The latest tactic is nuisance lawsuits, as a new report about South African mining communities shows. The companies that bring these baseless lawsuits—known as “Strategic lawsuits against public participation,” or SLAPPs—are not particularly concerned with winning. Rather, it’s a tactic to suppress environmental defenders’ effectiveness by intimidating them and burdening them with onerous costs of mounting a legal defense.
The South Africa report documents the targeting of community rights defenders in KwaZulu-Natal, Limpopo, Northwest, and Eastern Cape provinces between 2013-2018 for expressing opposition to mining projects. Activists reported intimidation, violence, damage to property, use of excessive force during peaceful protests, and arbitrary arrest, but also frivolous lawsuits and social media campaigns to curb their opposition to the mining projects. The companies have often sought court orders to halt or ban protests. The report was a collaborative effort between Human Rights Watch, Centre for Environmental Rights, groundWork, and Earthjustice.
In 2017, for example, the mining company Mineral Sand Resources brought a defamation suit against two attorneys from the Centre for Environmental Rights and a local activist for statements they made during a lecture at the University of Cape Town’s Summer School concerning the company’s Tormin mineral sands mine, on the west coast of South Africa. The ongoing lawsuit seeks R1,250,000 ($89,936) in damages.
These lawsuits are a growing trend globally. In the United States, in May 2016, Resolute Forest Products filed a lawsuit against Greenpeace, which had been protesting what it considered to be unsustainable logging in the Boreal forest, one of the world’s largest forests and carbon sinks. The lawsuit claimed that Greenpeace had violated the Racketeer Influenced and Corrupt Organizations Act (RICO) – the U.S. law passed to fight the mafia back in the 1970s. Ultimately and predictably, the RICO violation claim was dismissed, but only after three years of costly and time-consuming litigation. (A number of defamation claims against Greenpeace were allowed to go forward, and are still ongoing.)
More than five years ago, the same corporation alleged defamation against Greenpeace Canada, citing activists’ criticisms and filing a CAD$7 million lawsuit. The case is still ongoing.
In Australia, Adani—India’s largest coal importer with interests in a coal mine in Central Queensland—engaged a law firm that recommended adopting an aggressive legal strategy to bankrupt opponents, silence critics and pressure the government.
In France, the holding company Socfin and its Cameroonian subsidiary Socapalm, both affiliated with Bolloré Group, sued journalists and nongovernmental groups who reported on villagers’ protests against the companies’ palm oil plantations in their communities and land.
Nongovernmental groups have been mobilizing to resist these tactics. In late 2018, environmental and human rights organizations came together to form the Protect the Protest task force against these nuisance lawsuits. It offers legal and campaign support and solidarity to those involved in these cases. The task force takes the view that an attack against one group of environmental defenders is an attack against all. In South Africa, the Centre for Environmental Rights also opened an anti-SLAPP campaign in 2019 to coordinate resistance among activists against corporate bullying and to deter companies operating in the country from using litigation to silence activists and critics.
Governments are also enacting laws against these lawsuits to protect freedom of expression and public participation. Canada, Australia, and the Philippines have adopted legislation or procedural rules to protect against these cases. In the United States, many states have passed anti-SLAPP statutes. These statutes typically allow courts to promptly dismiss suits against actions involving public participation and may also allow defendants to recover attorneys’ fees and damages.
