[2]         The injunction was issued in an action for a declaration of Aboriginal title to approximately 22,000 hectares of Crown land near the mouth of the Nass River, including the Mylor Peninsula (the “Nasoga lands”). The action is brought by certain First Nations, the Lax Kw’alaams and Metlakatla, who are also collectively referred to as the Coast Tsimshian, the Nine Tribes or the Allied Tribes. For convenience, throughout this judgment I will refer to the plaintiffs (respondents here) as the Allied Tribes.

[3]         For introductory purposes it is sufficient to note that Aboriginal title to the Nasoga lands is contested among, at least, the Allied Tribes and the Nisga’a. The land is provincial Crown land.

[4]         In 2015, the Nisga’a approached the Province with a proposal to purchase the Nasoga lands in a fair market sale. The proposal contemplates the Province transferring to the Nisga’a the fee simple title to the Nasoga lands and entering into a lease with the Nisga’a for the adjacent foreshore lands on the Nasoga Gulf (collectively, the “Disposition”). The Nisga’a notified the Province and Canada that, following the completion of the proposed Disposition, it would seek Crown consent to add the Nasoga lands to the Nisga’a lands (the “Consent”) pursuant to the Nisga’a Final Agreement (the “Nisga’a Treaty”). The Nisga’a Treaty is a treaty and a land claims agreement within the meaning of ss. 25 and 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Constitution Act, 1982].

[5]         Both the Province and Canada recognized that these decisions engaged the interests of the Allied Tribes and others. Accordingly, both the Province and Canada initiated a consultation process with, amongst others, the Allied Tribes. The Allied Tribes asserted their claim to title and, initially at least, took the position in the consultation process that the lands could not be sold or added to the Nisga’a lands under the Nisga’a Treaty without their consent, which they refused.

[6]         At a certain stage, and after several years, the Province determined that it had fulfilled its obligations to consult about the Disposition, and was ready to decide whether to agree to a sale of the fee simple interest to the Nisga’a. At the very least, Canada had not completed consultation with respect to whether it would consent to add the Nasoga lands to the Treaty lands. The Province asserts that it had not completed consultation about that decision either.

[7]         At this point, the Allied Tribes started their action for title, and sought an injunction to prevent the Province deciding to sell the lands, enjoining the sale, and enjoining the Province and Canada from consenting to adding the Nasoga lands to the Nisga’a lands under the Treaty. The Allied Tribes sought both an interim and an interlocutory injunction pending trial. At the hearing of the application, the relief sought was an interlocutory injunction pending trial, as the parties had accommodated each other in scheduling the hearing of the application for an interlocutory injunction.

[8]         The judge made an order, but not one in the terms sought. She did so in a context where the consultation process engaged as a result of the proposed Disposition and Consent was not yet complete, and decisions about whether to sell and consent to adding the lands to the Treaty had not been made. As set out above, the judge enjoined the Province from proceeding with the proposed Disposition and enjoined the Province and Canada from the proposed Consent. She did so for a period of 18 months, on terms that gave the Allied Tribes the right to apply to extend the injunction if good faith negotiations had not been completed by that time. She also seized herself of any application to extend the injunction.

[9]         The appellants raise multiple grounds of appeal alleged to warrant appellate intervention. For introductory purposes, it is enough to observe that the appellants contend that the judge exceeded her jurisdiction by permitting a collateral attack on the adequacy of the consultation process when that was not in issue; conflated principles governing different remedies (judicial review in respect of consultation and the test for an interlocutory injunction pending trial); usurped the role of the Crown in engaging in proper consultation by mandating good faith negotiations on the subject of the consultation process; and arrogated to herself the jurisdiction to supervise whether the parties negotiated in good faith, an order which, in any event, is vague and unenforceable.

[10]      The appellants also contend that the judge legally erred in her application of the principles governing issuing a quia timet injunction by failing to require a demonstration of a strong probability of imminent harm, and by relying on speculative risk of harm rather than demonstrated consequences of the impugned decisions. They contend, finally, that the judge failed appropriately to weigh the importance of the public interest in completing the consultation process when weighing the balance of convenience.

[11]      For their part, the Allied Tribes argue that the judge properly applied the test in RJR‑MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 [RJR‑MacDonald], and that she committed no error in principle. They say there is no merit to the appellants’ attempt to attack what was a proper exercise of the judge’s discretion: the judge was entitled to find that the Allied Tribes had made out a strong arguable case of Aboriginal title; to find that if the decisions were made, they would suffer irreparable harm; and to conclude that the balance of convenience favoured an injunction for a limited time. They say the judge’s findings are not speculative and are owed deference. The judge properly balanced the competing interests of the parties, including the public interest. Accordingly, they submit we should defer to the judge’s exercise of discretion and dismiss the appeal.

[12]      For the reasons that follow, I would allow the appeal and set aside the injunction.

[13]      Although I have briefly described the broad background to the issues on appeal, it is necessary to provide more detail so that the issues engaged on this appeal can be set in a proper context.

[14]      The subject matter of the Allied Tribes’ action is a claim for Aboriginal title to the Nasoga lands. These lands are within the Nass Wildlife Area designated in the Nisga’a Treaty.

[15]      It is fair to say that Aboriginal title to the Nasoga lands is disputed, including as between the Nisga’a Nation and the Allied Tribes. The Nisga’a Treaty recognizes certain Nisga’a rights and interests within the Nasoga lands, including Nisga’a citizens’ treaty rights to harvest fish, aquatic plants, wildlife and migratory birds throughout the subject lands, and Nisga’a Lisims Government’s power to make laws regulating these rights. The Allied Tribes contend that, to the extent those rights exist, they are subject to the Allied Tribes’ Aboriginal title.

[16]      Although the Nasoga lands fall outside identified Nisga’a lands under the Nisga’a Treaty, they may be added to the Nisga’a lands if: (a) the Nisga’a Nation owns the land in fee simple; (b) the land is contiguous with Nisga’a lands; and (c) Canada and the Province agree to the addition. The Nasoga lands are contiguous with Nisga’a lands.

[17]      In 2015, the Nisga’a Nation approached the Province with a proposal to purchase fee simple title to the Nasoga lands for fair market value and to lease the adjacent foreshore. The ultimate object of this proposal was to facilitate the possible construction of a pipeline and the development of an LNG facility.

[18]      This proposal induced the Province to start to consult with four First Nations whose asserted Aboriginal rights and title could potentially be affected by the proposed Disposition: Lax Kw’alaams First Nation, Metlakatla First Nation, Kitselas First Nation and Kitsumkalum First Nation. The latter two Nations do not object to the proposed Disposition or the Crown Consent.

[19]      The Allied Tribes opposed the proposed Disposition and Crown Consent asserting, at least initially, that the proposed Disposition cannot proceed without their consent, which they refused or have not yet given.

[20]      In the consultation process, the Province assessed the strength of the Allied Tribes’ claim to Aboriginal title as “weak to moderate”. Canada initially assessed the strength of the Allied Tribes’ claim to title over the Nasoga lands as “weak”. This latter assessment has been adjusted somewhat in light of evidence about asserted title provided to Canada during the consultation process. That evidence is in the form of opinion evidence from a Dr. Andrew Martindale, an archeologist whose opinion on title formed part of record before the judge, and which informed her assessment of the merits of the claim for the purpose of considering whether to issue an injunction.

