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Courts can issue interim injunctions in land disputes, authorizing one side to act as though it owns the land until the matter is finally resolved. Courts grant these injunctions mainly on the basis of balance of convenience — which party will suffer the most if the injunction is or is not granted. Pipelines are short-term development projects whose environmental consequences make them highly controversial. The Wet’suwet’en, on the other hand, have been governing their territory in environmentally respectful and sustainable ways for thousands of years. So how can the balance of convenience favour a resource exploitation company in these circumstances?

Projects like this on Indigenous territories should not take place without the free, prior, informed consent of the people concerned, as required by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has endorsed and the Trudeau government has promised to implement. Nor should the police be placed in the awkward position, which many of them likely find uncomfortable, of having to arrest peaceful protesters involved in a civil, not criminal, matter. The Supreme Court has said repeatedly that Indigenous claims need to be settled by respectful negotiations leading to reconciliation. The court injunction and recent arrests do just the opposite.

Kent McNeil is an emeritus professor of Osgoode Hall Law School in Toronto.

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