Fairy Creek charges dropped, new protests gear up

Written By Rob Shaw

The largest outburst of civil disobedience in B.C.’s history ended with a whimper this week, after the case against most of the environmental protesters charged with criminal disobedience pretty much completely collapsed.

Crown prosecutors withdrew 11 criminal contempt charges against people arrested last year obstructing access to logging at the Fairy Creek site on southern Vancouver Island. Lawyers for the accused say they expect the remaining contempt charges against as many as 150 other people will be dropped in coming weeks.

“This is a situation where the rule of law is in play,” said lawyer Karen Mirsky, who has represented more than 20 of the accused at Fairy Creek and is also president of the board of the BC Civil Liberties Association.

“This is a situation where the rule of law is in play.”

Karen Mirsky

“We expect the RCMP to know the law and apply it. And I would suggest that is doubly-so when they are acting as emissaries of the court.”

So how did the largest, longest protest in B.C. history end up a mess of legal procedural wrangling, with millions of dollars spent on police enforcement and more than 1,000 arrests — but almost nothing else to show for it? And what does it mean for future clashes between environmental groups and natural resource projects?

Complicated cascade effect

The ramifications are widespread, and complicated. 

Many of the problems can be traced back to a controversial RCMP unit called the Community-Industry Response Group (C-IRG), which responds to protests at natural resource sites in B.C. (including the TransMountain pipeline expansion in 2017 and the Wet’suwet’en protest at Coastal Gaslink’s pipeline in northern B.C. in 2018). 

BC Supreme Court Justice Douglas Thompson ruled in February that the RCMP unit had failed to fairly explain the court injunction it was enforcing, because its officers read a shortened and incomplete version to people it was arresting.

Justice Thompson tossed out charges of criminal contempt against Ryan Henderson, a protester who had been perched on top of a tripod to block access to a forest service road. The Henderson ruling set off a cascade effect that undermined the other 150 charges.

“We cannot provide any numbers for how many files may be withdrawn.”

Dan McLaughlin

B.C.’s Crown prosecutors have appealed the Henderson case to the Supreme Court of Canada, but it could be some time before (or even if) the court takes up the matter, and in the meantime the existing ruling stands. The Crown tried to delay some of the trials of the other protesters to wait for the appeal, but failed.

“The Crown advised the court that we will review the remaining files that may be impacted by the Henderson decision to determine whether the Crown will proceed or withdraw,” said spokesperson Dan McLaughlin. 

“We cannot provide any numbers for how many files may be withdrawn, as that will be determined on a case-by-case basis, based on the available evidence.”

Community-industry policing under fire

It’s not the first time the RCMP’s C-IRG unit has been accused of making mistakes.

The same judge took the same unit to task in a 2021 ruling that said it was too aggressive in enforcing a BC Supreme Court injunction to clear the road so logging company Teal-Jones could access its land and continue logging.

At the time, Justice Thompson said the RCMP enforcement hurt the court’s reputation, and slammed the unit’s officers for removing their name tags, wearing thin blue line patches that some Indigenous groups consider a harmful reminder of colonialism, and ignoring the media’s charter-protected right to access the protest site.

Taxpayers have spent almost $50 million on RCMP C-IRG responses since 2017, including $19 million at Fairy Creek, according to figures the CBC obtained under Access to Information earlier this year. 

Last month, the RCMP’s civilian review agency launched an investigation into C-IRG, to determine whether it has proper policies, legal standards and best practices that comply with the Charter of Rights and Freedoms. 

This week, a coalition of environmental groups, civil rights organizations and lawyers co-signed a letter to the B.C. government calling it to halt funding to C-IRG, after The Tyee revealed $36 million of the province’s newly-announced $230 million RCMP funding will go to the unit.

The RCMP did not return a request for comment.

Future ramifications

More than 1,000 people were arrested at Fairy Creek during the year-long enforcement, though with many charges now jeopardized because of how those arrests were made, there are larger questions about what happens next time there’s a confrontation between environmentalists and workers at a mine, pipeline or forest location.

Attorney General Niki Sharma said she’s not concerned.

“I trust our justice system, and the tools they have to assess each fact pattern and each legal principle that’s before them, to make those decisions,” she said Wednesday.

“I trust our justice system, and the tools they have … to make those decisions.”

Niki Sharma

Nor, said Sharma, is the province troubled about the collapse of the Crown’s case at Fairy Creek.

“The decisions of the BC Prosecution Service are independent of government,” she said.

“Each case will vary, and each charge assessment will vary based on the judges that are making independent decisions, and the Crown prosecutors. So I don’t have any additional comment.”

Mirsky, who continues to represent protesters awaiting to hear their charges are dropped, said there’s absolutely a role for the province to play in reviewing whether it wants to continue funding the RCMP and its specialized unit.

“Is there a role for the AG and province to play in what’s happened with these prosecutions? Absolutely,” she said.

“Is there a role for the AG and province to play in what’s happened with these prosecutions? Absolutely.”

Karen Mirsky

“People in the province deserve proper policing that respects the rule of law and is informed by the law. To the extent we ask that question, and come to decide perhaps we’re not properly represented by the RCMP, maybe there is something there for them to look at.”

New round of protests on horizon

The lack of interest in reviewing the case is somewhat odd for a governing party that made it clear publicly, several times, it wanted rule of law restored at Fairy Creek.

Solicitor General Mike Farnworth and former premier John Horgan repeatedly spoke out about the protests going too far, and the refusal of protesters to listen to the Pacheedaht First Nation leadership’s request that everyone go home.

The images of the so-called war in the woods went international, from entrenched protesters burying their limbs into the ground to block vehicles, to videos of police deploying bear spray and dragging away individuals for arrest.

Amid rising pressure, the NDP government unveiled additional old growth deferrals and protected areas last spring. But those new measures are not enough, environmental groups have said. They are already gearing up for a new round of protests this year. Which raises the possibility of another conflict.

Given the violence, expense, confusion and legal wrangling that marked Fairy Creek, the idea of a repeat in 2023 is a sobering thought. Especially when we still haven’t sorted through the full ramifications of what went wrong the first time.