[21]      Despite the Province’s assessment of the strength of claim as weak to moderate, the Province asserts that it endeavoured to consult with the Allied Tribes at a deep level, as if the claim were strong. On July 30, 2021, following a consultation process, the Province wrote to the Allied Tribes advising that the Province would proceed to a decision on the proposed Disposition in early fall 2021. The Province continued to consult with the Allied Tribes after the date of that letter.

[22]      On August 27, 2021, the Allied Tribes filed a notice of civil claim against Canada and the Province seeking declaratory and injunctive relief, including:

[23]      Given the significance of the issue of the adequacy of consultation assumed in the arguments on appeal, it is important to recognize that the notice of civil claim did not assert that the consultation process was inadequate, although its adequacy was denied in the Allied Tribes’ reply. Nonetheless, they also pleaded that the “focus of this action is not the adequacy of that consultation process”. This position was advanced to the judge on the application for an interlocutory injunction.

[24]      It is important to note that the application for an injunction before the court was to enjoin the defendants from disposing of the fee simple interest in the Nasoga lands or consenting to them being added to the Nisga’a lands until the Allied Tribes’ claim to Aboriginal title had been resolved. The Allied Tribes’ position was that the only forum in which to establish Aboriginal title was an action. It is clear, and was confirmed by counsel, that an injunction was sought pending trial. At the end of the hearing, and in reply, in response to a question from the judge, the Allied Tribes agreed that a time‑limited injunction to allow for negotiations would be acceptable as an alternative. This adjustment to the relief sought raises one of the issues on appeal.

[25]      I propose only to outline in summary form the judge’s reasons. A more detailed consideration of some of the judge’s reasons will be developed in connection with an analysis of the alleged errors.

[26]      As I read the judgment, the judge understood that her task was to determine whether the RJR‑MacDonald test had been satisfied. That test is well settled; it requires a party to demonstrate (1) a serious question to be determined, (2) irreparable harm if a stay is not granted, and (3) that the balance of convenience favours a stay. As will become apparent, she concluded that the Allied Tribes had made out a strong arguable case of Aboriginal title on the evidence before her. She also concluded that the Disposition and Consent would result in irreparable harm to the Allied Tribes. Finally, she concluded that the balance of convenience, including a recognition of the public interest, favoured granting a time‑limited injunction to permit further good faith negotiation between the parties.

[27]      The judge accepted that she was not addressing the adequacy of consultation that had occurred to date, although she found that the consultation to date was relevant to whether she should issue an injunction. The Allied Tribes had acknowledged that the adequacy of consultation was not the focus of the issue before her. Whether the judge improperly factored into her analysis her own assessment of the adequacy consultation is, of course, a primary issue before us.

[28]      The judge engaged in a detailed analysis of the merits of the Allied Tribes’ claim to Aboriginal title. She concluded that the Allied Tribes had established a strong arguable case to title, based principally on the evidence of Dr. Martindale, who gave an opinion based on Tsimshian law. She discounted contrary evidence from the defendants.

[29]      The judge also extensively reviewed the history of the consultation that had occurred. There is no issue between the parties that the judge did not have the full consultation record before her, as she would have had on a judicial review of the adequacy of consultation. As we shall see, notwithstanding the incomplete record, the judge made adverse findings against the Crown, and in particular the Province, which she concluded had sidelined the interests of the Allied Tribes throughout the process. On a fair reading of the judgment, the judge’s criticisms of the adequacy of consultation informed the order ultimately pronounced.

[30]      The judge went on to conclude that if the Disposition and Consent occurred the Allied Tribes would suffer irreparable harm. Although this harm took a variety of forms, the judge concluded that the Allied Tribes risked irreparable harm to their ability to prove their claim to title, and would lose the protection of a consultation process involving the Crown since many decisions would be subject only to Nisga’a approval. To paraphrase, the Allied Tribes would be at the mercy of decisions made by the Nisga’a Nation. The judge placed no weight on commitments offered by the Nisga’a not unreasonably to refuse access to the Allied Tribes to protect or gather evidence of title. She also concluded that provisions in the Treaty referred to as the “non‑derogation” clauses offered no protection to the Allied Tribes, since those clauses only protected the Aboriginal rights and title of other First Nations once they were established.

[31]      The judge then weighed the balance of convenience. She identified the arguments advanced to her by the defendants. In her view, the interests of the Nisga’a were largely economic, and not clearly identified in the evidence. She acknowledged the role of the public interest, including upholding treaty rights. She had previously rejected the argument that the injunction application was premature because Canada, at least, had not completed its process. In her view, absent the injunction, the Consent would immediately follow the Disposition. Accordingly, the balance of convenience favoured preserving the status quo and protecting the Allied Tribes’ asserted rights.

[32]      The judge, however, at the end of argument, and in the judgment, expressed a concern that an interlocutory injunction pending trial or the resolution of the claim could take many years, and that this concern militated against granting the injunction unless that risk could be accommodated. Ultimately, she decided that a time‑limited injunction to permit the parties to engage in good faith negotiations should be pronounced. The judge enjoined the Disposition and Consent for 18 months, with the liberty to apply to extend the injunction in the event good faith negotiations were not complete. The judge seized herself of any such application.

[33]      I do not intend to repeat the outline of the issues set out in the introduction. The primary focus of the issues on appeal is whether the judge erred in issuing an injunction that prevented the completion of the consultation process. In part, this is an issue of prematurity, but, more significantly, it raises a question of whether the judge properly gave effect to the Crown duties rooted in the honour of the Crown to engage in consultation. In short, this question goes to the way in which the public interest is evaluated. As I shall explain, I think the judge erred in her consideration of the public interest.

[34]      The second main area on which I intend to focus is whether the judge erred in her analysis of irreparable harm; more specifically, whether the judge relied on speculative risks, and failed to apply, properly, the test of a high probability of imminent harm as a precondition for pronouncing a quia timet injunction. In my view, the judge erred in both respects.

[35]      The standard of review applicable to the decision to grant an interlocutory injunction was articulated in Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395 as follows:

[36]      Before turning to examine the judge’s analysis and the alleged errors, I think it helpful to clarify that I have found it unnecessary to grapple with a number of issues raised by the parties. In my view, the outcome of the appeal does not turn on them.

[37]      First, I think it unnecessary to engage with alleged errors in the judge’s assessment of the strength of the Allied Tribes’ claim to Aboriginal title. The appellants each say that they accepted, for the purpose of the application, that the first part of the test for an interlocutory injunction was satisfied: namely, that the plaintiffs raised a fair question to be tried. Although the Province accepts that, it argued that, given the nature of the injunction sought, the Allied Tribes would have to demonstrate a strong arguable case. The appellants say, however, that the judge erred in her assessment of the strength of the claim when she concluded, based on the evidence of Dr. Martindale, that the Allied Tribes’ case was a strong arguable case. The Nisga’a Nation contends that Dr. Martindale’s evidence ought not to have been admitted over its objection. The Province and the Nisga’a Nation argue that the judge did not properly apply the test to establish Aboriginal title. They say she relied on opinion that, by its own terms, does not meet the relevant test. Dr. Martindale’s report relied on his understanding of Tsimshian law. The opinion does not, they say, establish the necessary exclusivity of use and occupation to meet the test to establish Aboriginal title set out in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. Moreover, the judge moved from acknowledging the possibility that a court might rely on Aboriginal law to assess a claim to title, to a conclusion, based on a misunderstanding of the report, that a strong arguable case had been established.

