On December 21st, 2011 members of the Aamjiwnaang First Nation partnered with members of Toronto’s anarchist community and setup a blockade of a CN Rail track. They claimed that the track was unauthorized to run over their territory so they had every right to block it. The blockade was rather controversial, as not only did it hurt CN Rail, but it also affected the credibility of Aamjiwnaang’s industrial park, putting them at risk of losing revenue from some valuable tenants.
CN went to court the next day and was able to secure an injunction, but the Sarnia police were reluctant to take action. The blockade was finally shut down on January 2nd after CN filed a suit against the blockade’s spokesman Ron Plain who now faces having to pay CN’s legal fees estimated to be at least $200,000. The radicals, as they do, claimed that this decision has resulted in the court “criminalizing dissent”.
Last week the Supreme Court of Canada made a ruling that could have a serious impact on Plain’s defence. The case of Behn v Moulton Contracting Ltd has a lot of similarities to Plain’s case. Members of the Fort Nelson First Nation in BC held a blockade against a logging operation, stating that the Crown hadn’t properly consulted with the first nation when providing the company with a permit.
The Crown and the logging company took the protesters to court. It was their position that it was an abuse of process for the protesters to have blockaded the logging company without having first challenged the situation in court. They also questioned whether treaty rights could be challenged by individual members of an aboriginal community as opposed to the band council.
The court’s decision will have a major impact on future protests:
“To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations. The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence.”
Basically, what the court said was that people aren’t allowed to take the law into their own hands. First Nations groups, like the rest of us, must first go to court before engaging in an action like a blockade. This, of course, makes a lot of sense.
Ron Plain’s situation is not much different. A small minority of people from the Aamjiwnaang First Nation held a blockade without having challenged the situation in court. Most people see this as a violation of the rule of law- now, the Supreme Court has now made that official. It will be interesting to see how Plain’s case proceeds…