Transcript
Speaker: I'm Jane Williams. This is a Red Eye podcast produced at the studios of Vancouver Cooperative Radio. In our episode today, Loya Irina Seric talks with me about the increasing use of injunctions in Canada to protect the interests of resource corporations.
Speaker: Last weekend, Wet'suwet 'en hereditary chiefs and the federal and BC governments announced a potential agreement. That proposed agreement around indigenous title is now being discussed by the broader Wet'suwet 'en community.
Speaker: Yet Coastal Gaslink is continuing work without consent on a pipeline in Wetsuiten territory. The company is backed by a court injunction enforced by the RCMP. And as many solidarity actions with the Wetsuiten have spreaded up across the country, more injunctions have targeted those actions.
Speaker: Irina Serik says that this recent rise in the number of injunctions is off the charts. In an opinion piece written with Shiri Pasternak, she says, injunctions are becoming a legal tool of political expediency. Irina Serik is a lawyer and criminology instructor at Quantlin Polytechnic University, and Irina joins me in the studio. Hello.
Speaker: Hello, thanks for having me. Thanks for coming down. How were injunctions used after the RCMP went into Wetsuit and Territory to quell the groundswell of support following those arrests?
Speaker: Well, the wave of sort of what I've been calling the solidarity injunctions started pretty quickly. So right around the first week of February, shortly after the invasion of what's out in territory by the RCMP. And so the first one was issued to CN Rail, who since then has racked up four more CN Rail currently has five.
Speaker: injunctions across the country. And that one was issued in relation to the blockade, the rail blockade, by the Mohawks of Tendenaga in Ontario. Even though, and I think this has sort of not been well known in the mainstream media, they were never actually blocking those rails, but they did have a solidarity blockade next to the rails. And so that's what CN's injunction was aimed at, was to move them entirely away from those rails.
Speaker: So the trains were still getting through? Well, they could have. They decided not to. CN decided not to run them through. I think that's a little bit of a nuance that's gotten a little bit lost in the sense that some of the decision making around, you know, via rail and CN hasn't actually necessarily been necessary to respond to what's happening on the ground. How many of those solidarity injunctions have there been? There are now 13 as of just a couple of days ago.
Speaker: Well, let's look at injunctions in legal terms. How is an injunction hearing different from a regular court case? Well, injunctions are weird in a number of ways, but injunctions are meant to be an extraordinary remedy. They're sort of meant to be kind of a last resort. And generally speaking, they're supposed to be issued by a court in the midst of an ongoing lawsuit. So there has to be an underlying claim of some sort.
Speaker: And then the plaintiff will go to the court and say, you have to issue an order, usually to stop someone from doing something so that our lawsuit can proceed and we don't have losses in the meantime. But what happens with these kinds of injunctions in land defense cases and environmental justice cases is that the lawsuit is kind of a means to an end. There's no intention of ever actually bringing this lawsuit to trial. It's really just a way to get an injunction, to get a court order.
Speaker: from a superior court in a province saying these people, whether they're named or not, often they're not named, often it'll just be John and Jane Doe, can't do this thing. So they're not being used in the way they were intended to be used in?
Speaker: Well, I mean, you know, I think that's I think that's an interesting that's sort of an interesting question. I mean, in some ways, maybe they are in the sense of, you know, sort of greasing the wheels of, you know, settler colonial capitalism in Canada, the way that it's always operated. But in other ways, no. I mean, I think if you look at it sort of from a purely legal perspective, you know, these injunctions are issued under a test that was developed in a completely different area of law. They they're issued under a test that was developed to deal with corporate law. And so in that sense, yeah, no, they're not.
Speaker: the impact that they have is out of all proportion with the way that they're issued. And are the evidence requirements particular to injunctions? They're really sort of contextual to the case, but what happens in these instances is that they're issued ex parte, meaning that the defendants, again, whether they're named or not, aren't there. So they're issued sometimes over the phone, sometimes in a sort of quick in chambers hearing with only lawyers for that corporation present.
Speaker: And so there is evidence. There's always going to be some form of evidence. Usually it'll be an affidavit from an employee of that of that corporation or maybe a security private security firm. And, you know, they will have some evidence of, you know, here's what's been happening so far. Here's what we've seen on social media. But it's a pretty low. It's a pretty low level of evidence because the test itself is very low that they have to meet. OK.
