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Late in the afternoon of Sept. 13, 2015, a forestry industry executive dispatched an email to mayors across northern Ontario. He alleged that the office of Premier Kathleen Wynne had engaged in behind-the-scenes discussions with environmental groups such as Greenpeace Canada to help activists spread false information about his company.
The message speculated that two senior employees in the premier's office were close to the activist movement and working with environmental non-government organizations (ENGOs) against his Quebec-based multinational, Resolute Forest Products.
"They may have exchanged ideas - with the Activists and other ENGOs in planning/supporting/encouraging the Activists in the mis-information campaign against Resolute, the Ontario Industry and Ontario Crown Forest Sustainability Act - where Greenpeace is the LEAD," wrote Richard Garneau, the president and chief executive officer of Resolute Forest Products, one of the world's largest forestry companies.
The Resolute executive's email, released to Greenpeace by a municipality under freedom of information legislation and reviewed by National Observer, reveals fresh insight about a major lobbying and public relations battle between the titans of industry and the environmental movement.
At the heart of the struggle is a $7 million lawsuit launched by Resolute in 2013 against Greenpeace and two of its staff members over the environmental organization's campaign against the company's logging practices.
Resolute alleges that Greenpeace defamed it and interfered with its business by threatening its customers. Supporters of the lawsuit have used it as a battle cry against Greenpeace and other environmental groups over what they believe have been unfair attacks against industry.
The revelations from the newly-released email show how Garneau attempted to recruit mayors into the battle with Greenpeace and have them apply pressure on Wynne's office to block legislation that may have jeopardized Resolute's Ontario case against the environmental group.
Greenpeace said this email is proof that Resolute is trying to intimidate its critics and tie up their resources with a frivolous lawsuit.
Premier Wynne's government, which was also lobbied by Resolute about the same issue, declined to comment on Garneau's allegations of behind-the-scenes cooperation with environmental groups.
Resolute said its main concern was that the government's legislation would give protection to "radical groups" that would spread misinformation and put jobs at risk.
Resolute said Ontario bill could put their Greenpeace lawsuit in 'grave peril'
Garneau's email also reveals that he expressed concerns that the legislation, adopted two months later in November 2015, could damage its case against Greenpeace if it had been modified to include retroactive provisions.
The name of the proposed legislation, Bill 52, was the subject line of Garneau's email.
"We need to fight to ensure that the no retro-activity provision remains in place in the legislation," Garneau told the recipients in the September 2015 email. "Regardless of what else the Government does - the removal of this protection for our case would be outrageous, and would put our case in grave peril. We need to think about every lever available - to make sure Resolute's law suit is not legislated out of existence."
Greenpeace has argued that Resolute — which has 29 operations in Quebec and six in Ontario — filed its lawsuit in Ontario instead of the company's home province because it feared the lawsuit would be struck down under the existing Quebec law designed to prevent lawsuits from muzzling debate or free speech.
In legal and media circles, these types of cases are known as strategic lawsuits against public participation (SLAPP).
“According to (the) Resolute CEO’s own legal analysis, the company’s lawsuit against Greenpeace could have been dismissed long ago if there’d been anti-SLAPP legislation, so we shouldn’t even be where we are today," Greenpeace campaigner Shane Moffatt told National Observer in an interview.
Moffatt is a defendant who was named in the case along with former Greenpeace campaigner Richard Brooks.
When asked for comment by National Observer, Resolute's vice-president of communications, Seth Kursman, accused Greenpeace of misleading the public about the nature of the suit and noted that the environmental group has already admitted it made false statements about the company's operations when it accused the company of destroying a forest.
In March, 2017, it was reported that Greenpeace had said that their use of the term "Forest Destroyer" as part of their campaign was rhetorical rather than literal; Greenpeace, in turn, has contested any characterization of that acknowledgement as an admission of lying.
The Ontario court battle isn't the only legal case between the parties.
Greenpeace Canada faces one lawsuit filed by Resolute in Ontario and Greenpeace International — alongside Stand.earth (formerly ForestEthics) — faces one in California.
In Ontario, Superior Court Justice Bruce Fitzpatrick rejected recent Greenpeace motions to dismiss the case on the grounds that it was "oppressive or vexatious" on Sept. 11, 2017. Fitzpatrick also dismissed arguments that Resolute's second lawsuit against Greenpeace International in the United States, was "duplicative."
"That’s why it is so odd that Greenpeace keeps insisting on calling this a SLAPP matter which not only misleads the public but, as the court has affirmed, is simply flat wrong," Resolute spokesman Kursman told National Observer in an e-mail.
Executive speculated about motives in premier's office
Garneau sent his 2015 email about six months after a report by Canadaland revealed that Wynne's Ontario Liberals had deposited a $5,000 donation from Resolute, which had lobbied the government several times about the legislation.
Garneau's email was sent to mayors across northern Ontario, from Cochrane near the Quebec border, to Kenora next door to Manitoba. Other recipients included Resolute employees in Thunder Bay and a representative of the Ontario Forest Industries Association. In it, he showed skepticism about the government's intentions for the new legislation that was also being debated in the middle of the 2015 federal election campaign.
