First Nations’ Injunctions & Unfairness

 

First Nations’ Injunctions & Unfairness

When an injunction is sought by First Nations (“FN”) people, it is often rejected. Large corporations and provincial authorities, conversely, have considerably more success obtaining injunctive relief against FN. According to Dr. Shiri Pasternak of Ryerson University, this low success rate is symptomatic of systemic discrimination.

Dr. Pasternak reviewed more than 100 Canadian injunctions cases. As published in Land Back: A Yellowhead Institute Red Paper in 2019, the results show disproportionately low success of FN injunctions:

  • 76% of injunctions filed against FN by corporations were granted.
  • 81% of injunctions filed against corporations by FN were denied.
  • 82% of injunctions filed against the government by FN were denied.

The common law test for granting injunctions is set out in the Supreme Court of Canada (“SCC”) case of RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199. The SCC further clarified, in Haida v British Columbia (Ministry of Forests), [2004] 3 SCR 511, that there is an important spectrum of consultation requirements (from notice to accommodation) mandatory for the Crown to consider in ensuring FN rights are respected and protected as required by section 35 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.).

On June 22, 2020, Pasternak stated, “[W]hile Aboriginal rights appear to be expanding through the [SCC], the dismal failure of [FN] to obtain injunctions to protect their lands from development and extraction belie a system of law working at odds with the recognition of Indigenous rights in the courts.”

Cases dealing with energy board decisions, such as Chippewas of the Thames First Nation v Enbridge Pipelines Inc., [2017] 1 SCR 1099, make it clear that when the Crown makes a decision impacting the rights of FN, the decision, and its underlying consultation through the regulatory process, is subject to judicial review. If the decision does not uphold the Crown’s obligation, FN can ask the court to overturn the decision. The Crown’s duty to protect Aboriginal Rights and Title, however, goes beyond regulatory requirements.

In Chippewas, a pipeline was crossing FN traditional territories. The National Energy Board (“NEB”) approved changes to the pipeline, and those changes were challenged by FN. The FN appealed the decision to the SCC, where it was ruled that the consultation requirements, although minimal, were met by Enbridge Pipelines Inc. The NEB therefore had legislative authority to make decisions around approvals of pipeline projects. This is one example of many, which demonstrates how the Crown’s reliance on regulatory bodies to carry out its responsibility to Indigenous peoples, rather than its direct involvement, continues to disappoint FNs and disrupt their faith in the Canadian judicial system.

There is more to be done to achieve equity for FN. Dr. Pasternak has stated the legal system emphasized “maintaining an economic status quo that prioritized the circulation of commodities, settlement of non-Indigenous peoples, and protection of business interests as key to understanding the injunction numbers. Almost 100% of the injunction cases surveyed across Canada were the result of conflict over development or resource extraction. The courts have been disproportionately swayed by arguments made by corporations that the “balance of convenience” weighs more in their favour, despite the possibility that Indigenous peoples could be removed from their homelands as a result of injunctive relief — an extreme and constitutionally shaky position… underpinning this bias is systemic racism and an undeniable refusal to understand and defer to Indigenous jurisdiction on matters that impact their communities
and territories.”

Lawyer Irina Ceric, in her article, Beyond Contempt: Injunctions, Land Defense, and the Criminalization of Indigenous Resistance, noted the frequency of injunctions against FN correlates with an increase in the criminalization of Indigenous peoples.  From page 354: “The combined impacts of injunctions and the subsequent use of contempt charges carve out a distinctly colonial space within Canadian law for the criminalization of Indigenous resistance.”

The results remain discouraging for FN demanding injunctions. This article calls on Canada’s legal players to improve equality by integrating Aboriginal legal principles into every legal decision, upholding the honour of the Crown, until it is clear that “Indigenous peoples matter.”