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A Thin Blue Tarp: Exclusion Zones and Public Access During Civil Disobedience

RCMP officers hold a tarp to block the view of an arrest from reporters and the public while one officer directs a photographer to move back to a position where they cannot see beyond the tarp.
June 16, 2021

Old-growth logging in British Columbia is just as controversial today as when the “War of the Woods” hit international headlines in the 1990s. The way the RCMP is continuing to use legally-questionable “exclusion zones” to restrict access in the Fairy Creek area protests is fueling the public’s confusion about these important issues.

These zones are not a new tool for the RCMP and have been used in its enforcement of other injunctions, such as in 2019-2020 in Wet’suwet’en territory in BC, and in 2013 in Elsipogtog territory in New Brunswick.

The RCMP is calling the exclusion zones in the Fairy Creek area “temporary access control areas,” but in practice, it appears they are identical to “exclusion zones” which the Civilian Review and Complaints Commission for the RCMP (CRCC) has expressed concern about in a 2019 report. Within these zones, the RCMP is stifling public access, corralling media and legal observers, using tarps and body positioning to block onlookers from witnessing arrests, restricting Indigenous peoples' movement within their territories, and asking lawyers to leave before arrests take place.

If these actions do not bother you, consider how you would feel if the same police actions were happening down the street from your home: envision a dozen RCMP vehicles filled with officers in tactical gear and bearing assault weapons rolling past your house, as well as police helicopters flying overhead – all to stop acts of peaceful civil disobedience.

The only difference in this case is that you aren’t seeing this happen – and this is not for a lack of media interest, but rather because many media members are being denied access through these exclusion zones (Episode #371 of Canadaland explores the impact of exclusion zones on media access, and how the Canadian Association of Journalists is challenging the injunction and calling on courts to expressly limit RCMP powers in future injunctions).

Public access to the Fairy Creek area is important to the political dialogue around forestry policy, and is explicitly provided for in the injunction. The terms of the injunction prohibit obstructing, impeding, or otherwise interfering with timber harvesting activities in the injunction area; there is no “exclusion” or “no go zone” provided for in the court order.

It is particularly troubling that the RCMP appears not to be distinguishing between those breaching the injunction – by interfering with operations – and those with a right to be in the area, such as members of the general public who wish to see some of BC’s remaining old-growth forest, media, or legal observers, who are ensuring the rights of protestors are respected during enforcement of the injunction.

Terminology:

  • “Exclusion zone”: a zone where police are blocking public access. Even without specific authority in a law or from a court, police do have the power to restrict access to certain areas, but this power is confined to certain circumstances and not a general power. The CCRC has made recommendations to the RCMP regarding the limits of police powers when using exclusion zones.**
     
  • “Injunction”: a court order that says that someone can or cannot do something. They can include enforcement orders for police. The enforcement orders in an injunction can include an “exclusion zone”.
     
  • “Interim or interlocutory injunction”: a type of injunction intended to preserve the status quo until a court holds a full hearing about the conflict at issue.
     
  • “Temporary access control area”: the terminology used by RCMP in relation to exclusion zones at the Fairy Creek protests.
     
  • “No go zone”: another term used for exclusion zone.
     
  • “Buffer zone”: another term used for exclusion zone.

What is happening at Fairy Creek?

Since last August, a group called the Rainforest Flying Squad has been blocking forestry company Teal-Jones from logging some of the last remaining productive old-growth forests in BC, in the Fairy Creek watershed and surrounding area on southern Vancouver Island. In April 2021, Teal-Jones filed a civil suit against Rainforest Flying Squad and others for unlawful interference with economic relations, interference with contractual relations and inducing breach of contract. This was the basis for them to seek an injunction and prohibit anyone from interfering with their logging operations.

The backdrop behind this conflict is the provincial government’s campaign promise to adopt all 14 recommendations of the Old Growth Strategic Review Panel Report, and its subsequent failure to either defer old-growth logging in high risk areas (a key recommendation of the Report) or to provide funding for First Nations for critical old-growth protection initiatives.

