What to do when wrong is right: Civil disobedience by Aboriginal Peoples and the role of the courts

There can only be one law, and that is the law of Canada, expressed though this court.

• Justice D. Cunningham[1]

If two systems of law are allowed to exist – one for the Aboriginals and one for the non-Aboriginals, the rule of law will disappear and be replaced by chaos.  The public will lose respect for, and confidence in, our courts and judicial system.

• Justice G.P Smith[2]

The authority of law and the State does not require blind obedience.

• Justice J. MacPherson[3]

 
1.0 Introduction
On October 17th, 2013, forty members of the Elsipogtog Mi’kmaq First Nation in New Brunswick were arrested by the RCMP for their continued efforts to block a shale gas exploration company, SWN Resources Canada, from exploring for natural gas deposits.  The charges included firearms offences, threats, intimidation, mischief and violation of an injunction order against the protestors.  The protest was part of an on-going effort by both aboriginals and non-aboriginals since 2011 to stop SWN’s exploration work.  SWN, a subsidiary of Southwestern Energy Company (based in Huston Texas), was granted 32 licences in 2010 by the Province of New Brunswick to carry out their exploration work over approximately one million hectares of Crown land.[4],[5]

The Elsipogtog First Nation claims traditional rights and title to the land on which SWN is attempting to work.  Protestors, aboriginal and non-aboriginal alike, are concerned that the exploration work will lead to shale gas extraction by hydraulic fracturing (aka fracking), a process they contend may lead to serious negative environmental and health impacts.  Toxic contamination of ground drinking water supplies is among the concerns of the protestors.  The Elsipogtog First Nation also claims that the Provincial government is acting unlawfully by its alleged failure to fulfill its duty to consult with the First Nation regarding the licences granted to SWN to carry out the exploration work on the land.[6]   

The blockade, the claim to First Nation rights and title to land, the government response, the court’s injunction, the clashes with police, and the arrests are all scenes that have been played out across Canada, not just in recent times but from as least as early as the 1800s.[7]  Time and again, First Nations appear in news reports for their visible attempts to assert claimed rights and title to land and natural resources.  Oka, Caledonia, Clayoquot Sound and Ipperwash might come to mind for many Canadians, and these are only a sample of the numerous incidents of protest and civil disobedience by First Nations.  From golf course expansions or residential developments or logging and mineral exploration on traditional lands, to broken promises to return expropriated land, conflict over control and access to land continues to erupt in newsprint, on television screens, and, now, in social media.

At times, the actions of protestors, such as in the situation with the Elsipogtog First Nation, cross a line from lawful protest to unlawful acts.  These actions may be thought of as acts of civil disobedience, to the extent that they are attempts to further a just cause, just at least in the eyes of the protestors.  Protests and acts of civil disobedience have a long history in struggles for social equity and justice.  Civil disobedience was popularized by famous disobedients such as Mahatma Ghandi[8] and writers such as Henry David Thoreau,[9] and by social movements advocating for labour rights, women’s rights, the abolition of slavery, etc.

Some argue that no achievements in social justice have been made in the absence of civil disobedience,[10] and as such civil disobedience, when viewed through the lens of history by people who have adopted the new norms championed by the protestors, is seen in a positive light.  As US President J.F. Kennedy noted in a 1963 speech to university students, “The people who create power make an indispensable contribution to the nation’s greatness, but the people who question power make a contribution just as indispensable, especially when that questioning is disinterested.”[11]

Nonetheless, regardless of how beneficial past acts of civil disobedience are seen, challenges to the status quo through unlawful acts create difficult situations for judges who are beholden to uphold the rule of law.  Or, at least, they do for those judges who see a motive behind civil disobedience that set the acts aside from “ordinary” acts of unlawfulness.  Judges may face the dilemma of responding to the underlying social injustice that motivates the protestors, versus honouring their responsibility to fairly apply the rule of law to all, that is, to uphold the principle of equality before the law.

In this paper, I ask how the judiciary should respond to civil disobedience by First Nation communities in Canada.  I first explore the context for the use of civil disobedience by First Nation societies in Canada.  Why do First Nations resort to civil disobedience?  Is civil disobedience necessary?  Does it play a necessary role?  I then look to some of the responses of the judiciary to aboriginal civil disobedience, specifically to the protest against mining exploration by the Kichenuhmaykoosib Inninuwug First Nation.  How have judges attempted to balance this dilemma?  I then suggest some approaches the judiciary might take in responding to aboriginal civil disobedience.

2.0 Why do Canadian Aboriginal Peoples Protest?
“We find ourselves without any real home in this, our own country…. Gradually we are becoming regarded as trespassers over a large portion of this, our country.”  So wrote the Chiefs of the Shuswap, in a letter to Prime Minister Sir Wilfred Laurier in 1910, over one-hundred years ago, and quoted in the 1996 report by the Royal Commission on Aboriginal Peoples (RCAP).[12]  Authors of the RCAP report described in detail how things have not improved since that letter was written.  The report summarizes the injustices that Aboriginal Peoples have faced at the hands of the British and then Canadian governments:  the horrific impact of residential schools, policies created to separate aboriginal communities from their lands, policies to assimilate aboriginal peoples, the accounts of dishonoured treaties. 

