Case Brief: West Moberly First Nations v. British Columbia, 2018 BCSC 1835

Case Brief: West Moberly First Nations v. British Columbia, 2018 BCSC 1835

Earlier this week the BC Supreme Court dismissed an injunction application brought by West Moberly First Nations to stop the construction of the Site C dam until the trial of their infringement action. While the result is not surprising, as BC Hydro has already spent in excess of $2 billion on the project, the decision has several concerning aspects.

Justice Milman found that West Moberly raised a serious question to be tried and that there is a risk that the Nation will suffer irreparable harm if an injunction is not granted.  However, he concluded that the balance of convenience lies against granting the injunction sought for the following principal reasons:

1.  although the claim raises a “serious question to be tried,” West Moberly’s chances of ultimately succeeding with the injunction and halting the Project permanently are not strong;
2. the proposed injunction would likely cause significant and irreparable harm to BC Hydro, its ratepayers and other stakeholders in the Project, including other First Nations, and that harm outweighs the risk of harm to West Moberly from not granting an injunction; and
3. the application was brought two and a half years after the commencement of construction, significantly compounding the harm that an injunction would cause.[1]

Usually in injunction cases, judges do not go into the merits of the action. However, in this case there are a number of instances where the judge wades into a discussion of the merits of the action. It is important to note, however, that the First Nation is not seeking damages in the infringement action, something that the Supreme Court of Canada suggests when there is no longer a “meaningful right to hunt [fish or trap] in the First Nation’s traditional territory.”[2] While the court found that West Moberly had established a risk of irreparable harm, the potential for such harm is modest until the Valley is flooded in 2023. As a result, the court directed that the parties work on a schedule so that the trial of the action be completed by mid-2023.

Justice Milman found that the delay in West Moberly launching an action until after its appeals in the judicial review proceedings was a factor weighing heavily against an injunction.  The infringement of the treaty rights issue was central in the previous court proceedings and the Crown took the position that those issues could only be decided in an action.  Had the First Nation brought forward an action without challenging the underlying decisions through judicial review, the Crown would have argued that they were making a collateral attack on those decisions. BC Hydro and the BC Government were well aware of the risks of proceeding with the project. The First Nations were stuck in a procedural “catch 22.” This procedural issue is not addressed adequately in the judgment, which may have implications for future cases.

[1] Para. 8 & 346.

[2] Mikisew Cree First Nation v. Canada, 2005 SCC 69 at para. 48.