Speaker: When you say the test itself is very low that they have to meet, can you say more about that? Sure. So the test for issuing an injunction, which again was developed in sort of the early 90s in a case involving a tobacco company, there's three questions that the court wants to answer. And the first one is, is there a serious legal issue to be tried? Which sounds like a difficult question, but it's actually very easy in these cases. And then the second one is about irreparable harm.
Speaker: Will the plaintiff suffer reparable harm if this injunction isn't issued? And of course, they can always point to, well, yes, we've got this project. We're losing billions of dollars every second that it's not proceeding. And then the third part is sort of this balancing of harm.
Speaker: And so the question is, well, who's going to suffer more if it's issued or not issued? And that's often the big question. But that's also one where the status quo is sort of in favor of the corporation because their project becomes the status quo, not sort of the underlying environmental issues or indigenous sovereignty issues or title issues.
Speaker: So it's not an objective test by any means? Whether it's objective or not, to me, is it a fair test in the sense of is it a balanced test? And in that sense, the answer is very clearly no, that the deck is stacked. And the Supreme Court of Canada itself has recognized that.
Speaker: Now you were involved in a study of injunctions by the Yellowhead Institute and last week we were speaking with Hayden King about the report, Landback, that you were also involved in. What did that study reveal about who is granted injunctions?
Speaker: will reveal the sort of complete disparity in the success rate of four injunctions. So we saw that when a corporation or government requests an injunction against the First Nation, they have a very high success rate. Whereas when First Nations seek injunctions against projects happening on their land or against government actions, that they have a very low success rate. In fact, they're sort of almost mirror images of each other, those statistics. And so it's not just,
Speaker: Well, those statistics sort of bore out what we had sort of been sort of our understanding based on the test itself and on the way that injunctions have played out. And so when we sat down and actually crunched the numbers and we looked at well over 100 injunctions over the last 30 years across the country, it really bore out the fact that the deck is just completely stacked in these kinds of cases. So what kind of percentage?
Speaker: I believe that the success rate for corporations was 76%. And it was, again, almost a mirror image for the failure rate for First Nations seeking injunctions. BC Premier John Horgan said in January that the rule of law will apply and CGL's pipeline will go ahead. So what's missing from that picture? I think that what's missing from that picture is whose rule of law.
Speaker: This is a much more complicated legal scenario than John Horgan's sort of, you know, very simplistic statement would imply. You know, we've got, first of all, even if we're just looking at Canadian law, so Canadian state law, yes, we've got the injunction, but we've also got the Dalekumuk decision, the 1997 decision of the Supreme Court of Canada, which recognized that for the first time that our Aboriginal title exists. And in particular, they said that, yes, that the Gitscan and Witsawatin nations, and particularly their hereditary leadership,
Speaker: has title over a huge amount of land, a much bigger area of land than what's currently covered by reserves. And so we've got the scenario where even just looking at Canadian state law, we've got these two areas of law that are not sort of speaking to one another. The test for injunctions doesn't really take into consideration what other Canadian courts have said about Aboriginal title, Aboriginal rights.
Speaker: And then we've got UNDRIP, we've got this level of international law, which also speaks to the situation, particularly the requirement for free prior and informed consent for these kinds of projects. And then we have it's what's so it's in law, we have an existing system of indigenous law that operates to this day on these territories and has for millennia.
Speaker: So there's at least three ways to answer that question of whose rule of law. And so John Horgan's, well, you know, it's just the injunction. It's just really not accurate, even through the lens of Canadian state law. Never mind when you add in the international and indigenous law. And then who takes that decision? Who decides that the RCMP are going to go in on this day?
Speaker: Well, I think that's been a really interesting question throughout this process. So on the one hand, we've had various levels of government. Trudeau has said this, Horgan has said this, Ford has said this, Lejeux has said this, that they don't direct the RCMP or the OPP or whoever the police are. And to some degree, that is correct in the sense that, yes, at least on paper, they do not have the direct ability to make operational decisions for police forces.