[38]      Whatever the merits of these arguments, it is unnecessary to evaluate them for the purpose of this appeal. I am prepared to proceed on the assumption, without endorsing the judge’s analysis, that the judge did not err in admitting the opinion, nor in concluding that the Allied Tribes had made out a strong arguable case. Since my proposed disposition is to allow the appeal, these issues remain at large, and will need to be considered afresh in any subsequent application to which they may be relevant.

[39]      Second, it is not necessary to evaluate the submission advanced by the Nisga’a Nation that the judge misapprehended its position about whether earlier litigation involving the Allied Tribes meant that the merits of its claim to Aboriginal title was res judicata. The judge concluded that the earlier litigation did not result in the Allied Tribes’ claims being res judicata. The Nisga’a Nation contended before us that the judge misapprehended its position and that it had not asserted res judicata. Again, while acknowledging the Nisga’a Nation’s position, the outcome of this appeal does not turn on this issue.

[40]      Similarly, I do not think it necessary to engage with arguments advanced to us about a Memorandum of Understanding between the Allied Tribes and the Nisga’a Nation, and whether either or both of the Nisga’a Nation and the Allied Tribes have conducted themselves in breach of it. This is not to say that the issue is irrelevant, merely that this appeal does not turn on that point.

[41]      Finally, I have concluded that it is not necessary to engage with the question whether the non‑derogation clauses in the Treaty operate to protect the rights of the Allied Tribes. Again, this is not because the issue is irrelevant. Indeed, it may be a significant issue in any subsequent application. It is because, in my view, the appeal does not turn on a definitive resolution of this point.

[42]      At the outset, it is useful to clarify certain points to frame the discussion. First, the appellants each accept that the court has the jurisdiction to issue an interlocutory injunction pending trial, provided the RJR‑MacDonald test is satisfied, including satisfying the appropriate burden in respect of a quia timet injunction. The judge appears to have misunderstood the appellants’ position on this point, but the appeal does not turn on this misapprehension.

[43]      Second, the parties agree that different remedies may be engaged when the Crown is making decisions that may affect Aboriginal interests or title. One remedy arises from challenges to the adequacy of consultation. These challenges are brought by a petition for judicial review, and whether consultation is adequate is assessed on a standard of reasonableness. Injunctions pending judicial review are available in these proceedings. The Allied Tribes are guaranteed a right to a consultation process, but not to a particular result: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at para. 79. The consultation process does not provide a veto to a participant; it is not a process that contemplates establishing what may be contested rights or title, but it serves an important function in attempting to accommodate them pending their resolution by settlement or litigation. Indeed, the consultation process itself may lead to the negotiated resolution of the relevant issues.

[44]      It is well established that the consultation process engages the honour of the Crown to accommodate, where appropriate, Aboriginal rights and title pending their potential establishment. It provides a mechanism to protect them, short of meeting the standard for an interlocutory injunction pending trial. The consultation process recognizes the possibility that a Crown decision or action may risk causing irreparable harm to Aboriginal interests, and requires accommodation to avoid that risk where appropriate. The consultation process mitigates the challenges in establishing an entitlement to an injunction pending trial.

[45]      It is, I think, a fair reading of the case law from the Supreme Court of Canada canvassed below that a respectful and robust consultation process is seen to be the preferred means by which the objective of reconciliation is to be advanced. But it is equally important to recognize that the availability of consultation does not oust the right of a court to grant an injunction in an appropriate case: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation].

[46]      An alternative remedy involves meeting the test for an interlocutory injunction set out in RJR‑MacDonald in an action where substantive remedies are sought in relation to a claim of Aboriginal title. This three‑part test is well established and not in dispute, although its application to the circumstances before us is contested. The parties agree that the RJR‑MacDonald test in an action advancing a claim of Aboriginal title is different from the test that would be applied on a judicial review to determine whether adequate consultation has occurred. They disagree, however, about the potential relevance the fact and adequacy of consultation may play in determining if the RJR‑MacDonald test has been met, and whether the judge made legal errors in her treatment of what had occurred in the consultation process in this case. The Province and Nisga’a say that the judge failed to properly distinguish between the adequacy of the consultation process and the availability of injunctive relief, and that she was driven to issue the injunction by her conclusion that the consultation process was inadequate. Canada contends that the judge, in her evaluation of the public interest as an element of the balance of convenience, failed to consider, properly, the fact of consultation, and that it was not yet complete. The Allied Tribes argue that her order does not rest on an improper assessment of the adequacy of consultation, and that she properly considered the public interest in her assessments. They say she did not conflate issues pertaining to the adequacy of consultation and the RJR‑MacDonald test.

[47]      To be clear, I accept that the jurisdiction to issue an interlocutory injunction pending trial remains, notwithstanding the constitutional duty rooted in the honour of the Crown to consult and accommodate in respect of decisions that may affect Aboriginal rights and title pending trial. The existence of a consultation process does not displace the right to vindicate Aboriginal title in an action, or to seek an interlocutory injunction to protect those rights pending trial. Nonetheless, for the reasons I will explain, it is necessary to appreciate that the existence of a process of consultation must inform a judge’s evaluation of whether the RJR‑MacDonald test has been satisfied. The fact of consultation is a substantial and significant factor in weighing the public interest at the balance of convenience stage of the test. Only, in my view, in unusual or exceptional circumstances, such as, for example, where the public interest itself mandates it, will an injunction be available before the consultation process has been completed and it is possible, properly, to evaluate the adequacy of that process.

[48]      In RJR‑MacDonald, the Supreme Court of Canada addressed how judges should assess the balance of convenience when the conduct of government purporting to act in the public interest is challenged on constitutional grounds. In my view, that analysis is applicable to the circumstances of this case. It is worthwhile to lay out the Court’s reasoning in some detail.

[49]      In that case, the appellants had sought a stay of their obligation to comply with a potentially unconstitutional law requiring substantial changes to the advertising and promotion of their products. The Quebec Court of Appeal had declared the challenged law to be intra vires federal legislative competence, and dismissed a Charter challenge: RJR‑MacDonald Inc. v. Canada (Procureur Général), 1993 CanLII 3500 (QC CA), [1993] 102 D.L.R. (4th) 289. The Supreme Court of Canada refused the application to stay the obligation to comply with the challenged legislation and regulations pending appeal. In doing so, it laid down the principles applicable to granting an interlocutory injunction pending trial.

[50]      The Supreme Court recognized the conflict of depriving legislation enacted in the public interest of its effect, on the one hand, and, on the other, of failing to safeguard fundamental rights by insisting all legislation be enforced to the letter until it is struck down as unconstitutional. The Court went on to discuss the principles now embedded in the law governing the availability of interlocutory relief, distilled as the three‑part RJR‑MacDonald test. What is of interest here is the Court’s analysis of the public interest.

