By Anti-Colonial Committee member Shiri Pasternak
Originally published December 4, 2013, in the Two Row Times

Who has the authority on reservations to protest land development? According to a recent decision by the Supreme Court of Canada, only the band council does.

In Behn v. Moulton Contracting Ltd., a case heard in May of this year, a logging company defended their right to gain access to Fort Nelson First Nation forests against the protests from members of the small British Columbia reserve.

The Behn family had erected a camp to stop Moulton Contracting Ltd. from logging on their traditional lands. The company brought an action against these individuals to remove them. The Behns argued that the licenses the province issued were void since they breached the duty to consult as well as their treaty rights.

Lower court decisions found that individual members of a band have no legal standing to assert collective rights in their defense. Only “the community” – defined as the chief and council – could invoke such rights.

The Supreme Court of Canada upheld these lower court decisions, concurring that the Behn family should have challenged the provincially issued licenses when they were first obtained.Due to this timing failure, the family’s decision to blockade was deemed “a collateral attack or an abuse of process.”

The Behndecision raises many important questions about the court’s jurisdiction to allocate these powers of authority on the reserve.

Firstly, it presumes that the chief and council are the final arbitrators of all decisions on the reserve and that they represent internal unanimity on all contentious matters.

Secondly, demanding the Behn family must contest the licenses at the time they are issued presumes that the chief and council have necessarily communicatedthe details of each development proposal to the community.

Thirdly, blockades – strategic exercises of Indigenous jurisdiction – are reduced here to what the court calls “self-help remedies” that “bring the administration of justice into disrepute.” This derogatory labeling demeans frontline actions that seek to protect the environment and keep Indigenous cultural and political orders intact.

Fourthly, many Indigenous societies are organized throughland tenure systems where responsibilities inhere to particular families on specific land bases. It is their legal obligation to protect these lands, despite what band council authorities might assert.

The Behn Decision also reveals the racism of the courts regarding life on reserve. Could we imagine a parallel case of Torontonians fined for protesting activities on their blocks under the rubric that their Mayor supported them?

In the mid- to late-1980s, injunctions filed by First Nations and tribal councils in British Columbia successfully ground much resource extraction to a halt. Take for example the blockades set up by the Clayoquot and Ahousat First Nations that saved Meares Island from being clear-cut through their injunction against Macmillan Bloedel.

But as ongoing events at Elsipogtog highlight, this legal tool is being drained of its potential to defend Indigenous land in emergency situations and is being leveraged instead as another form of jurisdictional imposition on Indigenous lands.