indian Nation in northern Alberta.

To raise legal costs FoL will be conducting a 2nd Benefit Art Show and Auction, Spirits of Power '98, and we need your talent! Last year's event was a big success. We thank everyone who participated. Donate a piece of art this year and we will use the money raised to fight for justice for the Lubicon Cree against the greed of multinational corporations which have been exploiting natural resources on unceded Lubicon land, and to defend fundamental democratic rights being attacked by Daishowa's lawsuit including everyone's right to protest, boycott, and freely speak out on issues of public importance.

The theme of the auction is "power" and can be interpreted in any way you choose. The use and abuse of power has been an integral part of the history of the Lubicons as well as FoL. As with the lawsuit, corporations can use the power that money gives them to attempt to crush opposition. However, people can use grassroots power, as FoL did when we mounted the "enormously successful" Daishowa Boycott.

The Art Auction is scheduled for 8 pm June 6, 1998 at A-Space Gallery, 401 Richmond St. W., Suite 110, Toronto. Preview will be June 3 - 6. Submissions deadline is Mar 18, 1998.

We are kicking off Spirits of Power '98 at a launch night for "THIS" magazine's March/April edition which features the Daishowa v. FoL case as the cover story. This will be a unique opportunity to showcase selected artwork included in our Benefit Art Show.

FoL will gratefully accept any work you choose to donate fully. However, we understand the financial situation of artists so we are willing to accept art under an arrangement where an agreed upon percentage of the selling price of your work will be returned to you. Due to limited space in the gallery there will be a selection process.

Please Contact Friends of the Lubicon Today!! Phone - Diane White (416) 532-0453 or e-mail fol@tao.ca