COMMENTARY

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

by Charlie Smith

Recently, 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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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

Cody Merriman, the husband of Gidimt’en camp leader Sleydo’, was one of those arrested by the Mounties before being released with conditions to reappear in court. Photo by Dan Loan. Criminal Code offences relevant to civil disobedience to clear the way for antipipeline protesters to be jailed indefinitely for violating a court injunction?

In granting the injunction to Coastal GasLink in 2019, Justice Margaret Church went out of her way to explain why the land defenders’ actions were not in accordance with Wet’suwet’en law. It was her way of addressing concerns about the federal and provincial government issuing permits to a pipeline company on unceded territory.

Not long after Church issued her injunction, TC Energy agreed to sell 65 percent of its interest in the Coastal GasLink pipeline to New York–based KKR and the Alberta Investment Management Corporation (AIMCo). It acts on behalf of 31 pension, endowment, and government funds in Alberta. KKR is a New York-based private equity fund manager.

The Trudeau government appointed Church to the B.C. Supreme Court bench in 2016. In 2018, the Trudeau government and the Horgan governments approved the $40-billion liquefied-natural-gas plant, export terminal, and pipeline that’s at the centre of this dispute.

The Canadian legal and regulatory environment is set up in a way that convinced KKR to buy into a fossil-fuel pipeline crossing unceded Indigenous territory to support this carbon-spewing infrastructure project. By one estimate, the LNG project and its associated infrastructure will bring an increase of up to nine million megatonnes in annual B.C. greenhouse gas emissions. That’s after factoring in all the fracked natural gas that will be shipped to the facility. This amounts to 13 percent of all B.C. emissions in 2018. KKR knew that if anyone engaged in civil disobedience against this pipeline— and in support of responsible climate policies—private law would apply. And they would be arrested. This is the context behind what’s happening in northwestern B.C. this past week. The arrests have taken place in advance of another expected atmospheric river walloping B.C. It will likely result in more road washouts and flooding. Regardless of this, as long as Farnworth is the deputy premier and Eby is the attorney general, there will always be enough RCMP officers available to enforce private law on unceded Indigenous territory. g

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