[51]      The Court considered the role played by the public interest in determining the balance of convenience at some length. It identified the public interest as a special factor in all constitutional cases, and accepted that the public interest does not always favour enforcing existing legislation. Both governments and those challenging government action can rely on public interest considerations, but those considerations require a demonstration that the public interest will benefit from granting an injunction. The Court noted at 346:

[52]      For clarity, I note the Court explained that assessing irreparable harm to the public interest is relevant to the balance of convenience analysis, not when considering irreparable harm: RJR‑MacDonald at 341. The Court summarized the approach to assessing public interest as follows at 348–49:

[53]      The Court then went on to analyse the issue on the facts of the case, concluding that the challenged legislation was intended to protect public health and promote the public good. As a result, the request for a stay was refused.

[54]      RJR‑MacDonald dealt with a constitutional challenge on both division of powers and Charter grounds to legislation and regulations passed pursuant to them. In the case at bar, the Allied Tribes assert the existence of rights flowing from s. 35 of the Constitution Act, 1982. Both Crowns are engaged in a constitutionally‑mandated consultation process arising from the honour of the Crown. They are acting in the public interest and, as indicated in the paragraph just quoted, a motions judge should assume that their conduct has the effect of promoting that interest. Here, the injunction is sought to prevent the Crown fulfilling or completing its duty arising from the honour of the Crown to consult and, where appropriate, accommodate asserted s. 35 Aboriginal rights.

[55]      The public interest in permitting that process to be fully completed is clear and substantial. In my view, this is a point of general constitutional significance, because the public interest in achieving reconciliation is fundamental and overriding. The interests of the public at large transcend the specific interests of the particular participants in a specific consultation process, although those interests are material to the analysis. What needs to be factored into the analysis at the balance of convenience stage is a recognition of the importance to the public interest of the existence of a consultation process as such, rather than in the first instance, the details of the particular process at issue. I agree with the Province that the judge ought to have assumed (at least in the absence of a full record and a direct challenge to the adequacy of the process), that the consultation process was adequate.

[56]      This general approach to issuing injunctions against the Crown is reflected accurately by Justice Groberman (as he then was) in Snuneymuxw First Nation et al. v HMTQ et al., 2004 BCSC 205:

[57]      I acknowledge that the judge refers to taking the public interest into account in her judgment, but, in my opinion, the judge erred in failing to accord proper weight to the existence of a process intended to promote the public interest: she failed to assume that the consultation process was promoting the public interest, and undertook an assessment of the inadequacies of the process based on an incomplete record. Contrary to the instruction in RJR‑MacDonald, the judge did not evaluate whether the injunction, which had the effect of suspending the constitutional process, and the court assuming a supervisory role in relation to it, was itself in the public interest, rather than in the interest of the Allied Tribes.

[58]      I observe here that the interests of more than just the Allied Tribes were engaged by this process. Those interests included the Treaty rights of the Nisga’a (even if the Disposition itself can be seen as a commercial transaction), and the interests of other First Nations who were consulted. The judge did not factor this into her analysis, in my opinion.

[59]      To underline the fundamental importance of according proper weight to the existence of a consultation process, it is helpful to recall some of the comments from the Supreme Court of Canada over the years. The Supreme Court has repeatedly emphasized the vital importance of consultation in promoting and achieving reconciliation. As we know, the process engages the honour of the Crown. The Crown is expected to discharge its constitutional obligations honourably. The public interest in allowing the consultation process to play out and be completed before challenging decisions that may be made in that process is overriding. Respectfully, the judge did not give any material weight to respecting the fact that a process was underway, as opposed to her assessment of its inadequacies.

[60]      It is worth drawing attention to just how important it is to allow consultation processes to be engaged in and completed, rather than prematurely stopped and the process be judicially usurped. In Haida Nation, the Court emphasized the importance of consultation. The duty to consult was described as lying “closer to the aim of reconciliation at the heart of Crown‑Aboriginal relations” than relying on all‑or‑nothing interlocutory injunctions: at para. 14. The Court went on:

[61]      More recently, in Anderson v. Alberta, 2022 SCC 6, this is found:

[62]      See also Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40; per Karakatsanis J. (Wagner C.J.C., Gascon J. concurring):

[63]      What also emerges from these cases is the Court’s encouragement of good faith negotiation as a means of achieving accommodation and reconciliation. While not exclusive, the preferred forum for negotiating is within the consultation process, which is sufficiently flexible to avoid the need for litigation. This is not to say, of course, that recourse to litigation is eliminated. Litigation may well be a complementary process. Nor is it to say that negotiation needs to occur within a consultation process. But the point remains that a preferred forum in which negotiation, consultation and accommodation can occur is in the consultation process. Parties are, of course, free to negotiate and resolve disputes on any consensual model, but, respectfully, it is not for judges to insert themselves into that process and, in substance, supervise it. That is what has occurred here.

[64]      The appellants contend that the adequacy of consultation was not in issue before the judge. The Allied Tribes confirmed that the focus of the application was not the adequacy of consultation. Although the record contained materials pertaining to the consultation process, the complete consultation record was not before the judge. As a general rule, the adequacy of consultation is an issue addressed within judicial review at the conclusion of the process. This was not a petition for judicial review seeking a declaration that the Province or Canada had failed to fulfil their duties in the consultation process, and that the result was unreasonable. The Allied Tribes contend, however, that the alleged failures of the consultation process provide context that is relevant to the court’s assessment of irreparable harm and the balance of convenience.

[65]      On this issue there are, from my perspective, several important points to make clear. First, the consultation record was incomplete. The full record was not before the judge. The judge accepted that the application was not one addressing the adequacy of consultation, even though the consultation process was, she said, relevant to the issues on the application.

[66]      Second, the judge undertook a detailed review of the consultation process to date and concluded, in substance, that the consultation process was inadequate. This conclusion informed her ultimate decision that an injunction should be issued.

[67]      The judge observed that:

[68]      It is evident that the judge agreed with the Allied Tribes’ assessment. This is most clearly seen in that part of the judgment where the judge rejects the argument that the Allied Tribes’ application was barred by the doctrines of laches and acquiescence. In doing so, she concluded that the Allied Tribes could reasonably have assumed that the Crown would take their concerns into account in the consultation process. When it became clear that a decision to transfer the lands was imminent, she reasoned it was proper for the Allied Tribes to bring the injunction action given that there had been no resolution of those concerns. The judge concluded at para. 101:

[69]      This conclusion informed, at least in part, the judge’s analysis of the availability of an injunction. In addressing whether the availability of judicial review ousted the jurisdiction to grant an injunction, the judge observed:

[70]      The judge’s analysis in these circumstances was driven by her understanding that injunctions remained available in circumstances where the Crown had failed to discharge its duty to consult. But it is important to remember that the cases cited, including Haida Nation, all involved challenges to decisions made to permit certain activities, but where the duty to consult had been breached. They do not involve midstream interventions in a yet to be completed consultation process.

