Tag Archives: Injunction

AC and JF v Alberta, 2021 ABCA 24

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In an appeal regarding an interim injunction that stayed the implementation of amendments made to the Child Youth and Family Enhancement Act that prevented an Indigenous woman to access financial support to help her transition from government care into adulthood. The appellate court found that the chambers judge failed to consider a number of important factors and failed to give adequate weight to the public interest in weighing the balance of convenience. As a result, the appellate court allowed for the appeal and has set aside the injunction.

Indigenous Law Centre – CaseWatch Blog

There are two applicants within this case – A.C. and J.F., however the applicant J.F. did not file any evidence, and therefore the application was only advanced by the respondent A.C.. A.C. is a 22 year old Indigenous woman whose traumatic childhood resulted in her being in government care since the age of 12. When she turned 18, she became eligible to participate in Alberta’s Support Financial Assistance program [“SFA”], which provided her with transitional social and financial support that, under prescribed circumstances, and could continue until the age of 24. The purpose of the program was to facilitate the transition from childhood to adulthood for children in long term care who, as a result of those circumstances, lack the emotional and financial support to smooth the transition. In 2019, Alberta announced an amendment to the SFA program, reducing the maximum age for SFA assistance from 24 to 22.

A.C. argues that the effect of this sudden and unexpected withdrawal of social and financial support had an incredibly negative effect on her. She challenged the constitutionality of the legislative amendment and the manner which it was carried out, asserting that it breached her section 7 right to life, liberty and security of the person, and her section 12 right to be free from cruel and unusual treatment. She sought out and obtained an interlocutory injunction, which would stay the implementation of the proposed changes pending the full hearing of her Charter challenge. This case deals with Alberta’s appeal of this injunction.

At issue in this appeal is whether or not the respondent met the test for an interlocutory injunction restraining the implementation of this legislation. The decision to grant an interlocutory injunction is a discretionary exercise, with which a tri-parte test should be applied (RJR-MacDonald Inc v Canada (Attorney General), 1994 1 SCR 311). The first step to consider in the test for an interlocutory injunction is whether the applicant has identified a serious question to be tried. The chambers judge found serious questions justifying the interlocutory injunction on three heads: a) infringement of A.C.’s right to security of the person contrary to s. 7 of the Charter; b) cruel or unusual treatment of A.C. contrary to s.12 of the Charter; and c) breach of a fiduciary duty owed by the government to A.C. as a recipient of public support. The appellate court found that the chambers judge erred in identifying the right or freedom in each of these instances and in finding an arguable case that the state action caused or constituted a breach of the right or freedom in question. As a result, the appellate court concluded that the first part of this test was not met.

Since the respondent was unable to meet the first part of the test, it is not strictly necessary to consider the following steps of the analysis which pertain to irreparable harm and the balance of convivence. However, the appellate court considered these steps regardless. With regard to finding irreparable harm, the Court concluded that it was not clear that the respondent proved any potential harm arising from the amendment, much less irreparable harm. With regard to the balance of convenience, the appellate court found that it weighed in favor of dismissing the application for an interlocutory injunction on the basis that the amendment to the legislation was enacted in the public interest. The appellate court concluded their decision by allowing the appeal and determining that interlocutory relief should not have been granted.

Baffinland Iron Mines Corporation v Inuavak et al, 2021 NUCJ 11

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Interlocutory injunction granted. The RCMP have been authorized to enforce an injunction against community protestors, including removing and detaining to the extent necessary, persons who have knowledge of the injunction, and are obstructing or impeding access to the mine site. The mining corporation has approval for its operations and has complied with the necessary requirements under The Nunavut Land Claims Agreement and with any regulatory and legislative requirements.

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Baffinland Iron Mines Corporation [“BIM”] is granted an injunction prohibiting the Defendants, and others, from blockading or obstructing its mining operations at the Mary River site on northern Baffin Island. To get to this mine site, it is a fly in and out with an airstrip. Iron ore is mined and crushed at the mine site, and then trucked to where it can be loaded on to ships at Milne Port, and shipped out during open water season. The mine site and the port are connected by a road approximately 100 km long. The airstrip and accommodation for most of the employees is at the mine site but with some at Milne Port. Shipping of iron ore can occur only during the open water season. However, during the rest of the year iron ore is still trucked to Milne Port and is stockpiled to await the shipping season.