The RCAP report draws the line of causation from these past and on-going injustices to the atrocious living standards experienced by Aboriginal peoples today.  If the promises made by England and subsequently by Canada to aboriginal peoples regarding use of land and resources had been kept, the report argues, then aboriginals would be in a far better situation today.  It is the failure of the Crown to honour its commitments, along with its systematic efforts to eliminate Aboriginals as distinct peoples in Canada, that has resulted the appalling social conditions faced by many aboriginals in Canada.

Aboriginals in Canada have survived a history of exclusion and dislocation from land and from control over land.  Some actions by the government have been explicit.  Take for example the Colonial Land Ordinance of 1870, which prevented any aboriginal person from claiming right to land.[13]  In more recent times, the exclusion has been less blatant, but just as real, taking the form of simply ignoring treaty obligations and traditional rights to land, and giving access to the land to resource extraction companies.[14]   As Bruce Cockburn sings, “it’s a stolen land.”[15] 

The Shuswap Chiefs, in the quote introducing this section, equate their “land” with their “home.”  In this sense, the loss of access to and control of land is more than an economic loss (although it is that too), in that it cuts deep into aboriginal cultural identity.  There is a risk of romanticizing the notion of aboriginal peoples and the land, of falling back on a stereotypical popular culture view of the “noble savage.”  However, looking to the words and actions of aboriginal peoples, the notion of land as fundamental to cultural identity appears consistently and persistently.

Time and again, Aboriginals define their existence in terms of their connection to a certain area of land.[16],[17]  In her article on aboriginals and natural resources in Canada, Claudia Notkze compiled statements from aboriginals on the issue of land.  Each speaks to the connection between aboriginals and land, not just as individuals, but also as peoples.  For example, a quote from Dan Boggs of the Blackfeet Tribal Council, “Water – aside from our own children – is the most valuable resource we have.”  Or Richard Nerysoo’s words to the Berger Inquiry in 1977, “without our land we cannot – we could no longer exist as people.  If your people ever take our land, you will be taking our life.”[18] 

This relationship to the land comes with a sense of responsibility among some aboriginal peoples to conserve the land and its resources.  Clearly, not all aboriginal individuals today share the same level of respect for the land.  Just as with non-aboriginals, some aboriginals exploit natural resources without sufficient thought for tomorrow.  But on the level of communities and nations, aboriginals continue to express a sense of deep responsibility to conserve the land on which they live and from which they derive their identity.  “The true owners [of the land],” stated the Indian Chiefs of Alberta in 1970, “are the children yet unborn.  The Indians naturally view their land as a trust with a permanent sign on the corner-post, ‘Not for Sale’.”[19]  Speaking about his community’s protests against shale gas exploration, Elsipogtog War Chief John Levi stated, “Us as Natives and the protectors of this land, we are going to protect it; it is our land, we never ceded this land and we are going to protect it before these waters are contaminated.”[20]  Susan Levi-Peters, former Chief of Elsipogtog, takes her commitment to the land beyond her own people: “It is our responsibility to protect Mother Earth, to protect the land for non-natives too.” [21]  These sentiments are known within Mi’kmaq culture as ‘netukulimk’, that is, of living with the land and using it in a way that does not harm it.[22]

Of course, access to and control of land also comes with the very practical benefits of providing food, fibre and a potential for livelihoods.  The economic and social problems facing aboriginals stem not only from the devastating impact of assimilation policies such as residential schools, but also from being cut out of the economic development that using natural resources enabled.  Canada developed into the nation it is today through exploitation of the natural resources that once largely belonged to aboriginal peoples.[23]

Given aboriginal belief in the importance of land to their very identity and sense of home, rooted in spiritual and cultural traditions, given the importance of land and natural resources to economic prosperity, and given that aboriginals have been deprived of much of their land, it is not surprising that land is at the centre of aboriginal protests and civil disobedience.  Aboriginals are not protesting for a cause based on individual beliefs, so much as they are protesting for cultural survival.  Exercising their claimed rights to control activity on specific areas of land is a visible, tangible manifestation of their autonomy as cultures, as peoples.[24],[25],[26],[27]

3.0 Why do Protests Lead to Civil Disobedience?
Writing from a two-metre-by-four-metre prison cell where he spent 16.5 hours a day for 104 days, where the overhead light was never turned off, Robert Lovelace wrote about his experiences organizing and participating in a blockade against Frontenac Ventures, a uranium exploration company.[28]  Lovelace had been sentenced to six months of incarceration in a maximum security prison, for his refusal to respect an injunction against his peaceful protest actions against Frontenac, and for refusing to renounce his decision to disobey the injunction.  For Lovelace, respecting his own and his community’s conviction that they were in the right to control access to the land was more important than respecting the court’s injunction order against him.

Frontenac Ventures had staked some 12,000 hectares of land that the Algonquin claimed as their traditional territory.  Lovelace contended that the province of Ontario acted unlawfully when it registered the claims and provided the leases over the land without consulting the aboriginal communities affected by the leases.  Lovelace described being essentially ignored by the Ontario government when the aboriginal community made their concerns known and asked for meaningful consultation.  According to Lovelace, the government held only one meeting with the affected community, and it occurred only after the staking had taken place and when drilling was imminent. 

