Privacy

In Farm Transparency International Ltd & Anor v State of New South Wales [2022] HCA 23 the High Court has addressed whether ss 11 and 12 of the Surveillance Devices Act 2007 (NSW) ("the SD Act") impermissibly burdened the freedom of political communication implied by the Constitution and were thus invalid. Part 2 of the Act regulates installation, use and maintenance of surveillance devices. Section 8 prohibits the knowing installation, use and maintenance of optical surveillance devices on or within premises to record visually or to observe the carrying on of an activity if the installation, use or maintenance of the device involves trespass to the premises. Sections 11 and 12 prohibit the communication or publication of a record or report, and the possession of a record, of the carrying on of an activity obtained as a direct or indirect result of, relevantly, the use of an optical surveillance device in contravention of s 8. 

 Farm Transparency International, a not-for-profit charity, had advocated political and legal changes to animal agricultural practices and animal welfare standards regarding farming and slaughtering practices. In an echo of Lenah Game Meats it had published photographs, videos and audio-visual recordings of animal agricultural practices in New South Wales. The second plaintiff, a director of the Farm Transparency International, had obtained recordings of the farming or slaughter of animals through purported acts of trespass contrary to s 8 of the SD Act. 

 The plaintiffs argued that ss 11 and 12 of the Act impermissibly burdened their ability to publish information that showed animal cruelty practices. The special case was presented on the basis that the activities recorded, albeit cruel, were not established to be unlawful. 

 The High Court has held that ss 11 and 12 of the Act did not impermissibly burden the implied freedom in relation to communication or publication by a person of a record or report, or the possession by a person of a record, of the carrying on of a lawful activity, at least where the person was complicit in the record or report being obtained exclusively by breach of s 8. 

 The Court stated it was otherwise unnecessary to determine whether ss 11 and 12 burdened the implied freedom in other applications. With reference to the restraints which the common law, equity and statute law already impose on the liberty of political communication, ss 11 and 12 imposed an incremental burden on a person's ability to publish records of lawful activities obtained surreptitiously and by conduct which amounted to trespass. The provisions had a legitimate purpose of the protection of privacy. The statutory schemes of other Australian jurisdictions were not obvious and compelling alternatives, as they did not pursue the same purpose and were broader in application. Sections 11 and 12 achieved an adequate balance between the benefit they sought to achieve and the adverse effect on the implied freedom.

Edelman J states

What this case is not about

193 A concerned member of the public, while present at a political event on private premises without invitation, overhears a conversation between senior members of the Government. The senior members of the Government are discussing their participation in an unlawful enterprise involving wiretapping of Opposition premises, and using the Australian Taxation Office and the Australian Secret Intelligence Service to target political opponents. The concerned member of the public uses a smartphone to make an audio visual recording of the conversation and provides the recording to a journalist at a national newspaper. The journalist and the editor of the newspaper are aware that the conversation was unlawfully recorded but they want to publish the details to inform the public of these matters of enormous political importance. Even if they cannot publish the information, they want to communicate it to the Australian Federal Police. 

194 In these hypothetical circumstances, s 11 of the Surveillance Devices Act 2007 (NSW), read with s 8, prohibits the journalist or editor from publishing or communicating the information, with penalties of up to $11,000 and five years' imprisonment . Section 12 prohibits the journalist or editor from even possessing the recording. Would the application of ss 11 or 12 of the Surveillance Devices Act to such circumstances demonstrate that those provisions contravene the implied freedom of political communication? Would it make a difference if the recording also exposed the identities of Australian intelligence operatives whose lives would be threatened by any communication or publication of the information? 

195 On the one hand, in these hypothetical circumstances the Surveillance Devices Act could suppress communication in this country of issues that, in other countries, have been fundamental to government or political matters. On the other hand, an unrestrained freedom may promote an approach that asks: "Why send a reporter to put a foot in the front door when the publisher can be confident that a trespasser with an axe to grind or a profit to be made will be only too willing to break and enter through a back window?" 

196 The point of these hypothetical examples is to illustrate the vast, unexplored breadth of the plaintiffs' challenge in this special case, extending to circumstances far removed from the factual substratum of this case. The plaintiffs' challenge to ss 11 and 12 of the Surveillance Devices Act, on the basis that those sections contravene the implied freedom of political communication in the Constitution, involved no submissions on such hypothetical scenarios or anything like them. Legal issues and factual nuances related to any such hypothetical scenarios were not explored. This Court should be very wary before adjudicating on a broad basis that extends over all such hypothetical cases. 

What this case is about 

197 I gratefully adopt the description of the circumstances of this special case set out in the reasons of Kiefel CJ and Keane J. It is important to emphasise three features of the special case to demonstrate the issues that properly arise for decision. 

198 First, the facts of the special case are concerned only with the operation of ss 11 and 12 of the Surveillance Devices Act based upon a contravention of s 8. The facts of the special case do not raise any issue concerning the operation of ss 11 and 12 based upon a contravention of ss 7, 9 or 10, which prohibit the installation, use and maintenance of a listening device, a tracking device, or a data surveillance device. 

199 The second feature of the facts of the special case is that they concern only the communication or publication of unlawfully obtained information by trespassers and those complicit in the trespass under s 8 of the Surveillance Devices Act. The facts do not concern third party recipients of information such as journalists or editors, or any other third parties who receive the information with or without knowledge of the unlawful manner in which it was obtained. In that respect, the circumstances of this case are very different from those in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd , where it was not alleged that the appellant broadcaster "was implicated in or privy to the trespasses upon the premises" or "knowing[ly] participat[ed] ... in what is alleged to have been the relevant wrongdoing" . 

200 The goals of the first plaintiff, Farm Transparency International Ltd, and the second plaintiff, Mr Delforce, as a director of the first plaintiff, include educating the public about cruelty to non human animals and advocating for law reform, including by providing evidence and reporting on farming practices. Mr Delforce has dedicated his life to "working towards alleviating the suffering of animals through public education and efforts to change the law". He has been a director of Farm Transparency since its incorporation and an officer of its predecessor corporation since 2014. 

201 Mr Delforce gives numerous examples of circumstances in which Farm Transparency or its predecessor corporation of which he was an officer have published audio visual footage of animal suffering. He speaks about images and footage from 21 piggeries, a turkey farm, a duck farm, a turkey abattoir, a cage egg facility, two "farm" eggs facilities, and two "pet food" facilities. In every instance, Mr Delforce was the person who took the footage or was complicit in, or aware of, the process of taking the footage or the installing of cameras on the premises. 

202 On each of the numerous occasions when Mr Delforce published his recordings of non human animal cruelty to which he refers in his affidavit, Mr Delforce used Farm Transparency or its predecessor corporation, and their websites, as a vehicle to publish the photographs and audio visual footage of non human animal cruelty. Farm Transparency wishes to continue to publish information, including video recordings, that show non human animal cruelty practices without the burden imposed by the Surveillance Devices Act. 

203 To the extent that the special case discloses any trespasses by Mr Delforce in contravention of s 8 of the Surveillance Devices Act, the natural inference is that those trespasses occurred as part of a common design, or sharing a common purpose, with Farm Transparency, of which he has always been a director, in order to obtain recordings of cruelty to non human animals for publication by Farm Transparency. Even if Mr Delforce's actions were not, and will not be, undertaken as an agent of Farm Transparency or able to give rise to joint liability based on a common purpose , a possible inference from the material in the special case is that Farm Transparency is, or will likely be, an accessory before the fact and potentially liable for an offence under s 8. At the least, in the circumstances of past contraventions described by Mr Delforce, Farm Transparency or its predecessor corporation would be, to use the language of Gleeson CJ, "complicit" in any trespass under s 8 . 

204 The third feature of the facts of the special case is that there has been no finding of any court, nor was there any submission either in writing or orally, that established the unlawfulness of any activity depicted in a record that was obtained or that might be obtained. No law was identified in submissions by the plaintiffs that might potentially have made such activities unlawful and the State of New South Wales thus had no opportunity to address the nature or scope of any unlawful activity on private property that might be disclosed by the plaintiffs. 

205 Mr Delforce has been involved in many incidents of covert recording of farming activities involving considerable suffering of non human animals. Some images from such recordings were exhibited to the affidavit of Mr Delforce, which was part of the special case. They reveal shocking cruelty to non human animals. They may very well have been unlawful as well as immoral. But even apart from the lack of submissions about the basis for any illegality, the special case does not assert that any of the recorded activities had been found to be unlawful. 

206 Many of the recordings made by Mr Delforce were not referred to the police or to the Royal Society for the Prevention of Cruelty to Animals (RSPCA) because he considered that the practices, whilst cruel, were not illegal. On the occasions that Mr Delforce did refer recordings to the police or to the RSPCA, there was no successful prosecution. Therefore, on the facts stated and in light of the manner in which the argument developed, this special case was presented on the basis that the activities, albeit undeniably cruel, were not established to be unlawful. 

207 The circumstances of the special case therefore raise the question of whether the implied freedom of political communication is contravened by the operation of ss 8, 11 and 12 of the Surveillance Devices Act in prohibiting trespassers and those complicit in a trespass from publishing or communicating information exclusively obtained from that trespass and which does not reveal unlawful conduct. The answer is that ss 8, 11 and 12 of the Surveillance Devices Act are not invalid in their application to such general circumstances

Edelman J subsequently states

Extending breach of confidence? 

233 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd , this Court considered whether principles concerning breach of confidence extended to the publication of a film showing cruelty to possums which had been obtained "by unlawful entry and secret surveillance" although the activities recorded were not "secret", and nor was a relationship of confidence "imposed upon people who might see the operations". The different reasons given by members of this Court, Callinan J dissenting, for allowing the appeal and refusing relief illustrate the different views concerning the boundaries of the action for breach of confidence. 

