Wilderness Committee awarded special costs after claiming company's suit aimed to silence critics

The Wilderness Committee is claiming a major court victory after a B.C. Supreme Court judge dismissed a defamation lawsuit filed against the environmental organization by Taseko Mines.

In a strongly-worded decision, Justice Gordon Funt issued special costs in favour of WC, which argued the claim was designed to silence critics of the company's New Prosperity open pit mine.

The committee claimed the defamation action was what is commonly known as a strategic lawsuit against public participation, or SLAPP.

The judge didn't use that term in awarding special costs but issued the company a rebuke.

"In this case, seeking punitive damages was an economic threat," Funt wrote.

"In the context of a defamation action, seeking punitive damages may serve to silence critics."

'This is a real victory'

Taseko Vice President of Corporate Affairs Brian Battison says the company is reviewing the decision and considering an appeal.

WC national policy director, Gwen Barlee, said the implications of the judgment go beyond the organization itself.

"This is a real victory for Wilderness Committee," she said.

"But it's a real victory for the right of the public to be able to speak out on matters that impact the environment."

The events which gave rise to the suit centre around two applications by Taseko to obtain federal environmental approval for an open pit copper and gold mine 125 kilometres southwest of Williams Lake.

An environmental review panel rejected the original Prosperity mine proposal in 2010, citing adverse environmental impacts.

The company submitted the second New Prosperity proposal in 2011, and the Canadian Environmental Assessment Agency invited public comment on the process for a new environmental assessment.

At that time, Wilderness Committee posted the first of five articles to the organization's website related to the New Prosperity proposal.

The first three claimed the project could "threaten tens of thousands of fish" and turn nearby Fish Lake into a "dump site for toxic tailings."

The articles directed readers to a letter-writing tool to submit comments to the environmental assessment.

'The public is neither a sheep nor a parrot'

In the wake of those articles, Taseko filed a defamation claim against Wilderness Committee claiming the environmentalists had implied that the company had a "callous disregard for the environment."

WC then posted two more articles, accusing Taseko of filing a SLAPP lawsuit — a claim the mining company said amounted to further defamation.

In his ruling, Funt found the three articles on the New Prosperity plan were not defamatory.

He said they didn't suggest Taseko was not law-abiding, and that a reasonable person would not conclude the proposal was "'an abusive second attempt' to obtain federal approval."

"The reasonable and ordinary member of the public is neither a sheep nor a parrot," Funt wrote.

"The court finds that the reasonable and ordinary member of the public would view the statements as comment as part of a freewheeling debate that engaged jobs, the environment, the economy and First Nations."

Call for anti-SLAPP legislation

In terms of the SLAPP allegation, Funt noted that B.C. had anti-SLAPP legislation in place for a brief period between April 2001 and August 2001. The law was repealed by the the province's Liberal government.

Taseko had sought punitive damages against the environmental organization, which Funt said are "intended to punish behaviour that departs markedly from ordinary standards of decency."

In 2013, the federal review panel rejected the New Prosperity proposal for a second time. Funt said the panel's findings on adverse environmental impacts were "similar to those the defendants had described."

At that point, the judge said, the company should have dropped its demand for punitive damages.

"The Court's rebuke is warranted because the basis for punitive damages straddles civil and criminal law," Funt wrote.

"Where serious allegations are made, especially in connection with free expression, such allegations should be withdrawn where, as matters unfold, it becomes apparent that a proper basis does not exist for the allegations."

As such, the judge awarded WC special costs for the costs they incurred after December 1, 2013, one month after the release of the review panel's assessment.

Barlee called on the province to reinstate anti-SLAPP legislation in order to prevent activists from having to take on the financial burden of defending themselves in court on matters of legitimate public comment.

"You feel like you have a black cloud hanging over your head," she said.

"We knew we had to persevere and see this through. We felt very strongly that the public and the wilderness committee has a right to comment on projects like this."

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Photo: Wilderness Committee representatives and supporters outside the courthouse during Taseko Mines defamation lawsuit hearings. (WC Files)