According to the Court, the Tahltan Nation, which includes the Tahltan Band and Iskut First Nation, was the only First Nation asserting the Red Chris Mine was within their traditional territory. Throughout the development of the mine, the plaintiff company had been negotiating and consulting with the Tahtan Central Council, a group representing both the Tahltan Band and the Iskut First Nation. However, the majority of the defendants to this interlocutory injunction application were individuals of Tahltan ancestry who asserted that they, as members of a sub-group or family within the Tahltan called the Tl’abānot’in, were the rightful title-holders to lands that would be affected by the mining activities at Red Chris, and alleged that the plaintiff had failed to adequately consult them with respect to the mine.
The Klabona Keepers had conducted an earlier blockade of access roads to Red Chris in August 2014 as a result of concerns precipitated by the tailings pond breach at Mount Polley, which, like Red Chris, was an Imperial Metals project. The plaintiff sought resolution of the defendants’ concerns at that time, which had also been raised by Tahltan Central Council. The plaintiff negotiated an agreement with the Council on the standards for the design, engineering, construction, operation and ongoing monitoring of the tailings facility. The plaintiff also entered into a Memorandum of Understanding (MOU) with the Klabona Keepers that set out a process under which the defendants could initiate independent, third party reviews of the mine site throughout its construction. As a result of this agreement, the Klabona Keepers removed their blockade on August 23, 2014. However, the defendants lacked the necessary funding to retain qualified consultants to carry out third party reviews under the MOU and by September 19, 2014 their blockades had resumed, which the Court found “substantially increased the costs of development” for Red Chris and led to the laying off of several employees.
While there was evidence that the Tahltan Central Council had been authorized to represent the entire Tahltan Nation in matters of consultation, the Court found no evidence that the Klabona Keepers were authorized to speak on behalf of either the Tahltan Band or the Iskut First Nation. Rather, the Court found the Klabona Keepers were a “group of self-appointed individuals who happen[ed] to disagree with the decisions made by representatives of the Tahltan Nation”. As a result, the Court found the defendants had no standing to challenge the validity of the authorized activities of the Tahltan Central Council.
In terms of the test for an interlocutory injunction, the Court found there were multiple fair questions to be tried in this case, such as whether the defendants actions in blockading the mine could amount to torts of nuisance, intimidation, inducing breach of contract, or conspiracy, or even criminal acts of mischief or intimidation. The Court also found evidence of irreparable harm in terms of the delay and interference with the plaintiff’s ongoing business, the resulting increased costs and the impossibility of the plaintiff ever recovering damages from the defendants, who acknowledged they were impoverished. Finally, in terms of the balance of convenience, the Court found no evidence of anything weighing against the granting of the injunction. On the contrary, the Court found evidence indicating that the blockaders engaged in deliberate and unlawful conduct intended to harm the plaintiff and its business operations, and held that a failure to grant the injunction would condone such conduct and “run contrary to the public interest”.
On request of the RCMP, the Court also provided an enforcement order.