A Nelson judge has extended an injunction against local members of the Sinixt First Nation and their supporters until June 30, preventing them from blocking a logging road in the Slocan Valley.
Despite expressing reservations, BC Supreme Court Justice Mark McEwan agreed to continue an interim injunction granted February 21 that expires today.
Galena Contractors of Nakusp applied for the order after being prevented access to Perry Ridge, where they have a contract with BC Timber Sales to build an eight-kilometer logging road extension and in doing so harvest about 5,000 cubic meters.
In court this morning, the company’s lawyer, Christopher Wiebe, told McEwan that since the injunction order was issued, Galena has been able to reach the site and work without interference. They feared that if the injunction was not continued, the blockade would resume.
Marilyn James of the Sinixt suggested she and others will return to the site tomorrow at daybreak to protect cultural sites in their traditional territory. “I’m a Sinixt woman within Sinixt territory,” she said outside of court. “I have to uphold my responsibilities to my society. We’re doing our cultural practices and they’re trying to turn us into criminals.”
Although she admitted to being afraid of police and fearful of what might happen, she said she was compelled to return: “It’s as important as my next breath. If I couldn’t practice my culture, I would cease being.”
Galena previously applied for an injunction when the blockade began last June, but McEwan refused to grant it, suggesting RCMP should instead take action under the Criminal Code.
Police recommended charges against three people, but in January, Crown counsel declined to approve them. RCMP then told the company they could not taking direct enforcement without a civil injunction and enforcement order. After resuming work in the area last month, Galena again met resistance and reapplied for an injunction, which McEwan granted for ten days.
Before extending the order, the judge asked Crown counsel representative Trevor Shaw why the matter couldn’t be addressed as a criminal case instead of through a civil process. “Why extend the injunction when the contractor has the benefit of the Criminal Code?” he asked, noting that the protest is now on YouTube. “That may turn whatever contemptuous actions into a criminal act because it’s public.”
McEwan added: “We’re forced to pretend this is a private injunction because police won’t enforce criminal law because charges won’t be approved. The government works against [the company’s] interest by saying they won’t enforce criminal statutes. Why does Galena have to come here?”
Shaw said he couldn’t answer, nor explain why the charges recommended last year were not approved, for while Crown counsel’s role is to assess police reports and make independent decisions, they had no further duty to explain those decisions. (Prosecutors in BC base charge approvals based on a substantial likelihood of conviction and whether they are considered to be in the public interest.)
McEwan noted he has repeatedly raised doubts over the last few years about using injunctions to end protests and conflicts that he believes should be solved by police intervention and charges of mischief or trespassing. “Typically, this has been enough. Police break up the protest. It works fine. It works really well. I don’t get in the middle of this. I remain a judge.”
McEwan asked RCMP Sgt. Darryl Little if he saw any obstacles to enforcing the injunction. “None,” Little replied.
A date of April 14 was also fixed to return to court to see if there have been any further developments. “I want to keep an eye on this,” McEwan said.
Wiebe, the company’s lawyer, said Galena is currently plowing the road and expects to get six or seven pieces of equipment in to start the road extension. He estimated the company has three to four months worth of work to do.
The Sinixt did not have official standing during today’s hearing, but several members were in court while supporters held a peaceful rally outside. Dennis Zarelli, named as co-defendant along with Marilyn James, Robert Watt, and Vance Campbell, tried to pass a letter to the judge. He later submitted it to the registry, but wouldn’t disclose what it said.
“We’re trying to get the court to operate under common law,” he said. “The only way to really meet is at that level. We’re trying to maintain and revitalize our cultural practices. It’s our culture and we have to protect it.”
Meanwhile, another local forest company is taking a wait-and-see approach before it seeks similar action. A contractor for Porcupine Wood Products of Salmo was turned back in January from a Pass Creek logging road by local Sinixt concerned that the work could trample an “archaeologically sensitive area.”
Porcupine woodlands manager Bill Kestell said last week they do not have a court date set and were awaiting the outcome of the Galena injunction application.
The Sinixt, who were declared legally extinct in Canada in 1956, do not have official status in the eyes of the federal and provincial governments, although they are recognized by some crown agencies and have won local support over the last 25 years since a burial ground was disturbed at Vallican.