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No. 18 0247 y
Victoria Registry
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IN THE SUPREME COURT OF BRITISH COLUMBIA
N,
BETWEEN:
WEST MOBERLY FIRST NATIONS, and ROLAND WILLSON ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHER WEST MOBERLY FIRST NATIONS BENEFICIARIES OF TREATY NO. 8
PLAINTIFFS AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, THE ATTORNEY GENERAL OF CANADA, and BRITISH COLUMBIA HYDRO AND POWER AUTHORITY
DEFENDANTS NOTICE OF APPLICATION
Name of applicants:
West Moberly First Nations, and Roland Willson on his own behalf and on behalf of all other members of West Moberly First Nations
Beneficiaries of Treaty No. 8 (collectively "West Moberly") To:
British Columbia Hydro and Power Authority ("BC Hydro"), Her Majesty the Queen in Right of the Province of British Columbia
("British Columbia"), and the Attorney General of Canada ("Canada")
TAKE NOTICE that an application will be made by the applicants to the presiding judge at the
Victoria Law Courts, 850 Burdett Ave, Victoria, BC V8W 9J2, at 10:00 a.m. on the 26th day of March, 2018, for the orders set out in Part 1 below.
Part 1: ORDERS SOUGHT
An interlocutory injunction pending trial, pursuant to Rule 10-4 of the Supreme Court Civil
Rules, section 39 of the Law and Equity Act, RSBC 1996, c 253, and the Court's inherent jurisdiction, enjoining:
a.
BC Hydro from undertaking any construction or construction activities, as defined in Schedule B to British Columbia Environmental Assessment Certificate #E14-02 (the "Certificate") (collectively, "Construction Activities"), in respect of the dam and 1100 megawatt hydroelectric generating station and associated structures on the Peace River known as the Site C Clean Energy Project
("Site C"), as further
2
described in Schedule A to the Certificate, except to the extent any such Construction Activities are necessary, as determined by the Canadian Environmental Assessment
Agency
("CEAA"),
the
British
Columbia
Environmental
Assessment
Office
("EAO"), or any other relevant regulatory bodies, to: i. ii.
ensure safety of Site C until trial of this Action; mitigate environmental impacts of Site C, as constructed on the date of this Order;
iii.
preserve, maintain and care for elements of Site C, as constructed on the date
of this Order, so that they may be incorporated into Site C in the event the interlocutory injunction is lifted; (collectively, "Preservation Activities"); b.
British Columbia from issuing any further approvals, authorizations or permits authorizing Construction Activities in respect of Site C, except to the extent that such approvals are necessary to enable BC Hydro or others to undertake Preservation Activities; and
c.
Canada from issuing any further approvals authorizing Construction Activities in respect of Site C, except to the extent that such approvals are necessary to enable BC Hydro or others to undertake Preservation Activities.
2.
An order for an expedited trial, to commence 1 8 months from the date of this Order or as otherwise fixed by the Court.
3.
In the alternative:
a.
an interlocutory injunction pursuant to Rule 10-4 of the Supreme Court Civil Rules, section 39 of the Law and Equity Act, RSBC 1996, c 253, and the Court's inherent jurisdiction, enjoining
i.
BC
Hydro
from
proceeding
with
Construction
Activities,
except
for
Preservation Activities, in relation to Site C; ii.
British Columbia from issuing any further approvals authorizing Construction Activities in respect of Site C, except to the extent that such approvals are necessary to enable BC Hydro or others to undertake Preservation Activities; and
in.
Canada from issuing any further approvals authorizing Construction Activities in respect of Site C, except to the extent that such approvals are necessary to enable BC Hydro or others to undertake Preservation Activities.
except and unless: 1.
the Construction Activities do not: a.
flood the reservoir, as described in Schedule A to the Certificate; or
3
b.
take place within the critical areas identified in Schedule "A" to this Application, with the exception of Preservation Activities; and
2.
BC Hydro, British Columbia, and Canada undertake not to rely on any construction, financing or other costs incurred, activities undertaken in respect of the Site C project, or intervening events, occurring between the
date of this Order and the final determination of the Plaintiffs' claim of infringement, in addressing the appropriateness of relief claimed by the Plaintiffs in this action. b.
an expedited trial, to commence 1 8 months from the date of this Order or as otherwise fixed by the Court.
4.
An order pursuant to Rule 10-4(5) of the Supreme Court Civil Rules relieving the Applicants of the undertaking to abide by any order that the Court may make as to damages.
5.
An order for costs.
6.
Such further and other relief as counsel may advise and this Honourable Court deems just.
Part 2: FACTUAL BASIS Introduction
1.
West Moberly brings this application to enjoin BC Hydro from continuing construction on
Site C (or the "Project") pending determination of this Action. 2.
In the underlying Action,1 West Moberly seeks a permanent injunction to stop the Project. Site
C would destroy the last portion of the Peace River capable of sustaining West
Moberly' s ability to hunt, fish, and trap in the places and by the traditions of their ancestors—in violation of Treaty 8. 3.
BC Hydro has proceeded with construction notwithstanding First Nations' objections,
ongoing litigation,2 the election of an opposition government that had opposed the Project,3 and a British Columbia Utilities Commission ("BCUC") inquiry.4 On December 1 1, 2017, British Columbia announced its decision to complete Site C given the aggressive
construction schedule that BC Hydro had pursued.
1 Notice of Civil Claim, filed January 15, 2018
2 Prophet River First Nation v Canada, 2015 FC 1030, aff'd 2017 FCA 15; Prophet River First Nation v British Columbia (Minister of Environment), 2015 BCSC 1682, aff'd 2017 BCCA 58, leave to appeal to SCC denied.
3 Roland Willson Affidavit 4 Order in Council 244, issued August 2, 2017
4
4.
Construction on Site C has not proceeded past the point of no return.5 But there is a risk that, if not enjoined now, West Moberly will be left without a remedy for the infringement
of their Treaty rights. First Nations did not enter into treaties with the Crown so they could have compensation once their way of life was destroyed, but to ensure protection of that
way of life. 5.
West Moberly asks that the Court act now to preserve West Moberly's Treaty rights and way of life pending an expedited trial of this Action.
Site C Dam Project
6.