234 The most restrictive approach, at least in relation to individuals, was taken by Gleeson CJ, who considered that the protection afforded by the law concerning breach of confidence did not extend to every activity done on private property. His Honour said that the activities had been conducted on private property, but had not been shown to be private in any other sense . Gleeson CJ said that the foundation of much of the privacy protection afforded by the action for breach of confidence is "human dignity" . Although Gleeson CJ did not express a final conclusion, he nevertheless suggested that the action for breach of confidence might, in some circumstances, protect the privacy of a corporation . 

235 A potentially broader approach to breach of confidence was taken by Gummow and Hayne JJ, with whom Gaudron J relevantly agreed , although their approach was narrower in respect of the persons entitled to rely on a breach of confidence. Their Honours referred to circumstances of breach of confidence as potentially including "the disclosure of private facts and unreasonable intrusion upon seclusion" but denied the respondent the ability to rely upon those circumstances because it was a corporation rather than a natural person . 

236 Kirby J took an even less restrictive approach than Gummow and Hayne JJ (Gaudron J agreeing), considering that the disclosure of information could be restrained simply on the basis that it was obtained "illegally, tortiously, surreptitiously or otherwise improperly" . His Honour only allowed the appeal on the basis that an injunction should have been refused as a matter of discretion . Callinan J took the least restrictive approach and would have upheld the restraint and dismissed the appeal . 

237 At its narrowest, the present state of the law concerning the third category of breach of confidence is, therefore, that it can extend to all private information where human dignity is concerned. In that category, it cannot be conclusively said that it extends to corporations or that human dignity would be compromised by the communication of any private information. 

238 There are other boundaries of the law concerning the obligation of confidence that are also unsettled. For instance, there remains dispute about the extent to which the obligation is imposed upon persons who are not primarily liable for a breach of confidence and do not know that the information is confidential. Some cases suggest that the obligation extends to a recipient who could reasonably have known that the information was confidential and potentially even to "innocent" third parties , arguably creating a duty in both cases to consider whether information is confidential before communicating or publishing it. Other decisions appear to deny this, other than in circumstances of wilful blindness or where a person has been told that information is in fact confidential . And others have expressly, and carefully, avoided the controversy of "the extent to which actual knowledge is necessary" beyond circumstances of wilful blindness . The answer to this question may also depend upon the category of breach of confidence that is involved, particularly because an objective assumption of responsibility creates duties independently of subjective knowledge . 

239 The boundaries of the public interest defence to breach of confidence are also not yet settled. One aspect of that defence is sometimes said to be the principle that a person cannot be made "the confidant of a crime or a fraud" . As Gibbs CJ observed in A v Hayden , that defence has been expanded in England to include misconduct generally. However, his Honour did not decide whether that expansion should be embraced in Australia. It has thus been said that the extent to which the defence applies in Australia "is not clear" . To the extent that the defence operates, it may be doubted whether it permits disclosure to the world at large, or to a narrower audience – for example, relevant law enforcement authorities . Even the foundations of the defence, based upon a case that has been reported in significantly different terms , have been questioned . 

240 It is unnecessary to resolve these issues in this case because the application of the implied freedom of political communication in relation to the Surveillance Devices Act can be resolved on the basis of the existing boundaries of the equitable obligations of confidence. The equitable doctrine must develop consistently with the implied constitutional freedom of political communication . But its present boundaries are entirely consistent with that constitutional freedom. In particular, representative democracy does not provide a licence to disregard express or implied undertakings of confidence or to reveal trade or other secrets. Indeed, representative democracy can be enhanced by the insistence upon undertakings of confidence on matters that relate to the core of political decision making such as rules concerning the secrecy of recent Cabinet discussion. 

241 It is no more necessary for representative democracy to require, in the name of political communication, a liberty to impair a person's dignity by the communication of private and personal information concerning lawful activities that might be characterised in the broad sense as political, than it is for the law to provide a liberty to assault a person or to trespass on a person's property in order to communicate about matters that could broadly be described as political.

 Gageler J in dissent states 

66 Having noted those features of the legislative scheme at the outset, I am able to come immediately to the constitutional issue at the heart of the matter. The issue is whether it is compatible with the maintenance of the constitutionally prescribed system of government, for the purpose of protecting the privacy of activities on private property, to impose blanket prohibitions on the possession and communication of a visual record known to have been created as a result of a trespass to private property and not otherwise in the public domain. 

67 Implicit in that framing of the issue is rejection of any notion that the purpose of disincentivising contravention of a criminal prohibition can alone be a purpose capable of justifying a law that imposes a burden on freedom of political communication . To accept such a notion would be to conflate the purpose of a law – the "public interest sought to be protected and enhanced" by the law – with the means adopted by the law to achieve that purpose. The consequence would be to allow a legislative scheme to be designed to bootstrap itself into constitutional validity. 

68 The criminal prohibitions in ss 11 and 12 on communication and possession of a visual record, and the criminal prohibition in s 8 of the means of creation of a visual record, are complementary components of a single legislative scheme. By that legislative scheme, the privacy of activities on private property is sought to be protected. To the extent that the legislative scheme prohibits communication or possession of an extant visual record of the carrying on of an activity that is of governmental or political concern, it burdens freedom of political communication. That burden falls to be justified, if at all, by reference to the underlying legislative purpose of protecting the privacy of activities on private property. 

69 For reasons to be developed, I consider that the burden on freedom of political communication imposed by the blanket criminal prohibitions in ss 11 and 12, in their application to a visual record that has resulted from the use of an optical surveillance device in contravention of s 8, is unjustified. The result is that I consider each of the prohibitions, in that application, to infringe the constitutional guarantee of freedom of political communication. 

The significance of Lange 

70 The interest of an owner or occupier in the privacy of activities that occur on private property has long been an interest which the law has afforded a measure of protection . 

71 Pursuit of the protection of that interest is doubtless compatible with the constitutionally prescribed system of government which the constitutional guarantee of freedom of political communication exists to protect. But even where it can be accepted without question that a law burdening freedom of political communication does so in pursuit of a purpose that is compatible with the constitutionally prescribed system of government, it cannot simply be accepted without question that the same law pursues that purpose in a manner that is compatible with the constitutionally prescribed system. 

72 To the contrary, as I have explained in the past :

"The implied constitutional freedom is a constraint on legislative design. It limits legislative options. The consequence of the implied constitutional freedom is that there are some legitimate ends which cannot be pursued by some means, the result of which in some circumstances is that some ends will not be able to be pursued to the same extent as they might have been pursued absent the implied constitutional freedom. Means which come at too great a cost to the system of representative and responsible government established by the Constitution must be abandoned or refined. Means which are overbroad may need to be narrowed." 

73 Appreciating the impact of the implied constitutional freedom on the measure of protection that can be afforded by law to the privacy of activities that occur on private property is assisted by examining what Lange v Australian Broadcasting Corporation held to be the impact of the implied constitutional freedom on the measure of protection that can be afforded by law to personal reputation. For the application of constitutional principle to be consistent, the impacts must be coherent. 

74 In Lange, the implied constitutional freedom was held to necessitate adjustment of the balance until then struck in the law of defamation between protection of personal reputation and freedom of speech. The adjustment involved extending the common law defence of qualified privilege to recognise that "each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia" . 

75 The precept of Lange is that freedom of communication to and between electors, and between electors and elected legislative and executive representatives, on matters of government and politics is an "indispensable incident" of the system of representative and responsible government prescribed by the Constitution . Within the scope of the freedom is communication of disagreeable or objectionable information from few to many by way of "agitation" for legislative and political change . Explained in the language of Kirby J : "The form of government created by the Constitution is not confined to debates about popular or congenial topics, reflecting majority or party wisdom. Experience teaches that such topics change over time. In part, they do so because of general discussion in the mass media." 

76 Lange's insight, first elucidated in Australian Capital Television Pty Ltd v The Commonwealth and Nationwide News Pty Ltd v Wills , is that the majoritarian principle, upon which our system of representative and responsible government relies for its outworking, carries an inherent risk of legislative or executive impairment of "the capacity of, or opportunity for, the Australian people to form the political judgments required for the exercise of their constitutional functions" . An aspect of that systemic risk is that "political communications unhelpful or inconvenient or uninteresting to a current majority might be unduly impeded" . 

77 The implied freedom of political communication is a structural implication serving to safeguard the efficacy of the system against realisation of that systemic risk . Lange's demand for legislative justification, and correlative judicial scrutiny, of a legislative or executive burden on freedom of political communication is attuned to its mitigation. 

78 Lange postulates, and Brown v Tasmania illustrates, that the balancing of the freedom to communicate on matters of government and politics against the protection of other legitimate societal interests is a matter for legislatures to "determine" but for courts to "supervise" . Under our system of representative and responsible government, as under some other similar systems, "the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny": "[w]hat is of utmost relevance is the resulting legislative choice" . Legislative judgment about how a particular balance ought to be struck must be accorded respect. "But, in the ultimate analysis, it is for the [c]ourt to determine whether the constitutional guarantee has been infringed" . 

The prohibitions infringe the constitutional guarantee 

79 It may well be legitimate to seek to dry up an illegal market for stolen goods by prohibiting the possession and sale of goods known to have been obtained by burglary. However, the market sought to be dried up by the prohibitions in this case is a constitutionally protected "marketplace of ideas" . That marketplace is foundational to a "society organised under and controlled by law" . Within the marketplace of ideas, factual information bearing on matters of political and governmental concern known to its possessor and potential communicator to be true is all too often in short supply. 

