Date: 19980706 Docket: CA024761 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: The Honourable Mr. Justice Hollinrake July 6, 1998 The Honourable Mr. Justice Finch The Honourable Mr. Justice Mackenzie Vancouver, B.C. BETWEEN: CHIEF COUNCILLOR MATHEW HILL, also known as Tha-lathatk, on his own behalf and on behalf of all other members of the Kitkatla Band, and KITKATLA BAND APPELLANTS AND: THE MINISTER OF FORESTS, THE REGIONAL or DISTRICT MANAGER OF THE NORTH COAST FOREST DISTRICT, THE MINISTER OF SMALL BUSINESS, TOURISM AND CULTURE, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA and INTERNATIONAL FOREST PRODUCTS LIMITED RESPONDENTS Mr. J. Woodward, Ms. P. Hutchings and E.J. Woodward appearing for the Appellants Mr. P.J. Pearlman, Q.C. appearing for the Respondent, and S.A. Gallagher Her Majesty the Queen in Right of the Province of British Columbia Mr. P.G. Foy, Q.C. and appearing for the Respondents, Mr. W.K. McNaughton International Forest Products Limited C. Harvey, Q.C. appearing for the Intervenor, Council of Forest Industries Date of Hearing: July 3, 1998 Date of Judgment: July 6, 1998 [1] HOLLINRAKE, J.A.: This is an appeal heard on an expedited basis from a judgment of a Supreme Court Judge in chambers in which he dismissed a motion brought by the appellants seeking an order: restraining the defendant International Forest Products Limited, (a) from logging, and (b) from cutting, felling, yarding, moving, milling, carrying out any alterations of culturally modified trees, within cut blocks .... [2] The writ of summons in this action was issued on June 9, 1998. On June 12th the appellants went before a judge in chambers seeking an injunction on an ex parte basis. I understand that while this motion began on an ex parte basis counsel for Interfor and the Crown were heard although no material was filed by those defendants. The chamber judge relied on the principles enunciated by the Supreme Court of Canada in RJR - MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311, granted an injunction "be in effect until it is renewed or set aside at 9:45 a.m. on Monday, June 15." [3] The hearing of the motion then commenced on June 15 and was adjourned until June 18. On June 15 the injunction was continued. The hearing then went ahead on June 18 and 19. On June 22nd the chambers judge advised the parties by way of Memorandum: . . .that the interim ex parte injunction. . .should be dissolved. That direction was stayed by the Chief Justice of this Court on June 23rd to await the reasons for judgment of the chambers judge. [4] Those reasons were delivered orally on June 25. On that same day counsel for the appellants applied to a judge in Court of Appeal chambers seeking an injunction pending the hearing of the appeal. The result of that application was that leave to appeal was granted but the injunction was refused. [5] On June 30, a pre-hearing was heard before a judge of this Court and it was directed that the appeal be heard on Friday, July 3, 1998. The appeal was in fact heard that day. At the conclusion of the hearing the Court advised counsel that judgment would be delivered Monday morning, July 6, 1998. [6] That is the Court history of this case. [7] In attacking the order of the chambers judge the appellants for the most part rely on the judgment of the Supreme Court of Canada in the RJR - MacDonald case. That case reiterated the principles set forth by that Court in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd. (1987) 1 S.C.R. 110. The RJR - MacDonald dealt with a stay of proceedings which the Courts have for sometime equated with an interim injunction in terms of principles to be applied. Those principles are set out in the RJR - MacDonald case at 334 (S.C.R.) as follows: Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. [8] At p.337 (S.C.R.) the Court made the point that the threshold to establish a serious question to be tried "is a low one." [9] The issue of irreparable harm was dealt with commencing at p.340 (S.C.R.) where it was said: C. Irreparable Harm Beetz J. determined in Metropolitan Stores, at p. 128, that "[t]he second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm". The harm which might be suffered by the respondent, should the relief sought be granted, has been considered by some courts at this stage. We are of the opinion that this is more appropriately dealt with in the third part of the analysis. Any alleged harm to the public interest should also be considered at that stage. At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. [10] As to balance of convenience this was said at p.342 (S.C.R.): The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p. 129 as: "a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits". [11] It is of significance in this case that the order made by the judge in chambers was a discretionary one. That being so the jurisprudence in this Court clearly establishes that the Court will not interfere with the discretion exercised in the court below unless it can be shown that the judge fell into some error in law, misapprehended the facts to the point of undermining his or her decision or a clear injustice has resulted from the decision. [12] In my opinion it has not been shown that the chambers judge fell into any error which would permit this Court to interfere