BIM has applied to significantly expand its operations at the mine. It is unknown if the application will be approved or not. The current approvals for the mine are controversial and there are strongly held views and opinions on all sides. The north Baffin communities of Pond Inlet, Arctic Bay, Clyde River, Igloolik, and Sanirajuk are the communities closest to and most affected by the mining operations. Residents from the local communities set up protests at the BIM site. Although these protests were not large, a camp was set up on the runway and road, approximately 3-4 km from the mine site. Although there were approximately 5 protesters at the mine site and 2 on the road, it prevented the plane to land normally at the airstrip and iron ore could not be trucked from the mine site to the port. The protest shut down mining operations and stopped the movement of people and supplies to and from the mine.

Counsel for three of the Defendants appeared in court. At that time the concern of the was the 700 employees at the project site and if they were unable to leave due to the blockade on the airstrip. The Defendants were not opposed to the departure of the employees that were on site. An interim order was issued to ensure that occurred. A short time later the Defendants left the project site and carried on to their respective communities. However, the Plaintiff maintained its application for an interlocutory injunction and brought an action against the Defendants for trespass, unlawful interference with economic interests, and mischief.

The Defendants asserted their Aboriginal rights pursuant to s 35 of the Constitution Act, 1982. They submit that injunctive relief is no longer required as the Defendants have left the project site. The test for injunctive relief have three factors that the court must consider: 1) is there a serious issue to be tried; 2) will irreparable harm result if the relief is not granted; and 3) where does the balance of convenience lie (RJR MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

The Plaintiff’s legal action is a serious issue to be tried. The Defendants’ argument that the need for injunctive relief has lapsed because the protesters have left the project site. While this may be true, their counsel was not able to confirm that they have agreed to not return and continue the protest. As well, counsel is only for three Defendants of the seven protestors. The protest and its reasons have been the topic of discussion in the media. There may be more than one reason for the protest, and individual protesters are there for different reasons.

In response to the protest, Inuit leadership reached out to the Defendants to arrange meetings to reach a resolution. The Defendants have agreed to the meetings, but not much more is known at this junction. The business operations that are at risk continue as a going concern and the protesters’ concerns remain unresolved. Although the protesters may no longer be at the project site, their reasons for being there in the first place remain. As for the s 35 Aboriginal rights argument, asserted Aboriginal rights are rights that are asserted but not yet proven. This is not the Nunavut context. The Nunavut Land Claims Agreement [“NLCA”] is a modern treaty that encompasses the largest land claims settlement in Canada. The processes for resource development are set out in the Agreement. The Plaintiff has complied with the necessary requirements under the NLCA and any regulatory and legislative requirements.

The Plaintiff has loss of revenue because of the inability to transport iron ore from the mine site to the port. The court stated that the complete blockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction (Hudson Bay Mining & Smelting Co Limited v Dumas et al, 2014 MBCA 6). The balance of convenience favours the granting of injunctive relief.

Foxgate Developments Inc v Doe et al, 2020 ONSC 6529

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The Court issued a permanent injunction in favour of Foxgate Developments and Haldimand County to prevent interference with work on a land development known as McKenzie Meadows or any blocking of thoroughfares within Haldimand county. Pleadings filed by Skyler Williams were struck and he was not allowed to participate in the proceedings based on his defiance of prior injunctions. The Court held that Mr. Williams had no authorization to assert Aboriginal rights in this proceeding and found no evidence of objections being raised by any Indigenous groups about the planned subdivision. Mr. Williams was ordered to pay over $160,000 in costs to the applicants. 

Indigenous Law Centre CaseWatch Blog

Foxgate Developments Inc. [“Foxgate”] is a private corporation that is engaged in a land development known as McKenzie Meadows in the County of Haldimand [“Haldimand County”]. These Applicants have been granted and extended interlocutory injunctions, among other things, to prohibit anyone from attending on the subject land without the permission of Foxgate or their agents. The injunctions also prohibited any persons from preventing Foxgate or any of their partners and their agents from working on the development of the approved subdivision. With respect to the Haldimand injunction, no person could block any of the thoroughfares within the jurisdiction of Haldimand County.

During the course of previous hearings of the interlocutory injunctions, Skyler Williams was found to be the leader of protesters who are occupying the subject property, damaging public and private property, and blocking access to public roads. There was no evidence before the Court that Mr. Williams was authorized to represent any Aboriginal or Indigenous group in order to advance a land claim, nor did any Aboriginal or Indigenous group ever sought status to make any land claim in this court action.

