Indigenous leaders march on Jan. 8, 2019, in Vancouver, B.C. Rallies were held across Canada to show solidarity with Wet’suwet’en. Photo by Michael Ruffolo
But she was shocked after she and her fellow researchers began crunching numbers.
The team at Yellowhead Institute, an Indigenous-led think tank, reviewed nearly 100 injunction cases. They found corporations succeeded in 76 per cent of injunctions filed against First Nations, while First Nations were denied in 81 per cent of injunctions against corporations.
Similarly, First Nations were denied in 82 per cent of injunctions filed against the government.
The findings were published in a Yellowhead report, called Land Back.
“What we found was even more shocking than we could have imagined,” Pasternak said of what she called “astronomically high” numbers for corporations and governments and “absolutely dismal success” for First Nations.
A small team of researchers at Yellowhead pored through cases across the country, set research parameters (for example, they focused on First Nations instead of Inuit and Métis) and variables and had 10 people conduct a peer review on the methodology.
They concluded the data shows that the court system is skewed toward seeing value and harm in economic terms opposed to Indigenous people asserting their rights and their laws.
“It was a very weird feeling to discover that. On the one hand, I felt vindicated that we had spent so much time on it,” Pasternak said. “And on the other hand, within a moment, I felt so depressed just thinking about how this mechanism had so unlawfully removed people from protecting their own land.”
How an injunction works
Filing an injunction is a very expedited process — so there is not much time to present the courts with extensive or complex evidence.
A party may file an injunction one afternoon and have a hearing the next day, said Sean Sutherland, an associate at Osler, Hoskin and Harcourt LLP in Calgary. The firm has represented Kinder Morgan and Enbridge, as well as renewable-energy companies and companies in other industries.
Injunctions are mostly done by affidavits and are meant to provide temporary relief in a matter of urgency. The party filing for the injunction must prove they cannot wait until a hearing for resolution.
Sutherland explained there are three tests in an injunction: whether it’s a serious issue; whether it may cause irreparable harm; and the “balance of convenience,” which means the court decides whether the party wanting the injunction or the party resisting faces the bigger risk of suffering harm.
He emphasized how the harm must be irreparable, and many injunctions are lost in court at that test.
“You can have very significant harm in terms of magnitude, but it’s still not irreparable,” he said, in which case the courts say the decision can wait for a final hearing. MORE