Canadian Forest Products Ltd. v. Sam et al., 2013 BCCA 58

• Judge: Hall, Saunders and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 06, 2012
• Jurisdiction: British Columbia
• Citations: 2013 BCCA 58;(2013), 332 B.C.A.C. 292 (CA)

Cdn. Forest Products v. Sam (2013), 332 B.C.A.C. 292 (CA);

    569 W.A.C. 292

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. FE.017

Canadian Forest Products Ltd. (appellant/plaintiff) v. Richard Sam, Angeline Vincent, Samantha Vincent, Julian Bowes, Ken Sam, John Doe, Jane Doe, and Persons Unknown (respondents/defendants) and Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant by counterclaim)

(CA039140)

Canadian Forest Products Ltd. (appellant/defendant) v. Hagwilneghl, also known as Ron Mitchell, and Kelah, also known as Mabel Crich, on behalf of themselves and on behalf of all the members of the House of Ginehklaiyex (respondents/plaintiffs) and Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant)

(CA039139; 2013 BCCA 58)

Indexed As: Canadian Forest Products Ltd. v. Sam et al.

British Columbia Court of Appeal

Hall, Saunders and Garson, JJ.A.

February 8, 2013.

Summary:

Two competing interim applications for injunctive relief in a forestry resource management/aboriginal title dispute were heard at the same time.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 676, refused the application of the plaintiff Canadian Forest Products Ltd. (Canfor) against the Sam defendants, and allowed the application of the Kelah plaintiffs (a First Nations group) to restrain Canfor from engaging in timber harvesting under its cutting permit (CP324). Canfor appealed.

The British Columbia Court of Appeal set aside the injunctive order. The form of action commenced by the Kelah group as it related to activities authorized by CP324 constituted an impermissible collateral attack on the issuance of that permit.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See second Injunctions - Topic 1617.5 ].

Forests and Forest Products - Topic 2464

Forest regulation - Timber harvesting - Cutting permits - Aboriginal rights - [See second Injunctions - Topic 1617.5 ].

Injunctions - Topic 691

Granting an injunction - Considerations affecting grant - Abuse of process - [See second Injunctions - Topic 1617.5 ].

Injunctions - Topic 901

Form and contents - General - [See first Injunctions - Topic 1617.5 ].

Injunctions - Topic 1617.5

Interlocutory or interim injunctions - General principles - Aboriginal claims - The application judge granted the plaintiffs (a First Nations group) an interim injunction to restrain the defendant from engaging in timber harvesting under a cutting permit - The British Columbia Court of Appeal noted that the injunction order was not time limited - "I should think that in this class of case a court being requested to order injunctive relief will have to carefully assess the temporal dimensions of such orders. An order with no temporal parameters would generally not seem ideal. A time limited order with provisions for possible extension, if required, would seem more in accord with pronouncements by the Supreme Court of Canada about the desirability of consultation and accommodation as a route to the reconciliation of Aboriginal and non-Aboriginal interests. Such a process should be dynamic and evolving and time limited orders should help to foster such an approach." - See paragraph 29.

Injunctions - Topic 1617.5

Interlocutory or interim injunctions - General principles - Aboriginal claims - There were two competing interim applications for injunctive relief in a forestry resource management/aboriginal title dispute - The judge allowed the application of the Kelah plaintiffs, a First Nations group, to restrain Canfor from engaging in timber harvesting under its cutting permit - Canfor appealed - The British Columbia Court of Appeal set aside the injunctive order - The validity of the cutting permit was a central issue in the litigation - The Kelah action as it related to activities authorized by the permit constituted an impermissible collateral attack on the issuance of the permit, and "savours of abuse of process" - To amalgamate the issue of the lawfulness of Canfor's actions under the permit with litigation seeking declarations of Aboriginal rights and title was a recipe for delay and gridlock - "That sort of matter can be and should be dealt with under the judicial review process" - To give the Kelah plaintiffs some time, if so advised, to seek to convert that portion of the action to a proceeding under the Judicial Review Procedure Act, the court suspended the operation of its order for two months - See paragraph 30.

Cases Noticed:

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 1].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 13].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 14].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, consd. [para. 17].

Cosens Bay Property Owners Society et al. v. British Columbia (Minister of Environments Lands and Parks) et al., [1993] B.C.T.C. Uned. 623 (S.C.), consd. [para. 19].

Malahat Indian Band v. British Columbia (Minister of Environment, Lands and Parks), [1998] B.C.T.C. Uned. G94 (S.C.), consd. [para. 20].

Moulton Contracting Ltd. v. British Columbia et al., [2010] B.C.T.C. Uned. 506; 2010 BCSC 506, affd. (2011), 309 B.C.A.C. 15; 523 W.A.C. 15; 335 D.L.R.(4th) 330; 2011 BCCA 311, leave to appeal granted [2012] 1 S.C.R. vi; 434 N.R. 400; 327 B.C.A.C. 320; 556 W.A.C. 320, consd. [para. 21].

Shuswap Lake Utilities Ltd. et al. v. Comptroller of Water Rights (B.C.) (2008), 255 B.C.A.C. 106; 430 W.A.C. 106; 2008 BCCA 176, refd to. [para. 28].

Shuswap Lake Utilities Ltd. v. Mattison - see Shuswap Lake Utilities Ltd. et al. v. Comptroller of Water Rights (B.C.).

Counsel:

M.S. Oulton, S.L. McHugh and G. Allen, for the appellant;

P.R.A. Grant and M.L. Ross, for the respondents (except British Columbia);

E.K. Christie and P. Smith, for the respondent, Her Majesty the Queen in right of the Province of British Columbia.

This appeal was heard at Vancouver, British Columbia, on December 6, 2012, before Hall, Saunders and Garson, JJ.A., of the British Columbia Court of Appeal. In reasons written by Hall, J.A., the Court delivered the following judgment, dated February 8, 2013.