No Interim Injunction for Cumulative Effects

Authors: JoAnn P. Jamieson and Michael Barbero

The British Columbia Supreme Court recently denied a second interim injunction application by the Blueberry River First Nations ("BRFN"), seeking to enjoin the Province from allowing further industrial development on its traditional lands in Northeast B.C. Despite finding that the BRFN is experiencing irreparable harm from the cumulative effects of industrial development on its treaty rights, the Court in Yahey v. British Columbia ultimately concluded that the balance of convenience did not favour the granting of an injunction. The cumulative effects issue is to be addressed at the trial currently scheduled for over 90 days in March of 2018.

Background
In March 2015, the BRFN filed a lawsuit alleging that the provincial Crown had infringed the BRFN’s exercise of treaty rights, specifically its’ “meaningful right to hunt in territories over which they [BRFN] had traditionally hunted, fished and trapped”. The action is premised on the Supreme Court of Canada decision in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), where the Court found that in circumstances where the Crown has taken up so much land that no meaningful right to hunt remains, a treaty infringement could potentially be established.

The Injunction Application
In support of its application, the BRFN put forward a document entitled “Atlas of Cumulative Landscape Disturbances in the Traditional Territory of Blueberry River Frist Nation”. The Atlas purported to demonstrate cumulative effects by showing that 73% of the BRFN’s traditional territory was within 250 metres of an industrial disturbance, and 84% was within 500 metres of an industrial disturbance. In addition, the BRFN tendered evidence from its members addressing the impacts of development on the exercise of treaty rights, namely hunting and trapping.

In response, the Province put forward evidence showing that granting the injunction would have significant impact on government revenue and the regional economy in and around Fort St. John, including several letters from oil and gas and forestry companies attesting to significant, if not severe impact, on their businesses if an injunction of all further industrial activity were granted.

No Injunction
The legal test for granting an injunction has been well established by the Supreme Court of Canada in RJR-McDonald Inc. v. Attorney General (Canada). The test is two pronged. The first prong requires the applicant to satisfy the court that there is a fair question to be tried as to the existence of a right. The second prong involves a consideration of the competing interests. Here, a court is to consider the factors of irreparable harm and the balance of convenience in determining which party will suffer the greatest impact as a result of the granting or refusal of the injunction.

Applying the law, the Court concluded that the BRFN had established the existence of a right and the presence of irreparable harm on the basis of evidence demonstrating the extent of industrial activity and detrimental effects on their Treaty 8 rights. However, in the Court’s view, the BRFN had not shown that the balance of convenience favoured the granting of an injunction. The Court pointed to the following factors in support of its decision:

1. The evidence established the injunction would cause economic harm to the province through the loss of revenue, such as bonuses paid to the province, annual rent and royalties.
2. The evidence established adverse effects on third parties, namely businesses and individuals in the region already hard hit by a slowdown in economic growth.
3. The Court noted that prohibition against future development would, by default, necessarily impact current development and projects given that these projects often are only partially permitted and would require periodic renewal or ancillary permits which would be prohibited by the injunction.

Despite concluding that the BRFN had not satisfied the legal test for the granting of an injunction, the Court acknowledged the “difficult situation” within which the BRFN find themselves. The Court readily accepted that the taking up of traditional land in this area may soon reach a point of no return whereby the BRFN will have lost the ability to meaningfully exercise its rights. However, at this time, the pending risk and the merits of the Province’s existing consultation on cumulative effects frameworks could only be addressed at trial.

Implications
The decision represents an additional layer of risk for industry participants in both Northeast B.C. and beyond. The courts are clearly in tune to the fact that years of development and the resulting cumulative effects are having serious and potentially irreparable impacts on treaty rights. While the balance of convenience favoured the denial of an injunction based on the facts of this case, it is growing more likely that the cumulative impact on the treaty right to hunt, trap and fish could potentially constitute a treaty infringement and quite possibly an injunction in the right circumstance.

In Yahey, the Court encouraged the parties to pursue a collaborative path in ensuring the sufficiency of the Province’s cumulative effects measures. It is in industry’s best interest to encourage governments to enter into a meaningful dialogue with First Nations on this issue. Further, industry can and should continue to work with First Nations and other aboriginal groups to foster understanding of the cumulative effects of multi-sector development on their treaty and aboriginal rights and carve a mutually-beneficial path forward