PART 1 Editors Note:
I met this young woman last winter through e-mails when several residents of the Balfour Watershed set up a trailer on a logging road to attempt to stop the logging.
It has been a long tough haul for this group and particularly for Jessica!
Please...take the time to read the journey.This is a very brave young woman who is showing us all the way we need to go!
Dear Laird Creek Water Users,
As some or all of you may have heard about my recent arrest after an injunction was served to me while blocking the road into the Balfour Watershed, I wanted to take this opportunity to share some information, opportunity, and reasoning behind what led up to the arrest. Also below is an email I sent to Sarah Cox of The Narwhal, who wrote up an incredible article about our Kootenay Watershed issues, and her immediate response to my email to her. Great news is The Narwhal is sending out film makers this week to document the clear cutting of our watersheds. So the time is ripe to contact her with any comments you may have on this issue.
Ok, so firstly, I want to inform you all that no charges of Civil Contempt of Court were put against me due to a technicality, which is explained in great detail in my email below to Sarah Cox. Secondly, myself and everyone IS allowed up that road, I confirmed with this with the courts today. Furthermore, I was informed I could file a counter claim considering Cooper Creek Cedar Ltd submitted misleading information on the injunction application and failed to fully file the application, which then led to enforcement and consequently my arrest for not stepping aside. Although filing a counter claim seems draining and petty, I am considering it just to hold them accountable.
My reasoning for protesting once again was because I have been working with a number of other watershed groups and it was seeming like other communities were getting a lot of media coverage and I strongly felt that Balfour/Laird Creek's concerns were very worthy of receiving the same, if not more, media attention considering what this community has been through how many residents have, and continue to be effected from the harvesting going on in our watershed.
My intention was to, upon hearing that Cooper Creek Cedar Ltd had applied for the injunction, I would then take that opportunity to contest the application by presenting all the details, studies, risk factors, and concerns of those effected to present a case that we, the community members, had legal basis for an injunction to not be approved and potentially, to at least give reasoning to why certain cut permits should not be approved in our watershed. Especially the Cut Permit into the old slide area.
However, it did not go as planned, and the reason is because Cooper Creek Cedar Ltd applied for an injunction with a Kelowna Judge stating that we were in a remote geographical location (they stated we were on Deception Creek FSR, 170km from Balfour). Due to the belief we were in a remote geographical location the Judge issued an exparte injunction that could be served to us without an opportunity for us to even know they had applied for one to contest in the first place. In fact, still to date, Cooper Creek Cedar Ltd has not completed the filing of this injunction. While protesting we were going into Nelson every day to see if they had applied for an injunction so we could present all our documentation and affidavits to contest it...however right up to the day before the arrest, it appeared they had not yet seeked an injunction. This is either because it was issued by a Judge out of the region or, most likely because they had in fact not filed it. So due to this critical error I was not charged, however, also due to this critical error, I was not given time to challenge the application. Anyhow very messy and deceiving on their part.
So, when they arrived with the RCMP, we took a moment to contact some legal advice, and the civil liberties lawyer was very confused as to how they were able to be there presenting us with an injunction that did not appear on the Nelson registry. So, in the moment I felt the only way to have our case heard was to present it in court and in the moment it seemed the only way to go to court to contest the injunction was to be arrested. I've explained this in detail in my write up below to Sarah Cox.
Now, from here there is an opportunity for the Balfour/Laird Creek water users. I'm aware of the impacts to peoples water, water boxes, and issues that happened during the slide, however, ultimately I personally have not been impacted as our home is on infra structured water and my mother did not live here during the slide. I had submitted a number of affidavits about these issues along with articles and what ever previous studies I could get me hands on. This was all submitted, however it could not be presented since the scope of the hearing was simply to address my potential Civil Contempt of Court. I've since been advised by a lawyer that, if the community members could gather their own accounts of how they have been directly impacted and get them on affidavits, we can then, together, actually file a Civil Claim and/or Notice of Application to Cooper Creek Cedar Ltd for compensation and at the very least prevent the cut permit above the old slide area from being approved. I wrote up all my affidavit's myself with some legal advice on how to do so. The cost for each one was $25 to $40 dollars depending on which notary public you go to. The Civil Claim and Notice of Application cost between $250 and $400 (this can be confirmed at the Nelson court house)
So, what I am proposing is to go forward with this process. I am more than willing to file these against Cooper Creek Cedar Ltd and there has been a GoFundMe that was set up for legal fees to do so. However, I am reaching out to the community for help. That help would be in the form of affidavits, which I could cover the cost for. The affidavits do NOT mean you need to appear in court, nor do they mean anyone who submitted affidavits would be accountable for legal fees if I lost against them. Affidavits from those who have been and have reason to believe they will be impacted by the continued harvesting, have much more standing than me submitting them second hand.
