Updated: Mar 29, 2021
Opinion by Aryan Bajpai
This opinion piece is part of Kroeger Policy Review's first issue on Race, Religion, and Culture. The full issue is available here.
Following a summer of racial justice protests, systemic racism in the United States has gripped attention the world over. When it comes to racial injustice in Canada however, we often don’t address the same issue happening here. In particular, we have yet to act on many issues directly affecting the Indigenous peoples of this land and their rights. One such issue is the use of court injunctions against land defenders concerning resource development projects- with both civil and criminal legal consequences (in the form of fines and imprisonment, respectively). According to the Canadian Encyclopedia, an injunction is an “Equitable judicial remedy issued at the court's discretion. It usually takes the form of an order preventing or restraining a person from performing an act” (1). Marrying our legal and political landscapes with systemic racism, Canadian law has been accused of upholding colonialism and enabling state violence through these injunctions and criminalizing Indigenous land defenders (2).
Injunctions have been disproportionately granted and used by corporations and governments to remove Indigenous peoples from their lands, and overwhelmingly favour settler institutions. The Yellowhead Institute is a research centre led by Indigenous voices housed in the faculty of arts at Toronto’s Ryerson University which focuses on land and governance policies. It champions education, and creates accessible resources on First Nation governance which seek to provide national platforms for dialogue between Indigenous peoples and Canadians (3). In a review conducted by the Yellowhead Institute of over 100 injunction cases involving First Nations across Canada, they found that nearly 100% of injunction origins were related to resource and development (4). Furthermore, approximately 90% of injunctions were temporary just to involve police until the lawsuits were completed (5). 81% of injunctions filed against First Nations by corporations were granted, while, when reversed, 81% by First Nations against corporations were denied. 90% of injunctions filed by governments against First Nations were granted, while, when reversed, 82% by First Nations against governments were denied (6). Evidently, there is great racial bias demonstrated in Canada’s legal system.
This issue may sound familiar to some as we have been increasingly hearing from the media and social media about two conflicts escalated as a result of injunctions. Injunctions were used both in January 2019 against the Wet’suwet’en west of what we know as Prince George, British Columbia, and ongoing at the time of writing against the Six Nations Mohawks at 1492 Landback Lane near what we know as Caledonia, Ontario. With the Wet’suwet’en, a Coastal GasLink pipeline was opposed by hereditary chiefs and a B.C. Supreme Court decision decided under both Canadian and Indigenous law an injunction was warranted. The RCMP forcibly carried out this injunction, and there were rail and road blockades across the country in solidarity (7). With the Six Nations, there is a housing development proceeding without consent, and calls for land back led to a blockade where police officers have used force (8).
Oftentimes, these injunctions are a result of not obtaining what is formally known as Free, Prior, and Informed Consent from Indigenous peoples on their unceded territories. Free, Prior, and Informed Consent is defined by the United Nations as the principle that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them” (9). This principle appears in Article 19 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted on September 13th, 2007 by 144 Member States (with 11 abstentions and 4 votes against). Canada actually originally voted against this Declaration along with Australia, New Zealand, and the United States. However, all four have since reversed their positions (10). Another two articles worth mentioning in UNDRIP are Article 10, which mentions no forcible relocation of Indigenous peoples from their lands (11), and Article 32, which mentions Indigenous peoples requiring consultation in good faith for resource development and their determining use of their lands (12), as they directly apply to the injunction and resource development scenario. Highly relevant to the use of injunctions in Canada, the aforementioned principles highlight a system which has repeatedly ignored and violated them.
There is a pattern of the sovereignty of Indigenous nations being diminished (along with the environment) in favour of the economy, and an urgent need to re-evaluate policy and laws regulating these interactions of corporations and governments with Indigenous peoples. There is an inevitable fault line found in the disproportionate power imbalance between the Canadian system and Indigenous peoples intent on defending their lands from exploitation and destruction.