80 The prohibitions on communication and possession in question remove one source of that supply of true factual information having the potential to bear on matters of political and governmental concern. The source removed – visual imagery – is of its nature not only factual but peculiarly communicative. In Levy v Victoria, McHugh J adopted the submission of counsel that "[t]he impact of television depiction of the actual perpetration of cruelty, whether to humans or to other living creatures, has a dramatic impact that is totally different [from] saying, 'This is not a good idea'" . The internet and the smartphone have only reinforced the persuasive power of visual imagery. 

81 Not only do the blanket prohibitions on possession and communication of a visual record known to have been created as a result of a trespass to private property remove a source of peculiarly communicative true factual information capable of bearing on matters of political and governmental concern. They do so indiscriminately – regardless of the gravity of the information and of the extent to which electors, their elected representatives and executive officers may have an interest in receiving it. 

82 Having regard to those considerations, I am of the opinion that the prohibitions impose a greater burden on political communication than can in all circumstances be justified as appropriate and adapted to the protection of the privacy of activities on private property. The prohibitions are too blunt; their price is too high; the cost they impose on the communication and receipt of information about matters of political and governmental concern is more than could be warranted for every activity which might be shown by a visual record to have occurred on private property. Expressed in terminology extolled in and since McCloy v New South Wales, the prohibitions are not "adequate in [their] balance" . 

83 That the qualitative extent of the burden on communication and receipt of information about matters of political and governmental concern is more than can be justified for the purpose of protecting the privacy of activities on private property is sufficiently illustrated by Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd . There the recorded facts were as follows : "Lenah Game Meats Pty Ltd conducted the business of processing game meat, including possum meat which it sold for export. It killed and processed Tasmanian brush tail possums at licensed abattoirs. An unidentified person or persons broke and entered the abattoirs and, by boring holes in the roof, installed hidden video cameras. Those cameras recorded the possum-killing operations without the consent or knowledge of Lenah Game Meats. The cameras and video recording were retrieved by an unidentified person or persons and the recording was supplied to Animal Liberation Ltd (Animal Liberation), which, in turn, supplied the recording or part of it, to the Australian Broadcasting Corporation (the ABC) for television broadcasting." 

84 The position of the ABC was described by Gleeson CJ : "The [ABC] is in the business of broadcasting. ... [I]ts position is not materially different from a commercial broadcaster with whom it competes. In the ordinary course of its business it publishes information obtained from many sources, thereby contributing to the flow of information available to the public. The sources from which that information may come, directly or indirectly, cover a wide range of behaviour; some of it impeccable, some of it reprehensible, and all intermediate degrees. If the [ABC], without itself being complicit in impropriety or illegality, obtains information which it regards as newsworthy, informative, or entertaining, why should it not publish?" 

85 The question was rhetorical. The holding in Lenah Game Meats was that there existed no basis in law upon which the ABC could be enjoined from publishing the information it had received in the form of the video recording. That was so notwithstanding that the ABC "probably realised, when it received the [video recording], that it had been made in a clandestine manner" and "certainly knew that by the time the application for an injunction was heard" . 

86 The ABC in fact incorporated segments of the video recording into a story which it broadcast on the "7.30 Report" on 4 May 1999. As described in the narrative statement of facts in the appellant's submissions in Lenah Game Meats, that story was concerned with: . the harvesting, slaughter and export of Australia's wildlife; . the adequacy and possible reform of the Tasmanian Animal Welfare Code of Practice for Processing Brush Tail Possum which covered the capture, handling, transport and slaughter of possums in that State; . the concerns of animal liberation groups about the treatment of possums, the holding and slaughtering process of such animals, the adequacy of the Tasmanian Animal Welfare Code of Practice for Processing Brush Tail Possum and the health and safety of possum meat for consumption; . inspections by State and Commonwealth authorities of the possum slaughtering process at Lenah Game Meats' abattoirs; . the role of the Tasmanian Department of Agriculture and Fisheries and Department of Health in regulating the export of wildlife; and . the views of the Tasmanian Department of Primary Industry and the Animal Welfare Advisory Committee concerning Lenah Game Meats' activities. 

87 The slaughter of animals for export is within the scope of the legislative power of the Commonwealth Parliament . The subject-matter was regulated under Commonwealth legislation at the time of the "7.30 Report" broadcast sought unsuccessfully to be enjoined in Lenah Game Meats, had been so regulated since at least 1935 , and remains so regulated . 

88 By force of the prohibitions now in question, the ABC or any other broadcaster, as well as Farm Transparency or any other publisher of video content, would now be prohibited from publishing or even possessing a similar video recording supplied to it in similar circumstances if it knew, whether by inference from the subject-matter of the recording or other information, that the recording was created as a result of trespass to an abattoir in New South Wales. That would be so irrespective of the significance of the subject-matter of the recording to government and political matters. Therein can be seen "the incremental effect of [the prohibitions] on the real-world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice" . 

89 The special case alludes to other instances in recent history of video recordings – apparently showing animal cruelty and apparently created as a result of a trespass to private property – having come into the possession of a broadcaster, having been published by the broadcaster, and having stimulated national debate leading to executive inquiry and legislative change. There is no need to set out the details of those instances. They are notorious. 

90 This is not an occasion for prognostication about how the common law rules and equitable principles examined in Lenah Game Meats and found not to impede publication of the video recording in that case might develop in the future in Australia. Clear from Lange , emphasised by Gleeson CJ in Lenah Game Meats itself , and recognised in contemporary academic writings on the potential development of a tort of privacy in Australia , is that any development would need itself to follow a path consistent with the constitutional guarantee of freedom of political communication. That is so for development of the substantive law demarcating those activities that will and those that will not be afforded some measure of protection against public scrutiny at common law or in equity . That must also be so for development of the adjectival law identifying considerations that are appropriate to be weighed in determining whether or not publication or possession will be the subject of discretionary relief . What is inconceivable is that any rule of common law or principle of equity would ever develop to the extent of prescribing and enforcing a blanket prohibition on communication or possession of any visual record known to have been created as a result of a trespass to private property irrespective of the nature of the activities revealed and irrespective of the systemic importance of electors, legislators and officers of the executive becoming aware of those activities. 

91 The point is not that conformity with the constitutional guarantee of freedom of political communication means that political communication must always trump privacy. The point is that conformity with the constitutional guarantee means that privacy cannot always trump political communication. 

92 Tellingly, legislative regimes which impose prohibitions on publication of visual records in order to protect the privacy of activities on private property in Victoria , Western Australia and the Northern Territory all contain exceptions for publications judicially determined to be in the public interest. The case-by-case judicial determination of the public interest imported into those broadly comparable State and Territory legislative regimes by those exceptions operates relevantly to ensure that the public interest in protecting privacy does not prevail in circumstances where protection by prohibiting publication of an extant record of activities that occurred on private property would be disproportionate to the public interest in electors and their elected representatives becoming aware of those activities .

OPCA notarisation and magic beans

In Royal Bank of Canada v Anderson, 2022 ABQB 354 Associate Chief Justice J.D. Rooke considers sovereign citizen (OPCA) claims and the responsibility of legal practitioners.

The judgment states

[1] On April 26, 2022, Sandra Ann Anderson [Ms. Anderson] was declared a vexatious litigant and made subject to court access gatekeeping pursuant to Judicature Act, RSA 2000, c J-2 ss 23-23.1 in a decision reported as Canada (Attorney General) v Anderson, 2022 ABQB 310 [Canada v Anderson #1]. Ms. Anderson has a dismal litigation record of repeatedly employing Organized Pseudolegal Commercial Argument [OPCA] concepts: Meads v Meads, 2012 ABQB 571. OPCA schemes are pseudolaw, rules that sound like law, and use legal language, but are false, “not-law”. Pseudolaw is typically applied to evade income tax, as a “get out of jail free card”, to attack government and institutional actors, or as a way to purportedly nullify debts and get “money for nothing”: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 178 [Unrau #2]. No court in any jurisdiction has accepted the stereotypic conspiratorial not-law concepts that make up pseudolaw. Employing pseudolaw is always an abuse of court processes, and warrants immediate court response: Unrau #2 at paras 180, 670-671. 

[2] On May 10, 2022, my office received by email three documents that seek that the Court grant Ms. Anderson permission – “leave” – to file a document titled: “COUNTER CLAIM FOR EQUITABLE DUE PROCESS AND ORDER FOR INJUCTION” [sic] [Counterclaim]. In these materials, Ms. Anderson self-identifies as “Sandra-Ann: Anderson”, which is in breach of the Court’s Canada v Anderson #1 Order. As will become apparent, this is only one example of Ms. Anderson’s repeated refusal to follow court directions and the Alberta Rules of Court, Alta Reg 124/2010. 

[3] In her numerous appearances before the Alberta Court of Queen’s Bench, Ms. Anderson calls herself many things, for example:

• Sandra-Ann: Anderson 

• i: woman: Sandra of the Anderson family 

• Sandra of the Anderson family, 

• Sandra Ann Anderson, Executor of the SANDRA ANN ANDERSON ESTATE 

• SANDRA ANDERSON, WOMAN SANDRA OF THE ANDERSON FAMILY 

[4] These variations of Ms. Anderson’s name are meaningless in law, but, purportedly, serve to designate that, in this instance Ms. Anderson is self-identifying as a “flesh and blood” human being. Other times, Ms. Anderson refers to SANDRA ANN ANDERSON. This is the “Strawman”, an illusionary shadow-self of Ms. Anderson that is purportedly an immaterial legal thing, that was (allegedly) created by Ms. Anderson’s birth documentation, then chained to her as part of a nefarious government scheme. Persons who sell and teach pseudolaw claim that Strawman Theory allows one to operate in two aspects, and take all the benefits as Sandra-Ann: Anderson, while assigning any obligations and penalties to SANDRA ANN ANDERSON, which Ms. Anderson has called an “Estate”, a “Trust”, or a “Corporation”. Academic commentary has also characterized Strawman Theory as a legal possession and exorcism ritual, that pretends to be law: Donald J Netolitzky, “Organized Pseudolegal Commercial Arguments as Magic and Ceremony” (2018) 55:4 Alta L Rev 1045 at 1069-1078. Ms. Anderson uses her Strawwoman SANDRA ANN ANDERSON as a kind of sock puppet, when that is convenient for her. 

