Following the arrest and detainment of two reporters and 13 others by the RCMP in British Columbia Friday night, legal experts and reporters say the continued restriction of press freedoms while covering Indigenous rights is an attempt to silence the voices of land defenders, while simultaneously curbing reporting on the issue.
And it’s something that has happened before, particularly when there is a need to document police action and violence against Indigenous people, they say.
“It’s appalling that this is happening … but also not surprising because this is what Indigenous peoples and Indigenous nations deal with day in and day out,” said Brandi Morin, a journalist from Treaty 6 in Alberta who identifies as Cree, Iroquois and French.
Photojournalist Amber Bracken, who was reporting for The Narwhal, and freelance filmmaker Michael Toledano were arrested while they were reporting from Wet’suwet’en territory and they remain in RCMP custody.
Both were covering land defenders who were blocking an access road used by Coastal GasLink pipeline workers. The blockade was created by members of the Gidimt’en clan, one of five in the Wet’suwet’en Nation, who have long protested the creation of the Costal GasLink pipeline that will cross their unceded territory.
The RCMP said in a press release they arrested the 15 people, including the two journalists, to enforce an injunction. Those arrested were told to leave or be detained, they said, adding the reporters did identify themselves as media. Indigenous elders were among those arrested.
Multiple organizations have called for their immediate release, including the Canadian Association of Journalists (CAJ).
In July, the CAJ along with other media organizations won a court challenge at the Supreme Court in B.C. on press freedom in the Fairy Creek area. The judge’s final decision agreed with the media groups, indicating that the RCMP cannot interfere with coverage without providing an operational reason to do so.
And the rights of Indigenous people to be on the land must be discussed simultaneously as reporters’ rights to cover the issues, said Morin.
“This is unceded land. What is happening is illegal on an international level,” she said.
Toledano and Bracken’s arrests are in line with more recent incidents of reporters being arrested while covering Indigenous rights.
In 2016, journalist Justin Brake was charged in criminal and civil court in Newfoundland and Labrador while covering Indigenous land defenders at Muskrat Falls. His name was included in an injunction to remove land defenders from the site.
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Ultimately, all civil charges were dismissed in 2019 and all charges were dismissed by June 2020. Supreme Court Justice Derek Green said in his 2019 decision to dismiss the civil charges that injunctions are a “blunt instrument” and could risk “unnecessarily trenching” upon other rights including freedom of the press, and protection of rights for Indigenous peoples.
“Aboriginal communities have been historically under-represented in the Canadian media. That makes freedom of the press to cover stories involving Indigenous land issues even more vital,” he stated.
Even with this court decision in 2019, Bracken and Toledano were still arrested, which could result in a chilling effect on future reporting on these issues, said Justin Safayeni, a partner at Toronto firm Stockwoods LLP, specializing in public law and media law.
“Protecting freedom of the press is particularly important in a case like this, where there is a strong public interest in documenting police action against those asserting Indigenous rights,” he told the Star via email.
Vincent Wong, a lawyer and PhD student at Osgoode Hall law school who previously led the Media Freedom Model Laws Project at the University of Toronto, said courts seem timid in taking a stronger position against the RCMP limiting press freedom, particularly when it comes to covering Indigenous issues.
“When there is an injunction … that is one of those cases when we need the press more than ever. That’s probably a case where force is going to be used,” he said. “That’s where human rights violations are most likely to take place.”
There’s also the question of jurisdiction and whether B.C. even has a right to impose an injunction on unceded territory, said Wong.
There is growing concern about press freedom violations that happen at land rights movements or at places where people are fighting injunctions, said Sonya Fatah, an assistant professor at what some call X University, and a co-lead on the Canada Press Freedom Project, which is developing a tracking mechanism to quantify press freedom violations.
Only in recent years has some journalism begun to shift away from covering Indigenous rights with a colonial lens — and that shift has coincided with RCMP action taken against journalists at protest sites, she said.
“What’s interesting about the work Amber and Michael have done is a distinct shift, and there’s coverage out of it that’s a real consistent coverage … it’s strengthening the public record on land movements,” she said.
“The thing to remember is the press is not exceptional under the Charter. It includes the press under the right of freedom of expression and the right to capture these moments. But that right is also bestowed on all residents of the country.”
Olivia Bowden is a Toronto-based staff reporter for the Star. Reach her via email: [email protected]
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