Shiri Pasternak

Injunctions: What Land Protectors Need To Know

Originally published on NationsRising.org

Link: http://nationsrising.org/injunctions-what-land-protectors-need-to-know/

In Elsipogtog right now, a scenario is playing out that repeats itself in communities across the country, but often goes unnoticed: the injunction is mediating conflict between Indigenous-state-private sector parties. While a more detailed and specific analysis is needed on the role of injunctions in the Elsipogtog conflict over fracking on Mik’maq lands, here is a general overview prepared quickly to clarify some basic information about what the remedy can offer and what it restricts in terms of Indigenous assertions of jurisdiction over land.

On Monday, SWN Resources Canada was granted a two-week extension of their existing injunction against protests, that will now remain in effect until December 17. The injunction “requires that demonstrators remain at least 250 metres in front of or behind contractors and their vehicles and 20 metres to the side.”

THE ANATOMY OF A COURT INJUCTION: A PRIMER FOR LAND PROTECTORS

What is an injunction? In plain terms, it is a legal tool that restrains someone from doing something.

There are two kinds of injunctions:

(1) a permanent injunction that is awarded after a trial;
(2) an interlocutory injunction that is more immediate and used when people think a trial will take too long. This second type of injunction is the one most often used by companies to restrain Indigenous peoples from blockading or by Indigenous peoples to stop development on their lands.

You have to pass three tests to be awarded an interlocutory injunction. These tests were set out in RJR Macdonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311. They are that:

(1) the issue must be deemed “serious”;
(2) the applicant must prove “irreparable harm” is being caused; and
(3) there must be a “balance of convenience.” This third criterion is the most contentious.

What is a “balance of convenience”? It is a murky term where the judge can exercise a huge amount of discretionary power determining who is MOST inconvenienced in a case. This is largely a political call, where the judge determines whether economic development is more important than Indigenous or environmental rights. As the Haida court found,

[14] …the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to “lose” outright pending a final determination of the issue, instead of being balanced appropriately against conflicting concerns.

So even the courts submit that an injunction is a gamble for Indigenous peoples to take.

If you are an Indigenous person trying to stop development on your lands, there are alternative ways to pursue remedies than interlocutory injunctions that you might want to consider.

(1) You can undertake a proceeding called an ACTION and go to trial. This takes a long time because you have to file a statement of claim, which is a lengthy document, and then attend a full trial, with witnesses appearing on both sides, oral testimony, etc. Inside that ACTION you can also bring a MOTION for an interlocutory injunction. But it could be a risky and lengthy procedure to secure one.

More promising:

(2) You can file a proceeding called an APPLICATION. This is a relatively fast process, since it does not involve a trial – it usually takes about a couple of months instead of a couple of years. Your APPLICATION should request a JUDICIAL REVIEW of a government bodies’ decision, for example, to issue a permit or even contest the imposition of Third Party Management, like Attawapiskat successfully did (after losing an injunction appeal). Within this APPLICATION you can also ask for additional relief through an interim injunction. This injunction is different than the interlocutory injunction in the sense that you are calling into question a Minister’s decision: that means that if the company proceeds with logging or whatever, their actions could be deemed illegal if the court finds the Minister’s decision to be wrong. That’s a strong action, compared to just a temporary restraint that the interlocutory injunction offers.

The thing is, to file an APPLICATION, for example, to review a decision about logging or mining on your land, you usually have to do so relatively close to the time that the permit is issued. Federally, you have 30 days to request a judicial review – a very tight timeframe. But the province, which has jurisdiction over natural resources, will be the source of permits that you are contesting if the issue is extraction on your lands. In Ontario, there is no time limit, but the courts expect you to intervene within 6 months – a year. Each province is different, so research the legislation where you live.

According to some lawyers who have been practicing in the field for many years, the APPLICATION approach has been pretty successful for Indigenous peoples who seek what is sometimes called “Haida relief.” Haida Relief is based on the Crown’s DUTY TO CONSULT AND ACCOMMODATE bands before engaging in activities affecting Aboriginal title lands. This DUTY TO CONSULT is based on Section 35 rights enshrined in Canada’s Constitution, 1982, which recognizes and affirms “existing Aboriginal and treaty rights.” [SEE SIDEBAR at bottom]

This year, the DUTY TO CONSULT was narrowed in the context of First Nations seeking injunctions in a Supreme Court of Canada decision that is critical to understand.

In May 2013, the Behn v Moulton Contracting Ltd. decision came down, denying the Behn family an injunction to protect their trapline from logging.

The judge gave two main reasons for doing so:

First, he opposed their claim that logging on their trapline compromised their treaty rights. He chastised the Behn family – members of the Fort Nelson First Nation of BC – entreating them that they should have protested the logging permit when the province issued it originally.

