Monthly Archives: November 2019

Taseko Mines Limited v Tsilhqot’in National Government, 2019 BCSC 1507

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Interlocutory injunction granted in favour of the Tsilhqot’in Nation against Taseko Mines Limited work permit, on the basis that it infringes their Aboriginal rights.

Native Law Centre CaseWatch Blog

Taseko Mines Limited [“Taseko”] applied to prohibit members of the Tsilhqot’in Nation [“Tsilhqot’in”] from blockading its access to an area where the mining company wants to carry out an exploratory drilling program [“NOW program”]. Taseko has access pursuant to a notice of work permit [“NOW permit”] issued under the Mines Act. That application is now moot since the Court decided Tsilhqot’in’s application will succeed for an injunction prohibiting Taseko from carrying out its NOW program until the Tsilqot’in’s underlying claim to quash the NOW permit is heard.

In this matter, the issue is whether granting Tsilqot’in the interim injunction prohibiting Taseko from undertaking the NOW program would amount to a final determination of the action, which would effectively remove any benefit of proceeding to trial. The NOW permit will expire in July 2020, and if Taseko is enjoined until the action is heard, it is very unlikely the trial could be completed in time to for the 4-6 weeks required to complete the NOW program. In the Court’s view, the extension is essentially mechanical and concludes that Taseko will have until July 2022 to complete the NOW program, because Taseko can extend the NOW permit by two years under s 5(1) of the Permit Regulation.

Issues pertaining to infringement and justification, which will be the focus of the trial, are not new to the parties. Because some of the factual and legal elements have been argued before different courts for years, the discovery process will not be as time consuming as it would be if the issues were new to the parties. Based on the evidence and submissions before the Court, if the parties prioritize the matter, the timeline should be adequate to prepare for trial. The injunction is not tantamount to granting relief nor is it bound to impose a hardship removing any benefit of trial. The threshold merits test is the serious question to be tried standard (R v Canadian Broadcasting Corp, 2018 SCC 5). This threshold is relatively low as a prolonged examination of the merits is generally neither necessary nor desirable (RJR-MacDonald Inc  v Canada, [1944] 1 SCR 311).

It was determined that given the nature of the harm to the Tsilhqot’in, and the waiving of the undertaking as to damages, there was a material risk of irreparable harm to both parties. When there is a risk of both parties suffering a material risk of irreparable harm, the court should favor the status quo (AG British Columbia v Wale (1986), 9 BCLR (2d) 333 (CA)). It was determined that the NOW program would change the status quo as it would disturb the land. The Tsilhqot’in stand to suffer greater irreparable harm if the injunction is not granted. Despite that the Tsilhqot’in pursued a self-help remedy of a blockade outside the courts, the imperative of reconciliation was such that the balance of convenience was in the Tsilhqot’in’s favour.

FB v RB, 2019 ABPC 204

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Application denied. Considering the history of the family, the grandparents of child are granted daily care. The child’s mother has restricted parenting time. The father is allowed no contact unless via a safe visitation facility.

Native Law Centre CaseWatch Blog

This action involved the guardianship and parenting of a child. The grandparents of the child obtained court orders for guardianship. The parents were granted a Parenting Order in 2016, giving them daily care of their child, all decision-making powers, and gave the mother parenting time with the child at the discretion of the grandparents. The mother, however, applied under s 34(2) of the Family Law Act [“Act”], to vary the 2016 Parenting Order, asking that the child be transitioned to her day to day care.

The issues before this Court was whether it had the jurisdiction to make a variation order of the 2016 Parenting Order. If so, what allocation of parenting time, guardianship powers, entitlements, and responsibilities were in the best interests of this child. S 34(3) of the Act determines that the Court can only make a variation order if there has been a material change in the needs or circumstances of a child since the making of a Parenting Order. Additionally, the Court can only consider the best interests of a child as set out in s 18 of the Act, as determined by reference to any change in a child’s needs or circumstances. An existing custody order may be varied on an interim basis in emergent circumstances, but it should not be lightly disturbed as stability and certainty are primary considerations for a child’s best interests (Carey v Hanlon, 2007 ABCA 391).

S 18(2)(b) provides a non-exhaustive list of the needs and circumstances of a child that the Court must consider. Accordingly, for s 34(3) of the Act, a change in the needs or circumstances of a child has occurred if there has been a material change in any of the needs or circumstances listed in s 18(2)(b). The Court determined that there was a material change in the needs or circumstances of the child in this matter concerning the ability and willingness of the mother to care and meet the needs of the child. There was, however, a pending criminal proceeding regarding an allegation of sexual assault against the father, which is a circumstance affecting the safety and well-being of the child, which was afforded greater weight.