We have time (I hope) to pull this together before they move forward with going into the old slide area..although the sooner the better considering we have been declared in a Climate Emergency and there is some amount of political will and a huge amount of media interest right now. I sincerely hope you will see my intention and the opportunity that exist for us to save what is left up there and protect our homes. I would encourage anyone to also contact Sarah Cox (email below) and engage media (although I know you all have been doing so much in that regard and its been a long battle) Watershed logging is very much in the limelight right now, lets get heard
Here is the link to the BC Supreme Court
Documents used for this, you will need Adobe and I can certainly share how I have learned to fill them out, submit them and include exhibits (supporting documents such as studies, photos, communication, etc) . It would be Affidavit form 109 in the link below.https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-civil-forms
Please let me know your thoughts on all this I am open to suggestions.
Below is the email conversation between Sarah Cox and I ------
Forwarded message -----
From: Jessica Ogden
Date: Sun, Jul 28, 2019 at 10:06 PM
Subject: Balfour Water Protector Released from Civil Contempt Charges
Hello Sarah Cox,
Firstly I would like to thank you for the incredible article you wrote on our Kootenay battle regarding our watersheds being logged. In that article was a brief mention of the three protesters arrested at the Balfour Watershed Protection Camp. I am one of those protesters and the one who spent a week in jail, had 4 appearances before a BC Supreme Court Judge resulting in a final public hearing this last Thursday July 25 at the Nelson Court House in which no Civil Contempt of Court Convictions or fines where put forth due to technicality. It was suggested to me that I do a write up to send to you in the event you may be interested in a story. There is certainly a lot more background to all this as I have been protesting and coordinating several events through out the past year full time on our Kootenay Watershed issue. We are certainly trying to get our issue heard more out of our region. Here is the write I did with some links pertaining to this particular story for your review to see if it's something that may interest you. A “Win” In a Broken System
I stood before a BC Supreme Court on July 22, 2019 with a stack of documents, statements, and articles compiled over the years regarding the Balfour Watershed issue. Included in these documents were Hydrological, Terrain Stability and Windthrow Assessments. As well as documented damage to licenced water users’ water sources and systems in our watershed from what we have high reason to believe, are a result of the ongoing road building and logging activities.
Also, within the information submitted, there was substantial evidence of ongoing procedural unfairness, public mistrust, disregard for public safety, and unprofessional behavior from this company, Cooper Creek Cedar Ltd/Porcupine Wood Products and its contractor, formerly Sunshine Logging, now Clint Carlson Consulting.
As I began to present the issues along with the documentation compiled by a number of community members and professionals, the Judge stopped me and stated that, although she had no doubt there was much to be presented to contest the injunction and she was willing to hear me out, she could not however overrule another Judges issuing of an injunction and that the scope of this days hearing was simply to determine if I was or was not to be charged for civil contempt of court, regardless of the reasons that led up to the arrest.
This narrow scope of the hearing threw me off as I had prepared for a 2 ˝ hr hearing. So, I therefore simply presented that on the initial Civil Claim wherein the Plaintiff, Cooper Creek Cedar Ltd, had presented misleading information to the issuing Judge out of Kelowna. Namely that our Watershed Protection camp was located in the remote geographical location of 3 km up Deception Creek FSR, Meadow Creek, BC. This then created a false legal basis to favor an enforcement order to have us arrested without notice of the injunction application or an opportunity to contest it. The case of MacMillan Bloedel Ltd vs Greenpeace Canada (et al. 1996 B.C.J No.1994 at 11, 12 and 17 on the CANLEE database) was used as an example, stating “Events occurring in a remote geographical location and identification difficulties are among the problems which may dictate in favor of an enforcement order in a given situation.”
Judge Madam Justice Jennifer Duncan suggested an hour break and to proceed with the hearing after. After the break we continued the hearing, at which point the Judge pointed out that she had discovered that the Plaintiff, Cooper Creek Cedar Ltd, had failed to complete the application process of the injunction in the first place. When asked, the Plaintiff had no reason for this missed vital step in the procedure. Madam Justice Jennifer Duncan then ruled that, due to these technicalities, there was not enough legal basis to proceed with a conviction of Civil Contempt of Court.
continued in Part 2