Winnipeg Free Press - PRINT EDITION

Court blocks CN blockaders

Treaty rights stop at private land: judge

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FIRST, a Manitoba judge put aboriginal protesters on notice any more rail-line blockades would end in arrests.

Now a decision from the Court of Queen's Bench has dismissed the protesters' efforts to overturn an injunction designed to prevent further blockades.

The senior master of Court of Queen's Bench said in a five-page written decision treaty land rights don't apply to privately held "real" property; such claims are made against commonly held "Crown" land.

Furthermore, the way the protesters went about their argument was wrong, wrote F.A. (Rick) Lee in his June 28 decision.

The decision is the first public word since Court of Queen's Bench Justice Don Bryk warned in February any more blockades would land protesters behind bars.

At that hearing, former Roseau River chief Terry Nelson argued against the injunction on the grounds he was defending his people's treaty land rights. He filed claims against Canadian National Railway and the federal and provincial governments.

But Nelson can't do that, since he represents no one but himself, the latest decision said.

"It may be that an aboriginal community at some time may wish to communally advance a claim to address some of the alleged 'abuses' by government in dealing with the land in question. But this is clearly not the way... The defendant Nelson is in no position to pursue this issue on his own behalf," the master's decision concluded.

On Tuesday, Nelson released the court decision against him after he received an electronic copy of it.

He said he will take his argument to the Federal Court, which has the authority to rule on both treaties and transportation.

Nelson told the court last winter the CN line sits on Treaty 1 land, which had been "stolen" from his people. A century ago, the track sliced through a large Ojibwa settlement at that location, carving up the community that later formed the three First Nations of Long Plain, Sandy Bay and Swan Lake.

Nelson said the court decision against the protesters came as no surprise.

"The main thing was that we showed up and said 'Hey white man, how did you get our land? How is CN's title to the land valid?' " he said.

On Jan. 15, a group of protesters, waving the flag of the American Indian Movement, paced back and forth in the bitter cold at a CN rail crossing about 100 kilometres west of Winnipeg. The day-long protest succeeded in stalling transcontinental rail traffic on the main railway.

RCMP refused to arrest the protesters and chose to divert traffic from the area, deciding they would take away the protesters' "audience" rather than make arrests.

Participants said the blockade was intended to send a message to Prime Minister Stephen Harper, pushing him to honour treaty rights.

CN spokesman Jim Feeny said Tuesday from Montreal the company is seeking a permanent injunction and damages against the protesters.

Republished from the Winnipeg Free Press print edition July 10, 2013 A5


Updated on Wednesday, July 10, 2013 at 6:42 AM CDT: replaces photo, adds video

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