Taking Indigenous Property Rights Seriously

September 27, 2021

By Brian Babcock

Courts typically make injunctions to protect property rights available more easily than injunctions in other situations, such as breach of contract, or labour disputes, because “property rights are sacrosanct”.

A different attitude appears to apply when it comes to efforts by First Nations or Indigenous groups to protect traditional property rights.

This was apparent in the fight over the Coastal Gaslink project. It does not grow respect for the effectiveness of the legal system when ultimately the solution was political and favoured traditional rights – a result the court failed to achieve.

This was a significant missed opportunity to truly address Indigenous rights in the interlocutory injunction context. Despite the decision’s extensive recitation of the historical position of the Wet’suweten people, I suggest that there is no true weighing of their interests, and that the decision reflects the typical failure of the courts in addressing Indigenous rights, preferring to maintain the typical legal principle that “property rights are sacrosanct” – “property rights” meaning those granted under the settlor government’s system, not traditional rights.

It is just too simple to say that the “significant constitutional questions” posed by the Wet’suweten people  “must be determined at trial”, when the essence of an injunction is that there is almost never a trial – an axiom of injunction law is that it almost always forces a resolution without trial. When will those significant questions ever be determined? The lands in dispute were the same lands considered in the Delgamuuk decision 25 years prior, which recognized that traditional rights existed, and directed that the nature of those rights be determined by negotiation or further litigation. It does not speak well to the effectiveness of the legal system that the claims remain unresolved.

Similar issues arise in later cases involving Caledonia: see for example Foxgate Developments Inc. v. Doe et al. In that case, Indigenous protests did eventually succeed in defeating the development, but these extra-legal measure promote confrontation rather than reconciliation, and once more, does nothing to make the court system look like an effective tool to promote reconciliation.

This trend continues in the Manitoba Court of Appeal case of Interlake Reserves Tribal Council Inc et al v Government of Manitoba. In that case, the Tribal Council had obtained an injunction to delay construction of a flood management project pending judicial review of three administrative decisions facilitating the project. The Council’s position was that the government had failed to adequately consult or provide effective notice.

The Court of Appeal reversed that order, removing the injunction, on the basis that:

  • the judge was wrong in his assessment as to whether the Indigenous interests represented by the Council would suffer “irreparable harm” as required to issue an injunction, and
  • did not adequately consider the “balance of convenience” stage of the test. The appeal court then made their own ruling that the balance favoured the project proceeding. The risk to the broader public of flooding was considered to be of greater importance than the harms to Indigenous rights. In doing so, the appeal court does not even describe the nature of the anticipated harm to those rights, placing all their attention on the flooding. As in Coastal Gaslink, Indigenous rights were given lip service.

Because of the second point, the Court of Appeal decided not to fully address “irreparable harm”. That is problematic. If “property rights are sacrosanct”, and the project may impair the Indigenous property rights, why is this harm not “irreparable”? In cases involving disputes over commercial properties, courts often skip over the “irreparable harm” step, because hit is presumed that interference with property rights is irreparable. Why should it be different in cases of Indigenous rights? Once the land is cleared, it cannot be restored to its prior condition. Money damages would be inadequate compensation for the cultural impact of this action. That seems to meet even the traditional test of irreparable harm.

The Manitoba court distinguishes this case from two earlier Ontario cases, where Indigenous rights were protected. Those cases date back to 2006 (Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation) and 2011 (Wahgoshig First Nation v Ontario) on the basis that in those cases, the lack of adequate consultation was obvious, whereas in the Manitoba case, that issue was highly contested. This really addresses the first step of the injunction test – a “serious issue to be tried”, rather than irreparable harm. The court simply side steps the harm to Indigenous interests.

Our firm represents both Indigenous interests and commercial interests in various cases. We recognize that there are no simple answers to the difficult conflicts that arise when those interests conflict. Negotiation and co-operation remain the best paths to resolve the issues in a spirit of reconciliation. Although Platinex and Wahgoshig remain examples of a balanced approach, we are not confident that the courts have demonstrated enough willingness to treat Indigenous property rights with the same respect as commercial property rights. This is unfortunate, and a situation that we hope can be corrected, so that all parties can develop confidence in the legal system as a means for reconciliation rather than confrontation. In the long run, that is better for everybody involved.