[71]      The judge’s conclusion on the inadequacy of consultation also influenced the balance of convenience portion of the RJR‑MacDonald analysis. The judge considered the public interest arguments advanced by Nisga’a Nation and Canada on the importance of upholding Crown treaty obligations and permitting the completion of the consultation process. She acknowledged Canada’s argument that:

[72]      The judge did not address this latter argument in her assessment of the balance of convenience. She addressed only the public interest in respecting treaty obligations, and explained why those obligations did not shift the balance of convenience in favour of refusing the injunction. She said:

[73]      On reading the judgment as a whole, specifically with reference to the judge’s analysis of the concerns about the adequacy of the consultation process, I can only conclude that the sentence emphasized in the paragraph just quoted reflects the judgment that the honour of the Crown had not been maintained to date in the consultation process in the treatment of the Allied Tribes’ claims of title and rights. In other words, the sentence reflects the judge’s conclusion that consultation had been inadequate, and that the public interest required an injunction to prevent decisions being made within the consultation process that the judge viewed as dishonourable.

[74]      The third matter that seems to me to be clear, is that the order made reflects these conclusions. In substance, the injunction was issued to prevent the completion of the consultation process. It is a remedy intended to address the inadequacy of that process while it was ongoing: not one brought within a judicial review, but within the context of an interlocutory injunction pending trial.

[75]      It is useful to refer to the transcript at the conclusion of the hearing. I am aware that it can be unsafe to place too much weight on comments made by a judge during the course of argument, since those comments may not reflect the ultimate conclusions on which the judgment rests. But, in this case, there is a clear connection between the exchange between counsel for the Allied Tribes and the judge, and the order ultimately made. The judge asked counsel in reply whether what was being sought was an interlocutory injunction pending trial or some kind of interim order. Counsel responded that what was sought was an interlocutory injunction until such time as the ultimate issue of title could be resolved. The judge then expressed concern about the length of time taken to resolve claims to title. She asked:

[76]      Counsel then indicated a willingness to accept a time‑limited injunction, with time to mediate, and the ability to extend the injunction if need be.

[77]      In her reasons the judge dealt with the issue in this way:

[78]      I have already foreshadowed my respectful opinion that the order reflects reversible errors. Having described the judge’s approach, I will now explain and summarize where, in my view, the trial judge erred.

[79]      First, the judge erred in usurping the consultation process and taking supervisory control of assessing the conduct of the parties in engaging in good faith negotiations. It was an error for the judge to issue a mandatory, rather than a prohibitory, injunction. Respectfully, I do not think that it was open to the judge to require the parties to enter into, and then assume a supervisory role over, good faith negotiations. I agree with the submission that the judge effectively usurped the consultation process and, in substance, made an order aimed at addressing inadequacies in an ongoing consultation process. No doubt such remedies are available in a proper case, where the focus of the claim is the failure of the Crown to have engaged in adequate consultation before a decision is made. In this case, however, the judge erred to the extent that she founded her judgment on her views about the adequacy of consultation when that was not the issue before her. As I have said, the judge ought to have assumed that the consultation process was adequate, and then tested the evidence to determine whether the RJR‑MacDonald test was satisfied.

[80]      With respect, I think that to issue a mandatory injunction requiring the parties to enter into good faith negotiations, and to assume control of whether an injunction should be extended if those good faith negotiations have not been completed, is to make a vague and unenforceable order. While good faith negotiations and consultation are not necessarily the same thing, the judge has taken over control of supervising the relationship between the parties. Apart from being vague and unenforceable, this goes beyond the proper role of a judge, and beyond the relief sought.

[81]      Secondly, the judge erred by failing to weigh, properly, the public interest in permitting the consultation process to complete. It follows from what I have said above, that I accept Canada’s submission that the public interest in protecting the integrity of the consultation process required permitting that process to be completed. The honour of the Crown required reasonable consultation and accommodation, including responding to the risk of irreparable harm alleged by an Indigenous community. The judge’s legal error arose, in part, from her failure to appreciate the role played by the public interest, as explained in RJR‑MacDonald, in assessing the balance of convenience.

[82]      Thirdly, the judge erred in concluding that the injunction application was not premature. In my opinion, the judge erred in not giving effect to Canada’s submission. The judge rejected Canada’s prematurity argument at para. 104. She said:

[83]      Respectfully, I find this conclusion concerning. The uncontradicted evidence before the judge was that Canada was committed to satisfying its duties to consult with Indigenous groups asserting claims to the Nasoga lands. Specifically, Canada wrote on August 23, 2019, confirming to the Allied Tribes that it “fully intended to meet all consultation obligations … on any decision that Canada may make regarding the Consent.” Canada’s evidence confirmed that, while it had made significant efforts in the consultation process, the process was not yet complete. Given that the consultations are not yet complete, Canada had not made a decision on the Consent or determined whether any accommodations may be appropriate. In their factum, the Allied Tribes took no issue with this statement of Canada’s position.

[84]      In the face of this evidence, the judge nevertheless treated Canada’s Consent to the addition of the lands to the Treaty as a foregone conclusion. The judge’s finding that Canada’s Consent would follow immediately after a decision on the Disposition is, effectively, a conclusion that Canada will act dishonourably and will repudiate the honour of the Crown by failing to discharge its duties. In the face of the uncontradicted evidence, this amounts to reversible error.

[85]      Finally, it was an error for the judge to pronounce an order of a different nature to that which was sought. The Allied Tribes sought an interlocutory injunction pending trial or the determination of their claim to Aboriginal title. What was granted was a mandatory interim order requiring the parties to negotiate in good faith. In my view, it was an error, in the circumstances, to go beyond what was sought and effectively amend the application in reply.

[86]      In my view, this is sufficient to compel the result that the injunction should be set aside.

[87]      Notwithstanding my view that the appeal should be allowed, it is also worthwhile to comment on errors in the judge’s analysis of irreparable harm. In my view, the judge erred principally because her conclusions rest on speculation, and do not satisfy the test to issue a quia timet injunction. I accept, of course, that deference is owed to the judge’s conclusions on these issues, absent legal error. I note that the judge stated that, in her view, the alleged risk of harm resulting from the Disposition and Consent was not speculative.

[88]      The judge concluded that the most significant harm to the Allied Tribes would be the transfer of the Nasoga lands into the control of the Nisga’a under the Treaty. She concluded that this transfer would result in a significant loss of the Allied Tribes’ right to be consulted, and potentially accommodated, by the Crown prior to any potential infringement of their rights and title pending determination of the claims: at para. 124. A second concern was the risk that the Nisga’a Nation would make decisions that would fatally compromise the ability of the Allied Tribes to prove their claim to title. This general conclusion is supported by evidence from the Allied Tribes detailing their concerns that the Disposition and Consent would harm their legal system, and would lead to the loss of places of cultural and social significance to the Allied Tribes: at para. 114.

[89]      In addition, the judge accepted the following evidence:

[90]      Of particular concern to the judge was evidence suggesting that the Nisga’a proposed to permit pipelines — and possibly an LNG plant — to be constructed on the Nasoga lands, development which could harm the ability of the Allied Tribes to prove Aboriginal title. The judge accepted that once the lands are transferred to the Nisga’a, they are outside many of the controls of the Crown, and the obligation to consult with the Allied Tribes on future uses would be impaired. This impairment included the removal of forest from the provincial forest, opening up the possibility of harvesting.

[91]      The judge rejected the value of assurances the Province and the Nisga’a provided on wildlife management and land access for the following reasons:

[92]      The judge went on to conclude that the non‑derogation clauses in the Treaty protecting rights of other First Nations did not alleviate the irreparable harm that the Allied Tribes would suffer if the Disposition and Consent were to proceed: at para. 132.

