2004 BCSC 1492 Relentless Energy Corporation v. Davis et al

Before: The Honourable Madam Justice Satanove

Reasons for Judgment

Counsel for the Plaintiff:	C.F. Willms K.G. O’Callaghan
Counsel for the Defendants:	R.J.M. Janes
Date and Place of Trial/Hearing:	November 12, 2004
	Vancouver, B.C.

[1] This is an application for an interim injunction to restrain the defendants from obstructing, interrupting or interfering with the lawful use, enjoyment or operation of a proposed permanent access road over Crown land (the “Proposed Road”).

[2] The plaintiff also seeks an interlocutory injunction prohibiting the defendants from obstructing, interrupting or interfering with any person in the lawful discharge of his obligations under an agreement between the plaintiff and its subcontractor, D. Lowen Enterprises Ltd. to construct the Proposed Road.

[3] Finally, the plaintiff seeks an enforcement order allowing the arrest of any person with notice of the injunction order who disobeys it. The plaintiff has adjourned generally its request for an injunction respecting the drilling program which is anticipated to follow the construction of the Proposed Road.

[4] The plaintiff has permits from the Oil and Gas Commission (“OGC”), which allow it to go onto Crown land, harvest trees and construct a 15 metre wide road in a specific location designated on a map filed with the OGC (the “Construction Permit” and “Cutting Permit”).

[5] The defendants, who are members of the Blueberry River Indian Band and beneficiaries under Treaty #8, have set up a hunting and trapping campsite at the point where construction is to commence on the Proposed Road. Some of the defendants are the holders of a trapline registered under the Wildlife Act, R.S.B.C. 1996, c. 488, which covers the area of the Proposed Road (the “Wolf/Davis trapline”).

[6] The Blueberry River Indian Band, through their land manager, has taken the position that they are not categorically opposed to all oil and gas development. However, they are concerned about the heavy impact on the Wolf/Davis trapline, which has been subject to much development for farmland and for oil and gas purposes in the last decade. The usable part of the trapline has been reduced to about 25 percent of the original area. The band wishes to conduct a land use study assessment and consult with the OGC with a view to changing the location of the Proposed Road. The band has filed a request with the OGC to review a number of its permits granted to the plaintiff, including the ones at issue, and are awaiting the result.

[7] There is no dispute that the OGC has the statutory authority to grant the Construction and Cutting Permits under the Land Act, R.S.B.C. 1996, c. 245 and Forest Act, R.S.B.C. 1996, c. 157 respectively. However, the defendants say the Permits cannot and should not be used as a basis to displace their camp because they are entitled to exercise both their constitutional right to hunt and trap under Treaty #8, and their right to trap under the Wolf/Davis trapline.

[8] The plaintiff submits that it has met the three fold test to obtain an interlocutory injunction set out by the Supreme Court of Canada in RJR- Macdonald Inc. v. Canada (Attorney-General et al.), [1994] 1 S.C.R. 311 at 334:

(a) A preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

(b) It must be determined whether the applicant would suffer irreparable harm if the application were refused; and

(c) 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.

[9] The plaintiff says that the defendants’ action are preventing the plaintiff from constructing the Proposed Road under permits from the OGC and this is sufficient to constitute a serious question to be tried.

[10] The defendants disagree with the plaintiff’s characterization of the first part of the test, and also disagree that the plaintiffs have met the test. The defendants submit that if the injunction were granted, the road would be built and the defendants’ right to remain where they are would be rendered moot. In other words, the entire case would be effectively disposed of by granting the injunction. The defendants say that in this situation, the court in RJR-Macdonald Inc. v. Canada (Attorney-General), supra, indicated that the plaintiff must show a strong prima facie case.

[11] I have no doubt that in the case before me, the plaintiff would have no interest in pursuing its action to trial, if the injunction were to issue. The plaintiff seeks an injunction as a means to an end, not as a means of preserving anything pending trial. I say this in part because of the nature of the pleadings. The endorsement on the writ of summons claims that the defendants have:

(a) wrongfully interfered with the construction of the Proposed Road;

(b) conspired to wrongfully interfere with the Proposed Road and its construction; and

(c) conspired to wrongfully interfere with the contractual relations between it and its sub-contractor who has been hired to build the Proposed Road.

[12] The plaintiff does not plead trespass or nuisance because it has no interest in the land. It has not sought declaratory relief that its right to construct the Proposed Road is in priority to the defendants’ right to hunt under Treaty #8, or a right to trap under the Wolf/Davis trapline. The plaintiff is not interested in adjudicating competing rights; it simply wants to remove what it considers to be an illegal impediment to accomplishing its commercial purpose.

