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New court ruling on injunctions severely limits protection for blockaders

Who has the authority on reservations to protest land development? According to a recent decision by the Supreme Court of Canada, only the band council does.

Who has the authority on reservations to protest land development? According to a recent decision by the Supreme Court of Canada, only the band council does.

In Behn v. Moulton Contracting Ltd., a case heard in May of this year, a logging company defended their right to gain access to Fort Nelson First Nation forests against the protests from members of the small British Columbia reserve.

The Behn family had erected a camp to stop Moulton Contracting Ltd. from logging on their traditional lands. The company brought an action against these individuals to remove them. The Behns argued that the licenses the province issued were void since they breached the duty to consult as well as their treaty rights.

Lower court decisions found that individual members of a band have no legal standing to assert collective rights in their defense. Only “the community” – defined as the chief and council – could invoke such rights.

The Supreme Court of Canada upheld these lower court decisions, concurring that the Behn family should have challenged the provincially issued licenses when they were first obtained.Due to this timing failure, the family’s decision to blockade was deemed “a collateral attack or an abuse of process.”

The Behndecision raises many important questions about the court’s jurisdiction to allocate these powers of authority on the reserve.

Firstly, it presumes that the chief and council are the final arbitrators of all decisions on the reserve and that they represent internal unanimity on all contentious matters.

Secondly, demanding the Behn family must contest the licenses at the time they are issued presumes that the chief and council have necessarily communicatedthe details of each development proposal to the community.

Thirdly, blockades – strategic exercises of Indigenous jurisdiction – are reduced here to what the court calls “self-help remedies” that “bring the administration of justice into disrepute.” This derogatory labeling demeans frontline actions that seek to protect the environment and keep Indigenous cultural and political orders intact.

Fourthly, many Indigenous societies are organized throughland tenure systems where responsibilities inhere to particular families on specific land bases. It is their legal obligation to protect these lands, despite what band council authorities might assert.

The Behn Decision also reveals the racism of the courts regarding life on reserve. Could we imagine a parallel case of Torontonians fined for protesting activities on their blocks under the rubric that their Mayor supported them?

In the mid- to late-1980s, injunctions filed by First Nations and tribal councils in British Columbia successfully ground much resource extraction to a halt. Take for example the blockades set up by the Clayoquot and Ahousat First Nations that saved Meares Island from being clear-cut through their injunction against Macmillan Bloedel.

But as ongoing events at Elsipogtog highlight, this legal tool is being drained of its potential to defend Indigenous land in emergency situations and is being leveraged instead as another form of jurisdictional imposition on Indigenous lands.

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  • Craig_Hubley
    December 11, 2013, 2:53 pm

    Key phrases:

    “on reservations” – can’t see how this would apply to all those millions of people that, according to prior rulings, are “Indians” in the sense of the Indian Act, if not in the sense of the Canadian constitution.
    http://www.thestar.com/news/canada/2013/01/08/federal_court_ruling_metis_and_nonstatus_indians_are_indians.html

    The argument that “licenses the province issued were void since they breached the duty to consult as well as their treaty rights” may still be valid even when made by an on-reserve group in opposition to Band Council that is a party to the licenses or contracts, *as long as it is made early enough*. Seems the Supreme Court stuck to the timing argument in its finding: “concurring that the Behn family should have challenged the provincially issued licenses when they were first obtained.” If it was only “Due to this timing failure, the family’s decision to blockade was deemed “a collateral attack or an abuse of process,” then the issue is the lateness not the lack of standing.

    Still “the Supreme Court of Canada upheld these lower court decisions” which “found that individual members of a band have no legal standing to assert collective rights in their defense. Only “the community” – defined as the chief and council – could invoke such rights.” That seems to imply that the Canadian constitution of 1981 only grants this “duty to consult” to entities legally recognized as of 1981 and to “status Indians”. And it seems to ignore treaty rights altogether. Not clear at all.

    I agree that “demanding the Behn family must contest the licenses at the time they are issued presumes that the chief and council have necessarily communicated the details of each development proposal to the community.” Yet, this is what is usually presumed about other local government decisions.

    The Supreme Court of Canada discredits itself however by reducing blockades strategic exercises of Indigenous jurisdiction –to what the court calls “self-help remedies” that “bring the administration of justice into disrepute.” When in fact the administration of justice is already in dispute, for whatever reason, before blockades can even be organized.

    I do not know how the Harper appointees voted but I can guess.

    This ruling discredits Canadian law entirely as an instrument for asserting treaty law. It would appear that international law and vigilante action to uphold treaties remain the major recourses, and that Canadian jurisdiction should generally be denied and opposed militarily in all cases where the Band Council has been bought.

