A history of ‘media exclusion zones’

How injunctions became synonymous with police-driven crackdowns on press freedom in Canada

 

By H.G. Watson

The clouds move among the old growth forest in the Fairy Creek logging area near Port Renfrew, B.C. Tuesday, Oct. 5, 2021. Photo by THE CANADIAN PRESS/Jonathan Hayward

 

She moved back and forth between the land defenders’ waist-high barricade of traditional land and the police lines unimpeded. “I just said, ‘I’m media,'” says Pugliese, now editor-in-chief of Canadaland. “It was no problem.”

It’s a far cry from what has transpired at land defence actions in recent years. At Fairy Creek, B.C., in the summer of 2021, journalists were “repeatedly being blocked and interfered with by police” while trying to report on blockades protecting old growth rainforest on Vancouver Island. The Canada Press Freedom Project has tracked 16 denials of access by RCMP from May to September 2021 alone, and one arrest. Just a few months later on Wet’suwet’en territory, two journalists were arrested at gunpoint by the RCMP and jailed along with matriarchs and land defenders who are trying to stop a tunnel for a pipeline being drilled under the Morice River in British Columbia. Increased coverage of Indigenous protests and land blockades over the last few years has dovetailed with a concerted effort to limit media workers’ and the public’s rights to see what is happening.

There’s one common denominator in both situations: exclusion zones.

An injunction is a legal remedy that either compels or stops someone from doing a certain action. It’s not a new tool in the slightest — some researchers have tracked the origins of the injunction to ancient Rome.

How this has worked in practice in Canada is that companies will seek injunctions to stop protesters from blocking their business activities — like creating a road blockade — or from protesting on what the company views as its property. If issued by a judge, anyone who breaks the injunction is subject to penalties or arrest. Sometimes, these injunctions include what is called an exclusion zone: an area where police limit public access. (They can also be called no-go zones, buffer zones, temporary access control areas, or, colloquially, media exclusion zones, though this does not comprehensively describe their scope.) That said, in some cases, like Fairy Creek and Wet’suwet’en, an exclusion zone was set up despite not being specifically enumerated in the injunction.

In Canada, injunctions have a long and inequitable history of being used to stop Indigenous people from asserting land rights. In a study of over a hundred of injunctions filed for and against First Nations between 1958 and 2019, researchers Marc Kruse and Carrie Robinson found that a majority of injunctions filed against First Nations by the government and corporations were successful. (Injunctions filed by First Nations groups, on the other hand, are far less likely to be approved by courts.) Over half of those injunctions involved disputes over blockades.

Land defenders have always faced arrest and dispossession. That more media is being swept up in acts of force may actually be a result of them finally showing up in the first place. APTN has been a fixture at blockades and protests since it was founded in 1999. In 2004, the CBC created the Prairie Aboriginal Content Unit, the forerunner of CBC Indigenous. In 2015, the Truth and Reconciliation Commission of Canada report called on the media to ensure reporting about Indigenous people reflected cultural diversity and fair and non-discriminatory reporting.

But it was in 2016 at Muskrat Falls, Newfoundland and Labrador, that this tool would enter the mainstream public consciousness in a significant way. Justin Brake entered the proposed site of a hydroelectric generating station. Then a journalist with The Independent, he was following a group of land defenders protesting against the potentially devastating environmental effects of the project. A fence had been erected at the entrance to the road near the construction camp. On Oct. 22, the land defenders broke the lock and occupied the camp.

Nalcor, the company in charge of the site, sought an injunction to stop the land defenders from, in its view, trespassing on the site. Brake was among those named in the injunction and forced to choose between leaving the site and staying and being charged. He did the latter, and faced charges months later, which he fought successfully. The court ruled in his favour in 2019.

Since then, with increasing frequency, media have been blocked by police and private security from covering certain areas of protests, asked for media credentials or limited in their movements.

