Ten people remain in custody in Prince George after a bail hearing for those arrested on Wet’suwet’en territory last week went overtime Monday.
Most of those released agreed to a condition that they not return to the Morice West Forest Service Road, the area where Coastal GasLink’s 670-kilometre gas pipeline is under construction from northeast B.C. to Kitimat.
Photojournalist Amber Bracken and filmmaker Michael Toledano’s conditions allow them to return to the territory, where they have been covering the ongoing dispute over the pipeline since the first police action occurred on the Morice forestry road in January 2019.
All released yesterday must also obey the rules of an injunction granted to Coastal GasLink two years ago, not engage in illegal protests and appear in Prince George court on Feb. 14, 2022.
Among the 10 who remain in custody is Molly Wickham, a Wet’suwet’en Nation member and spokesperson for the Gidimt’en Clan whose hereditary name is Sleydo’. Her hearing continues this morning in Prince George court.
On Nov. 14, Wet’suwet’en opposing the pipeline closed the Morice road used by Coastal GasLink to access its pipeline. Land defenders felled trees and used the company’s machinery to trench through the road, blocking access to 500 workers staying at two camps farther down the road.
Although Wet’suwet’en members said they gave notice to the company about the road closure, Coastal GasLink did not warn employees, according to one worker.
RCMP began working to open the road early Thursday morning. By mid-morning, they had arrested 15 people, including journalist and documentary filmmaker Melissa Cox, who was released the same day.
The following day, after the road had been cleared into the worker accommodations, RCMP came into a camp established in September by Gidimt’en Clan members at a site where Coastal GasLink plans to drill under the Morice River, which is known to the Wet’suwet’en as Wedzin Kwa.
An additional 11 people were arrested at the site, including Wickham, Toledano and Bracken.
Four additional people were also arrested Friday at the site of Thursday’s arrests as RCMP vehicles left the area. Wickham’s husband, Cody Merriman, was among them. He was released yesterday.
Merriman lives down a road that branches off the Morice road near the site of Thursday’s arrests. He is required to travel through the RCMP exclusion zone to access his home.
During the hearing, Merriman’s lawyer Frances Mahon argued against conditions proposed by Coastal GasLink that would have been “essentially placing him under house arrest” by not permitting Merriman to travel on the road beyond his residence.
The judge agreed that he should be able to travel freely on the network of resource roads that are beyond the exclusion zone.
But she disagreed with Noah Ross, lawyer for Jocelyn Alec, daughter of Gidimt’en Hereditary Chief Woos, who argued against wording proposed by Coastal GasLink that would have eliminated an exception for Wet’suwet’en Nation members who return to the area for cultural purposes, calling the wording “wildly unworkable.”
“It puts forth the RCMP as the arbiter of that. I don’t think that’s a position the RCMP wants to be in, and I don’t think it’s appropriate for the courts to put them in to define what a cultural purpose is,” Ross said.
He added that a Coastal GasLink proposal to establish “a kind of cultural-free zone” extending 10 metres around work areas was also impractical.
Bracken and Toledano had been covering the ongoing dispute on Wet’suwet’en territory since 2019, with Bracken winning an award for “moral courage” for her coverage of the February 2020 arrests at the Unist’ot’en Healing Centre.
Toledano has been filming a documentary about the ongoing conflict, which escalated when Justice Marguerite Church — the same judge presiding over Monday’s bail hearing — issued an injunction to Coastal GasLink in 2019.
Lawyer Kevin O’Callaghan, acting as counsel for Coastal GasLink, repeated previous RCMP statements that the pair did not identify themselves as journalists before their arrest, something that has been strongly disputed by the Narwhal, the publication Bracken was working on assignment for at the time of her arrest.
According to the Narwhal’s lawyer, David Sutherland, Bracken carried documentation of her role at the time of her arrest.
“She was labelled on her body as press,” Sutherland said. “She was on assignment and had on her body a copy of the assignment letter from my client the Narwhal.
“She is there not as a protester but purely as a journalist.”
Church said she had heard the submission but that a decision would wait until trial.
Canadian news outlets and media organizations were quick to condemn the arrest of journalists last week. The Tyee was among more than 40 outlets and press freedom organizations to sign an open letter to Public Safety Minister Marco Mendicino expressing concern about the arrests.
Five of those released Monday requested that Church waive the condition they not return to the exclusion zone, where camps are in place, saying they had not been breaking the injunction at the time of their arrest.
Church did not agree, saying their position “physically prevented, impeded or interfered with access” to the pipeline route.
“An undertaking that requires these individuals to comply strictly with the interlocutory injunction order of Dec. 31, 2019 and not to be in the exclusion zone is appropriate and, in my view, necessary to address those tertiary grounds concerns,” said Church.
Due to pandemic restrictions, only a few journalists were allowed inside the Prince George courtroom where the five-hour bail hearing took place. In a hearing that focused on media access, reporters calling in were plagued with technical glitches, poor sound quality and interruptions.
Church’s decision to grant Coastal GasLink the injunction two years ago leaned heavily on economic arguments and dismissed the Delgamuukw-Gisday’way decision, saying only that “the Aboriginal title claims of the Wet’suwet’en remain outstanding and have not been resolved either by litigation or negotiation.”
While the Delgamuukw case set precedent in 1997 by establishing Wet’suwet’en title to the territory, negotiations to form an agreement with provincial and federal governments later stalled.
Church ruled in 2019 that the issue of Wet’suwet’en land title was beyond the scope of the injunction hearing.
“There has been no process by which Wet’suwet’en customary laws have been recognized in this manner,” she wrote. “The Aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law.”
While Wet’suwet’en Hereditary Chiefs resumed working with the provincial and federal government on defining the nation’s rights and title following the arrests of 28 people on the Morice road in February 2020, those negotiations are meant to be separate from the pipeline dispute.