When the exploration work commenced, two Algonquin communities established a blockade to stop Frontenac.  In Lovelace’s words, “if Ontario would not protect Aboriginal rights, then [the communities] felt obliged to do it for themselves.”[29]  Lovelace described the blockade as one aspect of a multi-pronged approach, along with research, community education, and legal action.  From Lovelace’s experience, the first three tactics were necessary, but ultimately not enough to garner the response they expected from the provincial government.  Without the addition of direct action, in other words, their efforts to assert their rights would continue to be ignored by the government.  Lovelace believed that the Ardoch Algonquin community had exhausted all other options to encourage the province to respect their rights, and thus were forced to take direct action to block Frontenac’s access to the land.  Frontenac obtained an injunction against the Ardoch protestors, and the court found three of the community leaders in contempt of court when they did not obey the injunction against their blockade.

Lovelace noted that shifting ideology is no easy task.  The inertia of the government’s colonial attitude towards aboriginal communities is well entrenched, according to Lovelace.  Direct action is often required before the government will open its eyes to the issue of aboriginal rights.  But Lovelace also contends that aboriginal communities themselves have a responsibility to assert their rights in this manner, that change must flow from the expressions of desire for change by aboriginal communities.  In a sense, Lovelace condemns the government’s failure to act responsibly, but also recognizes the responsibility of aboriginal communities to step up and assert the change in ideology they believe is just.  Direct action can be as much about community empowerment as it is about obtaining rights.  This is not to put an overly idealistic veneer on direct action.

Lovelace recognizes that direct action can turn negative when not adequately planned and controlled.  But when it is a deliberate part of a larger effort to assert rights, Lovelace suggests that direct action can be a catalyst that unites and empowers communities to define themselves and which reflects the community’s underlying traditional values.

Aboriginal civil disobedience can also be the boiling-over point of decades of frustrated attempts to gain back land taken by the government.  With respect to the 1990 confrontation in Oka, Quebec, the Mohawk community had had land taken from them in the seventeen-hundreds.[30]  The stand-off continued for 78 days and resulted in the death of one police officer during fighting between the Mohawks and police.  The land at the heart of the issue was sacred, containing a burial ground and a sacred grove of pine trees.  Repeated efforts to have the land returned failed, including an attempt to retake the land by force in 1869.  The 1989 planned expansion of a golf course, which already occupied a portion of the land, and development of residential housing on the land, ignited decades of resentment over the failure of government to return the land.  The armed stand-off on part of the Mohawks was a direct action of last resort to prevent essentially irreversible harm to land they held sacred.  If we accept the notion of land as cultural identity, then the action can be seen as a method of cultural self-defence.  What identity could aboriginal communities hold to, if they could not protect land of such fundamental value to their community?

Ipperwash is another situation where aboriginal communities took direct action to take back land they believed to be rightfully theirs.[31]  In the Ipperwash example, the government resorted to the War Measures Act to expropriate land from the Stoney Point Ojibway First Nation during the Second World War for use as a military barracks.  The land the government took was not simply sitting vacant.  It was the site of an Ojibway community.  The expropriation included a forced relocation, consisting of bulldozing some homes and placing the displaced residents into another community.  The relocation resulted in emotional stress, loss of livelihoods and social friction.  In 1972, Jean Chretien, minister of Indian Affairs at the time, unsuccessfully requested his government to return the land to the Ojibway.  Yet, time and again, the federal government failed to return the land to the Ojibway, despite the numerous attempts by the aboriginal communities to persuade the government to honour its commitment to do so. 

The decades of frustrated effort boiled over in the summer of 1993 when Ojibway aboriginals took the direct action of peacefully occupying the military ranges.  The occupation continued through the winter of 1994. In February of 1994, the Department of National Defence agreed to close the military camp and return the land to the aboriginal communities, yet did not follow through with this promise.  Over a year passed without resolution of the issue, and in July of 1995, the aboriginal occupiers acted to forcefully take over the military buildings on the site.  Tensions increased again in September when the occupiers moved to assert claim to the adjacent provincial park.  The move into the park raised the ire of then Premier Mike Harris, who exerted his influence to hasten the police to remove the protestors.  The resulting police action ended in a clash between the occupiers and police, and the death of an unarmed occupier, shot by police.

