Sovereignty underfoot: Settler injunctions against Indigenous land explained

With the signing of the Haldimand Proclamation over 236 years ago, the Haudenosaunee Six Nations (Iroquois) people were guaranteed a protected land for siding with the British during the revolutionary war.

But over 200 days ago, the McKenzie Meadows housing development began at 1492 Land Back Lane, just outside Caledonia, in an attempt to capitalize on the same protected land.

Indigenous and non-Indigenous land defenders across Canada have been protesting the development for over five months. Courtney Skye, a research fellow at Yellowhead Institute, was one of more than 35 people who have been arrested at Land Back Lane for defending their ancestral land.

In 1784, the Haldimand Proclamation granted the Haudenosaunee peoples 10 kilometres of land from Lake Erie to the north end of the Grand River, "as a safe and comfortable retreat for them and others of the Six Nations."

Six months after the proclamation's release, an extension was added by Britain's King George II: "No private person, society, corporation or colony is capable of acquiring any property in lands belonging to the Indians, either by purchase, or grant or conveyance from the Indians."

These two pieces of text declare the land at 1492 Land Back Lane is the permanent ownership of Indigenous people. However, Foxgate Development—the corporation which currently holds ownership of the McKenzie Meadows development company—was able to begin housing construction after obtaining a court injunction.

An injunction can take many different forms, but it usually declares that a person or entity is directed to a certain action under provincial or federal law. Because the injunction was granted by the Ontario Superior Court of Justice—the highest level of court in Ontario—a precedent has been set for future provincial injunctions.

More recently, court injunctions have been used by corporations to get permission from the federal government to ignore protected status of Indigenous land for the sake of oil or gas. This was the main cause for protests at the Coastal GasLink pipeline site on Wet'suwet'en land in B.C. last year.

Foxgate's injunction at Land Back Lane became permanent as of Oct. 22 after being approved by Justice John Harper. This means that anyone on the construction site of the housing development may be subject to police arrest. It also means the court will not be hearing any more disputes from the residents of 1492 Land Back Lane. Justice Harper's ruling states that the 200 homes will be developed as planned.

By using injunctions as a loophole around a 200-year-old agreement, the Canadian government is undermining not only the permanent accord of the Indigenous peoples, but Canada's own federal law as well. According to the National Resources Defense Council, these loopholes will only continue to harm Canada's natural resources unless Indigenousled land management is prioritized. On a national level, court injunctions have disproportionately been approved for corporations like Foxgate to proceed in extracting resources on designated Indigenous lands.

Dr. Shiri Pasternak, the research director at the Yellowhead Institute, analyzed 100 injunctions involving First Nations across Canada. According to the study, 81 per cent of injunctions filed against First Nations by corporations were approved, while 81 per cent of injunctions filed against corporations and 82 per cent of injunctions filed against the government by First Nations were denied.

Pasternak said these inequalities are inherent due to the nature of how injunctions are applied.

"Indigenous people start off at a disadvantage because what the court usually looks at is the amount of economic harm that will be caused by the result of any interruptions," said Pasternak. "Essentially anyone can apply for a legal action to remove Indigenous people from their land without having to consider any Indigenous rights: either inherent or as recognized by the Canadian settler court system."

"The Canadian legal system [values] property rights over the lives of people"

Skye said the persistence of court injunctions is grounded in the practice of placing valuing Indigenous livelihood below the value of commercial profit.

"Capitalist white supremacy wants to exploit land and resources; and doesn't care what people are destroyed in the process," said Skye."This is how the Canadian legal system is set up: they value property rights over the lives of people and over basic human dignity."

The refusal of land defenders to vacate 1492 Land Back Lane demonstrates their right to their land as well as exercising of their own Haudenosaunee laws and obligations, said Skye. "The will of the community outweighs any type of order a judge can make…injunctions aren't worth the paper they're written on," Skye said.

Skye also noted that injunctions are common when a corporation is looking to obtain resources—be it oil, land for housing developments, waterways, wood and resources fisheries to name a few—but are challenged by the presence of Indigenous peoples.

Court injunctions are shown to favour the increase of capital over Indigenous communities according to Pasternak's research, which involves analyzing the risks to Indigenous lives in the natural resource extraction economy.

"Indigenous peoples interrupt commodity flows by asserting jurisdiction and sovereignty over their lands and resources in places that form choke points to the circulation of capital," wrote Pasternak in an article published in the scientific journal Society and Space.

The natural resources of treaty land are vital for Indigenous communities across Canada according to the government of Canada's website. In this sense, injunctions threaten access to food, drinking water and safety.

The environmental harm from resource extraction—or harm from the act of protesting itself—is devastating to aspects of Indigenous ways of being. Resource extraction hurts Indigenous communities by risk of contamination into water supplies, Canadian governments over-regulating Indigenous lands and an inability for Indigenous communities to manage their own resources.

The Trans Mountain pipeline is one example, Pasternak said. Prior to its construction, a spokesperson from the company said "the readings and information we have from the air monitoring and the groundwater monitoring do not indicate any risk [of an oil spill on Indigenous land]."

In June 2020, the pipeline spilled over 50,000 gallons of crude oil, poisoning the ground in the Sumas First Nation community. The spill happened right next to a water purifying plant and just south of a historic burial ground.

"what we see is...a doubling-down of the violent occupation of the Indigenous lands across the country"

This spill marked the fourth time in 15 years the Trans Mountain Pipeline has spilled in the same part of Sumas First Nation land. As injunctions allow pipelines to advance, polluted water continues to flow through in Indigenous communities.

Despite the federal government under Prime Minister Trudeau promising an end to the hundreds of unsafe water advisories that have been in Indigenous communities for decades by 2021, injunctions granted for the construction of pipelines present further risks for water poisoning.

This goal is unlikely to be met because of a lack of data on how many Indigenous communities still lack clean water, according to Global News. The outlet also reported that British Columbia and the territories are completely without data. There have been no data updates across the country since January 2020.

According to Pasternak, Trudeau and his government are not promoting a truth and reconciliation agenda but rather promoting the words, "truth" and "reconciliations."

"If you look at all of the policies, legislations, [Trudeau's] hands-off approach to the violent military occupation of Indigenous lands, what we see is actually a doubling-down of the violent occupation of the Indigenous lands across the country," said Pasternak. The history of success for corporations in their use of injunctions against Indigenous land means they're not going away anytime soon, said Pasternak.

"But the parallel trend has been the burning injunction, which is the refusal of the Indigenous people to accept the injunction as a valid legal mechanism to infringe on their sovereignty and jurisdiction."

Pasternak also added that land defenders may be able to challenge injunctions at an international level.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was created to establish a worldwide necessity for governments to protect the human rights of Indigenous peoples. Article 28 of UNDRIP states Indigenous peoples have the right to fair compensation if their land has been used for resources without their consent. Although Canada was one of four countries that originally voted against the declaration in 2007, the motion passed.

In 2010, the UN released a report declaring the human rights violations against Indigenous people across North America were "deep, systemic and widespread." The UN has also said Indigenous peoples defending their land have been increasingly mischaracterized as terrorists.

"Indigenous people have internationally recognized human rights that are being violated through the application of injunctions against them in Canada," said Pasternak. For Pasternak, assertion of Indigenous rights point towards an optimistic future not just for Indigenous communities, but climate justice.

"We see not just an assertion of Indigenous rights in the face of resource extraction, we see a bright and better future for all of us in their efforts to protect the water and the territories from these devastating cumulative effects of mining, forestry, oil, gas extraction."