The public interest prong in efforts of obtaining Indigenous lands for resource extraction and economic development has historically excluded and overlooked Native Americans.

Section 35(1) rights do not fit easily into the tripartite injunction test because they require lengthy and careful litigation or negotiation. Yet, the use of injunctions has by no means been discontinued on this basis. Of the 70 cases we coded, 42 (or 60 per cent) referred to Aboriginal rights, treaties, and/or title in motions brought by First Nations or as defences against injunctions. Almost a third of these cases address the legal question of consultation. Many of these legal arguments are countered in the courts by public interest-based counter-arguments and reasoning. The explicit consideration of public interest arguments, in fact, emerged concurrently with the emergence of s 35(1) case law discussed above, after the SCC made two critical decisions that emphasized the importance of public interest when balancing “convenience” in interlocutory injunctions. While Metropolitan Stores43 and RJR-MacDonald44 did not involve Indigenous people, these Charter cases became central to the shift away from injunctive relief for First Nations. Their importance was due to the presumption baked into the “public interest” that an equitable balance can exist between protecting the interests of distinct groups in society and the “concerns of society generally.”45 For First Nations already struggling to assert their inherent jurisdiction against the non-justiciable nature of Crown sovereignty, the paramountcy of the public interest further prejudices courts hearing injunction applications against them. In Metropolitan Stores, cited in RJR-MacDonald, the SCC made foundational comments defining the public interest, stating that “in all constitutional cases the public interest is a ‘special factor’ which must be considered in assessing where the balance of convenience lies, and which must be ‘given the weight it should carry’.”46 As the court decided: It is, we think, appropriate that it be open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest… [E]ither the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. “Public interest” includes both the concerns of society generally and the particular interests of identifiable groups. The public interest is further closely tied to the expectation that injunctions maintain or preserve the status quo. The status quo is considered critical to guiding judges’ decisions on what constitutes the public interest. For Indigenous claims litigation, however, the “status quo” or the “existing legal regime or the state of affairs on the ground” may include active mining or logging, preserving at minimum a circumstance of disputed land, and at most, maintaining a destructive or violent occupation. As detailed in this Part, the uneven pattern in injunction cases also persists through the courts’ interpretation of this “status quo” imperative. An interpretation that favours statutory regimes and private capital contradicts SCC decisions on the interplay of the duty to consult and the role of regulatory agencies and tribunals, which call for recognizing that the “duty to consult, being a constitutional imperative, gives rise to a special public interest that supersedes other concerns typically considered by tribunals tasked with assessing the public interest.”51 Thus, the post-Sparrow shift away from success for First Nations obtaining injunctions is not only due to the s 35(1) jurisprudence and a diversion towards constitutional litigation. It is also due to a public interest defined by market rationale and the demand for Indigenous lands. Reconciling the public interest of Canada’s resource economy with Indigenous rights lies at the heart of these cases. Less examined, though, is the way the courts manage, and often shield, private interests from exposure to counter-legal claims. For example, Hunter demonstrates that early injunctions involving First Nations were open to considering the interests of First Nations in the land, reflecting a time of relative calm within the cycles of capitalist crisis. As a case in point, the Ahousat and Clayoquot arguments for title to Meares Island led the judge to reject the public interest argument made by the forestry company to protect private investment.52 Though he admitted that the case was a “frontline” precedent for Nations across the province disrupting extraction on their land by asserting title, the fear expressed by the province and companies was not deemed a sufficient public interest argument, for this uncertainty would be up to each court in every circumstance to consider. But critically, the judge also did not find the importance of logging for the company to be a matter of “irreparable harm,” since “the timber will still be there” if MacMillan Bloedel were found to hold the right at trial, whereas “[t]he position of the Indians is quite different”, since logging may extinguish their food sources and ways of life. By 1989, Esson JA challenged this position in Westar Timber Ltd v Ryan et al. This case involved the Gitksan Nation’s conflict with a forestry company that sought to log and expand operations into a region over which the Nation was asserting title as part of the Delgamuukw case. The judge quoted Macfarlane JA’s dissenting reasons from MacMillan Bloedel at length, emphasizing the heading “Provincial concern about sovereignty over resources”, where Macfarlane JA wrote that Meares Island was a unique case because it was a small, isolated area. However, “[i]f an injunction were being sought with respect to the whole area the economic consequences of granting an injunction would probably weigh heavily against making the order.” Esson JA picked up this line of the thinking, and citing the importance of “public interest” in Metropolitan Stores, found that “the court should not grant an injunction if the economic consequences of doing so would have a serious impact upon the economic health of the province, the region or the logging company.” Thus, the public interest argument here smothers the possibility of challenging provincial regulation that may constitute irreparable harm to Indigenous rights. As Esson JA argued: …injunctions restraining the exercise of rights granted under the Forest Act could sterilize the working of that statutory scheme just as effectively as injunctions restraining the granting of licenses and other rights, that being so, the public interest must be considered in applications of this kind.