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The Power and Peril of Injunctions

Where protests arise in BC, this legal weapon tends to be deployed. What are court-ordered injunctions? And why is one now on trial?

Zoë Yunker 17 Nov 2021The Tyee

Zoë Yunker is a Vancouver-based journalist writing about energy and environmental politics. She works with The Tyee as a Tula Foundation Immersive Journalism fellow. Follow her on Twitter @zoeyunker.

This week marks another major development in the clash over old-growth forests in B.C. At Fairy Creek, rain-soaked blockaders await a Supreme Court hearing on whether logging firm Teal-Jones’ appeal for an injunction — once rejected — will be overturned.

If it stands, that rejection could be “precedent setting,” signalling the “start of a move away from relying on injunctions to enforce prior rights against civil disobedience,” said Matthew Nefstead, a lawyer for the activist group Rainforest Flying Squad.

Injunctions are legal orders restraining a person, company or group from an action that threatens the legal rights of another party. The onus is on the courts to decide whether they should be granted or not.

The upcoming decision is a critical one for Fairy Creek blockaders, who say that in enforcing the injunction, police overstepped by barring access to media and the public and using excessive force. In knocking down the injunction, a judge said such RCMP methods undercut the reputation of the court.

Yesterday, the court concluded a two-day hearing for Teal-Jones' appeal. The eventual decision could reverberate beyond Fairy Creek, because B.C. is an injunction hotspot.

In past decades, First Nations have sought such rulings to stop industrial projects while asserting their rights over land.

More recently, injunctions have become a go-to for corporations seeking to clear out protesters blocking their activities.

In northern B.C., Gidimt’en spokesperson Molly Wickham, who carries the hereditary name Sleydo’, faces an injunction from Coastal GasLink, the company attempting to bury a gas pipeline beneath their sacred river, the Wedzin Kwa.

In enforcing the ruling, the RCMP have excluded Wet’suwet’en members from parts of their territory and done so at times using violence, Sleydo’ said: “Without an injunction, it would be night and day.”

Last year, RCMP enforced the Wet’suwet’en injunction with police dogs and sniper rifles.

Given that injunctions are in a sense on trial this week, it’s worth examining where they come from, how they work, and whether they will remain so potent a legal weapon.

How courts weigh injunction requests

An injunction is a legal stopgap to restrain a person or group until an underlying legal conflict is resolved in the courts.

By issuing an injunction, the court is making a claim about which group — the one seeking an injunction or the ones fighting it — is at the most risk of damages in the meantime.

“It’s basically saying the risk to the group that is seeking the injunction is so high — or at least if it’s higher than the other group — that it will order that the activity be paused until that underlying issue is decided,” said Kate Gunn, a partner at First Peoples Law.

That lends injunctions to easy misinterpretation, said Gunn, making it look like “whatever the underlying issue that led to the dispute in the first place has already been decided,” she said.

“I think that can really muddy the waters, because the purpose of injunctions is designed to just preserve the status quo, and until those issues are determined, not to send a message that one side or the other is legally correct.”

Injunctions in BC: A brief history

Injunctions date back to the 1950s, as employers applied for court relief to stop worker strikes.

Years later, First Nations used injunctions to assert their rights over unwanted resource extraction on their territories. After Indigenous rights were constitutionally recognized in 1982, the courts more readily provided injunctive relief to nations to stave off development while title cases proceeded.

A high watermark for Indigenous nations’ injunctions came in 1985, when the B.C. Court of Appeal issued an injunction against logging on Meares Island on behalf of the Tla-o-qui-aht and the Ahousaht First Nations.

In his decision, Justice Seaton found that the nations should be able to protect their forests until the resolution of their title claim was found. “I cannot think of any Native right that could be exercised on lands that have recently been logged,” he wrote.

But that pattern was short-lived. As the years wore on and Indigenous title claims faced ongoing resistance in the courts, it grew clear they would not get resolved anytime soon.

