A jury in the US has hit Greenpeace with $US660 million ($A1.04 billion) in damages for defamation and other claims for the green group’s part in a campaign led by First Nations people against an oil pipeline in 2016 and 2017.
The Standing Rock protests marked a major turning point in the movement against new oil and gas infrastructure, when the Standing Rock Sioux Tribe led a campaign against the construction of the Dakota Access pipeline.
Right wing organisations and groups mobilised in response to the protests that became a flashpoint in the broader fight over climate change, with sweeping anti-protest laws rolled out across the United States.
The case against Greenpeace is the latest reaction to the protest with Dallas-based oil and gas company, Energy Transfer Partners, alleging it lost $70 billion as a result of the campaign. It pursued Greenpeace in the courts alleging defamation and incitement of criminal behaviour against the project.
The lawsuit relied upon a US-specific statute, the Racketeer Influenced and Corrupt Organizations Act (RICO), that was initially written to target the mob, but has since been used to prosecute international football federation FIFA for corrupt conduct and ExxonMobil for its role in attacking the science of climate change.
By seeking hundreds of millions in compensation against an organisation that played a minimal role in the protests, legal experts have described the litigation known as “strategic litigation against public participation”, or a “SLAPP Suit”. These are cases brought by large corporation to shut down public criticism or protest about a company’s activities.
The case has been mired in controversy from the outset with many jurors holding unfavourable views of the protests and it was reported that more than half the jurors selected to hear the case had ties to the fossil fuel industry.
Greenpeace made multiple attempts to move the hearings to another venue over concerns it would not get a fair hearing but were denied.
Following the verdict, Greenpeace International Executive Director Mads Christensen linked the decision to a broader corrosion of the right to protest in the US under the Trump administration.
“We are witnessing a disastrous return to the reckless behaviour that fuelled the climate crisis, deepened environmental racism, and put fossil fuel profits over public health and a liveable planet,” Christensen said.
“The previous Trump administration spent four years dismantling protections for clean air, water, and Indigenous sovereignty, and now along with its allies wants to finish the job by silencing protest.”
“We will not back down. We will not be silenced.”
David Mejia-Canales, a senior human rights lawyer from the Human Rights Law Centre, said the US decision is a good indicator about what may be in store for Australia.
SLAPP suits are not new in Australia, but the US lawfirm representing oil company Santos in the recent Munkara decision that ruled against the Environmental Defenders Office used an approach similar to US-style RICO litigation.
Coalition leader Peter Dutton has already pledged to defund the Environmental Defenders Office after the ruling in Munkara found its lawyers had behaved improperly, but has recently proposed to formally introduce RICO-style laws into Australia if elected.
Mejia-Canales said it was early days on the opposition leader’s proposal that seemed “a bit of a thought bubble” but said that should these laws be introduced, they had “potential to be abused”.
“In a way, the Greenpeace decision in the US is peering a little bit into our own future,” he said. “What we are seeing happening in the US today might be happening here tomorrow.”
“If these RICO type laws get introduced in Australia, they’re not doing it for the greater good or the greater purpose, it’s to stop us critiquing these massive companies whose behaviour leads to a whole lot of criticism and we should be able to do that safely.”
The Human Rights Law Centre is working to draft a bill that would introduce a set of principles for Australian courts to follow when confronted by a SLAPP litigation.
