An anticipatory injunction sought by the City of Nanaimo to prevent citizens from potentially delaying work to remove two dams at Colliery Dam Park will have to wait until the week of July 2 for a decision.
B.C. Supreme Court Justice Douglas Thompson agreed that the target of the injunction, Dave Cutts, who promised civil disobedience in an effort to save the dams, needs more time to raise money and secure and brief counsel on the subject.
The city filed the injunction June 3, but Cutts said he wasn't served until the evening of June 4, giving him just three days to respond.
“We're not prepared to argue this case today, we need two more weeks,” Cutts said. “My group has done nothing illegal. All we've done is meet Sundays for social gatherings at the park. In fact, on Sunday (June 9), I was not able to get to the park so it was in my backyard.”
If an injunction is approved in early July, it would put those who do gather and delay dam reconstruction in contempt of court, resulting in a possible court date and trial for each person arrested. If an injunction is not approved, the city can choose how it wants to approach removing people. It can do nothing, invoke bylaw infractions and issue $150 tickets, or work with RCMP to arrest people.
The anticipatory injunction was sought based on Cutts's remarks in local media promising civil disobedience. He repeated that intention Monday, saying he had “dozens of people prepared to take Level 1 or Level 2 action,” meaning people willing to participate in an illegal gathering.
As Cutts spoke outside the courthouse, several people handed him money to help pay for legal counsel.
Don Howieson, the city's lawyer, said he felt Cutts's public comments on civil disobedience should be enough to support the injunction since the window to remove the dams – they must be removed in the summer when there is low water flow – is small.
“There is a trust issue,” he said.
Another group also filed an application for the hearing in an effort to protect citizens not associated with Cutts's group. Valentine Stafford, a member of the Colliery Dam Park Preservation Society, which has been working since October to protect the dams, filed an application to protect “Jane and John Does” from being affected by the injunction.
“The point of this application is, where no unidentified person has done anything wrong, it's not proper that there be a court order that names John and Jane Doe,” said Timothy Huntsman, Stafford's lawyer. “If there were unidentified persons engaged in unlawful activities then perhaps a John or Jane Doe order would be appropriate, but where there is nobody who is unidentified who has done anything, a John and Jane Doe, in my submission, is not appropriate.”
Cutts, representing a group called Dam Direct Action Group, said he will have legal counsel engaged by the next hearing date. He added Monday's decision to stay the decision was a small victory.
“I think the judge was eminently fair and reasonable and understood that this was a very premature action by the City of Nanaimo intended to intimidate the tens of thousands of people who are very upset with the likely possibility we're going to lose our park,” said Cutts.