The Supreme Court of Canada dismissed a leave application filed by two Wet’suwet’en chiefs, on behalf of all Members of the House of Ginehklaiyex, in regards to the February 8, 2013 order of the British Columbia Court of Appeal in 2012 BCCA 472 (reported as Canadian Forest Products Ltd. v. Sam).
In May 2011, the B.C. Supreme Court had dismissed an application by CanFor for an interim injunction to prevent the named defendants from physically obstructing or otherwise impeding its logging operations on cutblocks in the area of Topley, BC. At the same time, the Court allowed an interlocutory injunction brought by Chiefs Hagwilneghl and Kelah in a separate action to restrain Canfor from engaging in any timber harvesting or related activities. The decision of Madam Justice Dillon is indexed at 2011 BCSC 976.
In February 2013, the B.C. Court of Appeal allowed an appeal from the chambers judge’s order. Hall J.A. found that the action brought by the Wet’suwet’en chiefs “savours of abuse of process”. The issue of the cutting permit issued to CanFor should have been dealt with under a judicial review process, not a claim for Aboriginal rights and title. Hall J.A. also commented on the historical and commercial dimensions to the dispute, such as the pine beetle issue. He held that the Court should craft a “fair and effective” remedy in these types of cases, and avoid remedies that would only lead to delay and gridlock. There should have been a temporal limit to the injunction. The appeal brought by CanFor was also dismissed.
The Wet’suwet’en chiefs Hagwilneghl and Kelah sought leave to appeal the B.C. Court of Appeal decision. A summary of the case found on the SCC’s website was as follows:
Civil procedure – Interlocutory injunctions – Serious questions to be tried – Doctrine of collateral attack – Applicants blocking access to logging site and subsequently bringing action against logging permit‑holder and asserting Aboriginal rights and title to areas covered by permit – Applicants obtaining interim injunctive relief against logger – Court of Appeal overturning chambers judge’s decision to grant interim injunctive relief – Whether the British Columbia Court of Appeal erred in law in holding that it was an impermissible collateral attack for the applicants to challenge the lawfulness of instruments granted by government to a third party within the context of an action to establish their Aboriginal rights and uphold rights acquired through an agreement negotiated with the Crown – Whether the British Columbia Court of Appeal erred in law in holding that it was an impermissible collateral attack for the applicants to seek an interlocutory injunction halting government-authorized activities of a third party in the context of an action to establish their Aboriginal rights and uphold rights acquired through an agreement negotiated with the Crown – Whether the British Columbia Court of Appeal erred in law by dealing with grounds for which leave to appeal had been denied in support of its decision allowing the appeal.
This application for leave to appeal stems from a chambers judge’s decision granting the applicants, Wet’suwet’en Chiefs, interim injunctive relief against the respondent Canadian Forest Products Ltd. (“Canfor”). Canfor holds a provincial logging permit for an area of land located in north-central British Columbia. Soon after beginning logging operations, Canfor’s access road was blockaded by a First Nations family. Litigation ensued. In the underlying action against Canfor, the applicants seek, inter alia, a permanent injunction against Canfor, restraining it from engaging in logging activities in the relevant area, a declaration that a 2001 agreement between them and the Crown rendered the permit unlawful, and damages for trespass, obstruction, intimidation and wrongful conversion of property. The underlying claim against the Province is for a declaration that the applicants have Aboriginal title to the entirety of the relevant territory, or at least to certain portions of it, for a declaration that the Province unjustifiably infringed upon their Aboriginal title, for a permanent injunction restraining the Crown from taking any steps to authorize logging in the relevant area, for damages for infringement of Aboriginal title, breach of agreement and wrongful conversion of resources, as well as for an order for restoration of alienated Aboriginal title lands of the relevant territory or for compensation. In granting the interlocutory injunction, the chambers judge found that the applicants had established serious questions to be tried, and that that they would suffer irreparable harm if the injunction were not granted. The Court of Appeal overturned the chambers judge’s decision, finding that the central issue in the litigation was the validity of the permit and that the action constituted an impermissible collateral attack on its issuance. Accordingly, there could be no serious questions to be tried.
The Supreme Court of Canada dismissed the leave application with costs.