(The Canadian Press)

(The Canadian Press)

Legal experts say injunctions not effective in Indigenous-led land disputes

Protests began earlier this month when the RCMP moved into Wet’suwet’en territory to enforce a court injunction

As demonstrations continue across Canada in support of Wet’suwet’en hereditary chiefs opposing a pipeline through their territory, legal experts suggest it’s time to reconsider how injunctions are employed when responding to Indigenous-led protests.

The protests began earlier this month when the RCMP moved into Wet’suwet’en territory to enforce a court injunction against opponents of Coastal GasLink’s natural gas pipeline development in northern British Columbia. A group of hereditary chiefs rejected the court’s decision on the company’s application, saying it contradicted Wet’suwet’en law.

As solidarity protests popped up on railways and roads across the country, other companies sought their own injunctions to remove the blockades, arguing the demonstrations were causing harm to business and to the Canadian economy.

St. John’s-based lawyer Mark Gruchy, who represents clients charged with breaching an injunction while protesting at the Muskrat Falls hydro site in Labrador in 2016, said Indigenous resistance to resource development is too complex an issue to be addressed through injunctions in their current form.

“It’s frustrating for me as a lawyer to watch, but I think there’s a relatively straightforward way to really take the edge off and to change the future,” Gruchy said from Happy Valley-Goose Bay, where five of his clients had just been cleared of criminal charges related to the Muskrat Falls protest. Several other people still face trials or sentencing after being charged for the same incident.

Gruchy said the concerns raised in his clients’ case will continue to surface across Canada unless politicians work to “modify the tool” being used to resolve such resource and land disputes.

As an example, he proposed that in cases related to an Indigenous-led protest, injunctions could be structured to allow for mediated consultation instead of a heavy-handed order for the protest to stop.

“This issue, really, is a very sharp collision of a major political, social issue with the legal system, and I think that politicians should do their best to … blunt the impact of that,” he said. The current situation is “not good for … the long term health of our legal system,” he added.

John Borrows, who holds the Canada Research Chair in Indigenous Law at the University of Victoria, said there is a precedent of a legislative solution being employed when injunctions were causing disruption.

READ MORE: Wet’suwet’en chiefs, ministers reach proposed agreement in B.C. pipeline dispute

In the mid-20th century, the widespread use of injunctions by employers against striking workers was leading to increasingly volatile disputes in British Columbia. The provincial government eventually adjusted labour legislation to outline required negotiation practices in disputes.

“It seems to have created some safety valves or more productive ways of talking through what the dispute is, and so I always wonder whether or not what we learned in other contexts could be applied in this context,” Borrows said.

He said injunctions preserve the status quo, because aboriginal title issues do not need to be considered. That causes complications when complex title and governance issues are at stake, as in the Wet’suwet’en case.

B.C. Supreme Court Justice Marguerite Church acknowledged the difficulty of addressing underlying Indigenous law issues in her decision on Coastal GasLink’s injunction application, writing “this is not the venue for that analysis, and those are issues that must be determined at trial.”

Others have said the legal tests applied when considering an injunction request favour corporations, because financial losses are more easily demonstrated than environmental or cultural ones.

A study of over 100 injunctions published last year by the Yellowhead Institute, a First Nations-led think tank based at Ryerson University, found 76 per cent of injunctions filed by corporations against First Nations were granted, compared with 19 per cent of injunctions filed by First Nations against corporations.

Irina Ceric, a lawyer and criminology instructor at British Columbia’s Kwantlen Polytechnic University who worked on the study, said the use of injunctions to dispel protests has been on the rise in Canada. But the last three weeks have been “off the charts,” she said, with 12 granted since protests began — more than half of them to the CP and CN railways.

She said the recently granted injunctions raise questions, because in some cases the evidence used in the applications has not been made public, and in other cases it’s unclear why mischief laws would not have sufficed.

“I don’t know if this is the intent, but what it does is that it gives the corporations that are impacted by these blockades the power to call the shots in terms of protest policing, which I think is really problematic,” she said.

Ceric said that rather than waiting for the provinces to introduce legislation, it may take a Supreme Court of Canada challenge to change how injunctions are applied in response to Indigenous protests.

