COMMENTARY
Private law enables the arrests of land defenders
The RCMP could swoop down on unceded Wet’suwet’en traditional territory because of a court injunction
R
by Charlie Smith
ecently, someone asked me to provide context regarding the RCMP’s arrests of Indigenous land defenders on traditional Wet’suwet’en territory. It’s pretty simple: enforcing private law is so much easier than investigating criminal offences. With injunctions, all the Mounties need to do is set up an exclusion zone and then grab anyone, including journalists, who ventures beyond the RCMP boundary. The recent arrests are part of an ongoing
saga in this province. Last year under article 9.1 of the Provincial Police Services Agreement, Public Safety Minister and Solicitor General Mike Farnworth authorized the B.C. RCMP to redeploy resources within the Provincial Police Service. That enabled the Mounties to dispatch a large number of members into traditional Wet’suwet’en territory to enforce an injunction obtained by Coastal GasLink. Farnworth has since been elevated to deputy premier.
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THE GEORGIA STR AIGHT
NOVEMBER 25 – DECEMBER 2 / 2021
Heavily armed officers enforced an exclusion zone on unceded lands in the midst of a weather emergency to ensure that work will proceed on the Coastal GasLink pipeline. Photo by Dan Loan.
Here’s the first question that opposition MLAs need to ask: did Farnworth authorize the RCMP to redeploy the Provincial Police Force again—in the midst of a provincial weather emergency—so that more RCMP officers could be deployed against climate activists? If so, it seems like an odd time to shift police resources when so many roads and highways have been washed out in the midst of unprecedented flooding. The B.C. RCMP has published updates on its “enforcement on the injunction granted to Coastal GasLink”. In the first, it stated there was “considerable damage” to the Lamprey Creek Bridge at the 44-kilometre point of the Morice Forest Service Road. In addition at the 64-kilometre point, there was a vehicle on fire and a decommissioned excavator. In the second update, the Mounties mentioned “obstructions, blockades, two building-like structures as well as a wood pile that was on fire around a drilling site”. These were at the two-kilometre mark of the Marten Forest Service Road. What was left unsaid is that the B.C. RCMP has chosen to enforce private law. That was done instead of arresting suspects for violations of criminal law described in the two RCMP statements. And the Mounties have chosen to enforce private law “deployed in military garb, armed with assault weapons and dog teams”, according to a news release issued by the Gidimt’en Land Defenders. The penalties for violating an injunction can be far more severe than breaking a criminal law. That’s because disobeying a court order can result in indefinite jailing.
In an article in the UBC Law Review in 2000, then law student and current University of Ottawa professor of law and medicine Amir Attaran stated that getting “prosecuted” under civil law was “prejudicial”. At that time, Attaran revealed the existence of a Crown counsel policy manual statement. It maintained that where “civil disobedience affects only a selected group of individuals, those individuals should generally be encouraged to apply for a civil injunction to stop the disobedience”. According to Attaran’s article, the RCMP’s policy on civil disobedience at that time reinforced this approach: “In accordance with the direction of the Ministry of Attorney General, a low key non-confrontational approach has been adopted and the criminal law is sanctioned for only significant acts of violence or property damage…” That led Attaran to conclude: “Taken together, the Attorney General and RCMP policies create a regime in which public authorities foreclose the use of the Criminal Code offences relevant to civil disobedience and blockading—such as mischief, intimidation, breach of the peace, contempt, and so on—leaving only remedies in private law.” Attorney General David Eby oversees policy in his ministry. Under the Attorney General Act, he “must advise the heads of the ministries of the government on all matters of law connected with the ministries”. Here’s the second question that opposition MLAs need to ask: is Eby continuing with the policy of foreclosing the use of the see next page