    REPLY
    • Garry Horsnell@Craig_Hubley
      December 11, 2013, 8:35 pm

      I guess one has to ask who the treaties were with. When the chiefs, headmen and leaders of the Indian bands of the time made the treaties with the Crown, shouldn’t the chiefs and leaders now of the bands be the ones to challenge if they think a treaty is being broken?

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  • Garry Horsnell
    December 4, 2013, 9:32 pm

    In Treaty 8, it says the following “And the undersigned Cree, Beaver, Chipewyan and other Indian Chiefs and Headmen, on their own behalf and on behalf of all the Indians whom they represent, DO HEREBY SOLEMNLY PROMISE and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen”.

    So they agreed by treaty to be loyal subjects of the Queen (the Crown).

    Now that is interesting because, in the 1701 Albany (Nanfan) Treaty people of the Six Nations of the Grand River say is valid, it says the following.

    “wee having subjected ourselves and lands on this side of Cadarachqui lake wholy to the Crown of England”

    “wee have lived peaceably and quietly with the people of Albany our fellow subjects”

    So,, it seems the Five (later Six) Nations Haudenosaunee thought they were subjects of the Crown as early as 1701.

    So, do they still think the 1701 Albany (Nanfan) Treaty is valid?

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    • SolarKarl@Garry Horsnell
      December 4, 2013, 11:13 pm

      I appreciate your input on this forum and thank you for your opinion Mr. Horsnell. I think you are making the mistake of taking the treaties only in a literal English context. When contract law comes under scrutiny the circumstances under which contracts were signed are considered. The literal English translations have been proven in Canadian courts (not ratified by any First Nations that I am aware of) to have been manipulative and the product of coercion in terms of the numbered treaties. One cannot really sign a contract that they don’t understand the terms to or if they are under duress.
      This ties into my point about the Haudenosaunee agreements/contracts/treaties/declarations, etc. If you factor in the mind set of both parties at the time of all treaties subsequent to the Kaswenta, including the treaty of Albany and the Haldimand Proclamation it is my understanding that Haudenosaunee leaders were working under the premise that both parties had the interests of peace, power and a good mind at heart. Time has shown that the Haudenosaunee to this day have attempted to honour their end of these agreements. The many, many, many settler and colonial seeded governments that have claimed the land have an opportunity to continue to benefit from these agreements in principle by honoring their obligations to the First Nations. They can help facilitate hunts, for example, to continue to try to get back to the spirit of peace, power and a good mind that were supposed to be the foundations. That is where I think I disagree with your literal interpretation of these agreements. Across Canada, First Nations leaders, most of whom are female, never really ratified these agreements, but since most leadership from both colonial leadership and First Nations aims for peace and civility, the best thing would be to find a way to honour past agreements and continue to find a way to co-exist. The line in the sand, in modern times, seems to be the environment. Even Canada’s own laws have given legal stewardship of Mother Earth to be subject to the input of The inherent protectors of the land. This court ruling makes the common error of forsaking the spirit of the agreement for an unfair literal interpretation of the agreement. Karl Dockstader.

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      • Garry Horsnell@SolarKarl
        December 5, 2013, 5:13 am

        Mr. Dockstader;

        I must respectfully disagree with your premises about treaties.

        After the British defeated the French in the French and Indian War between 1754 and 1763, they made the Treaty of Paris in 1763. Having just been defeated in a horrible war, one could argue the French were under pressure and duress but nobody says that treaty is invalid.

        American rebels defeated the British during the American Revolution. After that war they made the Treaty of Paris in 1783. Having been just been defeated in a long, terrible war, one could argue the British were under pressure and duress but nobody says that treaty is invalid.

        When the Five (later Six) Nations Haudeosaunee made the Albany (Nanfan) Treaty with the Crown in 1701, the Haudenosaunee were not under pressure or duress. In fact, they were friendly with and were allies of the British.

        When Quebec Governor Haldimand bought the land along the Grand River from the Ojibwa Mississauga Indians on May 22, 1784, they were not under pressure or duress when they agreed to sell and cede that land to the British Crown.

        In fact, Mohawk leader Joseph Brant and Six Nations chiefs were present at that meeting. Brant could read, write and speak English and he and the Six Nations chiefs agreed with the sale.

        When Governor Haldimand issued his announcement on October 25, 1784 inviting Mohawks and other of the Six Nations to enter, occupy use the Crown’s land along the Grand River. The British were friendly with the Haudenosaunnee.

