The British Columbia Supreme Court has dismissed an application for an injunction that would have restrained the Province of British Columbia from authorizing various industrial developments within a 10,000 sq. km area in Northeast British Columbia (Yahey v. British Columbia, 2017 BCSC 899).

The application was brought by Blueberry River First Nations (Blueberry River), who are signatories to Treaty 8. Blueberry River brought an action against the Province in 2015, alleging that the cumulative effects of various industrial developments within their claimed territory (particularly forestry and oil and gas activities) have taken away the meaningful ability to exercise their Treaty rights. (BLG represented the Province of British Columbia).

This is the first action in British Columbia to allege a breach of Treaty rights on the basis of cumulative effects.

Background

In August 2015, the Court dismissed an earlier injunction application by Blueberry River. That application sought to enjoin the Province from selling certain Timber Sales Licenses, which were within what Blueberry River alleged to be “Critical Areas” in its territory. The Court dismissed the injunction on the basis that it was not satisfied the timber sales would materially increase the cumulative impacts on Treaty rights. The Court observed that the relief sought would not accomplish what Blueberry River alleged was needed to address its concerns over cumulative effects – effectively an embargo on industrial development within its territory.

In 2016, Blueberry River applied for an injunction seeking much broader relief. It sought to prohibit the Province from authorizing industrial development relating to forestry and oil and gas activities within defined “Critical Areas.” These Critical Areas overlap significantly with the Montney formation – one of North America’s most significant natural gas plays. As a result, the injunction would have had a significant impact not only on the Province but also on many companies with operations in the area.

The Decision

In the result, the Court concluded that Blueberry River had established a prima facie case on the basis of its pleadings, noting that there were many live issues between the parties that would have to be determined at trial.

With respect to irreparable harm, the Court noted that there was a dispute in the evidence as to whether Blueberry River’s allegations of harm were accurate, which could only be resolved after a trial. However, noting that the standard for establishing irreparable harm was “low,” the Court concluded that the assertions of harm in affidavits filed by Blueberry River members were sufficient to establish irreparable harm for the purpose of the application.

Nevertheless, the Court concluded that Blueberry River had not established that the balance of convenience weighed in favour of granting the injunction, and dismissed the application on that basis. The Court relied on several factors in reaching this determination:

  • Affidavit evidence from various government representatives established that the injunction would have a significant negative impact on government revenue and the economy – particularly the local economy in and around Fort St. John, which the Court noted had already been experiencing a significant slow down.
  • The injunction would harm third parties. The Court referred to affidavits filed by various companies, including oil and gas producers and distributors and forestry companies, which spoke to significant financial harm and potential loss of employment that would ensue if the injunction was granted.
  • The proposed terms of the injunction were vague and uncertain. The injunction purported only to prevent “future” authorizations within the Critical Areas of Blueberry River’s territory. However, given that active projects often require ongoing authorizations, the injunction would in fact impact these previously approved projects. Furthermore, given the interconnected nature of industrial development in the area, the injunction would also impact projects and activities falling outside the Critical Areas and Blueberry River’s territory.
  • The Court also noted that the upcoming trial date (set for March 2018) would limit any harm to Blueberry River in the interim.

Running throughout the Court’s decision was an explicit acknowledgement that there were significant disputes in the evidence that the Court was reluctant to decide prior to trial. As stated at paragraph 121 of the decision, “the court should be wary of governing by interlocutory order, as it might do here by making adjudication between the merits of the Province’s measures and the framework proposed by Blueberry River.” Ultimately, such issues will have to be resolved at trial.

Implications

There has been no indication yet whether the Plaintiffs intend to seek leave to appeal. They have 30 days from the date of the decision to do so.

Trial is set to commence in March 2018.

Pat Foy, Q.C.Rick Williams, and Tim Pritchard acted for the Province of British Columbia.