Site C would be the third dam and hydroelectric generating station on the Peace River in
northeastern British Columbia.6 Project components include: a.
a dam, to be constructed approximately 7 km west of Fort St. John, British Columbia;
b.
a generating station;
c.
spillways;
d.
a newly-created 83 km-long reservoir;
e.
a substation, and a 77km transmission line from that substation to the Peace Canyon dam;
7.
f.
realignment of the existing Highway 29;
g.
quarried and excavated construction materials;
h.
worker accommodation; and,
i.
road and rail access.7
The Project would destroy 83 Ian of the Peace River and Peace River Valley, from the
existing Peace Canyon dam to the Site C dam site.8 BC Hydro plans to clearcut approximately 2,91 8 ha of forest along the Peace River and on the islands within it, in areas
that are expected to inundated or destabilized by the reservoir.9 BC Hydro will conduct additional clearcutting to make way for the transmission lines and road and rail access.10
5 Robert McCullough Affidavit and attached BCUC Report 6 BC Hydro and Power Authority, Site C Clean Energy Project Environmental Impact Statement, (January 2013), Volume 1, section 4.1 [EIS]
7 EIS, vol. 1, section 4.3 8 EIS, vol. 1, section 4.3.2 9 EIS, vol. 1, Appendix A, p. 46 10 Roland Willson Affidavit
5
Treaty 8 8.
The relationship between West Moberly and the Crown, represented in this Action by
Canada and British Columbia, is governed by Treaty 8 and s. 35 of the Constitution Act,
1982. BC Hydro is an agent of British Columbia" and, as such, BC Hydro's actions bind the Crown in right of British Columbia. 9.
Treaty 8 was originally made and concluded in 1899 at Lesser Slave Lake in what is now
Alberta.12
In 1914, members of the Hudson's Hope Band, Dunne-za ancestors of the
present-day West Moberly, were admitted into Treaty 8. 13 10.
Treaty 8 created a sui generis relationship between West Moberly and the Crown.14 The Crown sought the consent of West Moberly's ancestors to open the territory for settlement and other activities. West Moberly's ancestors gave this consent in exchange for the solemn
promises made by the Crown,15 which included promises that: a.
entrance into Treaty 8 would not lead to forced interference with West Moberly's mode of life;
b.
West Moberly would be able to continue the same patterns of activity that they practiced before entering Treaty 8; and
c.
West Moberly would be as free to hunt, trap, and fish as they had been before entering
the Treaty.16 11.
When West Moberly's ancestors were admitted into Treaty 8, the Peace River was the central river in the region. The Peace River, its islands, surrounding lands, and confluences with certain tributaries, including the Finlay, Parsnip, and Moberly Rivers (collectively the
"Peace"), was unique and central to their mode of life and culture.17 12.
In entering into Treaty 8, West Moberly's ancestors would not have understood that the Crown would be allowed to destroy the Peace under the terms of the Treaty. That is not what they agreed to, and there is no evidence that the Crown ever communicated this as part of negotiations or otherwise. Indeed, the Crown's assurances—the oral terms of the Treaty—were to the opposite effect.
11 British Columbia Hydro and Power Authority Act, RSBC 1996, c 212 12 Olson Affidavit, Exhibit "A" (Expert Report) 13 Olson Affidavit, Exhibit "A" 14 R v Badger 1996 1 SCR 771 at para. 78, see also R v Soui, [1990] 1 SCR 1025, at para. 42, R v Sparrow at para. 57 15 R v Badger at para 41 16 Mikisew Cree First Nation v Canada (Minister of Heritage), 2005 SCC at para 47; Badger at paras. 39-40, West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247 at paras 130, 136-140
17 Olson Affidavit, Exhibit "A"; Roland Willson Affidavit; Desjarlais Affidavit; McConnell Affidavit; Dokkie Affidavit; Clarence Willson Affidavit
6
Cumulative Impacts Result in Infringement 13.
In 1968, BC Hydro constructed the first dam on the Peace River, the Bennett dam.18 The Crown did not consult with West Moberly before approving or authorizing construction of
the Bennett dam.19 14.
The Bennett dam flooded the Peace River to the north and west of the dam, as well as the Parsnip and Finlay Rivers, to create British Columbia's largest reservoir, the Williston reservoir. The Bennett dam and Williston reservoir significantly limit West Moberly's
ability to exercise Treaty rights west of the Bennett dam and along the Parsnip and Finlay
Rivers.20 The Williston reservoir further served to cut West Moberly off from their Dunneza relations and eliminated traditional gathering spots, fragmenting cultural ties.21 Impacts on fish22 and wildlife23 in the area were devastating and continue to be experienced.24 15.
In 1980 BC Hydro completed the second dam on the Peace River, the Peace Canyon dam, which is 21 km downstream from the Bemiett dam and north of West Moberly's reserve.
The Peace Canyon dam flooded the Peace River west to the Bemiett dam, creating Dinosaur reservoir. The Peace Canyon dam and Dinosaur reservoir exacerbated and extended the
impacts of the Bemiett dam and Williston reservoir described above.25 SiteC
16.
Even before the completion of the Peace Canyon dam, BC Hydro had identified Site C, approximately 7 km southwest of Fort St. John, as a potential location for a third dam on
the Peace River.26 In 1983, the British Columbia Utilities Commission ("BCUC"), the independent agency responsible for regulating electric utilities,27 recommended against issuance of an Energy Project Certificate for Site C until future demand forecasts could justify an immediate start to construction, and only after consideration of energy supply
18 Roland Willson Affidavit 19 Roland Willson Affidavit; Roland Willson Affidavit, Exhibit "F" (Affidavit #1 of Betty Willson, para 55) 20 Affidavit #1 of Roland Willson, Exhibit "F" (Affidavit of Betty Willson); Affiavit #1 of Andy Miller; Affidavit #1 of Dean Dokkie; Affidavit #1 of Rachel Olson, Exhibit "A", pp. 44-47
21 Affidavit #1 of Rachel Olson, Exhibit "A", pp. 47-49; Affidavit #1 of George Desjarlais; Affidavit #1 of Clarence Willson; Affidavit #1 of Roland Willson; Affidavit #1 of Andy Miller, Exhibit "A", paras 3-14; Affidavit #1 of Dean
Dokkie, and Exhibit "A" (Affidavit of Catherine Dokkie)
22 Affidavit #1 of Rachel Olson, Exhibit "A", pp. 46-49; Affidavit #1 of Roland Willson; Affidavit #1 of Clarence Willson; Affidavit #1 of George Desjarlais; Affidavit #1 of Andy Miller, Exhibit "A", paras. 31-37
23 Affidavit #1 of Rachel Olson, Exhibit "A", pp. 44-47; Affidavit #1 of Andy Miller, Exhibit "A" paras 21-30 24 Affidavit #1 of Roland Willson; Affidavit #1 of George Desjarlais; Affidavit #1 of Clarence Willson; Affidavit #1 of Annette Muttray; Affidavit #1 of David Schindler
25 Affidavit #1 of Roland Olson, Exhibit "A" pp. 17-18; Affidavit #1 of Roland Willson; Affidavit #1 of Dean Dokkie, Exhibit "A" (Affidavit of Catherine Dokkie, para. 41, 46)
26 Affidavit #1 of Marc Eliesen, para 7 27 Utilities Commission Act, SBC 1980, c. 351
7
alternatives demonstrated that Site C would be the best project to meet anticipated
shortfalls.28 17.