Most blockades, it seems from reviews of publicized protests and from research of academics investigating aboriginal civil disobedience, are not random events, and do not stem from individual motivations, but rather are pre-planned, deliberate actions on the part of communities, fighting for collective objectives and the righting of long-standing injustices.[32],[33]   Whether the blockades are against resource extraction, or are an attempt to have land returned, they all appear to stem from long-simmering and deeply held convictions of connection to land, and unjust alienation from that land.  In this way, aboriginal protest is distinguished from many other examples of protest and civil disobedience, such as blockades by non-aboriginals for purely environmental reasons, or protests for one social cause or another.  I do not mean to devalue in the least non-aboriginal protests, but it is important to place aboriginal protest in the different context of threat to cultural identity and decades- and centuries-long injustices.  For aboriginal protestors, occupation could perhaps be more accurately termed “reoccupation.”[34]

According to Professor John Burrows,[35] blockades by aboriginal communities can be traced to not only this failure to affirm aboriginal rights, but also the failure to account for and address the psychological impacts of denying aboriginal rights.  As Burrows describes, aboriginal communities have witnessed the “suppression of aboriginal institutions of government, denial of land, forced taking of children, criminalization of economic pursuits, [and] negation of rights of religious freedom, association, due process and equality.”  That the trauma that these injustices have produced is not recognized or acknowledged creates a further and continuing injustice that fuels protests and civil disobedience.  Self-esteem, or community-esteem, is dealt a hard blow by systemic injustice and the hardships of poverty this injustice produces.  In Burrow’s view, the injustices to aboriginals equate to a state-induced conceptual blockade against aboriginals.  To understand why aboriginals construct blockades, we must look to the non-aboriginal ‘blockades’ that have forced aboriginals off of their lands and deprived them of their rights to the resources of the land.

Viewed in this context of long-unsettled injustices, and psychological impacts, aboriginal blockades can take on additional meaning.  Much of the injustice faced by aboriginal communities is the very act of being forcibly compelled to move from their traditional homes and lands (usually multiple homes according to the season) to one area of land chosen for them by the government of the day.  In refusing to move from a blockade, aboriginals are not only frustrating the activity that they are protesting, but are making a symbolic political statement of autonomy against the forced and unjust removals from their lands in the past.  Blockades are also a symbolic assertion of ownership of land, in that occupation and the right to control entry over land are fundamental principles of property law in the common law system.  From the aboriginal point of view, “ownership” of the land in question might better be described in terms of holding the land in trust,[36] yet the symbolic action of occupying and restricting entry and use of the land remains the same.

On a practical level, civil disobedience is a necessary course of action for those groups who have little traction with government.  Concerns of marginalized communities can be easily ignored.  It can be a struggle just to be heard by government.  In such cases, civil disobedience is a necessary step to gain the government’s attention.[37],[38],[39]

4.0 How has the judiciary reacted to aboriginal civil disobedience?
In the words of Justice MacPherson of the Ontario Court of Appeal, “civil disobedience creates a problem for judges.”[40]  Judges are bound to uphold the rule of law, obeying the principle that no one is above the law.  “For a judge,” he points out, “the rule of law is more important than any single law, even a bad law.”[41]  Yet, judges are also aware that injustices exist under the “rule of law.”  As Anatole France noted with sharp irony, “in its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”[42]  France wrote those words over a century ago, yet they are still potent.  Injustices still abound under our justice system, as illustrated by the circumstances of aboriginals in Canada.[43] 

While some may hold that we can achieve social progress through quiet, incremental changes that do not require protest and civil disobedience, a review of the history of social change suggests that progress goes hand-in-hand with social unrest, protest and disobedience.[44]  Some judges, at least, as Justice MacPherson points out, recognize this necessity for protest and civil disobedience.  If they did not, it would not be a “problem.”  If they did not, they could easily denounce disobedience without hesitation.  But instead, Justice MacPherson suggests that disobedients should be given some “room to move.”  He contends that giving disobedients some room to move need not fundamentally undermine the rule of law.  “The authority of law and the State,” observed Justice MacPherson, “does not require blind obedience.”  Yet, how much room is he, and the judiciary at large, prepared to provide dissidents?  How much room to move is the judiciary prepared to give to aboriginal protestors, and under what circumstances?

The opposition of the small northern Ontario First Nation community Kitchenuhmaykoosib Inninuwug (KI) to mining exploration on their traditional lands exemplifies the dilemma the judiciary faces.  In 2006, KI blocked the mining exploration company, Platinex Inc., from carrying out their exploration plan.  Platinex and KI both sought injunctions against the other.  Justice G. Smith of the Ontario Supreme Court turned down Platinex’s request, and granted KI a five-month injunction.  Justice Smith had little sympathy for Platinex, stating that “… Platinex is, to a large degree, the author of its own misfortune”[45] by failing to adequately consult with KI, and that their actions were “disrespectful of KI’s interests…,”[46] and would cause KI to “lose land that is important from a cultural and spiritual perspective.  No award of damages could possibly compensate KI for this loss.”[47]  Regarding KI’s interest in their land, Justice Smith was unequivocal: “… the relationship that Aboriginal peoples have with the land cannot be [over]stated.  The land is the very essence of their being.  It is their very heart and soul. …. Aboriginal identity, spirituality, laws, traditions, culture, and rights are connected to and arise from this relationship to the land.  This is a perspective that is foreign to and often difficult to understand from a non-Aboriginal viewpoint.”[48] 

Yet, despite Justice Smith’s sensitivity to the importance of land to KI, his decision went only so far as to delay Platinex’s exploratory work for five months in order to give the parties time to negotiate an agreement.  Perhaps not surprisingly given the strong positions on each side and the time-consuming nature of such negotiations, the five months passed without an agreement.[49]  Platinex wanted to carry out its exploration plan.  The province of Ontario supported Platinex.  KI wanted to be consulted, but ultimately they wanted to have a say over what is permitted on the lands they claimed as traditional territory.  And their say, was a firm “no” to Platinex’s exploration work.  The impasse dragged on.  Justice Smith tried again to get the parties to negotiate an agreement, adding two weeks to the injunction, but KI remained firmly opposed to Platinex’s exploration plans.[50] 

Perhaps at this point Justice Smith believed his hands were tied.  He could recognize the interests of KI, but he did not see it in his power to deny Platinex their right under Ontario’s Mining Act[51] to proceed with their plans, given that the parties had been given time to negotiate, and given that KI had decided to back out of the legal proceedings.  He decided to impose a consultation process protocol on KI, and allow Platinex to go ahead with its exploration work.[52] 

The leadership of KI, however, continued to voice their opposition, but outside of the court system.[53]  They informed Platinex that it was still not welcome on their land.  At this, Justice Smith determined that KI was openly disobeying the injunction against them, thus acting in contempt of court.  KI’s leadership informed the court that they did not have funds to pay court-imposed fines for their contempt, and requested instead that they be jailed.[54]  Indeed, Justice Smith sentenced the six members of KI’s leadership each to six months in prison,[55] referencing a decision by Ontario Supreme Court Justice Cunningham, who sentenced leaders of the Ardoch Algonquin First Nation (including Robert Lovelace, as described in section 3.0 above) to six months in prison for similar acts of protest against a mining exploration company.[56] 

In his sentencing decision, Justice Smith continued to recognize the aboriginal nature of the dispute, describing the situation as the “clash of two very different perspectives and cultures ….  On the one hand, there is the desire for economic development …. Resisting this… is an Aboriginal community fighting to safeguard and preserve its traditional land, culture, way of life and core beliefs.”[57]  Yet, he was equally clear that KI’s leaders, in their open and deliberate defiance of the injunction, had crossed a line that was beyond his power to tolerate.  “If civil disobedience is allowed to occur,” he wrote, “the confidence that the public has in the administration of justice will erode and ultimately undermine the social contract and culture of obedience by which our society operates.”[58]  “If two systems of law are allowed to exist –one for the aboriginals and one for the non[-]aboriginals,” he went on, “the rule of law will disappear and be replaced by chaos.”[59]  The six-month sentence was regarded by some as harsh, but Justice Smith stated that it was required in order to properly denounce the offenders’ “flagrant” conduct, and deter both them and others from repeating such acts of disobedience.[60] 

It seems from Justice Smith’s decisions that he accepts only a modest role for the court in resolving aboriginal protests for land rights.  The court can recognize the critical importance of land to aboriginal cultural identity, and may not allow government or private interests to use traditional lands without first conducting some minimum consultation with affected First Nations, but that’s as far as the court can go.  “Take this dispute out of the courts and negotiation a solution among yourselves,” Justice Smith seems to be saying, “and if you can’t reach an agreement within short order, the court has no choice but to enforce the rule of law.”

Justice Smith suggests that, above all, the court must not treat aboriginals differently than non-aboriginals in situations of contempt of court.  One might speculate that Justice Smith was sensitive to the 2006 events in Caledonia, Ontario, where heated anti-aboriginal protestors condemned the government and police for not taking action against aboriginals occupying claimed land.[61]  An unsigned editorial in the National Post read, “What has become glaringly obvious … is that within that province there are two tiers of justice, a preferential one for aboriginals and another, lower tier for non-Natives.  This unequal treatment throws the justice system into disrepute.  The dangerous message it sends is that, in some cases, whites seeking justice against aboriginals have no choice but to take the law into their own hands.”[62]  Indeed, in the aftermath of the Marshall decision, non-aboriginal lobster fishers in New Brunswick destroyed aboriginal lobster fishing gear, and engaged in confrontations verging on the edge of serious harm to human life.[63]  Perhaps Justice Smith believed it was in the interests of all concerned to send a strong message that civil disobedience by aboriginals would not be tolerated, a message that was perhaps also directed at non-aboriginal protestors who might engage in illegal acts against aboriginals, and a message that might have been intended to quiet some of the animosity of the anti-aboriginal voices.

The Ontario Court of Appeal, however, took a different approach to the acts of civil disobedience by the leadership of the KI and Ardoch communities.  Justice MacPherson (author of an article on disobedience referred to above) allowed both appeals,[64] and contrary to Justice Smith’s remarks about treating aboriginals and non-aboriginals the same, held that the judiciary must give special consideration both to the granting of injunctions to private interests that potentially impact aboriginal and treaty rights, and to sentencing of aboriginal civil disobedience and contempt of court in the context of protests.  He quoted Justice Laskin in his assertion that the rule of law accommodates grey areas: “no one can deny the importance of the rule of law in Canada….  But the rule of law has many dimensions … [including] respect for minority rights, [and] reconciliation of Aboriginal and non-Aboriginal interests through negotiations….”[65]

