Four months after 22 people were arrested for blocking a pipeline in Wet’suwet’en territory, the BC Prosecution Service dropped all charges against the Wet’suwet’en and their supporters on June 5.
Those arrested along the Morice West Forest Service Road in northern B.C. were facing criminal contempt charges and possible jail time. For them, it was good news.
But others are questioning whether those arrests should have been made at all and concerned that courts are too quick to “rubber stamp” industry requests for injunctions to stop Indigenous Peoples from exercising their rights.
In B.C., where industrial interests frequently clash with Indigenous title, standoffs are often dealt with by applying to courts for injunctions to quickly eliminate First Nations’ resistance — a practice some say puts too much power in the hands of corporations.
Martin Peters, counsel for the 22 people charged on Wet’suwet’en territory, is one of them.
“In British Columbia, the courts have been very quick to support industry,” says Peters. “The ease by which those orders have been granted, even in the face of an understanding that there are Aboriginal land claim issues at stake, and the further ease by which the RCMP was able to go out and enforce those issues, is troubling.”
Once an injunction is in place, anyone who disobeys the order can be arrested. The Crown has the option to convert a civil contempt case to criminal contempt if prosecutors feel the violation disrespects the courts.
The arrests on Morice Road occurred over five days in early February as RCMP enforced an injunction granted to Coastal GasLink. It barred anyone from blocking work along the remote forestry road that provides access to a portion of the pipeline route south of Smithers. The 670-kilometre pipeline is being built to deliver fracked gas from northeast B.C. to an LNG processing plant in Kitimat and is opposed by Wet’suwet’en hereditary chiefs.
Lawyers for Coastal GasLink referred questions to the company. A company spokesperson did not respond to emails from The Tyee.
Peters also represents 14 supporters who were arrested Feb. 24 while blocking rail lines in Hazelton. The Crown has not made a decision about whether it will go ahead with criminal charges against the group, although CN Rail appears ready to proceed with a civil lawsuit. The case is back before the court this week.
The Wet’suwet’en and supporters had gone through a similar process once already. The B.C. Supreme Court granted an interim, or temporary, injunction to Coastal GasLink on Dec. 14, 2018, that barred anyone from blocking access to the route. On Jan. 7, 2019, RCMP removed barricades and arrested 14 people. Crown prosecutors did not proceed with criminal charges, citing lack of evidence, and the civil case was later abandoned.
In December, one year after the interim injunction was granted, the B.C. Supreme Court approved the pipeline company’s request for permanent access to the area. That led to renewed blockades, the RCMP creation of an “arbitrary” exclusion zone and the 22 arrests.
RCMP said the exclusion zone, which limited access even for members of the Wet’suwet’en, was needed to ensure safety.
But Peters says the result was “a police state that was being created in the Wet’suwet’en territory with no basis in law whatsoever.”
The RCMP began enforcing the injunction in the early morning hours of Feb. 6. Over the next four days heavily armed officers in military fatigues dismantled camps and arrested the 22 people.
Eve Saint was one of those arrested on day two of the police action; her father, Frank Alec, is Hereditary Chief Woos of the Gidimt’en clan.
“They came in really aggressively with 100 RCMP, completely armed, and tactical teams and helicopters dropping RCMP behind us, just for four Indigenous, unarmed land defenders,” she says. “I mean, that’s my father’s territory. Just being criminalized for being on your land — it’s big frustration for sure. It’s heartbreaking.”
All four were held in custody for four days when they refused to sign a condition that they not return to the territory, unless it was for ceremonial or cultural purposes. Saint says she was outraged. “That’s my dad’s territory. I have a special bond with this land, this territory, and they decide what is cultural, what's spiritual, what is traditional? Hell no. For Indigenous people, as soon as we step on the land it’s spiritual,” she says.
Peters says the Supreme Court of Canada’s landmark Delgamuukw-Gisday’way decision, which affirmed Wet’suwet’en and Gitxsan land title in 1997, has not found a place in B.C. law, especially when it comes to granting injunctions.
In a Dec. 31 decision granting Coastal GasLink access to the pipeline route, Justice Marguerite Church leaned heavily on economic arguments and, despite the Delgamuukw-Gisday’way decision, said “the Aboriginal title claims of the Wet’suwet’en remain outstanding and have not been resolved either by litigation or negotiation.”
Peters sees it differently.
“I mean, this is their land. The hereditary chiefs did not give Coastal GasLink permission to build that pipeline or even come onto their territory,” Peters says. “The unfortunate position of the Supreme Court of British Columbia is appearing to rubber stamp an injunction order any time an industry feels that they might be losing money because of an Aboriginal protest.”
Injunctions have a long history in fighting protests
Injunctions were used as a tool to shut down protest when nearly 1,000 people were arrested in logging protests at Clayoquot Sound in the early 1990s.
But according to a report released in November by Ryerson University’s Yellowhead Institute, the practice dates back much further.
The study looked at more than 100 injunction cases nationwide involving First Nations going back as far as the 1950s. It found that injunction applications against industry and government by Indigenous groups had an 18.5 per cent success rate. By comparison, 76 per cent of injunctions filed against First Nations were granted.