Ironically, said Shiri Pasternak, co-founder of the Yellowhead Institute, at the time that Indigenous rights and title were finally recognized by the courts, judges began to reject their injunction claims, deflecting questions of Indigenous title to the higher courts, and allowing resource extraction to continue unabated in the meantime.

As the rate of court approvals for First Nations’ injunctions plummeted, approvals for corporations’ injunctions against protests rose.

That trend crystallized during the War in the Woods movement against logging in Clayoquot Sound in the early 1990s. As the protests reached a fever pitch, the logging company in question, MacMillan Bloedel, got an injunction against the thousands of blockaders who travelled to the forest on the west side of Vancouver Island to stop old-growth logging.

A report from the Yellowhead Institute found that over the last two decades, 81 per cent of injunctions filed by corporations against First Nations were granted, while only 19 per cent of those filed by First Nations were approved.

For Sleydo’, that switch was not incidental. “I think that they have actually just been discovered as this tool for big corporations and industry to bulldoze over Indigenous rights and the land and the environment,” she said.

The powers and limits of injunctions

By design, injunctions give the courts a considerable amount of oversight.

Injunctions stem from a particular category of law called the “court of equity” — a court dating back to centuries-old English legal traditions. The court of equity is separate from common law meted out by court judgements and laws created by governments.

Because it doesn’t draw on public laws, the court of equity concerns itself with morals. That means that judges are required to weigh in the relative moral weight of each injunction application.

“The injunctive remedy is one that leaves a huge amount of discretion to the nature of what an injunction is,” said Pasternak.

Once the injunction is decided on, bigger questions, like Indigenous title or environmental concerns, are squarely off the table when pressing charges.

And they are almost entirely out of the picture when judges decide whether to grant injunctions in the first place. In so doing, judges consider three legal tests: that the company or the person has a strong legal case; that they can prove “irreparable harm” would be done to them without it; and that they win out in the “balance of convenience” — a measure of how much relative effort each party would suffer if the injunction went ahead.

Often the weighed impacts centre on jobs and government revenues at the expense of Indigenous rights, which are considered too broad, and relevant to a higher court to determine.

In the precedent-setting 2004 case Haida Nation vs. British Columbia, Justice McLachlin found that the balance of convenience test “tips the scales in favour of protecting jobs and government revenues, with the result that Indigenous interests tend to ‘lose’ outright pending a final determination of the issue.”

The message to First Nations, said Pasternak, is that when injunctions are being weighed, “the value can’t be quantified of losing berry grounds or moose den sites. They’re not considered or weighted the same. Indigenous economies are not considered valuable in the way that capitalist economies are considered valuable.”

In her ruling on whether or not to grant Coastal GasLink’s injunction, Justice Church found that because the company would create jobs for First Nations and British Columbians, it passed the balance of convenience test.

The judge did not include Wet’suwet’en legal traditions in her judgement. To Sleydo’, “The injunction really felt like it was putting us back in time, you know, to a time where we weren’t considered human.”

Overarching environmental considerations are also deemed out of scope by the court. In deciding to grant Teal-Jones its initial injunction in Fairy Creek last April, Justice Verhoeven dismissed the blockaders’ arguments that old-growth logging would exacerbate climate change.

“The effect of old-growth forest logging on climate change and biodiversity is not before me, and is not for me to say,” he said. “The protesters’ real complaint is with the government’s policy choices.”

But while the injunction application takes an ostensibly value-neutral approach to bigger questions, it also hinders opportunities to bring protesters’ concerns to the courts, said Marilyn Sandford, a lawyer with Ritchie Sandford McGowan who has worked on injunction cases.

Without an injunction, police make arrests under the Criminal Code, and need to prove that the arrestee in question was breaking the law. With the injunction in place, protesters can be arrested simply breaking the injunction order alone.

That’s an easy bar for the police to clear, said Sandford. “There are almost no defenses.” Injunction “court orders have this incredible power in our world — you have to obey them no matter what.”

