Unpacking the Coastal GasLink injunction and its omissions

On February 10, after the RCMP arrested six land defenders, workers dismantle the gate to the Unist’ot’en camp, painted with the word “Reconciliation.” Image via @UnistotenCamp/Twitter

Can a company sue for financial damages, if that company’s operations depend on theft of land?

You may think this question would arise in the dispute over the Coastal GasLink pipeline through Wet’suwet’en Yinta (territory). But the pipeline company effectively avoided the question of stolen land altogether as a judge considered the matter then sided with the company, granting them injunctions in December 2018 and December 2019. These injunctions gave the RCMP the go-ahead to raid the territory and drag Wet’suwet’en people off their own land, to ensure construction of the pipeline would not be further delayed. 

How did this happen? What is the process for getting injunctions, and what rationale did the judge use to grant them?

The origin of the injunctions: a CGL lawsuit seeking financial damages

The Coastal GasLink (CGL) pipeline, as proposed, is a critical component of the largest liquid natural gas (LNG) project in Canadian history. The pipeline would connect fracked gas extraction operations in northeastern B.C. and possibly Alberta to a to-be-constructed shipping terminal on the Pacific Coast near Kitimat, for export. 

Investors in the pipeline, which together act through the company LNG Canada, announced their intention to move forward with the project on October 1, 2018, and pre-construction activities – like setting up work camps – and construction activities began in January 2019, according to CGL

A section of land along the pipeline route is Wet’suwet’en Yinta. This land has never been ceded or surrendered to a colonial government like England, Canada, or British Columbia. (In Canada’s view, when an Indigenous nation signed a treaty, as is the case in much of the Prairies, they ceded their land. But Canada and pre-Confederation colonial authorities often deceived Indigenous leaders while pushing to get historic treaties signed, and Indigenous nations did not agree to surrender their lands.) Despite attempts by colonial powers to forcibly assimilate Indigenous people – including decades-long attempts to impose Canada’s Indian Act, which introduced reserves and elected band councils on those lands – the Wet’suwet’en maintain their traditional governance systems. This includes the nuanced leadership structure of the Hereditary Chiefs. While the Indian Act lays out band councils’ powers on reserve lands (now called First Nations) the Wet’suwet’en Hereditary Chiefs have continued to be responsible for what happens on the entirety of Wet’suwet’en territory.

This land has never been ceded or surrendered to a colonial government like England, Canada, or British Columbia.

The Hereditary Chiefs and other members of the Wet’suwet’en knew their territory was along a number of proposed pipeline routes, including the proposed-and-eventually-rejected Northern Gateway tar sands pipeline. They began re-occupying areas of their land around 10 years ago. On it, they built structures, like the healing centre at the Unist’ot’en camp. A consent-based system was established to allow entry to the territory. This sometimes meant denying access to pipeline company workers trying to enter by road, allowing access to loggers, or asking workers to leave when they arrived uninvited by helicopter.

When LNG Canada decided to go ahead with the pipeline project in fall 2018, with Coastal GasLink doing the construction, the actions of the Unist’ot’en camp were no secret. And CGL, which had consulted with the Wet’suwet’en Hereditary Chiefs starting in 2012 and sought their agreement, had been aware since 2014 that the chiefs did not consent to the project, as per decisions made at the Baht’lats (Feast Hall), the forum of Wet’suwet’en governance.

CGL, which had consulted with the Wet’suwet’en Hereditary Chiefs starting in 2012 and sought their agreement, had been aware since 2014 that the chiefs did not consent to the project.

Still, financial backer LNG Canada greenlit the project on October 1, 2018, and CGL filed a civil lawsuit soon after on November 23, 2018, suing two land defenders – Freda Huson and Warner Naziel – for financial damages and seeking an injunction so construction would not be delayed. Naziel holds the hereditary titles Toghestiy and Smogelgem. The lawsuit also applies generally to anyone interfering with construction.

The Yellowhead Institute, an Indigenous think tank, thoroughly analyzed CGL’s injunction application. “They did not name Unist’ot’en or Dark House or any of the other Wet’suwet’en house groups or clans that oppose the pipeline and whose territory is crossed by CGL’s pipeline. [...] By naming Freda and Smogelgem as individuals, CGL identifies them to the court as blockaders. They are represented as individuals whose actions are taken in opposition to an industrial project rather than as people protecting their Yintah, or territory.” The authors of the analysis point out 20 more parts of the application, “highlighting the specific strategies used to weaponize Canadian law over Indigenous law and rights, as well as the resulting financial and time disadvantage forced upon Indigenous communities defending their territories.”

