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People who have declared themselves 'Land Defenders' sing a song as they guard an area of a logging cut block called “Heli Camp” in the Fairy Creek logging area near Port Renfrew, B.C., on Oct. 4.JONATHAN HAYWARD/The Canadian Press

Kent Roach is a Professor of Law at the University of Toronto. His most recent book, Remedies for Violations of Human Rights, was published this year by Cambridge University Press.

After months of protests in the Fairy Creek area in Vancouver Island, B.C., which has seen more than 1,100 people arrested, the B.C. Supreme Court’s Justice Douglas Thompson rejected a bid to extend a police-enforced injunction in late September. However, the B.C. Court of Appeal temporarily reinstated it on Friday, pending the outcome of an appeal scheduled for Nov. 15.

Noticeably absent from all the proceedings was the Pacheedaht First Nation. It is on their traditional lands that a logging licence has been granted to the lumber company that first obtained the anti-protest injunction.

Though Justice Thompson’s judgment may be overturned, it raises some fundamental questions about a disturbing pattern where police generally require injunctions before intervening with respect to blockades and protests. His decision came from concerns that the public interest was not served by the way the RCMP was enforcing the injunction. He noted that the RCMP continued to engage in “unjustified, substantial and serious” infringement of civil liberties.

Acts of police misconduct caught on camera included removing protesters’ COVID protective masks to use pepper spray and destroying one protester’s guitar. The judge was also concerned that the RCMP had removed identifying information on their uniforms and were wearing “thin blue line” badges.

Injunctions against protests represent an undesirable privatization of the criminal law. Resource extraction companies have the legal resources to obtain injunctions, and they are good at convincing judges that they will suffer irreparable harm and the public interest requires them so that they can continue logging or mining. Indeed, Justice Thompson accepted that the lumber company that employs more than 1,000 people would suffer irreparable harm.

But too often, the anti-protest injunction hearing focuses more on economic damage to resource extraction companies than harm to either the environment or Indigenous rights. The judge who granted the original injunction defined the issue narrowly as the need to maintain law and order. He concluded it was not his job to determine the effect of old growth logging on climate change.

Justice Thompson’s judgment, meanwhile, was more concerned that the reputation of the courts was being harmed by the RCMP’s actions. But protecting the reputation of courts is not the same thing as justice. A more justice-centred approach would address whether the logging itself causes irreparable harm and the whether the public interest favours preserving forests that absorb carbon or specific accommodations to allow protest.

Another area of concern is that, even if the decision to cease the injunction is affirmed on appeal, it suggests that “there is every chance” that the RCMP will lay criminal charges against some protesters. So far, the B.C. prosecutors have only approved three criminal charges as consistent with the public interest, while the RCMP has continued to lay criminal charges of mischief and obstruction of justice even after the injunction expired. Justice Thompson even suggested that the serious crime of “intimidation” could be charged.

At a criminal trial, protesters can try to defend themselves by claiming their actions were necessary because of climate change. But courts may not be ready to recognize this. Some day in the future, perhaps when it is too late for our children or grandchildren, they may.

This case further raises questions about the democratic control of the police, since the RCMP too often seem to be a law unto themselves. Justice Thompson was rightly unwilling to ignore the RCMP’s heavy-handed approach or defer it to the eventual resolution of complaints made against the RCMP. The Ministry of Public Safety is responsible for the RCMP, but it has no public directives about how the RCMP should police public protests – despite this being a recurrent source of controversy for decades, starting with the 1997 APEC protests at the very least. The Ipperwash Inquiry in 2007 further stressed the need for public directives.

As we await the outcome of the appeal, we should also remember to give the Pacheedaht First Nation the time it needs to consult with its elders, citizens, partners and experts to develop a sustainable plan that hopefully will lessen the need for such expensive and divisive conflicts in the future and leave a livable world for our children.

Editor’s note: An earlier version of this article incorrectly said Fairy Creek is in northern B.C.

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