The Supreme Court of British Columbia granted an interlocutory injunction restraining Aboriginal protestors from blockading two access roads to the site of the Red Chris Mine in northwestern British Columbia. This order replaced an interim injunction granted in early October. The Court found that the plaintiff had engaged in extensive consultation with the Council representing the Tahltan Nation. The defendants constituted a dissenting faction within the Tahltan and did not have standing to challenge the validity of actions taken by the Council. Further, self-help remedies such as blockades cannot be condoned. The plaintiff satisfied the three-prong test for a pre-trial injunction. It was also appropriate to make an enforcement order in this case.

The applicant Red Chris Development Company is a subsidiary of Imperial Metals Corporation. It is developing a copper and gold open pit mine and milling operation, and the project is nearing completion. The Mine currently employs 826 workers, including approximately 100 Aboriginal employees. When the Mine is in operation, it will have a life span of 28 years. The final steps for the development of the Mine includes the construction of a tailings impoundment, and obtaining permits under the Environmental Management Act. A power transmission line is also being constructed for the Mine. Currently, all power required for operations is provided by diesel fuel that is trucked to the site. The main delivery route is the Mine Access Road.

The Red Chris Mine is located within the traditional territory of the Tahltan Nation, which includes the Tahltan Band and the Iskut First Nation. Throughout the development of the Mine, the applicant has consulted with the Tahltan Central Council, a group that represents both the Tahltan Nation and the Iskut. The Court found that Red Chris has obtained all necessary permits and authorizations to develop the Mine, and “engaged in extensive consultation with those advancing Aboriginal title claims over the affected areas”. The Court also noted the participation of the Tahltan in the mine development, such as joint ventures and contracts. In 2012, a tripartite committee involving Red Chris, the Tahltan, and the Province was established, and will last for the entire life cycle of the Mine.

The defendants described themselves as the Klabona Keepers. The majority of the defendants are Tahltan and asserted that they were the rightful title-holders of the lands that will be affected by the Mine. The Court noted that at least one of the defendants is a member of the Secwepemc First Nation from the southern interior of BC. The defendants assert that the Central Council does not represent them. Punnett J. characterized the defendants as a sub-group or family within the Tahltan.

The defendants blockaded two roads to the Mine site in the summer of 2014. The Court found that the blockades arose due to the defendants’ concerns about the tailing ponds breach at the Mount Polley Mine in BC, also operated by Imperial Metals. Subsequent negotiations led to an agreement between Red Chris and the Council, as well as a Memorandum of Understanding (“MOU”) with the Klabona Keepers executed on 23 August 2014. As a result of the MOU, the Klabona Keepers removed their blockades.

The defendants asserted that it was their understanding of the MOU that the mine construction would cease until studies on environmental matters and the tailings storage facility were completed. Punnett J. noted that nothing in the MOU supported that view. On 29 September 2014, the defendants again blockaded the access roads to the Mine and prevented suppliers, employees and contractors from reaching the site. The stated intention of the defendants is to shut down the Mine.

On 8 October 2014, Mr. Justice Grauer granted an interim injunction and enforcement order. The defendants removed the blockades on 14 October, when the enforcement order took effect. Grauer J. also ordered that the hearing of the plaintiff’s application for an interlocutory (pre-trial) injunction be heard in Terrace, rather than Vancouver. The hearing took place in late November.

Mr. Justice Punnett noted that the defendants had been involved in blockades since at least 2006. In an earlier injunction application brought by Red Chris (2006 BCSC 1472), the Court held that physical obstruction is “not an acceptable demonstration of dissent in a democratic society”. 

Before considering the RJR MacDonald test for an injunction, the Court first reviewed the standing of the defendants to assert that there had been insufficient consultation. The defendants asserted that they were entitled to similar consultation as the Council. The Court agreed with the plaintiff that consultation with every sub-group of the Tahltan was not required. Individuals do not have standing to assert collective rights on behalf of an Aboriginal community. In this case, the Council has been authorized to represent the Aboriginal group. In a previous case involving these defendants, the Court had noted that the duty to consult does not extend down to the individual level, as that would result in an unworkable situation that would virtually halt all development activity. Madam Justice Russell held in 2006 BCSC 1472 that it is clear and obvious that consultation must take place with the elected representatives of the First Nation. Punnett J. stated:

In this case, like Red Chris Development and Shell Canada Limited, there is no evidence that the defendants are authorized to speak on behalf of either the Tahltan Band or the Iskut First Nation. They are a group of self-appointed individuals who happen to disagree with the decisions made by the representatives of the Tahltan Nation. It is of note that they include at least one non-Tahltan individual. They do not and cannot speak for the Tahltan Nation, which is the relevant Aboriginal group, or the Tahltan Central Council, the organization tasked with representing that group’s collective interests.

I conclude, on the basis of the evidence before me, that the defendants do not have standing to challenge the validity of the authorized activities of the Tahltan Central Council. Even if they did, self-help remedies such as blockades undermine the rule of law and the administration of justice. The Supreme Court of Canada has made it clear that such conduct amounts to a repudiation of the mutual obligation of Aboriginal groups and the Crown to consult in good faith, and therefore should not be condoned …

The Court then reviewed the RJR MacDonald test for an interlocutory injunction and found that all criteria had been satisfied. The applicant was able to establish that there was a serious question to be tried. The conduct of the defendants may amount to a number of legal wrongs, including nuisance, breach of the intimidation and mischief provisions of the Criminal Code, the tort of intimidation, interference with economic relations by unlawful means, and conspiracy.

The Court held that the criterion of irreparable harm was also satisfied. Even where damages are quantifiable, the impecuniosity of the defendant is a relevant consideration. Irreparable harm may also be caused when a blockade forces a company to downsize, with emotional and psychological effects of long-term unemployment for the workers, their families and their communities. The illegal actions of the defendants had also caused substantial costs to be incurred. A blockade at the preparation stage of a project can also satisfy the irreparable harm criterion, as the long-term losses associated with an indefinite delay are difficult to quantify.

The balance of convenience favours the granting of an injunction. The Court held that there is little evidence of anything that weighs against an injunction order. Indeed, a failure to grant the injunction would condone the deliberate and unlawful conduct of the defendants. The public interest in upholding the rule of law also favoured an injunction order.

The Court held that it was appropriate to make an enforcement order. This is not the first blockade initiated by these defendants. The location is remote, and the number of participants is potentially large. The RCMP will not act without an enforcement order. Punnett J. stated:

It is also of note that in this proceeding the blockaders refused to obey the interim injunction order prior to the enforcement order coming into effect. The blockaders themselves stated that they moved the blockade off of the Mine Access Road in order to avoid arrest, amongst other factors. In my view, this demonstrates the need for an enforcement order in order to ensure that the injunction is respected by the defendants.

The Court therefore granted the pre-trial injunction and enforcement order sought by the plaintiff. The parties were granted leave to file written submissions on costs.

http://www.courts.gov.bc.ca/jdb-txt/SC/14/23/2014BCSC2399.htm

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law