with the exercise of his discretion. [13] The first test - a serious question to be tried - was found in favour of the appellants by the chambers judge on the grounds of both culturally modified trees and lack of consultation as that concept is set out in the Supreme Court of Canada in the Delgamuukw case. Those conclusions of the chambers judge were not in issue before us. [14] I should say here that the initial injunction granted on June 12, 1998, was on the basis of both culturally modified trees and lack of consultation. Before this Court the culturally modified trees ground was not pressed, presumably because the evidence in support of it was wanting. The emphasis on the serious question to be tried was on the ground of lack of consultation. [15] Before this Court the appellants took the position that the Delgamuukw case in the Supreme Court of Canada had to some extent changed the principles as to interlocutory injunctions in cases such as this. The submission was that the Courts must now consider oral history and the duty on the Crown to consult. Those are clearly considerations which must be brought to the ultimate decision as to whether an interlocutory judgment should be granted. However, as to the legal test to be applied on an application such as this I agree with the chambers judge that: Nothing in Delgamuukw has changed any of the existing law with reference to injunctions. [16] To the extent that there was oral history evidence tendered on this application it was considered by the chambers judge. As to the duty of the Crown to consult the judge quite properly recognized this as a serious question to be tried. The judge appears to have accepted that there is a duty on the Crown to consult where aboriginal title and rights are asserted but yet to be established. Whether there was a failure of consultation is a question which the judge says was one to be tried. [17] Before the chambers judge the issue of irreparable harm appears to have been framed in terms of culturally modified trees and other potential subjects of archeological significance. He concluded that the Crown through the Forest Service had an obligation to protect such sites and the Crown and Interfor would do so. [18] In this Court the emphasis shifted and counsel for the appellant stressed the impact of commercial logging on the old growth forest which has spiritual and cultural significance to the Kitkatla and potential ecotourism. He relied particularly on the affidavit of Chief Councillor Mathew Hill. These aspects are tempered by the relative inaccessibility of these cut blocks on the south side of Kumealon Lake. The site is 40 kilometres distant from the nearest Kitkatla residential Reserve, 400 feet above sea level and without road access. Interfor has been logging in the general area since 1985 and has logged nearly 1500 hectares over that period. Logs from these cut blocks will be taken out by helicopter. Interfor is logging under a forest licence and a five year plan. [19] In these circumstances the observations of Thackray in Wiigyet v. Kispios Forest District (1990) 51 B.C.L.R. (2d) 73 are apt. He said at 79-80: Mr. Muldoe said [in his affidavit] that, "When Deep Canoe Creek is bridged, this territory will be irrevocably changed. To the Gitksan people, it will be irrevocably changed for the worse." Those sentiments are no doubt sincerely stated and I do not dismiss them. But I cannot find that what is described makes the area in question any different than other pristine forest areas of British Columbia. It is sad that we cannot preserve every tract in a state that would be in total harmony with all calls of nature and of all claims of identifiable groups. But that is not to be the case and I am required to make hard decisions. One of those is whether I am satisfied on the basis of the material put before me that this area is unique, as claimed by the plaintiffs. I am not so satisfied. [20] As I read the reasons of the chambers judge the focus on the irreparable harm issue was on culturally modified trees. I am satisfied that the reason for this focus was the submissions of the appellant to him. This leads me to the conclusion that this aspect (spiritual and cultural significance of old growth forests) of irreparable harm is not an important feature of this case. I do see it as a factor in the balance of convenience. [21] The judge decided this application on the balance of convenience. He weighed the potential risk of irreparable harm to the appellants against the economic impact of a halt to logging for the duration of the litigation to trial. He concluded the balance was for the permit and against an injunction. [22] As I have said before in these reasons injunctive relief is a discretionary remedy and an appellate Court will not interfere with the exercise of discretion absent an error in principle or a demonstration that the exercise was clearly wrong. I am satisfied that the judge applied the correct principles of law and there was material before him which supports his conclusion. I cannot conclude his discretion was improperly exercised and in my opinion there is no basis to disturb his decision in this Court. [23] I would dismiss the appeal. [24] FINCH, J.A.: I agree. [25] MACKENZIE, J.A.: The appeal is dismissed. "The Honourable Mr. Justice Hollinrake"