Appeal to Exonerate Betty Krawczyk: Who Are the Real Criminals? By Joan Russow, http://PEJ.org
March 20, 2007
One of the reasons given by Madam Justice Brown, for convicting Betty Krawczyk,was that she had failed to follow appropriate channels within the legal system. Perhaps the judge is unaware of the conundrum that opponents of key natural areas of contention face in going through the so-called “appropriate” channels.
INJUNCTIONS AS EQUITABLE REMEDIES
In 1991, A specialist in injunctive law once said that injunctions are equitable remedies not constrained by the strait jacket of the law. And that injunctions move with time and circumstances (a paraphrase). In 1991, when I attempted to seek an injunction to prevent logging in the Walbran, I was told that I could only be successful if I had a financial interest in the Walbran.
The Courts, however, have generally ignored the change in time and circumstances and have brazenly supported the use of injunctions not to prevent irreparable harm but to prevent those who strive to prevent irreparable harm from preventing the harm. Since at least 1992 there has been an international move “with time and circumstances; after the UN Conference on Environment and Development, the global community created a legitimate expectation that governments, and courts would finally recognize the importance of conserving sites of biodiversity, and of respecting the rights of future generations to the conservation of biodiversity.
THE COURTS DISREGARD FOR INTERNATIONAL LAW
After Canada signed the Convention on Biological Diversity (June , 1992) and ratified the Convention (December, 1992) Canada failed to enact the necessary legislation to ensure compliance. Since 1992, citizens have been calling upon the Federal government to comply with the provisions under the Convention on Biological Diversity. The courts, however, rather than addressing the governments’ failure to comply with its international obligations to conserve biodiversity under the Convention, have treated as criminals those citizens of conscience who have been willing to stand on the road calling for respect for the international rule of law.
The Department of Justice, whose responsibility it is to ensure the enforcement of international obligations, has demonstrated dereliction of duty in failing to compel governments to enact the necessary legislation to ensure compliance with Canada’s international obligations. The Judges in BC generally are unaware of international obligations and have handed down decisions that international law not expressed in Canadian law is not judiciable in the courts of BC. However, the courts ignore the fact that Canada has made an international undertaking to comply with international law.
In 1982, member states of the United Nations were asked to explain the national process for discharging international obligations. The then Canadian Department of External Affairs distributed a communiqué to the international community in response to this request from the UN. In the communiqué, the Canadian government stated that before signing an international convention, Canada would ensure that the necessary legislation for compliance was in place. However, if there were a discrepancy between the international legal obligations and Canadian statutory law, the necessary legislation would be enacted to ensure compliance (government communiqué, 1982).
Citizens are caught in another conundrum the courts will not recognize international law unless the law is enacted in Canadian statutory law but the government claims that the necessary law already exists or have been put in place so that Canada can comply with the law.
THE DENIAL OF STANDING
Prior to the granting of the injunction in Clayoquot Sound, several citizens wanted to appear in court to raise the issue of the importance of not logging in the old growth area of Clayoquot Sound; the citizens were not able to get standing. However, once the citizens were arrested for failing to comply with the injunction, they were able to have standing in the court and present their case against the logging of the old growth in Clayoquot Sound.
In September, 1993, along with a citizen who had been arrested in Clayoquot Sound, for not complying with the injunction, I attempted to set aside the injunction in Clayoquot Sound on the grounds that the injunction could be deemed to contravene recently agreed to international law. We were given standing in the court because my co- applicant had been arrested. After the Judge decided that international law not enacted in Canadian law was irrelevant, I appealed the case on my own. John Hunter, the lawyer acting for MacMillan Bloedel, not knowing that I had not been arrested in Clayoquot Sound, told the judge that, as I had been arrested I did not come to the court with “clean hands”. When I informed the Judge that I had not been arrested, the next time we were in court, Hunter argued that I should not be permitted to have standing in the court. In the end, Judge Carothers argued that all the international law that I had referred to was non judiciable in the Courts of British Columbia.
WHO ARE THE REAL CRIMINALS
For years, citizens have been arrested and treated as criminals for attempting to prevent irreparable harm to the environment and for calling upon governments and the courts to respect the rule of law. Often those who stand on the road are asking governments and the courts at all levels to live up to international obligations, such as those incurred under the Convention on Biological Diversity. Since the arrests in Clayoquot Sound and subsequent arrests of citizens protesting the destruction of the forests, concerned citizens have been asking ”Who are the real criminals?’ The Court must end designating , as criminals, those who strive to respect international obligations, and begin charging the corporations who continuously disregard the rule of law, and the long-standing obligations towards the Environment.
Hopefully, Betty Krawczyk will be soon exonerated, and society will acknowledge that it is not she who is the criminal but those who have been reckless and negligent in destroying the legacy of future generations.
Joan Russow (PhD) Global Compliance Research Project
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