Injunctions are used as a method for extracting resources and disproportionately affecting Indigenous peoples. They leave no room for Native Americans to assert themselves in the government.

This article begins with a simple question: what accounts for the profound discrepancy between the efforts by First Nations to obtain injunctions against corporations and governments versus the efforts by corporations and governments to obtain injunctions against First Nations? In 2019, a national study of over 100 injunctions was led by the Yellowhead Institute at Toronto Metropolitan University (Yellowhead) in Toronto. It found that from the years 1973-2019, 76 per cent of injunctions filed against First Nations by corporations were granted, while First Nations were successful against corporations only 19 per cent of the time. This research was updated by Yellowhead in 2020 and the gap had widened in that single year. The percentage of injunctions successfully sought by corporations against First Nations climbed from 76 per cent to 81 per cent. The study also examined rates of government-filed injunctions against First Nations. In 2020, governments were successful at obtaining orders 90 per cent of the time. Just one year earlier, that figure had been 86 per cent. Meanwhile, by 2020 First Nations were only successful at obtaining injunctions against governments 18 per cent of the time. In this article, we ask: what is it about the common law test for injunctions that leads to these results and, given this evidence, what makes injunctions such an effective tool in the hands of industry and the state against First Nations? Our research here builds on the original Yellowhead research and dataset, which we led and contributed to, by recoding the cases initially examined and refining the methodology to focus specifically on the grounds of adjudication in each case. Central to our methodology is an examination of the application of the tripartite test set out by the Supreme Court of Canada (SCC) in RJRMacDonald Inc v Canada (Attorney General) to injunction cases involving First Nations. Scholars have noted the significant and disproportionate protections the RJR-MacDonald test provides to businesses and property owners over First Nation “protestors” and labour “picketers”. But the implications of these protections as they pertain to First Nation assertions of jurisdiction require further examination. De facto resolutions of First Nation land rights are currently being mediated through a discretionary, equitable remedy that is insulated from the reach of Aboriginal rights and title entitlements. This article undertakes a close reading of the way the courts interpret the RJR-MacDonald factors of “irreparable harm” and “balance of convenience” in injunction cases involving First Nations— most of which have unfolded in contestations over land, water, and resources—to reveal the ways colonization has been organized around a false distinction between public and private interests. We suggest thatderstand what accounts for corporate success in the courts against First Nations when seeking to develop and pursue extraction on Indigenous territories, we must understand how “public interest” arguments that are critical to applying the injunction test are weighed towards a specific understanding of the “status quo” in Canada that is rooted in a political economy of resource extraction. We argue that to understand the judicial reasoning that supports the “maintenance of the status quo” that is so critical to the “balance of convenience” test, we must revisit the equitable roots of the injunction remedy that lie at the heart of Canadian property law—the juridical underpinning of settler-colonialism. The methodology for this injunction research originally involved searches within two legal databases for all injunction cases involving First Nations in Canada. We did not code cases where injunctions involved community members obtaining injunctions against other community members, and we focused our research on First Nations rather than all Indigenous people, therefore excluding cases involving Inuit and Métis peoples. We returned to Yellowhead’s original dataset for this research, but we narrowed our analysis to focus on the role of “public interest” arguments in applications for injunctions under the RJR-MacDonald test. Each case was coded for the following criteria: the parties involved (i.e., corporations vs First Nations, or First Nations vs corporations), whether a blockade was involved, the type of injunction at play, the trigger for the conflict, the legal issues raised, and the key arguments made by the parties with respect to the tripartite injunction test (i.e., serious issue to be tried, irreparable harm, and balance of convenience). In total, we coded 70 cases, more than a quarter (19 decisions) of which contained detailed considerations of the “public interest.” By highlighting specific cases from this dataset to show this and other tendencies we found on a national scale, we hope that this research marks a focal point in a study of injunctions and First Nations, rather than being interpreted as the authoritative end of this inquiry. Our article is organized as follows: in Part I, we track the history of injunctions in the Aboriginal law context, paying particular attention to how the development of s 35(1) jurisprudence, which interpreted Aboriginal constitutional rights enshrined in the 1982 Constitution Act, ironically deprived First Nations of access to injunctions, despite a prior period of successful defence of Indigenous land rights using this legal tool. In Part II, we focus on the doctrinal and political function of the “public interest” consideration in injunction cases, positioning this concept within a broader political economy framework. In Part III, we turn to the origins of the injunction as an equitable remedy and argue that understanding its discretionary application requires understanding equity’s role within a broader historical trajectory of settler-colonial property relations. We conclude that the injunction playing field is inherently uneven because the common law test currently leaves no room for assertions of Indigenous law or governance. This imbalance is now baked into RJR-MacDonald and a juridical shift (as opposed to a political or policy fix) requires a different legal framework.