"The Bill is literally the first thing on the Fall agenda for the Government - highly unusual, given the problems the province faces," said a legal analysis at the bottom of Garneau's email.
"We heard that people in the Premier's Office seem to be concerned that documentary discovery is imminent in the Resolute/GP matter, the timing of moving the Bill to (a parliamentary) Committee and providing only limited committee hearings may/could suggest that the government is trying to get SLAPP legislation in place to assist Greenpeace, and event get it in place before the Court can order a time table for documentary and oral discoveries in our case."
Garneau also said that the legislation was proof that the Wynne government wasn't listening to mayors' concerns.
"It seems the Government is not listening to Northern Mayors [sic.] requests to be heard on this Bill," he wrote. "We were told that a number of ENGOs organizations are concerned regarding the discovery process that is about to start and possibly retained legal counsel to advise them.
"The consequence of this effort by the Government to protect the ENGOs would have a detrimental impact on the job creators and would give the activists a carte blanche to continue to intimidate and threaten customers."
Jennifer Beaudry, a spokeswoman for the premier’s office, responded to National Observer’s questions by e-mail, writing that staff in Wynne’s office “come from a diverse set of backgrounds ranging from education, healthcare and transportation to energy, the environment, forestry, journalism and more.
“Internal policy discussions are typically made in consultation with various ministries, different levels of government, the public, experts in the field and stakeholders in the industry impacted.”
Beaudry declined to comment further on the specifics of Garneau's email, including the suggestion members of the premier's office were exchanging ideas with ENGOs or hurrying the new legislation to help Greenpeace.
Bill 52, Beaudry said, was based on extensive consultation and expert study. “The goal of the legislation is to provide a faster, more efficient process to address strategic lawsuits and provide greater clarity for the parties involved.”
Ultimately, the Ontario legislation didn't include any retroactive provisions, as Resolute had requested, but it was still adopted that November, matching some of the protections against libel suits that exist in the neighbouring province of Quebec.
Despite losing a bid to have the defamation suit tossed from an Ontario court, Greenpeace says it believes the Resolute lawsuit was designed to prevent activists from protecting the boreal forest and its inhabitants.
“From our perspective, really, we view this as an abusive, multi-jurisdictional attack, and a way to manipulate the court systems as part of a sophisticated strategy to use litigation as a means to harass and silence Greenpeace,” said Shane Moffatt, a named defendant in the case and a Greenpeace forestry campaigner.
National Observer put a number of questions to Kursman, including why the company was concerned the law could be retroactive, what it meant to use “every lever available,” and why Resolute was concerned about perceived ties between the premiers office and ENGOs.
To the question of Resolute’s key concerns about Bill 52 in 2015, Kursman wrote:
“Resolute’s concern was that radical groups would use Bill 52 to shield themselves from potential legal recourse after making defamatory statements, and in particular, statements intended to harm job creators in Ontario. Resolute’s concern was that Bill 52 was unnecessary legislation that would have the effect of providing an unwarranted advantage to radical groups.”
Resolute filed its second lawsuit against Greenpeace International and Stand.earth in Georgia in 2016, also related to Greenpeace's boreal forest and caribou habitat advocacy. The case was transferred to California in 2017. The U.S. case has been reported to be a $300 million lawsuit; it turns on allegations that Greenpeace is violating anti-racketeering laws and ultimately trying to destroy Resolute.
The lawsuit falls under the Racketeer Influenced and Corrupt Organizations Act (RICO), which is also the basis for a recent lawsuit filed by the owners of the Dakota Access Pipeline against Greenpeace and other environmental organizations. Greenpeace has said, "These suits are part of a pattern of legal bullying, as desperate corporations and political hacks try to silence activists, journalists, and anyone speaking out against injustice."
Greenpeace has put a number of documents from both the Canadian and American Resolute cases online.
In August, Greenpeace argued that the Ontario lawsuit should be put on hold until there is a decision in the United States case. Alternatively, Greenpeace wanted the case dismissed altogether on grounds that Resolute was pursuing an “abusive process,” lawyer Priyanka Vittal said.
Justice Fitzpatrick rejected the argument, saying the Greenpeace motion should have been put forward years ago and that the “Canadian Greenpeace defendants have assets in Ontario,” the named defendants were Ontario residents when the suit was first filed, and Resolute does business in Ontario.
Greenpeace released the Garneau email in light of the court ruling, Moffatt said, as the correspondence offers, “a sense of how Resolute is proceeding on this lawsuit in public, which they acknowledged in private would be in great peril with this anti-SLAPP legislation.”
Whether Resolute's Ontario lawsuit would have stood up in court had it been filed after the 2015 passage of Ontario's Bill 52 is anyone's guess, however.
"I'm not in the speculation business," Resolute's Kursman wrote to National Observer, adding his comments on the legislation and court decisions to date stand as "our clear position on the matter."
