Freedom of Speech vs. Blockade

The Mathias Colomb Cree Nation (“MCCN”), located in Manitoba, disputes the right of Hudson Bay Mining & Smelting Co., Limited (“Hudson Bay”) to conduct certain mining operations because it claims it was not consulted and has not consented to those operations.

In response to Hudson Bay’s continued operation, protests were held at Hudson Bay’s ‘Lalor Project’. MCCN also takes issue with Hudson Bay’s ‘Reed Project’ operations.

Hudson Bay applied for, and obtained, an interlocutory injunction against MCCN to prevent further interference with its access rights to the Lalor and Reed Projects. The injunction was appealed by MCCN and, on January 20, 2014, the Manitoba Court of Appeal dismissed MCCN’s appeal.

MCCN had argued that Section 57 of the Court of Queen’s Bench Act (Manitoba) prevented the Court from issuing an injunction where to do so would restrain a person from exercising the right to free speech. The Appeal raised two primary issues:

            (i) did Section 57 prevent the issuance of an injunction; and

            (ii) did the judge err in exercising discretion to grant the injunction?

Background

The first of the MCCN protests occurred on January 28, 2013 at the Lalor Project. It lasted for almost five hours, during which time Hudson Bay closed the gate to its operations. A peaceful protest ensued, and the protestors were not asked to leave. The RCMP had been notified of the protest and Chief Arlen Dumas, of MCCN, advised the RCMP that he would allow access to the site in an emergency. Chief Dumas also allowed staff to leave the site on two occasions. Finally, Chief Dumas delivered a Stop Work Order to staff at the site.

On March 5, 2013, Chief Dumas delivered a Stop Work Order to the Reed Project, before participating in a protest during the afternoon of March 5, 2013 at the Lalor Project. Once again, Chief Dumas delivered a Stop Work Order and the protestors restricted access to the Lalor Project.

Hudson Bay commenced its legal proceedings on March 11, 2013. The judge concluded that, although the protests were of short duration, they constituted a blockade and, as such, awarded the injunction. The judge found that the injunction was necessary as Hudson Bay would suffer irreparable harm without it owing to MCCN’s limited financial resources to properly compensate Hudson Bay for any damages.

The Appeal

The granting or refusal of an interlocutory injunction is a discretionary order and, as such, an appeal court will only interfere with an earlier order if the decision was “clearly wrong”, “unreasonable” or a “palpable and overriding error” was made.

Based upon the evidence available, the Court of Appeal found that there was sufficient evidence to establish that the protests at the Lalor Project constituted a blockade. The bigger question, however, was whether blockades are a permissible exercise of the right of freedom of speech.

The Court of Appeal noted that it had no concerns with the protestors objectives of raising public awareness, nor any concerns as to the truth of the statements being made by the protestors. It was the conduct of the protestors that was in question. That conduct consisted of three things:

            (i) assembly and demonstration with signs at the Lalor Project;

            (ii) leafleting (Stop Work Orders) at the Lalor and Reed Projects; and

            (iii) blocking ingress and egress at the Lalor Project.

Quite quickly, the Court of Appeal found that both (i) and (ii), above, were permissible actions during the course of a protest and, as such, there should be no limitation of free speech.

With regard to (iii), the Court of Appeal equated a blockade during a protest to a blockade during a labour dispute and strike. The Court of Appeal noted that, in the context of a labour dispute, a blockade is an unacceptable method of dissent. While protestors do not have to be “rational or polite”, the Court of Appeal found that the actions of the MCCN protestors amounted to a substantial and unreasonable interference with Hudson Bay’s use or enjoyment of the Lalor Project.

The Court of Appeal did allow a part of the appeal as it related to the Reed Project. An injunction should impose only such restraint as is necessary to stop the mischief complained of and preserve the status quo and, as MCCN had not blockaded (or even protested) at the Reed Project, the scope of the injunction was found to be too wide. The injunction as it related to the Lalor Project, however, was upheld.

Of the three injunction criteria (serious issue to be tried; irreparable harm to the moving party; balance of convenience) the appellants only contested the irreparable harm strand. In dismissing this argument, the Court of Appeal opined that “a finding of a complete blockade of a lawful business strongly suggests irreparable harm”. The appellants conceded that MCCN had insufficient resources to compensate Hudson Bay for any harm caused.

The Lesson?

While your protest need not be rational or polite, and while your protest can involve signs, leaflets and other written documents, it cannot equate to a blockade. Freedom of speech is guaranteed in Manitoba legislation, but does not extend to peaceful blockades of business premises.

To read the full decision, see: Hudson Bay Mining & Smelting Co. v Dumas et al 2014 MBCA 6.

By James Early.