Originally published in Blakes Bulletin on Aboriginal Issues, July 2008

On July 7, 2008, the Ontario Court of Appeal released two decisions related to sentencing of aboriginal protestors for contempt for breaching injunctions aimed at preventing aboriginal protests. Although the issue before the Court of Appeal in these decisions was the appropriate sentence for contempt of court, the court made several important comments about the duty to negotiate in the context of aboriginal protests. Most significantly, the Court of Appeal referred to the jurisprudence of the Supreme Court of Canada regarding the duty to negotiate, and found that whenever the interests of First Nations collide with private interests, every effort should be made to reconcile the private and aboriginal interests through consultation, negotiation and accommodation in a genuine attempt to resolve the conflicting interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction or legal proceedings.

The court considered arguments that had been made before it about the importance of the rule of law in Canada. The court adopted comments it had previously made in Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, in particular finding that the rule of law had several dimensions, one of which was the reconciliation of aboriginal and non-aboriginal interests through negotiation. The court expressed the opinion that when a court is asked by a private party to grant an injunction which may have an adverse impact on an asserted aboriginal or treaty right protected by section 35 of the Constitution Act, "such cases demanded careful and sensitive balancing of many important interests in accessing whether to grant the requested injunction and on what terms".

The court went on to explain how these interests are to be effectively balanced. The court stated that the clear answer could be found in the last 20 years of jurisprudence of the Supreme Court of Canada and in particular the requirement for consultation, negotiation, accommodation and ultimately reconciliation of aboriginal rights and other important, but at times conflicting, interests. The court cited the long line of Supreme Court jurisprudence beginning with R. v. Sparrow, including Haida Nations v. British Columbia (Minister of Forest), Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), and Mikisew Cree First Nation v. Canada (Minister of Heritage). The court found that this clear line of jurisprudence required that where constitutionally protected aboriginal rights are asserted, "injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests". The Court of Appeal cautioned in particular that if the injunction is intended to create a "protest free zone" for contentious private activity that impacts upon an asserted aboriginal right, the court must be extremely careful to ensure that the duty to consult with the First Nation has been fully and faithfully discharged and that every effort had been exhausted to obtain a negotiated or legislated solution.


The Court of Appeal made a clear statement in Frontenac that it would no longer be acceptable for private parties to seek injunctions as a first response to prevent protest action by First Nations with legitimate aboriginal rights or land claims.

... The Court of Appeal applied the Supreme Court of Canada's established jurisprudence and held that there is a duty on the Crown, as well as private parties, to negotiate with indigenous communities in order to resolve conflicting interests. Following these decisions, it will be increasingly important for private stakeholders in Ontario with an interest in property over which an aboriginal rights claim has been asserted to be cognizant of, and sensitive to, those indigenous interests.