Tag Archives: Court Injunction

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

A blockade in Kahnawake, south of Montreal, in solidarity with Wet’suwet’en hereditary chiefs attempting to halt construction of a natural gas pipeline on their traditional territories has been in place in since Feb. 10, 2020. (Photo source: Graham Hughes/The Canadian Press)

  • The Canada Research Chair in Indigenous Law at the University of Victoria says injunctions become more complicated when title and governance issues are at stake, as in the Wet’suwet’en case.

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.

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.

The Canadian Press, published March 1, 2020.

[SOURCE]

Winnipeg Judge orders Parker Lands Protesters to Go Home

Protesters occupying the Parker Lands site have been given until 6 p.m. Friday to leave the property. (Bartley Kives/CBC)

Judge grants interlocutory injunction to property owners, protesters have to clear out by Friday

Protesters occupying the Parker Lands development in Winnipeg have been ordered by a judge to leave the property and clean up all their belongings by 6 p.m. Friday.

The order is part of an injunction granted by Court of Queen’s Bench Justice James Edmond Thursday afternoon.

The Parker Lands property was acquired in a land swap with the City of Winnipeg by two numbered companies connected to local developer Gem Equities.

Protesters have occupied the Fort Garry property in two encampments since July. They oppose the clearing of forested areas on the property and argue the area has historical and cultural significance to Métis and Indigenous communities.

Work on the property — which the owners described as “pre-development” — came to a standstill with the arrival of the protesters on July 14.

The injunction “means our client can get back to what they were doing in July — carrying out lawful business activities that were being stopped by illegal trespassers,” said Kevin Toyne, the lawyer for the property owners. “Our clients are quite happy that their rights have been upheld and vindicated by the courts.”

Protester not surprised by decision

Jenna Vandal, one of three protesters who made submissions Thursday opposing the injunction, said she wasn’t surprised by the decision.

“I know the court institution is here to protect and enshrine property rights,” Vandal said. “Of course, I wish it happened the other way.”

Vandal, who is Métis, said the property borders the site of the long-demolished Métis settlements of Rooster Town and Tin Town.

“Métis would have used this territory for subsistence and ceremonial purposes,” she said. “That in itself gives the land much importance and value to Indigenous and Métis people.”

Inside court, Edmond noted no Indigenous or Métis community had made an entitlement claim to the land. As well, the Manitoba Métis Federation, which Vandal said supported her efforts, made no representation to court on the issue.

Edmond said the protesters had no legal right to trespass on the property and ruled the owners would suffer “irreparable harm” if the occupation was allowed to continue.

“I am satisfied that the costs of delay are real … and the plaintiffs will suffer real harm,” Edmond said.

He said the legal remedy for the protesters would be to seek a judicial review of the city’s decision to sell the property.

“To just show up and camp on somebody else’s property, there isn’t a legal right to do that,” he said.

Until now, city police have declined to intervene in the dispute, saying they would take their cue from the courts.

Edmond ordered that protesters remove all their belongings and “obstructions” from the site in a “peaceful” manner.

“I don’t want to see confrontations,” Edmond said.

The property owners are seeking an order of $10,000 in costs from each of the three defendants who were in court Thursday.

Edmond will rule on that issue after receiving written submissions from the defendants next week.

CBC News Posted: Sep 14, 2017 

[SOURCE]