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.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

City of Nanaimo to hold invasive plant ‘drop zone’ event

Public invited to bring invasive plants to Bowen Park’s upper picnic shelter Saturday, May 30

International students ‘biggest unknown’ in Nanaimo school district’s budget planning

Nanaimo Ladysmith Public Schools’ board will look at preliminary 2020-21 budget this week

Car cruise in Nanaimo lifts seniors’ spirits during pandemic

Cars 4 COVID includes Nanaimo Seniors Village in its route

Health authority extends administrator’s mandate at Nanaimo seniors home

Island Health says ‘significant progress’ being made at Nanaimo Seniors Village

Petition underway to get RDN to improve Sandpiper water quality

Campaign urges regional district to make issue a priority

LIVE: Procession to honour Snowbirds Capt. Jennifer Casey comes to Halifax

Snowbirds service member died in a crash in Kamloops one week ago

Family pledges to match up to $50,000 in donations to Chemainus Theatre fund

Donald Hilton and Joyce Hilton helping theatre through a time of COVID-19 cancellations

Nanaimo school district planning to demolish building on Selby Street

Nanaimo Ladysmith Public Schools estimates tearing down building will cost $900,000

RCMP facing ‘systemic sustainability challenges’ due to provincial policing role

Provinces, territories and municipalities pay anywhere from 70 to 90 per cent of the cost of the RCMP’s services

Facing changes together: Your community, your journalists

The COVID-19 pandemic has changed the world in ways that would have… Continue reading

VIU online cooking show keeping students connected during COVID-19 pandemic

‘Culture Kitchen’ features students making dishes from their home countries

Rail foundation delivers donations to Island food banks

ICF shares $14,000 among seven food banks, including Nanaimo’s Loaves and Fishes

B.C. employers worry about safety, cash flow, second wave in COVID-19 restart

A survey found 75 per cent of businesses worry about attracting customers

One man dead after standoff with Chilliwack RCMP

The Independent Investigations Office of B.C. is investigating the RCMP’s role in the death

Most Read