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Of civil disobedience, injunctions, and the public’s right to know

By: | April 14, 2017

What happened in Labrador in October of 2016 was a social crisis, which culminated in acts of civil disobedience. How do we know? Largely because of Justin Brake’s journalism.

Jacinthe Tremblay
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For more than a month Justin Brake documented the Indigenous-led resistance to the Muskrat Falls hydro project in the lead-up to the first phase of reservoir flooding. Brake followed the story, even when it moved on to disputed land. Photo by Justin Brake.

This op-ed was originally published April 11 as an editorial in French-language provincial newspaper Le Gaboteur. It has been translated, lightly edited and re-published with the author’s permission.

On April 11, 28 people appeared in provincial court in Happy Valley-Goose Bay to face the criminal accusations laid against them by the RCMP following the Muskrat Falls blockade and workers’ camp occupation in October of last year.

The group is comprised of Justin Brake, the editor of this publication, and of 27 Land Protectors, a collective of Innu, Inuit and settler Labradorians. In addition to the criminal charges, many of these folks, and others involved in the Muskrat Falls protests, are also facing civil contempt charges.

Their alleged crimes? Having defied an injunction that outlawed the disruption of work on the Muskrat Falls construction site, and mischief in excess of $5,000. The injunction was issued by a Newfoundland Supreme Court judge on Oct. 16 at the request of Nalcor. Those accused of criminal activity could be facing several years in prison. The Crown has reduced the criminal charges against Brake to summary instead of indictment, so he is unlikely to do much time, if any.

Brake and the Land Protectors are facing the same accusations, but the reasons behind their actions are different.

Protecting culture, land and life

The Land Protectors defied an injunction. Nalcor made use of planes and buses to evacuate its workers. The RCMP dispatched dozens of officers to Happy Valley-Goose Bay and the surrounding area to enforce the Nalcor-obtained injunction.

More importantly, though, the Land Protectors succeeded in stopping the imminent flooding of the reservoir and the much-feared methylmercury poisoning sure to follow.

If they were called as witnesses to court, anyone who watched Justin Brake’s live-streamed reports…could state beyond the shadow of a doubt that the occupation of the site was peaceful and led by people defending the common good against a legal power they felt was iniquitous.

They were not the only ones who wanted to stop the flooding. Hundreds had gathered at the site’s entrance for more than a week in October, many more had protested in St. John’s, and some had even gone on hunger strike.

Defying the injunction was the only effective way of slowing Nalcor’s plans to flood the reservoir, and forcing Premier Dwight Ball to negotiate with Indigenous leaders to protect, if only temporarily, Labrador’s culture, land and life.

The Land Protectors did so with the utmost respect for the principles of civil disobedience.

It is defined as “the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is a symbolic or ritualistic violation of the law, rather than a rejection of the system as a whole. Civil disobedience is sometimes, though not always, defined as being nonviolent resistance.”

If they were called as witnesses to court, anyone who watched Justin Brake’s live-streamed reports on The Independent’s Facebook page could state beyond the shadow of a doubt that the occupation of the site was peaceful and led by people defending the common good against a legal power they felt was iniquitous.

Before these acts of civil disobedience took place, most attempts to slow the provincial government and Nalcor in the project had failed, as had attempts to have questions answered. The list of those who tried is a long one; among them can be counted the Nunatsiavut Government, the NunatuKavut Community Council, the Ekuanitshit Innu Council, the Town of Happy Valley-Goose Bay, Grand Riverkeeper Labrador, academics, bloggers and journalists (not only Justin Brake).

If the Land Protectors committed a crime, it is the crime of having successfully defied Nalcor and the provincial government.

Injunctions

It was in Québec that the largest civil disobedience movement in recent Canadian history took place — the student uprising of 2012, a widespread protest movement which came to be known as the printemps érable, or Maple Spring. Gabriel Nadeau-Dubois, one of the movement’s three main spokespeople, wrote about it all in his book Tenir Têtre, for which he received the Governor General’s Award in the francophone Essay category in 2015.

