Lawyer Explains SWN Injunction

13 10 2013

Court injunctions are largely civil matters, but it seems the police still have a role to play.

As Court of Queen’s Bench Justice George Rideout Friday extended an injunction he had granted to SWN Resources on Oct. 3, the spokeswoman for the New Brunswick RCMP said the police remains focused on maintaining public safety and allowing negotiations to bring an impasse between the exploration company and protesters to a peaceful resolution.

SWN Resources sought the original injunction after protesters blocked a driveway to a compound just outside Rexton where it is storing exploration vehicles and equipment in its search for natural gas deposits in deep underground shale.

The protesters later blocked Highway 134 on either side of the driveway after felling a number of trees.

Premier David Alward and Elsipogtog First Nation chief Arren Sock have been negotiating personally, though it remains unclear if Sock speaks for all of the protesters. While many of the protesters are members of the Elsipogtog First Nation, a significant number are Mi’kmaq from around the Atlantic region. Still other protesters have European ancestry.

Nevertheless, with negotiations happening, the RCMP’s Constable Jullie Rogers-Marsh said their role would be to simply maintain the peace. She also noted, “there is nothing in this injunction that says the RCMP must act within a certain period of time.”

Clarence Bennett is a lawyer with the Fredericton office of Stewart McKelvey. Because labour law is one of his areas of specialization, he often works in the world of court injunctions. He agreed to speak as an outside observer with no connection to those involved.

“The RCMP is playing a bit of a game here,” Bennett said, though he was sympathetic to the position the federal police force finds itself in.

“They want to be seen as not taking sides or escalating the situation.”

However, regardless of how an injunction is written, Bennett said, “the RCMP has to enforce the injunction when there’s unlawful behaviour.”

He suggested blocking a highway with fallen trees is indeed unlawful behaviour. After Bennett spoke to a reporter, however, it was learned the trees that had been blocking much of the road for two weeks have now been removed.

In general terms, if a company like SWN Resources has gotten an injunction, it is up to the company to have a third-party civilian representative (not police) to serve the injunction. In most labour disputes, even nasty ones, if an injunction is granted, process servers would be hired to hand out multiple copies to as many people involved as possible, and copies would be posted “on every pole” at the site of a dispute. Rarely do the process servers, as messengers, encounter any threat to their safety, however unwelcome their message might be.

In this case, the original injunction has still not been served on the protesters 10 days after it was issued, something Bennett finds “strange.”

As someone whose job has often been to draft injunctions and submit them for a judge’s approval, Bennett said, “normally we’d build into our injunction how we’re going to serve it.”

Justice Rideout expressed concern at Friday’s hearing that the injunction had not been served. He however extended the injunction 10 days, until Oct. 21, to allow for the order to be published in the newspaper, which would count as service.



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