Meanwhile, a surge in independent media outlets — among them Ricochet, The Independent, IndigiNews, The Discourse, National Observer and The Narwhal —  have made reporting on Indigenous communities a priority.

Sean Hern, the lawyer who represented a coalition of media organizations who fought for better access in Fairy Creek, points out that the nature of journalism itself has changed. At Fairy Creek, some reporters were asked for media accreditation passes — something that independent journalists wouldn’t have. At some protests, reporters embed themselves directly with the protesters. The RCMP “like to view those people as, ‘you’re just protesters,” says Hern.

 

The RCMP is undeniably linked to the idea of Canadians as friendly, polite, non-confrontational people. The red-coated mountie is possibly the most recognizable national symbol after the flag. (It’s so iconic, the Walt Disney Company bought the trademark for five years in the ‘90s to help the RCMP promote its own image.)

But the RCMP was founded to protect the federal government’s interests. When its predecessor, the North West Mounted Police, was established in 1873, its goal was clear: expand Canada for white settlers. “Mounted policemen stood sentry at treaty signings, and they enforced a pass system that kept First Nations confined to reserves,” writes Jane Gerster in her Walrus story on the problems with the modern RCMP.

Over the last 150 years, Canada’s interests have been centred on resource-extraction industries. Oil, gas and forest products are among the country’s biggest exports. Because the RCMP is, in every province save Ontario, Quebec and Newfoundland and Labrador, the provincial police force, they are tasked with enforcing injunctions sought by corporations and the federal government.

Molly Murphy, a BIPOC activist and journalist, was a forest defender in Fairy Creek. In October 2021, while researching ties between the RCMP and corporations, she sent a message out on the messaging platform Signal asking her frontline compatriots if they had witnessed any co-operation between the two parties. She got almost a dozen responses back. “One forest defender, who asked to remain anonymous, says he watched the RCMP and industry drive up to a roadblock together and use industry trucks as the exclusion line – preventing other protesters or media from entering the area and preventing other vehicles from leaving,” she later wrote in a piece for Briarpatch.

 

The group has been at a number of high-profile blockades and demonstrations since it formed. “In the past, they would try to keep their distance from industry on the front lines,” says Murphy. “Fairy Creek is really where that changed.” She reported a number of additional instances where observers saw the RCMP working with Teal-Jones, the company trying to log the old-growth trees forest defenders are trying to protect.

Through documents obtained through access to information requests, The Narwhal reported in May 2022 that the C-IRG unit was planning to bring evidence to court that journalists on site at Wet’suwet’en were “advocating and assisting the protesters” to justify their arrests. However, that evidence was never produced.

The RCMP has also historically tried to maintain a tight control on the narrative. At Gustafsen Lake, B.C., in 1995, the RCMP sent helicopters, armoured personnel carriers and hundreds of tactical assault team members against 18 people defending a sacred ceremony site. Writer Róisín West notes that the media was given no access to the defenders. “As a result, reporting about Gustafsen Lake repeated framing from the RCMP, calling the Defenders “terrorists” and claiming that they had a “cult mentality.”

“It’s not criminality the RCMP are focused on, it’s the ability of that group (protesters) to create and craft a counter-narrative to the one that suggests whatever the police do is across the board legitimate,” Queen’s University researcher Miles Howe told APTN in 2019.

“(The RCMP) is not too keen on having the media present, looking over their shoulders,” says Rob Gordon, a criminologist based at Simon Fraser University. (He notes this is true of many police forces — one only needs to look at the circling of wagons by police unions against greater accountability.) (Janelle Shoihet, senior media relations officer of RCMP E Division HQ, told J-Source in an email that exclusion zones have been established in Burnaby Mountain (Trans Mountain injunction) in November 2014 and August 2018, in Houston (Coastal GasLink injunction) in January 2019 and February 2020, in Fairy Creek Watershed near Lake Cowichan (Teal Cedar injunction) in May 2021 and that at Fairy Creek media still had access to the area.)

This is in step with what many police forces attempt to do: dictate what kind of stories are disseminated in the press. And for years, journalists — who often rely on those stories — as a whole have not fully interrogated why police are considered such a trusted source. “The “night cops” beat has been a boot-camp assignment for many reporters, and too often it consists of cranking out “if it bleeds, it leads” stories that depend heavily on the accounts of police,” wrote Monika Bauerlein, the CEO of Mother Jones, in 2020. In her 2021 analysis of the manufacture of anti-Black bias through news practice, journalist and author Eternity Martis spoke with Toronto Star public editor Bruce Campion-Smith, who acknowledged historical issues in approaching crime coverage. “There were subconscious ways that we were contributing to stereotypes, whether that was falling into the police narratives of events, writing off police press releases or the use of mug shots.”

When Dudley George was killed by the Ontario Provincial Police in 1995, the three reporters who had been covering the protest had already gone home for the day. “Few reporters seemed to be motivated to report the story from inside the barricades. Certainly, none were near Ipperwash when the shooting happened, and no media reported from inside the park in the month following,” wrote Toronto Metropolitan University professor emeritus John Miller in 2005 in a report for Aboriginal Legal Services. “At Oka in 1990, reporters behind the barricades probably were a factor in the peaceful resolution of the standoff, because they were there as independent witnesses to the behaviour of both sides.”

Eyes on the police can make a difference. In an affidavit Pugliese filed in the Brake case in support of APTN’s application for intervenor status, she noted that media coverage, or the lack thereof, “can also affect whether such events unfold in a confrontational or violent manner.”

 

In February 2015, the RCMP served Vice national security reporter and associate editor Ben Makuch with a production order for all his notes, records and communications connected to several stories he had written about Farah Mohamed Shirdon, a Canadian ISIS member. He fought the order all the way to the Supreme Court of Canada.

The appeal was  dismissed in what was widely seen as a disappointment for journalists in Canada — however, the decision did leave the door open to establish an express constitutional meaning of section 2b of the Charter of Rights and Freedoms: freedom of the press. “This Court has decided many cases involving the rights of the press. Time and again it has emphasized the media’s importance,” wrote Justice Rosalie Abella, in the dissent. “But it has, to date, stopped short of openly and unambiguously giving distinct and independent meaning to the guarantee of “freedom of the press and other media.””

Though it was decided that case was not the one to define section 2b, it is among recent cases that have recognized that journalists have a special role in Canadian society. Courts have also recognized that reporting on Indigenous issues is crucial to reconciliation. But those decisions have not been of use on the ground, at protests — and it has proven challenging to effect any meaningful change.

Protesters usually defend sacred or important environmental sites, often quite removed from large population centres where most media and legal services are clustered. It makes fighting injunctions and exclusion zones even tougher. “The problem is that there is no other oversight,” says Peter Jacobsen, a media lawyer and partner at WeirFoulds in Toronto.

The other problem is that by the time the injunction is issued and the arrests are made, there’s not much anyone can do – the reporter has been effectively removed from the scene, even if they shouldn’t have been. “You’ve missed your shot,” says Pugliese. “And afterwards, when you get to court and say: ‘hey, they interfered with my guy,’ the courts won’t hear it because it’s moot – the issue is over.”

In cases like Brake’s, or on Wet’suwet’en territory in November 2021 when photojournalist Amber Bracken, documentary filmmaker Michael Toledano and 13 others were arrested at gunpoint, the RCMP has tried to say that the injunction blocks public access to everyone, including journalists.

“There are going to be situations where the police are going to say, no one should be in this zone because you may be killed,” says Jacobsen. “That’s not the situation in any of these cases.”

Another case, this one in September 2020, saw the arrest by Ontario Provincial Police of journalist Karl Dockstader while reporting from Haudenosaunee land defence site 1492 Land Back Lane in Caledonia, Ont. The One Dish, One Mic co-host and member of the Oneida Nation of the Thames was charged with criminal mischief and failure to comply with a court order.

The charges were withdrawn three months later.

Shoihet said that decision does not preclude RCMP from creating temporary exclusion zones, and that media were escorted by media relations officers to enforcement areas. “Since enforcement began in May 2021, media and public have had and continued to have access to the area,” said Shoihet. “Although, there may have been times where access was delayed due to ongoing police enforcements. The Commanders in charge of the operation liaised regularly (daily) with legal counsel to ensure we continued to align our operations with the judge’s directions.” They added that, “While at times, the location of where to hold media personnel while extractions and arrests were occurring may not be as close to where media would like to be, we were able to find that balance many times throughout the enforcement.”

Just weeks after  the release of Thompson’s decision, RCMP arrested photojournalist Colin Smith at Fairy Creek. He told CTV News that journalists were corralled 100 feet away from where activists were being detained.

 

 

In 2020, RCMP watchdog the Civilian Review and Complaints Commission released its final report on the force’s response to 2013 anti-shale gas protests in Kent County, N.B. There, in what is now a pattern, RCMP enforcing an injunction against Indigenous protesters blockading the entrance to a work site, created a buffer zone. However, the commission found the RCMP overstepped — it can only create buffer zones “in accordance with the parameters detailed by the courts.”

But CRCC decisions are not legally binding. And despite the directive, exclusion zones have still been created even when injunctions did not specifically call for them.

“There is no politician who is willing to take on the RCMP as an organization,” says Gordon. “Even though it is in desperate need of change and reform.”

In March 2023, the CRCC announced a systemic investigation into the C-IRG in response to more than 100 complaints detailing excessive force, racism and charter violations.

But a coalition of Indigenous leaders and environmental advocacy groups say reform won’t suffice in an April 2023 open letter calling for the dissolution of the RCMP unit. “There is no set of reforms that would make it acceptable for Canada to have a paramilitary force designed specifically to manage the assertion of inherent and constitutionally-protected Indigenous rights in the face of unwanted development,” it reads.

 

The trickle-down effect of the RCMP’s actions are being felt in towns where the police force doesn’t have a significant presence. In the summer of 2021, Toronto police erected fences around homeless encampments in Trinity Bellwoods Park in the city’s west end. According to documents obtained by Briarpatch, police were instructed specifically not to allow journalists within the fenced area. Reporters and demonstrators were barred from entry, all while police removed encampment residents without anyone able to observe if it was being done legally or safely. In April 2023, as Vancouver police co-ordinated the eviction of unhoused residents at a Downtown Eastside tent encampment, media were restricted to an exclusion zone at Columbia and East Hastings.

So where do journalists in Canada go from here? Are there ways that we can assert our rights?

Judges who craft more specific injunctions will certainly help journalists’ cases in the long run. Jacobsen notes this has already happened in certain situations, like hospital strikes where only certain workers were mandated to go back to work. “Judges can tailor it, and should tailor it, just to the people that they intend the injunction to apply to,” says Jacobsen.

However, history now shows that those enforcing the injunctions do not interpret them to the letter of the law.

Following the media coalition’s successful 2021 B.C. Supreme Court case, in which Thompson agreed that the scope of the Fairy Creek injunction was being used to unduly restrict media access, the RCMP have arrested three journalists while reporting at land defence sites, threatened others with arrest and continued to deny media access.

In February 2023, The Narwhal announced it was taking the RCMP to court over its 2021 arrest of Bracken. The wrongful arrest suit seeks damages and a declaration that her charter rights were violated.

“All too often, these incidents also involve Indigenous rights,” wrote Narwhal editor-in-chief Emma Gilchrist. “Previous court rulings have been clear: the arrest of Indigenous peoples on their lands concerns every single person in this country — and should be a matter of public record, not hidden behind police lines.”

What hangs in the balance, without reforms, are important questions around press freedom and reconciliation. “Journalists cannot truly fulfil their role in reconciliation without access to the sites of Aboriginal-led protests,” Pugliese wrote in her affidavit in the Brake case.