Indigenous Land Defenders & Injunctions

Introduction

Injunctions are commonly used as legal tools against Indigenous land defenders and water protectors who frustrate the interests of corporations or governments. Corporations or governments may seek an injunction for actions such as setting up protest camps, blocking access to industrial sites, publicly criticizing industrial activities, or occupying corporate or government premises. Corporations have been overwhelmingly successful in obtaining injunctions against Indigenous land defenders and water protectors. While Indigenous parties can also seek injunctions against project proponents, they are far less likely to succeed.

This pamphlet will provide an introduction to injunctions and contempt of court proceedings in the context of Indigenous land defence and water protection.

It will explain how the current test for injunctions has overwhelmingly favoured corporate and government applications for injunctions against Indigenous parties.

It will then explore the UN Framework Principles on Human Rights and the Environment to demonstrate how the legal test for injunctions and its application against Indigenous parties breaches Canada’s obligations under international human rights law.

Terms and Definitions

Aboriginal Rights: Aboriginal rights are inherent rights held by First Nations, Inuit, and Métis in Canada, which flow from their unique historical relationship to and continued use and occupation of their territories. Section 35 of The Constitution Act, 1982 recognizes and affirms existing Aboriginal rights, but does not define them. So far, courts have interpreted Aboriginal rights to encompass a range of cultural, social, political, and economic rights, including the right to land, the right to hunt and fish, the right to practice one’s culture, and the right to establish treaties.

Application: A request made to a court asking for a specific action or decision. A type of legal proceeding.

Balance of Probabilities: the standard of proof used in civil law cases. Proving something on a balance of probabilities means that it is more likely than not ( > 50% ) to be true.

Beyond a Reasonable Doubt: the standard of proof used in criminal law cases. A person can only be found guilty when no other reasonable explanation for the evidence before the court can be found.

Civil Law: a body of law that governs disputes between private parties.

Claim: a set of facts which create a legal right that is enforceable in court. It is the basis upon which a party initiates legal proceedings.

Common Law: law developed through court decisions (as opposed to legislation made by governments).

Constitution: the supreme law of a state. All laws in Canada must be consistent with its constitution.

Domestic Law: the legal system within a state. Domestic law is created and enforced by the government and legal institutions of the state.

Duty to Consult: The Crown has a duty to consult and, where appropriate, accommodate Indigenous groups when it considers an action or decision which could adversely impact possible or established Aboriginal or treaty rights.

International Law: the body of rules and principles that govern relations among states, international organizations and other actors in the international community. It is enforced through diplomatic negotiations, international tribunals, and sometimes through the collective action of states.

Party / Parties: the individuals or entities who are taking part in a legal matter, such as a proceeding.

Remedy: the relief ordered by a court to resolve a legal problem or dispute.

The Crown: The Crown represents the collective authority and power of the government. In the context of legal proceedings and prosecutions, the Crown refers to the government’s legal representatives in the matter.

Treaty Rights: rights which flow from solemn agreements made between Indigenous nations and the Crown. Treaty rights are affirmed and protected under section 35 of the Constitution Act, 1982.

Click the button below to access the pamphlet: