Environmental, Indigenous and Natural Resources Blog

On October 24, 2018, the British Columbia Supreme Court released the latest decision in the West Moberly First Nation’s series of legal challenges to the “Site C” project, a hydroelectric dam, generating station and associated infrastructure, currently under construction along the Peace River in northeastern British Columbia. West Moberly has opposed the project from its inception and, in a series of challenges since 2010, has along with other Indigenous groups sought judicial review of various regulatory approvals issued for the project.  

Those judicial review efforts were unsuccessful, and in January, 2018, West Moberly commenced an action against Canada, British Columbia and BC Hydro that the Site “C” project unjustifiably infringes West Moberly’s treaty rights. West Moberly then applied for an interlocutory injunction. West Moberly alleged that the project poses a threat to its Treaty 8 rights and sought to stop all construction and related activities on the project for the earlier of 24 months, except for certain “preservation activities”, pending final determination of the claim. In the alternative, West Moberly sought to prevent further work in 13 critical areas said to be of particular importance to its treaty rights.

In West Moberly First Nations v British Columbia, 2018 BCSC 1835, the Supreme Court of British Columbia denied West Moberly’s injunction application.  

The test for an interlocutory injunction requires an applicant to establish the following elements:

1. that there is a serious question to be tried;
2. that there is a risk of irreparable harm; and
3. that the balance of convenience supports granting an injunction.

The Court held that there was a serious question to be tried, in the sense that the claim advanced was not “obviously frivolous”. However, while the Court held that West Moberly raised a serious question to be tried and that there was a risk that it would suffer irreparable harm if an injunction was not granted, the balance of convenience favoured a ruling against injunctive relief. In arriving at its determination, the Court made a number of key findings:

• An injunction will cause delays and increased costs in the tens of millions of dollars, which in turn will cause harm to ratepayers and third parties such as local communities and other First Nations looking to economically benefit from the project.
• West Moberly’s chances of ultimately succeeding with the claim and halting the project permanently were not strong.
• The harm that would flow from the injunction was compounded by West Moberly’s two-year delay in bringing the action.
• West Moberly was unwilling and unable to provide the usual undertaking to pay damages and this was not an appropriate case to relieve them of this requirement, as their claim on the merits was not particularly strong and the financial consequences would be enormous and far-reaching.
• The fact that BC Hydro was the same proponent who carried out the previous projects on the river also underscores that this is, like the two older dams, an important public infrastructure project rather than a private venture for profit.

The Court remarked that “if an injunction is granted but the claim turns out to be unsuccessful on the merits, one of the most important public infrastructure projects undertaken in decades will be needlessly put into disarray.” In dismissing the application, the Court directed the parties to agree on a schedule that would lead to a conclusion of the trial of West Moberly’s action by no later than mid-2023.

With thanks to articling student Holly Barker for her assistance in drafting this article.

For more information about this decision, contact any member of Lawson Lundell’s Indigenous Law Group.