[93]      I turn now to explain my conclusion that the judge erred in principle in finding irreparable harm. To support a finding of irreparable harm, the evidence must be more than a series of possibilities, speculations or general assertions. The evidence needs to be sufficiently precise to demonstrate a real probability that unavoidable irreparable harm will occur without an injunction. A quia timet injunction may be granted when wrongful acts have not yet occurred, but are imminent or have been threatened. To obtain such an injunction, an applicant must demonstrate that there is a high degree of probability the alleged harm will in fact occur imminently or in the near future: XY, Inc. v. IND Lifetech, Inc., 2008 BCSC 1215 at para. 66. In Canadian Pacific Ltd. v. Highland Valley Cattle Co., [1990] B.C.J. No. 1860, (C.A.), this Court explained:

[94]      In my opinion, the judge erred by not requiring a high degree of probability that the alleged harms would occur. The injunction prevented the completion of the consultation process before it was known what decisions would be made and what accommodations, if any, would be built into the decision to protect against potential alleged risks of harm materializing. We do not know whether Canada, as an example, might have imposed conditions on its Consent ensuring that decisions by the Nisga’a Lisims Government would protect cultural artifacts, evidence of Aboriginal title, and so on. The judge gave no effect to the possibility that such accommodations would emerge from the process.

[95]      The harms that the judge accepted as demonstrating irreparable harm were a range of possible, yet speculative, adverse consequences premised on the assumption that the Nisga’a’s control over the lands, as the fee simple owner, would prevent or otherwise undermine the Allied Tribes’ ability to exercise rights or assert title in relation to those lands.

[96]      To be more specific, the judge accepted the Allied Tribes’ assertion that the Nisga’a Nation might refuse to issue Nisga’a Land Act permits for research to assist in the Allied Tribes’ claims for Aboriginal title. Indeed, she reasoned: “It is difficult to imagine a circumstance where it would be in the interest of the Nisga’a Nation to enable archeological research to benefit another Indigenous group seeking to establish title and rights within the [Nass Wildlife Area] or the Nisga’a Lands”: at para. 123. She said this was not an academic concern because the Nisga’a had objected to issuing permits in the past.

[97]      In reaching this conclusion, the judge ignored the evidence that the issue in the past had not been about issuing permits at all, but, rather, concerned the conditions to be attached to them. But, more importantly, from the perspective of the probability of harm arising, the judge gave no effect to Nisga’a Nation’s assurances to the contrary to not unreasonably refuse applications for appropriate authorizations if the Allied Tribes wished to undertake archeological studies. The chambers judge failed to recognize that the type of culturally significant evidence she speculates may be destroyed is generally protected by s. 12.1 of the Heritage Conservation Act, R.S.B.C. 1996, c. 187. This Act has applied to all Nisga’a lands since the effective date of the Nisga’a Treaty. The status quo is that the Act would apply to the Nasoga lands if they became Nisga’a lands.

[98]      I think there is also force to the argument that it should not be assumed that the Nisga’a Nation would be careless of protecting the cultural artifacts of concern. The Nisga’a Nation’s asserted position is that the Nasoga lands are within Nisga’a traditional territory. There is no dispute about the existence of artifacts of important cultural significance. The dispute is whose title, if any, they support. It is not clear to me how one could conclude, without engaging in speculation, that the Nisga’a, who claim these artifacts as their own or not inconsistent with their claims, would permit their destruction.

[99]      In my view, many of the same considerations apply to concerns arising generally from the risk of development that might adversely affect the ability of the Allied Tribes to prove their title. The judge’s primary concern appears to relate to pipelines or an LNG plant. In the first instance, developments like this remain subject to provincial and federal regulatory approval. The generalised harm of loss of rights to be consulted has no application. Moreover, if such plans did begin to move forward in concrete ways, they would not be secret, and it would begin to be possible to identify specific harms that required protecting. At that stage, the risk of irreparable harm would cease to be speculative, and would be sufficiently particular to permit assessment about whether a remedy to protect against the risk was required.

[100]   In respect of these matters, in my view, the judge was speculating about what might happen in an uncertain future. The risk of harm might not materialize. It would have been more appropriate to recognize that if, at some future time, the Allied Tribes’ efforts to undertake studies to establish their claim to title were being frustrated, remedies to deal with the particular issues would be available within the litigation, at the minimum. Similarly, if potential developments were to have a similar effect, or to infringe upon the Allied Tribes’ Aboriginal rights and title, then the issues could be addressed with a proper evidentiary basis.

[101]   I find that the same kind of speculation generally underlays the judge’s conclusion that the Crown Consent “will result in a significant impairment of the Allied Tribes’s right to be consulted and, potentially, accommodated by the Crown prior to any potential infringement of their rights and title in the Nasoga Lands pending determination of their claims”: at para. 124.

[102]   The record did not contain evidence of specific permitting applications potentially adversely affecting the Allied Tribes’ consultation rights. Certainly, some matters in respect of which the Allied Tribes had a right to be consulted would be affected if they became subject to Nisga’a law under the Treaty. For example, the judge commented that the Nisga’a Nation “could harvest all timber on the [Nasoga] lands without any obligation on them to consult with the Allied Tribes, thereby fundamentally interfering with the Allied Tribes’s ability to exercise any rights associated with a standing forest”: at para. 131. This, the judge concluded, “could fundamentally infringe the Aboriginal rights and title of the Allied Tribes prior to a determination by a court”: at para. 131.

[103]   But there was no evidence respecting any plans by the Nisga’a Nation to carry out any forestry on the Nasoga lands. There was no evidence that Nisga’a Lisims Government had ever clearcut any standing forest. I do not think this can appropriately be characterized as an imminent harm to the Allied Tribes’ right to be consulted.

[104]   In conclusion, in my view, the judge’s conclusions rested on assumptions and speculation about what might happen if the Nasoga lands became Nisga’a lands. This speculation assumed that the consultation process would confirm the Disposition and Consent, and that no adequate or appropriate accommodations would be made to protect against the risk of irreparable harm: one of key objectives of consultation. Moreover, the specific harms the judge identified rest on assumptions about the effects of the Disposition and Consent on the right to be consulted. That right would continue in respect of certain matters which would remain subject to federal and provincial regulation. In respect of other matters, there was no evidence of any pending decisions that would cause the risk of harm to materialize. Furthermore, the judge speculated that the Nisga’a Nation would not respect assurances it had given, and would be careless in protecting cultural artifacts, many of which it claims as its own.

[105]   For these reasons, I conclude the judge erred in her analysis of irreparable harm, and how it was treated within the balance of convenience. I would set aside the injunction on this basis too.

[106]   I would allow the appeal, and set aside the injunction. The effect of this order is to permit the consultation process to complete. In the event that the outcome of that process does not satisfy the Allied Tribes that their asserted rights are adequately protected, then they will have their remedies. I would expect that the Province and Canada would provide a reasonable opportunity to the Allied Tribes to challenge the outcome of the consultation process before implementing the decisions. The honour of the Crown would require nothing less.

