Federal lawyer told judge about fear of viral opportunities during successful effort to block journalists from using clips of webcast

On the morning of July 23, Chris Tollefson quaffed a coffee and a banana and stepped into a Vancouver courtroom. He was there as counsel for a landmark First Nations legal case aiming to stop construction of the Site C hydro dam on B.C.’s Peace River.

Before evidence for the West Moberly First Nations’ injunction application was heard, Tollefson and his colleagues spoke to a pressing matter of public interest — whether CBC, The Narwhal and other news outlets would be permitted to edit and rebroadcast archived webcast from the court proceedings.

Artists, cartoonists and journalists have long been permitted to render their interpretations of court proceedings through drawings and reports, as long as they don’t use photographs or video taken inside the courtroom.

But the digital age has sparked a new conundrum, said Tollefson, a member of the team assembled by Sage Legal on behalf of West Moberly First Nations and Prophet River First Nation: what is acceptable in terms of lifting imagery from a courtroom for news reports and social media?

“The courts are abundantly aware that we live in a new era and that they do have to adapt,” Tollefson told The Narwhal. “It’s really a question of how do we do that.”

West Moberly’s injunction application, which seeks to halt work on the over budget Site C dam until a full civil trial is heard, has also become a test balloon to see how much the courts are willing to adapt.

The West Moberly and Prophet River nations allege that construction of the Site C dam and two other dams on the Peace River unjustifiably infringe on treaty rights protected by the Canadian constitution.

Most West Moberly First Nations members live more than a day’s drive from the Vancouver courtroom and can’t attend the injunction application proceedings, expected to run for about three weeks.

And few people interested in the fate of the largest publicly funded infrastructure project in B.C.’s history have enough spare time to watch hours and hours of unedited livestream — sometimes laden with legal jargon — for three weeks in a row.

To provide viewers with video clips from inside the courtroom, CBC filed an application seeking the court’s permission to copy, edit and use the webcast.

Reporting on court proceedings “necessarily involves a distillation of each day’s events and journalistic judgement regarding the relevant and newsworthy portions to highlight in news reporting,” CBC explained in its application.

A court order that the livestream proceedings not be copied, used, rebroadcast or edited amounted to “handcuffs on free and meaningful journalistic reporting on the proceedings,” CBC stated.

CBC Filed Notice of Application by The Narwhal on Scribd

In an affidavit filed in support of CBC’s application, The Narwhal said the limitations placed on the livestream would prevent public interest media outlets from bringing comprehensive coverage of the hearings to the public.

Managing editor Carol Linnitt noted that “granting more expansive repurpose and broadcast access to the footage will allow media outlets like ours to report on these hearings in a manner more well-suited to the demands of the fast-paced digital media environment journalists endeavour to meet every day.”

Canadians are increasingly accessing news via social media channels, Linnitt pointed out, saying The Narwhal and other media outlets “work to ensure matters of high importance and public interest are available for audiences on these platforms.”

The Narwhal Affidavit in Site C court case by The Narwhal on Scribd

Among other potential uses, The Narwhal hoped to clip relevant sections from the livestream court proceedings and post them to our Facebook page and Twitter feed.

Take, for example, this interesting twist in the proceedings in which CBC’s lawyer argued that everyone should be able to edit and rebroadcast the livestream and lawyers for the B.C. and federal governments and BC Hydro agreed that only CBC should have that right.

Judge Warren Milman to CBC’s lawyer Daniel Burnett: “So if I understand the issue then correctly, what they’re consenting to is to have the CBC be permitted to do these things specifically but no one else? And your proposal is that everyone be allowed?”

Burnett: “The temptation — I act only for CBC m’lord — the temptation is to say ‘start the car, we get an exclusive, let’s get out of here.’ But that’s not in the broader public interest in CBC’s respectful submission.”

‘We could become memes’

The federal government is not contesting the injunction application by West Moberly First Nations, but its lawyers are in the courtroom for the case and are speaking to various motions.

Take this exchange, when Milman addressed Andrew Crawford, counsel for the federal government.