Speaker: On the other hand, just a day or two ago, it turns out that the B .C. Solicitor General used a section of the Provincial Policing Agreement that the province has with the RCMP to declare the situation on Wet'suwet 'en territory an emergency.
Speaker: And by doing that gave him the ability to sort of reallocate resources, to allow the RCMP to put more resources into enforcing that injunction. And so yes, that's not direct controlled in the sense that the operational decisions on the ground are still the RCMPs, but the fact that it is an emergency, quote unquote, to enforce a corporation's injunction on unceded indigenous territory, that is absolutely a form of control, a form of direction.
Speaker: over -policing. I want to just talk, or get you to talk a little bit more about Delghemous, because that was a very long case that went up and up and up until it ended up at the Supreme Court of Canada, and then a decision was made that there was title. And then we've got that on one side, and we've got a court with an injunction on the other side.
Speaker: Exactly. And they really do not speak to one another, these two areas of law. So when indigenous people have tried to bring in issues of, say, title or consent or the duty to consult in injunction cases, what the courts have said over and over again is you can't do that here. This is not the forum for those issues. These projects were permitted. They're going ahead. And if you wanted to challenge them, you had to do that then.
Speaker: And when people are charged with contempt of court for violating court injunctions, so, for example, the hundreds of people who were arrested protesting the Kinder Morgan Trans Mountain Pipeline expansion project, they tried to bring in some of these arguments in their defense, and the court said, no, not relevant. So there is just this real sort of insulation of injunctions.
Speaker: from other aspects of Canadian state law, including, of course, the Delgenmug decision, the Chilcotin decision, the Heida decision, all of these sort of decisions by the Supreme Court of Canada under Section 35 of the Constitution, which have said Aboriginal rights and title exist, they're relevant, they need to be looked at. And I guess then also the people, the land defenders are getting criminalized in the process.
Speaker: Absolutely. Absolutely. I mean, we've seen, so I've been sort of crunching the numbers since January and there have been 208 arrests under either various injunctions across the country or some under criminal law as well. Not all of these people have been charged, but certainly those people who are charged for contempt of court in these cases and in other cases, they end up being criminalized through this very strange process.
Speaker: Contempt of Court is the last remaining common law offense in Canada, meaning that it's not written down in the criminal code or in any other piece of legislation. It's judge -made law. And this sets up a whole weird process where corporations have a lot of power in deciding whether people will be charged.
Speaker: In BC, the Crown is often asked to step in and take over these prosecutions, and then there's change to criminal contempt from civil contempt, which is also weird to have your charge just kind of change midway through the process. There's very limited defenses that you can make. It's criminalization in a sort of very particular and very pernicious way.
Speaker: And then in the case of the people up on Burnaby Mountain and the Kinder Morgan pipeline, there was an escalation of sentencing also, which was led by the judge.
Speaker: Yes, Justice Affleck, but Justice Affleck was following the unfortunate precedent that has been said in other instances of mass arrests in BC, going right back to the clock with sound actions of the 1990s, where there's this idea that to deter people from violating the injunction, we're just gonna keep upping and upping and upping the sentences. And so yeah, we saw people get pretty significant jail sentences in some of those cases.
Speaker: So what do you think needs to change so that injunctions are not used in this way? Well, I mean, obviously, I'd like to see, you know, a wholesale, you know, change in sort of the relationship between indigenous peoples in the Canadian state. But barring that,
Speaker: It would be great to see courts not apply this 1994 Supreme Court of Canada precedent the way that they do. That decision needs to be overturned either wholesale, or at least we need courts to actually step up and say, this is not the test that needs to be met in these cases. This does not make sense. This does not take into account.
Speaker: Section 35 of the Constitution or any of the other decisions that have come down since 1994. And if we're going to have injunctions, and I don't think we necessarily should be using this tool at all, but if it's going to be used, then it needs to be through a completely different legal framework than is currently happening.
Speaker: It's been really great to talk to you. It sort of opened up my eyes on the issue of injunctions. It's been fantastic. Thanks so much. Thanks for having me. I've been speaking with Irina Seric. She's a lawyer and criminology instructor at British Columbia's Quantlin Polytech University. The Red Eye podcast is produced at the studios of Vancouver Co -op Radio. You can support us by supporting Co -op Radio.
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