Sliammon ( Tla'amin ) Treaty With Canada and BC

[admin]

July 14th, 2012

The following is the recent decision of the BC Supreme Court that dismissed a legal action by a few community members who tried to halt the ratification of the Sliammon (Tla/amin) treaty agreement.

The Sliammon Treaty Society and Chief Clint Williams were forced to go to court to make sure an injunction was still in place, so there wasn't a repeat of a protest blockade that prevented a ratification vote in June. "The blockade was established by parking vehicles in front of the doors accessing the centre, and eventually reinforced by boarding up the entrances to the Salish Centre. This prevented voting from taking place on the scheduled date, and effectively closed the Salish Centre, which includes administration offices of the Sliammon Indian Band."

The defendants were community members who are vehemently opposed to the modern-day treaty that was negotiated with BC and Canada: Doreen Point, Sherry Galligos, Dennis Francis, Tracy Timothy, Brandon Peters, Kevin Blaney, Jim Timothy, Arlene Point, Joe Galligos, John Doe, Jane Doe and other persons unknown - who were prevented from a further protest blocking entrances to Salish Centre on Sliammon Indian Reserve #1.

They alleged there were obvious irregularities in the voting process. (One affidavit attests that a family member of an elderly band member gave money to procure a certain vote.)

However, as you can read below, the court said there was no proof.

The vote was held,( viewtopic.php?p=15428#p15328 ) and the agreement ratified by a narrow margin.

Despite that, it is still possible there could be further court action taken to challenge the ratification process.

Note, the court said it wasn't "either approving or disapproving of the procedures adopted or the application of those procedures" that were being used to have the treaty vote.
- - -

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:


Sliammon Treaty Society v. Point,

2012 BCSC 1038

Date: 20120709

Docket: S124468

Registry: Vancouver

Between:

Sliammon Treaty Society and Chief Clint Williams on behalf of himself and the Sliammon Indian Band

Plaintiffs

And

Doreen Point, Sherry Galligos, Dennis Francis, Tracy Timothy, Brandon Peters, Kevin Blaney, Jim Timothy, Arlene Point, Joe Galligos, John Doe, Jane Doe and other persons unknown blocking entrances to Salish Centre on Sliammon Indian Reserve #1

Defendants

Before: The Honourable Mr. Justice Savage

Oral Reasons for Judgment

Counsel for the Plaintiffs:


G. McDade, Q.C. and

M. Skeels

Counsel for the Defendants:


K. Hensel,

N. Schabus and

A. Johnston

Counsel for Interested Party, Province of British Columbia:


G. Thompson

Counsel for Interested Party, Attorney General of Canada:


J. Chow

Place and Date of Trial/Hearing:


Vancouver, B.C.

July 9, 2012

Place and Date of Judgment:


Vancouver, B.C.

July 9, 2012


I. Background

[1] This is an application to set aside an ex parte injunction granted by Mr. Justice Groves on June 22, 2012, which, in general terms, restrains the defendants from interfering with a treaty ratification vote which is to be held tomorrow, July 10, 2012. The defendants also seek their own injunctive relief, which would have the effect of the Court intervening in the treaty negotiation process.

[2] By way of background, which is not in dispute, the Tla’amin First Nation, the Government of Canada, and the Government of British Columbia have been engaged in an ongoing treaty negotiation process, which commenced in 1994. In October 2011, the parties initialled a final agreement (the “Final Agreement”), which is subject to ratification by members of the Tla’amin First Nation.

[3] The treaty negotiation process involves some six steps, which are set out in the affidavit of Vern Pielle, the Director and President of the Sliammon Treaty Society. The Tla’amin members first approved an agreement in principle in 2003. There followed some years of negotiation which resulted in the Final Agreement. The Final Agreement sets out in detail the process by which the Final Agreement can become a treaty binding on the parties. There is no legislative governance of the treaty negotiation process.

[4] However, part of that process involves putting the Final Agreement to members of the Tla’amin First Nation for a ratification vote. That vote was to take place at various times and places, but most importantly, at the Salish Centre on Sliammon I.R. #1, near Powell River, on June 16, 2012. Prior to the vote taking place, however, the defendants and other persons established a blockade of the Salish Centre.