In 1 994, and after further consideration, BC Hydro removed Site C from its list of potential
generation projects.29 18.
In the 2000s, BC Hydro renewed its interest in Site C. In 2010, British Columbia exempted
Site C from the requirement to obtain a certificate of public convenience and necessity
from the independent BCUC.30 There would be no independent determination of whether the energy to be generated by Site C was required, or whether Site C was the appropriate
project to meet British Columbia's energy needs.31 19.
Site C was subject to environmental review,32 and in August 2013, Canada and British Columbia established a Joint Review Panel ("JRP") to consider the environmental impacts
of the Project.33 The JRP was not authorized to determine whether Site C was needed, whether other projects could meet British Columbia's energy needs, or whether Site C
would infringe Treaty rights.34 20.
In May 2014, the JRP released its Report, concluding that Site C would have significant adverse environmental effects and significant adverse impacts on First Nations that could
not be mitigated.35 Nonetheless, in October 2014, both British Columbia and Canada issued the environmental approvals necessary for the Project to proceed.36 21.
West Moberly and Prophet River First Nation ("Prophet River") sought judicial review of both decisions on the basis that the Crown's consultation process had been inadequate.
West Moberly and Prophet River were unsuccessful in those judicial reviews.37 The courts held that the Crown was not obligated to consider (and had not considered) whether their
actions in approving Site C infringed West Moberly's and Prophet River's Treaty 8 rights. To have the issue of infringement determined, they would need to bring a civil action. The
28 Affidavit #1 of Marc Eliesen, paras. 10-12 29 Affidavit #1 of Marc Eliesen, paras. 13-19
30 Section 7(l)(d) of the Clean Energy Act, SBC 2010, c 22, British Columbia; Affidavit #1 of Roland Willson, paras. 74-75
31 Swain Affidavit and Exhibit "A" [Expert report] 32 Including under the British Columbia Environmental Assessment Act, SBC 2002, c43, and the Canadian Environmental Assessment Act, SC 1992, c 37
33 Affidavit #1 of Harry Swain 34 Affidavit #1 of Harry Swain 35 Affidavit #1 of Roland Willson, Exhibit "L" [JRP Report] 36 Affidavit #1 of Roland Willson, Exhibit "M" [Decision Statement] and "N" [EA Certificate]
37 Prophet River First Nation v Canada, 2015 FC 1030, aff'd 2017 FCA 15; Prophet River First Nation v British Columbia (Minister of Environment), 2015 BCSC 1682, aff'd 2017 BCCA 58, leave to appeal to SCC denied
8
Supreme Court of Canada denied West Moberly's application for leave to appeal on June
29, 2017. 38 22.
By this point, the New Democratic Party ("NDP") was about to come to power in British
Columbia as a result of the May 9, 2017 provincial election.39 In opposition, the NDP had recognized that Site C would violate First Nations' constitutional rights and had promised
to refer the Project to the BCUC for independent review.40 On July 18, 2017, John Horgan was sworn in as Premier of British Columbia.41 23.
On August 2, 2017, by Order in Council, British Columbia referred Site C to the BCUC
for a review.42 However, the terms of reference did not permit the BCUC to consider whether the energy that Site C would generate was required, the foil range of energy supply
alternative available to meet demand, or whether Site C would infringe Treaty rights.43 24.
On November 1, 2017, the BCUC reported in accordance with its terms of reference and advised British Columbia that BC Hydro's demand forecast could be satisfied through an
alternative portfolio of assets and other mitigation strategies, and that the potential cost to ratepayers of this alternative portfolio would not necessarily be greater than the expected
costs associated with Site C.44 25.
On December 1 1, 2017, British Columbia announced its decision to complete Site C.45
26.
On January 15, 2018, West Moberly filed its Notice of Civil Claim in this Action for
infringement of Treaty 8. The same day, Prophet River First Nation filed its own Notice of
Civil Claim for infringement of Treaty 8.46 27.
West Moberly pleads that, as a result of the cumulative impacts of the W.A.C. Bennett ("Bennett"), Peace Canyon, and Site C dams, West Moberly will no longer be able to
38 2017 CarswellBC 1747 39 Affidavit #1 of Roland Willson 40 Affidavit #1 of Roland Willson 41 Affidavit #1 of Roland Willson 42 Affidavit #1 of Roland Willson. On August 2, 2017, by way of Order in Council 244 ("OIC 244") pursuant to s. 5(1) of the Utilities Commission Act, RSBC 1996, c 473, the Lieutenant Governor in Council requested the BCUC to advise in respect of Site C
43 Affidavit #1 of Harry Swain
44 Affidavit #1 of Roland Willson 45 Affidavit #1 of Roland Willson 46 Affidavit #1 of Lynette Tsakoza
9
meaningfully exercise Treaty 8 rights.47 British Columbia's and Canada's approvals of the Site C dam constitute an infringement of Treaty 8. 48 Application for Interlocutory Relief
28.
In its Notice of Civil Claim, West Moberly seeks final injunctive relief, preventing BC Hydro from completing Site C and flooding the reservoir. West Moberly does not seek damages. Final injunctive relief will not be available if BC Hydro floods the reservoir
before West Moberly's Action can be heard.49 29.
West Moberly therefore seeks an interlocutory injunction, enjoining BC Hydro from proceeding with construction on Site C, and the Crown from issuing any further approvals
of such construction, until an expedited trial of this Action can occur.
30.
As an alternative fonn of relief, West Moberly seeks an injunction enjoining BC Hydro from (a) flooding the reservoir, and (b) conducting constriction activities within critical
areas identified by West Moberly in Schedule "A" to this Application, if and only if BC Hydro, British Columbia, and Canada undertake not to rely on any other activities or actions undertaken between the date of the order and the date of trial as a basis for denying
West Moberly's request for a final injunction.50
31.
While both West Moberly and Prophet River First Nations have filed Notices of Civil Claim, for reasons of efficiency, this Application for an interlocutory injunction is being
brought solely by West Moberly. Prophet River is fully supportive.51
47 Affidavit #1 of Rachel Olson, Exhibit "A" pp. 43, 50, 79, 80-81; Affidavit #1 of George Desjarlais; Affidavit #1 of Clarence Willson; Affidavit #1 of Roland Willson; Affidavit #1 of Annette Muttray; Affidavit #1 of David Schindler;
Affidavit #1 of Jim Pojar; Affidavit #1 of Beth Hrychuk; Affidavit #1 of Andy Miller; Affidavit #1 of Dean Dokkie; Affidavit #1 of Marggie McConnell; Affidavit #2 of Petr Komers 48
Prima facie: Affidavit #1 of Rachel Olson, Exhibit "A" pp. 43, 50, 79, 80-81; Affidavit #1 of George Desjarlais;
Affidavit #1 of Clarence Willson; Affidavit #1 of Roland Willson; Affidavit #1 of Annette Muttray; Affidavit #1 of David Schindler; Affidavit #1 of Jim Pojar; Affidavit #1 of Beth Hrychuk; Affidavit #1 of Andy Miller; Affidavit #1 of Dean Dokkie; Affidavit #1 of Marggie McConnell; Affidavit #2 of Petr Komers. Justification: Affidavit #1 of Petr Komers; Affidavit #1 of Sheri Gutsell; Affidavit #1 of Megan Thompson; Affidavit #1 of Harry Swain; Affidavit #1 of Marc Eliesen
49 Roland Willson Affidavit; Desjarlais Affidavit; McConnell Affidavit; Dokkie Affidavit; Clarence Willson Affidavit 50 As further detailed in Part I, para 3 above
51 Affidavit # 1 of Lynette Tsakoza
10
Part 3: LEGAL BASIS Test for an Interlocutory Injunction 32.
RJR McicDoncild Inc. v. Canada (Attorney General) sets out the analytical framework for
deciding interlocutory injunction applications: First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the
remedy pending a decision on the merits.52 Serious Question to be Tried West Moberly Exceeds the Standard 33.
To satisfy the requirement that it establish a serious question to be tried, an applicant need
only show that its case on its merits is not frivolous or vexatious.53 An applicant need not prove a strong prima facie case.54 34.
However, because the strength of West Moberly's case will also be considered in assessing
the balance of convenience—or which party would suffer the greater harm—West Moberly has adduced evidence on this application to establish a strong prima facie case that Site C will infringe its Treaty 8 rights. If an injunction does not issue, these rights may be lost forever. Treaty Infringement 35.
Treaty 8 was entered into between two very different cultures, drafted by the Crown in the
context of English law and a legal tradition that significantly differed from that of the Indigenous negotiators, who did not share the same understandings of land, ownership, and
the relationship between people and their environment.55 36.
Recognizing these circumstances, the Supreme Court of Canada has held that treaties must
be "given a just, broad, and liberal construction,"56 with any uncertainties resolved in favour
52 RJR - Macdonald Inc. v Canada (Attorney General) 1994 1 SCR 311 at para 48 CarswellQue [RJR Macdonald]; see also Taseko Mines Limited v Phillips 2011 BCSC 1675 at para 41 CarswellBC 3478 [Taseko] citing AG British Columbia v Wale (1986), Carswell BC 413 at para 345 [1987] 2 WWR 331
53 Taseko at para. 42, citing RJR at para 49 54 RJR MacDonald, at para. 49 55 See R v Sioui, [1990] 1 SCR 1025 at para 19 CarswellQue 103, quoting from Jones v Meehan, 175 US 1 (1899) 56 R v Sioui, supra, at para 19
11
of the Indigenous signatories:57 "A corollary to this principle is that any limitations which restrict the rights of [Aboriginal people] under treaties must be narrowly construed. it 58 37.
The text of Treaty 8 provides as follows: And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described . . . saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.
38.
Treaty 8 is not limited to its text. Oral promises are incorporated as well: "The [Aboriginal] people made their agreements orally and recorded their history orally. Thus, the verbal promises made on behalf of the federal government at the times the treaties were concluded are of great significance in their interpretation. ii 59
39.
The Crown made oral promises to persuade Indigenous negotiators into entering Treaty 8 including that:
a.
entrance into Treaty 8 would not lead to "forced interference" with their mode of life;
b.
the same patterns of activity would continue for them and their descendants after the Treaty as existed before it; and
c.
they would be as free to hunt, trap, and fish as they had been before entering the
Treaty.60 40.
By admitting West Moberly into Treaty 8, the Crown promised far more than the preservation of hunting, fishing, and trapping opportunities. The Treaty guaranteed that West Moberly would be free to carry on these vocations in ways meaningful to them, in the places
and by the traditions of their ancestors. 41.
These principles of interpretation apply in considering the scope of the Crown's right to take up Treaty 8 lands. When Treaty 8 was entered, the signatories expected that some prospectors using pack animals and working with hand tools would engage in mining on
treaty lands. The modern scale of industrialized economic activity (including the Crown
57 R v Simon, [1985] 2 SCR at para 24 1985 CarswellNS 226F; R v Badger, in particular at para 41; R v Sioui, supra at para 17
58 R i/ Badger 1996 1 SCR 771 at para 41 CarswellAlta 365F. 59 R i/ Badger, at para 55. 60 Mikisew, at para 47, Badger, at paras. 39-40, West Moberly at paras. 130,136-140
12
actions at issue in this case) could not have been within the understanding or contemplation
of Treaty 8 signatories.61 42.
The Crown's right to take up land cannot extend to deny West Moberly the ability to meaningfully exercise their Treaty rights. In Mikisew Cree First Nation v. Canada (Minister
of Canadian Heritage), a consultation case, the Supreme Court of Canada addressed the interaction between the First Nation's right to hunt and the Crown's right to take up land:
Badger recorded that a large element of the Treaty 8 negotiations were the assurances
of continuity
in traditional
patterns
of economic
activity.
Continuity respects traditional patters of activity and occupation. The Crown
promised that the Indians' rights to hunt, fish and trap would continue "after the treaty as existed before it".
The "meaningful right to hunt" is not ascertained on a treaty-wide basis (all 840,000 square kilometers of it) but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so
today. If the time comes that in the case of a particular Treaty 8 First Nation "no meaningful right to hunt" remains over its traditional territories, the significance of the oral promise that "the same means of earning a livelihood
would continue after the treaty as existed before it" would clearly be in question, and a potential action for treaty infringement, including a demand
for a Sparrow justification, would be a legitimate First Nation response.62 43.