        When, later. Joseph Brant and various groups of Six Nations chiefs surrendered use of various parcels of the Crown’s land back to the Crown for sale, many of the leaders like Brant, John Smoke Johnson, etc. could read, write and speak English very well. They often wrote letters and petitions in English to the Crown representatives.

        When the Indians made the numbered treaties 1 to 11 across western Canada to cede land to the Crown, they weren’t at war with the British. In fact, they had been trading with the British in Hudsons Bay Company for about 200 years since 1670 and I have a feeling many had gone to mission schools and could speak and read English to trade with the English

        The Indian chiefs negotiated the numbered treaties with the British and there were interpreters present who were Indian or Metis if the chiefs needed them and to go over the treaties with the chiefs. I don’t really see that the Indian chiefs and headmen were under pressure and duress to make those treaties.

        I think to suggest the Indians made the numbered treaties under pressure and duress is going a bit too far.

        REPLY
  • Jonathan Garlow
    December 4, 2013, 5:29 pm

    Treaty (noun) 1. a formally concluded and ratified agreement between states. The numbered treaties are a hoax because the two parties “Indians” and “Canada” are both fictitious entities. We might as well have a treaty between Elves and Neverland. Additionally, the Gradual Civilization Act (Indian Act) was being phased in around this time which suggests Canada viewed “Indians” under their authority and jurisdiction. Specific nations would need to be addressed by a legitimate country such as England or the Netherlands, not a Province or Colony which Canada was at that time because they did not (and still do not) possess a constitution, land base or have a language or culture. Un-ratified and un-ratifiable.

    REPLY
    • Garry Horsnell@Jonathan Garlow
      December 4, 2013, 9:05 pm

      If the “treaties are a hoax” then why do Indians keep saying the Canadian federal government (the Big Crown) should live up to and abide by the treaties the Crown made with Indians?

      Why do Indian chiefs keep saying the Canadian federal government (the Big Crown) should meet and discuss the treaties nation to nation?

      Why do Indians keep referring to sections 25 and 35 that mention treaties in the Canadian constitution?

      Why does the Canadian federal government (the big Crown) keep sending annuities to Indian bands according to conditions in the treaties?

      Why do people from the Six Nations of the Grand River list many treaties between the Crown and the Six Nations on its website?

      Why do people from the Six Nations of the Grand River think the 1701 Albany (Nanfan) Treaty is valid and affords them hunting rights in what is now southwestern Ontario?

      Why do people from the Six Nations of the Grand River keep calling the October 25, 1784 Haldimand announcement (instrument, document) a treaty?

      REPLY
      • Pentortoise@Garry Horsnell
        December 5, 2013, 9:00 am

        How many people have said these things Garry, youre saying ALL the Chiefs keep saying these things, Who are these chiefs, ALL of them? What Treaties?

        The misinformed media calls them treaties, they are deeds, a log of an event, a proof of registration.

        But far from a treaty, Who says that it is I want Names and Offices.

        REPLY
  • Garry Horsnell
    December 4, 2013, 2:01 pm

    The Fort Nelson Indian Band is in British Columbia under Treaty 8.

    The Crown made Treaty 8 with the Indians in 1899. In that treaty, the Indians ceded land outside of Indian reserves to the Crown. The Indians now call the land they ceded to the Crown their “traditional lands” but it is now the Crown’s land.

    Here are some excerpts from the articles of Treaty 8.

    1) “AND WHEREAS, the said Commissioners have proceeded to negotiate a treaty with the Cree, Beaver, Chipewyan and other Indians, inhabiting the district hereinafter defined and described, and the same has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands” the Indians ceded to the Crown.

    Notice the Indians gave up “all their rights, titles and privileges whatsoever, to the lands” the Indians ceded to the Crown.

    2) “And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes”

    So the Indian bands were given fair warning about limits to hunting, trapping and fishing outside of reserves.

    3) “And the undersigned Cree, Beaver, Chipewyan and other Indian Chiefs and Headmen, on their own behalf and on behalf of all the Indians whom they represent, DO HEREBY SOLEMNLY PROMISE and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen”.

    4) THEY PROMISE AND ENGAGE that they will, in all respects, obey and abide by the law; that they will maintain peace between each other, and between themselves and other tribes of Indians, and between themselves and others of Her Majesty’s subjects, whether Indians, half-breeds or whites, this year inhabiting and hereafter to inhabit any part of the said ceded territory; and that they will not molest the person or property of any inhabitant of such ceded tract, or of any other district or country, or interfere with or trouble any person passing or travelling through the said tract or any part thereof, and that they will assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this Treaty or infringing the law in force in the country so ceded”.

