On May 31, 2017, the British Columbia Supreme Court (Court) in Yahey v. British Columbia (Yahey) denied a second injunction application by Blueberry River First Nations (BRFN) to limit future development in certain portions of their traditional territory pending resolution of an underlying infringement claim. The decision demonstrates the reluctance of Canadian courts to issue “all-or-nothing” injunctive relief as an appropriate interim remedy for aboriginal and treaty right claims, emphasizing consultation and negotiation as the preferable means for achieving reconciliation.
In March 2015, BRFN began an action claiming infringement of its Treaty 8 rights by the provincial Crown (Province). BRFN’s claim focuses on its “right to hunt in territories over which [it] traditionally hunted, fished and trapped”. As an interim measure to protect its interests pending trial, BRFN has made two injunction applications to limit future development in its traditional territory, both of which have been denied.
BRFN submitted its first application in July 2015 for a relatively narrow interlocutory injunction to prevent the Province from proceeding with a planned auction of 15 timber sale licences. BRFN claimed that extensive industrial development in its traditional territory has led to serious deprivation of its treaty rights, and the issuance of the timber licences would further erode the exercise of these rights. The Court dismissed this initial application on the basis that the “the public interest will not be served by dealing with the matter on a piecemeal, project-by-project basis” and that the balance of convenience overall favoured the Province. However, the Court added, “BFRN may be able to persuade the court that a more general and wide-ranging hold on industrial activity is needed to protect its treaty rights until trial.”
BRFN relied on this statement in bringing its second injunction application in August 2016. BRFN claimed that it addressed one of the deficiencies articulated by the Court in its previous decision by means of affidavits from BRFN members describing the cumulative effects on their territory from over a decade of provincially sanctioned industrial activity. BRFN’s second application sought to prevent the Province from further permitting oil and gas activities, disposing of interests in land, granting rights to harvest Crown timber and engaging in “Further Industrial Activities”. If successful, the injunction would have impacted development activities in up to 10,000 square kilometres of northeast British Columbia.
The Court applied the three-part test for assessing the merits of an interlocutory injunction application from the Supreme Court of Canada (SCC) decision in RJR-Macdonald Inc. v. Canada (Attorney General). The Court found that, although BRFN showed a serious issue to be tried and sufficiently established irreparable harm for the purpose of their application, the balance of convenience again did not support the granting of an interlocutory injunction.
In weighing the balance of convenience, the Court found the Province would suffer the greater harm from a potential injunction. The Court considered a number of factors in its assessment, including:
- Economic loss to the Province
- The adverse effects of granting the injunction on third parties (including project proponents and businesses owned and run by First Nations people)
- The lack of clarity and breadth of the relief sought, in particular the impact to the status quo that preventing “future” permitting may have on the ability of existing projects to operate
The Court also placed considerable weight on the public interest in ensuring the “fair and orderly settlement of aboriginal claims” and the resolution of “competing interests with appropriate measures”, emphasizing that the Court was unable to determine on the evidence whether the current process was sufficient (e.g., consultation and the cumulative effects framework established by the Province). Echoing the rationale underlying the Court’s initial refusal, BRFN again was unable to persuade the Court in favour of granting “such a wide-ranging injunction”.
The Court acknowledged that, although inevitably the “tipping point” beyond which the right to meaningfully exercise treaty rights in the area would be reached with sustained industrial activity, the relief sought by BRFN in this instance would require findings of fact that are reserved for trial. BRFN has not filed an appeal to the decision.
Yahey underscores the challenge articulated by the SCC in Haida Nation v. British Columbia (Minister of Forests) (Haida) that the inflexible nature of injunctions are often unsuited to the complexity of aboriginal claims litigation and achieving the objectives of reconciliation. Injunctions entail a zero-sum result that do not allow for the necessary balancing between aboriginal and non-aboriginal interests. Injunctions may also diminish the incentive of the successful party to work toward a mutually beneficial arrangement, particularly in cases where the underlying litigation may take many years to resolve (which will almost certainly be the case in the infringement action underlying Yahey).
The duty to consult was developed in Haida as a more responsive and appropriate process for protecting aboriginal and treaty rights pending the resolution of claims. The duty to consult provides important protections for Aboriginal groups while remaining sufficiently flexible to allow for the necessary balancing required for reconciliation. It is notable that BRFN is entitled to be consulted by the Province on future decisions that may further impact the exercise of its treaty rights; to the extent BRFN disputes the adequacy of the consultation and related accommodation arising from those future decisions, BRFN may seek an appropriate remedy in the courts.
The issues underlying the litigation in Yahey are significant. The question of determining when the cumulative impacts of development may sufficiently affect the land base such that there is no longer any meaningful opportunity for an Aboriginal group to exercise a treaty right is a critical issue that will have wide-ranging impacts in Canada, particularly in regions that have experienced significant industrial development. The Court recognizes the importance of these issues and strongly encourages the parties to pursue a collaborative path pending trial and to resolve conflicts that arise in a manner agreeable to both sides.