[5] Like many other pseudolaw concepts engaged by Ms. Anderson, Strawman Theory is nonsense, and rejected universally by courts, worldwide. In Canada, Strawman Theory has been rejected on so many occasions, and is so notoriously false, that simply employing Strawman Theory motifs creates a presumption that the pseudolaw litigant does so for abusive, ulterior motives: Fiander v Mills, 2015 NLCA 31 at paras 37-40; Rothweiler v Payette, 2018 ABQB 288 at paras 6-21; Unrau #2 at para 180. Ms. Anderson is perfectly well aware of this, because she has been repeatedly instructed that Strawman Theory is false, and that her using Strawman Theory is an abuse of the Court and opposing parties. Ms. Anderson was ordered in Canada v Anderson #1 that she only communicate with the Court via her legal name, “Sandra Ann Anderson”, and not alternative name structures and/or pseudonyms. That was to stop her from using Strawman Theory, which promises her no benefits at all, and that just wastes court and litigant time. As will be very apparent, Ms. Anderson has paid no attention to that Order. 

[6] Ms. Anderson has previously employed pseudolaw in a wide variety of contexts, that are reviewed in Anderson (Re), 2022 ABQB 35. These include Ms. Anderson:

1. employing a false named and illusory actor used for deception – a “sock puppet” - SANDRA ANDERSON TRUST” to frustrate resolution of the estate of her deceased father; 

2. retaliating for her being fined and criminal prosecuted for repeatedly engaging in international horse smuggling, where Ms. Anderson purported to commandeer the Alberta Court of Queen’s Bench to conduct vigilante proceedings in the make-believe do-it-yourself “Anderson Court”, with Ms. Anderson as the (purported) prosecutor and judge; 

3. purporting to “get out of jail free” and terminate criminal proceedings in the Provincial Court of Alberta, that include charges for operating a motor vehicle while impaired and having a prohibited blood alcohol concentration, forging documents, the horse smuggling activities, and transporting fireworks on a passenger aircraft; 

4. forging court subpoenas for government and Crown officials to appear at her criminal proceedings, purportedly to expose secret government pseudolaw conspiracies; and 

5. employing a fake, “private sovran attorney general”, Daniel Terry Lozinik [Mr. Lozinik], to interfere with her criminal prosecutions.

[7] Ms. Anderson is now also actively teaching pseudolaw concepts as a “guru”, in collaboration with Mr. Lozinik: Canada v Anderson #1 at para 18. She and Mr. Lozinik have been expelled, on an OPCA basis, from Ms. Anderson’s Provincial Court of Alberta proceedings for disrupting those hearings. 

[8] Ms. Anderson is now seeking to launch a counterclaim in a foreclosure matter. Briefly, on June 16, 2021, Royal Bank of Canada [RBC] commenced a foreclosure proceeding in relation to a Calgary condominium owned by Ms. Anderson. Ms. Anderson owes $162,206.06 as of November 9, 2021. Default judgment in that amount was ordered in favour of RBC on November 10, 2021 by Master Farrington. The condominium has been listed for judicial sale. As will subsequently become apparent, Ms. Anderson has adopted a number of legally false and abusive pseudolaw strategies to (purportedly) defeat the foreclosure and “get a condo for free”. 

[9] Ms. Anderson’s proposed Counterclaim is reproduced below as Appendix “A”. In brief, as I understand this document, Ms. Anderson says:

1. sale of the condominium should be blocked; 

2. any obligations alleged to be on Ms. Anderson, instead belong to the SANDRA ANN ANDERSON ESTATE Strawwoman, and Ms. Anderson’s Strawwoman was never factually served with the foreclosure documents; 

3. Ms. Anderson owes nothing, because there never was any loan to her, and, if there was any debt, that has been paid by a Security and Exchange Commission “filing prospectus”; 

4. anyone who interferes with Ms. Anderson’s claimed rights is, instead responsible for her Strawwoman and its debts; 

5. I am falsely claimed to be a fiduciary to Ms. Anderson, and her “administrative trustee” and “trustee and settlement officer”; 

6. myself and Alberta Minister of Justice and Solicitor General Tyler Shandro are allegedly personally responsible for Ms. Anderson’s debts and operation of Ms. Anderson’s imaginary Strawwoman “birth bond” bank account, which is, allegedly, held by the US Securities Exchange Commission; and 

7. everything in Ms. Anderson’s affidavit is automatically true, unless disproved.

[10] Ms. Anderson also supplied a May 10, 2022 “Affidavit in Support of Counter Claim and Order for Injunction”, affirmed by “Sandra-Ann: Anderson”. This document concludes that “An unrebutted affidavit stands as the truth in commerce” and “An unrebutted affidavit becomes the judgment in Commerce”. I will subsequently discuss in more detail the content of this 90-page document. ...       

Analysis 

[18] While Ms. Anderson has completed the formal requirements for a leave to file application, her proposed Counterclaim is obviously not a valid filing. Ms. Anderson has not established reasonable grounds for her proposed litigation. I reject that candidate filing on multiple bases. 

A. Abusive OPCA Litigation 

[19] First, the proposed Counterclaim is an obvious abusive OPCA filing, based on thoroughly and repeatedly discounted and rejected pseudolaw concepts. I conclude, beyond any reasonable doubt, that Ms. Anderson is perfectly well aware this Court, and all other Canadian courts, do not accept OPCA concepts as valid. Ms. Anderson has been repeatedly informed, for example, that not only does Strawman Theory have no legal validity, but that if Ms. Anderson based her claims on Strawman Theory, that the Court would conclude that Ms. Anderson had done so for illegal abusive purposes. And Ms. Anderson ignores that, over and over, in her civil and criminal proceedings, and interactions with private and state actors. 

[20] Ms. Anderson has been repeatedly directed to actual legal resources and case law, so that she may understand and appreciate the true scope of her legal rights. Ms. Anderson has, in the past, retained actual accredited lawyers, so she has had full access to legal advice and information from sources within a privileged context. That, too, has made no difference to Ms. Anderson’s escalating litigation misconduct. 

[21] In the interest of judicial economy, I will not document and rebut every legal error and instance of pseudolegal abuse of the Court and RBC in Ms. Anderson’s materials, but I will highlight a number of claims because these are either: 1) novel and/or undocumented Canadian OPCA schemes, or 2) are relevant in a broader sense to Ms. Anderson’s foreclosure process, and, therefore, may be considered in awarding costs, or imposing penalties, on Ms. Anderson. Furthermore, at least some of what Ms. Anderson has supplied the Court has apparently criminal aspects. 

1. Strawman Theory 

[22] The fact that Ms. Anderson has framed her proposed litigation via Strawman Theory is, in itself, sufficient basis to reject the proposed Counterclaim as an abuse of the Court. As will become obvious as I review Ms. Anderson’s materials, both the proposed Counterclaim and Ms. Anderson’s Affidavit are rife with Strawman Theory concepts and strategies. Each is a basis to reject her proposed filing. 

2. Defective Contract Formalities 

[23] Ms. Anderson’s Affidavit provides a roughly chronological review of OPCA strategies she has employed in her attempts to get a free condo. It appears her first strategy was to demand mortgage documentation, in particular with “wet ink signatures”. The idea that a debt may only be established by an original “wet ink signature” physical contract is a common OPCA motif deployed as a basis alleged to invalidate debt contracts, .... If this rule were, in fact, true, then no contract formed via electronic means would ever be enforceable. 

[24] The irony is that, in making “wet ink signature” arguments and Ms. Anderson’s Counterclaim being purportedly “... FOR EQUITABLE DUE PROCESS ...”, Ms. Anderson gets equity backwards. If, in fact, her “wet ink signature” argument was effective, then, equitably, it would be RBC who has been scammed and Ms. Anderson who received an enrichment without a juristic reason: Garland v Consumers’ Gas Co, 2004 SCC 25. Equity, in this context, would act on behalf of RBC, not Ms. Anderson. 

3. WeRe Bank Economic Impact Payment Voucher 

[25] Next, Ms. Anderson purports to have paid off her debt with a bizarre “ECONOMIC IMPACT PAYMENT VOUCHER”, purportedly issued by the “WeRe Bank of England”. This document bears what are identified as the signatures of: • Prime Minister Justin Trudeau, • the current federal Minister of Health, Jean-Yves Duclos, who at that time was the President of the Treasury Board of Canada, and • Sandra Anderson, “Beneficiary”. The “Voucher” is reproduced in Appendix “B”, below. This outlandish document purports that a $158,574.39 payment is made on the basis of the US Coronavirus Aid, Relief, and Economic Security Act of 2020. 

[26] This Court is familiar with the WeRe Bank. This purported financial institution is based in the UK, and operated by a person who self-identifies as “Peter of England”. In 2015 the WeRe Bank and Peter of England sold gullible and greedy persons packets of “WeRe Cheques”, documents that at a first glance appear to be bank cheques drawn from an institution called the WeRe Bank. However, WeRe Cheques were useless, since Peter of England only promised to pay cheque holders in a fictitious currency, “Re”, “units of space and time”. The WeRe Bank scheme is reviewed in detail in Servus Credit Union Ltd v Parlee, 2015 ABQB 700, where Master Schlosser concluded the WeRe Bank and WeRe Cheques were worthless and fraud: The first basic reason why the WeRe Cheque was not a payment is simply because WeRe Bank is a fraud. It is not a regulated UK bank. The WeRe Bank never promises to make payments to recipients of WeRe Cheques. It only transfers “Re” energy units. It might as well promise to transfer magic beans. Imaginary energy units are not a form of currency and they do not pay debts. The WeRe Bank’s customers in Servus Credit Union Ltd v Parlee were farmers who lost their property as a consequence of this “money for nothing” pseudolaw scam. 

