On September 6, 2019, the British Columbia Supreme Court released its reasons granting the Tsilhqot’in Nation an injunction preventing Taseko Mines Limited from carrying out an exploratory drilling program until the determination of a s. 35 rights infringement trial, or until the injunction is otherwise varied. At the same time, the Court dismissed Taseko’s application for an injunction that would have enjoined members of the Tsilhqot’in Nation from blockading its access to its exploratory drilling program area.
The proposed drilling program would take place in an area of profound cultural importance where the Tsilhqot’in have proven rights. In 2017, the Tsilhqot’in commenced an action alleging that the drilling program infringed those rights. In the summer of 2019, following the dismissal of judicial review applications, the Tsilhqot’in applied for an injunction until that action can be heard. At the injunction hearing, the Tsilhqot’in, represented by Tim Dickson, Aria Laskin and Jason Harman, argued that an injunction should issue because the infringement action had merit, allowing the drilling program to proceed would lead to irreparable harm for the Tsilhqot’in’s rights, and the balance of convenience favoured the grant of the injunction. Taseko disagreed, arguing that the Tsilhqot’in had not even made out a case for prima facie infringement.
The Court rejected Taseko’s arguments, finding that the Tsilhqot’in had raised a serious issue to be tried, and that denying rights-holders access to their preferred locations for the exercise of rights may rise to the level of an infringement (paras. 70-71). In assessing the balance of convenience, the Court held that while there were public interest issues on both sides, “the imperative of reconciliation, an element of which is the ability to pursue infringement actions, is such that the balance of convenience is in the Tsilhqot’in’s favour” (para. 131).
This injunction contest played out following the final dismissal of the Tsilhqot’in’s judicial review of the consultation and accommodation (the Supreme Court of Canada denied leave to appeal in May 2019). This case is the second attempt by First Nations within the last 12 months to obtain interlocutory injunctions pending the trial of claims that their s. 35 rights have been infringed following the dismissal of their consultation challenges. The other challenge this year was brought by West Moberly First Nations against the Site C dam, but was dismissed (2018 BCSC 1835). The granting of the interlocutory injunction sought by the Tsilhqot’in demonstrates that it remains possible to enjoin projects pending the substantive resolution of an infringement claim at trial, particularly where the Aboriginal rights have already been established or are strongly asserted.