By Rachel LaFortune, a legal fellow with Amnesty International Canada
A shorter version of this article originally appeared on The Georgia Straight.
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 the profound public interest in meaningful reconciliation.
Case in point: the injunction currently being enforced against Wet’suwet’en land and water defenders in British Columbia.
When the BC Supreme Court granted Coastal Gaslink a temporary injunction against named and unnamed 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 Jan. 7.
In granting the injunction, the BC Supreme Court failed to weigh the implications of potential harm to the rights of Indigenous peoples – rights that are inherent and protected in the Constitution and under international law. In fact, the word “rights” and “title” are nowhere to be found in the court’s summary analysis.
Instead, as has become common practice, the court easily concluded that the injunction had to be granted to protect the financial interests of a private corporation. The BC Supreme Court found that the company, Coastal Gaslink, faces significant financial losses – “in the range of several hundred million dollars” – as construction delays “could jeopardize the entire project.”
But what of the defendants? What harm do the Wet’suwet’en face?
The BC Supreme Court decision was vague on details when discussing risks to the Wet’suwet’en, stating only that any such harm “will be relatively minimal.”
Among the factors utterly overlooked in this decision is the harm done by overriding the power and authority of Indigenous peoples to make their own decisions about the use of their traditional lands, thus supplanting Indigenous peoples’ own systems of governance and decision-making.
Respecting Indigenous laws and goverance systems
Indigenous peoples’ own 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 a genocidal intent – has eroded and undermined Indigenous peoples’ own institutions and traditions. The continued struggle of Indigenous peoples to revitalize, maintain, and practice 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. This obligation flows from the right of self-determination, which lies at the heart of the UN Declaration on the Rights of Indigenous Peoples.
The Declaration 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” (Article 18). Additionally, resolution of disputes must give “due recognition to [I]ndigenous peoples’ laws, traditions, customs and land tenure systems” (Article 27).
“The deck is stacked”
In the context of injunction decisions, some Canadian courts have recognized the need for more rigorous analysis to account for the rights at issue. The Ontario Superior Court, for example, noted that “injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests.”
However, in Coastal Gaslink’s case, the BC Supreme Court authorized police action against the Wet’suwet’en hereditary Chiefs and their supporters without deeper consideration of such obligations – obligations rooted in Canada’s human rights commitments and enshrined in the Constitution. And this case is not unique.
John Borrows, Canada Research Chair in Indigenous Law at the University of Victoria, notes “the deck is stacked” against First Nations in injunction hearing 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.
In fact, by giving greater weight to economic harm than to the duty to uphold human rights, courts have created an incentive for governments and corporations to plunge ahead with projects in the face of Indigenous peoples’ still unaddressed concerns. After all, by pushing construction ahead governments and corporations can show courts that their investments will be at risk if a project is delayed to properly consider the rights of Indigenous peoples.
Witness the recent court decision on the Site C injunction, for example. Last year, the BC Supreme Court denied West Moberly and Prophet River First Nations a temporary injunction to halt or limit construction on a hydro mega-project 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, the provincial utility company rushed to begin construction even while First Nations legal challenges were being brought before the courts. Despite this fraught context, the BC Supreme Court concluded that the risk of “irreparable harm” from project delays weighed against any restriction on construction.
Further, the court noted that some First Nations had signed benefit agreements with the project proponents and so there were “Aboriginal interests on both sides.” Although in doing so the court appears to have given consideration to Indigenous peoples, this reasoning (which makes an appearance in the Coastal Gaslink injunction decision as well) is simply another example of how Indigenous rights are denigrated in the injunction process.
The human rights of Indigenous peoples—protected by Treaty, enshrined in the Constitution, and recognized under international human rights law—are not mere “interests”. There is a clear, established public interest in ensuring the highest standard of protection and fulfilment of these rights. They cannot be fairly or appropriately equated to simple financial interests, even the financial interests of other First Nations.
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 to insist that their rights not be ignored or pushed aside for another day.
 Coastal GasLink Pipeline Ltd. v Huson, 2018 BCSC 2343, para 31.
 Coastal GasLink Pipeline Ltd. v Huson, 2018 BCSC 2343, para 33.
 ICCPR arts 1 & 27; ICESCR art 1.
 Frontenac Ventures Corporation v Ardoch Algonquin First Nation, 2008 ONCA 534, para 46.
 Sarah Cox, “’Deck Stacked’ Against First Nations Seeking Site C Injunction, Experts Say” The Narwhal (19 January 2018), thenarwhal.ca/deck-stacked-first-nations-site-c-injunction-experts/.
 West Moberly First Nation v British Columbia, 2018 BCSC 1835, para 336.
 The Court notes that harms resulting from project delays “would include significant and direct negative financial consequences to the Wet’suwet’en first nation and other indigenous-owned companies who have contracted and subcontracted for some of the project work.” Coastal GasLink Pipeline Ltd. v Huson, 2018 BCSC 2343, para 31.