Garneau, however, offered his own speculation in his email that the Ontario legislation could provide "guidance" to Greenpeace's arguments.
"Greenpeace's logic will be that even though the Resolute action may be excluded from consideration under the recently passed SLAPP legislation, it is entitled to bring its motion under common law, claiming the action is an abuse of process, and that the government's legislation gives guidance as to how important the protection of 'public interest' litigants has become," he wrote, in the legal analysis that was included in his email.
Greenpeace lawyer Vittal said "we are confident that if we were able to bring a motion under the anti-SLAPP legislation we would have had more of a fighting and fair chance of having our case dismissed."
She added that, at the very least, "the court would have explored the SLAPP nature of and public interest aspect of this case."
Greenpeace has a long history of advocating on behalf of Canada’s boreal forest, and that includes run-ins with the forestry industry in northern Ontario that date back to 2003.
“It’s really all about protecting the boreal forest in Canada, and we’re calling on Resolute to implement the highest standards of forestry, and in that context, I think it’s important to emphasize that our campaign is not about boycotts, but it’s about really ensuring long-term sustainable economies that support local communities and maintain healthy forests,” Moffatt said.
Protecting healthy forests also means safeguarding species at risk, such as caribou, he explained.
“The health of the world’s forests is a vital question of public interest. And if you think of any other area of public interest, be it health care, be it in the areas of environmental protection, be it in the area of local community concerns, you name it, it’s really important for people to be able to speak out on the issues that matter most to them,” Moffatt said.
“So, this (Ontario anti-SLAPP) legislation really is a mechanism that allows groups like ours and others to speak out, to criticize, to act as watchdogs, and is also part of the bedrock of our democracies.”
A defense of the North?
But for a handful of mayors in northern Ontario who spoke to National Observer – all recipients of the 2015 email from Garneau – the province’s anti-SLAPP legislation represents an invitation to far-away, city-dwelling critics of the forestry industry to campaign unhindered.
Well before receiving Garneau's e-mail, in 2014 and 2015, organizations representing northern municipalities were already actively sharing their concerns about the legislation with the provincial government.
Dave Canfield is the mayor of Kenora and a member of the Association of Municipalities Ontario. He worked in the forestry industry for more than three decades, and notes his father and grandfather were in the same business when horses were still used.
Today tourism is Kenora’s No. 1 industry, but its forestry ties date back more than a century and include providing the ties for Canada’s cross-country railroad. “That’s kind of our history,” Canfield said. “You go out on (those) islands and all (those) areas today, and they’re all completely fully treed because trees never stop growing, they always come back.”
Canfield doesn’t remember Garneau’s email specifically, but he remembers the northern communities’ concerns about Bill 52. Namely, he said, the law gave too much leeway for critics of the forestry industry to say whatever they wish.
“Bottom line, it has nothing to do with Resolute for us, other than the fact that they’ve got this battle going on with Greenpeace, but it’s our municipalities that have these mills in our communities,” Canfield said.
“They’re trying to hurt Resolute but it hurts us, it hurts municipalities, because if you lose a mill or you take more land base out of what’s cut then obviously it’s going to affect municipalities.”
In Kapuskasing, Mayor Alan Spacek, who is also the president of Federation of Northern Ontario Municipalities, said he didn’t remember the email, but he still views the final law as too broad a piece of legislation just to protect people from strategic lawsuits.
“We were concerned that it created a shield for groups or people to make false comments or statements, specifically about industry in northern Ontario and how they operate and they could do so without being held accountable,” Spacek said.
“We take that position in the context of a strategy by some environmental groups to certainly curtail if not shut down our economy in northern Ontario, and they do it under the guise of environmental preservation. I can tell you that we’re frankly fed up with being portrayed as an area that has no regard for the sustainability of our environment that we live in and have lived in and intend to live for generations and generations.”
Kapuskasing, population 8,300, is home to two Tembec mills, one of which — the Spruce Falls operation — was first built in the 1920s as part of a New York Times partnership that would feed the U.S. company's newspaper needs.
Hearst, Ont. Mayor Roger Sigouin, a retired construction worker, said his town of 5,200 also depends on forestry. They already respect the environment, he said, and don’t really need people from Montreal, Toronto or Vancouver coming to northern Ontario to advise them.
“In the past we used to call it a bunch of lumberjacks working in the forest. But today it’s not lumberjacks working in the forest, it’s farmers,” he said. “We harvest, we plant trees and we take care of the environment. That’s the new generation. And (for) the last 15 years, that’s the way it is, we’re a bunch of farmers working in the forest.”
Sigouin also could not speak to the specific email, but said, “We are lucky we have Resolute in place because Mr. Garneau is quite involved. … He’s a believer, he wants to have the thing done right and with respect. He’s not getting angry for nothing. … I always support him because I believe he’s an honest guy and we have to work together because if we left the special interest groups doing what they’re doing, the economy would be down in northern Ontario and even northern Quebec.”
Greenpeace and Resolute are expected to provide lists of evidence in court in December, 2017.
with files from Mike De Souza and The Canadian Press