Since Foxgate is a private corporation, there is no duty to consult any Aboriginal or Indigenous groups. That duty lies with the Crown in appropriate circumstances. Nevertheless, Foxgate did reach out the Elected Council of the Six Nations of the Grand River. They were not only given an opportunity to have input and express any objections, they entered in an agreement titled “Definitive Agreement”, that has been referred to by the Six Nations of the Grand River as the “Accommodation”. At no time were there any objections made by any Indigenous group about the planned subdivision. In this case, the title given to Foxgate was traced back to the Crown Patent.

Mr. Williams and the protesters have continued to act in such a manner that reflects a willful and complete disregard for the law and the orders of this Court. The activity in and around the highway and streets of Caledonia turned violent. Among other things the protestors threw construction skids, and large truck or tractor tires on the highway from the overpass above the highway. They lit the tires and other large objects on fire. They also lit large heavy equipment on fire. Thick toxic smoked bellowed into the air within the community of Caledonia. Rocks were thrown at the police and their vehicles. Rocks were also thrown at fire department first responders to prevent them from putting the fires out. Their actions demonstrate a complete disregard for the serious and negative consequences of their actions on the community. The escalation of their violent behavior is often followed by Mr. Williams’ projected blame for the violence on others.

This Court gave Mr. Williams an option to reinstate himself and advance any legitimate claims that he wanted to if he complied with the orders of this Court. Foxgate sent him a letter that made it clear that if he chose vacate the subject property, in compliance with the Orders of the Court that Foxgate would assist him in their negotiations with the respective levels of government in regards to compensation they were seeking. There was no reply to Foxgate’s offer. Mr. Williams pleadings are struck. Foxgate and Haldimand County seek to proceed on their request for a permanent injunction. The issue of the permanent injunction shall proceed.

Substantial indemnity costs are appropriate unless the successful party in any way acted unreasonably, in which neither Foxgate nor Haldimand County have. Mr. Williams, however, acted in bad faith. He and the other unknown defendants took the law into their own hands and used self-help to achieve their goals. Mr. Williams openly admitted that he was in contempt of the Court’s orders and if a permanent injunction was granted, he would not comply. The importance of the issues to Foxgate and Haldimand County cannot be overestimated. Substantial sums of money have been invested and many lives have been put on hold due to the conduct of Mr. Williams and the other unknown defendants.

Trans Mountain Pipeline ULC v Mivasair, 2019 BCSC 1512

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Three Indigenous men were each sentenced to 28 days in prison for criminal contempt after breaching an injunction prohibiting interference with Trans Mountain Pipeline operations. While Gladue factors were relevant, deterrence and denunciation needed to be given primary consideration. They could not invoke Indigenous law at the sentencing stage when they failed to challenge the injunction’s validity.

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Stacy Gallagher, Justin Bige and James Leyden [“Contemnors”] are to be sentenced in this matter for breaching an order [“Injunction”] (Trans Mountain Pipeline ULC v Mivasair, 2019 BCSC 2472 [the “Conviction Reasons”]). The Injunction prohibited interference with the operations of the plaintiff, Trans Mountain Pipeline ULC [“Trans Mountain”]. In 2018, this Court granted the Injunction to address protest activity against Trans Mountain and its pipeline expansion project. In broad terms, the Injunction prohibited obstruction of access to and from various Trans Mountain work sites.

Trans Mountain’s project attracted considerable controversy at the time, which continues today. Protests and arrests of protestors began almost immediately after the granting of the Injunction. The police arrested in excess of 200 people for breaching the Injunction.

The Court’s main focus in this sentencing process is to send a clear signal to the Contemnors, and others who may be influenced by them and their actions, that such behavior will not be tolerated. Deterrence is the main sentencing objective. Although contempt of court is a common law offence, and therefore prosecuted under the common law, courts have frequently stated that guidance in respect of sentencing for criminal contempt may be sought from the Criminal Code (International Forest Products Ltd v Kern, 2001 BCCA 48; R v Dhillon, 2015 BCSC 1298; Trans Mountain Pipeline ULC v Mivasair, 2019 BCCA 156).

There is a need for the Court to restore, maintain and preserve the rule of law and the administration of justice by punishing those people who would choose to threaten its existence by taking matters into their own hands and in doing so, encourage others to do the same. It could not be reasonably assumed that “public defiance of lawful orders of the court would continue indefinitely to be visited with only nominal fines and non-custodial sentences” (MacMillan Bloedel Ltd v Brown (1994), 88 CCC (3d) 148 (BCCA)).

