Injunctions strip Indigenous rights to land claims

With the incorporation of Aboriginal rights in the constitution, the declining success of First Nations in obtaining or fighting injunctions appears to be a contradictory outcome at a key moment of recognition. At first glance, this recognition should have strengthened Aboriginal claims of “irreparable harm,” as such harms could now constitute a breach of constitutional rights. But Hunter argued that these new constitutional protections greatly complicated—and therefore lengthened— the duration of time necessary to determine the merits of a case, giving priority to other elements of the injunction test. First Nations were asserting rights and title to land in ways that disrupted, for example, provincial regulatory regimes; a growing jurisprudence established tests to challenge the application of provincial jurisdiction to First Nations.18 But how would these Aboriginal rights tests weigh within the tripartite test? First, the lengthening of trials specifically increased the inconvenience to business operations, therefore favouring their interests in the “balance of convenience” test.19 For a time, the uncertainty of title and rights claims had constituted sufficient cause to delay the interests of private companies; post-Sparrow, the uncertainty had a legal framework for determination that was lengthy, complicated, and lay outside the jurisdiction of the court hearing the injunction application. Compounding the issue of the time it would take to adjudicate the merits of injunction cases was the gradual emptying out of the s 35(1) “box” of rights, once expected to secure Aboriginal rights to land, water, and resources. The s 35(1) case law demonstrated that there were pathways around these rights and that state legislation could override Aboriginal claims. The uncertainty that once favoured First Nations asserting constitutional rights in injunction cases was now taken up by courts that pointed to the ambivalence of rights that were yet to be proven in costly title and rights litigation. A 1995 Gitskan injunction case—technically, a leave to appeal their denial of ongoing injunctive relief—is emblematic of this transition period. The landmark Delgamuukw v British Columbia case brought by the Wet’suwet’en and Gitskan Nations that first tested s 35(1) rights on Aboriginal title was a factor in the judge’s decision against two Gitskan houses23. The houses sought relief against Skeena Cellulose to restrain bridge construction that the company required for logging access. Proudfoot JA agreed with a lower court decision to discharge an injunction granted in 1988 to the Houses of Gwoimt and Tsabux. She held that the injunction had been founded on outstanding questions of Aboriginal title, but that the legal terrain had changed after the 1993 BC Court of Appeal decision in Delgamuukw25 that found that no ownership or jurisdiction rights had been established by the Gitskan. A few years later, in 1997, the SCC held that the Wet’suwet’en and Gitskan Nations might in fact hold Aboriginal title to their territory, defined for the first time as an underlying, collective, and sui generis proprietary interest. The SCC instructed the nations to return to court to assert this title over specific tracts of land.27 But while the Gitskan were undertaking this monumental, lengthy title case, lower court decisions had cost them interim protections, raising serious questions about the implications of injunctions on First Nations’ constitutional rights. One solution to this problem of reconciling rights and title cases with injunctions came in the form of another s 35(1) precedent conceived to protect Aboriginal rights even in the pre-proof stage of assertion: the Crown’s duty to consult and accommodate. In the post-Sparrow case of Haida Nation, the SCC advised that First Nations should rely on their s 35(1) protected rights to consultation, rather than pursuing injunctions, because the duty to consult would better safeguard their interests.28 Reasoning the need for this legal shift, the Court laid out four limitations of injunctions: first, they may not capture the full range of government obligations; second, the duty to consult necessarily entails balancing interests and thus could go further towards reconciliation; third, the Court cited Hunter’s argument that the balance of convenience test favours industry and jobs, prejudicing the courts against First Nations before the merits can be determined; and fourth, stopgap measures like injunctions should not be used for complex matters, which must be given adequate time in courts to resolve.29 Since Haida Nation came down, however, it has not reduced the number of injunctions involving First Nations, nor protected them any better in proceedings. It may be the case that First Nations have had more success pursuing judicial reviews of regulatory decisions or lawsuits for failures of the Crown to engage in meaningful consultation. Although these legal avenues are beyond the scope of this article, such a comparison would undoubtedly shed light on this important question. Here, however, we seek to uncover whether Haida Nation and the s 35(1) protected rights to consultation