[5] Again, as I read the material there is no dispute regarding these facts. The blockade was established by parking vehicles in front of the doors accessing the centre, and eventually reinforced by boarding up the entrances to the Salish Centre. This prevented voting from taking place on the scheduled date, and effectively closed the Salish Centre, which includes administration offices of the Sliammon Indian Band.

[6] As a result of the blockade, the plaintiffs commenced an action seeking an injunction restraining the defendants from interfering with the vote and blockading the Salish Centre. An ex parte injunction was granted by Mr. Justice Groves on June 22, 2012, which, inter alia, restrained the defendants from interfering with the ratification vote which is now scheduled for tomorrow, July 10, 2012. The order of Justice Groves was subject to being set aside on two days notice. This application followed.
II. Position of the Parties

[7] As I understand the position of the defendants, in their written materials, they say that (1) the Treaty Process is flawed and should be changed; (2) that there have been irregularities in enrollment of voting members; (3) that a Referendum Committee should be struck, and be given funds to allow for further debate on the merits; and (4) that Independent Observers other than members of the BC Treaty Commission should be observing and monitoring all parts of the process.

[8] As a result of these matters, the defendants seek a variety of orders which would have the effect preventing the vote from proceeding tomorrow, and delaying any such vote indefinitely into the future, until certain matters are met such as (1) establishing a new Referendum Committee comprised of equal members in favour of and opposed to the Final Agreement; (2) determining new voting conditions; (3) funding the Referendum Committee; (4) establishing a body of independent observers; and (5) establishing a new enrollment committee, and setting standards.

[9] In support of their position, the defendants rely on a series of affidavits by some band members attesting to their dissatisfaction with the process. For example, one affidavit attests that a family member of an elderly band member gave money to procure a certain vote. Another band member says that, at a meeting to discuss the Final Agreement, she was “disgracefully and disrespectfully drummed out” and not heard. There are allegations of a “conflict of interest” in that negotiators were in favour of a treaty. There are other allegations that the proponents of the treaty were unfairly favoured over opponents of the treaty. Evidently these matters were of such concern that the blockade of the Salish Centre followed to prevent the voting on the treaty.

[10] The plaintiffs hotly contest the defendants’ allegations. They say that members of the Tla’amin First Nation have been regularly informed of the process which has included the posting of a draft Final Agreement on the Sliammon website as early as June 17, 2010, and the Final Agreement in October 2011. Copies of the Final Agreement were distributed to all members in January 2012. There have been 20 community information sessions in seven different locations conducted for band members between November 2011 and May 2012.

[11] The plaintiffs say that the criteria for eligibility are set out in Chapters 22 and 23 of the Final Agreement. The Rules of Procedure for Ratification of the Final Agreement are set out in a separate document issued by the Sliammon Ratification Committee. That is a 46 page document which provides for such things as “special assistance”, “mobile polls”, “rejected ballots”, “voting procedures at polls”, etc. under some 26 subject headings. There are various forms attached to the Rules of Procedure.

[12] Thus, the plaintiffs say that matters of eligibility and voting are clear. There has been extensive consultation with band members, and significant resources expended on the process. There is a Ratification Committee established, which is comprised of a member of the Tla’amin First Nation, a representative of Canada, and a representative of British Columbia. While the defendants seek a different process, the plaintiffs say that there is no evidence that the process in place is flawed.
III. Issues
A. Defendants’ Claim for Injunctive Relief

[13] The plaintiffs say there is no merit to the counterclaim in which the defendants purport to be acting in a representative capacity on behalf of the “People of the Sliammon”, and seek injunctive relief. It is not founded on any recognized cause of action. The injunctive relief is to ask the court to intervene in the treaty negotiation process, where the parties include the Federal Crown and the Provincial Crown. Neither of the latter two entities are named in the counterclaim.

[14] Moreover, the counterclaim is ill-founded as it seeks injunctive relief against the Sliammon Indian Band which is a “federal board, commission or tribunal” within the meaning of Section 18(1)(a) of the Federal Courts Act, R.S.C. 1985, c. F-7 for which the Federal Court has “exclusive original jurisdiction”. See also the decision of Finch, C.J.B.C. in Chief Joe Hall v. Canada (Attorney General), 2007 BCCA 133.
B. Plaintiffs’ Trespass Claim & Injunction

[15] The plaintiffs say that the defendants have no defence to their claim for injunctive relief in trespass and nuisance. They say nine people prevented access to Sliammon Band property and offices. They are entitled to an injunction to prevent that, which is causing great harm, interfering with the operation of Band property, offices, and part of the treaty negotiation process. On the other hand, the defendants say that there was material non-disclosure so the ex parte injunction should be set aside.
IV. Decision
A. Defendants’ Claim for Injunctive Relief

[16] In my opinion the plaintiffs’ position is well-founded and the defendants’ application for injunctive relief must be dismissed.

