Our Land, Our Way: The Rule of Law, Injunctions, and Indigenous Self-Governance.

• Author: Dalton, Sarah

Introduction

European settlement swept across Canada, ignoring Indigenous peoples' existing laws and institutions. Today, two parallel systems of law exist: settler legal systems, which assert Crown sovereignty to all of Canada, and Indigenous legal systems, which assert sovereignty over their resources and peoples. Although dormant, due to policies such as section 91(24) of the Constitution Act (1) and the Indian Act, (2) Indigenous legal traditions persist today and are developing into a third order of government in Canadian federalism. Yet, the differing legal systems have not reconciled. One area where this tension arises is during resource development and extraction. How these projects proceed and are managed are frequently contested, which often leads to injunctions.

Indigenous communities sometimes erect blockades as a form of protest. Under Canadian laws, blockades as a form of protest are seen as civil disobedience. Although Canadians have a right to peacefully assemble, the siting of disruption is key to gain legal tolerance. Civil disobedience seeks to create change by illegal means or interference with the lawful interests of other citizens. In the context of Indigenous protestors and resource development, the peaceful assembly interferes with a developer's economic interests. As such, blockades are a form of civil disobedience, not lawfully protected peaceful assembly. The current judicial sentiment is that allowing Indigenous peoples to erect blockades, but stopping others, would create two different applications of the Canadian rule of law.

In this context, injunctions are frequently implemented to stop communities from erecting blockades used to "defend disputed land from development by private third parties." (3) In 1982, section 35 of the Constitution (4) entrenched the protection of existing Aboriginal and Treaty rights in Canadian law. Since then, Indigenous people have used injunctions to protect their ancestral lands. However, there is a growing trend of the courts' reluctance to grant injunctions to Indigenous people (5) and an increased frequency of companies obtaining injunctions against Indigenous people. (6) Rather than undermining the rule of law, Indigenous peoples' efforts to prevent unwanted development on their lands should be viewed as an expression of self-governance.

Colonialism is apparent in legislated actions, such as the imposition of band councils or residential schools, but it is also demonstrated through the Canadian common law and court actions that dispossess Indigenous people. (7) John Borrows posits that the Canadian common law favours non-Aboriginal legal sources over Indigenous sources. He says the

overreliance on non-Aboriginal legal sources has resulted in very little protection for Indigenous peoples. Aboriginal land rights were obstructed, treaty rights repressed, and governmental rights constricted. This judicial discourse narrowed First Nations' social, economic, and political power. (8) Building on this reasoning, this paper addresses favouritism in the injunction process. The rule of law has been discussed in the context of post-injunction sentencing and contempt of court power. However, few papers analyze the injunction process, the rule of law and the effect on Indigenous self-governance.

This paper argues that the trend of granting injunctions to corporations prevents Indigenous people from protecting and preserving their lands and goes against the rule of law as it inhibits the Indigenous communities' ability to self-govern. This will be accomplished by assessing the Canadian versus the Indigenous rule of law, evaluating the "balance of convenience" step in the test for granting an injunction, and viewing protesting as a method of enforcing Indigenous laws.

1. Background

   1. Indigenous Peoples' Unique Relationship to Land

      Water is a sacred thing. This is reflected in many traditional beliefs, values and practices.--Ann Wilson, Anishnaabe Elder, Rainy River First Nation Understanding the interconnectedness between land and Indigenous language, culture, laws, medicine, and food sources is imperative to understanding the impacts of granting injunctions against Indigenous peoples in Canada. When the sources of connection are affected by resource development, it is detrimental to an Indigenous community. According to the Royal Commission on Aboriginal Peoples, land is fundamental to Indigenous identity, and is reflected in the language, culture and spiritual values of all Indigenous peoples. (9) For example, the Gitksan tribe told a story of a thunderous noise coming from the mountain beside the lake interrupting party festivities; it was a grizzly bear coming down the side of the mountain. The warriors tried to confront the animal, but it crossed the lake and trampled them to death. (10) The elders used the story to warn young people to take just enough food to eat and leave the rest for others; if they took more, a tragedy like the grizzly bear attack will happen. (11) If development destroys the mountain, the story dies, and with it a piece of culture. Stories used to relay societal practices are told across Indigenous cultures.

