Court Finds Indigenous Law Not A Defence To An Injunction To Restrain Protests

On December 31, 2019, the British Columbia Supreme Court confirmed that interlocutory injunctions, which can include police enforcement clauses, are an available remedy to restrain protesters from blockading pipeline projects that have received all required governmental and regulatory approvals (Coastal Gas Link Pipeline Ltd v Huson, 2019 BCSC 2264).

Although there have been significant developments and publicity arising from protests and blockades since the decision was released, it remains an important ruling. The decision is particularly notable because it is the first to consider how Indigenous customary law and legal perspectives should be considered by courts when deciding whether to grant an injunction. It also confirms that it is the authorized band council that speaks for First Nations on matters of consultation and benefit agreements.

Background

In 2012, Coastal Gas Link Pipeline Ltd. (CGL) began obtaining permits and authorizations to begin construction of the Coastal Gas Link Pipeline Project through interior British Columbia. CGL consulted the Wet'suwet'en Bands Chiefs and Councils during the permitting and environmental assessment process, which culminated in CGL reaching community and benefit agreements with the Wet'suwet'en Bands. Pursuant to the agreements, the Wet'suwet'en Bands consented to the construction of the project. The Wet'suwet'en Bands are internally divided into 3 clans and further divided into 13 houses. Despite the general approval of the agreements by the Wet'suwet'en Bands, some of the dissenting houses opposed the granting of the permits for the project by the Environmental Assessment Office and the Oil and Gas Commission. The dissenting houses asserted Indigenous rights over the lands where the project was being constructed and some members and supporters, acting as protesters, set up blockades over the project route to hinder the project.

When construction started in 2018, the protesters refused to take down the blockades to allow the project to proceed. In late 2018, in an attempt to gain access to the project route, CGL applied for an interim injunction. The British Columbia Supreme Court granted an injunction restraining the protesters from blocking the project route to remain in force until an application for a more permanent interlocutory injunction could be heard by the Court.

The Decision—The 2019 Injunction

In June 2019, the British Columbia Supreme Court heard the interlocutory injunction...