All of the Contemnors are Aboriginal through their mothers lineage. Their home Indigenous territories are not in BC or even in the local area, being the traditional territories of the Coast Salish peoples. None of these men have criminal records. Section 718.2(e) of the Code mandates that the Contemnors’ Aboriginal heritage be considered in determining a fit sentence in the circumstances, including the Gladue principles (R v Gladue, [1999] 1 SCR 688; R v Ipeelee, 2012 SCC 13). The fact that an offender is Aboriginal, however, does not dictate that a restorative approach is appropriate toward rehabilitation (R v Wells, 2000 SCC 10 [“Wells”]). Unlike the facts in Wells, of course the convictions here did not arise from any violent offence. The offences here were, however, serious, consistent with the need for this Court to denounce and deter such behavior, both generally and specifically.

The Contemnors repeatedly submitted that they never meant any disrespect for the Court through their actions. However, such words are meaningless when juxtaposed against their actual actions. This Court has already found that the Contemnors, knowing what the Injunction required them not to do, purposefully did just that. Their actions belie any real sense of respect for the Court’s authority. The true substance of the Contemnors’ position in relation to their Aboriginal heritage is founded on their view that they were entitled to disobey the Court’s order because of their heritage and what they perceive as being their obligations to their own Indigenous rule of law. In essence, such an argument is a backdoor collateral attack on the validity of the order and this Court’s jurisdiction to enforce its order in the sentencing process (British Columbia (AG) v Mount Currie Indian Band, [1991] BCJ No 616 (SC); R v Ignace, [1998] BCJ No 243 (CA)).

The Contemnors’ Aboriginal heritage, background and circumstances, while relevant, do not move the needle in terms of the Court’s need to give primacy to the sentencing principles of denunciation and deterrence in this case. Each of them were well aware of what they were doing at the time. The Contemnors knew that they were going to be arrested if they violated the Injunction.

 

Linklater v Thunderchild First Nation, 2020 FC 899

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The Thunderchild First Nation Government is enjoined from continuing with and holding a by-election for Headman in order to fill the vacant position left by the removal of the Applicant, until the determination of his application for judicial review or further Order of the Court.

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The Applicant, Mr. Linklater, was elected Headman on the Thunderchild First Nation Council in late 2018. He was required to reside on Thunderchild First Nation reserve lands or Treaty Land Entitlement lands, or to move there within 30 days of the election (Thunderchild First Nation Election Act [“Election Act”]). Mr. Linklater considers this residency requirement to be contrary to s 15 of the Charter since it represents an unjustified violation of his right to equality as a citizen of a First Nation living off reserve. He also considers it to be a remnant of colonial structures, and of similar discriminatory provisions once in force in provisions of the Indian Act that were found unconstitutional by the Supreme Court of Canada (Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [“Corbiere”]).

In 2019, a citizen of Thunderchild First Nation, asked the Thunderchild First Nation Government to remove Mr. Linklater from his position for failure to meet the residency requirement. It responded that it had no authority to do so because it also considered the residency requirement to be contrary to the Charter. Along with another citizen of Thunderchild First Nation, applications were brought to the Thunderchild First Nation Appeal Tribunal [“Tribunal”] to have Mr. Linklater removed from his position. Among other arguments, it was noted that a 2019 referendum in Thunderchild First Nation proposing various amendments to the Election Act, including the removal of the residency restriction, had not passed.

In 2020, the Tribunal issued a decision removing Mr. Linklater from his position for failure to meet the residency requirement. In its decision, the Tribunal decided it did not have jurisdiction under the Thunderchild First Nation Appeal Tribunal Act [“Tribunal Act”] to strike sections of the Election Act because they violate the Charter. It therefore did not address Mr. Linklater’s Charter arguments. The Tribunal ordered that a by-election be held as soon as possible to fill the position vacated by its removal of Mr. Linklater. Mr. Linklater has challenged the Tribunal’s decision on the application for judicial review. He alleges that the Tribunal did have jurisdiction to decide his Charter arguments, and that it should have decided that the residency requirement was unconstitutional. In this motion, Mr. Linklater seeks an injunction stopping the by-election until his application for judicial review can be heard and decided.

