Does A New Supreme Court Ruling Put Idle No More Protesters At Peril? (feat. Ron Plain)

Ron Plain- Is this guy screwed?

Ron Plain- Can you tell this guy associates with anarchists?

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…


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    • naomi on May 15, 2013 at 02:25
    • Reply

    First Nations are not like “the rest of us” as this article tries to claim. There is nothing in the way that they can be sovereign people. Just because white people showed up here and decided they make all the rules does not make it correct. Any other sovereign group make protect their territory.

      • denis on May 15, 2013 at 07:41
      • Reply

      Sure they can protect their territory. Just in a legal manner, not as a mob!!!

      1. Agreed. At the minimum, the first step should be to challenge the situation through the proper channels. Starting a protest without having made a legal challenge seems rather disingenuous…

          • thunder on May 21, 2013 at 00:55
          • Reply

          Not sure I agree. I’m not Native, but my understanding is that under the traditional government of most nations, the individual is free. It’s not up to leaders to decide, unless the people ask them to. At the end of the day, it’s the people who decide. This is one of the reasons band counsels are bogus. They’re a colonial government construct, and rarely are their officials voted in by even a fraction of the community. Most people just see them as illegitimate, and prefer the old ways such as the chiefs and grandmothers when it comes to making decisions as a group. So I’ve been told at any rate. Having a colonial government impose a legal structure on first nations, and demand that they comply with that structure, while at the same time not acting in good faith on their own part, is the problem. I have no issue with Mr. Plain’s actions or that of his community. I wish them all the best. Whatever the courts decide, as far as I’m concerned, the citizens of Aamjiwnaang are fully within their rights to disrupt customs and immigration traffic into and out of their territory.

      2. Thunder hit it on the head. Denis’ and Grenouf’s comment is not taking into account the Federal laws in place that are supposed to prohibit government or industry from conducting themselves in such a way. Federal law overrides their interests, does it not? How did they get approval for these actions in the first place, these actions being unlawful??

    • brotherwolf1 on May 15, 2013 at 09:09
    • Reply

    The laws apply to all persons equally. No one group or person or persons are , or should be above the law or be exempted from having to follow it.

      • redtoke on May 19, 2013 at 09:32
      • Reply

      uhmmmmmmmmm aboriginals ARE exempt from following any law that violates their aboriginal rights LOL even according to kanada’s imperial constitution

    • The Hammer on May 15, 2013 at 15:31
    • Reply

    First the natives have their land stolen by whites. Now their protest movements are stolen by whites too.

    1. Yes, it’s a sad state of affairs isn’t it…

    • Judy on May 19, 2013 at 10:45
    • Reply

    I’m curious what level of “ownership” FIrst Nations have on their “own lands.” Now, in these case, it seems like these were the actions of a few individuals, not the entire Nation, but what if the entire Nation had decided that it didn’t want the logging, for example, on their land? What would be the procedure? If Canada didn’t want the US, say, doing something or bringing something across their borders without permission, I’m sure that they would take action, would they not? I’m just curious.

    1. I’m not the Supreme Court, not am I a lawyer, so can’t really give a solid answer to that. But, from as it appears on this ruling of theirs, the nation would have the option to challenge it in court…

  1. Again, the courts of the settlers’ rights supercedes the rights of the indigenous people. One question. Is it not the DUTY of the courts, whether it be municipal or federal, to maintain the current rule of law? It is obvious that in both of the circumstances listed, the rule of law was NOT followed at the outset. Typical corporate controlled government bureaucracy. It is akin to building a pipeline in someone’s yard, without asking or compensating the landowners first. Say anything you want about having the same laws apply to everyone equally. This judgement clearly benefits the government and industry, which, in this time in our history, a very blurred line, indeed!!

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