A tale of two injunctions

There have been two main injunction requests considered in B.C. court. They resulted in an interim injunction in December 2018, and an interlocutory injunction in December 2019. 

It is worth noting that these injunction requests are not the full trial. The trial for the civil lawsuit CGL filed against Huson and Smogelgem has not been scheduled. At a trial, more substantive questions can be brought up, debated, and decided. Injunctions are meant to be temporary, lasting only until a trial can decide the issue in question. (The exception to this is when a permanent injunction is granted at a trial.) Pre-trial injunction requests are considered at a “chambers proceeding,” which is a “document-driven process” that is much more limited than a trial, Michael Lee Ross tells Briarpatch. Ross is one of the lawyers who represented the defendants against CGL. The chambers proceeding to decide on the injunction includes minimal oral debate, no witnesses speaking, and no cross-examinations, relying instead on written affidavits. 

The first injunction granted to CGL was an interim injunction, meaning an order made quickly and which is temporary, lasting only until a more thorough consideration can be made. CGL was granted an interim injunction by B.C. Supreme Court Justice Marguerite Church on December 14, 2018, just three weeks after the suit was filed. It was modified on December 21, 2018, to apply to a larger area after a new blockade was established under the direction of the Wet’suwet’en. 

The decision granting the interim injunction mentions nothing about the Wet’suwet’en territory being unceded, nor that the land issue had been considered at the Supreme Court of Canada. In the 1997 Delgamuukw decision, Canada’s highest court conceded that the Wet’suwet’en had never ceded their lands to Canada, and the Chief Justice suggested the question of title to the land be settled not through the courts, but through “negotiated settlements” between Canada and the First Nations. But that process, orchestrated on the settler side by the B.C. Treaty Commission, has had little success throughout the province.   

The decision granting the interim injunction mentions nothing about the Wet’suwet’en territory being unceded, nor that the land issue had been considered at the Supreme Court of Canada.

According to Justice Church, the interim injunction was granted to CGL in December 2018 because CGL would face “irreparable harm” if the project didn’t go ahead soon, due to construction delays and lost revenue. As for the defendants Huson and Smogelgem and anyone else blocking the project, which would include the Wet’suwet’en Hereditary Chiefs, Justice Church wrote, “I am persuaded that the impact on the defendants of granting an interim injunction in these circumstances will be relatively minimal.” This even though it meant violation of their law, as well as clearing of trees and trap lines, disruption of archeologically significant areas, construction of work camps, and more. 

On January 6, 2019, the day before enforcing the interim injunction, the RCMP put out a press release saying “it is our understanding that there has been no declaration of Aboriginal title in the Courts of Canada.” Briarpatch then asked the RCMP to provide evidence of an agreement with any Indigenous group in that area establishing Canadian title over those lands. The RCMP responded, saying parts of their press release were inappropriate, but did not produce any evidence of Canada’s claim to that land.

“In the early days of the colonization of what is now British Columbia,” write lawyers Kate Gunn and Bruce McIvor of First Peoples Law, “the British government was well aware that based on its own laws it was highly questionable that it had any right to occupy Indigenous lands or assign rights in those lands to individuals or companies. Nonetheless, beginning in the 1860s the colony of British Columbia began passing its own land laws and giving out property interests in Indigenous land without any established legal right to do so.”

This continues today. It is, in a word, theft.

The RCMP responded, saying parts of their press release were inappropriate, but did not produce any evidence of Canada’s claim to that land.

Following the colonial state’s logic, Justice Church completely avoided the issue of land title in the interim injunction. Instead, she assumed Canada and B.C. could unilaterally decide how the land is used. Prime minister Justin Trudeau, the week after the interim injunction was granted, called the project a “model of working with Indigenous communities, working with environmentalists, working with local communities.”

The interim injunction was the legal basis from which the RCMP acted on January 7, 2019: bringing heavily armed police, ready to use lethal force, they broke through a barricade on the territory of the Gidimt’en, one of the Wet’suwet’en clans, and arrested 14 land defenders.

CGL had originally asked not for an interim but an interlocutory injunction, meaning an injunction that would last until a trial decides the claims against Huson and Smogelgem in the civil lawsuit. Justice Church, however, granted CGL an interim injunction, meaning an injunction that would last only until the courts considered more evidence and could decide on whether or not to grant CGL an interlocutory injunction. 

Proceedings to consider the interlocutory injunction were held six months later, in June 2019. After those proceedings, Justice Church deliberated for six months, then granted the interlocutory injunction and enforcement order on December 31, 2019. Enforcing the interlocutory injunction, the RCMP began raiding Wet’suwet’en land defender camps again, before dawn on February 6, 2020.

If the interlocutory injunction lasts until a trial, when is the trial?

No date has been scheduled for a trial, where questions of who has title to the land or whether Wet’suwet’en law supersedes Canadian law, for example, could be explained, debated, and more thoroughly considered. CGL, for its part, has little incentive to go through with the trial quickly, or at all, seeing as it now has an injunction that grants its workers police protection during construction, until such a trial ends. And, according to Justice Church’s most recent decision, “there is no evidence that [the defendants] are in a position to pay the magnitude of damages which will result from delay or cancellation of the Pipeline Project.” CGL’s main aim in filing a civil suit seems to be to get an injunction, not to go to trial. 

In the case of the Trans Mountain pipeline expansion (TMX), a number of First Nations who did not give consent to the project decided to challenge the legitimacy of the approval process. That process is called a “judicial review,” which is also not a trial. They won that case in August 2018. However, that didn’t end the pipeline project. The pipeline proponents – in that case the government of Canada – supposedly improved their consultation process, after which TMX was re-approved. First Nations again brought forward a judicial review to overturn the approval, but they were unsuccessful. The pipeline’s regulatory approval was upheld as valid again earlier this month, on February 4, 2020, despite it not having consent from some First Nations. 

CGL’s main aim in filing a civil suit seems to be to get an injunction, not to go to trial. 

Wet’suwet’en Hereditary Chiefs are now launching a judicial review of the CGL project approval. This is essentially the same approach as the judicial reviews of TMX. A couple Chiefs are also launching a charter challenge (unrelated to Indigenous title) claiming that Canada has a duty to keep its greenhouse gas emissions down, which could lead to cancelling approved fossil fuel development projects. The effectiveness of these strategies remains to be seen. 

Each time they face legal challenges, pipeline proponents seem to get better at fulfilling the colonial state’s regulatory criteria. In the case of the Enbridge Line 9 pipeline, the Chippewa of the Thames First Nation appealed of the approval of that pipeline all the way to the Supreme Court of Canada, who then rejected the appeal. Crude oil is now flowing through that pipeline. This legal process relies on settler courts, which tend to be reluctant to set precedent in favour of Indigenous title to the land and the requirement of free, prior, and informed First Nations consent.

And while those cases are happening, according to Canadian law, CGL’s injunction against Huson, Smogelgem, and anyone else blocking the project will remain in effect.

So what’s in the interlocutory injunction decision, and what does it miss?

In considering the interlocutory injunction, Justice Church mentions issues of Wet’suwet’en title to the land – which were completely absent from her more rushed decision to grant the interim injunction – and also discusses Wet’suwet’en governance and law. 

On the question of land title – who has jurisdiction and (in the language of the colonial state) “ownership” over the land – Justice Church notes that “The Aboriginal title claims of the Wet’suwet’en remain outstanding and have not been resolved either by litigation or negotiation, despite the urging of the Supreme Court of Canada in Delgamuukw. It is apparent from their affidavit materials and submissions that the defendants are aware that their title claims remain outstanding.” 

However, Justice Church effectively does not consider Wet’suwet’en laws. 

“As a general rule, Indigenous customary laws do not become an effectual part of Canadian common law or Canadian domestic law until there is some means or process by which the Indigenous customary law is recognized as being part of Canadian domestic law, either through incorporation into treaties, court declarations, such as Aboriginal title or rights jurisprudence or statutory provisions.”

Because the Wet’suwet’en Hereditary Chiefs have never ceded their land, never made an agreement with Canada, and never in Canada's eyes been subsumed into Canada’s legal framework, Justice Church is saying that Wet’suwet’en laws don’t apply when considering this injunction application. This, even though it applies specifically to their unceded territory.

Though it would be accurate to say that Canada’s laws don’t apply on unceded Wet’suwet’en land, the judge instead chooses to say that Wet’suwet’en laws don’t apply on land that is being stolen from them by Canada.

“While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law,” writes Justice Church. Though it would be accurate to say that Canada’s laws don’t apply on unceded Wet’suwet’en land, the judge instead chooses to say that Wet’suwet’en laws don’t apply on land that is being stolen from them by Canada. She then writes that even though Wet'suwet'en law is not formally recognized by Canadian courts, “Indigenous laws may, however, be admissible as fact evidence of the Indigenous legal perspective, where there is admissible evidence of such Indigenous customary laws,” and then tries to consider what Wet’suwet’en law says. 

Justice Church’s assessment of Wet’suwet’en law shows many deficiencies in understanding, a number of which have been documented in a Twitter thread by Michael Toledano, a documentary filmmaker working in Wet’suwet’en territory who followed the injunction process and documented the RCMP’s actions first-hand. 

Of particular note is that Justice Church failed to mention the Baht’lats, which is the Feast Hall and the highest decision-making forum in Wet’suwet’en society. It was there that opposition to CGL’s project was decided, and activities to enforce Wet’suwet’en law – like setting up blockades – were approved. 

Michael Lee Ross, a lawyer representing the defendants, tells Briarpatch that “there was a ton of evidence about the Feast and Wet’suwet’en law” delivered to Justice Church.

Justice Church gets hung up on what she describes as “significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project,” and also that the “Indigenous legal perspective in this case is further complicated by the fact that the Wet’suwet’en people have both hereditary and Indian Act Band council governance systems and there is dispute over the extent of the jurisdictions of each of those governance systems.” She does not note that it was the Canadian government that created the Indian Act band councils in order to delegitimize the many existing, traditional government systems, including those led by Hereditary Chiefs. The Canadian government funds Indian Act-created band councils, not the Hereditary Chiefs, and tends to only negotiate with the Indian Act bands. Five of the six band councils in Wet’suwet’en territory signed benefit agreements with CGL, which have been held up by the company as evidence of consent. 

“Many of the benefits under these agreements are subject to material commencement of construction and completion of the Pipeline Project,” Justice Church writes in the interlocutory injunction decision. In other words, the band councils get the benefits – one can assume money and employment – only if the project starts and finishes getting built. Those particular agreements haven’t been made public, but agreements signed between CGL and another band, Nak'azdli Whut'en, have been seen by CBC. That agreement includes conditions that the band council “take all reasonable actions" to dissuade members from acting to "impede, hinder, frustrate, delay, stop or interfere with the project, the project's contractors, any authorizations or any approval process." That includes participating "in any media or social media campaign" to those ends.

In other words, the band councils get the benefits – one can assume money and employment – only if the project starts and finishes getting built.

Notwithstanding the different positions the Wet’suwet’en band councils and Hereditary Chiefs have taken on CGL, the 1997 Delgamuukw decision gives basis in Canadian law that the Hereditary Chiefs have jurisdiction over their territory as a whole, whereas band councils have jurisdiction only over reserves.

Instead of recognizing the authority of the Hereditary Chiefs, Justice Church questions it. She writes, for example, that “There is no evidence before me of any Wet’suwet’en law or legal tradition that would allow blockades of bridges and roads or permit violations of provincial forestry regulations or other legislation.  There is also no evidence that blockades of this kind are a recognized mechanism of dealing with breaches of Wet’suwet’en law.”

It is, of course, perfectly legal in Canada for Canadian authorities to blockade roads. Just think of police setting up blockades, whether with signs or cars, to close a road due to construction, weather conditions, a street festival, a collision, or any number of other reasons. Or think of roads where access is controlled by gates: gated houses, gated communities, gated parking lots, and so on. Blockading roads is perfectly acceptable in many instances in Canada, but Justice Church does not consider that it could be similarly acceptable in Wet'suwet'en law, even though the Wet'suwet'en have well-established protocol for preventing people from trespassing on their territory, and for holding them accountable when they do. 

Blockading roads is perfectly acceptable in many instances in Canada, but Justice Church does not consider that it could be similarly acceptable in Wet'suwet'en law.

In granting the interlocutory injunction, Justice Church agrees with CGL’s argument on the issue of land title and states that “the defendants are posing significant constitutional questions," referring to the questions of land title and jurisdiction, "and asking this court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial.” Again, no date has been set for any such trial – and CGL has incentive to avoid a trial.

Another notable aspect in the decision is the weighting of which side – the plaintiff CGL or the defendants Huson and Smogelgem – would face irreparable harm were the interlocutory injunction granted or not. 

