This week, someone asked me to provide some background regarding the recent RCMP arrests of Indigenous land defenders in Wet’suwet’en traditional territory.
It’s quite simple: applying private law is so much easier than investigating criminal offenses.
With the injunctions, all the gendarmes have to do is set up an exclusion zone and then catch anyone, including journalists, who ventures beyond the confines of the RCMP.
So far, 32 people have been taken into custody, according to land defenders, including photojournalist Amber Bracken and documentary filmmaker Michael Toledano.
Last year, Public Safety Minister and Solicitor General Mike Farnworth authorized the BC RCMP to redeploy resources within the provincial police service.
This allowed the mounted police to send large numbers of members to Wet’suwet’en traditional territory to enforce an injunction obtained by Coastal GasLink.
This was done under section 9.1 of the Provincial Policing Agreement.
Farnworth has since been elevated to the rank of Deputy Prime Minister. He is acting as Prime Minister in John Horgan’s absence as he seeks treatment for throat cancer.
Here is the first question opposition members must ask:
Did Mike Farnworth allow the RCMP to redeploy the OPP in the midst of a provincial weather emergency so that more RCMP officers could swoop down on Camp Coyote?
If so, it seems like an odd time to redeploy police resources as so many roads and highways have been washed away amid unprecedented flooding.
The updates make no mention of “private law”
The BC RCMP have released two updates on their “Coastal GasLink Injunction Enforcement”. In the first, he indicated that 14 people had been arrested,
This statement stated that there was “considerable damage” to the Lamprey Creek Bridge at the 44 kilometer point of the Morice Forest Service Road. In addition, there was a burning vehicle and a decommissioned excavator at the 64 kilometer point.
In the second, the gendarmes cited “additional obstructions, blockades, two structures resembling buildings as well as a pile of wood which was on fire around a drilling site”. These were at the two kilometer mark of the Marten Forest Service Road.
British Columbia RCMP statements indicate officers were enforcing an injunction obtained by Coastal GasLink.
What was not said is that the RCMP in British Columbia chose to apply private law.
This was done in lieu of arresting suspects for criminal law offenses described in the two RCMP statements.
And the gendarmes chose to enforce private law “deployed in military uniform, armed with assault weapons and teams of dogs”, according to a statement released by the Gidimt’en Land Defenders.
The penalties for violating an injunction can be much more severe than violating a criminal law. This is because disobeying a court order can result in an indefinite term of imprisonment.
In an article from UBC Law Review in 2000, then a law student and current professor of law and medicine at uOttawa, Amir Attaran said that being “sued” under civil law was “harmful”.
Around this time, Attaran revealed the existence of a Crown Lawyer Policy Manual statement. He argued that when “civil disobedience affects only a selected group of individuals, those individuals should generally be encouraged to seek a civil injunction to end the disobedience.”
According to the Attaran article, the RCMP’s policy on civil disobedience at the time reinforced this approach: “In accordance with the directives of the Ministry of the Attorney General, a low-key and non-confrontational approach was adopted and the criminal law was not is punished only for acts of violence or material damage … “
This led Attaran to conclude: “Together, the policies of the Attorney General and the RCMP create a regime in which public authorities prohibit the use of Criminal Code offenses relating to civil disobedience and blockade, such as mischief, intimidation, breach of the peace, contempt, and so on, leaving only remedies in private law. “
Attorney General David Eby oversees his department’s policy. Under the Attorney General Act, he is “the official legal adviser to the Lieutenant Governor and the legal member of the Executive Council. [the cabinet]”.
Also under this law, Eby “must advise the heads of government ministries on all legal matters relating to ministries.”
Here is the second question opposition members must ask:
Is David Eby pursuing the policy of banning the use of Criminal Code offenses relating to civil disobedience to pave the way for anti-pipeline protesters who will be jailed indefinitely for violating a court injunction?
Who is the law for?
The third point that deserves to be mentioned is the jurisprudence of the Supreme Court of Canada.
