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Land Defenders and the Criminalization of Indigenous Law

Tansi Nîtôtemtik,

For the next few weeks on the ReconciliACTION blog, we will be discussing the environment in relation to Indigenous peoples. We will explore the complex relationships between Indigenous peoples, the environment, the Canadian state, and other institutions.

It is important to start this conversation with the recognition that Indigenous understandings of the land and conservation efforts are not the same as the Western idea of environmentalism. For many Indigenous people, understandings of the land are deeply rooted in the law of their Nations and have been since time immemorial. Respecting lands, and ensuring others do the same is, therefore, the law that binds many Indigenous peoples, and places obligations on each person to do their part to ensure lands are protected for the next generation.

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So, when we see the incarceration and fining of Indigenous individuals who are protecting lands, what we are witnessing is the criminalization of the Indigenous land defenders, which is essentially the criminalization of the practice of Indigenous law. Indigenous people are being prosecuted for following the law of their nations, simply because it may not necessarily align with the law of the Canadian state.

One especially troubling explanation for the imposition of jail time and enormous fines for Indigenous land defenders was provided by the Ontario Superior Court in the 2008 case of Frontenac Ventures Corporation v Ardoch Algonquin First Nation. The sentencing judge stated that he was grounding his sentences in “the rule of law,” and that “there can only be one law, and that is the law of Canada, expressed through this court.”[1] The land defender being sentenced in that case explained that, although he did respect the rule of law, he could not comply with the court order “because his Algonquin law is supreme.”[2] The sentencing judge maintained that there was only one law in Canada, and imposed an incredibly harsh sentence.

Thankfully, the sentence was later overturned on appeal.[3] The case described above clearly illustrates that many judges are not willing to accept the fact that Canada is a multi-juridical country and that Indigenous laws are here, and are actively influencing the way that Indigenous people live their lives.

The criminalization of Indigenous land defenders, and by extension, of Indigenous law, has been happening for a long time, but Hereditary Chief Spookw (Gitxsan) says that they will keep fighting. “If we don’t seek to impose our laws and assert our ownership of our lands, then it makes it easier for the oppressors and the colonizers to move in and occupy our lands. If we don’t act, then they will never leave.”[4]

The continued criminalization of Indigenous land defenders perpetuates oppression.[5] The “criminal law neither protects Indigenous victims of crime nor rehabilitates Indigenous offenders. Instead, it provides for a carceral regime that significantly disrupts Indigenous communities…”[6] In order to move forward in a positive way, it is crucial that the criminalization of the practice of Indigenous law, as it relates to land and the environment, stops, and Indigenous peoples are given the space to practice their own laws, without the interference of the Canadian state.

Until next time,

Team Reconcili-ACTION YEG

[1] Frontenac Ventures Corporation v Ardoch Algonquin First Nation, 2008 ONCA 534 at para 40. [2] Ibid. [3] Supra note 1. [4] Rebecca Kirkpatrick, “Indigenous Leaders Speak Out About the Criminalization of Land Defenders” (02 March 2022), online: Cultural Survival <,for%20fighting%20for%20their%20rights.>. [5] Chris Cunneen, “Indigenous Sovereignty, and the Law: Challenging the Processes of Criminalization” (2011) 110:2 South Atlantic Quarterly 309 at 310. [6] Ibid.

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