    Indians keep saying the Crown should abide by the treaties but how come the Fort Nelson First Nation is not abiding by Treaty 8?

    REPLY
    • Jonathan Garlow@Garry Horsnell
      December 4, 2013, 5:31 pm

      Treaty (noun) 1. a formally concluded and ratified agreement between states. The numbered treaties are a hoax because the two parties “Indians” and “Canada” are both fictitious entities. We might as well have a treaty between Elves and Neverland. Additionally, the Gradual Civilization Act (Indian Act) was being phased in around this time which suggests Canada viewed “Indians” under their authority and jurisdiction. This raises another excellent question, why would Canada make treaties with its own citizens? Specific nations would need to be addressed by a legitimate country such as England or the Netherlands, not a Province or Colony which Canada was at that time because they did not (and still do not) possess a constitution, land base or have a language or culture. Un-ratified and un-ratifiable.

      REPLY
      • Garry Horsnell@Jonathan Garlow
        December 4, 2013, 9:14 pm

        In 1960, the Canadian federal government granted Indians the right to vote in Canadian elections without having to give up their Indian status and/or treaty rights.

        By Canadian law, one must be a Canadian citizen to vote in Canadian elections so Indians automatically became Canadian citizens in 1960 with the right to vote without losing Indian status.

        So Indians were not citizens when the treaties were made.

        REPLY
        • Tsi Nikayen Enonhne@Garry Horsnell
          December 5, 2013, 6:52 am

          @garryhorsnell:disqus That is a fallacy argument – circular reasoning – which has no validity.

          The only ways that nations of people can become citizens of another country is through voluntary acceptance of citizenship or through conquest and submission. In the entire history of Rotinosoni – Great Britain relations at no time have we ever accepted or capitulated to the British Empire.

          If fact this is the understanding ofthe Crown of Canada also when in June 2010 Queen Elizabeth II gifted the Mohawks with 16 silver handbells in commemoration Covenant Chain recognizing 300 years of friendship and peace between our two nations. When the head of state recognizes our sovereignty as QE did in 2010 then there is no doubt that we are still viewed as “not Canadian”.

          As far as voting goes it is not necessary in any context to be a citizen of a country IF (as Canada did) that vote is extended to foreign nationals of other countries. Just as Canadian coporations are supposed to be run by Canadian directors, that is not the caseand Americans regularly control our corporations through dual citizens and American nationals.

          As usual, your “facts” are devoid of truth and accuracy, since you come from a biased and detached perspective of Canadian history.

          REPLY
        • Garry Horsnell@Tsi Nikayen Enonhne
          December 5, 2013, 9:14 am

          This is from Elections Canada.

          Who is eligible to vote in the federal election and referendums?

          You may vote in this federal election if you: are a Canadian citizen will be 18 or older on election day: are registered to vote

          This from Elections Ontario

          Who Can Vote?

          Anyone who is: 18 or older on polling day, and A Canadian citizen, and A resident of the electoral district.

          This about municipal elections in Ontario.

          Who can vote in the elections?
          Anyone can vote in a municipal election who, on the day of the election, is: 18 years of age or older a Canadian citizen; and either a resident of the municipality or a property owner or tenant or the spouse or same sex partner of an owner or tenant in the municipality during a specified time just before the election.

          To be able to vote, your name must be on the list of eligible voters.

          So one must be a Canadian citizen to vote in Canadian federal, provincial or municipal elections.

          It wouldn’t make sense to allow people from another County like the U.S.A., for example, to vote in Canada because they could overwhelm the system and out-vote Canadians if foreigners wished.

          REPLY
        • Pentortoise@Garry Horsnell
          December 5, 2013, 9:18 am

          yes we are In there system Eligible, but Although we have NO CONTRACT with these corporations we are Billed the same as those Who do,

          We are being Taxed and fined or brought to Trial with no way to Have Lawful representation or Peers on the canadian system as Onkwehonwe

          Simply its slavery, and perpetuated by the need for “Equality”

          Where is the property….lol on contested lands..lol

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        • Tsi Nikayen Enonhne@Garry Horsnell
          December 6, 2013, 7:03 am

          We’re not Canadians unless we choose to be. As such most of us to not vote or pay taxes to your country. I own my house and land in Southern Ontario – which is still our unceded territory. But land ownership is not a sign of citizenship anyway, since many Americans own land in Canada.