After the injunction was issued and the blockades continued, the RCMP established what it called a “temporary access control area” to enforce the injunction through arrests. As of June 15, the RCMP is reporting that arrests are now totaling 234, and of these, “187 were for breaching the injunction (civil contempt of court), 42 were for obstruction, 4 were for mischief, and 1 for counselling to resist arrest.” On June 2, Legal Observers Victoria stated that many of the obstruction charges are for allegedly being present within the exclusion zone (what RCMP are calling the temporary access control area).

It is still unclear if the BC government’s recent announcement to defer old-growth logging for some of the forests in the region will quell tensions, as the extent of protection does not cover all the nearby old-growth. As of the date of this post, the blockades continue. In any case, this conflict is undoubtedly not the last time injunctions and police force will be used to ensure continued resource extraction in Canada.

What are injunctions and how are they used in disputes about resource extraction?

An interim injunction is a civil remedy that is intended to preserve the status quo until a court holds a full hearing about the conflict at issue. Injunctions usually lay out what is prohibited, who is prohibited from doing those things, in what location, and for a prescribed time frame.

For example, as mentioned above, the Fairy Creek injunction expressly prohibits, among other things, interfering with timber harvesting activities in the injunction area. Injunctions are not intended to stop the otherwise legal activities of the general public. The Fairy Creek injunction explicitly prohibits blocking public access and recognizes the right to peaceful, lawful, and safe protest.

In BC, police and prosecutors have a policy that in cases of civil disobedience where there is no injunction, there are only limited circumstances in which criminal charges are in the public interest (and therefore should be laid). This policy is intended to encourage civil proceedings rather than criminal proceedings.

However, where there is an injunction granted by a court, those breaching the injunction can be arrested and charged with contempt of court. As such, industry proponents must sue individuals and get an injunction for police to get involved. For example, in 2018 Kinder Morgan sued 15 individuals for nuisance, conspiracy and unlawful interference with economic relations. This suit gave Kinder Morgan the legal grounds to seek an injunction (which is now indefinite) to limit access around Kinder Morgan’s work sites in Burnaby.

This policy incentivizes industry proponents to file lawsuits against protestors in order to get injunctions. This has the effect of criminalizing civil disobedience and triggering police involvement.

It is worth noting that there are a limited number of cases where injunctions have been used to protect lands and waters from resource extraction, as opposed to protecting industry interests – such as injunctions that have been used to stop logging on First Nations’ territories. These cases bring hope that the court will recognize that “irreparable harm” (a requirement for an interim injunction) is a harm that “cannot be quantified in money,” and grant injunctions accordingly.

Unfortunately, the injunction is a legal tool that is currently being interpreted and granted by the courts in a manner that typically favours resource extraction, reinforcing the impossible position that many Indigenous nations find themselves in before Canadian courts. This trend is merely the latest chapter in a history of state-sanctioned violence on people and land to uphold an unsustainable resource extraction practice (such as the logging of old-growth).

Even in cases where Indigenous laws and rights are asserted as justification for a blockade, injunctions and enforcement orders are often issued for the forcible removal of Indigenous people from their territory. Land Back, a Yellowhead Institute Red Paper, reports that:

The sad final tally was that 76 percent of injunctions filed against First Nations by corporations were granted, while 81 percent of injunctions filed against corporations by First Nations were denied. Perhaps most tellingly, 82 percent of injunctions filed by First Nations against the government were denied.

High-profile examples of injunctions favouring industry include those issued over fish farms in 2017 and those issued over the Coastal GasLink project in 2018 and 2019.

What do injunctions have to do with exclusion zones?

Exclusion zones are sometimes included as part of an injunction when granted by the courts. For example, an exclusion zone was specifically requested in 2014 by Kinder Morgan in relation to its Trans Mountain Expansion (TMX) project and denied, then was granted in the 2018 injunction for further protests of the TMX project.