In essence, he was asking: why not request a JUDICIAL REVIEW if the permit is the problem? Go to the source.

Second, he opposed their claim that the logging violated their Section 35 rights. He said that since the Behn family were individuals in the band and not the “Aboriginal group” – usually understood as the Chief and Council – that they did not represent the collective rights of their band, therefore they could not claim Section 35 rights.

This second ground of dismissal sent a chill across Indian Country. Lawyers have begun to warn Indigenous peoples to be wary of filing for an injunction without some sign of support from the band, customary government, or relevant representative body on reserve. If, like on many reserves, the land defenders on the ground do not have the support of the band council, this decision could spell trouble in the courts.

Another important caution: when Indigenous peoples go to court to seek a remedy, the court will look at whether the applicant has “clean hands.”  In other words, if an applicant has engaged in activities that are illegal or raise questions as to the sincerity of the applicants, the court has discretion to deny relief. This has sometimes been used to deny Indigenous peoples relief if they have engaged in blockading activities before going to court.

This leads me to a necessary warning about the court of law as a venue for securing justice for Indigenous peoples.

First, by submitting to the jurisdiction of the court, you are submitting to the jurisdiction of the court, which is to say: it is more difficult to engage in “unlawful” activities when you have acknowledged the lawfulness of Canadian law by entering into proceedings.

Second, it is a financial sinkhole. Costly beyond expectation, especially as cases become complicated with Aboriginal title assertions, lawyer’s fees mount extremely quickly.

This is not say the courts are a bad choice or to condemn those who seek these legal remedies, but rather to highlight the fact that when Indigenous peoples seeking justice in Canada today turn to the courts it is precisely because they have been left with few choices.

At the heart of the manner here is the fact that the provinces continue to issue permits on Indigenous land without engaging in free, prior, and informed consent with Indigenous title holders.

The fact that the provinces instead side as interveners with resource extraction companies, as witnessed recently at Elsipogtog, is an outrageous conflict of interest that speaks volumes to the alliances of power that characterize the war against Indigenous peoples in Canada today.

SIDEBAR ON HAIDA RELIEF

What is meant by this term?

In 2004, the Haida case went to the Supreme Court of Canada (Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511). They filed a lawsuit against the province for issuing timber licenses to forestry company MacMillan Bloedel, who were also named in the suit.
The question before the court was what duty the province had – based on Haida’s assertion of Aboriginal title – to consult them before issuing tree forest licenses?

The Haida had never formally submitted an Aboriginal title claim to state authorities as required for recognition (by terms established in the land claims policy in 1973), therefore from the province’s perspective Haida land was technically considered Crown land.

As part of their lawsuit, the Haida had sought a permanent injunction against MacMillan Bloedel in order to stop the clear-cut logging of their forests. To protect their lands, the judge told the Haida that while they could seek injunctive relief, that remedy might not actually take into account their interests. Here is the text where the judge lays out the limitations of injunctions, cited in part above:

14 Interlocutory injunctions may offer only partial imperfect relief. First, as mentioned, they may not capture the full obligation on the government alleged by the Haida. Second, they typically represent an all-or-nothing solution. Either the project goes ahead or it halts. By contrast, the alleged duty to consult and accommodate by its very nature entails balancing of Aboriginal and other interests and thus lies closer to the aim of reconciliation at the heart of Crown-Aboriginal relations, as set out in R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 31, and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 186. Third, the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to “lose” outright pending a final determination of the issue, instead of being balanced appropriately against conflicting concerns… Fourth, interlocutory injunctions are designed as a stop-gap remedy pending litigation of the underlying issue. Aboriginal claims litigation can be very complex and require years and even decades to resolve in the courts. An interlocutory injunction over such a long period of time might work unnecessary prejudice and may diminish incentives on the part of the successful party to compromise. While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests. For all these reasons, interlocutory injunctions may fail to adequately take account of Aboriginal interests prior to their final determination.

The judge recommended instead that if they could prove a special obligation that gave rise to a duty to consult or accommodate, then they would be free to pursue other available remedies, such as the JUDICIAL REVIEW.

 


Shiri Pasternak is a post-doctoral fellow at Columbia University and a recent PhD graduate of the Department of Geography at the University of Toronto. She is a founding member of Barriere Lake Solidarity, a member of the Indigenous Sovereignty and Solidarity Network in Toronto, and an ally in the Defenders of the Land network. She has had work published in the Canadian Journal of Law and Society and the Canadian Journal of Native Studies. She also publishes in rabble.ca, the Media Coop, and other open access journals.