Independent journalists fought for their right to report on Fairy Creek — and won

A July 20 court ruling directs RCMP to respect journalists’ rights to witness arrests at Fairy Creek.

Today a coalition of independent news outlets are celebrating a watershed ruling in favour of press freedoms in Canada.

The B.C. Supreme Court granted the media coalition’s application to modify forestry company Teal-Jones’s court-ordered injunction with a clause that aims to secure journalists’ right to witness the RCMP enforcement actions currently underway.

During a two-day hearing in Nanaimo, lawyer Sean Hern presented arguments to the court on behalf of the coalition of news outlets and groups, including The Discourse, IndigiNews, The Narwhal, Capital Daily, Ricochet Media, APTN News, Canada’s National Observer and the Canadian Association of Journalists (CAJ). 

The coalition argued that the RCMP’s use of exclusion zones in the Fairy Creek watershed area serves to restrict members of the news media from documenting arrests of demonstrators and infringes on journalists’ rights to press freedom, which are essential to a healthy, functioning democracy. 

Since RCMP began enforcing the April 1 injunction in May, dozens of journalists representing various news outlets have reported being forced to stand several hundred feet from enforcement actions in media pens with police escorts and being threatened with arrest if they do not comply. Reporters at Ricochet Media and other outlets have also reported being misled by media relations officers about the times and locations of arrests. 

This has made it impossible for them to report fairly and accurately on these highly politicized events as they unfold, creating a situation where editors are hesitant to send reporters out into the field for fear that they will be turned around by RCMP, making them dependent on documentary evidence from blockaders themselves in order to report what’s going on.

To remedy the situation, the media coalition’s lawyer asked the judge to insert a clause in the court injunction that specifically asks the RCMP not to interfere with media access unless there is a bona fide operational reason to do so.

Related: The Discourse and IndigiNews are going to court

In oral remarks today, Justice Douglas Thompson stated that the “geographically extensive exclusion zones” used by the RCMP at the Fairy Creek blockades are not “reasonably necessary” and reminded the RCMP of the “necessity of avoiding undue and unnecessary interference with the journalistic function.”

The written commentary with reasons for judgment will be published in the coming weeks, which Hern hopes will clarify what actions RCMP should take and how to strike a better balance between the rights of various stakeholders, which include demonstrators, legal observers, journalists, RCMP and Teal-Jones.

What are RCMP exclusion zones and why are they problematic?

When the courts grant an injunction to remove demonstrators, it’s up to RCMP to decide how to enforce it. Over the years, RCMP’s broad use of exclusion zones have restricted or denied access to members of the media at various demonstrations, including at Wet’suwet’en, Land Back Lane, Muskrat Falls and now Fairy Creek.

“The RCMP have been experimenting with the use of broad exclusion zones to restrict access to vast geographical areas since [at least] the Muskrat Falls protests in 2013,” explains Ethan Cox, editor and co-founder of Ricochet Media in a press conference held on July 14.

However, it’s been legally established that members of the media are not in violation of an injunction as they report on these events. “The RCMP have now been told by two different courts, as well as their own oversight body, that their treatment of journalists is unacceptable in a free and democratic society,” says CAJ president Brent Jolly. 

In a 2019 court ruling involving reporter Justin Brake, the judge ruled that the “no trespass” order against him at Muskrat Falls was unlawful, and noted that the freedom of the press is especially important for issues related to Indigenous rights and sovereignty on their lands. 

“To achieve the goal of reconciliation, better understanding of Aboriginal peoples and Aboriginal issues is needed. This places a heightened importance on ensuring that independently-reported information about Aboriginal issues, including Aboriginal protests, is available to the extent possible,” Justice Green wrote.

In 2020, the Civilian Review and Complaints Commission for the RCMP published a report in response to civil liberty concerns related to RCMP enforcements on Wet’suwet’en territory where they wrote that “instances of blocking public access to roadways, especially when such actions may have directly or indirectly unnecessarily hindered the media’s ability to report on the protests, may have been unreasonable.”

Typically RCMP enforcement actions related to injunctions are over in a matter of days, making it impossible to launch a legal challenge to fight for media access, explains Cox. But because the RCMP actions at Fairy Creek have spanned many months and are ongoing, the coalition was able to file a legal application and potentially improve coverage of this international story as it unfolds.

What did the RCMP have to say about it?

In this case, the RCMP argued that media access was adequate and that the primary reason for restricting journalists’ activities through the use of media pens and checkpoints was to protect their safety. 

RCMP acknowledged that misleading information was communicated to members of the media in the court filings, but attributed this to a series of errors and miscommunication. They also said that the remote location and lack of cell service make it challenging to communicate.

RCMP also cited concerns that protesters have been misrepresenting themselves as journalists to access exclusion zones, alleging that reporter Brandi Morin claimed that two people travelling with her were journalists when they were not. This was refuted by video evidence submitted by Morin.

A 2018 Supreme Court ruling determined that in this age of social media, anyone that is publishing live footage of an event might well be conducting journalism, explains Hern, and therefore journalists should be identified as such if they are documenting information and not participating in the protests. In other words, determining who is a journalist is not as easy as presenting accreditation, which does not exist in Canada anyway. 

The coalition points out that journalists are responsible for their own safety. “Journalists go into war zones, they go into other conflict areas. Professional journalists know what their standing is in these kinds of places and we don’t really need the RCMP to hold our hands in this case,” says Jolly.

What does this mean for reporting on the ground at Fairy Creek?

The court ruling is a stopgap measure meant to improve journalists’ access to Fairy Creek enforcement areas and is unlikely to resolve the widespread use of exclusion zones that limit journalists’ access to RCMP enforcement actions, explains Cox. 

The added clause to the injunction is not an order, rather a directive from the court that the RCMP do better. It’s now up to the RCMP to act on their legal obligations. 

The coalition had previously asked the RCMP to engage in a discussion about how access could be improved. Members of the coalition say they hope this ruling will compel RCMP to finally come to the table and engage with news organizations.

“If the concerns that they raised in court are the only concerns that they genuinely have, then we think it’s very easy to find compromises to address them and preserve media access,” says Cox.

What are the implications beyond Fairy Creek?

While the court filing relates to Fairy Creek specifically, the coalition hopes that this ruling will have wider impacts, empowering media lawyers to request that similar clauses be inserted in future court injunctions.

“Of course the police would prefer to do their work in secret, but our charter does not afford them that luxury,” says Cox.

“If these tactics are allowed to stand unchallenged, the primary victim is the public’s right to know,” he adds. “We will not stop. … This is an existential issue for us.”

This is the first time the CAJ has launched a case of this kind. Typically the media association is just a signatory to existing court cases, explains Jolly. He added this would not have been possible without the tireless work of lawyer Sean Hern and the independent outlets involved. [end]

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Editor’s note July 22, 2021: This story was updated to correct the name of the level of court to read the B.C. Supreme Court.

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