[27] It appears, in a sense, that Peter of England’s schemes have matured somewhat. He at least now claims to be transferring actual money. As for how a fictitious bank in the UK would transfer money from US COVID-relief programs, via Prime Minister Trudeau, Ms. Anderson’s WeRe Bank “Voucher” is accompanied by another WeRe Bank document that appears to be instructions from Peter of England on the operation of this scheme. That is reproduced below in Appendix “C”. I will not attempt to summarize this “money for nothing” scheme, because, as Peter of England himself explains, its operation is beyond the comprehension of legally trained persons: Your legal departments are totally unprepared and unsuited to understand the Vouchers intricacy or provide advice upon handling it: they are poorly educated and absolutely unconscious of the methods of PUBLIC versus private side money generation/creation systems, and in the main ignorantly stupid. 

[28] I conclude, on a balance of probabilities, that Ms. Anderson was perfectly well aware that the WeRe Bank documents had no legal value, and that she had not paid her mortgage via the “Voucher”. I also find in fact and law that the WeRe Bank “Voucher” was a fraudulent document, falsely purporting to be affiliated with the Canadian government, and that the signatures of Prime Minister Trudeau and Minister Duclos on the “Voucher” are forgeries. I, again, find on a balance of probabilities that Ms. Anderson knew that, and so her advancing the “Voucher” as an authentic document, and claiming that document had almost $160 thousand dollars in value, was a criminal act. 

4. Three/Five Letters 

[29] After the WeRe Bank scheme, Ms. Anderson next attempted to eliminate her debts by a series of documents to the RBC collections department. The first, dated June 18, 2021, is titled “VALIDATION OF CLAIM”, and demands various proofs of the debt, citing the UK Law of Property Act, 1925 c 20, 15 & 16 Geo 5, which, obviously, has nothing to do with Canada or Alberta. This document states that if “Sandra-ann, Authorized representative’s” demands are not met in seven days, that proves there never was a debt or that any debt that had existed has be paid in full. This document also says any telephone call to Ms. Anderson is a criminal offense and extortion. 

[30] Next, on July 9, 2021, Ms. Anderson sent a “CONDITIONAL NOTICE OF ACCEPTANCE UPON VALIDATION OF CLAIM OPPORTUNITY TO CURE”, that, succinctly, says that the “VALIDATION” was not answered adequately. If RBC does not provide what Ms. Anderson demands in seven days, then that means that Ms. Anderson owes nothing. 

[31] The “CONDITIONAL NOTICE” was then on July 16, 2021 followed by a “NOTICE OF DEFAULT AND CONDITIONAL ACCEPTANCE OF CLAIM”, that states “... i am perplexed at your disregard for the law and expect the correct pre-action protocols and would urge you to consider seriously my lawful requests ...”. Ms. Anderson then grants another ten-day extension for RBC to reply. 

[32] The June 18-July 16, 2021 documents are a “Three/Five Letters” scheme, which is a notorious pseudolaw strategy that involves sending a target a series of documents that make demands, and falsely and illegally purport, when there is no reply, or no adequate reply, that creates a legally binding outcome. Here, Ms. Anderson’s Three/Five Letters were a debt elimination strategy. The Three/Five Letters are a variation on the broader foisted unilateral agreement OPCA strategy: Meads v Meads at paras 447-528. The Three/Five Letters are so notoriously false that advancing a Three/Five Letters scheme: ... is proof that the person using these concepts is engaged in a vexatious, abusive argument, and does so for an improper and ulterior purpose. That reverses the onus of proof, so that it is up to the OPCA litigant who has advanced the Three/Five Letters to prove their action, complaint, or defence is not vexatious and an abuse of court processes. [Rothweiler v Payette, 2018 ABQB 288 at para 21.] 

[33] That rule applies here. Ms. Anderson, having deployed a Three/Five Letters debt elimination scheme, establishes that she was and is attempting to evade her mortgage debt for a false, improper, and abusive ulterior purpose. I find that Ms. Anderson’s Three/Five Letters strategy is another bad-faith and illegal attempt to evade her debts, and that Ms. Anderson knew that. 

5. Responses to RBC Litigation 

[34] Ms. Anderson then received the Statement of Claim for RBC’s foreclosure. Ms. Anderson’s Affidavit attaches correspondence with RBC’s law firm where Ms. Anderson attempts to advance Strawman Theory to dispute whether she or the “Sandra ANN ANDERSON ... fictitious corporation ...” sock puppet Strawwoman is being sued. Again, “sandra-ann” claims that if she does not get the answer she demands in five days, then that “... shall constitute legal accord and satisfaction of all claims ...”, and Ms. Anderson gets a free condominium. Again, this is an illegal spurious foisted unilateral agreement. 

[35] Ms. Anderson then follows with a new set of OPCA documents. The first, titled “AFFIDAVIT OF FACT”, is dated September 8, 2021, and had its signature “sandra-ann”, witnessed and notarized by Alberta lawyer Terrance N. Taylor on September 8, 2021. This document is another foisted unilateral agreement, and, in summary, advances Strawman Theory motifs, saying “i, a woman, Sandra Anderson” had no contract with RBC, rejects Canadian “law, statutes, ordinances, codes”, and demands answers to a series of questions, concluding that failure to answer the questions posed in the “AFFIDAVIT” means Ms. Anderson owes RBC nothing. 

[36] Next are two documents, a “Statement of Defence in the form of an Affidavit”, and an “Affidavit of Status and Fact” that are stamped as being “Received” by the Okotoks Provincial Court of Alberta on October 4, 2021. Both these documents are, however, identified as being part of the Docket 2101 07846 Alberta Court of Queen’s Bench foreclosure proceeding. It appears these documents did end up on the Alberta Court of Queen’s Bench file, but how that occurred is unclear. 

[37] Both October 4, 2021 documents are yet further foisted unilateral agreements that make Strawman Theory claims, and demand documents and answers. “sandra-ann:woman” also makes a new counterattack against RBC. She now demands refunds from a VISA account of “the Estate of SANDRA ANN ANDERSON”, of payments already made that date back to December 23, 2019, and that total $67,427.35. Both October 4, 2021 documents were notarized by Alberta lawyer Cody A. Melnyk. 

[38] Next, Ms. Anderson on October 6, 2021, sent opposing counsel correspondence that “Sandra Anderson”, is “Executrix” via a “Power of Attorney over the SANDRA ANN ANDERSON ESTATE, trust by the beneficiary/settlor, Sandra Anderson.” I am unclear on whether Ms. Anderson is now saying her Strawwoman has died, or that Sandra Anderson is the trustee for Sandra Anderson. In any case, this declaration is meaningless; Ms. Anderson is just talking to herself, and that binds no one: Servus Credit Union Ltd v Parlee, 2015 ABQB 700 at para 76 6. 1099-OID 

[39] The final materials in Ms. Anderson’s parade of pseudolaw “get out of debt free” and “money for nothing” schemes are several US Internal Revenue Service “1099-OID” documents, and a May 6, 2022 letter from “Sandra-Ann, Executor” to the Honourable Tyler Shandro, “Private Capacity”, “Acting as Minister of Justice and Solicitor General Office”. Briefly, Ms. Anderson says the attached 1099-OID documents nullify any outstanding debts on Ms. Anderson’s condominium: ... and valid debt obligation that my strawman/legal fiction may owe. You are receiving this notice as a formal record that any and all debt discharge has occurred by way of my submission to you. ... 

[40] The result (purportedly) terminates the Alberta Court of Queen’s Bench Docket 2101 07946 action, which “... has been discharged and this matter closed/settled ...” and “... foreclosure proceedings have ceased and any credit extended to the bank for the property cited here is promptly returned to my estate. ...”. This, obviously, is yet another Strawman Theory “condo for free” stratagem. 

[41] Ms. Anderson’s “1099-OID” documents are a legitimate US tax filing form, that, when properly completed, is used to inform the IRS when bonds, notes, or certificates of deposit are sold at a discount from their maturity value. In the US, 1099-OID forms have frequently been abused as an element of the “Accept for Value” “A4V” Strawman Theory scam (see Meads v Meads at paras 531-543), but, for obvious reasons, Canadian courts do not usually encounter this particular pseudolaw motif. 

[42] In Ms. Anderson’s case, she is purporting to eliminate debts and legal obligations via 1099-OID “Cancellation of Debt” declarations. She has not filled these forms with legally correct information, but instead attempted to “hotwire” these items for spurious purposes. For example, one of Ms. Anderson’s 1099-OIDs says the Creditor is “SANDRA ANN ANDERSON ESTATE”, Ms. Anderson’s imaginary Strawwoman doppelganger, and states that $1 million has been paid to discharge a debt held by RBC. That debt is described as “Court#210107946fees, costs, totdebtunknow”. Since that matches this matter’s Alberta Court of Queen’s Bench docket number, I conclude Ms. Anderson is claiming the 1099-OID in question terminates the current lawsuit with a $1 million payment from a secret bank account held owned by the imaginary SANDRA ANN ANDERSON ESTATE. 

[43] I have no explanation for why the US government would have a secret bank account associated with a Canadian. Instead, it seems Ms. Anderson is simply adapting whatever pseudolaw schemes she finds to her current situation. 