To West Moberly, the Peace has always been more than a place. It is a vital part of their
cultural identity,63 the main artery of their territory.64 The Peace connects West Moberly to their ancestors,65 kin,66 the spirit world,67 and to the Treaty itself.68 Since time immemorial,69 it has been where they hunt,70 fish,71 trap,72 gather,73 camp,74 and teach children the Dunne61 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 at paras. 34-35. 62 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at paras. 47-48, 3 SCR 388 [Mikisew],
53 Affidavit #1 of Rachel Olson, Exhibit "A" p. 81. 64 Affidavit #1 of Roland Willson
65 Affidavit #1 of Clarence Willson; Affidavit #1 of George Desjarlais; Affidavit #1 of Roland Willson 66 Affidavit #1 of Rachel Olson, Exhibit "A", pp. 37-40, 47-49, 52-53, 62-66; 67 Affidavit #1 of George Desjarlais 68
Affidavit #1 of Rachel Olson, Exhibit "A", p. 127-129
69 Affidavit #1 of Beth Hrychuk, Exhibit "A"; Affidavit #1 of Roland Willson; Affidavit #1 of George Desjarlais; Affidavit #1 of Rachel Olson, Exhibit "A" pp. 13-18.
70 Affidavit #1 of George Desjarlais; Affidavit #1 of Clarence Willson; Affidavit #1 of Roland Willson. 71 Affidavit #1 of George Desjarlais; 72 Affidavit #1 of Rachel Olson, Exhibit "A" pp. 34-36; 72-73; Affidavit #1 of Clarence Willson
73 Affidavit #1 of George Desjarlais 74 Affidavit #1 of Margie McConnell; Affidavit #1 of Clarence Willson; Affidavit #1 of George Desjarlais; Affidavit #1 of Roland Willson; Affidavit #1 of Rachel Olson
13
za way of life.75 These rights are protected by the Treaty,76 and unextractable from the Peace.77 As West Moberly Chief Roland Willson explains in talking about the effects of Site C:
The main artery of the area is going to get clogged up. It's just like the human body. If your arteries get clogged, you have a heart attack or a stroke, and you become dysfunctional or die. We're seeing that upstream from the Williston
and Peace Canyon Dams.78 44.
In this Application, West Moberly has adduced evidence that the Bennett, Peace Canyon, and Site dams result in:
a.
the fundamental alteration of the ecosystem on which the West Moberly relies to
exercise Treaty rights;79 b.
health risks from methylmercury contamination if fish are consumed in accordance with West Moberly's traditional practices; 80
c.
the extirpation multiple fish species in the reservoirs and the introduction of invasive
fish species into the rivers;81 d.
interference with West Moberly's ability to harvest preferred species of fish;82
e.
disruption of boat and shore-based river fishing and practices;83
f.
the destruction of plants gathered by West Moberly for spiritual, medicinal and food purposes;
g.
the
84
destruction
of habitat
for
moose,
caribou,
and
other
preferred
wildlife
populations, ending West Moberly's ability to harvest caribou and interfering with
other traditional hunting and trapping practices;85 h.
the inundation of, or restriction on access to, key sites associated with the exercise of
Treaty rights;86
75 Affidavit #1 of George Desjarlais.
76 Affidavit #1 of Roland Willson 77 Affidavit #1 of Roland Willson 7S Ibid. 79 Schindler Affidavit; Pojar Affidavit; Petr Komers Affidavit 2; Roland Willson Affidavit; Clarence Willson Affidavit; George Desjarlais Affidavit; Dokkie Affidavit 80
Schindler Affidavit; Muttray; Affidavit #1 of Roland Willson, Exhibit "F" (Affidavit of Betty Willson); Affidavit #1 of
Andy Miller; Affidavit #1 of Dean Dokkie; Affidavit #1 of Rachel Olson, Exhibit "A", pp. 44-47
81 Schindler Affidavit, Expert Report; Roland Willson Affidavit 82 Schindler Affidavit; Roland Willson Affidavit, JRP Report 83 Roland Willson Affidavit; Margie McConnell Affidavit; George Desjarlais Affidavit 84
Olson 1; George Desjarlais Affidavit; Clarence Willson Affidavit; Dokkie Affidavit
85 Affidavit #1 of Rachel Olson, Exhibit "A", pp. 44-47, 56-79; Affidavit #1 of Andy Miller, Exhibit "A" paras 21-30 Affidavit #1 of George Desjarlais; Affidavit #1 of Clarence Willson; Affidavit #1 of Roland Willson; Komers Affidavit 2 86
Affidavit #1 of Margie McConnell; Affidavit #1 of Clarence Willson; Affidavit #1 of George Desjarlais; Affidavit #1
of Roland Willson; Affidavit #1 of Rachel Olson. Affidavit #1 of Rachel Olson, Exhibit "A", pp. 37-40, 47-49, 52-53,
62-66; Affidavit #1 of Clarence Willson; Affidavit #1 of George Desjarlais; Affidavit #1 of Roland Willson
14
i.
the destruction of spiritual and cultural sites, including those used for gatherings and
teachings;87 j.
the inundation of traditional trails, and navigation routes important to West Moberly
when using the land to exercise treaty rights;88 and k.
the exclusion of, or significant limitation on, West Moberly's ability to hunt and trap preferred species in a unique and centrally significant area. 89
45.
The Peace is and has always been the main artery of West Moberly territory, the lifeblood
of their culture. Site C would destroy the last remaining portion of the Peace capable of sustaining West Moberly's ability to hunt, fish, and trap in the ways of their ancestors. These impacts violate the Crown's promises to protect cultural continuity, and constitute an infringement of Treaty 8. Infringement Cannot be Justified
46.
In the Action, once West Moberly establishes a prima facie infringement of a treaty right,
the onus shifts to the Crown to justify the infringement by establishing that:90 a.
The infringement was undertaken in accordance with the Crown's procedural duty to
consult and accommodate;91 b.
The
infringement
is in furtherance of an
objective that is
'compelling and
substantial';92 and c.
The infringement is consistent with the Crown's fiduciary duty towards the
Aboriginal group,93 which requires: a.
a rational connection;
b.
minimal impairment; and
87 Affidavit #1 of George Desjarlais; Clarence Willson Affidavit; Roland Willson Affdiavit; Olson Affidavit, Exhibit "A" pp. 63-68. 88
Affidavit #1 of Rachel Olson, Exhibit "A", pp. 47-49; Affidavit #1 of George Desjarlais; Affidavit #1 of Clarence
Willson; Affidavit #1 of Roland Willson; Affidavit #1 of Andy Miller, Exhibit "A", paras 3-14; Affidavit #1 of Dean
Dokkie, and Exhibit "A" (Affidavit of Catherine Dokkie) 89
Komers Affidavit 2; Pojar; Roland Willson; Desjarlais; Clarence Willson; Olson
90 R v Badger, [1996] 1 SCR 771 at para 96; Tsilhqot'in Nation v British Columbia, 2014 SCC 44, [Hereinafter Tsilhqot'in ] at para. 77
91 Tsilhqot'in at paras 77-80, 88 92 Delgamuukw v. British Columbia, [1997] 3 SCR 1010, [Hereinafter Delgamuuk] at para 161; Tsilhqot'in at paras 81-83
93 Delgamuukw at para 162; Tsilhqot'in at para 84
15
c.
