Case Comment: Ktunaxa Nation Council v. (British Columbia) Forests, Lands and Natural Resource Operations

In the recent decision Ktunaxa Nation Council v. (British Columbia) Forests, Lands and Natural Resource Operations, 2013 BCSC 1921, Jumbo Glacier Mountain Resort Municipality (the “Municipality”) applied to be joined as a party to an action in which the Ktunaxa was seeking injunctive relief, amongst other things, against the Province.  In making its decision, the court looked at whether the outcome would have a direct effect on the Municipality.

In March 2012 the Minister of Community, Sport and Cultural Development approved a Master Development Agreement (MDA) for the area and in November 2012 established the Municipality by Letters Patent. It is of interest to note that there are no residents in the Municipality and that the Minister appointed the Mayor and Councillors.

The Ktunaxa Nation sought to have the MDA set aside and an interim injunction on development of the resort issued on the basis, among other things, that it would “have adverse impacts on the Ktunaxa’s asserted Aboriginal rights and interests and particularly that its impacts on the Ktunaxa’s Aboriginal religious and spiritual rights would be not only irreversible and irreparable but also destructive.” None of the orders or declarations sought by the Ktunaxa included mention of the Municipality.

In arguing their positions, both parties relied on the decision in Kitimat (District) v. Alcan Inc., 2006 BCCA 562 for interpretation of the applicable Supreme Court Rule, Rule 6-2(7), which permits parties to be added to an action if they ought to have been joined, if it is necessary to ensure all matters can be effectively adjudicated or if the relief claimed or subject matter raises a question or issue that would be just and convenient to determine.

In opposing the application, Ktunaxa argued that the Municipality would be affected only indirectly, relying in part on the fact that another action had been started where the Municipality was a respondent and part of the relief sought in that action was a quashing of the Letters Patent incorporating the Municipality.

The Municipality argued that they would in fact be affected directly if an injunction were issued. The Court described the Municipality’s position to be as follows:

[29]       …The Municipality submits that its whole raison d’etre would be affected were an interim junction granted, as that relief would affect the power of the Municipality to control the development of land within its boundaries. The applicant further submits almost all of the work currently undertaken by the Municipality is directed to the development of the Resort. As well, submits the applicant, the relief sought will affect the Municipality’s direct financial interests by affecting the extent and timing of the establishment of its tax base.

However, the court found that the Municipality’s interests would only be indirectly impacted. Further, the court found that if the injunction were granted the Municipality would suffer only collateral damage and therefore it was not “convenient to determine the issues in this proceeding as against the Municipality as a party”.

The decision was appealed to the BC Supreme Court and judgment was handed down December 10, 2013. The appeal was filed on three grounds: that the Master erred in law firstly in not applying the established test for an application to add a party, secondly in considering whether there was evidence to support the petitioners’ claim for an injunction, and finally that the Master was wrong in deciding that the nature of the harm the Municipality might suffer if an injunction were issued. In his decision, Hinkson J. upheld the Master’s ruling and dismissed the Municipality’s appeal.

The court seems to have based its decision on the fact that the existence of the Municipality itself was not being challenged in the action where the MDA was at issue, while little or no weight seems to have been placed on the fact that the Municipality was, in fact, established solely for the purpose of developing the resort, the establishment of which was at the heart of the MDA.