Judge dismisses injunction request against Colliery dam protestors

NANAIMO – Decision also allows city to return to court for injunction should city's parks bylaw be breached.

A B.C. Supreme Court judge has dismissed the City of Nanaimo’s application for an anticipatory injunction to prevent citizens from potentially delaying work to remove two dams at Colliery Dam Park.

But Judge Douglas Thompson has also allowed for the matter to return to court quickly should problems arise.

The city decided last month to take pre-emptive action to thwart the possibility of civil disobedience at the park before it begins by filing for a court injunction after Dave Cutts, president of the Dam Direct Action Group, said in May he planned to organize a group of people to occupy the lower dam. His words followed council’s decision remove the dams in July and then replace them next year.

Thursday’s hearing and Friday morning’s decision were attended by dozens of people in support of keeping the dams.

An injunction would put those who do gather and attempt to delay work to remove the two dams in contempt of court, resulting in a possible court date and trial for each person arrested.

During the proceedings, Thompson said people should be given the opportunity to obey the law without being whacked over the head with an injunction before any laws have been broken.

While he did not grant an anticipatory injunction, he did grant leave for the city to bring forward an injunction application with one day’s notice against anyone who breaches the city’s parks bylaw.

Outside the court, Cutts’s lawyer, Dominique Roelants, called the ruling “pretty close to a win” in that the anticipatory injunction was not granted, adding the judge noted that people are allowed to protest the city’s decision in ways that do not break any laws.

“People still have the right to have their voices heard,” he said. “There are still creative ways within the law that may be used.”

In his decision, Thompson read out parts of an affidavit sworn by Cutts in which he pledged to do what he could to change the city’s decision within the confines of the law and to protest in non-violent, law-abiding ways.

Cutts told the media that he’s not quitting the cause, he’s taking a different approach.

“There are other people who will make their own decisions about what action to take,” he said, adding that he has to meet with other members of the group to decide on the next course of action.

Randy Churchill, the city’s manager of bylaw and security, said the decision gives the city the tools to deal with anyone who attempts to prevent or interfere with the removal of the dams, as the city can come back with 24 hours notice to seek an injunction, which is much more powerful than writing out tickets and working with the RCMP to arrest people on an individual basis.

He said to have the ability to go back to the courts and seek an injunction on short notice is important because there is a small window of opportunity to do the work – it must be done when the water flow is lowest, but before spawning season in the fall – and if an injunction application was not made until someone breached the bylaw, the process to obtain one could take weeks.

“The key is the court recognizes the seriousness of what we’re trying to do,” said Churchill, adding that any delay would cost the city an estimated $10,000 to $15,000 per day.

At least one person attending the hearing was unhappy with the decision.

Jim Erkiletian, who described himself as a member of both Cutts’s group and the Colliery Dam Preservation Society, said the city already has a bylaw in place and an injunction would be an extra law.

“It’s unfortunate the judge has decided that the city qualifies for an injunction as well as their own bylaws,” he said. “If a person breaks a city bylaw, it doesn’t mean he’s in contempt of court.”

Erkiletian said he is willing to climb a tree and risk his life to protect that area of the forest.

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