PODCAST: Private Prosecutions of Indigenous Land Defenders
Private corporations with the power to police and jail peaceful land defenders. Oil and gas interests ordering the violent arrest of Indigenous peoples.
Welcome to the shady world of corporate injunctions and private prosecutions in B.C. It’s part of a new playbook being developed that throws generations of progress towards Indigenous rights — in the courts, and on the land — into jeopardy.
This December, 2021, Gitxsan hereditary chiefs and family members were in the BC Supreme Court facing criminal contempt charges for violating an injunction obtained by CN Rail. Acting in solidarity with their Wet’suwet’en neighbours, in 2020 the Gitxsan occupied the tracks to demand an end to a militarized RCMP invasion of their neighbouring Wet’suwet’en’s unceded territories. At a December 6, 2021 Supreme Court hearing, Crown prosecutors declined to prosecute land defenders, arguing that jailing peaceful protestors is not in the public’s interest.
But BC Supreme Court’s Judge Branch allowed the trial to proceed: only this time, with CN’s lawyers serving as the prosecutors. That would have given corporations the power to not only obtain injunctions to prevent peaceful Indigenous land protectors from defending unceded lands, but would allow private companies to police — and prosecute — anyone who stood in the path of profits.
Fortunately, on January 25th, we learned that CN rail was no longer pursuing criminal or civil contempt of court charges for 11 hereditary chiefs and their families. But as of this writing, they still face a $200 million dollar lawsuit for peacefully standing on their land in the face of unwanted industrial activity on the unceded territories for which they are responsible.
Whose land, whose law?
In 1997 after a 15 year court challenge Wet’suwet’en and Gitxsan people celebrated the landmark Delgamuukw–Gisday’wa Supreme Court ruling that determined the Nations had not given up their Title to 22,000 square kilometres of their land in northern BC. Hereditary leaders were recognized as the rightful decision makers on their lands.
In the decades since the Delgamuukw ruling, governments have ignored the authority of hereditary leaders, and sought instead to protect industry’s right of way, at great expense to taxpayers and, with increasing violence to, and erosion of, Indigenous rights.
“From my perspective, what we’re seeing with private corporations prosecuting Indigenous title holders for breaching injunction orders really represents a concerning trend that undermines the important Crown-Indigenous relationship that is supposed to exist, and the obligations that the Crown holds towards upholding the constitutional recognition and affirmation of Indigenous rights under Section 35 of Canada’s Constitution. There’s a very good reasons why Indigenous people, especially in this part of the world, would have no reason to recognize Canada’s claim to their territory. People chose not to obey the court order because they were obeying their own laws.” —Kris Statnyk, Vuntut Gwitchin lawyer
This November 2021, when Wet’suwet’en land defenders were again violently forced from their lands, Gitxsan members re-erected their rail blockade. RCMP tactical squads rushed in to dismantle “Rail Camp” , where private CN Rail police and Coastal GasLink security have teamed up with police to keep a 24/7 watch on the tracks.
“CN Rail was a crown corporation for many decades. In 1995, that changed. Finance Minister Paul Martin sold CN Rail to private investors, mostly Americans. And ever since it’s been a private, multinational logistics company. So although it’s no longer a public entity, it retains a private security force with guns and powers of arrest that call themselves police. I think that there’s still some nostalgia for Canadians around the CN brand, which they which they trade off of. But, make no mistake: this is a company whose purpose is to move oil, wood pellets, and other other raw resources to ports on three coasts and to move containers in the opposite direction. And if anyone gets in the way of that, they have some very well-heeled lawyers AND the ability to call in swift arrest by the RCMP or by their own police force if anybody is obstructing their their profits.”Kai Nagata, Dogwood campaigner
To talk over the implications of allowing a multinational corporation sweeping powers to enforce multi-year injunctions on unceded Indigenous lands, on this special bonus episode of our podcast RAVEN (De)briefs, we’ll hear more form Dogwood’s Kai Nagata and Vuntut Gwitchin lawyer Kris Statnyk. Both are residents on Gitxsan territory, and share their deep concerns about the trend allowing corporations to obtain, enforce, and prosecute injunctions on Indigenous land.
Though they have stated they don’t intend to pursue criminal or civil contempt of court charges against Gitxsan hereditary chiefs, CN Rail could still proceed with their $200million dollar lawsuit for damages. That opens the question of whose law – Indigenous or Canadian – really prevails on these unceded territories. Meanwhile, the outrageous practice of private prosecution in B.C. remains one of the arsenal of options available to corporations putting profits ahead of Indigenous sovereignty.