Photo credit: Doane Gregory
In 1996, the Nisga’a entered into an agreement in principle with Canada and BC with respect to various matters, including lands in the Nass valley. The resulting Nisga’a Final Agreement (the “NFA”) was formalized in 1998 and was ratified by BC in 1999 and Canada in 2000. The NFA is a “treaty” and a “land claims agreement” within the meaning of ss. 25 and 35 of the Constitution Act, 1982. Pursuant to the NFA, lands may be added to “Nisga’a Lands” as defined in the NFA with the consent of Canada and BC.
In 2016, BC began consulting with Lax Kw’alaams and Metlakatla regarding the proposed transfer of about 22,469 hectares of land at the mouth of what is now known as the Nass River (the “Nasoga Lands”) to the Nisga’a Nation, and the addition of Nasoga Lands to “Nisga’a Lands” under the NFA. The Nasoga Lands fall within the “Nass Wildlife Area” under the NFA, an area in which the Nisga’a have a non-exclusive right to exercise their Aboriginal rights. BC and the Nisga’a were then in the process of negotiating a market sale of the Nasoga Lands to the Nisga’a and entering into a lease of an additional 668 hectares of foreshore to the Nisga’a (collectively, the “Disposition”). If the Disposition completes, the Nisga’a Nation will own the Nasoga Lands in fee simple.
Lax Kw’alaams and Metlakatla, on behalf of a group comprised of nine allied tribes of Tsimshian people (the “Coast Tsimshian”), objected to the Disposition and expressed particular concern with the Nisga’a potentially developing an LNG plant on the Nasoga Lands. During consultation regarding the Disposition, BC assessed the strength of the Coast Tsimshian’s claim to the Nasoga Lands as generally being weak to moderate, and proposed to proceed with the Disposition over the objections of the Coast Tsimshian.
Lax Kw’alaams and Metlakatla brought an action on behalf of the Coast Tsimshian asserting Aboriginal title to certain lands and waters including the Nasoga Lands, and brought an application in that action seeking an injunction preventing the transfer of the Nasoga Lands and the addition of the Nasoga Lands to “Nisga’a Lands” under the NFA.
BC took the position that, prior to proof of Aboriginal title, the consent of the Coast Tsimshian is not required for BC to proceed with the Disposition or grant the consent required under the NFA. In BC’s view, the Coast Tsimshian are only entitled to consultation and, in appropriate circumstances, accommodation. The Nisga’a also took the position that, prior to proof of Aboriginal rights and title, the Coast Tsimshian are only entitled to consultation in relation to the Disposition.
Photo credit: Doane Gregory
Entitlement to Bring Injunctions
Relying on the Supreme Court of Canada’s decisions in Haida Nation and Tsilhqot’in Nation, the Court affirmed that injunctive relief is available to Indigenous peoples in these circumstances. Specifically, the Court held that injunctions are a remedy available to Indigenous peoples where the Crown has failed to discharge its duty to consult [para 51]. As such, the Court found that the Coast Tsimshian were within their rights to seek interlocutory injunctive relief.
The Test for Injunctive Relief
In determining whether to grant an injunction, the Court applied the three-part test articulated in RJR-Macdonald Inc. v Canada (Attorney General), which asks whether:
- there is affair question or serious issue to be tried;
- the applicant has demonstrated that it will suffer irreparable harm if the injunction is not granted; and
- the balance of convenience favours the granting of an injunction.
The Court found that there was a serious issue to be tried. While BC argued that the Coast Tsimshian had not yet proven exclusive use and occupation of the Nasoga Lands, the Court found that the Tsilhqot’in Nation decision expressly warned against restricting the understanding of Aboriginal title to concepts of exclusivity found in the Western common law tradition [para 58]. The Court was not prepared to rule out the possibility that a trial judge may apply Tsimshianic law to resolve border disputes between these nations that have lived in the same region for thousands of years. The Court observed that Tsimshianic law may establish whether either nation has proven that, prior to the arrival of Europeans, they held control over the Nasoga Lands sufficient to prove Aboriginal title.
The Court found that the Coast Tsimshian established a strong arguable case that they hold Aboriginal title to the Nasoga lands. The Coast Tsimshian largely relied on an anthropological archaeologist’s report speaking to Tsimshian law to support their claim, which the Court found compelling and described as “[an expert opinion] based on significant peer reviewed research” which was confirmed by the Coast Tsimshian as being consistent with their understanding of their laws [paras 79 and 82].
The Nisga’a largely relied on the affidavit of a hereditary chief. The Court did not find the Nisga’a’s evidence to be particularly compelling. The hereditary chief gave evidence that Nisga’a stories support their use and occupation of the Nasoga Lands and that the Nisga’a had taken their land claim to various colonial governments such as a petition to the Privy Council in 1913 and commencing litigation in 1967 that resulted in the Calder decision. However, the Court observed that Tsimshianic law predates the introduction of Western legal traditions and procedures, and therefore that the “positions taken by the Nisga’a to protect their asserted interests within the Western legal system” were not determinative [para 89].
The Court also found the Nisga’a claim that they can maintain an Aboriginal title claim to the Nasoga lands notwithstanding the NFA to be weak, noting that the NFA “operates to resolve the Nisga’a claims of title and rights.”
The Court found that the Coast Tsimshian stand to suffer irreparable harm as a result of the Disposition. In referring to case law, the Court observed that irreparable harm may be caused where Indigenous peoples lose land that is important from a cultural and spiritual perspective such that no award of damages would compensate for the loss of the land. In short, the Court found the Coast Tsimshian’s arguments, namely that the Disposition and the Crown’s consent under the NFA will be harmful to their legal system and that they stand to lose a place of cultural and social significance, to be compelling. The Court also observed that the establishment of an LNG facility on the Nasoga Lands may harm the Coast Tsimshian’s ability to gather evidence to prove occupation of those lands.
Balance of Convenience
The Court found that the balance of convenience favoured granting the injunction. While the Nisga’a argued that an injunction would negate a benefit provided to them under the NFA, the Court found that the irreparable harm established by the Coast Tsimshian exceeded that which may be suffered by the Nisga’a if the injunction is granted. Moreover, the Court found that the Nisga’a did not quantify very well what they stood to lose if an injunction were granted. The Court observed that, while there is a public interest in furthering the goals of the NFA, there is an equally compelling public interest in maintaining the honour of the Crown in its relationship with Indigenous nations which have not yet had their claims of title and rights adjudicated [para 148].
The Court held that an injunction was an appropriate remedy in the context of this case in view of the irreparable harm facing the Coast Tsimshian. To ensure that the Coast Tsimshian advances its claim in a timely way, the Court limited the duration of the injunction to 18 months but granted the Coast Tsimshian leave to extend that period if negotiations between the parties have not been completed by the expiry of that term.
Update: On June 6, 2023, the BC Court of Appeal allowed the appeal from the order of BC Supreme Court and set aside the injunction. In the view of the Court of Appeal, the injunction improperly prevented the Crown for discharging the duty to consult the Allied Tribes. The court noted that, if the Allied Tribes are dissatisfied with the outcome of that consultation, they will have options available to them to seek a remedy.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.