The Colour of right

The Colour of Right

“The Colour of Right” is a legal term and is described in law books as “A good faith assertion of a proprietary or possessory right to a thing”.  This would mean that if a thing has been taken without the permission of the original owner then the original owner can sue claiming “The Colour of Right.”

I haven’t read the arguments used by the Tsilhqot’in First Nation yet in the recent Supreme Court ruling that seem to have enormously broadened their claims to their historic lands, so I don’t know if The Colour of Right arguments were used in the courtroom.  But the legal precept has been hanging around for a long time.  I first heard of this twenty years ago in the Clayoquot blockades of 1993. But just this simple legal description has always seemed to me to be the key to halting the deforestation of old growth forests in BC along with the detested oil pipe lines.

Only down through the years it proved to mean very little in the corporate ruled, and I would say “mostly corrupt” courtrooms of BC.  I tried to use the legal protections of the Colour of Right in my own defense, claiming that the “public” forests of BC were supposed to be held in trust for the people of BC, and I was a people, but to no avail.  The corporations were more human than humans.  However, I recognized way back then that First Nations stood more of a chance to use (and win) the Colour of Right argument than I did.  After all, the prior ownership of their territories was demonstrable.  Nobody with any creditability could deny it.  And there was another thing that made this kind of a claim only by First Nations to be feasible and even doable.

However as much as I admire Chief Justice Beverly McLachlin’s rulings on this and other issues lately, she wasn’t always so well, wonderful.  I have to call her wonderful (and the other judges, of course) for coming to the defense not only of First Nations, but of all Canadians, in our efforts to try to adopt measures that would stop, or at least slow down, the slide into environmental chaos.  But Madam Justice McLachlin used to be the Chief Justice of BC and it was one of her “definitive” rulings that landed me in prison for so long and made life miserable for many First Nations who also went to prison.

This ruling was of Madam Justice McLachlin’s  own making which held that civil contempt of court  which many blockaders were charged with) would be raised to criminal contempt of court if proven that the blockader’s behavior (continued refusal to move out of the way of bull dozers) was “open, continuous and flagrant”.   Madam Justice, have you ever wanted to revisit this?  Consider.  Trying to disrupt the corporate industrial logging had to be open, and if it was to  be effective at all in drawing attention to where our foresters were going, had to continuous and flagrant.  This was a horrific ruling and led to many miscarriages of justice in BC for activists and made many of us criminals.

But even when facing a court injunction which would lead to jail time if disobeyed, First Nations, when they persisted in blockades made a huge impact.  The situation that occurred at  Eagleridge Bluffs, where everybody but  Harriet Nahanee from the Squamish Nation and myself faded away under threat of corporate law suits (neither of us had any money) would not impinge on First Nations on reserves if they came out en mass.  Harriet Nahanee came out to try to protect Eagleridge Bluffs as an individual but if many had come from the reserve, the court would have panicked.  This fear of being privately sued by the companies for causing loss of work time doesn’t work well at all for First Nations..  Will any corporations try to break an entire first Nations Reserve with law suits?  If they could, they would, of course, but they can’t.

So I believe that First Nations people are our environmental saviors.  Their reserves can’t be sued privately by corporations and they are more or less immune to charges of criminal contempt of court, especially now that Madam Justice McLachlin (bless her heart) and the other judges have given First Nations the structures to use their Colour of Right.  I am so happy.  And I know Harriet Nahanee is also happy; that she knows somehow that her jail term that ended in her death was not in vain.  And Madam Chief Justice Beverly McLachlin I take back all of the mean things I have said about you in the past.  Well, most of them anyway. (photo:Sue Robertshaw)