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Two Law Professors advocate for Rule by the Minority over Rule of Law

by Lazarus on Wednesday, January 23, 2013 10:22 AM
 

In a recent National Post article, Professors Kent Roach and David Schneiderman assert that Justice Brown made legal errors in issuing injunctions ordering police to remove blockades erected by the IdleNoMore movement on CN rail lines. Their argument is that the Ontario Court of Appeal in earlier court cases had said that courts should defer to police judgement in deciding how to enforce injunctions against aboriginal protests. Those cases dealt with Aboriginal cases where the Aboriginal bands were occupying land involved in land claims disputes. In the recent cases dealt with by Justice Brown, the professors claim that “rights over the land, including related environmental concerns, seem to be a part of Idle No More grievances” and thus the Appeal court rulings should be in play. The problem with that argument is that it relies on a very nebulous linking of land claims as part of the varied grievances of the current IdleNoMore protests, which they admit are only a small part of the multitude of grievances that the current protests are based on. In the cases that the Court of Appeal dealt with, the land occupied by the natives were disputed lands. In the current cases, the land being blockaded was not disputed land, but the private property of CN Rail and the environmental concerns and treaty disputes that concerned the blockaders was not with CN but with the Federal Government. The blockading of CN property was not because of a dispute with CN but because of the economic impact that such a blockade would bring to the economy.

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