Date: 19991022 Docket: A981672 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CHIEF COUNCILLOR ALICE MUNRO on her own behalf and on behalf of all members of the SISKA INDIAN BAND PETITIONERS AND: MINISTER OF FORESTS, THE DISTRICT MANAGER OF FORESTS FOR THE LILLOOET FOREST DISTRICT, THE DISTRICT MANAGER OF FORESTS FOR THE CHILLIWACK FOREST DISTRICT, THE MINISTER OF SMALL BUSINESS, TOURISM AND CULTURE, HER MAJESTY THE QUEEN IN RIGHT OF BRITISH COLUMBIA and J.S. JONES HOLDINGS LTD. RESPONDENTS AND Docket: A992665 Registry: Vancouver BETWEEN: CHIEF COUNCILLOR ALICE MUNRO on her own behalf and on behalf of all members of the SISKA INDIAN BAND PLAINTIFFS (APPLICANTS) AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by the MINISTER OF FORESTS, and J.S. JONES HOLDINGS LTD. DEFENDANTS (RESPONDENTS) REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE SIGURDSON Counsel for the Plaintiffs, John R. Rich Chief Councillor Alice Munro and F. Matthew Kirchner on her own behalf and on behalf of all members of the Siska Indian Band Counsel for the Defendant, John J.L. Hunter, Q.C. J.S. Jones Holdings Ltd. and K.M. Stephens Counsel for the Defendant, T. Leadem Her Majesty the Queen and Kathryn Kickbush in Right of the Province of British Columbia Place and Dates of Hearing: Vancouver, B.C. October 19 & 20, 1999 INTRODUCTION [1] This decision concerns cross-applications for interlocutory injunctions. The logging company, J.S. Jones Holdings Ltd. ("J.S. Jones"), seeks to prevent interference with its roadbuilding and logging in the Siska Valley. The Siska Indian Band (Siska Band") seeks to prevent that logging. Counsel agree that in order to succeed on their respective interlocutory injunction applications, they must demonstrate that there is a serious question to be tried over the existence of a right and an actual or reasonably apprehended breach and that the balance of convenience weighs in their favour. Each side acknowledges that the other has raised a serious question to be tried. The question is where, in these particular circumstances, the balance of convenience lies. BACKGROUND [2] The Siska Band, a subgroup of the Nlha7kapmx Nation, has several reserves on the Fraser River in the vicinity of Siska Flats, approximately ten kilometres south of Lytton. J.S. Jones holds two forest licences in the Fraser Canyon area, Forest Licence A18699 and Forest Licence A19201. Forest Licence A18699 and Forest Licence A19201 are located in the Lillooet and Fraser Timber Supply Areas, respectively, and are administered by the Lillooet and Chilliwack District Offices of the Ministry of Forests. The Siska Valley is within Forest Licence A18699 (the "Lillooet Licence"), but is accessed from the Mowhokan Valley to the south which is within Forest Licence A19201 (the "Fraser Licence"). The Siska Valley is also located within the traditional territory of the Nlha7kapmx Nation. [3] I will use the terms Siska Valley and Siska Watershed interchangeably. [4] The Siska Valley consists of approximately 6,850 hectares and drains into the Fraser River via Siska Creek. The Siska Watershed has not been logged in the past, but it did endure a severe forest fire 40 years ago. Consequently, there is little marketable old-growth timber in much of the Watershed. [5] The Siska Band has, for many years, opposed all logging in the Watershed and, in the past, has sought to have it preserved as a park, an ecological reserve or to have it placed in the Provincial Protected Area Strategy. [6] On July 27, 1999, the Acting District Manager of the Ministry of Forests issued cutting permit number 040. Under this permit, J.S. Jones had proposed to log 164 hectares in 1999 and 2000 and "leave strips" totalling about 80 hectares in 15 to 20 years. No other logging has been planned in the Siska Valley. [7] In 1998, these parties were before this court. J.S. Jones had proposed road construction that would eventually lead to the logging that it started during the summer of 1999 under cutting permit 040. In 1998, Chief Councillor Munro, in a representative capacity on behalf of the Siska Band, brought an application for judicial review to quash certain decisions of the District Managers of the Lillooet and Chilliwack Forest Districts concerning the proposed logging and roadbuilding by J.S. Jones. [8] On July 9, 1998, Smith J., in Siska Indian Band v. British Columbia (Minister of Forests) (1998), 62 B.C.L.R. (3d) 133 (S.C.), set out the recent background concerning the Siska Valley which I can usefully reproduce. In October 1992 the Band informed the Ministry of Environment that it is opposed to logging in the Siska Creek watershed. Since then, there have been extensive communications amongst Band representatives, the Crown, and the company concerning the company's operational plans for logging in the watershed. As well, various studies