          You argument is a fallacy and you can’t define citizenship using the Canadian rules around it. It is circular reasoning at best. Citizens must be part of the country protected by the laws and constitution of Canada. The Constitution for the most part exempts us from impositions of other parts of the consistution and so it protects our sovereign interests.

          Then we have the point about Queen Elizabeht recognizing our sovereignty through the Covenant Chain. You lose.

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        • Garry Horsnell@Tsi Nikayen Enonhne
          December 6, 2013, 7:58 am

          Well, think about this.

          Chiefs from Five (later Six) Nations Haudenosaunee Confederacy surrendered and ceded land in what is now the U.S.A. and in what is now the southwestern Ontario to the British Crown according to the 1701 Albany (Nanfan) Treaty and “for ever quit claime” to that land according to that treaty.

          Six Nations people are now living on that Crown land in the Crown’s vessel so to speak.

          In the 1763 Royal Proclamation, King George III (the Crown) of Britain defined Indian Territory in North America, reserved “Sovereignty, Protection and Dominion” over that Indian Territory, told non natives to vacate Indian Territory and told natives they should only dispose of land to the Crown.

          Basically, the Crown took over Indian Territory (i.e. sovereignty and Dominion).and set rules for Indians in that territory.

          And Indian bands, including the Six Nations Haudenosaunee, agreed to the conditions and the Crown’s rules in the 1763 Royal Proclamation at a meeting when they signed the Treaty of Fort Niagara in 1764.

          If the Indians are sovereign, why did they agree to follow the Crown’s rules for disposing of their land?

          Later, many Indian bands made treaties with the British Crown to sell and cede land to the Crown. In those treaties, the Indians gave up “all right and title” to the land they ceded to the Crown and that land became the Crown’s land and I don’t think the Supreme Court of Canada has said otherwise.

          And who says you or any other Indian today or anyone else knows what the thoughts and intentions were of the Indian chiefs and headmen who made the treaties with the Crown?

          Your claim is simply conjecture.

          REPLY
        • Pentortoise@Garry Horsnell
          December 5, 2013, 8:33 am

          There are municipal Qualification to be an elect or to be eligible to vote, First Qualification, You Must BE A Canadian Citizen.

          Same for Jury Duty.

          REPLY
        • Pentortoise@Pentortoise
          December 5, 2013, 8:38 am

          So your saying the moahwk have treaties with Canada, How about a Extradition treaty, Or a legal Mutual Assistance treaty??? How about a peace treaty?

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        • Garry Horsnell@Pentortoise
          December 5, 2013, 8:52 am

          How about the 1701 Albany (Nanfan) Treaty, that says “wee having subjected ourselves and lands on this side of Cadarachqui lake wholy to the Crown of England” and on which Five Nations chiefs including Mohawk chiefs signed (placed their totems), are you saying that treaty is not valid?

          REPLY
        • Pentortoise@Garry Horsnell
          December 5, 2013, 9:07 am

          Can you find a mohawk version of that, Id like to see it and see if it can be translated for us to understand the words from then. Otherwise its to ambiguous to assume that our people had the time and knowledge to, ratify the agreements

          REPLY
        • Pentortoise@Pentortoise
          December 5, 2013, 9:10 am

          Plus I dont know if they are valid, from my understanding No its not valid be cause it is a conflict of the two row treaty. All lands west of the 13 colony line is off limits to British/crown forever

          REPLY
        • Garry Horsnell@Pentortoise
          December 5, 2013, 9:35 am

          Are you saying the Mohawk chiefs who signed (placed their totems) on the 1701 Albany (Nanfan) Treaty did not represent their people and that treaty is invalid and Six Nations people should not be using the 1701 Albany (Nanfan) Treaty to justify hunting outside of the Six Nations of the Grand River reserve in places like Short Hills Provincial Park and other locations in southwestern Ontario and should not be using that treaty to stall or stop development along the Grand River or anywhere else in southwestern Ontario?

          REPLY
        • Pentortoise@Garry Horsnell
          December 5, 2013, 11:43 am

          they represented the people to the point where the law says they dont. And thats what a safeguard is.

          REPLY
        • Pentortoise@Pentortoise
          December 5, 2013, 11:45 am

          People have the divine right to use tha land for food no matter where fences may be, if there is a need for food then the fences are just secondary.

          REPLY
        • Tsi Nikayen' Enonhne'@Pentortoise
          December 6, 2013, 7:07 am

          The requirement for the proper interpretation of all treaties is to translate it into the original languages and then interpret it back. You’ll will find the meaning changes drastically usually in favour of the Indigenous signatories. Why? Because this represents the understanding they had at signing.

          REPLY

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