A way to remedy this moving forward is to contact your elected officials in federal and provincial legislatures and demand that they respect Indigenous sovereignty and commit to Free, Prior, and Informed Consent, as well as all other articles within UNDRIP. Perhaps even that they reform how injunctions are used. There are also recommendations included in the final report of the Truth and Reconciliation Commission for the residential schooling system, including Call to Action 42 which calls “upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012” (13). Uplift Indigenous voices on your social media where possible, and include more Indigenous resources in your re-learning efforts for anti-racism and climate justice too, where Indigenous voices should be at the forefront, according to Indigenous Climate Action (14).
As those studying (and perhaps living) on unceded Algonquin Anishinabeg territory in Ottawa, supporting and acting to protect Indigenous rights is the least we can do. We should protect Indigenous rights as we strive to be on the path to reconciliation and to foster a true, equal, and equitable Nation-to-Nation relationship.
Writer’s Note: In the spirit of fostering conversation, you can find out whose land you are on at the following resource in the form of an interactive map: https://native-land.ca/.
Barnes, J., "Injunction". In The Canadian Encyclopedia. Historica Canada. Article published February 07, 2006; Last Edited December 16, 2013. https://www.thecanadianencyclopedia.ca/en/article/injunction.
Robinson, Carrie. 2020. “First Nations’ Injunctions & Unfairness.” The Canadian Bar Association BC Branch: BarTalk. https://www.cbabc.org/BarTalk/Articles/2020/August/Columns/First-Nations%E2%80%99-Injunctions-Unfairness.
Yellowhead Institute. n.d. “About Us.” Accessed November 5, 2020. https://yellowheadinstitute.org/about/.
Yellowhead Institute Red Paper. “A Review of over 100 Injunction Cases Involving First Nations across Canada .” Toronto : Yellowhead Institute, November 2019.https://redpaper.yellowheadinstitute.org/wp-content/uploads/2019/11/injunction-infographics.pdf .
Yellowhead Institute Red Paper. “A Review of over 100 Injunction Cases Involving First Nations across Canada .” Toronto : Yellowhead Institute, October 2019. https://redpaper.yellowheadinstitute.org/wp-content/uploads/2019/10/injunction-stat-land-back.pdf .
McKenzie-Sutter, Holly. 2020. “Legal experts say injunctions not effective in Indigenous-led land disputes.” National Post (St. John's), March 1, 2020. https://nationalpost.com/pmn/news-pmn/canada-news-pmn/legal-experts-say-injuncti ons-not-effective-in-indigenous-led-land-disputes.
Forester, Brett. 2020. “Police violence spurs retaliation blockades, attacks on infrastructure in Caledonia land dispute.” APTN National News, October 23, 2020.https://www.aptnnews.ca/national-news/police-violence-spurs-retaliation-blockades-attacks-on-infrastructure-in-caledonia-land-dispute/.
United Nations Documents. “United Nations Declaration on the Rights of Indigenous Peoples.” Resolution adopted by the General Assembly on 13 September 2007, page6. https://undocs.org/A/RES/61/295.
United Nations Department of Economic and Social Affairs. n.d. “United Nations Declaration on the Rights of Indigenous Peoples.” United Nations. Accessed November 5, 2020. https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.
United Nations Documents. “United Nations Declaration on the Rights of Indigenous Peoples.” Resolution adopted by the General Assembly on 13 September 2007, page 5. https://undocs.org/A/RES/61/295.
Mas, Susana. 2015. “Truth and Reconciliation offers 94 'calls to action.'” CBC News, December 14, 2015. https://www.cbc.ca/news/politics/truth-and-reconciliation-94-calls-to-action-1.3362258.
Indigenous Climate Action. n.d. “Our Story.” Indigenous Climate Action. Accessed November 5, 2020. https://www.indigenousclimateaction.com/our-story.
For Indigenous resources on this topic: