On August 25, 2016, the BC Supreme Court released its decision in Revolution Infrastructure Inc. v. Lytton First Nation, 2016 BCSC 1562, granting an interlocutory injunction restraining the Lytton First Nation (“LFN”) from interfering with a company’s use of a road passing through its reserve; asserting Aboriginal rights and title over lands owned and used by the company as a composting facility; and harassing or interfering with that company’s employees, contractors, suppliers and customers.
The Plaintiffs are interrelated companies (collectively “Revolution”) that operate a composting facility on privately-owned lands in British Columbia’s southern interior. Revolution hauls organic waste to its facility using commercial trucks. To reach its facility, Revolution relies on a road that passes through LFN’s reserve lands. This road is subject to LFN’s asserted Aboriginal rights and title, but had been used by Revolution without interruption since 2009 and used by the public for a significant period of time before that.
In March 2016, LFN enacted a by-law which stated: “A person who operates a commercial vehicle larger than a single axle 9100 kg GVW shall be deemed to be frequenting the Reserve for a prohibited purpose and in Trespass…” In April, LFN installed a gate on the road near the entrance to the LFN reserve and posted a sign prohibiting “COMMERCIAL VEHICLES LARGER THAN A SINGLE AXEL, 9100 KG GVW” from using the road.
Later that same month, the Province appointed a third party facilitator at the request of LFN. LFN agreed not to enforce the by-law until facilitation concluded. Although LFN had not enforced the by-law and Revolution had still been able to access the road, no facilitation had occurred. Revolution sought an interlocutory injunction to prevent any interference with its contractual relationships that depended on the continued use of the road passing through LFN’s reserve.
The Court found that Revolution satisfied the test for injunctive relief.
The Court found several serious questions to be tried, mainly related to LFN’s position that the road through its reserve is not a public road and that Revolution is trespassing on LFN lands subject to Aboriginal title. Since none of these questions could be resolved without a trial, the Court found that Revolution satisfied the first part of the test.
The Court found that the by-law would interfere with Revolution’s use of the road through LFN’s reserve, which would irreparably harm Revolution’s ongoing business. While reiterating principles from recent decisions dealing with irreparable harm in injunctions sought by plaintiffs in the extractive sector, the Court distinguished the LFN’s reliance on a previous decision of the BC Court of Appeal, holding that Revolution did not need to prove that the by-law would cause its business to close or lose its market position to establish that there would be interference with Revolution's business as an ongoing concern. The Court held that the Plaintiff had established that there would be sufficient interference with Revolution’s business to demonstrate that it would suffer irreparable harm.
Balance of Convenience
The Court found that Revolution would suffer more if the injunction was not granted than LFN would suffer if the injunction was granted. In reaching this conclusion, the Court refused to find that LFN’s proprietary rights outweighed Revolution’s need for unrestricted access to the road through LFN’s reserve. Notably, the Court also decided to grant the injunction on the basis that doing so may encourage the parties to resolve their issues by providing additional time for the facilitation process to occur.
This decision relies heavily on upholding the status quo. Revolution had been using the road for a number of years, and the public long before that. As a result, Revolution was justified in building a business that relied on the use of that road. Without establishing some other irreparable harm to count in the balance against the disruption of Revolution’s business, the Court will side with the status quo until the matter is settled by a trial. In addition the decision gives the parties time to resolve the issue through negotiation, an approach that the Courts at all levels have tried to foster.