The Manitoba Court of Queen’s Bench granted the Plaintiff, Buffalo Point First Nation (the “First Nation”), an interim injunction enjoining the Defendants from entering buildings considered essential for its business operations. In making his findings, Saull J. applied the test for injunctive relief outlined by the Supreme Court of Canada in RJR – Macdonald  Inc. v. Canada (Attorney General), [1994] 1 SCR 311 (“RJR – Macdonald”).

The Defendants were a group of eighteen persons who occupied buildings owned by the First Nation in order to protest its prevailing governance structure, which operates hereditarily, rather than democratically. The Chief, once in power remains for his entire lifetime. At any time, he can chose to retire and selects the new Chief to succeed him at that time.

The occupation by the Defendants occurred on 19 October 2012, and an action was commenced by the First Nation on 2 November 2012. A series of orders for interim injunctions were granted against the defendants in November, the last of which was by Saull J. extending the order indefinitely, pending this decision.

The First Nation claimed that an injunction was necessary to halt the continued interference with its business operations, and that the occupation had caused irreparable business losses, property damage, and had been accompanied by threats of violence. The Defendants argued that they were conducting a peaceable protest, in the only manner that might be effective in persuading the First Nation to change. The Attorney General of Canada argued, as an intervenor, that were an injunction to be granted, an order should be made that allows the police discretion in enforcing it, so that the criminality of any dissenting activity be reduced or eliminated.

Saull J. noted that the applicable legal framework was s. 55 of Manitoba’s Court of Queen’s Bench Act, Rule 40 of the Manitoba Queen’s Bench Rules as well as the three part test outlined by the Supreme Court of Canada in RJR – Macdonald.  Saull J. stated:

“An interlocutory injunction is permitted pursuant to section 55(1) of The Court of Queen’s Bench Act, C.C.S.M. c. C280, where it appears to be just or convenient to do so. Interlocutory injunctions are governed by Queen’s Bench Rule 40.

In RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, the Supreme Court of Canada mandated a three-pronged test for granting injunctive relief:

(1) A preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.

(2) It then must be determined whether the applicant would suffer irreparable harm if the application were refused.

(3) An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the injunction — “the balance of convenience”.

Saull J. found that first part of the test was satisfied if the application is neither vexatious nor frivolous, which it clearly was not in this case, and stated:  

“[g]iven the purpose and the manner in which the defendants were on the Band’s property, they were illegally trespassing and, as a result, amongst other things, were preventing the Band from operating both essential service delivery and business functions. … To my mind, there is a serious question to be tried — the first criterion has been met.”

He found that the second part of the test was also satisfied after canvassing case law to determine that “irreparable harm” included threats and intimidation, property damage, interference with a business, and a restriction of the First Nation’s administrative abilities, which were factors all present in this case. He noted that in particular, the loss of the First Nation’s reputation and its clients’ confidence could not be compensated through damages alone. Saull J. concluded that the First Nation had suffered irreparable harm, whereas the Defendants had not since they were not limited to protesting solely through occupation of the First Nation buildings. Furthermore, he observed that the Defendants had not attempted lawful means, such as court challenges, to effect the desired change in the First Nation’s governance structure. Saull J. stated:

“… I do not regard the irreparable harm put forth by the Band as speculative. Although it may not have been totally held to a standstill, the administration of certain services at the Band’s office has become much more difficult and, in any event, that is only part of the problem. Although I am somewhat sympathetic to the concerns of the defendants regarding the manner of governance at Buffalo Point, I am not persuaded that what occurred here was a “peaceful protest” or that this is the “only manner” to effect change. In the latter regard, as far as I am aware, no steps have been taken to pursue a lawful route to effect change, for example, filing a court action for an order that an election take place.”

Finally, in deciding the third part of the RJR – Macdonald test – “the balance of convenience”, Saull J. concluded that the balance of convenience was in favour of the First Nation and stated:

... having carefully reviewed all of the material put before me, I have no hesitation in determining that the balance of convenience is in favour of the Band. There has been irreparable harm, which would continue if the defendants were permitted to continue with their occupation of the Council Building and not restrained from occupying or blocking any of the buildings that are essential to the Band’s business operations.

Accordingly, the Order for an injunction was granted, subject to two conditions: as requested by the Attorney General of Canada, the RCMP were authorized to maintain their discretion, utilize the maximum operational responses and options, and reduce or eliminate criminal dissenting behaviour.  Second, the Defendants were permitted to access the various buildings named in the Order with the unequivocal written permission of the Chief and Council of the First Nation.

http://canlii.ca/en/mb/mbqb/doc/2013/2013mbqb165/2013mbqb165.pdf

Isabella Mentina, Associate
BLG, Ottawa
613.787.3543
imentina@blg.com

Other Author

Isabella Mentina

Expertise

Aboriginal Law