'The Legal Billy Club': First Nations, Injunctions, and the Public Interest

Abstract

This article centers on the profound discrepancy between efforts by First Nations to obtain injunctions against industry and the state versus the far more successful record of corporations and governments seeking to obtain injunctions against First Nations. We examine how the common law test for injunctions in struggles over lands and resources leads to these results. We begin with the history of injunctions in the Aboriginal law context, especially the development of s. 35(1) jurisprudence which ironically deprived First Nations of access to injunctions, despite an earlier period of successful defence of Indigenous land rights using this legal tool. We then focus on the doctrinal and political function of the “public interest” consideration in injunction cases, locating this concept within a broader political economy framework. Finally, we turn to the origins of the injunction as an equitable remedy and argue that the current imbalance in injunction success rates ought to be understood though a re-examination of equity within a broader historical trajectory of settler-colonial legality. We conclude that the heavy lifting done by notions of ‘public interest’ both relies on and obscures the circumvention and exclusion of Aboriginal treaty and constitutional rights from the law of injunctions and constitutes a de facto resolution of Aboriginal land rights in Canada. Finally, we ask what place, if any, exists in injunction jurisprudence for Indigenous law and governance.

Keywords: Injunctions, Aboriginal Law, Indigenous Law, Equity, Political Economy, Property Law