have been conducted to attempt to address the Band's concerns. Where specific conflicts between the company's plans and the Band's claims have been identified, the company, with the concurrence of the Crown, has modified its plans to avoid those conflicts. For example, an archaeological study of the area commissioned by the company, in which the Band participated, identified seventeen post-1846 culturally modified trees. As a result, the company and the Crown amended the company's forest development plan to exclude those trees from the relevant cutblock and to provide a buffer zone to protect them. As well, they modified the plan further to provide a riparian zone along Siska Creek to protect old-growth cedar trees and to preserve the habitat of certain species of wildlife about which the Band had expressed concern. The company has stated its intention to avoid interfering with other objects of importance as heritage to the Band, if any should be encountered, and by its actions to date it has demonstrated that it is likely to adhere to that assurance. The Crown, as well, has assiduously discharged its duties in accordance with s. 13(2)(d) of the Heritage Conservation Act, R.S.B.C. 1996, c. 187 and with s. 51(1) of the Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159. The purpose of these legislative provisions is to protect and preserve, respectively, physical evidence of aboriginal habitation before 1846 and resources historically of cultural significance. Thus, the risk of damage to specific tangible objects of cultural value is minimal. [9] In 1998, the urgency for the Siska Band's court application arose from the J.S. Jone's plans to proceed with road construction. The proposed road would run into its Lillooet Licence in the Siska Valley, providing access to the areas of the Watershed that it planned to log in the summers of 1999 and 2000. As Smith J. pointed out in Siska Indian Band v. British Columbia, supra at 137: Although the company's forest development plan has received the necessary approval, a cutting permit for the proposed logging has neither been applied for nor approved. [10] Smith J. stated the issue before him was whether the company should be enjoined from acting on its existing roadbuilding permit and on any cutting permit that may be issued in the future with respect to the proposed logging in the Siska Valley. [11] Having found that the applicant, the Siska Band had satisfied the low standard to be met on the first aspect of the injunction test, whether there was a serious question to be tried, Smith J. turned to a consideration of irreparable harm and the balance of convenience or, as he put it, the balance of "inconvenience to the respective parties." He concluded that the balance of convenience favoured the refusal of the injunction and he dismissed the Band's application. [12] Concerning irreparable harm, Smith J. said at 140: Counsel for the petitioner argued that irreparable harm will occur to intangible interests of the Band, but she attributed this to the logging, not to the roadbuilding. As stated in her submission: ...logging will affect the ability of the Applicants to access cedar roots and bark and to conduct sacred ceremonies in the Siska valley and Siska Creek. If the imminent road building proceeds and logging is approved in the Siska Creek watershed, it is very possible that the Applicants will have lost their aboriginal rights to cedar and to certain sacred spiritual practices forever. [Emphasis added] That submission is an accurate reflection of the evidence led by the petitioner. It is clear that the objection to the roadbuilding is that it will facilitate logging in the future, not that it will, itself, cause immediate damage to these intangible interests. As the company's plans to log in the Siska watershed will not be implemented until the summer of 1999, and then only if the necessary cutting permit is issued, there is ample time for the pending judicial review to be completed before the Band will suffer any significant harm. [13] Following the refusal of the injunction, J.S. Jones constructed the access roads. The Siska Band made submissions to the Forest Manager prior to the issuance of the cutting permit. However, Rob Deboice, the Acting District Manager for the Lillooet Forest District, advised Chief Munro, by letter of July 27, 1999, that the Ministry of Forestry issued cutting permit 040 under Forest Licence A18699. He referred to the cutting permit consultation and the prior consultation that had been done with the Siska Band under the forest development plan. In his letter, he summarized his discussions with the Siska Band on the following issues: cultural use of cedar; water quality, water temperature and fish habitat; wildlife habitat and traditional hunting; archaeological values; medicinal/traditional plant gathering; protected