The Supreme Court of British Columbia dismissed an application by a Treaty 8 First Nation for an injunction to prevent British Columbia from proceeding with a planned auction of fifteen Timber Sale Licences. The balance of convenience did not favour the granting of an interlocutory injunction in this case. Although the underlying action concerns whether the cumulative impacts of industrial development has led to a violation of Treaty 8, the injunction application concerns a specific activity. The cutblocks relating to the Timber Sale Licences represent less than 0.1% of the plaintiff's traditional territory. Most of the evidence on the cumulative effects on Treaty 8 rights was not specific to the cutblocks at issue. Allowing this injunction application would likely lead to a series of applications resulting in a general moratorium on industrial activity in the plaintiff's traditional territory.

The plaintiff Blueberry River First Nations (BRFN) has two reserves near Fort St. John, BC and is a signatory to Treaty 8. The BRFN asserts that its traditional territory covers 38,000 square kilometres in the upper Peace River region of BC, and has identified 10,267 square kilometres as being a "critical are".

The BRFN commenced the underlying action in March 2015. It alleges that the cumulative effect of industrial development in the Treaty 8 area has made or will soon make it impossible for its members to meaningfully exercise treaty rights such as hunting and fishing. They seek declarations that the Crown has breached treaty obligations, as well as interim and permanent injunctions to prohibit the Province from doing or permitting any activities that amount to a further breach. The pleadings in the underlying action refer to forestry, oil and gas, mining, hydroelectric infrastructure, and other developments.

The Court noted that this action is unlike Tsilhqot'in Nation or Haida Nation . The BRFN surrendered ownership of the land covered by Treaty 8 and gave the Crown a prima facie right to "take up" tracts of lands for purposes such as forestry. The BRFN relied upon a passage in Mikisew Cree (2005) in which the Supreme Court of Canada held that the "taking up" clause is subject to the First Nation being able to meaningfully exercise their rights. The question in the underlying action is whether the Crown's conduct over a period of many years has effectively deprived the BRFN of those rights. This is a question of fact that would be determined at trial.

The BRFN put forward evidence about the effect of industrial development in its traditional territory, and the impact on their traditional activities. One study suggested that the area subject to industrial use has been increasing by an average of 136 square kilometres each year.

The BRFN's traditional territory falls within the Fort St. John Timber Supply Area. A Crown agency, B.C Timber Sales (BCTS), proposes to sell the fifteen Timber Sale Licences (TSLs) by public auction. This process is governed by the Fort St. John Pilot Project Regulation . This regulation requires the creation of a Sustainable Forest Management Plan and associated Forest Operation Schedules. The participants in the pilot project include BCTS and five forest companies. The Crown asserted that there had been extensive consultation with First Nations during the development of the Plan and Schedules under the Regulation.

In late 2013, the BRFN elected a new Chief and Council. The new leadership raised issues about the BCTS process that had not been raised before. The BRFN asserted in correspondence in 2014 that certain "critical" areas had to be protected from forestry activities. Chief Yahey also asserted that proceeding with the TSL sales would infringe the BRFN's treaty rights.

This injunction application was heard on July 14-15, 2015. The Court applied the RJR-MacDonald test for pre-trial injunctions: (1) is there a serious question to be tried?; (2) whether irreparable harm would result if the injunction is not granted; and (3) whether the balance of convenience favours the granting of an injunction.

The BRFN satisfied the first prong of the RJR-MacDonald test. It had pointed to evidence that may be relied upon at trial to establish that the cumulative effect of the industrial development in the Treaty 8 area had become so extensive that it amounted to a violation of a treaty right. Such a claim was clearly contemplated by the Supreme Court of Canada in Mikisew . Mr. Justice Nathan Smith held: "I have no hesitation in concluding that BRFN has satisfied the first branch of the RJR-MacDonald test…"

The Court was also satisfied that irreparable harm may result if a pre-trial injunction is not granted. Nathan Smith J. stated:

Irreparable harm would clearly be the result if cumulative industrial development effectively eliminated any opportunity for BRFN to meaningfully exercise its traditional way of life and its rights to hunt, trap and fish. These proposed logging operations are not alleged to be the cause of the harm in and of themselves, but as this court said in Taseko Mines Ltd. v. Phillips , 2011 BCSC 1675 at para 65:

Each new incursion serves only to narrow further the habitat left to them in which to exercise their traditional rights. Consequently, each new incursion becomes more significant than the last.