In Fairy Creek, the RCMP has taken it upon itself to set up the exclusion zone, even though the injunction issued by the court does not include such a zone. The RCMP has set up checkpoints which it says are at the boundaries of the “temporary access control area,” and has denied access to members of the public, media and legal observers. Officers have also arrested individuals for being within this zone.

Close to a hundred people pushed an RCMP exclusion zone at Caycuse. Led by Indigenous matriarchs/elders, they occupied the checkpoint. When RCMP called for backup, around 10 people were arrested, including at least two Indigenous youth. During those arrests, media and bystanders were corralled away from the arrests and threatened with arrest if they returned. (Photo and context provided by Mike Graeme)
Close to a hundred people pushed an RCMP exclusion zone at Caycuse. Led by Indigenous matriarchs/elders, they occupied the checkpoint. When RCMP called for backup, around 10 people were arrested, including at least two Indigenous youth. During those arrests, media and bystanders were corralled away from the arrests and threatened with arrest if they returned. (Photo and context provided by Mike Graeme)

 

While some discretion has been accorded by the court for the timing and manner of arrests, the RCMP is continuing to ignore the fact that the types of stop checks and exclusion zones being used in Fairy Creek have been reviewed by the Civilian Review and Complaints Commission for the RCMP (CRCC). The CRCC found that these zones, when not specifically provided for in the court’s order, are an interference with personal liberties and have no legal authority except in certain specific, limited circumstances (to prevent crime and ensure public safety).

Despite subsequent complaints and repeated calls for change by the CRCC since this report was issued, the RCMP has expressed reluctance to implementing the recommendations and has not changed its practices regarding exclusion zones.

Although similarly worded to the Wet’suwet’en injunction (which prompted RCMP exclusion zones in 2020, despite also not providing for such a zone), the Fairy Creek injunction specifies that protestors are not to impede public access. The explicit mention of “public access” in the Fairy Creek injunction amplifies the problematic nature of the RCMP’s enforcement actions: in enforcing the injunction, the RCMP is perpetrating the infringement on individual liberties that the court order seeks to prevent.

This raises the question: if the injunction itself does not specify the RCMP’s use of a no-go zone – which Teal-Jones could have sought in its application to the court and the court could have granted – under what authority is the RCMP turning away or arresting members of the public who are complying with the injunction?

Do other police powers justify the use of exclusion zones?

Police forces have powers that are not granted by statute (legislation) or court order. These are called “ancillary” (supportive or supplemental) or common law police powers, and they fill in a “statutory gap” – a grey zone where the action taken by police is not explicitly authorized by legislation or the Criminal Code, but is recognized as important to police officers carrying out their duties. These ancillary powers can range from the use of sniffer dogs, to entering homes without a warrant and are often extremely limited.

Before a court will accept new ancillary police powers or consider the legality of their use, it will consider the situation and balance the necessity of that specific police action with the individual liberties that are breached when it is used.

For example, in 2019 in a case involving an individual who was arrested for entering the site of a protest, the Supreme Court of Canada held that police cannot arrest someone acting lawfully in order to prevent an anticipated breach of the peace. The Court considers violence to be at the core of “breach of the peace”, and in that particular case, it was not enough that the police thought violence could erupt at the protest site.

In a case involving police cordoning off a street during the visit of a foreign dignitary in the 1970s, the Supreme Court of Canada found that the conduct of police was justified to protect the dignitary from assault. The police arrested an individual who pushed past them, and the SCC found this fell within the general scope of their duties. The fact that the foreign dignitary had been the target of violence a few days prior was significant in this decision.

More recently (and notably after the enactment of the Charter of Rights and Freedoms in 1982), the Ontario Court of Appeal ruled that police actions in requiring a bag check for public access to a protest site during the G20 summit in Toronto was improper, even after recent violent outbursts.