area proposal; access to the area; and aboriginal spiritual rights & title. [14] Following the issuance of the cutting permit, J.S. Jones began logging substantially in what is referred to as cutblocks S4 and S5 and has been doing so for the last two and a half months. The company plans to complete the harvesting of these cutblocks this winter, weather permitting, and possibly do some harvesting in cutblock S9. The company hopes that its roadbuilding will reach cutblock S10. [15] The logging for which the cutting permit was granted involves approximately two percent of the Siska Valley, but it comprises all of the mature timber in the Watershed. Since the cutting permit was issued, a significant amount of that logging has been done. [16] On October 6, 1999, the access road to the cutting area was blocked. On October 7, J.S. Jones applied for an interim injunction. The interim injunction was granted that day and subsequently amended to continue until the conclusion of the hearing of the company's application for an interlocutory injunction. I continued that interim injunction until the delivery of these reasons for judgment. INJUNCTION - APPROPRIATE TEST [17] The test for an interlocutory injunction has been stated various ways. In RJR-MacDonald Inc. v. Attorney General of Canada, [1994] 1 S.C.R. 311 (S.C.C.) at 334, it was expressed that there must be a serious question to be tried, the applicant must establish that it will suffer irreparable harm if the application is refused and that the balance of convenience favours the injunction. In British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.), the test was stated as a two-pronged test with the question of irreparable harm considered as part of the balance of convenience. As McLachlin J.A., as she then was, said in Wale, supra at 345: The traditional test for the granting of an interim injunction in British Columbia is two- pronged. First, the applicant must satisfy the court that there is a fair question to be tried as to the existence of the right which he alleges and a breach thereof, actual or reasonably apprehended. Second, he must establish that the balance of convenience favours the granting of an injunction. [18] J.S. Jones claims the right to log by Provincial authority under the Forest Act and by the licences and permits issued thereunder. J.S. Jones says that unless the Province's regulatory system is ineffective, it has the right to log where it is conducting logging operations and that under the regulatory regime, it has a profit a prendre and the right not to be interfered with in its operation. J.S. Jones further submits it has raised a serious question to be tried, namely, the validity of its licences and permits issued by the government under the applicable legislative regime. [19] The Siska Band, in its statement of claim, asserts that as members of the Nlha7kapmx Nation they hold aboriginal title and aboriginal rights in the Siska Watershed. The Band relies on R. v. Van der Peet (1996), 137 D.L.R. (4th) 289 (S.C.C.) and Delgamuukw v. British Columbia (1997), 153 D.L.R. (4th) 193 (S.C.C.). The applicant's counsel asserts that the evidence filed "speaks to the pre-contact and pre-sovereignty use and occupation of the Watershed, the continuity of that use and occupation and the present-day exercise and existence of those rights." [20] In the writ of summons issued on October 12, 1999, the Siska Band seeks a declaration that any permits, licences or other authorizations issued by the Province for roadbuilding or logging activities, which are inconsistent with the aboriginal title and/or rights of the plaintiff in the Watershed, are unconstitutional. Consequently, The Siska Band seeks an injunction to restrain the company from interfering with its alleged aboriginal title and/or aboriginal rights in the Watershed by logging pursuant to those permits. [21] In its written submission, the Siska Band states that (it) "prefers that the Watershed be used for traditional activities, including hunting and gathering, as well as cultural and spiritual activities." The Siska Band says that it "also prefers that economic activities undertaken in the Watershed be in terms of the development of recreation and the harvest of botanical forest products by the Band." The Siska Band, in its written submissions, opposes logging, "but if at the end of the day logging is to take place, the band wants to be involved." [22] Both parties agree that the other has raised a serious or fair question to be tried. Each acknowledges that the threshold test for that first question is relatively low. BALANCE OF CONVENIENCE [23] In B.C. (A.G. v. Wale), supra, at 3-4, McLachlin J.A. said: The first step in determining where the balance of convenience lies is to examine the adequacy of damages as a remedy for the respective parties. In most cases, an interlocutory injunction should not be granted unless there is doubt whether damages would be an adequate remedy in the event the applicant succeeds at trial. In other words, it must be shown that the applicant may suffer irreparable harm in the sense that "the remedy by damages is not such a compensation as will in effect, though not in specie, place the parties in the position in which they formerly stood"; Kerr on Injunctions, 6th ed. (1927), at pp. 17-18, applied in MacMillan Bloedel Ltd. v. Mullin, 61 B.C.L.R. 145, [1985] 3 W.W.R. 577, [1985] 2 C.N.L.R. 28 (C.A.), per Seaton J.A. The requirement that there be doubt as to whether damages will be an adequate remedy is basically a matter of common sense. If damages will be an adequate remedy, and if it appears that the alleged offender can pay them, the court is generally not justified giving one party his remedy to the detriment of the other before the issues have been tried. In many cases, assessing where the balance of convenience lies is a simple matter. Where there is a fair question to be tried and the applicant demonstrates that damages may not provide an adequate remedy, an interlocutory injunction may be justified. Similarly, if the only irreparable harm would be to the party against whom the injunction is sought, an injunction would not normally be granted. More difficult is the case where both parties demonstrate that damages might not be an adequate remedy - the applicant if no injunction is granted, the respondent if an injunction goes. [24] Both parties, I think, have demonstrated that there is doubt that damages would be an adequate remedy. [25] In determining the balance of convenience, the court will take into account a number of factors and reach a decision that considers the unique circumstances involved. As McLachlin J.A. said in B.C. (A.G.) v. Wale, supra, "The fundamental question in each case is whether the granting of an injunction is just and equitable in all the circumstances of the case." [26] In RJR-MacDonald Inc. v. Attorney General of Canada, supra, at 342, Sopinka and Cory JJ., in considering the balance of convenience, said: The factors which must be considered in assessing the "balance of inconvenience" are numerous and will vary in each individual case. In American Cyanamid, Lord Diplock cautioned at p. 408, that: [i]t would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case. [27] Mr. Rich, for the Siska Band, submits that although the balance of convenience must consider the impact of an injunction on the economic health of the province, the region or the logging company, nevertheless, injunctive relief to those claiming aboriginal rights can be granted in respect of particular sites which have unique qualities. This submission tracks the words of Esson J.A. in Westar Timber Ltd. v. Gitksan Wet'suwet'en Tribal Council (1989), 37 B.C.L.R. (2d) 352 (C.A.). [28] In the case at hand, the Siska Band says that the uniqueness of its claim is found in the fact that there is a relatively small amount of mature timber in the Siska Watershed and it is located in the cutblocks. Although it was the subject of a destructive forest fire, the Watershed has never been logged, with the exception of the harvesting done by J.S. Jones in the past two and a half months. If an injunction is granted, the Band says it would be able to enjoy its traditional territory in a state of nature. The Siska Band says that the circumstances surrounding the balance of convenience, in terms of the economic impact of the injunction on the logging company, the regional economy and the public interest as a whole, have changed since Smith J. denied the injunction in 1998. Now the applicant says that J.S. Jones is on the brink of failure and that the balance of timber to be taken from the Siska Watershed for the remainder of 1999 would only be sufficient to operate the company's mill in Boston Bar for six to ten days for one shift. The Siska Band claims that since the mill may close after March 2000, any loss of timber in 2000, the Band says, will have no impact. [29] In terms of the public interest, the applicant says that as the mill is a sunset operation, when choosing between a few days of a mill's dying operation, which is no longer viable, or the spiritual, cultural and economic sustenance of an aboriginal community of 250 people, the public interest, as expressed by Esson J.A. in Westar, supra, favours the granting of an injunction in favour of the Siska Band. [30] On the other hand, J.S. Jones submits that the balance of convenience favours an injunction in its favour. The company refers to the following passage from the judgment of Smith J. in Siska Indian Band v. British Columbia (Minister of Forests), supra, at 140-1, and submits that the impact on J.S. Jones is at least as great as it was in 1998 when the balance