Case information

Injunctions — Interlocutory injunction pending trial — Underlying aboriginal land claim — Consultation process as a public interest factor — Group of First Nations seeking injunction to prevent disposition of land and to prevent Crown from consenting to subject land being included in Treaty — Consultation process ongoing yet nearing its end — Role of adequacy of consultation on application of RJR-MacDonald test for injunctive relief — When are interlocutory injunctions available to Indigenous peoples in the context of an underlying action for a declaration of Indigenous title, where a consultation process is ongoing? — How should the “public interest” be assessed in an application for an interlocutory injunction in Indigenous title litigation? — To what extent should courts, in Indigenous title litigation, have the discretion to fashion remedies which encourages litigants to resolve their disputes through negotiation rather than additional litigation?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Nasoga lands in northwestern British Columbia are contested among the applicant Allied Tribes and the respondent Nisga’a Nation. In 2015, the Nisga’a approached the Province and Canada with a proposal to purchase the Nasoga lands in a fair market sale and to seek Crown consent to add the Nasoga lands to the Nisga’a lands pursuant to the Nisga’a Final Agreement or Treaty (within the meaning of ss. 25 and 35 of the Constitution Act, 1982). The proposal prompted consultation between the Province and a number of First Nations asserting Aboriginal rights and title to the subject lands, including the Allied Tribes. While consultation was ongoing (though nearing its end), the Allied Tribes filed a notice of civil claim against Canada and the Province seeking declaratory and injunctive relief, including an interim, interlocutory, and permanent order enjoining the Province and Canada, respectively, from taking any actions to proceed with the proposal. The trial judge granted the injunction, but the majority of the Court of Appeal set it aside on appeal. The majority held that the chambers judge erred in her assessment of whether to grant the injunction by failing to weigh properly the public interest in permitting the consultation process to complete. The majority also determined that the chambers judge erred by grounding her assessment of irreparable harm on speculative risks and by failing to apply the test of a high probability of imminent harm.