Before the global pandemic shifted focus, what are viewed as “protests” under Canadian law but are the exercise of Indigenous jurisdiction and responsibilities were gaining momentum with multiple blockades and other acts of protest across the country in support of Indigenous rights and environmental protection. Community groups and environmental organizations called on followers to participate in acts of solidarity. UVic Law and other university students volunteered to provide training to those participating in the protests, and organized as legal observers of the tensions between those protesting the exercise of state authority, those in favour of the projects that were the subjects of the protests, and state authorities.
Given these circumstances, the ELC hosted a learning session on the law of protest as part of the ELC Associates Program. (The Associates Program brings together cohorts of lawyers for a two-year period for periodic gatherings and professional development activities. For more information on the program, click here.)
The following panel of guest speakers provided background materials and animated the two-hour discussion:
- Leo McGrady, QC: lawyer and author of The Protesters Guide to the Law of Protest and Cedar as Sister: Indigenous Law and the Common Law of Protests – A Guide to the Law of Protest;
- David Milward: UVic Law professor and author of Aboriginal Justice and the Charter and The Art of Science in the Canadian Justice System: A Reflection on my Experiences as an Expert Witness, The Gladue Handbook, and Children Need Families, Not Courtrooms;
- Karen Campbell: formerly of Ecojustice, West Coast Environmental Law, Pembina Institute, and currently a lawyer at Ng Fong with a particular interest in the effect of the Declaration of the Rights of Indigenous Peoples Act on peoples defending traditional territories;
- Lauren Regan: founder, director and senior staff attorney at the Civil Liberties Defense Center in Eugene, Oregon, who specializes in civil rights, activist criminal defense, and environmental, climate and animal rights law;
- Kegan Pepper-Smith: staff lawyer at Ecojustice specializing in climate, marine and species-at-risk law; and
- Kent Roach: law professor at University of Toronto, author of 14 books, member of the Order of Canada, Fellow of the Royal Society, and long-time editor-in-chief of the Criminal Law Quarterly who has received a number of awards for his pro bono work and contributions to civil liberties.
Considering the high level of interest in this topic, we opened up the webinar to the ELC community at large and recorded the session for posting on our website along with the background documents and other materials shared after the meeting.
There were many takeaways, but two key points discussed included the need for the common law to recognize that Indigenous legal orders are valid sources of law and on an equal footing with colonial law; and the need to replace the term “civil disobedience” with one that recognizes that one can disobey colonial law while acting in accordance with Indigenous law.
A number of attendees contacted us after the meeting to comment on the calibre of the speakers, to say how much they learned in the session, and to express appreciation for hearing about various approaches to protesting state action and the conflict of laws at play.
- Link to background materials
- Summary of The Law of Protest, by Leo McGrady
- State of Washington v. Ward, Washington State Supreme Court
- Memorandum in Support of Presentation of “Choice of Evils” Defense, Oregon v. Butler, Zuckerman, Ward
- Link to additional resources:
- Restless Spirits in the Land: Finding a Place in Canadian Law for Aboriginal Civil Disobedience (David Milward)
- Excerpt from Constitutional Remedies in Canada (Kent Roach)
- Eco-Terrorists Facing Armageddon: The Defence of Necessity and Legal Normativity in the Context of Environmental Crisis (Hugo Tremblay, provided by Keegan Pepper-Smith)
- The Right to Dissent (Gail Davidson, Lawyers’ Rights Watch Canada, an organization committed to defending lawyers charged or imprisoned for defending human rights cases)