[107]   I do not intend to go beyond what is necessary to decide this appeal. Accordingly, the question of how remedies available in a judicial review contesting the outcome of the consultation process might relate to a renewed application for an interlocutory injunction heard at the same time is a matter for future consideration. I do not wish this judgment to be taken to prejudge the issues that might arise in those circumstances. For example, under what circumstances an interlocutory injunction pending trial might be available if, on judicial review, the outcome of the consultation process and any accommodations made to the Allied Tribes’ asserted rights is found to be reasonable, is a matter to be decided in the concrete circumstances then existing.

[108]   I have had the privilege of reading the draft reasons for judgment of my colleague, Justice Harris. I agree with his lucid explanation of the purpose and vital importance of a respectful and robust consultation process, and with his view that the fact of consultation is a significant factor in weighing the public interest at the balance of convenience stage of the RJR‑MacDonald test. I also agree that an interlocutory injunction will only be available before the constitutionally mandated consultation has been completed in exceptional circumstances. I agree further that judges must take care not to usurp that process and assume a supervisory role by intervening in a consultation midstream.

[109]   However, with great respect, I do not accept that the judge usurped the consultation midstream in this case. Nor do I agree that she erred otherwise in her application of the RJR‑MacDonald test or her exercise of discretion by granting the time‑limited injunction on terms in light of the evidence and arguments presented on the application. My conclusion on these matters is based on a quite different interpretation of her reasons and the nature of her order, and on my firm view that the judge’s discretionary determination should be afforded significant appellate deference.

[110]   Specifically, I do not agree that the judge’s analysis was driven by her understanding that injunctions remain available where the Crown has failed to discharge its duty to consult. Nor do I agree that she concluded either Crown had or would conduct itself dishonourably, or that her judgment is founded on her conclusion about the adequacy of the consultation, which she clearly recognized was not the issue and concerning which she made no finding. Moreover, I do not agree that she issued a mandatory injunction, required the parties to enter into good faith negotiations, or suspended the consultation process, which she accepted had essentially completed. Further, I do not agree that the judge speculated in assessing the evidence on irreparable harm alleged by the Allied Tribes should the Disposition and Consent proceed.

[111]   Rather, in my view, the judge did exactly what she was required to do, namely, test the evidence to determine whether the RJR‑MacDonald test was satisfied, and, based on that analysis, issue an order in terms she considered just and equitable in all the circumstances. Although other judges may well have taken a different view of the evidence and exercised their discretion differently on the same record, I see no reviewable error in the judge’s analysis or her exercise of discretion that justifies appellate intervention: Garcha Bros Meat Shop Ltd. v. Singh, 2022 BCCA 36 at paras. 20–21.

[112]   Justice Harris has helpfully summarized much of the salient background, evidence, and arguments in the court below, as well as the judge’s reasons and the governing principles that guide our determination. I will not repeat those efforts. However, in explaining how and why I interpret the reasons differently, I will review them in some detail, identify what I see as the key findings, and discuss our points of disagreement. I will also briefly deal with my own interpretation of the order made by the judge.

[113]   After describing the parties, the action, and the application, the judge outlined the history of the consultation with respect to the Allied Tribes’ unproven claim to Aboriginal title over the Nasoga lands. In doing so, she acknowledged that she was deciding an application for injunctive relief that did not address the adequacy of the consultation, although, in her view, “the consultation process undertaken to this point is relevant to the issues”: at para. 12. She also summarized several of the steps taken in the consultation, including exchanges of correspondence, materials, and opposing positions regarding the strength of the Allied Tribes’ title claim, impacts arising from the proposed Disposition and Consent, and appropriate accommodations. Then she stated that, in July 2021, the Province advised the Allied Tribes that it would decide on the Disposition in the fall of 2021, despite the ongoing dispute, after which the Allied Tribes commenced the action and attempted unsuccessfully to resolve it through a consensual dispute resolution process.

[114]   Next, the judge identified the issues raised on the application as: i) whether an injunction was available to the Allied Tribes prior to proof of their title claim; and, if so ii) whether the Allied Tribes were entitled to an injunction: at para. 44. She went on to analyse each of these issues in turn.

[115]   In addressing the first issue, the judge described the defence position that the Allied Tribes were only entitled to consultation and possibly accommodation: at para. 45. She also rejected the Province’s argument that the Allied Tribes “have consistently taken the position that their consent is required before the Crown may agree to the Disposition and Consent” based on her review of the record: at para. 46. I see no error in that factual conclusion, which is grounded in the evidence. Nor do I see error in the judge’s appreciation of the Allied Tribes’ position, namely, that while they asserted the Crown had not consulted adequately, they were seeking an injunction to prevent a decision on the Disposition and Consent, not challenging a decision following an inadequate consultation: at para. 47.

[116]   In her remaining discussion of the first issue, the judge referred to certain authorities on the remedies available to a claimant of Aboriginal rights that are as yet unproven. These included MacMillan Bloedel, Haida Nation and Tsilhquot’in Nation. Quoting from Haida Nation and Tsilhquot’in Nation, she observed that, since Haida Nation, the Court has affirmed both the existence of a Crown duty to consult and the co‑existent, though less preferable, availability of injunctive relief in cases involving claims to unproven Aboriginal rights. She also stated that the duty to consult “has now become the dominant form of relief” where such rights are in jeopardy, but emphasized Haida Nation maintained the general availability of injunctive relief, which availability is undiminished by subsequent decisions of the Court:

[117]   As I understand it, based in part on this discussion, my colleague concludes that the judge’s analysis of the availability of an injunction in these circumstances was driven by her understanding that injunctions remain available where the Crown breaches its duty to consult. In explaining that view, he notes that the cases she cited all involved challenges to decisions to permit certain activities where the duty to consult was breached, not “midstream interventions in a yet to be completed consultation process”. He goes on to conclude that the judge’s ultimate decision to issue an injunction rested in part on her conclusion that, in the process to date, the Province had failed to consult adequately. In his view, the judge’s conclusion in this regard is most clearly seen in that part of her reasons where she addressed defence arguments that the Allied Tribes are not entitled to injunctive relief based on the doctrine of laches and acquiescence.

[118]   I cannot agree with these interpretations of the judge’s reasons.

[119]   Reading the reasons as a whole and in context, I am confident that the judge’s analysis of the availability of an injunction was not driven by her understanding that injunctions are available where the Crown has failed to consult adequately. The judge manifestly understood that, while the Crown has a duty to consult and, if appropriate, accommodate in cases involving unproven Aboriginal rights, injunctions are also generally available to protect them where a claimant alleges a breach of the duty to consult (as in Haida Nation and Tsilhquot’in Nation) and where a claimant seeks a declaration of substantive s. 35 rights (as in MacMillan Bloedel and this case). This is apparent from her repeated recognition throughout the reasons that the injunction application was not focused on the adequacy of the consultation. It is also apparent from her own focus in her entitlement analysis on the strength of the Allied Tribes’ title claim, the alleged harm to their ability to prove that claim, and the balance of convenience demonstrated by the evidence. In other words, as I read her reasons, the judge understood that the consultation process did not preclude the Allied Tribes from seeking protection from irreparable harm through injunctive relief.