47.
proportionality of impact.94
The scope of the Crown's duties under the justification framework is determined by the
nature of the right and the severity of the infringement.95 The onus is on the Crown to justify prima facie infringements of treaty rights in part because the rights granted under treaties
formed an integral part of the consideration for the surrender of lands.96 The Crown will not be able to meet its onus to justify the infringement in this case. Consultation and Accommodation 48.
The courts have concluded that the Crown adequately consulted West Moberly in respect of
certain prior approvals issued for Site C.97 However, the Crown did not consult, accommodate, or make a determination regarding whether the global impacts of Site C, on their own or together with the impacts from the Bennett and Peace Canyon dams, would
infringe West Moberly's treaty rights.98 Sufficient consultation and accommodation has never occurred in respect of the Bennett and Peace Canyon dams.99 Compelling and substantial objective
49.
To justify infringement, the Crown must establish a compelling and substantial objective
that serves the broader public goal of reconciliation.100 This is a fact specific inquiry, which in this case will require the Crown to establish that it has a compelling and substantial objective in constructing Site C within the Treaty lands of West Moberly. 101
50.
The court will consider evidence of the necessity and economic viability or value to the
public of Site C.102 Questions of necessity are considered in relation to the effects on West Moberly's Aboriginal rights. There is no valid compelling and substantial objective when the adverse effects of a project are disproportionate to its need. 103
94 Tsilhqot'in at paras 85-87. 95 Tsilhqot'in at para 15, 88. Delgamuukw, at para 167. 96 Badger, at para 82. 97 Prophet River First Nation v Canada, 2015 FC 1030, aff'd 2017 FCA 15; Prophet River First Nation v British Columbia (Minister of Environment), 2015 BCSC 1682, aff'd 2017 BCCA 58, leave to appeal to SCC denied
98 Ibid 99 Roland Willson Affidavit 100
Tsilhqot'in, at paras 81-82; see also Deglamuukw, at para 161, Gladstone, at para 73, Xeni Gwet'in First Nations
v. British Columbia, 2007 BCSC 1700 [hereinafter Xeni] at para. 1085. Sparrow, at para 72; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2001 FCT 1426, at para 122, 2001 CarswellNat 2902 101
Xeni, at para. 1090
102
Xeni, at para. 1101-1107
103
Xeni, at para. 1107
16
51.
West Moberly's evidence on this Application establishes that the Crown will be unable to
show that Site C served a substantial and compelling objective: a.
There is no indication that British Columbia requires additional sources of hydro electric power: every independent body that has reviewed Site C has questioned BC
Hydro's demand forecast. b.
104
There is no indication that Site C must be constructed to meet whatever demand there is: British Columbia admitted, in announcing its decision to continue Site C in
December 2017, that this Project should never have been started. 105
The Honour of the Crown / Proportionality 52.
Even if there were a compelling and substantial objective (which West Moberly denies), the Crown must also establish that it complied with its fiduciary obligation to act in good faith
to honour and preserve the rights promised in treaties.106 The Crown must establish that: a.
the incursion is necessary to achieve the government's goal (rational connection);
b.
the government went no further than necessary to achieve it (minimal impairment); and
c.
the benefits that may be expected to flow from that goal are not outweighed by
adverse effects on the Aboriginal interest (proportionality of impact). 107
Where the "government fails to explain why a significantly less intrusive and equally
53.
effective measure was not chosen" it will not satisfy the justification test. 108 54.
The Crown will be unable to establish that it has acted in accordance with its obligations to West Moberly in approving the Site C dam. West Moberly has already borne the burden of
electricity generation in this province through the Bennett and Peace Canyon dams; there is no basis on which it should be required to bear the disproportionate burden of a third dam. The Crown has never provided an adequate response to Chief Willson's questions:
We are not opposed to development. We are not opposed to the creation of energy. But the level of footprint that this project creates, the impact of this,
is too much, especially when there are other ways of creating this energy that are drastically less intrusive than the flooding of the valley. Why are the fish in other rivers more important than the fish that we have here? Why are
104
Eliesen; Swain
105
Eliesen; Swain; Roland Willson
106
Badger at para 47.
107
Tsilhqot'in at para 87; see also Delgamuukw, at para 169
108
RJR-MacDonald Inc. v. Canada, [1995] 3 SCR 199, at para 160
17
everyone else's interests more important than what our constitutionallyprotected rights are? Why do we get pushed aside?
If the Peace River was all we had in British Columbia to generate electricity, then we could have a discussion about it. But we have all these other things that we could be doing. Saving this last chunk of the valley should be the priority, and it's not. 55.
109
West Moberly has adduced evidence indicating that the environmental footprint of Site C is exponentially greater than its alternatives.
no
Permanent Injunctive ReliefAvailable 56.
In its Action, West Moberly is requesting that a permanent injunction issue, prohibiting the
Crown and BC Hydro from moving forward with Site C. The "balance of convenience" does not factor into the test for a permanent injunction once it has been established that damages are not an adequate alternative remedy. Treaty 8 exists to protect First Nations' way of life— not to compensate them when once actions have destroyed it. Irreparable Harm
57.
The second part of the injunction test requires that West Moberly establish that it will be
irreparably harmed if the injunction fails to issue. Irreparable harm "refers to the nature of the harm rather than its magnitude." The question is whether a refusal to grant relief could so adversely affect the applicants' interests that the hann could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. 58.
i i l
The courts have consistently recognized that irreparable hann will arise when there is
interference with the ability of Aboriginal peoples to practice their section 35 rights, 1 risk of impairment of Treaty rights is assumed to result in irreparable hann. 59.
12
The
113
Site C will be the third dam on the Peace. Successive incursions increase the risk of irreparable hann to the Aboriginal right: Each new incursion serves only to narrow further the habitat left to them in which to exercise their traditional rights. Consequently, each new incursion
109
Roland Willson Affidavit, para 152
110
Komers Affidavit 1; Gutsell Affidavit; Thompson Affidavit; Schindler Affidavit
ulWahgoshig First Nation v. Ontario, 2011 ONSC 7708 at para. 48, citing RJR MacDonald, at para 64 112 See for example Wahgoshig, supra, at paras. 51-52; Qikiqtani Inuit Association v. Canada (Minister of Natural Resources), 2010 NUCJ 12 at para. 48; Canadian Forest Products Ltd. v. Sam, 2011 BCSC 676, at paras. 126-129, rev'd on other grounds, 2013 BCCA 58
113 Ibid; and RJR MacDonald at para 66
18
becomes more significant than the last. Each newly cleared trail remains a
scar, for another reclamation is required, restoration is impossible.114 60.
West Moberly has adduced significant evidence about the irreparable nature of the harm it will suffer, in respect of both the full injunction it is seeking, and in respect of its alternative request for injunctive relief in respect of the flooding of the reservoir and protection of the
critical areas identified in Schedule A to this Application. Balance of Convenience Analysis
Overview
61.
The third element of the test for an interlocutory injunction involves an assessment of the balance of convenience. The court must consider who will suffer the greater harm from the granting or refusal of the interlocutory injunction pending a determination of West Moberly's
62.
claim on the merits.
115
The
convenience
balance
of
usually
involves
considering
the
strength
of
the
plaintiff/applicant's underlying claim (i.e. the existence of a serious issue), the relative magnitude of harm between the parties resulting from denying or granting the injunction,
how to best maintain the status quo, and any public interest considerations.116 The strong case that West Moberly is putting forward on this Application has been reviewed above. 63.
BC Hydro will cite a number of cases in which Aboriginal litigants have failed to obtain an interlocutory injunction because the balance of convenience did not weigh in their favour, 117 including West Moberly's and Prophet River's injunction application in 2015 to stop
construction on Site C until their applications for judicial review could be heard. 118 64.
These cases are distinguishable on a number of grounds, both factual and legal. Without attempting to anticipate the precise arguments that will be raised by the defendants, the
present Application has the following key elements that drive interlocutory and permanent injunctive relief: a.
West Moberly is adducing significant fact and expert evidence demonstrating the strength of its claim and likelihood of success in the underlying Action for infringement, which would justify a claim for permanent injunctive relief;
b.
West Moberly is adducing evidence showing that the injunctive relief sought will not result in unmitigable effects to the interests of the Crown or BC Hydro; and
114 Taseko at para. 65 115 RJR MacDonald at para 61; Taseko, at paras. 42-43 116 Boon, supra, at para. 69 117 See e.g. Yahey v Her Majesty the Queen in right of British Columbia, 2015 BCSC 1302 and 2017 BCSC 899 118
Prophet River First Nation v British Columbia (Forest, Lands and Natural Resource Operations), 2015 BCSC 2662
19
West Moberly has proposed focused injunctive relief, identifying a single project
c.
with appropriate exceptions for ongoing safety and maintenance.
Relative Magnitude ofHarm 65.
It is appropriate to consider each party's ability to mitigate any harm suffered. The Crown
and BC Hydro are able to mitigate and losses in a way that West Moberly cannot. In a number of cases, courts have found that the balance of convenience favours protecting
66.
Aboriginal rights pending a final determination of those rights where the injunction does not bar the defendant from carrying out the activity at a later date. In Taskeo the court granted an injunction preventing mining exploration on the basis that "The ore bed is not going
anywhere. The same cannot be said of the habitat that is presently left to the petitioners. Once disturbed, it is lost. Once lost, the exercise of aboriginal rights is further diminished. "1
67.
19
In MacMillan Bloedel Ltd. v. Mullin the BC Court of Appeal emphasized that, in the absence of an injunction, MacMillan BloedeTs logging would destroy the very subject matter of the pending trial: [70]
Meares Island is of importance to MacMillan Bloedel, but it cannot be
said that denying or postponing its right would cause irreparable harm. If an injunction prevents MacMillan Bloedel from logging pending the trial and it is decided that MacMillan Bloedel has the right to log, the timber will still be there.
[71]
The position of the Indians is quite different. It appears that the area
to be logged will be wholly logged. The forest that the Indians know and use will be permanently destroyed. The tree from which the bark was partially stripped in 1642 may be cut down, middens may be destroyed, fish traps
damaged and canoe runs despoiled. Finally, the island's symbolic value will be gone. The subject matter of the trial will have been destroyed before the rights are decided.
120
Status quo
68.
The balance of convenience also concerns "the state of affairs as they exist today, not as they may become in the future.
"121
119 Teseko, supra. 120
MacMillan Bloedel Ltd. v. Mullin, [1985] BCJ. No 2355, at paras 70-71
121 Boon, supra, at para. 74
20
69.
The Supreme Court in RJR v. MacDonald limited the importance of the preservation of the status quo—as it pertains to existing government approvals or legislation—as a factor in the
balance of convenience when the protection of constitutional rights is involved.122 70.
In circumstances where a party undertakes an action either with full knowledge that a risk of litigation existed or in complete disregard of such a risk, courts may determine that the "status quo" is the circumstances as they existed before the defendant commenced is or her course of conduct, even though the defendant may have invested financially in the impugned
conduct.123 71.
The "status quo" is the Treaty between the Crown and West Moberly that has governed their
relationship for more than 100 years. The Crown has authorized, and BC Hydro has undertaken, work on the Site C dam in full knowledge of West Moberly' s assertion that construction on Site C will infringe its treaty rights and that West Moberly would bring legal
proceedings to enforce those rights.124 The Public Interest 72.
Particularly in constitutional cases, the court may consider the public interest in applying the
balance of convenience test.125 While the public interest is sometimes assumed to be served by allowing the government to legislate pursuant to its constitutional responsibility,126 the balance of convenience may favour issuing an injunction if government action threatens
serious consequences to the rights of the applicant if an injunction is denied127 or where the government action is highly questionable. 128
73.
The circumstances of this case favour issuing an injunction.
74.
The public interest favours ensuring that the Crown meets its constitutional obligations to
Aboriginal peoples and to promote the process of reconciliation.129 75.
Courts have frequently been called upon to exercise a guardianship role to foster CrownAboriginal reconciliation by reviewing Crown conduct. The Supreme Court of Canada in Clyde River (Hamlet) v. Petroleum Geo-Services Inc. stressed that the general public interest
122 RJR MacDonald, at para 80 123 Ethical Funds Inc. v. Mackenzie Financial Corp. [2000] FCJ No. 244 (Fed. T.D.), at paras 30-31; and Ottawa (Ville) c. Ottawa (Ville) (Chef du service du batiment) [2003] OJ No. 2292. (Ont. S.C.J)
124 Roland Willson 1, [para citing Florgan May 2014 quote]
125 RJR-MacDonald, at paras 70-71 126 RJR-MacDonald, at para 76 127 Garber v. Canada, 2015 BCSC 1797, at para. 118; Baxter Foods Ltd. v. Canada (Minister of Agriculture) (1988), 21 F.T.R. 15 (Fed. T.D.) 128
Fiaida Nation v. Canada (Minister of Fisheries and Oceans), 2015 FC 290 [Hereinafter "Haida FC'], at para. 49
129 Taseko, at para 60, and Wahgoshig, at para. 72, and Homalco, at para. 64, and Ahousaht Indian Band v Canada (Minister of Fisheries and Oceans), 2014 FC 197, at paras. 30-31; RJR MacDonald, at para 71
21
and the Crown's constitutional duties with respect to Section 35 Aboriginal rights are not in
conflict: "A project authorization that breaches the constitutionally protected rights of indigenous peoples cannot serve the public interest. "130 76.
