A British Columbia Supreme Court judge has denied a forest company’s application to extend an injunction against blockades by people opposed to the logging of old-growth trees in a remote area of southern Vancouver Island.
Justice Douglas Thompson says in a written decision that the factors in favour of extending the injunction at Fairy Creek north of Port Renfrew do not outweigh the public interest in protecting the court’s reputation.
Thompson’s ruling also lifted the injunction on Tuesday afternoon.
“In the current circumstances, I am not persuaded that the balance of convenience favours extending the injunction,” Thompson writes in his 32-page decision. “The factors weighing in favour of the injunction do not outweigh the public interest in protecting the court from the risk of further depreciation of its reputation.”
There have been more than 1,000 arrests at Fairy Creek since the original injunction went into effect in April.
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Forest company Teal Cedar Products Ltd. applied for a one-year extension of the injunction during court hearings in Nanaimo earlier this month, arguing protests were impeding the company’s legal rights to harvest timber.
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During the hearings, the court heard from lawyers representing the protesters who argued that people from all walks of life with environmental concerns were being treated like terrorists.
Thompson says in his ruling the methods of enforcement of the court’s order at the protest site have led to the serious and substantial infringement of civil liberties.
He says Teal Cedar and the RCMP asked the court to spend more of its “reputational capital” by issuing an order that would keep protesters at bay who may, or may not, be in breach of the injunction.
“Another available choice is to get the court out from the middle of this dispute, and let the government and police do what they will with the tools at their disposal — patrolling the roads and other lawful preventive policing measures, mobilization of the criminal law, and use of provincial laws such as the Forest and Range Practices Act,” says the ruling.
“And, if the available means of ensuring that rights lawfully bestowed by the legislature can be exercised are not adequate, there are legislative options.”
The B.C. government approved the request of three Vancouver Island First Nations to temporarily defer old-growth logging across about 2,000 hectares in the Fairy Creek and central Walbran areas, but the protests continued. Protesters known as the Rainforest Flying Squad said the old-growth forests outside of the deferred areas were still at risk of being logged.
Teal Cedar says in a statement it is reviewing the decision and will consider its options, adding that its work in the area “is important and responsible, vital to sustaining hundreds of jobs in the province and producing products we all rely on every day.”
Lawyer Phil Dwyer, who represented several members of the Rainforest Flying Squad, called the decision a “huge victory.”
“This is a very significant decision,” he said in an interview. “It’s really hard to say right now what’s going to happen on the ground out there.”
During the court hearings, a lawyer for the Mounties said police were being tasked with enforcing a court injunction under increasingly difficult circumstances.
Thompson’s ruling says the RCMP acted with “reasonable force” during much of the injunction period, but some video evidence presented during the hearings showed “disquieting lapses in reasonable crowd control.”
“One series of images shows a police officer repeatedly pulling COVID masks off protesters’ faces while pepper spray was about to be employed. Another shows a police officer grabbing a guitar from a protester and flinging it to the ground, where another officer stomped on it and kicked what was left of it to the side of the road,” he wrote.
Thompson says the RCMP’s enforcement of the injunction impacts adversely on the court’s reputation.
“The evidence before me indicates that the RCMP have now stopped searching pedestrians, but they continue to enforce exclusion zones that are more expansive than the law permits. Moreover, the media’s right of access continues to be improperly constrained.”
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