Monday, 30 March 2015 13:56
Red Chris Development Company Ltd. v. Quock, 2014 BCSC 2399, involved the granting of an interlocutory injunction prohibiting certain individuals from blockading access roads to Red Chris mining operations located in northwestern British Columbia. As with most injunctions, the specific facts are important to the ultimate decision however the case highlights some general principles which are applicable to these types of applications.
Standing of defendants
In response to the injunction application the individual defendants (members of a group known as the Klabona Keepers) asserted that the underlying purpose of the blockade was to ensure that the mining company complied with its consultation obligations. The mining company accepted an obligation to consult but submitted that it had satisfied such obligations through its extensive dealings with the authorized representatives of the relevant Aboriginal group.
In considering these issues the court confirmed as follows:
 Individuals do not have standing to assert collective rights on behalf of an Aboriginal community. In Komoyue Heritage Society v. British Columbia (AG), 2006 BCSC 1517, B.M. Davies J. stated:
 In Gitxsan First Nation v. British Columbia (Minister of Forests) … Halfyard J. succinctly summarized the four criteria enunciated by the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton … that must be satisfied before a representative action will be allowed to proceed. They are:
(1) The class of plaintiffs must be capable of clear definition;
(2) There must be issues of fact or law common to all class members;
(3) Success for one class member on the common issues, must mean success for all; and
(4) The class representative must adequately represent the class … the court should be satisfied … that the proposed representative will vigorously and capably prosecute the interests of the class.
 After having considered the totality of the evidence and the submissions of all counsel, I have concluded that the decided case law does not support the petitioners’ assertion that self-appointed aboriginal persons have, in the past, and should in this case, be allowed standing as individuals to assert collective treaty or other collective aboriginal rights on behalf of an aboriginal community. In my view, the weight of authority is to the contrary and underlies the reason why representative proceedings will only be sanctioned when the putative representative proceeding and representative plaintiff meet the four criteria established by the Supreme Court of Canada in Western Canadian Shopping. [Citations omitted; Emphasis added]
 In Behn v. Moulton Contracting Ltd., 2013 SCC 26, the Supreme Court of Canada considered the issue of who holds s. 35 rights and is thereby entitled to assert those rights on behalf of an Aboriginal community:
 The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature: Beckman, at para. 35; Woodward, at p. 5-55. But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights: see e.g. Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.
Here, the court determined that an organisation (the Tahaltan Central Council) had been authorized to represent the Aboriginal group (which some of the individual defendants were members of) and that the mining company had prima facie complied with its consultation obligations.
This decision reiterates the importance of identifying the appropriate entity who has the ability/authorization to speak on behalf of an Aboriginal group and if possible, formally recording that authority. In this case, a formal resolution existed to this effect and interestingly, one of the signatories to that resolution was the principal defendant.
The relationship between the Crown and Aboriginal groups and particularly the obligation to consult arises (in part) through s. 35 of the Constitution Act 1982. The Supreme Court of Canada has made it clear that this is a mutual obligation of the Aboriginal groups and the Crown to consult in good faith.
This decision confirms previous Supreme Court of Canada and the BC Court of Appeal authority to the effect that the use of self-help remedies such as blockades undermines that obligation to consult in good faith, the rule of law and the administration of justice.
Causes of action
The court identified a number of “legal wrongs” which will likely be available in most, if not all blockade cases:
- Nuisance: the blockading of a lawful business resulting in interference with its use of its land;
- s. 423 & 430 of the Criminal Code: criminal intimidation or mischief;
- the tort of intimidation: compelling another, by threatening to commit and unlawful act, to act/abstain from acting in a manner that causes harm to the public party subject to compulsion;
- the tort of inducing breach of contract; and
- the tort of conspiracy.
The desirability/appropriateness of enforcement or “police” clauses is a matter of some division amongst the judges of the Supreme Court of British Columbia. However in this case, the court acknowledged that the issuing of such orders appears to become accepted “where justified on the facts.”
Two matters relevant to that inquiry, at least in this case were:
- evidence that the RCMP would not enforce the court order for an injunction without an enforcement order; and
- previous injunctions issued as a result of a blockade initiated, or participated in, by one of the defendants.
If an enforcement order is sought, it is recommended that the RCMP’s position on enforcement is requested prior to the application and recorded (if only by hearsay affidavit evidence) in the application materials.
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