The Court in Taseko strongly emphasized the public interest in reconciliation as a factor favouring an injunction despite arguments respecting the costs being born by the proponent: "[it] is a cost and condition of doing business mandated by the historical and constitutional imperatives that are at once the glory and the burden of our
nation.... [Wjithout reconciliation, nothing is accomplished. This interest, in my view, is at risk should the injunction be denied, and weighs heavily in the balance of convenience.
" 131
Relief from Undertaking
77.
The Plaintiffs lack the means to provide an undertaking as to damages. Courts have relieved Aboriginal applicants from providing an undertaking as to damages in a number of other
injunction applications,132 and the circumstances of the Plaintiffs support such an order in this instance. Injunctive relief requested 78.
The injunctive relief the Plaintiffs seek is narrowly tailored to allow necessary preservation
activities to continue, ensuring the safety and maintenance of the site. West Moberly combines their request for injunctive relief with a request for an expedited trial on the
merits.133 The Plaintiffs therefore request that the Action on the merits be heard within eighteen months from the date of any injunctive order. Part 4:MATERIAL TO BE RELIED ON
1.
Affidavit of Andy Miller, affirmed January 25, 201 8;
2.
Affidavit of Chief Lynette Tsakoza, affirmed January 26, 201 8;
3.
Affidavit of Marc Eliesen, affirmed January 26, 2018;
4.
Affidavit of Steve Graham, sworn January 29, 201 8;
130
Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, at para 40
131 Taseko, supra, at para. 60. See also: Wahgoshig, supra, at para. 72 132 Platinex, supra, at paras. 120-124 Haida FC, supra, at para. 66 and Disposition. For other cases where Aboriginal applicants were relieved of the duty to make an undertaking, see Homalco Indian Band v. British Columbia (Minister of Agriculture, Food and Fisheries), 2004 BCSC 1764, at paras. 75-76; Wahgoshig, supra, at para. 77 Taseko, supra, at para. 70
133 MacMillan Bloedel, supra, at para 81; McLeod Lake Indian Band Chief v BC, 1988 CarswellBC 455 (BC) at para 15; British Columbia Hydro and Power Authority v Heathcote, 2916 BCSC 140 at para 43
22
5.
Affidavit of Dr. Annette Muttray, affinned January 29, 201 8;
6.
Affidavit of Dean Dokkie, affirmed January 29, 2018;
7.
Affidavit of Beth Hrychuk, affinned January 30, 201 8;
8.
Affidavit of Jim Pojar, affinned January 30, 201 8;
9.
Affidavit #1 of Petr Komers, sworn January 30, 2018;
10.
Affidavit #2 of Petr Komers, sworn January 30, 2018
11.
Affidavit of Sheri Gutsell, sworn January 30, 201 8;
12.
Affidavit of Megan Thompson, sworn J anuary 30,2018;
13.
Affidavit of Rachel Olson, affinned January 30, 2018;
14.
Affidavit of Roland Willson, affinned January 30, 2018;
15.
Affidavit of George Desjarlais, affinned January 30, 2018;
16.
Affidavit of Marggie McConnell, affinned January 30, 2018;
1 7.
Affidavit of David Schindler, sworn January 3 1 , 201 8;
18.
Affidavit of Hairy Swain, sworn January 31, 2018;
1 9.
Affidavit of Clarence Willson, affinned January 3 1 , 201 8;
20.
Affidavit of Robert McCullough, sworn January 3 1 , 201 8;
21.
Affidavit of Sarah McMillan, sworn January 31, 2018
TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to respond to this notice of application, you must, within 5 business days after service of this notice of
application or, if this application is brought under Rule 9-7, within 8 business days after service of this notice of application a.
file an application response in Fonn 33,
b.
file the original of every affidavit, and of every other document, that i. ii.
c.
you intend to refer to at the hearing of this application, and has not already been filed in the proceeding, and
serve on the applicant 2 copies of the following, and on every other party of record one copy of the following:
23
i. ii.
a copy of the filed application response; a copy of each of the filed affidavits and other documents that you intend to refer to at the hearing of this application and that has not already been served on that person;
iii.
if this application is brought under Rule 9-7, any notice that you are required to
give under Rule 9-7(9).
4
/ SJ.
Dated January 31, 2018:
Reidar Mogefman
*
Reidar M. Mogerman Camp Fiorante Matthews Mogerman
Counsel for the Plaintiffs
NOTICE: This NOTICE OF APPLICATION is given by Reidar Mogerman, of the law firm, Camp
Fiorante Matthews Mogemian, whose place of business and address is #400 - 856 Florner Street, Vancouver, BC, Canada V6B 2W5, Tel: (604) 331-9530. Fax: (604) 689-7554
Email: RMo german@cfmlawyers . ca
To be completed by the court only:
Order made In the terms requested in paragraphs
of Part 1 of this notice of application
With the following variation and additional terms:
Date:
Signature off
] Judge
[
] Master
24
APPENDIX
[The following information is provided for data collection purposes only and is of no legal effect.]
THIS APPLICATION INVOLVES THE FOLLOWING:
[Check the box(es) below for the application type(s) included in this application.] [
]
discovery: comply with demand for documents
[
]
discovery: production of additional documents
[
]
other matters concerning document discovery extend oral discovery
[ ]
other matter concerning oral discovery
[ ]
amend pleadings
[
add/change parties
]
[ ]
summary judgment
[
]
summary trial
[
]
service
[
]
mediation
[
]
adjournments
[
]
proceedings at trial
[
]
case plan orders: amend
[
]
case plan orders: other
[
]
experts
[X]
other
NOTICE: This NOTICE OF APPLICATION is given by Reidar Mogerman, of the law firm, Camp Fiorante Matthews Mogerman, whose place of business and address is #400 - 856 Homer Street, Vancouver, BC, Canada V6B 2W5, Tel: (604) 331-9530. Fax: (604) 689-7554 Email: RMogerman@cfmlawyers.ca
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