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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 by tracking 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, positioning 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 through 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.
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Claiming that the criminal justice system fails to effectively prohibit protest and civil disobedience, corporate lawyers embrace the pervasive use of injunctions and contempt of court charges in struggles over resource extraction in British Columbia, dubbing this approach the “new normal.” Yet even a cursory review of protest policing in Canada reveals that state intervention in resistance movements is alive and well and that Indigenous peoples and allied social movements are made subject to repression, surveillance, and criminalization through the mechanism of injunctions and contempt, among other legal tools. Based on my direct experience with injunctions and contempt in BC as an activist legal support organizer and a settler ally, this article argues that the reliance on injunctions by extractive industries embroils the courts and police in struggles over public and/or collectively held lands and resources that are nonetheless constructed by the law as private disputes, largely insulated from the reach of constitutionally-derived Aboriginal rights. After tracing the long history of BC’s “injunction habit,” I examine the judicial and policy practices that make the “new normal” claim possible—and show how it is ultimately not accurate. As crucial tools in the legal arsenal of settler-colonial states, injunctions and the subsequent use of contempt charges carve out a distinctly colonial space within Canadian law for the criminalization of Indigenous resistance, facilitating access to resources and lands and easing the operation of extractive capitalism.