Aboriginal group moves quickly to halt blockade of band office 


June 2012

Aboriginal Law Bulletin

More and more frequently, the courts are being called upon to use their power of injunctive relief to assist parties adversely affected by blockades of their lawful operations due to disputes over resource management and development. Further, recent cases indicate that Aboriginal groups are themselves increasingly using these remedies to protect their legal and property interests against their own members. Given that current police response policy is typically to decline to assist parties facing unlawful blockades and interference with their operations absent a court order with specific enforcement provisions, this has also led to additional court applications respecting enforcement of such injunction orders.

Last week, the elected Chief and Council of the McLeod Lake Indian Band sought the assistance of the Supreme Court of British Columbia to respond to a blockade of the Band office located near Mackenzie, British Columbia. The McLeod Lake Indian Band swiftly proceeded on the first day of the blockade to ask the court to issue an interim injunction to restore access to the Band office which was impeded by dissenting band members.

The elected Chief and Council claimed in court documents that the blockade of the Band's office began early on the morning of May 24, 2012 when eleven identifiable members of the McLeod Lake Indian Band and three unknown persons physically denied entry to the Band council premises by the elected leadership and its staff. The blockaders included recent unsuccessful candidates in Band elections. The court documents indicate that the blockaders said they would prevent access to the Band office until the elected Chief and Council resigned. Media reports regarding the blockade noted that the blockaders voiced concerns related to the Chief and Council's support for the nearby Mt. Milligan gold-copper mine.

Following a hearing brought without notice to the blockaders, the elected Chief and Council were granted an interim injunction restraining the blockaders, and any other person having notice of the injunction, from blockading the Band office for one month or until further order of the court. In addition, the interim injunction contained what is commonly referred to as an "enforcement clause," expressly authorizing peace officers to arrest any person with knowledge of the court injunction who contravenes its terms. At the time of writing, we are not aware of whether the blockade has been removed with or without police assistance.

While only the hearing of the application for an interim injunction has occurred to date, the underlying claim filed by the McLeod Lake Indian Band against the blockaders includes claims for mischief, trespass, and nuisance. In addition, the claim contains an allegation of "assault at common law". This allegation is made on the basis that the blockaders are "effectively assaulting all individuals who would otherwise gain access to the McLeod Lake Indian Band offices including staff, elected leadership, members of the Indian Band with business to be conducted in the Band office and other individuals and representatives of other organizations with legitimate business dealings with the leadership and staff of the McLeod Lake Indian Band at the McLeod Lake Indian Band office." These assaults are stated to be "effected by presence, gesture, and words, both written and spoken, indicating that persons wishing to gain access to the McLeod Lake Indian Band office, other than the Controller aforesaid, will be physically prevented from gaining access by application of sufficient force to ensure access will not be obtained." Should the underlying claim proceed further, it will be interesting to follow how the court deals with this allegation.

The situation encountered by the elected Chief and Council of the McLeod Lake Indian Band is comparable to that which confronted the Gitxsan Treaty Society over its stated support of the Enbridge Northern Gateway Pipeline Project. In that case, several hereditary chiefs alleged that the Gitxsan Treaty Office did not represent their interests and blockaded the Treaty Office to protest the Treaty Office's public support for the project. Despite a swiftly issued court injunction, the blockade remains some six months later as the RCMP have declined to step in and assist the Gitxsan Treaty Office in enforcing the court injunction and dismantling the blockade.

On the other hand, a court injunction was recently obtained by the Lake Babine Nation against some of its members who were opposed to logging operations within their traditional territory. The injunction resulted in the timely removal of a blockade and the resumption of logging operations. The blockade was dismantled voluntarily without the requirement for police assistance.

Similar blockades are occasionally faced by resource companies in British Columbia. Employees and contractors may be physically prevented from carrying out their lawful activities by those dissatisfied, for whatever reason, with resource and land use decisions. While the McLeod Lake Indian Band situation involved a blockade by members of an Aboriginal group of their own Band office, often the blockades faced by resources companies are initiated by Aboriginal groups or individuals dissatisfied with activities carried out in areas of asserted Aboriginal claims. Of particular note to resource companies is the speed with which the McLeod Lake Indian Band was able to obtain assistance from the court to enjoin the unlawful actions of the blockaders.

by Joan M. Young and Melanie J. Harmer

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2012