In that sense, any portion of the overall loss in this case, if it is found to exist, should be characterized as irreparable harm.

The Court also referred to the finding in RJR-MacDonald that it is appropriate to assume irreparable harm in claims involving the breach of Charter rights. This case does not involve the Charter , but does involve an alleged infringement of a constitutionally protected right. In the underlying action, the BRFN seeks declaratory relief, not damages. Nathan Smith J. held: "I find this to be at the very least a case where harm must be assumed, for purposes of the application, to be irreparable".

The Court held that the BRFN was unable to establish that the balance of convenience favoured the granting of a pre-trial injunction, and dismissed the application on this basis. The Crown referred to many factors including the effect on private interests, the uncertainty and disruption to BCTS and other participants in the Fort St. John pilot project, and the public interest in maintaining the certainty and predictability of forest management and operations.

The Court referred to the BRFN's delay in raising the issue of cumulative effects. While noting that the newly-elected BRFN leadership had the right to reconsider the matter, there was no reason why a concern about cumulative effects could not have been raised when these specific cut blocks were under discussion. The BCTS and others "reasonably relied on the lack of objection from BRFN and had a legitimate expectation that this logging would proceed". The Court further stated:

None of these considerations can outweigh a substantial risk that constitutionally protected treaty rights will be breached or that the public interest in upholding the honour of the Crown will be harmed. However, it must be remembered that the irreparable harm alleged by BRFN is a cumulative negative effect that infringes on its treaty rights. Since BRFN seeks an injunction against conduct that is only one part of that cumulative effect, I must consider the relationship between the alleged treaty breach and the specific activity that BRFN seeks to enjoin. It would be unjust to weigh the full inconvenience to the Crown and the public against the full inconvenience to BRFN because BRFN alleges that the irreparable harm stems from a number of sources, many of which would not be affected by this injunction. Accordingly, the strength or weakness of the connection between the conduct that BRFN seeks to enjoin and the cumulative negative effect that poses a risk of irreparable harm affects the balance of convenience.

The Court further noted that the cut blocks covered by the TSLs would represent less than 0.1% of the BRFN's traditional territory, and less than 0.2% of the "critical area". Even if industrial use has been expanding at 136 square kilometres each year, these TSLs only represent 12% of that annual loss. The Court noted that the size of the project is not necessarily determinative, as it could be the "tipping point" beyond which the right to meaningfully exercise treaty rights is lost. Nathan Smith J., however, held that this is "not the evidence in this case". He was not satisfied that these TSLs will materially increase the cumulative effect on the BRFN's treaty rights. He then held:

That leads to a further factor that must be considered in relation to the balance of convenience — the question of whether this injunction will in fact identify the status quo that can and should be preserved until trial. Neither the Crown nor the court should have to deal with a "moving target", meaning an alleged need to preserve a status quo that is being constantly redefined.

Most of the evidence BRFN relies on to show the cumulative effect on treaty rights is not specific to the cut blocks at issue. There is therefore nothing to prevent much of the same evidence being used in support of further injunction applications. The current FOS has one more year to run, so next year there will be another sales schedule with potential impact on BRFN territory. It would be inconsistent with BRFN's position in the underlying action if it failed to seek a further injunction at that time.

The evidence put forward by the BRFN in this application would potentially apply to any development proposed between now and the date of the trial. There is a high probability of "a series of applications", and each order becoming authority for the next. The Court stated:

…The eventual result would be in general moratorium on all or most new industrial activity in the BRFN traditional territory or the area BRFN defines as critical. The Notice of Civil Claim and the affidavit material in support of this application at lease imply that is what is needed.

BRFN may be able to persuade the court that a more general and wide-ranging hold on industrial activity is needed to protect its treaty rights until trial. However, if the court is to consider such a far-reaching order, it should be on an application that frankly seeks that result and allows the court to fully appreciate the implications and effects of what it is being asked to do. The public interest will not be served by dealing with the matter on a piecemeal, project-by-project basis.

The BRFN's application for a pre-trial injunction was therefore dismissed. Costs will be in the cause.

Patrick G. Foy, Q.C. and Rick Williams of BLG's Vancouver office represented British Columbia in this application.


Scott Kerwin


Aboriginal Law