Summary
On May 25, 2022 the BC Supreme Court (BCSC) released its judgement in Reece v. Canada (Attorney General) 2022 BCSC 865, a dispute involving the sale of the Nasoga Lands in northwestern British Columbia to the Nisga'a Nation by the Province, to which the "Allied Tribes" (a group comprised of members of the Lax Kw'alaams and the Metlakatla Nations) are opposed. The sale of the Nasoga Lands and their addition to the Nisga'a Treaty is subject to the consent of the Province and Canada.
The BCSC addressed two issues in this decision:
- Is an injunction available to the Allied Tribes prior to proof of Aboriginal title?
- Are the Allied Tribes entitled to an injunction?
The court held that injunctive relief is available prior to proof of Aboriginal title, but that whether an injunction will be issued depends on the facts. The court went on to grant an injunction preventing the Province and Canada from moving forward with the proposed sale of the Nasoga Lands and consenting to add them to the Nisga'a Lands for a period of 18 months.
Background
Currently, the title to the Nasoga Lands is held by the Province. In 2016, the Province and Canada approached Allied Tribes to begin consultations regarding the transfer of the Nasoga Lands to the Nisga'a. The Allied Tribes opposed the disposition of the land from the beginning claiming that they, and not the Nisga'a, had Aboriginal title to the lands. For the next five years the parties engaged in correspondence focused on the strength of the Allied Tribes's claim to Aboriginal title in the Nasoga Lands. During this period, the Allied Tribes expressed their concern with the Nisga'a Nation's intention to build an LNG facility on the Nasoga Lands and the impact that this project would have on their Aboriginal rights and title.
On July 2021, the Province notified the Allied Tribes that it was planning on proceeding with the transfer of the Nasoga Lands to the Nisga'a in the fall, despite the unresolved issues surrounding the Allied Tribes's claim to Aboriginal title to these lands. In response, the Allied Tribes filed the application for an injunction, which lies at the heart of this decision.
What Did the BCSC's Decision Hinge On?
Regarding the issue as to whether an injunction is available to the Allied Tribes prior to proving Aboriginal title over the Nasoga Lands, the court relied on Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, and Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 where the Supreme Court of Canada confirmed that injunctions are available to Indigenous groups prior to proof of Aboriginal rights or title and when the claim is that the Crown has breached its duty to consult.
It is worth noting that while the adequacy of the Crown's duty to consult was not a central issue in this decision, the consultation process undertaken by the provincial and federal Crown with the Allied Tribes from 2016 until 2021 was highly relevant to the determination of the main issues.
Regarding the issue as to whether the Allied Tribes are entitled to an injunction, first, the court found that the evidence advanced by the Allied Tribes, including an extensive expert's opinion, established a strong case that the Allied Tribes do hold title to the Nasoga Lands. It is on this basis that the court concluded that the Allied Tribes would suffer irreparable harm if the injunction is not granted.
The court cites Wahgoshig First Nation v. Ontario, 2011 ONSC 7708 ("Wahgoshig"), which held that Canadian law has extensively recognized that the negative impacts on Aboriginal rights and restrictions on the ability of Aboriginal groups to exercise their rights in preferred places due to resource development activities on Crown lands constitutes irreparable harm. The court also relies on Wahgoshig to highlight the importance of land to Aboriginal groups from a cultural identity perspective and how monetary compensation is often inadequate to fully capture the holistic value of the land for Aboriginal rights claimants.
Further, the court emphasizes how irreparable harm may arise if Aboriginal rights claimants are unable to preserve key evidence that may help them establish Aboriginal rights or title before a court. In this case, given the Nisga'a Nation's clear intention to develop LNG pipelines and potentially an LNG plant on the Nasoga Lands, the court found that this development may destroy critical evidence, interfere with sacred sites, and thus irreparably harm the Allied Tribes' ability to prove Aboriginal title.
Yet, the court found that the most significant harm would result from the transfer of the Nasoga Lands into the control of the Nisga'a under the Treaty. This land transfer implies that the Crown's duty to consult with and potentially accommodate the Allied Tribes would be diminished and only be triggered in instances where a federal or provincial permit is required. Unlike the Crown, the Nisga'a have no legal obligation to consult or accommodate the Allied Tribes's Aboriginal rights and title.
The Nisga'a Nation argued that their Treaty would protect the rights of the Allied Tribes as a series of non-derogation clauses establish that the Treaty would no longer operate to the extent that it adversely affects the s. 35 Constitutional rights of another Aboriginal group. The court found that these clauses only operate once a court has made a final determination of Aboriginal rights and are silent as to impacts on Aboriginal rights pending determination, as in the present case. Therefore, the BCSC found that the non-derogation clauses in the Nisga'a Treaty do not remediate the irreparable harm to the Allied Tribes.
Lastly, the court addressed the balance of convenience, which contemplates which party will suffer the greater harm from either granting or denying the injunction. In assessing the balance of convenience the court considered three aspects: "... the irreparable harm established by the Allied Tribes if the injunction is not granted, the economic harm that would be suffered by the Nisga'a if the injunction is granted, and the public interest in honouring treaty obligations and respecting the Crown's conduct of the consultation process pending final determination of rights" (para. 141). The court found that the Nisga'a Nation's evidence to substantiate the economic harm resulting from lost revenues associated with the proposed LNG projects in the Nasoga Lands was insufficient. In terms of the public interest, the court found that while it is in the public interest to further goals associated with the Nisga'a Treaty, there is an equally important public interest in upholding the honour of the Crown in instances where an Aboriginal right has yet to be proven.
The court recognized the risk in granting an injunction that could last for several years and enable a party to obtain the final relief it seeks from a trial before the trial has even begun. This is why the court granted a limited time 18-month injunction preventing the sale of the Nasoga Lands to give the parties more time to engage in a dispute resolution process before a final decision is made. The court also gave the Allied Tribes the option to apply for an extension of the injunction in the event that good faith negotiations between the parties have not concluded within 18 months.
Conclusion
This case demonstrates the importance of the strength of a claim to Aboriginal title in the context of a First Nation seeking to enjoin undertakings, including those that include economic development. It was only because the court found that the Allied Tribes had demonstrated a strong claim to Aboriginal title, that they were able to secure an injunction.
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