People stand near a rail blockade in Tyendinaga Mohawk Territory, Ont. on Feb. 12, 2020, in support of Wet'suwet'en's blockade of a natural gas pipeline in northern B.C.Lars Hagberg/The Canadian Press
The rule of law in Canada can feel like a rather fluid thing. One minute it’s an absolute that must be rigidly respected, even if doing so results in the indefinite and illegal detention of two innocent Canadians in China; the next minute there’s wiggle room when it relates to injunctions against protesters whose illegal actions are harming the economy and hurting working people.
You can forgive Canadians for being confused. The fact is, though, it has become the practice in this country to tread lightly when dealing with protests involving Indigenous people, even when the rule of law offers a quick remedy for illegal blockades. Handled properly, this can be a good thing.
Canadian governments have lately made a show of defending the rule of law.
Ottawa has firmly stood by the arrest of Meng Wanzhou, the Chinese telecom executive who was detained in Vancouver 14 months ago at the request of the United States government, in the face of China’s imprisonment of Michael Spavor and Michael Kovrig.
And British Columbia’s government didn’t waver this month when the RCMP executed an injunction in a remote part of the province, reopening a bridge and road that are critical to the Coastal GasLink pipeline project, and arresting 28 people.
The $6.6-billion natural-gas pipeline has received all the necessary regulatory approvals, and the company behind it has met its obligations to consult with Indigenous communities along the project’s path.
Of the elected band councils affected by the pipeline, 20 out of 20 support it. Their members will benefit from much-needed construction jobs and from hundreds of millions of dollars in payments made over the project’s life. The pipeline will also boost the province’s economy.
At the same time, a group of hereditary chiefs from the Wet’suwet’en Nation is adamantly opposed to the project, and has been organizing blockades and protests for more than a year. In December, the Supreme Court of B.C. granted an injunction against those blockades, leading to the RCMP’s actions this month.
The hereditary chiefs’ position has to be respectfully heard, and there is no question that land claims in B.C. are a complex and sensitive issue. But a minority voice can’t be allowed to unilaterally declare that it is the only true voice, or use blockades to prevent a company from going about its lawful business.
Nor can the B.C. government or the courts allow protesters to sabotage a project supported by both a majority of the Indigenous population directly affected by it and the population at large, and which has met all the legal requirements to proceed. Removing the Wet’suwet’en blockade on the Morice River Bridge was the right thing to do.
But given that logic, it has been a bit confusing this week to watch police in Ontario decline to enforce an injunction against week-long Indigenous protests that have come close to shutting down commercial and passenger rail traffic across the continent.
Those protests are in support of the Wet’suwet’en hereditary chiefs. Canadian National Railway has obtained court injunctions against blockades in B.C. and in Ontario, but so far police in Ontario have tried to negotiate a peaceful resolution, rather than rushing in and making arrests.
Meanwhile, other protests are affecting operations at the ports in Halifax and Vancouver. Business groups say their supply chains are drying up, and are calling for the immediate enforcement of the injunctions against protesters camped along railway lines.
It is critical to the economy, and to people whose jobs are in jeopardy, that railway service return to normal. It is also essential to society’s sense of legality. Patience is a virtue but, at some point, it becomes incumbent on the police to remove protesters who defy the courts.
It is worth remembering that the right to protest is part of the right to free speech and peaceful assembly. You can make your voice heard in a public place, but there’s no constitutional right to physically block or occupy anything.
Given the fraught history of their relations with Indigenous people, the police in Ontario have been wise to tolerate illegal blockades while trying to negotiate a resolution, or waiting for the protests to peter out on their own.
But at the end of the day, the rule of law must be enforced.