This Court orders that the by-election to fill the vacant seat for Headman on the Thunderchild First Nation Council be halted while Mr. Linklater’s Charter challenge to his removal from that seat is before the Court. This Court should not lightly interfere with elections directed by First Nations governments and tribunals. There is significant consideration given, however, to the fact that Mr. Linklater’s request is not opposed by either the Thunderchild First Nation Government or those who requested his removal. There is no other Thunderchild First Nation decision-maker who can grant the relief sought. This order does not grant Mr. Linklater’s challenge to his removal, nor does it reinstate him in his role as Headman, either temporarily or permanently. This order only seeks to avoid the harm that would arise from someone else being elected Headman while the question of Mr. Linklater’s removal remains outstanding.

This Court has confirmed that the Applicant has met the three-part test that applies to injunctions seeking to halt Indigenous elections (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311; Awashish v Conseil des Atikamekw d’Opitciwan, 2019 FC 1131). Mr. Linklater has already lost his seat. He does not on this motion seek reinstatement; he seeks that remedy among others on the underlying application for judicial review. However, if another Headman is elected to that seat, Mr. Linklater may be excluded from acting as Headman until the next election in late 2022, regardless of the outcome of this application. This would amount to irreparable harm resulting from the by-election itself, over and above any harm already incurred as a result of the order removing him from his seat as Headman.

The balance of convenience favours granting the requested injunction. The particular harm to Mr. Linklater if the injunction is not granted is significant. The broader interests of self-governance and democratic principles are of fundamental importance, but are attenuated in the particular circumstances of this case.

Buck v Canada (AG), 2020 FC 769

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The Federal Court dismissed an application for an interlocutory injunction against the Minister of Crown-Indigenous Relations and Northern Affairs Canada to prevent the execution of a proposed specific claim settlement with the Enoch Cree Nation until a final determination of an action against Enoch and the Crown. The Court held that it has no statutory jurisdiction to issue an interlocutory injunction against the federal Crown in relation to an action as opposed to an application for judicial review. The Court also held that it would not have issued an injunction even if it had the jurisdiction to do so, finding no irreparable harm to the plaintiffs and that the balance of convenience favours reconciliation through implementation of the settlement agreement.

Indigenous Law Centre – CaseWatch Blog

 

Enoch is a First Nation and a band as defined in s 2(1) of the Indian Act, with over 2200 members. In 1942, Canada leased a portion of Enoch Reserve lands, to the Department of Munitions and Supply [“DMS”] for use as a practice bombing range.

In 2008, Canada enacted the Specific Claims Tribunal Act pursuant to which First Nations could file specific claims with the Tribunal as specified therein. A specific claim submitted by a First Nation can be accepted for negotiation by Canada. The negotiation and settlement of a specific claim avoids recourse to adjudication before the Specific Claims Tribunal. The Specific Claims Policy establishes the principles and process for resolving specific claims through negotiation and that such claims can only be submitted by a First Nation and only First Nations can file specific claims with the Tribunal.

Enoch submitted a specific claim in respect of the use by DND of Enoch Reserve lands as a bombing range [“Enoch Specific Claim”]. The Enoch Specific Claim alleged breaches of fiduciary duty and breaches of the 1927 Indian Act. Canada and Enoch reached mutual agreement as to the settlement of the Enoch Specific Claim that included the proposal of a significant payment by Canada to Enoch in full and final settlement of the Enoch Specific Claim [“Proposed Settlement Agreement”]. In 2020, Enoch held a ratification vote at which the large majority of Band members who voted did so in favour of accepting the Proposed Settlement Agreement, and subsequently passed a Band Council Resolution accepting the Proposed Settlement Agreement.

The Plaintiffs are members of Enoch. In 2019, the Minister received a letter stating the Enoch Specific Claim included land held by the McGillis family by way of a Certificate of Possession [“CP”]. Amongst other things, it stated that Enoch had recently engaged directly with the McGillis family, but despite a letter from their counsel to the Department of Justice outlining what the Plaintiffs viewed as the legal obligations of the Crown to the CP holders, there had been no direct engagement with the Crown. It is alleged that Enoch and the Crown could not proceed with the Enoch Specific Claim settlement without reaching prior agreement with the Plaintiffs as to their interests in the land held under the CP.

The Minister advised that Canada’s negotiations with Enoch were undertaken on a confidential basis, and for that reason, the Minister was unable to meet with the Plaintiffs to discuss them. However, that through the specific claims negotiations, Canada encourages First Nations elected leadership to share information about the claim with all community members. The Plaintiffs’ view is that Canada should engage directly with the Plaintiffs. Accordingly, Canada continued to urge the Plaintiffs to direct their claims to Enoch.