[17] However, even if I am wrong regarding the jurisdictional of this aspect of the application, in my view the balance of convenience favours dismissing the application.

[18] The process which is challenged is now in mid-stream. The authorities support the proposition that challenges to that process should await the determination of the vote: see, for example, the decision of Justice Wilson, in Chief Allan Apsassin et al. v. Attorney General (Canada) et al., 2007 BCSC 492, who found that the loss of an opportunity to vote could itself be irreparable harm. If, as the defendants argue, the process is flawed, the vote may well support that position, in which case there will be ample time to deal with procedural and other issues.
B. Setting Aside Ex Parte Injunction

[19] The defendants say that the plaintiffs failed to disclose material facts in their application for an ex parte injunction. They pointed to the affidavit of Vern Pielle, particularly paragraphs 28 and 29, as understating the community concern about the treaty negotiation process. In my opinion, by including Ex. O, which is a 3 page statement entitled “From the Concerned Members of the Sliammon First Nation”, the plaintiffs gave adequate expression to that apparent concern before Justice Groves.

[20] On an application to set aside an ex parte injunction, if the matter comes before a judge other that the judge who made the original order, the principles approved by the Court of Appeal in Waruk v. Waruk (1996), 83 B.C.A.C. 287, [1996] B.C.J. No. 2282 at para. 22, apply, namely:

When an application to set aside or vary an ex parte order comes before a judge who has not made the original order, the following principles, as set out in Gulf Islands Navigation Limited v. Seafarers' International Union of North America (Canadian District) et al (1959), 28 W.W.R. 517, 18 D.L.R. (2d) 625 (B.C.C.A.), at 518, apply:

(1) He has power to discharge the order or dissolve the injunction;

(2) He ought not to exercise this power, but ought to refer the motion to the first judge, except in special circumstances, e.g., where he acts by consent or by leave of the first judge, or where the first judge is not available to hear the motion;

(3) If the second judge hears the motion, he should hear it de novo as to both the law and facts involved. [Emphasis Added]



[21] The principles with respect to granting an injunction are set out in the seminal case of RJR - MacDonald Inc. v. Canada, [1994] 111 D.L.R. (4th) 385 [RJR], at 400, namely, there must be a serious question to be tried, the plaintiffs must establish that there would be irreparable harm if the injunction is refused, and finally an assessment must be made of the balance of convenience.

[22] In this case the plaintiffs have established that there is a serious question to be tried. The Salish Centre is part of a reserve set aside for the use and benefit of the Sliammon Indian Band. The Band’s interest is held in common for all members of the Band. The Band council is entitled to represent the Band to enforce its rights: Gitga’at Development Corp. v. Hill, 2007 BCCA 158 at para. 21.

[23] Irreparable harm is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other party, RJR at 405. In this case there is some monetary aspect to the closure of the Salish Centre as it prevents the Band from using the Centre for its objects. The defendants have not indicated any ability to pay damages arising from continued loss of use of the Centre. However, blockading the Centre interferes with the treaty negotiation process in place by preventing the use of the Salish Centre for carrying out a scheduled vote.

[24] In my opinion the plaintiffs have shown irreparable harm.

[25] As a final point, the question arises concerning the balance of convenience. I do not think that there is any aspect of the balance of convenience test that favours the defendants obstructing the use of the Salish Centre to the detriment of the Band. In my view, the balance of convenience favours retaining the injunction granted by Groves, J.
V. Orders

[26] The application to revoke or amend the order of Groves, J. is refused.

[27] The application for the Court to intervene in the treaty negotiation process, by making the orders requested by the defendants, to tailor that process, is refused.

[28] That is not to say that the Court is, by this result, in these applications, either approving or disapproving of the procedures adopted or the application of those procedures.

[29] In the result, the applications are dismissed. As this is a matter of general interest to the parties involved, I decline to order costs.
“The Honourable Mr. Justice Savage”