      In addition to providing sustenance, land is the basis for Indigenous creation stories that connect Indigenous people to the Creator, Mother Earth, as well as support Indigenous laws. A healthy environment is intrinsic to Indigenous peoples' governance systems: the land, plants, animals, and people all have spirit and must be shown respect. This respect forms the basis of Indigenous laws. (12) The Seven Generation Principle is an important aspect of governance within Indigenous law, dictating that it is their responsibility to preserve and better the land for the next seven generations. (13) The unique connection between Indigenous peoples and the land is woven into essentially every aspect of their lives, and, as such, when the land is impacted through resource extraction Indigenous lives are impacted in multiple ways.

   2. Sources of Indigenous Laws

      Prior to the European invasion, Indigenous people lived in distinct, sustained, and identifiable communities for generations. This is evidence of effective governing systems. (14) Indigenous communities are numerous and extremely diverse across Canada. Amongst differing communities, there are differing laws. For some Indigenous communities, the natural world-land, plants, animals, seasons, and cycles of nature-was a "central tenet of their lives and worldviews since the dawn of time." (15) This understanding is sophisticated and comprehensive wherein the natural world is seen as one interconnected entity. Traditional concepts of respect and sharing "that form the foundation of the Aboriginal way of life," (16) create the Seven Sacred Teachings. These teachings are built around the seven natural laws, which are embodied by an animal:

      Love--Eagle

      Respect--Buffalo

      Courage--Bear

      Honesty--Bigfoot

      Wisdom--Beaver

      Humility--Wolf

      Truth-Turtle (17)

      These seven laws explain that "the animal world taught man how to live close to the earth." (18) Therefore, some Indigenous laws arise from animals and animal spirits.

      To provide a specific example, Wet'suet'en governance reflects both human relations and relations of humans to the land, animals, and the spirit world. Antonia Mills, a professor of First Nations studies at the University of Northern British Columbia, wrote,

      [t]he expression the Witsuwit'en use most commonly for law is yinkadinii' ha ba aten ('the ways of the people on the surface of the earth') ... The principles of Witsuwit'en law define both how the people own and use the surface of the earth when they are dispersed on the territories and how they govern themselves and settle disputes when they are gathered together in the feast. (19) These principles govern the Wet'suwet'en and shape their personal behaviours. Indigenous nations in Canada's Pacific Northwest depend on sets of Indigenously generated rules that govern territory, exchange, and the behaviour of leaders. (20) Additionally, across Canada, Beverly Jacobs describes Haudenosaunee religion, education, and ceremonies, as "intertwined, intermingled, and holistic" (21) with Haudenosaunee law. As such, even if a nation's laws are not connected to the land, other aspects are, and if that practice is harmed by land destruction, their laws are harmed as a spill-over effect.

      Intercommunity treaties reflected lawful interactions between signatories and rules that would govern both societies and their governments. (22) Europeans recognized Indigenous communities as their own nations when they entered into intergovernmental treaty relationships "first symbolized by the Gus Wen Tah or Two-Row Wampum." (23) Treaties require the signatories to "acknowledge their shared humanity and to act upon a set of constitutional values reflecting the unity of interests generated by their agreement." (24) Whether a treaty was signed between Indigenous communities or between an Indigenous community and a European, the treaty acknowledges shared constitutional values. These shared constitutional values are evidence of two systems of government. Despite evidence of Indigenous systems of governance such as trade, warfare, treaty signing, and other activities, early colonizers often concluded that no such systems existed. (25) Although this conclusion is now understood to be wrong, reconciling Indigenous legal systems with Canadian legal systems continues to be a problem.

      In Canada's Indigenous Constitution, (26) John Borrows purports that Canada should be a multi-jurisdictional country embracing the common law, civil law, and Indigenous legal traditions. He argues that Indigenous legal traditions are not stuck in the past, rather they have "modern relevance" that "can be developed through contemporary practices." (27) This three-pronged legal system should not have any hierarchy. Between the many Indigenous nations in Canada, there exists a...