Applicants seek opportunity to argue that the public interest should be a consideration in court decisions  
Lək̓ʷəŋən Territories (Victoria BC), April 5, 2022:  Three members of the Fairy Creek forest defenders who are advocating to stop the old-growth logging at ‘Ada’itsx (known as Fairy Creek), filed an application for leave to appeal to the Supreme Court of Canada on March 28, 2022The application for leave to appeal asks the Supreme Court of Canada for permission to appeal a BC Court of Appeal decision.
On January 26, 2022, the Court of Appeal overturned BC Supreme Court Justice Thompson’s decision to deny an application to extend the injunction previously obtained  by Teal Cedar Products, the company logging old-growth within Tree Farm License #46 in unceded Pacheedaht First Nations territory.  Justice Thompson had found that the RCMP had seriously infringed the civil liberties of land defenders and the media.
The applicants, Elder Bill Jones, Carole Tootill and Kathleen Code are asking the Supreme Court of Canada to consider two issues of national and public importance:
  1. In cases of civil disobedience, is the court precluded from looking at issues beyond those of the private parties; and
  2. If not, can the court exercise its discretion to look to a broad conception of the public interest in considering if an injunction is just and equitable in all circumstances?
Now is the time for these issues of public interest to be heard,” said 81-year-old Elder Bill Jones of the Pacheedaht First Nation, who has been actively trying to stop logging in his territory since 2019. “If the courts are to give fair and equitable decisions, they must be able to consider the importance of peaceful protest and fair enforcement of the law. They should have the right to consider the effects of climate change, loss of biodiversity and social and economic impacts, especially those related to Indigenous rights, title and sovereignty,” added Jones.
The application seeks clarification from the Supreme Court regarding the Court of Appeal’s characterization of the blockade as a private law matter. The Court of Appeal defined the case as one between two private interests, when in fact, the Fairy Creek blockade is a civil disobedience movement representing thousands of land and forest defenders acting in the public interest.
The application also contends that the Court of Appeal erred in requiring courts to consider only a narrow conception of the public interest in upholding the rule of law.” The submission argues that a key aspect of the rule of law is that it be applied equally to all — including illegal police enforcement such as that seen at Fairy Creek.
Supreme Court of Canada hearings are reserved for issues of national and public interest, criteria that the defendants’ lawyers believe the application fulfills.
“By its very nature, mass public protest extends beyond private party interests,” states Malcolm Funt, one of the lawyers preparing the court application who will argue the case if the leave is granted. The fact that the Court of Appeal factored in a solitary public interest in its analysis may be deemed as contradictory,” adds Funt.
Hearings granted before the Supreme Court of Canada are rare, with only 10 to 15 per cent of all applications actually granted leave. It’s expected to take three to six months to know if the leave is granted.
The defendants will seek public donations for legal expenses as this is a matter of interest for all citizens. If accepted, this will be an important case and the outcome will significantly impact Canada’s judicial decision-making when injunctions are sought in response to public protest.
“We are all one,” says Elder Bill Jones. “Private interests and corporations can no longer ignore the well-being of society. We are all in this together.”
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