[13] For this reason, I tend to agree with counsel for the defendant that the threshold question should be higher than whether the plaintiff’s claim merely raises a serious question, that is, not frivolous or vexatious. The plaintiff should be able to show that it has a strong arguable case on the merits.

[14] In my view, the plaintiff has not shown a strong case on the merits. The plaintiff’s claim is predicated on “wrongful” interference which means it must show an unlawful act on the part of the defendants. The plaintiff suggests that the offence of mischief is the wrongful act, but s. 430(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 requires obstruction, interruption or interference with corporeal property, as defined in s. 428. The plaintiff’s permits are incorporeal hereditaments which are not accompanied by exclusive possession and therefore cannot form the basis of a mischief offence under the Criminal Code.

[15] The alternative argument relied on by the plaintiff to establish wrongful interference is that the land has been “taken up” for road construction. This means it falls within the implied limitation on the defendants’ rights under Treaty #8, and therefore s. 35 of the Constitution Act is not invoked (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2004 FCA 66).

[16] However, our Court of Appeal in Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470 has stated that where the Crown merely allows the temporary use of some Treaty #8 land for a specific purpose compatible with the continued long term use of the land for traditional hunting activities, there is an obligation on the Crown to honour its fiduciary obligation to consult with the beneficiaries under the treaty.

[17] It is evident from the affidavits filed on this application that no meaningful consultation with the defendants about this proposed project has ever taken place.

[18] The Construction Permit granted by the OGC under s. 14 of the Land Act is not only non-exclusive but also is expressly subject to all subsisting rights of any person made under certain legislation, which includes the Wildlife Act. It also anticipates that the plaintiff’s rights under the Permits may be interfered with by the exercise of rights by persons such as the defendants, and that this will not be considered a breach of the obligations of the Province or OGC.

[19] The wording of the Construction Permit suggests that the defendants’ traplines registered under the Wildlife Act actually take precedence over the Construction and Cutting Permits. However, I think the better interpretation of this wording is that the OGC did not intend to deprive any person of his or her existing rights by virtue of granting the Permits.

[20] The above analysis is not intended to be an adjudication upon the merits of the case. However, it highlights serious and potentially fatal flaws in the plaintiff’s case. The defendants are not mere protesters who have no colour of right to set up their camp. They are not First Nations alleging aboriginal rights of a general and unspecific nature. These defendants are beneficiaries under Treaty #8 and holders of pre-existing validly issued traplines.

[21] If I am incorrect in setting a standard of strong prima facie case, or in finding that the plaintiff has not met a strong prima facie case, I would still deny the injunction on the balance of convenience.

[22] In my view, both these parties have the potential to suffer irreparable harm depending on the outcome of this application. The plaintiff’s winter drilling program is in jeopardy if the road is not built, which in turn may result in lost or delayed revenues. Further, the plaintiff’s subcontractor may lay off employees. The effect of the plaintiff being unable to commence construction will have an impact on the ongoing business of both it and the subcontractor that is not quantifiable and constitutes irreparable harm (Johnson Terminals Ltd. v. Office & Technical Employees Union, 70 CLLC 221).

[23] The defendants, too, will suffer irreparable harm if the injunction were to be granted. The evidence discloses that the deprivation of the band’s hunting and trapping land through development has been steadily growing over the years, as has the deprivation of traditional lands of other bands covered by Treaty #8. It is no longer realistic to simply tell the defendants to go elsewhere under Treaty #8 to exercise their rights. Furthermore, once the road is built, the defendants will have lost their opportunity to engage in meaningful consultation and obtain a meaningful accommodation of treaty rights. This has been held to constitute irreparable harm that is not compensable by damages (Musqueam Indian Band v. Canada (Governor in Council), 2004 FC 579).

[24] McLachlin J.A. (as she then was) said in British Columbia Attorney General v. Wale (1986), 9 B.C.L.R. (2d) 333 that when both parties demonstrate that damages might not be an adequate remedy, the court should consider who bases their claim on existing rights and how enforcement of rights would change the status quo. She also said at p. 346:

… where the only effect of an injunction is to postpone the date upon which a person is able to embark on a course of action not previously open to him, it is a counsel of prudence to preserve the status quo.

[25] In the case at bar, the road has not yet been built. The defendants have been hunting and trapping in this area in the preceding years right up to the present. The status quo is preserved by denying the injunction.

[26] In conclusion, I dismiss the plaintiff’s application for an injunction because it has not shown a strong prima facie case, and (or in the alternative) the balance of convenience favours preserving the status quo.

“D.A. Satanove, J.”
The Honourable Madam Justice D.A. Satanove

Citation:	*Relentless Energy Corporation v. Davis et al.,*
	2004 BCSC 1492