Last winter, Canada witnessed a series of spontaneous and coordinated actions by Indigenous activists seeking to demonstrate solidarity with the hunger strike of Chief Teresa Spence of Attawapiskat. The actions, initially prompted by the Twitter meme #IdleNoMore, demonstrated that Indigenous peoples would not tolerate the increasingly aggressive federal legislative agenda of the Harper government; in particular, there was opposition to amendments buried in an omnibus budget bill that gutted protections for critical waters and fisheries. 1 Most of the actions consisted of flash mobs of round dancers and drummers gathered peacefully in public spaces; occasionally, participants adopted a strategy of direct action targeting critical infrastructure in opposition to the government’s “responsible resource development” plans.
On July 25, 2013, Ron Plain of Aamjiwnaang First Nation faced the consequences of his decision to act as spokesperson for an Idle No More action last December. For thirteen days, Band members and their supporters blockaded a portion of the CN Rail line that crosses the Aamjiwnaang reserve. The ensuing exchanges among the protesters, CN Rail, the police, and the courts offer telling glimpses into the relations that conspire to keep us idle. The consequences for Plain were severe, but it is too early to predict whether they will have their intended effect of sapping the momentum of a resistance movement determined to derail the resource rush currently underway in Canada.
On December 21, 2012, demonstrators in Aamjiwnaang erected a blockade on the CN Rail line that passes through the reserve. The line shuttles an average of 450 cars a day of ethylene, polyethylene, butane, propane, ammonium nitrate, nitric acid, methanol, and other industrial freight to and from Sarnia, Ontario, the heart of Canada’s “Chemical Valley.” Within days of the blockade, petrochemical manufacturing plants in Sarnia were starved for inputs, and the Canadian Propane Association was warning of fuel shortages for home heating in eastern Canada. CN promptly obtained an ex parte injunction. Justice D.M. Brown of the Ontario Superior Court found, after viewing a photograph of a pickup truck parked on the rail line, that the trespass was “obvious” and accepted that irreparable economic [End Page 425] harm would ensue if the blockade continued. 2 In considering the “balance of convenience,” Justice Brown stated:
The protestors obviously are engaged in a form of expressive activity, but ... [they] do not have a complaint against CN, the property owner; their ire is directed toward the federal Parliament which passed legislation to which they object. Persons are free to engage in political protest of that public nature, but the law does not permit them to do so by engaging in civil disobedience through trespassing on the private property of others, such as CN. 3
The company put in evidence a YouTube video in support of the proposition that protestors were not making a claim to Aboriginal rights or title, which, according to recent jurisprudence, would have complicated the issue of the “balance of convenience.” 4 The video contained a statement by a demonstrator that “the blockade organizers want a meeting between Canada’s Prime Minister Stephen Harper and Chief Spence.” 5 Yet the court acknowledged that another of the demonstrators filmed in the video said that “he wanted an acknowledgement that the CN tracks were there illegally” and that “CN could file all the injunctions they wanted,” but they could not remove the protesters “from [their] own territory.” 6 As it turned out, Sarnia Mayor Mike Bradley and Police Chief Phil Nelson were not eager to remove the protestors from the tracks, arguing that any use of force would harm relations between the City of Sarnia and Aamjiwnaang First Nation. Mayor Bradley stated: “Has no one learned the lessons of Oka and Ipperwash? What you need to do in this situation is work day and night to find a peaceful solution.” 7
In granting an indefinite extension of the injunction, Justice Brown chastised the police for their efforts to avoid the use of force: “I must confess that I am shocked by such disrespect shown to this Court by the Sarnia Police.” 8 Meanwhile, the weight of the economic impact began to...