With respect to injunctions against aboriginal protestors, Justice MacPherson suggested that they must be given special consideration in that the court should first assure itself that all efforts towards consultation, negotiation, accommodation and reconciliation have been exhausted, even in the absence of full participation on the part of the aboriginal communities.[66]  He instructed courts to ensure that the Crown has fully discharged its duty to consult, and exhausted all possibility of reaching an agreement through negotiation or legislation, before issuing an injunction that would create a “protest-free zone.”[67]

With respect to sentencing aboriginal protestors, Justice MacPherson drew on the principles of the Gladue decision[68] to suggest that sanctions other than imprisonment must be considered in cases of aboriginal civil disobedience.[69]  He suggested that the court should look to the context of the civil disobedience for factors that would mitigate a need for imprisonment.  In the Frontenac case, he noted that the offenders were leaders in their community and had otherwise demonstrated respect for Canadian law, that their protest had been peaceful, without violence or damage to property, and that they blocked only the company in question from accessing the land, not the general public.[70]  He further pointed out that the six-month jail sentences that the protestors received (in both the KI and Ardoch protests) were harsh, and would only perpetuate the negative relationship between First Nations and the justice system.  He suggested that courts must consider (1) that aboriginals have been estranged from the justice system and the impact of imprisonment on this estrangement, (2) the effect of years of dislocation from their lands, and (3) whether imprisonment will be viewed as an appropriate sanction by the offender’s community.[71]

Applied to the KI and Ardoch cases, there is little doubt that imprisonment would result in greater alienation from the justice system, exacerbate the dislocation from their land, and be condemned by their own communities.  Justice MacPherson also instructed the court to look to the background factors to the protest.  In these cases, there were the existing land claims, and Ontario’s Mining Act,[72] which allowed prospecting and staking of Crown lands without any First Nations consultation or consideration of potential land claims.[73]  Justice MacPherson concluded that the aboriginal communities’ response to the situation was a “respectable interpretation of s35 of the Constitution Act, 1982, and recent decisions of the Supreme Court of Canada.”[74]  Finally, Justice MacPherson also noted that the sentences imposed were significantly harsher than sentences imposed in similar civil disobedience cases against non-aboriginals.[75] 

5.0  How could judges respond to aboriginal civil disobedience?
There is no doubt that conflicts between First Nations and non-aboriginal interests over the control and use of land and natural resources will continue.[76]  The outcome of these disputes will play a large role in the reconciliation of past and on-going injustices that aboriginal communities face.[77]  While provincial and federal governments have the responsibility to work towards reconciliation with First Nations, the path taken by the courts may exacerbate the divide between aboriginals and non-aboriginals, or may help expose and address the root issues causing these conflicts over land. 

The blunt assertion and application of “one law for Canada” is not helpful.  Doing so inflames conflict, as illustrated in the trial cases of Ardoch and KI, and in the State responses to Oka and Ipperwash.  Rather, as pointed out by Justice MacPherson, the rule of law can accommodate nuances when necessary to promote fundamental notions of justice, including the consideration of aboriginal law in disputes over land,[78] as well as the background and circumstances of aboriginal offenders and their acts of civil disobedience. 

With the aim of addressing and resolving the underlying causes of conflicts, judges hearing cases involving aboriginal protest and civil disobedience should use their discretion to uphold the rule of law in a manner that takes account of the following considerations during their deliberations.

1. Principled law-breaking.  What are the offenders’ intentions and motivations?[79]  Are they supported by their communities?  Are the asserted rights grounded in aboriginal law?  Is the protest part of a wider effort and a last resort, to assert rights?  Do the protestors have a reasonable belief that they are in the right to assert their claim to the land or resource in question?[80]  Such actions should be seen in a different and more favourable light than “ordinary” law-breaking both in the awarding of injunctions and sentencing in cases of civil disobedience.
2. Effective negotiation.  Judges can create a framework for negotiation between First Nations and provincial or federal governments to encourage successful outcomes.  This may include requiring a mutually agreed upon arbitrator or conflict resolution facilitator. It could also take the form of a specially appointed commission or tribunal to ensure that the deliberations proceed fairly.
3. Weighing the factor of harm cautiously.  In deciding whether to allow an injunction, motion judges take measure of the relative harm to each side.[81]  However, in the case of aboriginal land claims this may not be entirely appropriate.  It is not only the harm to the land that aboriginal protestors are concerned with, but also the lack of control of access.  Judges should consider applying the principle found in the torts of trespass and battery, wherein it is the act itself is the harm, irrespective of the potential injuries to the land.
4. Consider the actions of the State.  Has the State effectively broken the law?[82]  With respect to the aboriginal protest at hand, consider whether the State has breached its duty to consult, and whether government or police actions have escalated confrontations (such as was found to have occurred in the Ipperwash confrontation[83]).  Consider, in this context, whether the State has breached the aboriginal community’s Charter section 35 right, and whether section 24(1) could be applied to refuse an injunction, set aside convictions for acts of civil disobedience, or other “novel remedies” that are “appropriate and just.”[84]
5. Consider creative options.  Specific to the situation, judges might look to creative solutions such as a joint management panel (for example, the Scientific Panel for Sustainable Forest Practices for Clayoquot Sound[85]), or a sustainability assessment process for the contentious land use that would give communities a say in land use far in advance of land-use activities proceeding.[86]