The report concludes that “the courts expect First Nations to commit to lengthy, costly litigation to secure protection for their lands and waters. But companies can more or less get injunctions if there is any whiff of economic loss.”
Lawyer and Kwantlen Polytechnic University criminology instructor Irina Cerić says injunctions are used in other provinces.
But there’s a stronger judicial culture of using them in B.C., she says.
Injunction requests are usually filed in conjunction with a civil lawsuit, with companies arguing that the injunctions are needed to protect their interests and prevent damage while a case is before the courts.
But Cerić says it’s become common for lawsuits to be filed simply to justify injunctions.
“For the most part, they’re not real lawsuits. They’re a means to an injunction,” she says. “What that does is speed up this process by which a private corporation can go to court and say ‘Give us a court order’ that then puts them in the driver’s seat of what happens next. It takes what’s really a public conflict and makes it a private form of conflict resolution.”
Cerić says she doesn’t advocate using either criminal law or police to deal with protests.
“When you have a blockade that’s non-violent, it’s a situation that can be approached through non-law-enforcement means,” she says. Negotiation or changes to the permitting process to ensure First Nations accept projects are alternatives.
Injunctions favour the status quo, she said, and are often granted based on which side in the dispute stands to suffer more harm while waiting for a civil lawsuit to be resolved.
In the past Indigenous groups have successfully used injunctions to prevent unwanted activities, like logging, on their territories. They argued the work would do greater damage to their interests, while companies could cope with delay.
But Cerić says that changed in the early 1990s, around the time of the B.C. Supreme Court’s 1991 Delgamuukw decision, which found that most Indigenous title in B.C. had been extinguished when the former colony joined Confederation in 1871.
That decision was later overturned in the groundbreaking Supreme Court of Canada Delgamuukw-Gisday’way decision.
But Cerić says it marked the end of injunctions being granted to First Nations to protect land.
Courts and corporations replacing lawmakers
Andrew Gage, a staff lawyer with West Coast Environmental Law, says these types of injunctions essentially constitute law-making.
“It is not what injunctions were intended for. It’s going beyond the usual role of the court,” he says. “It puts both the companies and the protesters and, really, the courts in a somewhat awkward position of being before the court in an adversarial process where the real beef of the protesters is against the law and the government for having put that law in place.”
In February, the province obtained an injunction against unnamed people protesting the Wet’suwet’en arrests at the B.C. legislature. The order, which gives discretion to police to remove and arrest anyone blocking access to the building, is not limited to the Wet’suwet’en conflict and remains in place for an indefinite period, Gage says.
“That sounds a lot like lawmaking as opposed to a dispute between Wet’suwet’en protesters and the legislature,” he says.
SLAPP suits and injunctions
Civil lawsuits filed against protesters have been compared to SLAPP suits or “strategic lawsuits against public participation” — the controversial practice of corporations silencing opponents by threatening legal action.
In 2014, multinational pipeline company Kinder Morgan brought a multi-million-dollar civil suit against five protesters it said were attempting to intimidate workers at its Burnaby Mountain site. Four defendants settled with the company but Alan Dutton, a retired university professor, called the case a SLAPP suit and attempted to have it thrown out. He was unsuccessful.
At the time, there was no anti-SLAPP legislation in Canada. A law to prevent the practice was passed by the B.C. legislature in 2001, only to be repealed several months later when the BC Liberals formed government.
B.C. passed the anti-SLAPP Protection of Public Participation Act last year, joining Ontario and Quebec in laws aiming to prevent the use of lawsuits to silence critics or curb protests.
The act has yet to be interpreted or applied in the courts, says Meghan McDermott, staff counsel with the BC Civil Liberties Association.
“SLAPP suits work because it never really gets to court,” she says. “Usually people just shut up and the person suing them, the corporation or government, never has to make the case to the judge. They know that when they file it, so it’s basically just a tactic to silence people and it’s a disingenuous one that we think abuses the court system.”
SLAPP suits differ from injunctions in that one intends to silence while the other moves people out of the way. What they have in common is the ability to quell protest.
According to Peters, CN Rail’s claim for unspecified damages against unnamed protesters blocking rail lines in Hazelton “absolutely” constitutes a SLAPP suit.
On Friday, Canada’s largest rail company will share evidence with Crown council in an effort to persuade it to take over the case with criminal charges.
If the prosecution declines, it will be up to CN whether to proceed with the civil suit it filed in February.
“I don’t think there’s any realistic view that CN thinks that they’re going to claim damages against John Doe and Jane Doe, people they obviously don’t even know who they’re dealing with,” Peters says.
The courts versus the people
Molly Wickham is a Gidimt’en clan member who was among the 14 arrested when RCMP raided the camp in 2019. She was pregnant during this year’s standoff and says concerns about police action kept her away from the territory.
“Because of the history of police violence, I had to be very careful about where I was and not get arrested because I was afraid that if they arrested me that they would harm the baby,” she says.
“It’s a blatant violation and abuse of power. They’re using the RCMP and the courts against a sovereign nation, the Wet’suwet’en, but they’re also using it against the public in a way that’s not constitutional within Canada and a way that’s abusive and violating people’s rights.”