Court injunction in Coastal GasLink conflict sidesteps deeper legal issues, critics say

In a video of the moments before RCMP officers arrested protesters at a blockade of a Coastal GasLink pipeline construction site in northern British Columbia last week, people on both sides of a door shout back and forth.

"You are trespassing against Wet'suwet'en law," a woman yells.

Police respond that under Canadian law, they are the ones with a right to be there.

"Our authority to enter will come under that injunction," an officer shouts, referring to a 2019 B.C. Supreme Court order prohibiting anyone from "physically preventing, impeding, restricting or in any way physically interfering" with access to the road leading to the site.

The door is hacked apart, and a chainsaw starts revving.

University of Ottawa associate law professor Aimée Craft says the question raised in that brief interaction underlies the conflict over the pipeline: Exactly who is breaking whose law?

Craft — an expert on Indigenous laws, treaties and water — says the public has been given the sense that obtaining an injunction, in and of itself, should be enough to put an end to any debate.

But she says that misses the bigger point.

Interlocutory injunctions are supposed to be temporary tools to prevent harm "until there's an ability to fully flesh and make a whole decision based on the facts and the law," said Craft, an Anishinaabe-Métis lawyer from Treaty 1 territory in Manitoba.

"What the injunction hasn't addressed ... is the conflict of laws issue between Indigenous legal orders and ... Western legal systems," she added.

"So that's what you see in that debate in the video [of the arrests]."

The arrest of more than two-dozen protesters for breaching the injunction has reignited a national debate around the Coastal GasLink pipeline, which, if completed, will span 670 kilometres across northern B.C., transporting natural gas from near Dawson Creek in the east to Kitimat on the Pacific Ocean.

The company has signed benefit agreements with 20 band councils along the project's route. But Wet'suwet'en hereditary leadership says band councils do not have authority over land beyond reserve boundaries.

Media attention on the arrest of two journalists on Nov. 19 led project opponents to fear attention would move from the clash of laws at the heart of the dispute to the issue of press freedom.