In Yahey v. British Columbia, 2017 BCSC 899, the court dismissed an application for an interlocutory injunction sought by Blueberry River First Nations (“Blueberry River”). The purpose of the application was to attempt to enjoin the Province from authorizing further industrial development in certain sectors of the Blueberry River traditional territory pending a trial over infringement of treaty rights, scheduled for March 2018. The court concluded that Blueberry River—despite satisfying the first criterion for obtaining an interlocutory injunction; the existence of a fair question to be tried—had not satisfied the second criterion, which requires that the balance of convenience favours the granting of the injunction.
This application was brought in the context of Blueberry River’s underlying action against the Province, which alleges the infringement of Blueberry River’s treaty rights. In 2015, Blueberry River brought a similar—though narrower—application in relation to this same action, for an injunction against the Province. The court dismissed the 2015 application on the grounds that the balance of convenience requirement had not been met (2015 BCSC 1302).
a) Is there a Fair Question to Be Tried?
At paragraph 42, the court described the question of Blueberry River’s main action as “whether the cumulative effect of all industrial development in the Blueberry River’s traditional territory has become so extensive that it amounts to a breach of treaty rights.” This, the court noted, was a fair question to be tried. The court concluded that the first part of the test for the granting of an interlocutory injunction had been met.
b) Does the Balance of Convenience Favour an Injunction?
The balance of convenience analysis involves the weighing of harm to the plaintiffs against harm to others, including not only the Province, but also third parties.
As part of the balance of convenience analysis, the applicant must show irreparable harm. The Court relied on the definition of “irreparable harm” from RJR-MacDonald (paragraph 341): “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” The court cited evidence presented by members of Blueberry River describing the detrimental effects of industrial development on their hunting activities and concluded that Blueberry River had established irreparable harm (paragraph 93).
However, when determining which of the parties will suffer the greater harm from the granting or refusal of the injunction, the Court concluded that the balance of convenience favoured refusing the injunction. The Court advanced several reasons for its conclusion: first, the evidence of economic harm to the Province by way of lost revenues; second, adverse effects on third parties such as businesses, some of which are Aboriginally-owned; third, the lack of clarity and breadth of the relief sought, given that “further” developments might in fact include pre-existing projects that require the periodic renewal of permits or additional ancillary permits; fourth, the possibility that the public interest in the fair and orderly settlement of the claim might not necessarily be advanced by the granting of an injunction, as opposed to a final decision on the merits; and, lastly, the fact that the trial dealing with the underlying claim is scheduled to be heard soon, in March 2018.
The Court concluded by acknowledging the difficult situation faced by Blueberry River, and reiterated the Crown’s duty to act honourably. The Court emphasized, as many courts have also done in the past, that Crown consultation (and potential accommodation) go a lot farther toward achieving reconciliation than injunction litigation, and encouraged the parties to “pursue a collaborative path pending trial.”