of convenience on a similar question was considered. I must also consider the harm, actual or potential, to the company if the injunction should be granted. J.S. Jones Holdings Ltd. is not one of the large forest companies operating in the province. It is a family-owned and operated logging and milling business. Its two Forest Licences supply the majority of timber to its mill in Boston Bar. If the road is not built this summer, logging will not be possible in 1999 and the operation of the mill at that time will be put at risk. Moreover, the financial health of the company would be adversely affected, as it has no ability to make up the harvest it would lose. [31] J.S. Jones submits that it is attempting to keep its mill running despite having given a six month notice of closure, which notice was required under its collective agreement. At a minimum, J.S. Jones says the mill will need an inventory of products to get through the winter and that is the purpose of the 1999 logging. [32] The logging company says that although the Siska Band has asserted aboriginal title, it has made no effort to prove its claim by having the petition, which was filed in 1998, heard. Counsel for J.S. Jones argues that this delay, although not prejudicing the applicant, demonstrates either that the Watershed is not as unique to the Siska Band as it alleges or that the Siska Band will not suffer any significant irreparable harm by the logging. Counsel for J.S. Jones further submits that the fact that the Siska Band did not start this action until after two and a half months of logging had been completed in the Watershed contradicts the Siska Band's assertion of serious harm resulting from logging. J.S. Jones contends that the Siska Band has failed to show how logging will specifically interfere with any of its asserted aboriginal rights. [33] J.S. Jones claims that another factor to be considered in the balance of convenience is the fact that the Siska Band, alone, as opposed to the Nlha7kapmx Nation, is advancing a claim to aboriginal title. Mr. Hunter asserts this is a substantial problem for its claim and should be considered at this stage of the analysis. J.S. Jones also says that the failure of the Siska Band to offer an undertaking as to damages and its inability to provide one of substance is a further factor to be considered in determining the balance of convenience. DISCUSSION [34] In considering the balance of convenience the court must consider the interests of the parties, as well as the public interest. In Westar Timber, supra, at 369-370, Esson J.A., in dismissing the appeal and allowing the injunction to remain, said this in connection with Man. A.G. v. Metro Stores Ltd., [1987] 1 S.C.R. 110: In this case, the Gitksan do not directly seek to suspend or be exempted from the provisions of the Forest Act but they contend that, in the particular circumstances, the court should restrain Westar from exercising certain of its rights under the licences granted under that Act until the conclusion of the litigation. There is, to that extent, a clear distinction between the nature of the injunction sought here and that which was sought earlier by the same plaintiffs against the chief forester, which application was refused by Mr. Justice Macdonell who, in doing so, relied on Metro Stores It does not, however, follow that the principles applied in Metro. Stores have no application to this case. It is conceivable that injunctions restraining the exercise of rights granted under the Forest Act could sterilize the working of that statutory scheme just as effectively as injunctions restraining the granting of licences and other rights. That being so, the public interest must be considered in applications of this kind. The necessity for doing so is particularly acute in relation to activities authorized by the Forest Act, for the very reason that it governs conduct of an industry which is the main foundation of the economy of the province. The forest industry, in its present form, could not exist without huge amounts of timber being cut each year. Much of that timber must be taken from areas which are the subject of Indian land claims. It is, as I understood Mr. Grant to concede, simply unthinkable that, in order to preserve the "status quo" pending the final determination of those claims, a series of interlocutory injunctions should so cripple the industry as to throw people out of work, reduce the revenues both of the government and industry and thus threaten the very existence of that industry and our existing social arrangements. [35] I was told that there are only a few weeks of logging left in this season before weather prevents further logging. The logging done by J.S. Jones in 1999 was not unanticipated. The attempted prevention of it was the subject of the Siska Band's unsuccessful 1998 injunction