At time of writing, the protests by the Elsipogtog First Nation against shale gas exploration by SWN Resources are on-going.[87]  Elsipogtog claims they did not cede the lands in question.  The Premier of New Brunswick, David Alward, asserts that “in no way can we as a country of laws condone the breaking of laws and violence.”[88]  He also asserts that his government has honoured its duty to consult, an assertion contested by the Elispogtog First Nation.[89]  Injunctions against the protestors have been issued.  Protestors and police have clashed, with tear gas deployed, less-lethal bullets fired, rocks thrown, and police cars burned.  So far, it seems that the lessons learned from Oka, Ipperwash, Caledonia, KI, Ardoch, and other aboriginal protests over land use have failed to positively influence the events in New Brunswick.[90]  The injunction imposed on the protestors took no account of the aboriginal context of the protests, the aboriginal claims to the land, or whether the government had honoured its duty to consult and accommodate before issuing the exploration licences.[91]  Justice MacPherson’s words and reasoning in the Ardoch appeal case, and the recommendations of the Ipperwash and RCAP reports, appear to have not reached the New Brunswick government or courts.  The New Brunswick government and courts have so far missed an opportunity to address centuries-old wounds and injustices through a committed effort to respect aboriginal rights, and through applying a nuanced understanding of the rule of law to aboriginal protest over the use of land.
 
 


[1] Frontenac Ventures Corporation v Ardoch Algonquin First Nation, 2008 ONCA 534, at para 40.

[2] Justice G.P. Smith in Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation, 2008 2 CNLR 301, at para 44.

[3] Justice James MacPherson, “Civil disobedience and the law: The role of legal professionals” (2003) 41 Osgoode Hall LJ 371.

[4] Wikipedia: Elsipogtog First Nation: <http://en.wikipedia.org/wiki/Elsipogtog_First_Nation>.

[5] CBC News, “Shale gas protesters say SWN Resources lacks ‘social licence’” (April 30, 2013): <http://www.cbc.ca/news/canada/new-brunswick/shale-gas-protesters-say-swn-resources-lacks-social-licence-1.1323948>.

[6] Andrea Schmidt, “Anti-fracking activists denied injunction in Canada” (Nov 18, 2013) Aljazeera America <http://america.aljazeera.com/articles/2013/11/18/judge-denies-injunctionagainstcanadashalegasexploration.html>.

[7] John Burrows, “Crown and Aboriginal Occupations of Land:  A History & Comparison” (2005). Submission to the Ipperwash Inquiry.

[8] Vinit Haksar, “The right to civil disobedience” (2003) 41 Osgoode Hall LJ 407.

[9] Henry David Thoreau, “Resistance to Civil Government (Civil Disobedience)” (1849) in A Yankee in Canada, with anti-Slavery and Reform Papers.

[10] Bryan D. Palmer, “What’s law got to do with it? Historical consideration on class struggle, boundaries of constraint, and capitalist authority” (2003) 41 Osgoode Hall LJ 465.

[11] Quoted by Justice James MacPherson, supra note 3.

[12] Department of Indian and Northern Affairs Canada, Highlights from the Report of the Royal Commission on Aboriginal Peoples (Ottawa: Minister of Supply and Services Canada, 1996).

[13] Claudia Notzke, Aboriginal Peoples and Natural Resources in Canada (Concord: Captus Press Inc, 1994).

[14] John Burrows, supra note 7.

[15] Bruce Cockburn and Hugh Marsh, “It’s a Stolen Land” (1986) from Waiting for a Miracle album (Golden Mountain Music Corp).

[16] John Burrows, supra note 7.

[17] Department of Indian and Northern Affairs Canada, supra note 12.

[18] As quoted by Claudia Notzke, supra note 13.

[19] Ibid.

[20] APTN National News, “SWN returning to thump Wednesday: Elsipogtog War Chief” (November 11, 2013) <http://aptn.ca/news/2013/11/11/swn-returning-thump-near-elsipogtog-wednesday-war-chief/>.

[21] Martin Lukas, “New Brunswick fracking protests are the frontline of a democratic fight” (October 21, 2013) The Guardian <http://www.theguardian.com/environment/2013/oct/21/new-brunswick-fracking-protests>.

[22] Unama’ki Institute of Natural Resources: <http://www.uinr.ca/tag/netukulimk/>.

[23] Department of Indian and Northern Affairs Canada, supra note 12.

[24] Claudia Notzke, supra note 13.

[25] Howard Ramos, “What Causes Canadian Aboriginal Protest? Examining Resources, Opportunities and Identify, 1951-2000” (2006) 31 The Can J of Sociology 211.

[26] John Borrows, supra note 7.

[27] Marcus B. Lane & Michael Hibbard, “Doing it for themselves: Transformative Planning by Indigenous Peoples” (2005) 25 J of Planning Education and Research 172.

[28] Robert Lovelace, prologue in Julian Agyeman, Peter Cole, Randolph Haluza-Delay & Pat O-Riley, eds. Speaking for Ourselves: Environmental Justice in Canada (Vancouver: UBC Press, 2009).

