BC Supreme Court Grants Injunction to ʔAkisq̓nuk First Nation Over Windermere Lake Dredging (2025 BCSC 616)

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: ʔAkisq̓nuk First Nation v. British Columbia Environmental Appeal Board, 2025 BCSC 616 Date: February 21, 2025 Docket: S251154 Registry: Vancouver Before: The Honourable Justice Chan

Petitioner: ʔAkisq̓nuk First Nation Respondents: British Columbia Environmental Appeal Board, Assistant Water Manager, Ministry of Water, Land and Resource Stewardship, and Tretheway Beach Society

INTRODUCTION

ʔAkisq̓nuk First Nation ("First Nation") applied for an interlocutory injunction to restrain the respondent Tretheway Beach Society ("TBS") from dredging Windermere Lake or proceeding with any of the work approved by the Ministry of Water, Land and Resource Stewardship until the First Nation's petition for judicial review is heard and decided on the merits.

The Ministry took no position on the injunction application. TBS opposed the injunction application and the stay of the approval order.

PROCEDURAL BACKGROUND

The First Nation is part of the Ktunaxa Nation, an indigenous group under s. 35 of The Constitution Act, 1982. The First Nation represents the aboriginal rights and title of the Ktunaxa Nation, including the right to fish and act as stewards of Windermere Lake. The Reserve runs along the shore of Windermere Lake.

TBS operates a private marina for small boats, with two docks and 88 boat slips, on Windermere Lake. The marina is located within lands of the Ktunaxa Nation and abuts the Reserve. On March 17, 2024, TBS applied to the Ministry for an approval pursuant to s. 11 of the Water Sustainability Act to modify the marina and the surrounding area. TBS sought to dredge an 8,247 square metre area to a low water lake depth of 1.5 metres by removing approximately 7,990 cubic metres of sediment.

The First Nation was notified of this application on July 11, 2024. On September 10, 2024, the Ministry issued the approval authorizing the Works (the "Approval"). The First Nation alleges there was no meaningful consultation, and its concerns were not addressed or accommodated.

On October 11, 2024, the First Nation appealed the Approval to the Environmental Appeal Board ("EAB"). On January 27, 2025, the EAB dismissed the stay application (the "Stay Dismissal Decision"). The First Nation filed a petition in this Court on February 13, 2025, seeking judicial review of the Stay Dismissal Decision.

ANALYSIS

A. Serious Question to be Tried

The First Nation has shown there is a serious question to be tried in the judicial review. The First Nation alleges the EAB erred in applying the standard of balance of probabilities to irreparable harm, rather than the standard of reasonable possibility or meaningful risk of irreparable harm. The issues raised in the judicial review are not frivolous.

B. Irreparable Harm

The Court found there is sufficient evidence of irreparable harm. The dredging and other proposed activities by TBS will have adverse impacts on the aquatic habitat of Windermere Lake, affecting the First Nation's right to fish and be stewards of the land and lake. The First Nation has historically fished for salmon and burbot in Windermere Lake, but the numbers of these species have declined drastically. Salmon are just starting to be reintroduced, and the Works will likely adversely impact this reintroduction.

C. Balance of Convenience

In these circumstances, the balance of convenience favours the granting of the injunction. If the injunction is not granted, the judicial review of the Stay Dismissal Decision and the appeal of the Approval will be rendered moot. The proposed timeline to complete the dredging work is about three weeks. The dredging work may create possibly irreversible impacts on the environment and fish habitat before the judicial review and the appeal can be heard.

The harm to TBS by the granting of the injunction is not as great, as there is no evidence that the Approval cannot be extended and the Works performed at a later time.

CONCLUSION

There will be an injunction restraining TBS from dredging Windermere Lake or proceeding with any of the approved works pending the determination of the judicial review. The undertaking as to damages is waived. Costs of this application are in the cause.

"Chan J."