July 27, 2015

Injunctions: Yahey v British Columbia


The Blueberry River First Nation sought an interlocutory injunction to prevent the B.C. government from auctioning fifteen timber sale licenses. The Nation asserted the cumulative effects of industrial development had made or would soon make it impossible for the Nation to meaningfully exercise its treaty rights to use of its traditional territory for hunting, fishing and other traditional activities. The Nation argued that the planned logging will contribute to the negative cumulative effects, and should not be allowed until after the trial is decided.

The court concluded a serious issue to be tried, i.e., whether the cumulative effect of all industrial development in the Nation’s traditional territory has been so extensive that there is a breach of the Nation’s treaty rights. The court also accepted irreparable harm if the cumulative industrial development effectively eliminated any opportunity for the Nation to meaningfully exercise its traditional way of life and its rights to hunt, trap and fish. However, the balance of convenience did not favor the Nation. Accordingly the court did not grant the injunction.

Specifically, the Court found that it was necessary to consider the relationship between the alleged treaty breach and the specific activity the Nation sought to enjoin. The Court found the logging cut blocks at issue would affect less than 1/10th of 1% of the Nation’s traditional territory, and that there was no evidence to show logging in the impugned cut blocks would be a “tipping point” from which the right to meaningfully exercise treaty rights is lost. The Court further commented it was concerned this injunction application was a piecemeal approach, given that an assertion regarding cumulative impacts could involve a series of injunction applications regarding different industrial activities, each requiring a separate hearing and potentially paralyzing industrial activity throughout the territory.

The Court nonetheless left open the possibility that a future injunction could be brought addressing cumulative impacts throughout the territory in a more fulsome manner.

Yahey v. British Columbia, 2015 BCSC 1302

Lisa C. Fong, Michael Ng, and Siddharth Akali