Rob Shaw: The BC Court of Appeal delivered an unambiguous, comprehensive, and firm rebuke to Fairy Creek protesters.
BC’s top court has issued a stinging rebuke to the old growth logging protesters at Fairy Creek on southern Vancouver Island, calling them a “highly-organized group of individuals who are intent on breaking the law to get their way” and reversing an earlier court’s ruling in September that the protesters had trumpeted as validation of their actions.
Three justices from the BC Court of Appeal brought the hammer down on the Rainforest Flying Squad, whose members have for a year clashed with police on the logging roads near Port Renfrew to prevent company Teal Jones from logging the area.
The protesters thought they had won in September when BC Supreme Court Justice Douglas Thompson refused to extend Teal Jones’ injunction, saying the court’s reputation had been badly damaged by RCMP officers who used excessive force in arresting the protesters, that it wasn’t in the public interest to extend the injunction and that perhaps a better remedy would be criminal charges against any protesters breaking the law.
All that was incorrect, according to the BC Court of Appeal.
It overturned the decision and reinstated the injunction until September 26, 2022 – though most protesters at Fairy Creek have since packed up and gone home due to the cold winter weather.
“Protests are part of a healthy democracy; criminal conduct is not,” wrote the justices. “In the circumstances of this case, the injunction is all that stands between Teal Cedar and a highly-organized group of individuals who are intent on breaking the law to get their way.”
The protesters raised more than $1 million on social media, deployed drones to surveil the police, resupplied their camps with helicopters and were “committed, sophisticated, and well-organized,” the appeals court observed.
They were flagrantly breaking the law by digging trenches in the roads, locking themselves into devices encased in concrete, constructing barricades (in one case covered with human feces and jars of urine), suspending themselves 30-feet over roadways, occupying trees, harassing Teal Jones employees and vandalising equipment.
“It is not tenable in a democracy for a group to abandon the democratic process and impose their will on others by force,” wrote the appeals justices.
Justice Thompson made a mistake in his earlier ruling by putting too much weight on “irrelevant considerations” like whether RCMP used excessive force in clearing the protesters and “too little weight to the public interest in upholding the rule of law,” according to the appeals ruling.
“By focusing on RCMP conduct, the judge effectively turned a private law matter into a public law one, assessing whether there had been an abuse of authority by police rather than focusing on Teal Cedar’s interests as a private litigant,” wrote the appeals judges.
Justice Thompson had concluded in September there was a “substantial risk to the court’s reputation whenever an injunction pulls the court into this type of dispute between citizens and the government.”
The Appeals court brushed that aside, addressing bluntly the public and political pressure that the Rainforest Flying Squad was able to exert through its clashes with police.
“The court’s reputational interest is not concerned with the popularity of its decisions,” the justices wrote.
The BC Court of Appeal ruling will undoubtedly be welcomed by Premier John Horgan’s government, which has wrestled with what to do about the long Fairy Creek protests that were occurring in the premier’s own riding once the injunction was ended.
The Rainforest Flying Squad had rejected the BC government’s promise to defer 2.6 million hectares of old growth forests for two years as inadequate.
The lower BC Supreme Court ruling had punted the issue straight to Horgan to resolve, but the appeals reversal now puts the immediate future at the site back onto the courts and RCMP.
Will the Rainforest Flying Squad protesters regather when weather approves and continue clashes with police at Fairy Creek? It’s not clear.
But if they do, they are likely to get increasingly severe rulings from the courts now that the BC Court of Appeal has set the tone from the top.
Hopefully the group saved some of the $1 million it fundraised on social media as well. The Court of Appeal’s final rebuke was to allow Teal Jones to recover its not inconsiderable legal costs from the protesters.
Rob Shaw has spent more than 13 years covering BC politics, now reporting for CHEK News and writing for The Orca. He is the co-author of the national best-selling book A Matter of Confidence, and a regular guest on CBC Radio.