UN Special Rapporteur on Environmental Defenders “deeply troubled” at the use of civil injunctions to ban protest

Photo: Michel Forst on a PBI-Canada webinar about COP28 and environmental defenders, December 7, 2023.

Michel Forst, the United Nations Special Rapporteur on Environmental Defenders, has just released this two-page report on “the increasingly severe crackdowns on environmental defenders in the United Kingdom” under the Police, Crime, Sentencing and Courts Act 2022 following his visit there earlier this month.

His report received coverage today in The Guardian “UN expert condemns UK crackdown on environmental protest” and CNN “United Nations report heavily critical of UK’s ‘increasingly severe crackdowns’ on environmental protesters”.

Forst notes: “Protests, which aim to express dissent and to draw attention to a particular issue, are by their nature disruptive. The fact that they cause disruption or involve civil disobedience do not mean they are not peaceful. As the UN Human Rights Committee has made clear, States have a duty to facilitate the right to protest, and private entities and broader society may be expected to accept some level of disruption as a result of the exercise of this right.”

He later highlights: “I am deeply troubled at the use of civil injunctions to ban protest in certain areas, including on public roadways.”

The use of injunctions against Indigenous land defenders in Canada

In October 2019, the Toronto-based Yellowhead Institute released a 68-page “Red Paper” report titled Land Back.

The Canadian Press reported: “A study of over 100 injunctions published by the Yellowhead Institute, a First Nations-led think tank based at [Toronto Metropolitan University], found 76 per cent of injunctions filed by corporations against First Nations were granted, compared with 19 per cent of injunctions filed by First Nations against corporations.”

That article adds: “Irina Ceric [now an Assistant Professor in the Faculty of Law at the University of Windsor] who worked on the study, said the use of injunctions to dispel protests has been on the rise in Canada.”

It also notes: “Shiri Pasternak [a Toronto-based researcher, writer, and organizer] said legislators appear to be responding to recent events with more extreme measures rather than reconsidering how injunctions are used. She pointed to a law introduced in Alberta this week that would heavily fine people who block roads and rail lines and said the recent proliferation of injunctions speaks to their function as a last resort for companies when negotiations with Indigenous leaders break down.”

The Critical Infrastructure Defence Act was passed in Alberta in June 2020. The Keeping Ontario Open for Business Act, that became law under Premier Doug Ford in April 2022, has raised similar concerns.

Recent conviction of three Indigenous land defenders

CBC recently reported: “A prominent Wet’suwet’en leader and two pipeline opponents were found guilty of criminal contempt of court for breaking an injunction against impeding work on the Coastal GasLink pipeline. B.C. Supreme Court Justice Michael Tammen read his decision to the court in Smithers on Friday [January 12].”

Photo: Land defenders Corey Jocko (Mohawk), Shaylynn Sampson (Gitxsan) and Sleydo’ Molly Wickham (Wet’suwet’en). Photo for The Tyee by Amanda Follett Hosgood.

The CGL pipeline was built on Wet’suwet’en territory without the consent of the Wet’suwet’en Hereditary Chiefs and despite the repeated requests of the United Nations Committee on the Elimination of Racial Discrimination to halt construction.

The CBC article adds: “Sleydo’, Sampson, and Jocko have filed abuse of process applications with the court on these charges, alleging the RCMP used excessive force when they were arrested and that they were treated unfairly while in custody.”

Deeply concerning testimony emerged last week from this hearing as we have summarized in our article: Twelve concerning things we learned about the RCMP C-IRG during the first week of the abuse of process hearing (January 20, 2024).

Federal legislation in Canada?

The Guardian has reported that it “has found striking similarities in the way governments from Canada and the US to Guatemala and Chile, from India and Tanzania to the UK, Europe and Australia, are cracking down on activists trying to protect the planet.”

The Police, Crime, Sentencing and Courts Act 2022 was passed by the British Parliament on April 26, 2022, under the government of then-Prime Minister Boris Johnson.

With a federal election expected in Canada this year (or at the latest that must be held by October 20, 2025), we will monitor for proposed legislation in this country.

In 2021, the Conservative Party platform (page 33) stated: “Last year’s rail blockades [in solidarity with Wet’suwet’en land defenders] demonstrated the importance – and vulnerability – of the infrastructure that ties our country together. Canada’s Conservatives will amend s. 431.2 of the Criminal Code to create an offence of interference with an infrastructure facility or a public transportation system punishable by either summary conviction or indictment, depending upon the severity of the offence.”

We continue to follow this.