In this case, the B.C. Supreme Court issued an injunction
restraining Taseko Mines Limited (Taseko Mines) from continuing its
exploration activities at Prosperity Mine, a potential
billion-dollar, open-pit gold and copper mine, while the
Tsilhqot'in Nation and the Xeni Gwet'in First Nation
Government pursued judicial review of the Ministry of Energy and
Mines decisions to grant permits allowing Taseko Mines to undertake
exploratory work and clear timber. The basis for the judicial
review was the First Nations' claim that the Crown had breached
its duty to consult. Of significant interest in this case is that
in granting the injunction the Court relieved the First Nations of
the usual obligation to provide an undertaking as to damages,
should the injunction prove unwarranted at trial.1
In considering the availability of an injunction, the Court
considered: (i) whether there was a serious question to be tried;
and (ii) whether the balance of convenience favoured an injunction,
including the question of who would suffer the greater harm from
the granting or refusal of the interlocutory injunction, pending a
determination on the merits.
The Court had no difficulty determining that the question of
whether the Crown had sufficiently discharged its duty to consult
in issuing the permits was a serious question to be tried.
Ultimately, the Court found that the balance of convenience
favoured the First Nations. Although the Court concluded that the
loss of the constitutional right to be consulted does not
constitute irreparable harm in every case, it found that without
the injunction the First Nations could lose their right to a deep
level of consultation and the judicial review proceeding would
become moot. Although the Court noted that Taseko Mines'
interests may be harmed by the injunction, a delay of a few months
and its associated costs weighed less heavily in the context of a
billion-dollar project that has taken 20 years to bring to
The balance of convenience was also relevant in the Court's
decision to relieve the First Nations of the requirement to provide
an undertaking to abide by any order as to damages. Other relevant
factors included the relative economic strength of the parties, the
relative harm each was likely to suffer, and the importance of
ensuring that matters proceeded on an "appropriate basis"
between the parties.
1. The Ontario Superior Court of Justice reached a
similar decision on January 3, 2012. See Wahgoshig First Nation
v. Her Majesty the Queen in the Right of Ontario and Solid Gold
Resources Corp., 2011 ONSC 7708.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
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