On Sept. 28, a court injunction in British Columbia was momentously struck down by a B.C. Supreme Court judge, when Justice Douglas Thompson ruled the Fairy Creek injunction — against protesters protecting old-growth forests — was bringing the court itself into disrepute. Yet in other B.C. courtrooms over recent months, denigration of Indigenous cultures and lives through injunctions has been on full display.
According to 2021 amendments to the Canadian Judicial Council’s Ethical Principles, judges are expected to be “alert to” and respectful of the histories and cultures of Indigenous peoples. This message seems to have been brushed aside in the B.C. Supreme Court in cases concerning the Trans Mountain pipeline expansion (TMX). As such, efforts are now being made to assemble resources for appealing recent rulings and ongoing proceedings relating to Indigenous land and water protectors on the territory of the Tsleil-Waututh Nation and on Secwepemc land.
While heavily impacted Indigenous Nations have been continuously opposing TMX on their never-surrendered lands, courts have been using “injunctions” — measures that purport to promote the integrity of the court itself — as tools for stopping protest, sidelining Indigenous jurisdiction, and subordinating all aspects of Indigenous culture to blatantly extractivist agendas, all the while in a code-red climate state of emergency.
As I write this on Sept. 29, Will George, a member of the Tsleil-Waututh Nation, is being prosecuted in a court presided by B.C. Supreme Court Justice Shelly Fitzpatrick. This same judge refused to take judicial notice in trials of other Indigenous elders that these pipeline-building activities occur on unceded Indigenous land, also making comments that many in the courtroom gallery felt were aggressively belittling Indigenous ceremony.
Using this same injunction, judicial violence against Indigenous land defenders was also vivid on June 7, when the same judge sentenced Indigenous elder Jim Leyden to 45 days in jail for a 20-minute Indigenous pipe ceremony in a crosswalk outside the TMX facility in Burnaby.
Leyden, a 68-year-old survivor of the Sixties Scoop — in which many children were forcibly taken from their families by the child welfare system — had been charged after TMX video surveillance showed him joining a group of people for a sacred (chanupa) pipe ceremony before peacefully leaving the area. No arrests occurred and police actually joined the ceremony, yet B.C.’s Crown prosecutors chose to work with TMX to prosecute and persecute Leyden nonetheless.
Despite medical conditions, in the midst of the COVID-19 pandemic, and the obvious desirability to avoid again forcibly taking this elder from his community, Justice Fitzpatrick's sentence rejected requests for considering house arrest.
She further prohibited him from coming within 500 metres of any TMX facility, including attending the Indigenous Watch House on Burnaby Mountain. Coast Salish communities traditionally build Watch Houses to protect communities and to watch for enemies or dangers. In addition to upholding spiritual responsibilities, which includes ensuring peaceful interactions, the community around the Watch House also uses photography to hold TMX accountable when it violates laws and regulations, as recorded on numerous occasions in recent months.
While the defence made clear Leyden holds a spiritual role at the Watch House, the judge dismissed his activities as an elder as “indulgences.” This word has long carried racist undertones, used by the colonizers to delegitimize cultural practices. People at the courthouse tried to process the disturbing words, which eerily echoed the language of Duncan Campbell Scott, one of the most infamous proponents of the residential school system. A few years ago, a 1921 letter went viral online, in which, writing as deputy superintendent of the Department of Indian Affairs, Scott instructed department staff to “dissuade the Indians from the excessive indulgence in the practice of dancing.”
Canadian laws require judges to consider alternatives to incarceration in these circumstances, and directives in recent months indeed encourage such alternatives, particularly for non-violent crimes during the COVID pandemic.
The judge, however, made clear she wanted to send a message to people across B.C. — and, in a conspicuously insensitive manner, actually singled out those from the Kamloops region in the same week that mass graves of residential school children were uncovered in Kamloops — that increasingly severe jail penalties will come to them if they attempt to interfere with pipeline expansion.
Since March 2018, more than 200 people have been arrested for breaching the TMX injunction, with the explicit targeting of Indigenous people by the RCMP and Crown prosecutors, even amid the increased awareness of institutionalized police racism and anti-Indigenous violence in Canada.
Opinion: While heavily impacted #FirstNations have been continuously opposing TMX on their never-surrendered lands, courts have been using “injunctions” as tools for stopping protests, writes @SamuelJSpiegel #FairyCreek #TRC #cdnpoli #bcpoli
The disjoint between Canada's discursive commitments to the UN Declaration on the Rights of Indigenous Peoples as well the Truth and Reconciliation Commission on one hand, and the activities of Canadian judiciary officials on the other, could not be more stark. As Métis author and visual artist Christi Belcourt voiced in an online post: “Canadians need to connect the dots between residential schools and resource extraction. Between child welfare and resource extraction. Between MMIWG2S (Missing and Murdered Indigenous Women, Girls, and Two-Spirit People) and resource extraction. It’s always been about the land.”
Judges have discretionary and inherent jurisdiction that can be used to heal or further harm Indigenous peoples. Yet, as Leyden told the court, “In this trial, as in earlier ones, I saw no meaningful effort to understand the Indigenous issues underlying my actions or defence … I prayed that this court could see past the inherent racism, which is intertwined with the targeted, selective arrest and prosecution I faced for conducting my chanupa ceremony and fulfilling my role as a traditional watchman.”
More broadly, critical conversations are now needed on how to halt judges from using and abusing injunctions to sideline and disrespect Indigenous laws, traditions, and cultures.
Samuel J. Spiegel grew up in Winnipeg and is a faculty member at the University of Edinburgh, where he teaches on displacement and injustice.