“I suspected that we were going to find that First Nations were losing injunctions at a high rate, but I was pretty blown away by the staggering discrepancy in those figures, that overwhelmingly corporations and governments succeed in serving injunctions against First Nations, and First Nations lose in the courts,” says Yellowhead Research Director Shiri Pasternak.

Power imbalances between First Nations and well-financed companies mean that while the former must commit to lengthy, costly litigation to protect their land and waters, the latter can gain an injunction at the mere prospect of economic loss.

Land dispossession and its profound effect on Indigenous women

After Indigenous people were uprooted from their lands and forced onto reserves in the 18th and 19th centuries, they lost significant control over their land. Even in today’s legal environment, where the courts have determined that the government has a duty to engage with First Nations when their constitutional or treaty rights may be affected by the state, consultation is often equated with consent.

Yellowhead researchers argue that court injunctions are used to override Indigenous Peoples’ lack of consent to develop their lands.

“What we’re suggesting in Land Back is a movement from a principle of consultation, which the courts have required governments to pursue, to a principle of consent, which the international community and Indigenous Peoples have endorsed,” says King.