application. Although the cutting permit was issued on July 27, 1999, and logging immediately ensued, the Siska Band made no attempt to seek an injunction until October 12, 1999, following the blockage of the access road on October 6, 1999. [36] The Siska Band apparently took no active steps to set down the petition for hearing and establish its aboriginal title and rights following the dismissal of the injunction by Smith J. on July 9, 1998. The Siska Band's counsel argues that the important proceeding is the recent action commenced by writ because viva voce evidence will be needed to prove the applicant's aboriginal rights and title. In any event, Mr. Rich says that the Siska Band was optimistic about the success of its opposition to the petitioner's cutting permit and says the fact of its inaction, after the issuance of that permit in July, i.e. about three months ago, is immaterial given the absence of prejudice to J.S. Jones. The significance, the logging company says, is that the delay is evidence with which to weigh the Siska Band's comments about how special or significant the area to be logged is. In other words, it goes to the question of irreparable harm or the degree of that harm to the Siska Band if the logging continues. [37] The Siska Band filed evidence in support of its claim that its people have made and continue to make extensive use of the land in question for economic, spiritual and cultural purposes. [38] The Siska Band filed the evidence of Dr. Wendy Wickwire, an ethnographer, who has studied the Nlha7kapmx people to show that these people use the Watershed adjacent to their fishing sites for a variety of purposes including hunting, fishing, foraging, spiritual and cultural purposes, and teaching. Fred Sampson, a carver and Band councillor in the Siska Band, filed an affidavit that the Siska, and to a lesser extent, other Nlha7kapmx people, use the Watershed for hunting, gathering of plants for food and medicinal purposes, stripping bark and roots to make baskets. Mr. Sampson deposed that the Watershed is the area where his grandfathers traditionally hunted and where he wishes to hunt. He said that hunting in the Watershed is important to him because of the cultural and spiritual significance to his people. [39] Moreover, Mr. Sampson deposed that the Siska people pick pine mushrooms there for food and ceremonial purposes, which is important to them for cultural and economic reasons. He expressed concern as there are no pine mushrooms in areas where there is immature timber. If the old growth trees are logged, he said, the Siska people may lose their access to pine mushrooms and consequently the important economic and cultural benefits of the mushrooms. Mr. Sampson deposed that newborn boys are bathed in pine mushrooms in order to grow up to be strong and brave. [40] In his conclusion, Mr. Sampson deposed that: The Siska watershed is an area of exceptional spiritual and cultural significance to the Nlha7kapmx people, in particular to the members of the Band and myself. The Siska watershed is the preferred area to continue the traditional spiritual and cultural practices of Band members and myself and, in some instances, the only area we can exercise our spiritual and cultural practices. [41] As part of the affidavit of Chief Alice Munro, the Siska Band filed a draft traditional use study which represents an effort on the part of the Siska Band to document their use of the Watershed. Such uses are said to include habitation sites and camps, fishing, hunting and trapping, plant use, use of cedar trees, spiritual training, puberty rituals, rock painting and recreational use. [42] Mr. Hunter referred to the decision in Kitkatla Band v. British Columbia (Minister of Forests), [1999] 4 W.W.R. 274 (B.C.C.A.). In that case, the issue before the chambers judge was framed in terms of culturally modified trees and other potential subjects of archaeological significance. The chambers judge concluded that the Crown, through the Forest Service, had an obligation to protect such items. In the Court of Appeal, Hollinrake J.A. said the emphasis shifted to the impact of commercial logging on the old-growth forest which had spiritual and cultural significance to the Kitkatla and potential ecotourism. In Kitkatla Band v. British Columbia (Minister of Forests), supra, at 278, he said the following: In these circumstances the observations of Thackray in Wiigyet v. Kispiox Forest District (1990), 51 B.C.L.R. (2d) 73 (B.C.S.C.) 