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TREATIES AND AGREEMENTS - Practice and procedure - Injunctions

Wednesday, June 28, 2017 @ 8:51 AM  


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Application by the plaintiff, the Blueberry River First Nations, for an interlocutory injunction. The plaintiff's underlying action alleged a breach of substantive Treaty 8 hunting rights and related fiduciary duties by the Province based on the cumulative effect of industrial development within the traditional lands. The plaintiff sought an injunction enjoining the Province from allowing further logging and oil and gas development, processing and transportation in critical segments of its traditional territory pending trial of the action. The Province opposed the relief sought on the basis it effectively amounted to a veto over future industrial development, contrary to what was contemplated by Treaty 8 and the authorities interpreting it.

HELD: Application dismissed. The plaintiff's action raised a serious issue to be tried as to whether the cumulative effect of industrial development within the plaintiff's traditional territory was sufficiently extensive to give rise to a breach of Treaty rights. Despite the use of unqualified expert scientific evidence, the evidence of the plaintiff's members sufficiently established irreparable harm for the purpose of the relief sought based on the likely detrimental effect of industrial development on the asserted Treaty rights within critical areas. However, the balance of convenience did not support granting an injunction given the breadth of the proposed injunctive relief, and the potential economic harm to the Province and third party businesses through lost revenues. The existing consultation and cumulative effect frameworks served to protect the plaintiff's procedural and substantive Treaty rights.

Blueberry River First Nations v. British Columbia, [2017] B.C.J. No. 1046, British Columbia Supreme Court, E. Burke J., May 31, 2017. Digest No. TLD-June262017006