“The defendants submit that an interlocutory injunction would have the effect of restraining Chief Knedebeas from exercising his lawful power and authority over Dark House territory and the public interest specific to Dark House will suffer irreparable harm as a result of the ‘disregard’ of Wet'suwet'en law,” writes Justice Church in the decision. Ultimately, her conclusion is that, “An injunction order will not directly impact the ability of the defendants to enjoy the use of the lands or in any way restrain Chief Knedebeas’ exercise of authority in terms of traditional Wet’suwet’en governance. On the contrary, such an order would merely restrain the defendants from engaging in self-help remedies that are contrary to the rule of law and which do not appear to be part of Wet’suwet’en legal tradition, according to the affidavit materials before me on this application.”

By “self-help remedies,” Justice Church is referring to activities like the Wet’suwet’en requiring outsiders to have consent enter their territory, and having procedures to enforce this. In this way, the injunction without a doubt impedes the ability of Wet'suwet'en Chief Knedebeas from being able to exercise his authority, both during construction of the pipeline, and after. In addition, the CGL pipeline would plow through some of the Wet’suwet’en’s last remaining culturally viable land – much of the rest of their vast unceded territory has already been logged. “Our medicine patches, our hunting grounds, our trapping grounds, our trails that meandered through our territories, that brought us from campsite to campsite so that we can harvest resources and sustain ourselves off our lands – those are all destroyed,” Smogelgem told Briarpatch in February 2019.

By “self-help remedies,” Justice Church is referring to activities like the Wet’suwet’en requiring outsiders to have consent enter their territory, and having procedures to enforce this.

As for the “irreparable harm” CGL would face, it is financial. If the application for an interlocutory injunction was refused, writes Justice Church, “The magnitude of harm resulting from the defendants’ actions will be significant and there is no reasonable prospect that damages can be recovered from the defendants. Although there is evidence that the defendants are soliciting financial donations from the public to fund their protest against Pipeline Project, there is no evidence that they are in a position to pay the magnitude of damages which will result from delay or cancellation of the Pipeline Project.” She writes that CGL estimates that further delays would cost them tens of millions of dollars. 

This estimated sum is seemingly calculated by assuming that  CGL’s proposed construction schedule shouldn’t be delayed while trying to force a pipeline through unceded Wet’suwet’en land. 

Justice Church’s decision shows that dispossession of Indigenous lands is Canada’s legal default. It continues the European colonial logic of the Doctrine of Discovery, or the Papal Bulls of Discovery, a 15th century principle which states that land not yet claimed by one Christian (ie. European) nation at the time can be claimed by any other Christian nation, regardless of the Indigenous peoples on that land. This racist doctrine continues to hold relevance in legal decisions today, and the Truth and Reconciliation Commission Final Report called for its abandonment. Yet it persists.

Canada’s legal system has long been tilted to favour theft of Indigenous lands for profit. 

As the RCMP were advancing on the Unist’ot’en camp, residents there held a ceremony to mark the death of reconciliation, a favourite, increasingly-empty buzzword of settler politicians and media in recent years. A Canadian flag with “Reconciliation Is Dead” written on it was burned in the fire just past a gate stating "NO ACCESS WITHOUT CONSENT" which the RCMP had broken open. RCMP officers approached Huson and other matriarchs, who were drumming and singing in ceremony, arrested them, and dragged them off their own land.

 

In response to the RCMP raid, people across Turtle Island (North America) took to the streets, to the halls of power, and to rail lines to shut shit down and demand justice for the Wet’suwet’en.

In Canadian courts, corporations like CGL have a high success rate of obtaining injunctions, giving them unfettered access to Indigenous lands even without consent. A Yellowhead Institute study of 100 injunctions found that corporations were granted injunctions against First Nations 76 per cent of the time, while First Nations were denied injunctions against corporations 81 per cent of the time. “The courts expect First Nations to commit to lengthy, costly litigation to secure protection for their lands and waters,” the authors of the study write, “but companies can more or less get injunctions if there is any whiff of economic loss.” Canada’s legal system has long been tilted to favour theft of Indigenous lands for profit. 

The next phase – of CGL’s lawsuit, of the pipeline, of Indigenous resistance, of Indigenous title to the land, of Canada – lies ahead.  And whether or not Canada’s legal system changes, more and more people are seeing through the lie at the heart of Canada, and fighting back. 

David Gray-Donald is a settler writing and organizing around climate justice, and a former publisher of Briarpatch Magazine. He lives in tkaronto / Toronto.