When individuals are arrested for Criminal Code offenses, they can draw on a variety of reasons — including constitutional and Indigenous rights — to argue their case. That’s not the case when arrested for violating an injunction.

Finally, companies that gain interlocutory injunctions — like the one held by Coastal GasLink — are under no obligation to follow through with the charges that make them relevant in the first place.

The injunction ‘enforcement gap’

Injunctions have remained a controversial practice across the decades. During the early 2000s, numerous B.C. judges drew attention to the dangers of injunctions on the courts’ reputation.

Central to their concerns was the fact that injunctions put the court at the centre of political conflicts. That’s because when it grants an injunction, the court is essentially creating a new law that needs to be followed, weighing the interests of those involved.

In a 2000 ruling, Justice McEwan found that the case for the injunction in question placed “the court in a position where it must fashion some remedy at the expense of repeatedly putting its authority in issue.”

A year later, Justice Williamson also ruled against granting a logging company an injunction against protest activity, stating that “the risks attendant upon the conversion of a dispute between the citizen and the logging company or the citizen and the government into a dispute between the citizen and the court are serious indeed.”

Because of those consequences, all injunction applicants need to provide evidence that their risk to the courts’ reputation is worth it.

That can include showing there is an “enforcement gap” that would go unaddressed without the injunction.

During the 1990s-era Clayoquot Sound protests, that gap was clear.

Without an injunction in place, police must rely on the Criminal Code to arrest protesters found to be breaking the law. Under the code, all charges must be approved through the BC Prosecution Service — the province’s legal arm — which decides whether to press criminal charges.

In the 1990s, the BC Prosecution Service “had a specific policy not to lay criminal charges against environmental groups engaging in civil disobedience,” according to Justice McLachlin in her decision to grant logging company MacMillan Bloedel its injunction.

McLachlin found that the prosecution service’s policy on civil disobedience meant the logging company didn’t have enough legal remedies to protect its interests.

From the Clayoquot Sound protests onward, the assumption of that gap prevailed.

“The trend has been that if you want the police to protect your property interests against civil disobedience, you have to get an injunction from the court, even if the protesters are committing criminal offenses, because the police won’t enforce otherwise,” said Nefstead.

But Judge Thompson’s decision to reject Teal-Jones’ injunction application may point to a change in that trend.

In 2018, the BC Prosecution Service published a new policy on civil disobedience that presented modified approach, indicating that it would assess each case on its own merits, including cases of civil disobedience.

In an emailed statement to The Tyee, the BC Prosecution Service explained the switch, stating that “Crown Counsel must regularly make these independent and discretionary decisions in order for the justice system to operate fairly and effectively.”

In Judge Thompson’s decision against continuing the Teal-Jones injunction, he pointed to the prosecution service’s recent commitment to weigh in on civil disobedience, suggesting that the gap didn’t exist after all. “I am not persuaded that there is currently an enforcement gap,” he said.

That finding, combined with citations of problematic police behaviour including broad exclusion zones and officers failing to identify themselves to blockaders, led Judge Thompson to find that the court’s reputation would be tarnished by extending the injunction any further.

“In the current circumstances, I am not persuaded that the balance of convenience favours extending the injunction,” he wrote.

Although Judge Thompson was ruling on just the Fairy Creek situation, his finding that the “enforcement gap” no longer existed could inform future injunction applications.

But whether the decision could affect the ongoing injunction on Wet’suwet’en territory is an open question.

And Coastal GasLink’s injunction only adds to the rock and the hard place Wet’suwet’en members find themselves in, said Sleydo’.

“We’ve exhausted all the means that we can, through the colonial system, to try to resolve this issue,” she said, noting that First Nations’ own injunctions are rarely granted, and that the uphill battle of fighting decades-long title cases in the court when damage to the territory is imminent. The Gidimt’en Clan recently issued an eviction notice to Coastal GasLink workers.

“We want to be on our land hunting and being with our families, doing our traditional activities, in peace. We don’t want to be behind a blockade,” she said. “But we have no other choice.”  [Tyee]

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