Diashowa boycott may continue, says judge

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The Friends of the Lubicon were just exercising their constitutionally-protected right of free expression when they picketed or threatened to picket customers of Japanese-owned multi-national pulp and paper corporation Diashowa, Inc., an Ontario general division judge ruled on April 14.

But that court victory for the Toronto-based activist group was tempered by a loss in the other issue before the court: defamation. Mr. Justice James McPherson ruled that the use of the word "genocide" by Friends of the Lubicon picketers was too extreme.

"Indeed, in a century that has borne witness over and over again to terrible examples of genocide, it would be an enormous injustice to link Diashowa's proposed activities with this meaning of genocide," the judge said. "Their use of the word in the Friends' campaign was cavalier and grossly unfair to Diashowa. It was also defamatory."

In adding its claim of defamation to the request for a permanent injunction against the secondary picketing of their customers, Diashowa was aiming for a symbolic victory. The company asked for - and received - only one dollar in compensation. The court also ruled that claims by the Friends that the company had broken an agreement not to log on disputed Lubicon Cree lands until after the Alberta band's land claim has been settled, were erroneous.

"After a meeting in Vancouver in 1988 between Chief [Bernard] Ominayak and Diashowa, the Lubicon maintained there'd been some sort of agreement not to log. The Friends of the Lubicon have stated that we broke the agreement, but we have always maintained no agreement was reached," said Jim Morrison, general manager of Diashowa-Marubeni International's Peace River office. "The judge reviewed the testimony and looked at the minutes from both sides and determined that there had been no agreement."

The split decision rendered by the Ontario court left both sides claiming victory.

"The ruling has profound implications for every activist, everyone who expresses opinion publicly," said Karen Wristen, a Sierra Legal Defence Fund lawyer who represented the Friends in court. "The affirmation of the democratic right of free expression in this judgment is a badly needed antidote to the growing sense of corporate control and domination of the political agenda that is perceived in the activist communities in which we work."

"It's gratifying to see the judge rule that logging is not genocide and, also, not logging is not genocide," Morrison said.

Activists have criticized the company for attempting to muzzle the Friends of the Lubicon with its attempt to secure an injunction against the picketing. Wristen, the lawyer who successfully fought that attempt, said she was surprised that the judge ruled so strongly against a powerful business interest.

"Many people were flabbergasted that there's still such a liberal judge out there," she said.

Diashowa's lawyers tried to use the labor relations laws which govern picketing to convince the judge to extend the temporary injunction against the picketers to a permanent ban. But the judge ruled that labor laws don't apply.

"The judge ruled there is no regulatory scheme which governs a consumer boycott," lawyer Wristen said.

The judge also invoked The Charter of Rights and Freedoms in his reasons for decision.

"If the great principle of freedom of expression protects a corporation . . . then is there any reason why the same principle should not protect a small group of consumers . . . from saying to fellow consumers: here is why you should not buy Diashowa's products?" the judge said.

Morrison said his company has been unfairly held hostage by the picketers. Several other resource companies have exploited the land under claim by the Lubicon Lake Cree of northwestern Alberta, he said. Diashowa may hold the rights to log in the area, but they have not yet exercised those rights, the Diashowa manager said, adding that the company has lobbied both the federal and provincial governent to settle the land claim so they can get to work.

Morrison said a subsidiary company which employs about 100 people (he was not able to tell Windspeaker how many - if any - of those employees are Aboriginal) is in danger of financial ruin if logging doesn't start soon. He said he will soon be meeting with provincial officials to once again urge action.

Immediately after the court decision was handed down, the Friends of the Lubicon stated the boycott would resume within 10 days if the company did not commit to not log until the Lubicon land rights issue has been settled. Morrison said that is not a commitment the company is willing to make.

The company will appeal the decision. Wristen said the Friends of the Lubicon may appeal the defamation decision.