The Plaintiffs filed a Statement of Claim in this Court, commencing an action against Canada alleging ongoing trespass caused by alleged munitions scraps on the lands that were leased to DMS for use as the bombing range, including those lands held under the CP. Subsequently, the Plaintiffs filed an Amended Statement of Claim asserting that Canada breached its fiduciary duties owed to the Plaintiffs with respect to the CP Lands, including by finalizing the terms of the Proposed Settlement Agreement to the prejudice of the Plaintiffs. They further alleged the tort of conversion on the basis that as holders of the CP, only they can sue for trespass, seek remediation and receive damages and that Enoch was not authorized to make the Specific Claim in relation to the CP lands.

The determinative issue is this matter is whether this Court has jurisdiction to grant the requested injunctive relief. There is no underlying application for judicial review that could be the basis for the Court’s jurisdiction to grant an interlocutory injunction. There is a clear line of authority standing for the proposition that where an action is brought against the Crown, s 22(1) of the Crown Liability and Proceedings Act will, in the normal course, preclude the granting of an injunction against the Crown. This Court has no jurisdiction to grant an injunction in that circumstance as its jurisdiction is determined by ss 18(1) and (3) of the Federal Courts Act, which permits it to grant injunctive relief only where the underlying proceeding is an application for judicial review.

The lack of jurisdiction of this Court to grant the motion seeking an injunction entirely disposes of the Plaintiffs’ motion. However, even if the Court had jurisdiction, it would not have granted the injunction as the Plaintiffs failed to meet the requirements of the three part test (R v Canadian Broadcasting Corp, 2018 SCC 5 [“Broadcasting”]). Although the Plaintiffs demonstrated a “serious question to be tried”, they could not succeed on the second and third branches. They did not establish that they would incur irreparable harm. In preventing the settlement and the step toward reconciliation that it represents, thereby delaying or precluding the compensation its resolution would afford to Enoch’s members collectively and individually, is not in the public interest and tips the balance of convenience in favour of Enoch and the Attorney General. The Plaintiffs would not suffer the greater harm in that event.

Petahtegoose et al v Eacom Timber et al, 2016 ONSC 2481

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Motion dismissed. The applicants have failed to meet the test for an interlocutory injunction against sustainable forest licence holders.

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The applicants that operate Camp Eagle Nest, a not-for-profit corporation, seek an interlocutory injunction preventing sustainable forest licence holders to stop immediately any cutting, road building, or aerial spraying of herbicides on lands promised for survey by treaty in the Benny area. The Camp develops and delivers arts, wilderness education and Anishnawbek cultural and spiritual training sessions that improve First Nations cultural literacy, and also delivers employment training for First Nations youth and families.

The Atikameksheng Anishnawbek First Nation [“AAFN”] Reserve is located adjacent to the city of Sudbury and is outside of the Spanish Forest. In addition to rights to hunt and fish held under the Robinson-Huron Treaty, AAFN asserts that it has traditional territory rights in the area of Benny, within the Spanish Forest. Sagamok Anishnawbek First Nation is also a party to the Robinson-Huron Treaty, and also asserts traditional territory rights in this same area.

The three part test for an interlocutory injunction is set out as follows: 1) the applicant must demonstrate a serious question to be tried; 2) the applicant must convince the court that it will suffer irreparable harm if the relief is not granted; and 3) the balance of convenience must favour the applicant (RJR-MacDonald Inc v Canada, [1994] 1 SCR 311). The remedy of an injunction is an all-or-nothing solution. Either the project proceeds or not.

By contrast, the duty to consult assists in balancing Aboriginal interests and societal interests by reconciling Crown interests with Aboriginal interests. The jurisprudence makes it clear that in disputes involving First Nation peoples and the protection of First Nation culture and heritage, there is a duty to consult and to accommodate the concerns of First Nation peoples wherever possible (Haida Nation v British Columbia (Minister of Forests), [2005] 1 CNLR 72 [“Haida”]). The Supreme Court of Canada makes it clear in Haida that the duty to consult is paramount, but not the duty to agree.

