Could Fairy Creek change court precedent?

One of the four Fairy Creek-related applications being heard in BC Supreme Court the week of Sept. 13 has the potential to change Canadian precedent, if the judge allows the argument.

All four applications are related to the extension and enforcement of the Fairy Creek injunction, which has been ongoing since April 1, 2021. Since it started enforcing the injunction on May 18, RCMP officers have made over 1,000 arrests. Dozens of arrestees whose charges have been transferred from civil to criminal court are also in court this week.

Armed with affidavits from the likes of forest biologist Suzanne Simard and other experts, representatives of the Rainforest Flying Squad, are arguing that the public interest should be considered by the court when considering the injunction extension, not just Teal Cedar’s financial interests.

If accepted, that argument could change a longstanding precedent.

To grant an injunction, the court has to consider three things: first, is there a serious issue to be tried? On this, at least, Teal Cedar and Rainforest Flying Squad are in agreement. Second, will there be irreparable harm to Teal Cedar without the injunction? Teal Cedar says yes; Rainforest Flying Squad disagrees.

The third test is the balance of convenience. The court looks at which party will suffer a greater harm from the granting or refusal of the injunction.

“Teal Cedar argues that the balance of convenience is in their favour. But this is where the Rainforest Flying Squad calls on their public interest claims,” explained reporter Emily Vance in the Capital Daily's Sept. 15 podcast.

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The Rainforest Flying Squad is arguing that Teal Cedar and the RCMP have violated the law in their use of force against protesters, which they say is inherently not in the public interest.

But they also argue that there is significant public interest in conserving old-growth forests, to “avert climate change and ecological crises that can and should be considered as relevant interests,” they wrote in their counter-application.

The value of old-growth forests to society is not a matter of government policy, they say, but a prescient factor determining if this “injunction is just and equitable.”

Saul Arbess, 82, was at the War of the Woods in the 90s, and is resolute in his belief that the forests need to be left standing. That’s what prompted him to join the Fairy Creek blockade when it began more than a year ago, and he believes the natural value of the forests should be weighed by the court in deciding whether or not to grant an injunction.

“Our response to the application for a renewal of the injunction is to bring in considerations of the public interest. In particular, the role of climate change, biodiversity and the role of ancient forests in these areas,” he said to Capital Daily.

“We feel that once these areas are brought into consideration, that in both cases of harm [the tests of irreparable harm and the balance of convenience], we would come out as the winners, if the judge agrees to hear the case, on those terms.”

The Rainforest Flying Squad tried a variation of this argument in the first injunction hearing, but the judge ruled that while climate change is a pressing matter, it wasn’t the issue before him.

Arbess hopes to challenge that.

“The first injunction that was granted by Judge Verhoeven failed to take into consideration the matters that we have brought forward. He treated it as strictly a financial matter. Teal Jones could establish that it incurred some financial losses, whereas it's much more difficult for us to do that,” Arbess said.

The three other applications are important for Fairy Creek, but not necessarily precedent-setting. Teal Cedar is applying for a one year extension on the injunction, which expires Sept. 26.

The BC Attorney General, on behalf of the RCMP, is asking to confirm that RCMP still have the ability to search people and vehicles, and to control access to areas of interest. Interestingly, the Attorney General included an ultimatum of sorts in the argument, saying if these conditions aren't granted, the RCMP will have to “re-evaluate their ability to continue to conduct enforcement.”

In the fourth application, two individuals are trying to have the RCMP enforcement actions held to work safe standards.