[29] Ibid.

[30] Linda Pertusati, “The 1990 Mohawk-Oka Conflict: The Importance of Culture in Social Movement Mobilization” (1996) 3 Race, Gender & Class 86.

[31] Justice Sidney B. Linden, Report of the Ipperwsh Inquiry. (Toronto: The Ipperwash Inquiry, 2007).

[32] Nicholas Blomley, “Shut the Province Down: First Nations Blockades in British Columbia, 1984-1995” (1996) 111 BC Studies 5.

[33] John Borrows, supra note 7.

[34] Ibid.

[35] Ibid.

[36] A.L. McCready, “The Neoliberal Appropriation of Redress in the anti-Native Backlash at Caledonia” (2009) 35 ESC 161.

[37] Vinit Haksar, supra note 8.

[38] Bryan D. Palmer, supra note 10.

[39] Marcus B. Lane & Michael Hibbard, supra note 27.

[40] Justice James MacPherson, supra note 3.

[41] Ibid.

[42] Anatole France, The Red Lily (1894).

[43] Department of Indian and Northern Affairs Canada, supra note 13.

[44] Bryan D. Palmer, supra note 10.

[45] Platinex v Kitchenuhmaykoosib, 2006 272 DLR (4th) 727, at para 72.

[46] Ibid, at para 75.

[47] Ibid, at para 79.

[48] Ibid, at para 80.

[49] David Peerla, No Means No: The Kitchenuhmaykoosib Inninuwug and the Fight for Indigenous Resource Sovereignty (Cognitariat Publishing: 2012).

[50] Ibid.

[51] Mining Act, RSO 1990 cM 14.

[52] Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation & AG Ontario 2007 CanLII 16637 (ONSC).

[53] David Peerla, supra note 49.

[54] Ibid.

[55] Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation, 2008 CanLII 11049 ONSC

[56] Frontenac Ventures Corp v Ardoch Algonquin First Nation, 2007 OJ No 3360 SCJ.

[57] Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation, 2008 CanLII 11049 ONSC, at para 4.

[58] Ibid at para 41.

[59] Ibid at para 44.

[60] Ibid at paras 51, 52.

[61] See A.L. McCready, supra note 36.

[62] Unsigned editorial, “The Ongoing Disgrace of Caledonia” (November 28, 2009) The National Post, as quoted in A.L. McCready, ibid.

[63] Russel L Barsh & James Y Henderson, “Marshalling the Rule of Law in Canada: Of Eels and Honour” (1999-2001) 11 Const. F. 1.

[64] Frontenac Ventures Corp v Ardoch Algonquin First Nation, 2008 ONCA 534; Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation, 2008 ONCA 533.

[65] Frontenac Ventures Corp v Ardoch Algonquin First Nation, 2008 ONCA 534 at para 41.

[66] Ibid at para 45, 46.

[67] Ibid at para 48.

[68] R v Gladue, 1999 1 SCR 688.

[69] Frontenac Ventures Corp v Ardoch Algonquin First Nation, at para 54.

[70] Ibid at para 51-53.

[71] Ibid at para 57-58.

[72] Mining Act, RSO 1990, cM 14.

[73] Frontenac Ventures Corp v Ardoch Algonquin First Nation, at para 60.

[74] Ibid at para 62.

[75] Ibid at para 63.

[76] John Burrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press: 2010).

[77] Ibid.

[78] Ibid.

[79] Vinit Haksar, supra note 8.

[80] Leslie Green, “Civil Disobedience and Academic Freedom” (2003) 41 Osgoode Hall LJ 381.

[81] For example, Platinex Inc v Kitchenuhmaykoosib First Nation, 2007 3 CNLR 181, at para 170.

[82] Andrew J. Orkin, “When the law breaks down: Aboriginal peoples in Canada and governmental defiance of the rule of law” (2003) 41 Osgoode Hall LJ 445.

[83] Justice Sidney B. Linden, supra note 31.

[84] As described in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 3 SCR 3.

[85] John Burrows, supra note 7.

[86] Robert Gibson, “Sustainability assessment and conflict resolution: Reaching agreement to proceed with the Voisey’s Bay nickel mine” (2006) 14 J of Cleaner Production 334.

[87] Andrea Schmidt, supra note 6.

[88] Martin Lukas, “New Brunswick fracking protests are the frontline of a democratic fight” (October 21, 2013) The Guardian <http://www.theguardian.com/environment/2013/oct/21/new-brunswick-fracking-protests>.

[89] CBC News, “Alward government defends record on shale consultation” (October 23, 2013): <http://www.cbc.ca/news/canada/new-brunswick/alward-government-defends-record-on-shale-consultation-1.2186465>.

[90] See, for example: Michael McClurg, “Do we need the rule of law in New Brunswick to deal with native protestors?” (October 23, 2013) Blog post: <http://www.oktlaw.com/blog/do-we-need-the-rule-of-law-in-new-brunswick-to-deal-with-native-protestors/>.

[91] SWN Resources Canada Inc v Claire, 2013 NBQB 328.