Fairy Creek injunction is back in place by order of the BC appeal court

Police kept watch around people who had locked themselves into hard blocks at a blockade called Waterfall Camp in the summer. Their strategy this day was to wait for individuals to release themselves when they couldn’t hold the position any longer, and then arrest them. Photo: Zoë Ducklow / Capital Daily

The BC Court of Appeal has renewed the injunction at Fairy Creek until Sept. 26, 2022, overturning a lower court ruling from the fall. Logging company Teal-Jones, which successfully obtained an injunction in April 2021, had applied for the extension last fall, but at the time, Justice Douglas Thompson decided to let it expire.

Thompson cited two key reasons: first, that an injunction was an unnecessary overlap when there’s criminal activity. Police don’t need a court order to enforce criminal behaviour, he reasoned. Second, he said the RCMP’s behaviour while carrying out the court’s injunction was damaging the court’s reputation—specifically the expansive exclusion zones, interference with media access, officers removing their own identification, and allowing “thin blue line” patches to be worn.

The three appeal judges—Justices Lauri Ann Fenlon, Bruce Butler, and Joyce DeWitt-Van Oosten—disagreed with Thompson and overruled his decision on Jan. 26. Criminal law does not negate the need for civil law, even when an issue is covered by both, they said. Just because there was criminal activity happening does not mean Teal-Jones can ensure its rights are protected; that’s why civil injunctions exist in the first place, they concluded. In fact, the “enforcement gap” argument “would lead inevitably to the conclusion that the more egregious the behaviour of the protesters, the less likely it is that an injunction will be granted—a principle entirely at odds with the court’s obligation to uphold the rule of law,” they wrote.

As for police conduct, which factored heavily in Thompson’s decision, the appeal judges disagreed that it affects the court’s reputation. “The administration of justice may be said to have been brought into disrepute by the police conduct, but that overarching systemic impact is not,” they wrote. Rather, if there is police misconduct, the court should hold police accountable.

Judges Extend Injunction at Fairy Creek. What Now? - Capital Daily | Spotify

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That comment about holding police accountable is one Matthew Nefstead, lawyer for two individual members of the Rainforest Flying Squad and legal spokesperson for the group, is taking as a win.

A separate legal team representing protesters who have been charged with criminal offences is working on an application to have several of those charges thrown out, based on what they call an “abuse of process” by the RCMP, Nefstead said.

The arguments around what’s going on at Fairy Creek involve a tangle of climate change, biodiversity, economics, Indigenous title and rights, the history of colonization on Vancouver Island, forestry policy, logging practices, revenue sharing agreements, land-use policies, public consultation processes, the history of policing in BC, and the minutiae of civil law. Inventive legal arguments have been tried; pages of affidavits about the ecological importance of old-growth forest ecosystems have been submitted.

But the court cannot address the breadth of the issue on an appeal of an injunction expiry.

“ The case is not about the wisdom of government forest policy. It is decidedly not about the court’s views on whether and where old-growth logging should occur in this province, even in the context of climate change.” It is about “significant and persistent unlawful conduct by those who choose to abandon the democratic process and impose their will on others by force,” the three appeal judges wrote.

There is no dispute that the methods used by some protesters to stop loggers from accessing the forests are illegal. Many of the hard blocks where protesters locked themselves to trenches, canitelevers, tripods and other structures, were specifically built to be unsafe so that RCMP were forced to take caution while extracting protesters, slowing the process and also putting police in physical danger.

A woman in a tripod hard block at a Fairy Creek blockade in the summer. Photo: Zoë Ducklow / Capital Daily

In their ruling, the justices wrote that “Protests are part of a healthy democracy; criminal conduct is not,” and that in this case, the injunction is “all that stands between Teal Cedar and a highly-organized group of individuals who are intent on breaking the law to get their way.”

But that isn’t a fair description of his clients, Nefstead said. Lawful protesters are being lumped together with people who are breaking the law, and losing their civil rights in the process.

“Justice Thompson was quite clear that the RCMP has engaged in unlawful enforcement activity that has substantially infringed upon the civil liberties of people participating in protest. And it sounds to me like the Court of Appeal has not given as much weight as we would like to the interests of those lawful protesters and the way that their rights are being affected by the presence and enforcement of the injunction,” Nefstead said.

In this legal situation, the court is using the civil injunction as a mechanism to stop unlawful activity and protect Teal-Jones’ civil rights. But what are the consequences of the injunction? From Neftstead’s perspective, it infringes on civil liberty.

“The consequence that we saw from the use of an injunction was essentially police overreach and impacts on civil liberties beyond what was required to stop the illegal activity,” he said.

Last September when Thompson declined to renew the injunction, he also adjourned three other applications, because without an injunction, they were moot. The RCMP had applied to expand their powers to use exclusion zones and other access control methods; Nefstead represented his clients in an application to have the RCMP declared in contempt of court for their methods of enforcement, and sought a redrawing of the injunction to clarify police powers. Two individuals also wanted safety parameters established around how RCMP could extract people from hard blocks.

Now that the injunction is back in place, those legal applications may be revived. Legally, things are essentially back to where they were last fall. Nefstead is reviewing the situation with the Rainforest Flying Squad to decide what to do next.

A temporary injunction has been in place since early October when Teal-Jones appealed Thompson’s decision. Protest activities continue, but have been significantly truncated since the summer.

Since the injunction was issued on April 1, 2021, police have made 1,188 arrests. In a statement, RCMP media relations officer Sgt. Chris Manseau said the RCMP is reviewing the decision with respect to its role and authorities in enforcing the injunction.

“The RCMP has maintained a police presence in the area to respond to any calls for service in support of the local police of jurisdiction (Sooke and Lake Cowichan RCMP),” he added. “We will continue our roving patrols to ensure the forestry roads remain clear and unobstructed.”

Rainforest Flying Squad spokesperson and legal participant Kathy Code said even though camp is closed over the winter, and Teal-Jones is still actively logging, people in the movement are determined to keep going.

“I think it's definitely a turning point where we have to sort of regroup and reorganize and rethink our strategies, definitely. But we're not willing to give up,” she told the Capital Daily podcast. “We're a volunteer organization, this movement runs on passion and dedication to the cause. And I don't see anybody wanting to give up yet. We're still in it for the long haul.”