Forest management plans for the removal of timber and the sustainability of forests are created after a long process of consultation and negotiation with stakeholders and people who would be directly affected. The consultative summary submitted to the Court is detailed and extensive. In this matter, there is overwhelming evidence that the duty to consult has been met by the Ministry of Natural Resources and Forestry in attempting to accommodate the concerns of the First Nations Peoples in the Spanish Forest Management Plan in and around the area of the hamlet of Benny. Even applying a low threshold, that threshold has not been met to establish that there is a serious question to be tried.

The applicants have not been specific about the harm that they would suffer if an injunction is not granted. They spoke in terms of generalities. Generalities do not satisfy the degree of proof required to establish irreparable harm. The Court concluded on the evidence and the facts of this case that the applicants have failed to establish all three requirements for an interlocutory injunction.

Further, a First Nations band may authorize an individual to represent its interest for the purpose of asserting the rights of the band, but that was not the situation in the case at bar. The applicants were not authorized by the AAFN to represent or speak for the band in its dealings with the Ministry of Natural Resources and Forestry concerning the Spanish Forest Management Unit in or around the hamlet of Benny. On the contrary, the AAFN was very much involved in the consultative process as seen by the consultative record. The applicants asserted that as First Nations people they are entitled to be consulted separate and apart from the AAFN. The duty to consult exists to protect the collective rights of First Nation peoples and therefore the duty to consult is owed to First Nation groups as a whole and not to individual members of the band (Behn v Moulton Contracting Ltd, 2013 SCC 26).

Coastal GasLink Pipeline Ltd v Huson, 2019 BCSC 2264

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Interlocutory injunction and enforcement order granted. The defendants are restrained from preventing access to key service roads used by the plaintiff, Coastal GasLink Pipeline Ltd.

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The plaintiff, Coastal GasLink Pipeline Ltd, is a wholly-owned subsidiary of TC Energy Corporation (formerly known as TransCanada Pipelines Ltd). The plaintiff obtained all of the necessary provincial permits and authorizations to commence construction of a natural gas pipeline [the “Pipeline Project”]. Over a period of several years beginning in 2012, the defendants set up the Bridge Blockade on the Morice West Forest Service Road [“FSR”]. The defendants have said publicly that one of the main purposes of the Bridge Blockade was to prevent industrial projects, including the Pipeline Project, from being constructed in Unist’ot’en traditional territories. In 2018, the Court granted an interim injunction enjoining the defendants from blockading the FSR. Blockading persisted, however, at another access point along the road, which resulted in the Court varying the interim injunction order to include all of the FSR.

The Pipeline Project is a major undertaking, which the plaintiff contends will generate benefits for contractors and employees of the plaintiff, First Nations along the pipeline route, local communities, and the Province of British Columbia. The defendants assert that the Wet’suwet’en people, as represented by their traditional governance structures, have not given permission to the plaintiff to enter their traditional unceded territories. The defendants assert that they were at all times acting in accordance with Wet’suwet’en law and with proper authority. The Wet’suwet’en people have both hereditary and Indian Act band council governance systems and there is dispute over the extent of their respective jurisdictions.

The Environmental Assessment Office issued to the plaintiff a Section 11 Order that identified the Aboriginal groups with whom the plaintiff and the Province of British Columbia were required to consult regarding the Pipeline Project. The plaintiff engaged in consultation with the Wet’suwet’en hereditary chiefs through the Office of the Wet’suwet’en over a number of years. The Office of the Wet’suwet’en expressed opposition to the project on behalf of 12 of the 13 Wet’suwet’en Houses. Offers by the plaintiff to negotiate agreements with the Office of the Wet’suwet’en have not been accepted.

The plaintiff has entered into community and benefit agreements with all five Wet’suwet’en elected Bands. The long-term financial benefits to those, and 20 other Indigenous Bands, may exceed $338 million cumulatively over the life of the Pipeline Project. The elected Band councils assert that the reluctance of the Office of the Wet’suwet’en to enter into project agreements placed responsibility on the Band councils to negotiate agreements to ensure that the Wet’suwet’en people as a whole would receive benefits from Pipeline Project. This appears to have resulted in considerable tension between the Office of the Wet’suwet’en and the elected Band councils.

The Court found that the reconciliation of the common law with Indigenous legal perspectives is still in its infancy (Beaver v Hill, 2018 ONCA 816 [“Beaver”]). Indigenous customary laws generally do not become an effectual part of Canadian common law until there is some means or process by which they are recognized. This can be through its incorporation into treaties, court declarations, such as Aboriginal title or rights jurisprudence, or statutory provisions (Alderville First Nation v Canada, 2014 FC 747). There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. The Aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law. Indigenous laws may, however, be admissible as fact evidence of the Indigenous legal perspective. It is for this purpose that evidence of Wet’suwet’en customary laws has been considered relevant in this case.