The court has been clear that police powers are not as broad as their duties.

Individuals arrested by the RCMP for entering an exclusion zone rarely challenge the use of exclusion zones in court, as charges are often not laid, or are dropped before the question of their validity makes it into the courtroom. Arrests are made in these makeshift no-go zones to remove protestors from the area, in a form of “catch and release” policing.

Individuals who are subject to these arrests often resort to filing complaints with the CRCC rather than paying the legal costs to go to court to challenge this method. CRCC complaints largely go ignored by the RCMP, as discussed above.

Why does all of this matter?

On the ground at Fairy Creek and elsewhere where they are used, there is a lack of clarity regarding exclusion zones. Members of the public have many questions: where is the exclusion zone (and who decides where it is)? How does one know whether they will be arrested for standing or walking in a particular area? Will they be warned first and have the chance to leave? There are reports of RCMP officers at Fairy Creek moving the boundary of the exclusion zone throughout the day, as well as arresting some people for being in the exclusion zone, but not others.

This confusion only fuels the conflict. RCMP must respect the rights of individuals, and uphold the law – which includes the terms of the court-ordered injunction, which expressly allows for the media and the public to access these sites so that people can make informed decisions and hold police and government accountable for their actions and policy.

The RCMP’s use of exclusion zones to stop members of the public who are abiding by the terms of an injunction from accessing the area is legally questionable. This restricted access is particularly concerning for media and legal observers who intend merely to witness and document interactions between police and those breaching an injunction. The RCMP mandate highlights the RCMP’s role in “safeguarding Canadians’ rights and freedoms in an open, inclusive, and democratic society” and the way exclusion zones are being used runs counter to that mandate.

The Canadian legal system’s handling of conflicts over resource extraction is in desperate need of reform. There are many issues that must be addressed – including the injunction regime, which currently protects extractive industry profits; the policies permitting the harvest of irreplaceable old-growth forest habitat; and the continued systemic racism within policing that disproportionately criminalizes BIPOC Individuals.

In order for members of the public to understand these issues, make informed decisions, and hold their political representatives to account, they must be able to access the places underlying these debates, or at the very least see the interactions between police and protesters properly covered by the media. They should also be able to stay within the bounds of an injunction without fear of arrest for simply being on public land.

The RCMP’s use of exclusion zones is pulling a thin blue tarp over our eyes, and we are calling on the RCMP to step out from behind that veil and respect the “rule of law” even when it places limits on police powers.


*See Figueiras v Toronto (Police Services Board), 2015 ONCA 208 (CanLII)

**See the CCRCs Interim Report re: Investigation into the RCMP’s Response to Anti-shale Gas Protests in Kent County, New Brunswick

Recommendation #5: That the RCMP provide members [of the RCMP] who are engaged in the policing of public protests/public order policing with detailed, accurate interpretations of the conditions of any injunction or unique legal provisions that they are expected to enforce, obtaining legal advice as necessary.

Recommendation #6: That decisions to restrict access to public roadways or other public sites be made only with specific, objectively reasonable rationales for doing so, and if legally permissible, be done in a way that interferes with the rights of persons in as minimal a fashion as possible, for example, a buffer zone that is as limited in size as possible and an exclusion that is as short in duration as possible.

Recommendation #7: That, particularly when policing a public protest, members [of the RCMP] be cognizant of the limits of their powers, specifically in relation to curtailing protesters’ ability to assemble and express themselves in a lawful manner.


NOTE: This post was updated on June 17th to better reflect the findings of the CRCC report regarding the use of exclusion zones.


Top photo: RCMP officers hold a tarp to block the view of an arrest from reporters and the public while one officer directs a photographer to move back to a position where they cannot see beyond the tarp. (Photo and context provided by Mike Graeme)

Author: 
Jack Jones - Summer Law Student
Jenna Jeffrey - Summer Law Student