BC's Court Of Appeal Wades Into Fairy Creek

• Published date: 03 February 2022
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation
• Law Firm: McMillan LLP
• Author: Ms Melanie Harmer, Komal Jatoi and Mala Milanese

A unanimous decision from British Columbia's Court of Appeal has extended an interlocutory injunction restraining unlawful interference by protesters with logging operations in the Fairy Creek watershed.

This is the latest occasion where British Columbia's courts have been called upon to issue an injunction to respond to civil disobedience affecting a private entity. Though the dispute over logging in the Fairy Creek watershed on southern Vancouver Island has attracted significant national and international attention (raising a reported one million dollars through social media), there is a long history in British Columbia of civil courts being called upon to provide relief where protests against natural resource extraction cross the line from peaceful protest to unlawful conduct.

As said by the Supreme Court of Canada in upholding an injunction arising from the historically significant protests in Clayoquot Sound in the early-1990s, 'the task of the courts is to find a way to protect the legitimate exercise of lawful private rights while preserving maximum scope for the lawful exercise of the right of expression and protest'.¹ In this latest ruling, British Columbia's Court of Appeal emphasizes that the court's role in issuing injunctions is not about the wisdom of governmental forest policy nor its own views on old-growth logging. Those are matters for elected governments. Nevertheless, the court's involvement in enjoining unlawful conduct is a necessary and fundamental aspect both of civil society and of the rule of law. In the case of the Fairy Creek watershed, the public interest in having the court uphold the rule of law resoundingly tipped the scales in favour of extending the injunction.

Supreme Court Grants Injunction

Teal Cedar Products Ltd. ('Teal Cedar') is the holder of tree farm licence 46, a forest tenure located on southern Vancouver Island. The licenced area is almost 60,000 hectares and contains old-growth forest. Teal Cedar also holds permits that allow it to cut timber and conduct road-building activities within certain parts of its licence area.

Beginning in August 2020, Teal Cedar's forestry operations faced road blockades, which interfered with Teal Cedar's operations.² Teal Cedar sought an injunction against unknown persons operating as the 'Rainforest Flying Squad', the organizers of the blockades, on the basis that its business would suffer irreparable harm if the blockades were permitted to continue.

The British Columbia Supreme...