There is significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project. The Unist’ot’en, the Wet’suwet’en Matrilineal Coalition, the Gidumt’en, the Sovereign Likhts’amisyu and the Tsayu Land Defenders all appear to operate outside the traditional governance structures of the Wet’suwet’en, although they each assert through various means their own authority to apply and enforce Indigenous laws and customs. It is difficult for the Court to reach any conclusions about the Indigenous legal perspective. Based on the evidence, the defendants are posing significant constitutional questions and asking this Court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial.

The defendants have chosen to engage in illegal activities to voice their opposition to the Pipeline Project rather than to challenge it through legal means, which is not condoned. At its heart, the defendants’ argument is that the Province of British Columbia was not authorized to grant permits and authorizations to the plaintiff to construct the Pipeline Project on Wet’suwet’en traditional territory without the specific authorization from the hereditary chiefs. Rather than seeking accommodation of Wet’suwet’en legal perspectives, as suggested by their counsel, the defendants are seeking to exclude the application of British Columbia law within Wet’suwet’en territory, which is something that Canadian law will not entertain (Beaver).

Such “self-help” remedies are not condoned anywhere in Canadian law, and they undermine the rule of law. The Supreme Court of Canada has made it clear that such conduct amounts to a repudiation of the mutual obligation of Aboriginal groups and the Crown to consult in good faith (Behn v Moulton Contracting Ltd, 2013 SCC 261).

All three branches of the test for an interlocutory injunction are satisfied. Injunctive relief is an equitable remedy. In the Court’s view, it is just and equitable that an injunction order be granted and that this is an appropriate case to include enforcement provisions within the injunction order. The public needs to be informed of the consequences of non-compliance with an injunction order (West Fraser Mills v Members of Lax Kw’Alaams, 2004 BCSC 815).

Note: Benjamin Ralston is a sessional lecturer at the College of Law and a researcher at the Indigenous Law Centre. We are proud to acknowledge his contribution as co-counsel for the defendants in this case.

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.

Alton Natural Gas Storage Inc v Poulette, 2019 NSSC 94

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Permanent injunction order granted. The Applicant company may make a place on its lands where protestors could gather and be seen by the public. The Respondents and their belongings are confined to this permitted area.

Native Law Centre CaseWatch Blog

Alton Natural Gas Storage Inc [“Alton”] was seeking a permanent injunction against Respondents who oppose Alton’s plan to use hydro technology to construct a vast underground cavern system. Discharge construction water would flow as a result into the Sipekne’katik River [“River”]. The Mi’kmaq people have used the waterway for over 4,000 years. The Sipekne’katik First Nation and other First Nations have significant interests in the River. Alton was proposing to construct a system of caverns in the land beside the River to store natural gas and had acquired over 40 acres of land bordering the River. To do so, Alton planned on creating the caverns by pumping the River water into salt deposits underground. Alton expressed that the brine was to be injected into a mixing channel adjacent to the River, diffused, diluted, and returned to the River at a salinity level within the natural range.

Numerous First Nations, however, expressed their fears that the brine would pollute the River. A camp was built near the front entrance to Alton’s land and its guardhouse. Alton alleged that the camp prevented the heavy equipment needed to create a pump system. Protestors continued to impede access to Alton’s property at various times after 2016. The court determined that for Alton to receive a motion for an interlocutory injunction it must show three things: 1) that its claim raises a serious issue to be determined on the hearing of the application for a final injunction; 2) it will suffer irreparable harm if there is no temporary injunction before the hearing of the application; and 3) the balance of inconvenience must favour Alton over the Respondents (RJR MacDonald v Canada, [1995] 3 SCR 199 [“RJR”]).

Alton proved title and occupation to the land along the River where the protestors were camped and had established a serious issue to be tried. Evidence of threats from Youtube was sufficient to establish irreparable harm (RJR). Assessing the balance of convenience involved “determining which of the parties will suffer the greater harm from the granting or refusing of an interlocutory injunction, pending trial” (Maxwell Properties Ltd V Mosaik Property Management Ltd, 2017 NSCA 76).  The Court expected something more than an assertion of Aboriginal or treaty rights to establish a balance of inconvenience favouring the Respondents. Therefore, the balance of convenience was determined to be with Alton.