During the many months of protests, many injunctions were issued to force students and teachers to move their picket lines away from the doors of colleges, universities and other institutions of learning.

Nadeau-Dubois recalls in his book that “Court orders were very rarely respected by the students,” and that “respecting these orders meant giving up their struggle.”

The same reasoning applies to the Land Protectors: Respecting last October’s injunction meant the reservoir would be flooded before any of the poison prevention measures recommended by the Harvard researchers could be implemented.

“In such a drawn out and polarising conflict, how could the judges believe, even for an instant, that these injunctions would be effective? Many of the students on strike likened the heavy reliance on injunctions to a political hijacking of the courts,” Nadeau-Dubois writes in Tenir Têtre.

Later in the book, Nadeau-Dubois gives the example of Judge Jules Deschênes of the Superior Court of Québec, who refused to sentence a group of Société des transports de Montréal bus drivers for contempt of court in the 1970s. In his decision, Judge Deschênes wrote (quoted by Nadeau-Dubois): “Until a political authority finds an appropriate solution to these social conflicts, I am of the opinion that the superior Court must not make use of its power to crush a group of citizens with fines and imprisonment. (…) It must not collaborate in deeds that are doomed to fail, deeds that will not help in resolving a conflict which for some time now has been the political authority’s responsibility.”

Nadeau-Dubois concludes by telling his readers that “a social crisis calls for a negotiated political agreement.”

What happened in Labrador in October of 2016 was a social crisis, which culminated in acts of civil disobedience. How do we know? Largely because of Justin Brake’s journalism.

The public’s right to information

Brake spent weeks in Labrador before protesters blocked the site’s entrance and eventually occupied the site. With his written articles and his live reporting, he aided in raising general public awareness of the magnitude of the Labradorean resistance.

Like the Land Protectors, Brake now faces civil and criminal charges for having defied an injunction. However, he acted as a witness of the events, rather than as an instigator or participant. He did his job.

[Brake] acted as a witness of the events, rather than as an instigator or participant. He did his job.

Many journalist organizations are demanding that the charges against Brake be immediately dropped, arguing the charges are an unprecedented violation of the freedom of the press. But a judge recently ruled that Brake held no special status before the law. Herein lies the basis of a long and expensive legal battle.

What has been clear throughout this whole conflict is the ferocity and perhaps the ease with which Nalcor erects barriers that deprive citizens of their right to know what is happening in Nalcor offices and on the Muskrat Falls site. If people are able to know, it is in no small part thanks to the work of journalists. It is for this reason that journalists are given “special status” in various circumstances.

Journalists are citizens’ eyes and ears – when they do their work properly.

During the occupation of the site, the public’s right to information was ensured by The Independent’s eyes, ears, voice, mobile phone and Facebook account.

Justin Brake was the only one on the scene. Many more were needed, just as many more will be needed to thoroughly investigate this public infrastructure project’s multiple slips and slides.

Will the project garner more civil disobedience movements in the coming weeks and months? If such is the case, let us hope that this “conflict which for some time now has been the political authority’s responsibility,” borrowing from Jules Deschênes choice of words, be resolved in the political arena and not in a courtroom.

Jacinthe Tremblay has worked as a journalist for more than 30 years. She has spent much of her career as an independent journalist working in Québec, and has lived in St. John’s since 2011. Jacinthe currently serves as editor of Le Gaboteur, Newfoundland and Labrador’s francophone newspaper. In Québec, she was a member of the board of trustees for la Fédération professionnelle des journalistes du Québec, and is a former chair of l’Association des journalistes indépendants du Québec.

Note: Quotes from Gabriel Nadeau-Dubois come from an English traslation of ‘Tenir Tête’, titled ‘In Defiance’, published by ‘Between The Lines’ publishing in 2015.

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