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. [43] Mr. Hunter, counsel for J.S. Jones, claims that the Siska Band has not demonstrated the requirement of uniqueness to the degree that it must be established before aboriginal claimants can stop authorized lawful commercial activity on lands they claim. Mr. Hunter says that the Siska Band has not produced any evidence as to how the logging will specifically interfere with any of the aboriginal rights asserted, aside from the gathering of pine mushrooms. He argues that the weight to be given to that specific evidence of harm, should be affected by the timeliness with which it is adduced. (Tlowitis Nation and Mumtaglia Nation v. MacMillan Bloedel Limited, [1991] 4 W.W.R. 83 (B.C.C.A.)). I think those contentions have merit and weigh against the Siska Band's application. [44] As part of a consideration of the public interest, the process under which the cutting permit was issued should be taken into account. Although it is not determinative of aboriginal rights and title, it is relevant that the Siska Band was consulted and made submissions in connection with the matters referred to in the Acting District Manager's decision. [45] Determining whether the Siska Band's assertion of uniqueness and the possibility and extent of irreparable harm outweighs the right of the applicant to benefit from its permit, lawfully obtained, is a factor in the balance of convenience. The failure of the Siska Band to proceed expeditiously with its challenge to the permit on the ground of its claimed aboriginal title and rights, and the delay in seeking injunctive relief after July 1999, are factors to be considered in assessing the extent of harm that the Siska Band deems that it will suffer by commercial logging. [46] I have described some of the harm that the Siska Band asserts it will suffer if the injunction in its favour is not granted. I must also consider the harm suffered by J.S. Jones if the Siska Band's injunction application succeeds. Smith J. concluded in Siska Indian Band v. British Columbia, supra, at 141, that: A comparison of the potential harm to the Band from permitting the road to proceed, on the one hand, and the potential harm to the company and to other citizens who benefit from the company's business activities, from prohibiting the road construction, on the other, illustrates that the balance of convenience favours refusing the injunction. [47] Mr. Hunter did not suggest that the 1998 judgment is res judicata or gives rise to an issue estoppel in any respect. Rather, he argues that the condition of his client was so poor, and the remaining logging season so short, that the harm to J.S. Jones from not logging was greater than any potential harm to the Siska Band that would result from logging. The evidence is that J.S. Jones is possibly, but not certainly, on its last legs. In those circumstances, a deprival of its source of timber may have devastating consequences. Even if the company's mill is at a significant risk of failing, it's earlier closure or interruption will adversely affect the interests of many people in the Fraser Canyon. I think even in these circumstances Smith J.'s conclusion in 1998, which I have just quoted, applies with as much force today. [48] Mr. Hunter submits that the fact that only one Band of the Nlha7kapmx Nation has sued for a declaration of aboriginal title is an insurmountable problem for the Siska Band. However, that is probably a question for the trial judge and given that it has been acknowledged that a serious question has been raised, I do not think consideration of it should enter the balance of convenience. [49] One further factor is the question of an undertaking. Under Rule 45(6) of the Rules of Court, an applicant is required to give an undertaking as to damages unless relieved of that obligation by the court. Mr. Rich argued forcefully that it would be unfair to require the Siska Band to give an undertaking, given their limited means, and that given their limited means, an undertaking would be of little practical value. Mr. Rich referred me to Allen and others v. Jambo Holdings, [1982] All ER 502 at 505 where Lord Denning MR granted a Mareva injunction notwithstanding the fact that the legally-aided plaintiff could not provide an undertaking as to damages. There is, no doubt, authority for the court to exempt a litigant from the requirement to give such an undertaking. Smith J., in Siska Band v. British Columbia (Minister of Forests), supra, referred to such cases. Mr. Hunter does not suggest a failure to give an undertaking should be a bar, but the Siska Band's inability to give one of substance, should be a factor. Here it weighs against the granting of an injunction to the Siska Band because if the Siska Band is ultimately unsuccessful and J.S. Jones is entitled to damages, by reason of the injunction, there would, in practical terms, be no recovery for the company. [50] For all of these reasons, I am persuaded that the balance of convenience, in these particular circumstances, is against an injunction to restrain the logging. Accordingly, the application of J.S. Jones is allowed and the application of the Siska Band is dismissed. "Sigurdson J."