Injunctions under the guise of Capitalism rob and privatize theft of Native American land and culture- its intrinsic to Settler Colonialism

It may seem contradictory to attribute the cause of a persistent pattern of judicial reasoning to the notion of discretion, but locating the equitable roots of injunctions within a broader settlercolonial framework suggests that this discretion is distinctly and historically bounded. The power to grant an injunction derives from an old and subsumed system of English law called the Court of Equity. Although injunctions eventually came under the jurisdiction of the combined courts of law and equity,92 the origin of injunctions can inform us about the meaning of its remedies. Since the Court of Equity could only grant specific relief where damages (i.e., awards of money) were deemed insufficient, injunctive relief required “irreparable harm”—of a kind which could not be compensated monetarily—to be granted.93 Irreparable harm, then, had jurisdictional importance for which court would hear the case and, therefore, what remedies would be available. The Court of Equity itself emerged from the dissatisfaction of English people with the rigidity of the common law system. This led to many complaints to the King, who delegated these matters to the Chancellor to resolve through a new legal venue.94 Since Chancellors tended to draw from ecclesiastic classes, they resolved matters in the new courts of equity largely by drawing on canon law principles of good conscience.95 No less discretionary than the common law, but less bound to strict rules, procedures, and established legal precedents, injunctions were included among the equitable remedies the court provided. Eventually, this looser system of law could not withstand the pressure exerted by commercial markets and land privatization for the more procedural and substantive rules of doctrines in the common law. As a result, the significance of the injunction as an equitable remedy must be understood in relation to the common law. Remedies have “distinct structure, justifications, and goals”,96 which are not integrated in a hierarchical way into the common law.97 There is much debate in Canada on where and how these discretionary lines are drawn. As Jeffrey Berryman explains: It is up to the defendant to refute the plaintiff’s remedy of choice. But for judges, who traditionally conceive of their role as the top of an adjudicative apex, it is difficult to escape from the position that the “discretion”, in that equitable remedies are said to be discretionary, is for the judge alone to exercise.98 Complicating this issue, though, is that these lines are not entirely clear, especially in Canada. Equitable remedies shape substantive rights and vice versa. We can see quite clearly, for example, in the case of injunctions and First Nations, how equitable remedies are shaping Indigenous peoples’ substantive rights. The ambiguity of the relationship between these remedies and the common law is complicated by the colonial relationship between Canadian courts and Indigenous peoples. Much of this ambiguity can be found in property law, which the courts ultimately seek to protect when they are tasked with maintaining the status quo in injunction proceedings. Brenna Bhandar’s exploration of racial regimes of ownership and, more specifically, her examination of the “development of the specific legal forms of private property relations”99 in settler-colonial sites points to a framework for understanding how our modern concept of “public interest” has evolved out of this process of development. As Bhandar writes, this property law system emerged from “political ideologies, economic rationales, and colonial imaginaries that gave life to juridical forms of property and a concept of human subjectivity that are embedded in a racial order.”100 She examines, for example, the titling registration regimes of the 19th century in the British colonies that relied on a new racial science to deny Indigenous peoples’ own tenure system through hierarchies of racial entitlement. Drawing on the work of geographer Nicholas Blomley, she also theorizes the process of racial property-making as “enactments” that must be repeated regularly and reproduced through legal techniques of denial.101 What does it mean, then, to reconsider equitable remedies as part of these “colonial modes of appropriation” that constitute the public interest? The public interest protected by injunctions is indelibly shaped by private property interests that underpin statutory schemes and common law constructs. Here, we need to dig a bit deeper into the relationship between colonialism, capitalism, and property law in Canada. In his examination of settler colonialism in British settlements, Robert Nichols’ work in Theft is Property! offers a critical reformulation of Karl Marx’s important concept of “dispossession” or “expropriation” to the process of capital accumulation. Like many others, Nichols rethinks Marx’s theorization of a stadial view of violent dispossession as an essential condition for the next stage of development, a “silent compulsion of economic relations.”102 Rather, Nichols writes that “[t]here was no historical transition from extra-economic violence to silent compulsion, only a geographical displacement of the former to the imperial periphery.”103 Nichols’ reformulation avoids the common move that often follows this point, which is to prolong Marx’s theory of early “primitive accumulation” into the present in order to account for an ongoing, violent removal of Indigenous peoples from their lands. Instead, he rethinks the category of “dispossession” itself to produce an important insight into property relations in the settler colony. Ongoing dispossession is not only required to transform nature into commodities, but is part of the silent compulsion of capitalism where land is both “a conceptual and legal category that serves to relate humans to ‘nature’ and to each other in a particular, proprietary manner.”104 It is intrinsic to the culture of settler-colonialism. Nichols traces the emergence of what he calls a “hybrid private/public form” of juridical dispossession during the settlement of Canada and other settler-colonial states in ways that are helpful in working to connect the contemporary legal tool of injunctions and the concept of “public interest” to more foundational property relations.105 Dispossession, Nichols argues, “did not proceed through macro assertions of sovereignty but through microlevel practices that worked to dismantle one infrastructure of life and replace it with another.”106 We can apply Nichols’ observation to Canada, where the transformation of land into property proceeded through mechanisms like the Dominion Lands Act of 1872,107 which also privatized the theft of territory from Indigenous peoples. This federal legislation facilitated massive land redistribution of Indigenous lands to the Hudson’s Bay Company (HBC), Canadian Pacific Railway, and other “colonization companies.”108 Prior to this redistribution, “Rupert’s Land” was acquired through a “Deed of Surrender” in 1869 between Canada and the HBC to the lands of the Anishinaabe, Cree, Ojicree, Inuit, Innu, Dene, Gwich’in, Métis, and more, who had lived on and governed these lands for thousands of years.These “Company lands” sold to Canada were then privatized again through the distribution of acreage to private companies and to European settlers.