Crown to announce if Coastal GasLink pipeline protesters will face criminal contempt charges

A Crown prosecutor is expected to announce Wednesday whether more than two dozen protesters will face criminal contempt charges for allegedly defying an injunction protecting construction of a controversial pipeline in northern British Columbia.

B.C. Supreme Court Justice Marguerite Church asked the B.C. Prosecution Service in April to consider charges against 27 individuals arrested last fall in a series of blockades and actions opposing Coastal GasLink’s natural gas pipeline.

It’s the fourth time a judge has asked the Crown to weigh in on defiance of injunctions allegedly breached by supporters of the Wet’suwet’en hereditary chiefs, who claim Coastal GasLink does not have consent to cross their land.

Prosecutors declined Church’s invitations in 2019 and 2020 to pursue criminal contempt against protesters accused of obstructing the road to the pipeline work site.

And in 2021, the Crown decided not to prosecute members of the Gitxsan Nation arrested for blocking a rail line in solidarity with the Wet’suwet’en.

In all three cases, the Crown said proceeding with criminal contempt charges was not in the public interest — but did not explain why.

The case highlights the difference between civil and criminal contempt — as well as land title questions driving protests against the Coastal GasLink project.

“There’s this perception that [the protesters] are being lawless, when in virtually all these cases, Indigenous peoples are acting according to their own responsibilities under their own laws,” says Kris Statnyk, a Gwich’in Indigenous rights lawyer based in New Hazelton, B.C.

“Except, in injunction proceedings, the courts haven’t really been open to hearing these types of arguments.”

‘The concept of public defiance’

If completed, the Coastal GasLink pipeline will span 670 kilometres from near Dawson Creek in the east to Kitimat on the Pacific Ocean.

The company has signed benefit agreements with 20 band councils along the project’s route. But Wet’suwet’en hereditary leadership says band councils do not have authority over land beyond reserve boundaries.

Coastal GasLink obtained an interlocutory injunction in 2019 blocking anyone from “physically preventing, impeding, restricting or in any way physically interfering” with access to the road which leads to the company’s work site.

The difference between civil and criminal contempt of a court order is spelled out in a 1992 Supreme Court of Canada decision that says the distinction lies “in the concept of public defiance that accompanies criminal contempt.”

“The Crown must prove beyond a reasonable doubt that the accused defied or disobeyed a court order in a public way with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court,” says the ruling on a dispute between the United Nurses of Alberta and Alberta’s Attorney General.

‘Prepared to up the ante’

Martin Peters, the lawyer who represented protesters in all three previous cases where the Crown decided not to proceed with criminal contempt, says he thinks the Crown assesses each charge on its own merits.

He points to the case of the Gitxsan rail blockade, where prosecutors said charges against only three of 12 protesters had a “substantial likelihood of conviction” — the standard required by B.C.’s Crown Prosecution Service — before deciding it wasn’t in the public interest to prosecute them.

“As to what’s in the public interest, I don’t know how to unpack that,” Peters says.

He doesn’t believe the government has an “agenda” but says a lot of people — including companies who believe “they’re effectively in business on behalf of the public” — would like to know what the “public interest” means.

Peters says none of his clients wanted to be prosecuted for criminal contempt, but all were ready to defend themselves.

“In effect, they’re prepared to up the ante, and say, ‘Yeah, but this is our land. Don’t come along and tell us that you make a court order that we can’t be on our land. That’s something that we’re prepared to litigate for a very long time,'” he says.

‘They need to step up’

In a study that collected data in 2019 on injunctions issued across Canada, the Yellowhead Institute found 76 per cent of injunctions filed against First Nations were granted, while 81 per cent filed by First Nations against corporations were denied.

Statnyk, an advisory board member of the Toronto-based, First Nations-led research centre, says the numbers speak to a “proliferation of the injunction as a tool to remove Indigenous people from opposing these projects.”

He says the mystery of what’s in the “public interest” sidesteps questions like how B.C.’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples might factor into the Wet’suwet’en conflict.

“Really, these underlying issues are about land title and that’s where government has its obligation,” Statnyk says.

“They need to step up and not just stay in the weeds.”

In the case of the Gitxsan protesters, the judge concluded criminal contempt charges could still be considered — despite the Crown’s position — but earlier this year CN Rail said it wouldn’t pursue the matter.

Peters says the question of a judge bringing a criminal contempt charge against protesters irrespective of the Crown remains a “live issue” in the case because it will invariably involve upholding the rule of law.

“And that’s a very big question as to what the rule of law includes,” he says.

“Does the rule of law cover people swearing in court? Does it cover people blocking a railroad? Does it cover the constitutional rights of the Gitxsan and the Wet’suwet’en to their own territory?”