created more opportunities for First Nations to assert and protect their rights in injunction cases. In particular, did the courts consider breaches of the Crown’s duty to consult an “irreparable harm”? If anything, we could conclude that failures on the part of governments to comply with the duty to consult have not been seen by the courts to constitute “irreparable harm”. Irreparable harm is at the core of injunctive relief since it is precisely what entitles litigants to “equity’s extraordinary and discretionary relief”.30 The plaintiff must show immediate harm that cannot await resolution at trial or be addressed any other way, especially through damages. For example, a 2008 Federal Court of Appeal decision in Canada v Musqueam First Nation held that the government’s failure to consult did not give rise to “a veto” on the basis of disputed territory alone, despite the fact that lands in the Musqueam First Nations’ traditional territory were being alienated by the Crown to third parties. In other words, the potential loss of lands was not considered an irreparable harm, the justice reasoned, unless it was coupled with “possible degradation” or a specific use claim to the territory. The prerequisite for injunctive relief was only damage in a narrow sense, not the historical, cumulative state dispossession that the Musqueam sought to prevent.32 This reasoning and the resultant outcome is disappointing, since injunctions could potentially provide a strong interim measure to prevent damage as more broadly construed, while other rights litigation moves through the courts. However, a long line of injunction cases rejects this logic. The duty to consult was also undermined in Behn v Moulton Contracting Ltd33 in 2013, when members of the Fort Nelson First Nation were chided for blockading their lands threatened by logging. Writing for a unanimous SCC, LeBel J concluded that “[t]o allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.”In one of the few injunction cases ever brought to the SCC, the decision on the duty to consult set an unfortunate precedent that the applicants—as individuals, rather than as the Band— did not have standing to assert these rights, despite s 35(1) jurisprudence that has been successfully brought to protect individuals within communities.35 Moreover, the Behn family’s resort to blockades was rendered unlawful despite the uncertainty over proper title to the land in question. Behn has proven extraordinarily influential. Indeed, in Enbridge Pipelines Inc v Williams, a 2017 case involving representatives of the Haudenosaunee Development Institute, Broad J cited Behn and decided that the question of “whether the Crown has made efforts to comply with its duty to consult and accommodate is not relevant to the exercise of the court’s decision to deny an injunction sought by a private party such as Enbridge with an interest in land on discretionary grounds.” 36 The injunction was granted to Enbridge partially on the basis of the defendant’s resort to blockades, and the matter of treaty rights was deferred to proceedings in other courts.37 In Williams, the court went to great lengths to distinguish an earlier Ontario decision calling for judges to prioritize the duty to consult. In Frontenac Ventures Corporation v Ardoch Algonquin First Nation, 38 the Ontario Court of Appeal had made every effort to encourage consultation when Aboriginal treaty rights to hunt were impacted. As Macpherson JA instructed, citing Haida directly: “The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process”.39 Relying on Behn (and a key 2014 decision from the Newfoundland and Labrador Appeal Court40), Broad J instead framed the Haudenosaunee defendants’ invocation of the duty to consult in Williams as the imposition of a “precondition involving the exhaustion of efforts to consult”, dismissing their attempt to require the Crown to consult with respect to treaty rights as an illegitimate resort to self-help.41 These cases demonstrate the failure of injunctive relief for First Nations when s 35(1) consultation rights are brought to bear. On the one hand, in Haida Nation, the SCC tried to steer land claims out of the injunction arena, wisely counselling on its inherent limitations and the dangers of bias embedded in the tripartite test. But this warning backfired when—out of necessity—First Nations sought urgent relief or were faced with plaintiffs seeking to remove them from their lands. Judges can then interpret Haida Nation to reason that First Nation cases should be heard in different proceedings, as litigation for rights and title, or else attempt to adjudicate their rights and title on the merits based on scant evidence. The paradox that results is that the denial of injunctive relief to First Nations and the success of corporations and governments seeking injunctive relief against them practically constitutes a de facto resolution of disputed land claims. Put simply, the s 35(1) duty to consult, alongside the long delays and evidentiary hurdles standing in the way of establishing Aboriginal rights and title more generally, as demonstrated by Sparrow and Delgamuukw, has proven to mostly work against First Nations seeking injunctive relief.