Injunction secured to prevent harm to Windermere Lake and Aboriginal rights

The ʔakisq̓nuk (pronounced a-kissk-nook) First Nation has obtained an injunction to protect the Nation’s rights in respect of Windermere Lake in B.C.’s interior.

The injunction prevents a private marina owner from dredging approximately 8,000 cubic metres of sediment from the lake, an amount equivalent to the volume of three Olympic-sized swimming pools. This legal victory highlights ongoing efforts to protect Indigenous rights and the environment from potentially harmful activities, and the special considerations required for obtaining injunctions in this context.

Injunction details

The injunction was granted pending the hearing of the First Nation’s petition for judicial review of a decision of the BC Environment Appeal Board, which denied the First Nation’s application for a stay of an approval from the Ministry of Water, Land and Resource Stewardship, authorizing the lake’s dredging. The First Nation alleges that the Ministry’s approval of the dredging of Windermere Lake was granted in the absence of meaningful consultation and accommodation of the First Nation’s Aboriginal rights, considering the cultural significance and historic use of Windermere Lake.

In a Supreme Court of British Columbia decision, rendered orally by Justice Chan on February 21, 2025, an interim injunction was issued to prevent the dredging works from proceeding.

The Court’s decision—particularly with respect to the legal requirement to show the injunction would prevent irreparable harm—highlights the special considerations required when injunctions are sought in the context of impacts to Aboriginal rights and the duty to consult. This decision represents a step forward in protection of Aboriginal and treaty rights. As the BC Civil Liberties Association has noted, Indigenous peoples have historically faced challenges in obtaining injunctive relief from the courts to prevent the destruction of lands and waters.

To obtain an injunction from the court, an applicant must demonstrate that:

1. there is a serious question to be tried;
2. the applicant will suffer irreparable harm if the relief is not granted; and
3. the balance of convenience favours the granting of the injunction.

“Irreparable harm” in this context means an injury that cannot be properly compensated from a mere award of monetary damages.

ʔakisq̓nuk First Nation argued that special considerations are required by the court in assessing whether “irreparable harm” to Aboriginal and treaty rights has been established.

Irreparable harm to Aboriginal rights

A significant body of case law has developed which recognizes that negative impacts on Aboriginal and treaty rights—and restrictions on the ability to exercise such rights—constitutes “irreparable harm.” Such cases have considered the effects of development on Aboriginal hunting, fishing, trapping and harvesting rights, as well as the less tangible rights and values of identity and cultural and spiritual relationships with the land.

Similarly, a proponent’s failure to meaningfully consult and accommodate impacts on Aboriginal and treaty rights can itself constitute sufficient “irreparable harm” to justify injunctive relief. For consultation to have any meaning, it must take place before any activity begins, not afterward or at a stage where it is rendered meaningless.

When it comes to damage to a natural resource, the courts may be sensitive to the importance of protecting Aboriginal interests from irreversible intervention. Yet, the types of harm which can flow from breaches of constitutional rights are often intangible and unpredictable, making the traditional standard of proof of irreparable harm an impossible standard to meet in certain cases.

Certainty of irreparable harm may not be possible to establish where the duty to consult and accommodate has not been met, as there is often a lack of precise knowledge about the impact of a project on culture, rights and values and how these impacts can be avoided or mitigated.

It is critical to consider the nature of the potential harm from an Aboriginal perspective, and the relationship that Aboriginal peoples have with the land cannot be understated.

In this context, admissible evidence from members of a First Nation—even in the face of contradictory expert opinion evidence with respect to specific environmental harms—may be sufficient to establish that industrial activity has a detrimental effect on Aboriginal rights for the purposes of an injunction application. Even where expert evidence stops short of proving, on a balance of probabilities, that the proposed industrial activity will have an immediately apparent environmental impact, a court may still have sufficient evidence from members of a First Nation to connect contemplated industrial activity to an asserted detrimental effect for the purpose of an injunction.

Injunctive relief for the ʔakisq̓nuk First Nation

Accepting the submissions of MLT Aikins, the Supreme Court of British Columbia granted an interim injunction on February 21, 2025, to prevent the dredging of Windermere Lake. The Court found that the evidence of both the Chief and the former Chief of the First Nation established irreparable harm to the First Nation’s Aboriginal rights from the contemplated dredging works—notwithstanding conflicting expert opinion on the environmental impacts of the project. The Court also found that the First Nation had demonstrated serious issues to be tried in the judicial review of the Board’s Decision, and that the balance of convenience favoured granting an injunction to prevent irreparable impacts on Aboriginal rights.

MLT Aikins Lawyers Jessica Buhler, Brendan Brock, and Katie Lawless are representing the ʔakisq̓nuk First Nation in this matter.

Jessica Buhler advises clients on environmental and Aboriginal law matters. She acts for proponents, Indigenous communities, municipalities and landowners navigating project-based permitting and environmental assessment processes. Jessica also advises on matters relating to the duty to consult.

Brendan Brock is a partner with MLT Aikins in Vancouver. He practises complex commercial and corporate litigation, and has advocated for clients in trials and appeals before all levels of court in British Columbia and regulatory proceedings in British Columbia and Alberta, including for First Nations governments and corporations.

Katie Lawless is an associate with the firm’s Vancouver office who practises in the area of Aboriginal law.

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