Colonial Logic Behind Legal Reasoning
Karl Dockstader, a member of the Oneida Nation of
the Thames, journalist and co-host of Niagara's
CKTB 610 AM radio program "One Dish, One Mic,"
provides the following background to the court
case of the Haudenosaunee people, 1492 Land Back
Lane and the colonial theft of their lands on the
Grand River.
"The legal reasoning that Justice Harper is using
to soften the balance of convenience conditions in
favour of the developer is based on the comments
of Justice Robert J. Sharpe in a 2019 Canadian law
book: 'Property rights are sacrosanct...the
balance of convenience and other matters may have
to take second place to the sacrosanctity of
property rights in matters of trespass.'
"Indigenous rights are protected by the Canadian
Constitution. Canadian property rights are not
protected by the Constitution of Canada, but they
are considered so central to the Canadian sense of
identity and wealth that they experience strong
protection.
"This is not a precedent being set. The Canadian
sacrosanctity of property rights has been given
such weight in injunctive relief hearings that it
regularly outweighs the other considerations of
the tripartite interlocutory injunctive relief
test. The standard for a permanent injunction is
different.
"A permanent injunction [...] is effectively the
court determining if the land belongs to the
developer.
"Justice Harper named Skyler Williams as the sole
leader of the 1492 Land Back Lane defence -- to
the objection of Mr. Williams -- and ordered him
to have the land vacated. Justice Harper will not
hear any underlying constitutional arguments
unless the disputed property is vacated by the
Haudenosaunee people and their supporters, he
stated in court.
[...]
"Court, Conflict and 'Reconciliation'
"This year high profile Indigenous rights cases
stemming from a historical Sipekne'katik court
victory and a historical Wet'suwet'en court
victory have been in the news for not having those
court rulings result in legislation or policy that
implements the rights affirmed in the cases. The
Mi'kmaw fishers and the Wet'suwet'en people
engaged in the formal court processes, achieved
some level of success in the court system, only to
still have their rights effectively thwarted.
"British Columbia Supreme Court Justice
Marguerite Church granted Coastal Gaslink a
temporary injunction to remove Wet'suwet'en land
defenders in 2018. After six months of
consideration Her Honour ruled in 2019 to upgrade
the injunction from interim to interlocutory.
Justice Church gave a narrow consideration to
Indigenous law, and specifically said a blockade
was not a traditional practice.
"The treaty rights of Mi'kmaw fishers were
affirmed by the Supreme Court of Canada in 1999.
Mi'kmaw fishers successfully used the courts to
show that they had an inherent right to support
themselves through fishing. The court granted the
right but stressed the importance of negotiating,
not adjudicating a solution.
"The Department of Fisheries and Oceans was given
the power by the courts to restrict the level of
fishing. They have used that power to restrict
Indigenous fishing without defining the limits in
a way that the Mi'kmaw fishers believe respects
their inherent rights. Twenty-one years after the
court ruling the Sipekne'katik government started
to regulate their own system. The violent pushback
by non-Indigenous fishers has bitterly aggravated
the results of the DFO [Department of Fisheries
and Oceans Canada) inaction and exposed the threat
of not implementing policies that reflect court
rulings.
"There are key differences between the fight for
Indigenous rights by the Wet'suwet'en, the
Sipekne'katik, and these Haudenosaunee land
defenders. The commonality may be that land and
rights on paper are much harder to implement in
actual practice.
"What About the Duty to Consult?
"In 2004 the Supreme Court of Canada established
that the Crown has a duty to consult in the Haida Nation v BC
case. Justice Harper referenced this case in his
ruling to change the injunction from temporary to
interlocutory: 'Knowledge of a credible but
unproven claim suffices to trigger a duty to
consult and accommodate. The content of the duty,
however, varies with the circumstances.'
 "Justice Harper
then went on to decide in this case that 'it is
not possible to differentiate between tenuous
claims, claims possessing a strong prima facie
case and established claims when those resorting
to self-help refuse to engage in the court
process.'
"In the interlocutory injunction ruling His
Honour establishes a timeline starting with the
previous purchase of the lands in 2003 and ending
with the current purchase of 176 homes. Justice
Harper illustrates that it wasn't until the end of
the process that these land defenders 'initiate
their resort to self-help and associated
violence.'
"Notwithstanding the complexity of Justice Harper
characterizing the interaction between the police
and Indigenous people as land defender violence
there have been documented public consultations.
While the consultations were sparsely attended,
the majority of Six Nations people attending them
opposed any form of development on this property.
"Fair consultation on the Haldimand Tract is an
area where the law, the history of Six Nations,
and Nation to Nation relationships wade into
complex territory. The Six Nations band council
and the Haudenosaunee Confederacy traditional
leadership have been firm that they consider the
way the land was transferred from Haudenosaunee
people to non-Indigenous people to be completely
unfair.
"1492 Land Back Lane is across the street from
Kanonhstaton, an area that in 2006 was reclaimed
from developers trying to add an urban intense
development on the doorsteps of the Six Nations
reserve. The political dynamics have shifted since
the 2006 reclamation, but the unresolved
underlying Six Nations claim to justice and desire
for land back has not."
This article was published in
Volume 50 Number 46 - November 28,
2020
Article Link:
Colonial Logic Behind Legal Reasoning
Website: www.cpcml.ca
Email: editor@cpcml.ca
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