Canada’s highest court did not repudiate the “doctrine of discovery,” which resulted from formal statements by the Pope in the 1400s.
“The discovery was used as a legal and moral justification for the colonial dispossession of sovereign Indigenous nations, including First Nations of what is now Canada,” a document read on the Assembly of First Nations website. “During the ‘European Age of Discovery’ Christian explorers ‘claimed’ lands for their monarchs who believed they could exploit the land, regardless of the original inhabitants.”
The document noted that the decisions of modern courts have continued to rely on this doctrine. He also pointed out, however, that the Tsilhquot’in decision in 2014 declared that the “doctrine of terra nulllius (that no one owned the land before the assertion of European sovereignty) never applied to Canada.”
Coastal GasLink has often stated that it has the support of all elected chiefs and councils in the Wet’suwet’en territory.
These band councils were created under the federal Indian Act and exercise jurisdiction only over reserve lands created by the federal government.
One of the indigenous land defenders who was arrested, Sleydo ‘(aka Molly Wickham), said:
“The Wet’suwet’en people, under the governance of their hereditary chiefs, are standing in the way of the largest hydraulic fracturing project in Canadian history. Our medicines, our berries, our food, our animals, our water, our culture, our homes have all been here since time immemorial. We will never give up our children to live in a world without clean water. We assume our ancestral responsibilities. There will be no pipelines in Wet’suwet’en territory.
In granting the injunction to Coastal GasLink in 2019, Judge Margaret Church went out of her way to explain why the actions of the land defenders did not comply with the Wet’suwet’en law. This was his way of responding to concerns about federal and provincial licensing of a pipeline company in unceded territory.
Here’s a question opposition members might want to ask:
Does Prime Minister Justin Trudeau believe that the Supreme Court of Canada should formally repudiate the racist doctrine of discovery?
Shortly after Justice Church issued her injunction, TC Energy agreed to sell 65% of its stake in the Coastal GasLink pipeline to New York-based KKR and the Alberta Investment Management Corporation (AIMCo).
AIMCo acts on behalf of 31 pension, endowment and government funds.
KKR is a New York-based private equity fund manager who boasts of the important role it can play in “supporting the global transition to a low-carbon economy”.
The Trudeau government appointed Justice Church to the Supreme Court of British Columbia in 2016. In 2018, the Trudeau government and the Horgan governments approved the liquefied natural gas plant, export terminal and the $ 40 billion pipeline that is at the center of this dispute.
The lesson to be learned from all of this is that the Canadian legal and regulatory environment has assured KKR that it is a smart investment to purchase a fossil fuel pipeline crossing unceded Indigenous land to support this gas-spitting infrastructure project. carbon.
It is estimated that this will result in an increase of up to nine million megatonnes in British Columbia’s annual greenhouse gas emissions after taking into account all of the fracking natural gas that will be shipped to the facility. This represents 13% of all British Columbia emissions in 2018.
This investor knew that if anyone engaged in civil disobedience against this pipeline – and in favor of responsible climate policies – private law would apply. And they would be arrested. And if they returned to an RCMP-dictated exclusion zone protest, they could be thrown in jail indefinitely.
This is the context behind what is happening in northwestern British Columbia last week.
Protesters could seek their own court order
The arrests took place before another atmospheric river swept through British Columbia.
Regardless of that, as long as Mike Farnworth is the Acting Prime Minister and David Eby is the Attorney General, there will always be enough RCMP officers available to enforce private law on unceded Indigenous territory.
However, Attaran’s article in the British Columbia Law Journal indicated a way out for peaceful and law-abiding protesters.
He suggested that a person could file an application with the Supreme Court of British Columbia under the Judicial Review Procedure Act, asking for a court order forcing the Crown and the RCMP to apply the criminal law.
If the Crown and the RCMP did this, it would be less justified for a pipeline company or any other company to seek an injunction from the court to exercise a remedy through the exercise of private law.