By Rachel LaFortune
When governments rely on court-granted injunctions to define the “rule of law” in respect to Indigenous land occupations, they risk breaching their Constitutional and international human-rights obligations and undermining any chance at meaningful reconciliation.
Case in point: the injunction currently being enforced against Wet’suwet’en land and water defenders in British Columbia.
When the B.C. Supreme Court granted a temporary injunction against individuals “occupying, obstructing, blocking, physically impeding or delaying access” to a bridge and service road on Wet’suwet’en territory, the court set in motion events that led to the high-profile, forcible arrest and removal of land defenders on January 7.
Significantly, the words rights and title are nowhere to be found in the court’s summary analysis.
Instead, as has become common practice, the court’s decision focused almost exclusively on the financial risk posed by project delays. Accepting that construction delays “could jeopardize the entire project”, the B.C. Supreme Court found that the injunction was necessary to protect the project proponent, provincial utility B.C. Hydro, from significant financial losses.
In contrast, the court was vague on details when discussing risks to the Wet’suwet’en, stating only that any such harm "will be relatively minimal”.
But this assessment utterly overlooks the harm done by overriding the power and authority of Indigenous peoples to make their own decisions about the use of their traditional lands.
Indigenous peoples’ laws and governance systems are inextricably part of their cultures and identities. Canada’s long history of imposing laws and policies on Indigenous peoples—with what the Truth and Reconciliation Commission identified as genocidal intent—has eroded and undermined Indigenous peoples’ own institutions and traditions. Their continued struggle to revitalize, maintain, and practise these traditions should be met with support from all levels of government, as well as a clear commitment not to repeat the crimes of the past.
International human-rights law requires governments to respect, protect, and promote the right of Indigenous peoples to make their own decisions about their lives and futures according to their own customs and traditions. In fact, the UN Declaration on the Rights of Indigenous Peoples affirms the right of Indigenous peoples to participate in decision-making “through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions”.
Yet in Coastal Gaslink’s case, the B.C. Supreme Court authorized police action against the Wet’suwet’en hereditary chiefs and their supporters without deeper consideration of such obligations. And this case is not unique.
John Borrows, Canada Research Chair in Indigenous Law at the University of Victoria, notes that “the deck is stacked” against First Nations in injunction hearings as “economic interests are often given greater weight than justice issues”. As a result, it is often easier for a corporation to get an injunction to remove an Indigenous blockade or camp than it is for Indigenous peoples to obtain an injunction to protect their rights and halt irreversible harm to their lands.
Take the recent Site C injunction decision, for example. Last year, the B.C. Supreme Court denied West Moberly and Prophet River First Nations a temporary injunction to halt or limit construction on a hydro megaproject that threatens their treaty-protected hunting and fishing practices. Although the project was approved without any consideration of whether it would violate treaty-protected rights, and although the provincial utility company had rushed to begin construction while First Nations legal challenges were being brought before the courts, the B.C. Supreme Court still determined that the money already invested in the project, along with the cost of potential delays, weighed against any temporary measures to protect sacred sites and crucial habitat in the Peace Valley.
In light of this persistent and systemic failure to properly consider Indigenous rights at the injunction stage, the continued association of court injunctions with “rule of law” rings hollow. Federal, provincial, and territorial governments need to engage in good faith, and with real political will, in ensuring that Indigenous rights and title are recognized and upheld.
In the meantime, their human-rights obligations mean that they should, at the very least, be standing alongside Indigenous-rights defenders in the courts, insisting that Indigenous rights not be ignored or pushed aside for another day.More