Shiri Pasternak, a criminology professor at Ryerson University and research director of the Yellowhead Institute, said legislators appear to be responding to recent events with more extreme measures rather than reconsidering how injunctions are used.

She pointed to a law introduced in Alberta this week that would heavily fine people who block roads and rail lines and said the recent proliferation of injunctions speaks to their function as a last resort for companies when negotiations with Indigenous leaders break down.

“It’s just proving how instrumental this tool is for removing people from their land,” she said.

Holly McKenzie-Sutter, The Canadian Press


Like us on Facebook and follow us on Twitter.

Coastal GasLinkIndigenousPipeline

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Image courtesy CDC
Confirmed COVID-19 cases in Kitamaat Village

Haisla Nation Council said there are two confirmed cases they are aware of at this time

A coal-fired power plant seen through dense smog from the window of an electric bullet train south of Beijing, December 2016. China has continued to increase thermal coal production and power generation, adding to greenhouse gas emissions that are already the world’s largest. (Tom Fletcher/Black Press)
LNG featured at B.C. energy industry, climate change conference

Hydrogen, nuclear, carbon capture needed for Canada’s net-zero goal

Victoria’s Royal Jubilee Hospital took in two COVID-19 patients from Northern Health as part of a provincial agreement. (Black Press Media file photo)
Victoria hospital takes in two COVID-19 patients from Northern Health

Royal Jubilee Hospital takes patients as part of provincial transport network

An aerial shot of Cedar Valley Lodge this past August, LNG Canada’s newest accommodation for workers. This is where several employees are isolating after a COVID-19 outbreak was declared on Nov. 19. (Photo courtesy of LNG Canada)
52 positive COVID-19 cases now associated with LNG Canada site outbreak

Eight cases still active, 44 considered recovered

The Kitimat River in July. (Clare Rayment photo)
Good News, Kitimat!

Bringing some local good news to your week

Motorists wait to enter a Fraser Health COVID-19 testing facility, in Surrey, B.C., on Monday, Nov. 9, 2020. THE CANADIAN PRESS/Darryl Dyck
Another 694 diagnosed with COVID-19 in B.C. Thursday

Three more health care outbreaks, 12 deaths

A demonstrator wears representations of sea lice outside the Fisheries and Oceans Canada offices in downtown Vancouver Sept. 24, demanding more action on the Cohen Commission recommendations to protect wild Fraser River sockeye. (Quinn Bender photo)
First Nations renew call to revoke salmon farm licences

Leadership council implores use of precautionary principle in Discovery Islands

Ten-month-old Aidan Deschamps poses for a photo with his parents Amanda Sully and Adam Deschamps in this undated handout photo. Ten-month-old Aidan Deschamps was the first baby in Canada to be diagnosed with spinal muscular atrophy through Ontario’s newborn screening program. The test was added to the program six days before he was born. THE CANADIAN PRESS/HO, Children’s Hospital Eastern Ontario *MANDATORY CREDIT*
First newborn tested for spinal muscular atrophy in Canada hits new milestones

‘If Aidan had been born any earlier or anywhere else our story would be quite different’

(Pixabay)
Canadians’ mental health has deteriorated with the second wave, study finds

Increased substance use one of the ways people are coping

An RCMP officer confers with military rescuers outside their Cormorant helicopter near Bridesville, B.C. Tuesday, Dec. 1. Photo courtesy of RCMP Cpl. Jesse O’Donaghey
Good Samaritan helped Kootenay police nab, rescue suspect which drew armed forces response

Midway RCMP said a Good Samaritan helped track the suspect, then brought the arresting officer dry socks

People line up at a COVID-19 assessment centre during the COVID-19 pandemic in Scarborough, Ont., on Wednesday, December 2, 2020. Toronto and Peel region continue to be in lockdown. THE CANADIAN PRESS/Nathan Denette
COVID-19 vaccine approval could be days away as pressures mount on health-care system

Many health officials in regions across the country have reported increasing pressures on hospitals

(Needpix.com)
Pandemic has ‘exacerbated’ concerns for B.C. children and youth with special needs: report

Pandemic worsened an already patchwork system, representative says

Most Read