[120]   In my view, that the judge cited post‑Haida Nation cases involving alleged failures to consult when analysing the question of whether injunctive relief was available in this case is neither telling nor significant. The duty to consult is “the dominant form of relief” available where unproven s. 35 rights are implicated, and interlocutory injunctions are rare and difficult to obtain. That being so, I would find it unsurprising if there was a dearth of interlocutory injunction cases involving title claims available to be cited.

[121]   More importantly, as I see it, the judge’s ultimate decision to grant an injunction rested on her conclusions that: i) the Allied Tribes had established a strong arguable case that they hold Aboriginal title to the Nasoga lands; ii) they would suffer irreparable harm to, among other things, their ability to prove their claim if the Disposition and Consent were to proceed; iii) unless an interlocutory injunction was granted, the Disposition and Consent would proceed imminently; and iv) based on the evidence, the balance of convenience weighed heavily in favour of the Allied Tribes. In other words, I do not agree that the judge rested her decision to grant the injunction on a conclusion that the Province had failed to consult adequately.

[122]   The judge plainly disagreed with the Province’s assessment of the strength of the Allied Tribes’ title claim and the harmful impacts associated with proceeding with the Disposition and Consent. However, as I read her reasons, she did not reach any conclusion, express or implicit, on the adequacy of the consultation process. Presumably this was because it was unnecessary for her to do so. Rather, she was required to apply the RJR‑MacDonald test, bearing in mind the nature of the claim for title and her findings based on the evidence. In doing so, she was not required to make any finding on the adequacy of the consultation or defer to the views of any party involved.

[123]   In support of this interpretation, I note that beyond outlining the consultation history at the outset to place the application in context and noting the Allied Tribes’ assertion that it was inadequate, the judge mentioned the consultation process only once in her reasons, namely, when, in analysing entitlement, she rejected the defence arguments on laches and acquiescence. That is the point at which my colleague sees a clear indication that she concluded the Province had failed to consult adequately. I read this part of her reasons very differently.

[124]   The judge rejected the arguments on laches and acquiescence when addressing the first element of the RJR‑MacDonald test: had the Allied Tribes raised a serious triable issue? She noted the Nisga’a argued that the Allied Tribes should have brought their title claim when the Nisga’a Treaty came into force, and the Province argued they should have brought it when they were first notified of the proposed Disposition in 2016. However, she stated, both arguments failed, the first because the Nasoga lands were not part of the Nisga’a lands when the Treaty came into force and there was no imminent risk then of a harmful change in their character.

[125]   As to the second argument, the judge said this:

[126]   I take the following significant points from these passages.

[127]   First, these passages reflect the judge’s view that the consultation was relevant to the first branch of the RJR‑MacDonald test on the issue of laches and acquiescence. In my view, she was correct, for the reasons that she gave.

[128]   Second, these passages reflect the judge’s finding that the consultation process was essentially completed, and that, unless an injunction was granted, the Disposition and Consent were very likely to proceed imminently. That finding is also reflected elsewhere in the reasons, including in the passages quoted by my colleague where the judge rejected Canada’s prematurity argument. In my view, the judge’s finding that the consultation had essentially completed was available on the entire body of evidence, including the evidence listed by the judge in para. 104 of her reasons. I see no palpable and overriding error in the view that she took in this regard.

[129]   Third, and most importantly, in my view, these passages do not reflect a finding that the consultation process was inadequate or that the Crown had or would conduct itself dishonourably. Rather, they reflect the judge’s powerful disagreement with the Province’s assessment of the strength of Allied Tribes’ title claim and the harmful impacts associated with the Disposition and Consent on their as yet unproven Aboriginal rights. Specifically, they reflect her finding, based on admissible evidence which she accepted, that the Province’s assessment minimized the strength of the Allied Tribes’ claim to title of the Nasoga lands and the impacts that would flow from the Disposition and Consent proceeding. In my view, that is distinctly different from a finding that the Crown had failed to discharge its duty to consult or had behaved dishonourably. Despite good faith efforts to reach agreement, reasonable people behaving honourably simply may not agree.

[130]   Relatedly, I also interpret the passages that my colleague quotes from the judge’s balance of convenience analysis quite differently. As I read those passages, they do not reflect a view that to date the honour of the Crown had not been maintained, that the consultation had been inadequate, or that the public interest required an injunction to prevent the Crown from acting dishonourably (as opposed to what the judge saw as ill‑advisedly). Rather, they reflect the judge’s view that the consultation process had essentially completed, together with her own assessments of the strength of the Allied Tribes’ claim to title of the Nasoga lands and the irreparable harm to their unproven s. 35 rights associated with the proposed Disposition and Consent proceeding. Those assessments differed substantially from the Crowns’ assessments. In my view, her comment on maintaining the honour of the Crown going forward should be understood in that light.

[131]   While the Crowns’ assessments were obviously a significant factor for the judge to consider in conducting her analysis, in applying the RJR‑MacDonald framework she was obliged to undertake her own assessments based on her own appreciation of the evidence presented on the application. In doing so, she was not obliged to defer to the views of the Crown or to reach the same conclusions reached by the Crown, which she plainly did not.

[132]   As to the irreparable harm issue, with great respect, as I see it my colleague has expressed a different appreciation of the evidence and would weigh the evidence quite differently than the judge did. However, as he accurately states, that is not our function on appeal. As I understand her reasons, the judge’s main concern on the irreparable harm issue was that transfer of the Nasoga lands into the control of the Nisga’a would impair the Allied Tribes’ right to be consulted prior to a potential infringement of their s. 35 rights before those rights could be proven, and, in the meantime, the Allied Tribes’ ability to prove their rights would inevitably be diminished. In my view, there is nothing speculative about her conclusion in that regard. On the contrary, her finding was available on the evidence, and it is owed deference on appeal.

[133]   The judge enjoined the Province and Canada from proceeding with the Disposition and Consent for a period of 18 months, and granted leave to the Allied Tribes to apply for an extension of the injunction “if good faith negotiations … have not completed at that time”. She also seized herself of any future applications to extend the injunction.

[134]   The term regarding leave to apply for an extension was plainly prompted by the Allied Tribes’ stated objective of engaging in a dispute resolution process with the Crowns, and contemplates the conduct of ongoing pre‑trial negotiations. However, I do not accept that its inclusion transformed the order into a mandatory rather a prohibitory injunction. Pre‑trial negotiations are commonly conducted in litigation, and the leave term did not compel any party to do anything. Nor did it suspend the constitutionally mandated consultation process, which the judge found had been essentially completed, or provide the judge with any form of supervisory role over any pre‑trial negotiations that might be conducted. On the contrary, it simply circumscribed the basis upon which the Allied Tribes were entitled to apply for an extension of the otherwise time‑limited injunction.

[135]   I agree with the Allied Tribes that it was within the judge’s discretion to issue an injunction on terms pursuant to R. 13‑1(19) and s. 39 of the Law and Equity Act, R.S.B.C. 1996, c. 253. I see no reversible error in her exercise of that discretion, particularly given the Province’s position that granting an interlocutory injunction which was not time‑limited would amount to granting the Allied Tribes the relief they sought in the underlying action. In my view, that similar terms have been imposed in injunction cases involving alleged breaches of the duty to consult is irrelevant to the nature of the order in this case.

[136]   For these reasons, I would dismiss the appeal.