Alberta Premier Jason Kenney. Credit: David J. Climenhaga / albertapolitics.ca

A coalition of Canadian environmental groups has thrown down the gauntlet, challenging Premier Jason Kenney to a legal duel over his serial claims his government’s so-called “Public Inquiry into Anti-Alberta Energy Campaigns” proves they spread misinformation about Alberta’s fossil fuel industry. 

Rather than using epees or sabres in mortal combat, of course, the duel is to be fought by lawyers wielding fountain pens and legal precedents. But the potential for damage to Kenney and his United Conservative Party is quite real. 

According to a report yesterday by the Canadian Press, a letter from eight environmental groups arrived in Kenney’s office on Monday setting down a clear ultimatum: Retract and apologize by Nov. 30 or we will see you in court. 

The letter, the CP said, has been signed by the Dogwood Initiative, Environmental Defence Canada, Greenpeace Canada, Raincoast Conservation Foundation, Sierra Club Canada Foundation, Sierra Club of British Columbia Foundation, West Coast Environmental Law and Research Foundation and the Western Canada Wilderness Committee.

Readers will note that this group includes at least one potential plaintiff that runs a legal shop specializing in litigating environmental causes. CP’s report implied other environmental groups may join the effort, but didn’t state so explicitly. 

Alert readers will recall that when Commissioner Steve Allen’s inquiry delivered its final report last July, a year late and a million dollars over budget, it was unable to keep Kenney’s pre-election vow it would uncover a vast conspiracy by U.S. environmental charities to oppose development of Alberta’s oilsands and “landlock” the province’s oil industry. 

Instead, Commissioner Allan said, “To be very clear, I have not found any suggestions of wrongdoing on the part of any individual or organization. No individual or organization, in my view, has done anything illegal. Indeed, they have exercised their rights of free speech.”

No “lies and disinformation” or “foreign-funded radicals” were uncovered, despite the fact the government gave Allan five time extensions and raised his budget to $3.5 million to give him  a chance to come up with something. 

You wouldn’t know it from what Kenney and other UCP politicians have been saying ever since, though. Allan could only show $38 to $59 million had been spent to oppose Alberta fossil fuel developments, not the $1.3 billion repeatedly claimed since by the UCP. 

The premier’s office responded defiantly to the legal threat. “We will of course vigorously respond in court, if and when necessary,” a spokesperson told the CP reporter. 

But behind the scenes, they have to be worried. Canadian defamation law tilts the playing field heavily against defendants. A reverse onus applies: unlike in criminal law, the defendant must prove he did not defame the plaintiff. Or, alternatively, that what he said was true, or that it was a fair comment based on true facts, or that he was somehow privileged to say it. 

Kenney could claim absolute privilege if he had only made his statements in the legislature. Alas for him, they were plastered all over social media, under his name. 

Worse, from the premier’s perspective, he will have to appear in court to make his case — and if he appears in court, he will have to allow himself to be cross-examined by the plaintiffs’ lawyers. 

The potential for interesting revelations about how the premier and his advisors crafted their messages is quite high should that ever happen. 

Environmental organizations were always at a disadvantage in a fight against Canada’s richest provincial government. 

Now, by threatening to sue Alberta’s premier for defamation for statements he made in public, the environmental groups have employed a novel tactic against the premier’s claims, not to mention the whole premise of the Allan Inquiry — call it asymmetrical legal warfare. 

Britannica.com defines asymmetrical warfare, a term much in fashion in strategic circles nowadays, as “unconventional strategies and tactics adopted by a force when the military capabilities of belligerent powers are not simply unequal but are so significantly different that they cannot make the same sorts of attacks on each other.”

This seems, in a legal forum, not a bad metaphor for what the eight environmental organizations have achieved, just with this letter. 

I doubt Kenney and the UCP expected anything like this when they set out to employ the Public Inquiries Act, the “War Room,” and the power of the state generally to attack and discredit the environmental movement. 

“War is a continuation of politics by other means,” said the great 18th and 19th Century military theorist Carl von Clausewitz

It turns out that lawsuits are too. 

Pass the popcorn! 

David J. Climenhaga

David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions with the Globe...