Milman: “Give me an example of the mischief you see arising from such an order. What could go wrong?”

Crawford: “We could become memes, if you’re aware of what memes are.” (He laughed). “I’m just trying to think off the top of my head if you’ve seen videos of certain things being songified or raps being made.”

The courtroom erupted into laughter and Crawford conceded that his scenario was “in the far reaches.”

Burnett later told the judge, “If somebody wants to create a funny meme or rap there’s many more interesting places to go to deal with that. They’re not going to find soil to till that in this court.”

Like CBC, The Narwhal strove to make the court proceedings more accessible for the public, especially after international hydro dam construction expert Harvey Elwin filed an affidavit describing the high level of confidentiality surrounding the Site C project as “extraordinary,” and saying he has never encountered such secrecy during his five decades designing, developing and managing large hydroelectric projects.

Site C would flood 128 kilometres of the Peace River and its tributaries, destroying dozens of recorded sites of cultural and spiritual significance for First Nations, including Indigenous burial grounds, and contaminating bull trout and other fish with highly toxic methylmercury.

High cost of entry a barrier to news outlets

The judge ruled in favour of BC Hydro and the B.C. and federal governments, deciding that only CBC could edit and rebroadcast the livestream for news and public affairs because it was the only applicant.

Other media outlets like The Narwhal would have to raise money for lawyers, file applications and apply to the court individually to do the same.

“Media outlets all over Canada are in a financial crisis and for many of them the cost of filing an application with the court is prohibitive. As a non-profit news outlet, the cost is also prohibitive for us,” said The Narwhal’s editor-in-chief Emma Gilchrist. “If the court can see that the distribution of court proceedings is in the public interest, why make each news outlet go through an expensive and time-consuming process to re-affirm that?”

Milman also surprised lawyers for CBC and the plaintiffs by ruling that CBC would have to pay 50 per cent of the livestream costs. Court documents pegged the total cost as high as $30,000, meaning that CBC would have to pay as much as $15,000.

At that point, CBC decided the show wasn’t worth the price of admission and backed off.

In an email to The Narwhal, CBC spokesperson Chuck Thompson explained that while CBC’s application was ultimately successful, “the terms of the order granting CBC access to the feed were not acceptable to us.”

“In the end, we decided that, on balance, what we would have gained from an editorial standpoint wasn’t worth the cost and the value wasn’t there for the taxpayer,” Thompson said.

Decision highlights tension between tradition and modern realities

Tollefson described the final outcome on the matter of rebroadcasting the court proceedings as both a “significant advance” and a missed opportunity for providing ready access to court proceedings in the digital age.

Tollefson views the earlier decision by Milman to allow the courtroom proceedings to be webcast — a move supported by West Moberly First Nations, BC Hydro and the federal and B.C. governments, with the cost equally divided among the four parties — as a major step towards opening up the courtroom.

“This is the first time in British Columbia where a judge has ordered that a webcast be made available of a case involving the litigation of constitutionally protected Indigenous rights,” Tollefson pointed out, adding that it’s rare for any case in B.C. to be webcast.

“We argued that we needed to bring these cameras into the courtroom not just to fulfill the open court principle but for the purposes to promoting access to justice and promoting reconciliation. The judge accepted all those arguments.”

But he said he was disappointed by the decision to restrict editing and rebroadcasting to the CBC.

“What’s the difference between CBC posting something online, The Narwhal posting something online or an individual blogger citizen putting something online in relation to that hearing? Should each of them have to come to court before they’re allowed to do that? And what should the conditions of that access be?”

The decision highlights a tension between legal tradition and the need to embrace new technologies, said Tollefson, executive director of the Pacific Centre of Environmental Law and Litigation.

He described the case as “an opportunity for the courts to recognize that we are in an era where regular citizens are engaged in news gathering, production and dissemination on a variety of social media platforms.”

“That’s how many people now get their news and this was an opportunity for Canadians to gain an important understanding of a landmark case,” Tollefson said. “And it’s a missed opportunity.”

Site C dam construction on the Peace River, July 2018. Photo: Garth Lenz.