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Canada has to have a discussion about how injunctions, contempt of court and a Bleak House court system makes a mockery of the rule of law in the eyes of Indigenous people. An Indigenous Canadian Journalist Was Covering a Protest. Then He Got Arrested. https://www.nytimes.com/2020/09/21/world/canada/indigenous-journalism-protests.html?smid=tw-share
Over the last ten years there has been judicial and police pushback on many of the gains made by Indigenous people in the courts through the use of injunctions and repeated entreaties to "respect the rule of law."
In the criminal context (see Sun Peaks cases involving one of the Manuels) Section 35 defences could not be raised in response to mischief/nuisance charges because it would undermine the rule of law.
Likewise, in Behn case, the Supreme Court of Canada refused to allow a Section 35 treaty rights defence to be advanced in response to a law suit brought against an injunction because it would be an abuse of process and undermine the rule of law.
The irony there is that ultimately the actions of Mr. Behn were shown to be not unlawful although the court still denied him costs because, well, self-help is a bad thing.
The injunctions against the CGL project similarly have been used as a tool to cudgel Indigenous people while the prospect of any form of final judicial resolution of their claims is essentially laughable.
The injunction and rule of law case law ignores the reality of the accessibility of the courts for Indigenous people wanting to actually litigate their rights and use the courts to resolve matters in a peaceful way.
Summary proceedings are effectively not available for substantive infringement cases -- see the court's commentary in various cases (including West Moberly) on the need for pleadings, particulars, discovery and trial.
The standard of proof is overwhelming and counsel in these cases have no clear indication of where to stop -- thus the need for experts, documents and an endless parade of witnesses grows with no limit in sight.
The effect of this is that trials are delayed by years to decades (Delgamuukw and Tsilhqot'in took decades to get to trial and then to the Supreme Court) and cost literally millions of dollars.
These costs are imposed on Nations -- and in some cases individuals -- who are amongst some of the most impoverished groups in Canada.
Even fighting procedural cases around the duty to consult - such as was the case with the TMX litigation - can cost into the millions of dollars and then all that happens is there is a do-over.
While there have been clear victories in the courts for Indigenous people (see the Tsilhqot'in case for example) the effective implementation of these cases has been delayed (see the Tsilhoqt'in case for example) with the courts giving limited effective relief.
All of this leads Indigenous people to look at the court system with a high degree of skepticism and contempt similar to that evoked by Dickens' Bleak House about the Court of Chancery.
This contempt is particularly reinforced when there are examples out there of how direct action -- even when sanctioned by the courts -- gets results.
The CGL protests for example were severely criticized by the courts but resulted in Ministerial delegations being sent to deal with the Hereditary Chiefs and resulted in agreements in weeks that have not been reached in decades elsewhere.
Mr. Behn's trapline has not been logged -- despite his loss at the Supreme Court of Canada.
Do you think the Clench Defalcation settlement would have occurred so quickly were it not for the actions at Caledonia (even though the actors in that situation are on the outside of the settlement).
The woods at Oka would be a golf course today were it not for the Oka crisis.
if the courts and the government want to maintain respect for the rule of law and the courts they are going to have to deal with the management of injunctions, the costs of litigation and delay in hearings.
... and developing a respected and effective body of substantive law. Otherwise Indigenous people at all levels will hold phrases like "reconciliation" and "respect for the rule of law" as nothing more than mantras supporting colonialism.