7. Conclusion 

[44] Needless to say, Ms. Anderson’s materials clearly establish that her proposed Counterclaim is based on pseudolaw schemes, has no potential legal merit, and leave should be denied on that basis. ... 

. IV. Breach of Professional Conduct and Officer of the Court Obligations by Terrance N. Taylor and Cody A. Melnyk 

[54] Ms. Anderson’s Affidavit attaches a number of documents that were notarized by Alberta lawyers. The notarized documents were obviously OPCA in character. By notarizing Ms. Anderson’s OPCA documents, these lawyers, Terrance N. Taylor, and Cody A. Melnyk, are in breach of both their professional responsibilities and obligations, as lawyers, and as officers of this Court. 

[55] In 2012, in the Meads v Meads decision at paras 643-645, I wrote this about lawyers who notarize pseudolaw documents: One duty [of lawyers] is to not participate in or facilitate OPCA schemes. During preparation of these Reasons, I reviewed a large number of OPCA litigation files in our Court. I was very disturbed and profoundly disappointed to see the number of occasions where an OPCA document was notarized by a practicing lawyer. Certain of Mr. Meads’ materials were marked in that manner, by two different members of the Alberta Bar. ... Alberta Justice has instructed lay notaries to not endorse documents of this kind: Papadopoulos v. Borg, 2009 ABCA 201 at para. 3. ... This Court has, on previous instances, drawn to the attention of the Law Society of Alberta that this kind of action is inappropriate for an officer of the court. It assists implementation of vexatious litigation strategies. In my view, a lawyer has a positive duty not to engage in a step that would ‘formalize’ (though typically in a legally irrelevant manner) an OPCA document. I have previously noted that certain OPCA gurus place a peculiar and mythical authority in a notary’s hands. A lawyer should not, directly or indirectly, reenforce, or support that purpose. 

[56] A particularly dangerous and erroneous belief pseudolaw litigants have about notaries is that notaries have greater authority than judges: reviewed in Donald J Netolitzky, "Humdrum Becomes a Headache: Lawyers Notarizing Organized Pseudolegal Commercial Argument Documents" (2019) 49:3 Advocates’ Quarterly 279. 

[57] The Law Society of Alberta has, on multiple occasions, cautioned its members that they should not notarize or otherwise authentic pseudolaw materials. Myself, and other members of this Court, have also previously identified and publicly criticized lawyers who breach their duties in this manner, e.g. Potvin (Re), 2018 ABQB 652 at para 25. 

[58] And yet this pattern continues. Here, two Alberta lawyers have notarized Ms. Anderson’s materials that she then deployed against RBC and its lawyers. The document, “AFFIDAVIT OF FACT”, notarized by Terrance Taylor is an obvious foisted unilateral agreement that purported to dictate a six-day deadline, or else Ms. Anderson wins and gets her “condo for free”. This document is filled with absurd and inappropriate language. Its initial paragraph claims “God’s laws” are “first and foremost”. Ms. Anderson at paragraph 2 invokes Strawman Theory and claims Canadian law does not apply to her: i, a woman, Sandra Anderson am a living breathing sentient being on the land, a Natural creation of GOD, and therefor am not and cannot be any ARTIFICIAL PERSON and, therefore, am exempt fro any and all identifications, treatments and requirements, as such pursuant to any process, law code or state or any colour thereof. [Sic.] 

[59] Ms. Anderson says the loan is backwards: she was not loaned money by RBC, but instead she had her money taken by RBC: i, woman Sandra Anderson, upon discovering the loan from Royal Bank of Canada is not in fact a loan but a loan to deprive myself of money, discontinued paying the so called loan from Royal Bank of Canada. 

[60] But aside form the content of the document, one would at least hope that Mr. Taylor had completed his obligation, as a notary, of witnessing Ms. Anderson’s actual signature. But no, instead, what Ms. Anderson signed was “sandra-ann”, not her full name on that document, “Sandra Anderson:woman”. 

[61] The documents notarized by lawyer Cody Melnyk are no better. The first paragraph of the “Statement of Defence in the form of an Affidavit” [“Statement”] immediately demonstrates Ms. Anderson is engaged in Strawman Theory: i woman sandra-ann, acting as agent for and on behalf of SANDRA ANDERSON, am responding to the statement of claim filed by Denise A. Whiteley, a woman who sometimes acts as an unregistered foreign agent on sovereign lands and on behalf of Warren Benson Amantea LLP and on behalf of ROYAL BANK OF CANADA ... 

[62] If that were not a clear enough indication that Ms. Anderson is engaged in Strawman Theory, next we have this demand: ... Can Denise please clarify if the Defendant in the Statement of Claim is a fictitious corporation, SANDRA ANDERSON or a woman, sandra-ann. 

[63] Again, this document is a foisted unilateral agreement, making demands for items like wet ink signatures. The “Statement” cites imaginary Biblical law: NOTE: MAXIM - A line of claim can be satisfied only through rebuttal by Counter-Affidavit point-for-point, resolution by jury, or payment (Gen. 2-3; Matt. 4; Revelation. Legal maxim: “If the plaintiff does not prove his case, the defendant is absolved.”). [Emphasis in original.] Next, in the “Statement”, Ms. Anderson makes the demand for a refund of $67,427.35 in VISA payments, purportedly because no credit card contract with wet ink signatures has been provided. 

[64] The “Affidavit of Status and Fact” witnessed and notarized by Mr. Melnyk, is another abusive foisted unilateral agreement, and also rife with obvious pseudolaw misstatements. For example, the first two paragraphs read: i, sandra-ann via a will codicil from Barbara-Jean Goulette my mother gave me control of the living estate known as ANDERSON SANDRA ANN, Number 010206, registration date April 20th, 1970 and revoked any implied use, control, Power of Attorney or grants she may have made to the Government, any states, Crown/State or banking agents, heirs or their assigns with respect to the use of my name. ... i, a woman, sandra-ann am a living breathing sentient being on the land, a Natural creation of GOD and therefore am not and cannot be any ARTIFICIAL PERSON and, therefore, am exempt from any and all identifications, treatments and requirements, as such pursuant to any process, law code or statute or any colour thereof. I am not the PERSON or fictious name SANDRA ANDERSON created by the Birth Certificate Registration [redacted] registered on April 24th, 1970, the Birth Certificate being a registered security. One can hardly imagine a more blatant and explicit adoption of Strawman Theory concepts. 

[65] Again, Ms. Anderson claims that the loan she received was fake: i, woman Sandra-ann, upon discovering the apparent loan from the corporate fiction named RBC to SANDRA ANDERSON is not in fact a loan but simply a book keeping entry on computer screen to make it look like SANDRA ANDERSON received a loan to deprive myself of monies (principle and interest), discontinued paying the so called loan from RBC. 

[66] Ms. Anderson’s “Affidavit” also relies on nonsense Biblical “Maxims” of law that any legitimate lawyer should realize are obviously false and incorrect: Maxims - Rule of law An unrebutted affidavit stands as the truth in commerce: Peter 1:25 - But the word of the lord endureth for ever. And this is the word which by the gospel is preached unto you. An unrebutted affidavit becomes judgement in commerce: Hebrews 6:16-17 - for men verily swear by the greater: and an oath for confirmation is to them and end of all strife. Wherein God, willing more abundantly to she unto the heirs of promise the immutability of his counsel, confirmed it by an oath [67] At least in these instances, Mr. Melnyk’s witnessed the same name and signature: “sandra-ann:woman [signed sandra-ann]”. Of course, that is not actually Ms. Anderson’s name. 

[68] A copy of this judgment will be delivered to the Law Society of Alberta, along with a copy of Ms. Anderson’s May 10, 2022 “Affidavit”. As an officer of the Court, I am very troubled by the continuing issue that Alberta lawyers notarize and authenticate obvious pseudolaw documents. A lawyer who acts as a notary is still a lawyer interacting with their client, with the associated professional responsibilities. It is not for me to determine completely - the Law Society has the primary role to enforce sanctions against illegal or improper conduct by lawyers - but it appears that Mr. Taylor and Mr. Melnyk breached their responsibilities to Ms. Anderson, too, when they did not identify the obvious false pseudolaw in Ms. Anderson’s materials, and refused to engage further with her abusive court activities.

NWO

In Bank of Montreal v. Lew, 2022 BCSC 1320 the Supreme Court of British Columbia deals with 'New World Order' claim. 

The judgment states 

 [1] Karen Wai King Lew appeals the order of Master Robertson made April 28, 2022, granting conduct of sale on Ms. Lew's residential property to the Bank of Montreal. The Bank of Montreal is the first mortgagee on the residential property. An order nisi of foreclosure was made September 21, 2021, and the redemption period expired in March 2022. Ms. Lew asserts that Master Robertson made the order in error because the mortgage had been forgiven on February 8, 2022, pursuant to the doctrine of NESARA/GESARA, acronyms that stand for National Economic Security and Reformation Act and Global Economic Security and Reformation Act. She also asserts that Master Robertson was biased and ought to have recused herself. 

[2] The Bank of Montreal and the second mortgagee, Ming Shek Liu, assert that no error was made because NESARA/GESARA do not form part of Canadian or British Columbian foreclosure law, there was no evidence the mortgage was forgiven, there was no bias on the part of Master Robertson, and the appeal was commenced more than 14 days after the order was made, and so the appeal is out of time. ...  

[5] The order under appeal is an order that the Bank of Montreal have conduct of sale of Ms. Lew's foreclosed property. An order granting a conduct of sale in a foreclosure proceeding is interlocutory: Canadian Western Bank at paras. 11 and 15; and Urban Land Holdings Ltd. v. Babich, 2019 BCSC 1318 at para. 24.  ... 

Whether the Mortgage was Forgiven 

[8] At the appeal before Master Robertson, Ms. Lew did not lead any evidence that her mortgage was forgiven. The transcript of the proceedings before Master Robertson demonstrates that Ms. Lew came to court to ask for more time because she did not want to lose her home. She explained that she had unsuccessfully attempted to obtain a reverse mortgage and a loan from a private lender. She also explained that her sister was arriving in Vancouver the next day and would lend her the money to redeem the mortgage. She did not assert that the mortgage had been forgiven, lead any evidence of mortgage forgiveness, or make any reference to NESARA/GESARA. 

[9] By the time the Bank of Montreal's application for conduct of sale came on before Master Robertson, it had already been adjourned once because Ms. Lew's lawyer had withdrawn, and Ms. Lew asked for more time. The hearing before Master Robertson was peremptory on Ms. Lew. Master Robertson declined to adjourn it again to give Ms. Lew more time, but she made her order effective May 26, 2022, approximately four weeks after the hearing, so that if Ms. Lew arranged financing in the four weeks between the hearing and the effective date of the order, she could still redeem the mortgage, and the conduct‑of‑sale order would not take effect. 

[10] In this court, Ms. Lew made submissions on the NESARA/GESARA. She described it as a pending new world order that has its roots in the United States (NESARA), but has evolved to a global movement (GESARA), to which many countries are signatories, including Canada. She asserted that it involves resignation of world leaders, new currencies that will be backed by gold, and a more harmonious and peaceful world where the enslavement qualities of debt will be abolished. 

[11] Ms. Lew made submissions on the intent of NESARA/GESARA law by reference to a document entitled "GESARA.news" with a website address using the same words. 

[12] This document set out 20 points pertaining to GESARA that include that all credit card, mortgage, and other bank debt due to illegal banking and government activities will be cancelled. This is referred to as a "jubilee" or complete forgiveness of debt. NESARA/GESARA principles establish new presidential and congressional elections within 120 days of GESARA's announcement (presumably this is a reference to United States elections). There will be an interim government that will cancel all national emergencies and return some unspecified political entity back to constitutional law. I assume that the unspecified political entity is the United States but perhaps the intention is a global constitutional regime. GESARA creates a new U.S. treasury rainbow currency backed by gold, silver, and platinum precious metals, ending the bankruptcy the U.S. initiated by Franklin Roosevelt in 1933. GESARA establishes peace throughout the world. GESARA releases unprecedented prosperity with enormous sums of money for humanitarian purposes. GESARA will establish the quantum financial system called QFS, and the quantum voting system called QVS, as well as a global currency reset and a revaluation of currencies. 

[13] Ms. Lew did not provide the Court with any Canadian or British Columbian legislation implementing NESARA or GESARA. Nor did she provide any legal authority incorporating the principles of NESARA and GESARA into creditor/debtor law or the law of foreclosure in British Columbia. With regard to evidence that her mortgage was cancelled pursuant to NESARA/GESARA, Ms. Lew explained that for the hearing before Master Robertson, she had tried to upload her bank statements, which she asserts shows that the mortgage balance was zero at one point in time and that a legal fee that the bank charged her had been reversed on February 8, 2022. 

[14] She explained that she was unable to upload the bank statements, and she did not know that she should have an application binder into which she inserted her evidence. She advised that she first learned that when she saw, over Microsoft Teams, Master Robertson being provided with binders on the matters as they were called. She realized she did not have a binder that she was required to have. She advised this Court that at that time before Master Robertson, she froze and did not know what to say. 

[15] The transcript of the proceedings shows that Ms. Lew made submissions as I have described. She did not tell Master Robertson that she had evidence showing that her mortgage had been forgiven that she was unable to get before the court. Ms. Lew described this evidence to me but did not seek to have fresh evidence introduced on the appeal. Accordingly, there was no evidence before Master Robertson, and there is no evidence on this appeal, that the mortgage was forgiven. 

[16] It is also difficult to understand how that evidence could displace the order nisi requiring Ms. Lew to pay the Bank of Montreal $209,721.51 to redeem the mortgage and the evidence before Master Robertson that the Bank of Montreal had not received any payments towards the mortgage between the date of the order nisi and the appearance before Master Robertson. ... 

[18] There is no basis on which to conclude that Master Robertson was clearly wrong in the order she made. Ms. Lew did not lead before Master Robertson and has not led before me evidence that the mortgage had been forgiven. She did not attempt to persuade Master Robertson, and she has not persuaded me, that NESARA/GESARA principles are part of the law governing creditor, debtor or foreclosure proceedings in British Columbia. 

Bias 

[19] Ms. Lew also asserts that Master Robertson was biased and ought to have recused herself. She asserts two reasons for the bias. First, she asserts that the NESARA/GESARA pending world order is well known to the banks and would have been well known to Master Robertson before she became a master. She submitted that Master Robertson became a master because she knew that her law firm's foreclosure practice would be ending when all mortgages and other debts were forgiven. 

[20] I have not accepted that NESARA/GESARA is part of the Canadian legal landscape. I do not accept that Ms. Lew has proven there is a new world order pending that will end foreclosure proceedings, let alone that Master Robertson knew of this and made a career change to avoid its consequences on her law practice.

As with sovereign citizenship, the NESARA ideology is incoherent. One exponent explains

Above us, in the skies, cloaked from our view and sometimes existing in higher dimensions, is a fleet of extraterrestrials of human origin, from places like the Pleiades, Sirius, Lyra, Vega, Arcturus, Andromeda and many other regions of space. They are our family – our ancestors and, in some cases, our future. These extraterrestrial but human visitors have come to assist us with the 2012 Ascension ….. Some space brethren have taken birth among us as starseeds. Some have walked-in to bodies after birth. Some are able to change shape and walk among us unnoticed. 

While there exist ETs who are unfriendly, they are no longer allowed to approach the Earth. The ones approaching Earth to assist us with our planetary transformation come as our friends. They follow the commands of the same Heaven and the same God as we do. They are forces of love and light. We have nothing to fear from them and everything to gain from their willing assistance. 

We couldn’t have come as far as we have without their help. The people who defeated the NWO are these galactic-human friends along with a large number of terrestrials who are variously known as their “Earth Allies” or “White Knights.” It is they who will bring in NESARA when the time is right. And it is they who will reveal themselves to us when the time for “First Contact” arrives. 

We’ve actually had many contacts with them in the past; in fact they are responsible for seeding this planet with the human species in the first place – their own species. We are their progeny. We did not evolve from apes. What we call “First Contact” is the first time the whole planet will be aware of their presence. Even before that time but after NESARA is announced, they will begin giving us technologies that will allow us to end our dependence on oil, travel far, communicate quickly, and cure most diseases among us. 

They will give us devices that will allow us to see to all our food, clothing and other needs without having to produce them in factories. Eventually, there will be no such thing as poverty or disease on Planet Earth. There will be no such thing as religions that fight with one another. There will be no such thing as wars. 

Our space brothers and sisters will prepare us for our Ascension in 2012. Apparently, what we’ll see when they arrive defies imagination. Their simple presence in the sky will have such an uplifting effect on us that we won’t be the same from that moment on. 

The shadow government has ridiculed the idea that there are extraterrestrial craft in our skies in order to maintain their control of this planet. 

In truth, the U.S. military has benefited for years from technology transfers (anti-gravity technology, the computer chip, fiber optics, Teflon, Kevlar, the “Looking Glass” [google], stealth technology). 

The U.S. government has itself perfected spacecraft run by a secret space agency called Solar Warden that regularly travel between Earth and the Moon or Mars. They perfected teleportation back in the late 1960s and early 70s.

Crime Data

‘The Early Criminal Record on the Boundary of Entertainment: Thomas F. Byrnes’ Professional Criminals of America and the Spectacle of Criminal Identification’ by Charles F Brackett in (2022) 20(2) Surveillance & Society 157-171 comments

While the proliferation of criminal records has received much recent attention, the origin of the criminal record in the United States itself is relatively obscure. This article examines an episode in the development of criminal record keeping and lateral surveillance in the United States, the publication and reception of Thomas F .Byrnes’ Professional Criminals of America ([1886] 1969). I argue that Professional Criminals of America developed a cultural purchase well beyond its relatively modest circulation. By exploiting anxieties about mobility, anonymity, and the decline of class distinction, Byrnes’ book sold itself as a tool to develop regimes of lateral surveillance, enlisting regular citizens to support the police by spying on one another. 

 Brackett argues 

 The proliferation of criminal records in the US and the resulting handicaps for people who have them are topics of increasing concern for scholars and policymakers (e.g., Lageson 2020; Jacobs 2015). While the stigma of a criminal record has been the subject of extensive study, scholars are only beginning to study the extensive use of records (e.g., Jacobs 2015; Lageson 2020; Thacher 2008). Meanwhile, the emergence of the criminal record in the United States has received almost no sustained study. Drawing on theories of surveillance technology as both practical and imaginary (Cole 2001; Bunn 2012), and testing theories of the emergence of “risk society” and lateral surveillance (e.g., Beck 1992; Andrejevic 2002), I examine Detective Thomas F. Byrnes’ 1886 book Professional Criminals of America ([1886] 1969). Specifically, Byrnes’ entertaining volume, which sold more than ten thousand copies in its first printing (Brooklyn Daily Eagle 1886), merged entertainment with new technologies of crime control and sought to produce a type of lateral surveillance. Byrnes used his own charisma and public fascination with criminality to turn Professional Criminals into a significant cultural object in the turn-of-the-century United States. In doing so, Byrnes ([1886] 1969) sought to introduce a tool that would provide any citizen the information they needed to be their own detective. … 

Late-twentieth and twenty-first century scholarship on security and surveillance has emphasized the supposed emergence of “risk”as a dispositif for the management of diverse populations of people, events, or probabilities (e.g., Foucault 2008b; Bigo 2012). Since the 1980s, a growing body of surveillance and security literature has come to emphasize the role of disembodied data (e.g., Gandy 1983; Lyon, ed. 2003; Haggerty 2001; van Dijck 2014), algorithmic and predictive practices (Aradau and Blanke 2017, 2018), and the technologies of data-driven risk management in both security practices and governance more broadly (e.g., Lageson 2020; Eubanks 2018; Noble 2018). 

Studies of risk often position the rise of risk as a de facto rupture in the social order (e.g., Beck 1992 and Giddens 1990). Briefly stated, risk society theories posit the emergence of a new social form governed less by traditional class conflict and competitive governance than by the technocratic assessment and management of various social risks (Giddens 1998). Or, as Beck(1992: 223) argues, “[p]olitics is no longer the only or even the central place where decisions are made on the management of the political future.” Perhaps the best example of this shift for criminal punishment can be found in Ericson and Haggerty’s (1997) argument that law enforcement’s main function today is the production of data. 

A central aspect of this conceptualization of risk and risk management is the role of state institutions in the production of supposedly objective knowledge. In his study of criminal justice statistics, for example, Haggerty (2001: 191–192) argues that one of the main functions of statistical institutions is their claim to represent “objective rationality.” This formulation is substantively reproduced in multiple examinations of the risk society and the proliferation of risk management practices (e.g., Aradau and Blanke 2017). Challenges to the risk society formulation have tended to critique the claim of newness, both implicitly and explicitly (e.g., Rigakos and Hadden 2001). Others implicitly challenge Beck’s (1992) and Giddens’ (1998) claim to the declining salience and value of contentious politics, for example with a call reexamine the importance of “agonism” in democratic politics (e.g., Mouffe 2005; Wenman 2013). 

Even critical scholars tend to take for granted that risk-based surveillance technologies are founded upon a logic of science and gain legitimacy from their patina of objectivity or rationality. This comes despite a rich trove of research that highlights the important role of spectacle in the growth and legitimization of surveillance. Several scholars have examined the interpenetration of spectacle with surveillance, either in legitimizing surveillance society (Gold and Revill 2003) or spectacular uses of surveillance itself (Kammerer 2012). Scholars including Loic Wacquant (2012), Barry Glassner (2000), and Jonathan Simon (2007) have examined the role of spectacular media coverage of crime and terrorism in legitimizing and expanding surveillance practices. Brucato (2015) has problematized the ideology of “objectivity”in police use of bodycams, while a long social-scientific tradition has focused on the role of charismatic authority (Weber [1919] 1947,[1922] 1946) in legitimacy, as well as problematizing objectivity as a social reality (e.g., Foucault 2013; Galison 2000). 

How we understand the social management of risk and the resultant surveillant practices, then, has much to do with how we analyze the interaction of scientism and spectacle in the framing of both risk and its management. As much as a large insurance company may appreciate the multiplicity of statistics available to manage suspect populations and “dangerous” areas through Big Data, everyday citizens are more likely to frame their relationship to risk through lurid news coverage or the television show 24. 

Further, while the risk society is consistently positioned as a development of Late Capitalism or Neo-Liberalism (e.g., Beck 1992), such a framing threatens to disappear the long history of risk. Scholars from across the political spectrum have pointed to risk’s role in creating capitalism itself, either celebrating (Bernstein 1998), analyzing (Foucault 2008a, or critiquing (Rigakos and Neocleous, eds. 2011) this relationship. 

In examining Thomas Byrnes’ Professional Criminals of America ([1886] 1969), as well as its public reception, then, I seek to frame two basic questions at a micro-level. First, how did Byrnes’ work function as a melding of charisma and scientific authority, and what was its contribution to public acceptance of large-scale data collection?

Riverine Rights?

'Where ordinary laws fall short: ‘riverine rights’ and constitutionalism' by Elizabeth Macpherson, Axel Borchgrevink, Rahul Ranjan and Catalina Vallejo Piedrahíta in (2021) Griffith Law Review comments 

Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations have been associated with theories of environmental constitutionalism. However, the extent to, and manner in which, constitutional law (with its elevated status) has been instrumental in the conferral of these ‘riverine rights’ is still not well-understood. In this article, we consider the constitutional relevance of the recognition of rivers as legal persons or subjects in Aotearoa New Zealand, Colombia and India. We argue that in these three countries riverine rights are constitutional experiments: as small-scale, ad hoc and ultimately incomplete attempts to transcend seemingly ineffective regulatory frameworks for rivers. However, they are also incremental, and influential, steps in a broader project of more fundamental social and environmental reform. 

The authors argue

 The recognition or bestowal of legal rights on the Atrato, Ganges and Yamuna, and Whanganui rivers ... has attracted intense interest in transnational scholarship. Like other novel, yet incipient, legal developments, much of this attention focuses on the ‘transformative’ potential of the legal person model – to rebalance the power dynamics between humans and nature and enable real social and ecological change. Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations, have been associated with theories of ‘environmental constitutionalism’; the constitutional incorporation of substantive and procedural environmental rights, responsibilities, and remedies to protect the natural environment. These are attempts to ‘transcend “normal” politics and law, reaching deep into the moral fabric of a society that seeks to be good, as expressed through its constitutionalised political and legal order’. 

There is a broad range of existing and prospective models that position rivers as having some form of rights or personality around the world. These include a mixture of judicial, administrative and legislative examples; made at various levels of government from local to international; concerning various types of ecosystems from specific rivers to broader manifestations of ‘nature’; and involving a range of legal mechanisms such as rights of nature, legal or juristic persons or subjects, or models that recognise rivers or ecosystems as living entities. For convenience, we use the term ‘riverine rights’ to very loosely group the ‘cases’ from Colombia, India and Aotearoa New Zealand discussed in this article, although we acknowledge and accept the conceptual and practical differences between places, peoples and contexts, and undertake a contextualised and nuanced analysis of each case. 

Despite their different circumstances, those driving riverine rights in these seemingly disparate cases have sought to elevate certain fundamental and inviolable interests (both of the river and sometimes of themselves), above the everyday business of river management. Put practically, certain interest groups (e.g. local communities, Indigenous peoples, NGOs, and even judges and politicians) have attempted to leverage riverine rights to ‘win their battles’ (including but not limited to claims for control and access) with respect to rivers; appealing to higher-level norms which have the potential to transcend dominant regulatory approaches and distributions. These claims appeal to constitutional law’s elevated status – with its hierarchy of ‘special powers’, which take priority over ‘ordinary’ laws. Yet, there is often said to be an ‘implementation gap’ in environmental constitutionalism; i.e. constitutions and their enforcers may well produce ambitious normative agendas about transformative environmental change, but these ambitions lead to little impact on the ground. 

It is with this potential and ambivalence in mind that we ask in this article: To what extent, and in what ways, has constitutional law (with its elevated status) been instrumental in the conferral of riverine rights? We choose to investigate this question through an exploratory comparative study of the three jurisdictions that are typically used as exemplars in contemporary literature and commentary for applying rights-based approaches to rivers: Colombia, India and Aotearoa New Zealand. All three countries have recognised rivers as legal persons/subjects in varying ways and to varying degrees since 2016. In doing so we consider whether the three riverine rights cases reflect the pragmatism of rights-based claims and strategic socio-ecological litigation and reform. We also consider whether the three riverine rights cases might be the result of activists ‘learning to play the legal game better’ or of judges, lawyers and politicians seeking to ‘make their mark’ through novel legal mechanisms inspired by alternative value-systems. 

In our enquiry, we seek to make some broader observations relevant to the project of ‘transnational comparative environmental constitutionalism’. By taking an interdisciplinary approach drawing on law and political and anthropological theory, we consider whether constitutions (broadly framed) are in fact the enablers of change they are often described to be, against the background of the complex political power dynamics of the specific cases. We take a broad approach to assessing ‘change’, ‘adaptation’ and ‘reform’, as socio-ecological phenomena. For example, we cannot measure improvements to the health of the river within the period, but we can make observations about the broader health of riverine communities as socio-ecological networks. We do not therefore seek to ascertain the extent to which riverine rights are practically or effectively implemented in each of the country studies (other than as reported in the academic literature), instead focusing on the design and content of legal and policy frameworks in their specific context. 

We explore the constitutional significance of the three riverine rights cases via a detailed interdisciplinary study of the law, policy and scholarship relating to each case in its historical, political and cultural context. Our transdisciplinary and transnational research team includes researchers from all three countries, fluent in the language and ‘legal language’ of each country. We do not presume, however, to speak for Indigenous, Afro descendent or local peoples. 

We find that each of the three riverine rights cases, although quite different in its workings and context, has constitutional significance. Each case is an attempt to reset the political power dynamics between governments and communities/interest groups. Each case uses the language of ‘rights’ to secure environmental and social objectives, and attempts to elevate those rights above ordinary regulation, appealing to constitutional norms. This may be done for a range of reasons, including (but not limited to) the furtherance of Indigenous political claims for self-determination over river governance and use; the influence of transnational environmental non-governmental organisations (NGOs) and the global rights of nature project; and the personal ambitions of creative lawyers, politicians and judges who wish to ‘make their mark’. 

We find that the riverine rights cases do not completely succeed in their transformative endeavour, and each case has significant shortcomings in terms of the ability to transcend dominant regulatory regimes, and thereby they may have limited potential to enable real legal and practical change. Despite this, we argue, the riverine rights cases from Colombia, India and New Zealand can be characterised as tentative early steps towards more transformative change, and their broader influence throughout the legal and institutional culture of each country, can already be seen.