Notes from Court #3: ‘Irreparable Harm’ and the ‘Balance of Convenience’

Background: I spent the day in the Nova Scotia Supreme Court on January 26th, observing WestFor’s application to extend the temporary injunction they were granted in December against the Extinction Rebellion Nova Scotia Association and John and Jane Doe. WestFor is a consortium of 13 sawmills.

Nine Moose Country forest protectors — including me — were arrested for failing to obey this injunction. The injunction barred anyone from blocking any logging road anywhere on Crown land that WestFor has a license to harvest. We face criminal charges of disobeying a court order. On March 15th we will find out when exactly we are to enter our pleas in Provincial Court in Digby. Sometime later our cases will go to trial. In the meantime we are barred from setting foot on any of the crown lands covered by the injunction. 

Due to COVID regulations, I was the sole representative in the public gallery of the people who blockaded logging roads in Digby County for 8 weeks. I submitted an affidavit but WestFor’s lawyers chose not to cross-examine me.

This is the third in a series of notes covering different aspects of the hearing. The first looked at the use WestFor made of ‘Moose Concentration Area’ maps. The second focused on the role of the province’s Harvest Plan Map Viewer in creating the illusion of consent. This third one has to do with the legal tests for turning an interim injunction into a more permanent interlocutory one. Perhaps we will have a ruling on the case by the time I write a fourth.

Injunctions are being used more and more against Indigenous land defenders and other protectors of nature in Canada. Our lawyers, Juniper Law’s Jamie Simpson and Ecojustice’s Sarah McDonald and James Gunvaldsen Klaassen, had warned us that the case law surrounding injunctions strongly favours resource extraction industries. I had not expected that law to be so rich in irony. 

In 1994 in RJR-MacDonald Inc. v. Canada, the Supreme Court of Canada set out “the three mandatory elements of a motion for interlocutory injunctive relief:

(43) First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits (the balance of convenience.)

We’ll come back to that ‘balance of convenience’. First, what is this ‘irreparable harm’? From RJR-MacDonald: “(43) Irreparable harm is harm that cannot be quantified in monetary terms or which cannot be cured…”

Irreparable harm that cannot be quantified in monetary terms? Isn’t that what the UN’s latest report on the biodiversity crisis warns about: a cascading collapse of ecosystems and the sixth mass extinction? If we don’t act now it will be too late. Isn’t that why we camped out on logging roads and chose to get arrested rather than voluntarily lift our blockades? How do you quantify in monetary terms the extirpation of the Mainland moose in Nova Scotia? How do you repair extinction?

But that is not what the case law has in mind. Examples of this unquantifiable irreparable harm are along the lines of a business losing its reputation or suffering a permanent market loss.

Then there is the kind of harm which “cannot be cured.” This, it seems, is “usually because a party cannot collect damages from another.” According to Dunbar’s brief,

63. In RJR MacDonald, the Supreme Court of Canada confirmed that the impecuniosity of the defendants or their inability to pay a future damage award were a factor that militated in favour of a finding of irreparable harm. In this case, the potential damages are high – the affidavits establish that the value of the timber by-products on the site is projected to be approximately $2.8 million. If the timber cannot be transported for processing, this value will be lost.

64. There is no evidence to suggest that the Defendants, individually or collectively, are financially able to pay damages of this magnitude.(…) Extinction Rebellion is a non-profit funded by donations.

Our lawyers poked holes in this argument, in particular concerning the sketchiness of WestFor’s supposed losses. My focus is on the bigger questions raised in this non-lawyer’s mind.

Dunbar’s interpretation of the case law suggests that those who profit by extracting natural resources – for example, by clearcutting $2.8 million worth of forests in endangered Mainland moose habitat – are entitled to an injunction precisely because those who speak up for nature are impecunious. Having failed to extract a profit from our activity, we won’t be able to pay those extravagant damages. 

About those damages, based on “the value of the timber by-products on the site”. Mr. Dunbar seems to be claiming that, if the trees are not cut down and hauled to the mill as planned and on schedule, then they lose their $2.8 million in value. How can that be true? In a healthy forest, if the trees are left standing, they will continue to grow, increasing in value, even if value is only measured as value at the sawmill. They will also continue to shelter the moose, store carbon, filter water and much, much more.

What is the value of a standing forest?

It depends how you measure value. By one common measure, Gross Domestic Product (GDP), only a dead tree counts. Only the timber extracted from the forest is measured and valued. The trees still standing have no value until they too become ‘timber by-products.’ 

Fiscal illusion is an economic concept that describes a phenomenon in which decisions are made without the knowledge of their true cost or ultimate consequence.

WestFor values the forests we were protecting at $2.8 million, once they are reduced to ‘timber by-products.’ But what is the cost of cutting down those forests? Not the labour cost of  cutting and hauling, the cost of losing everything those forests offered. What price biodiversity? What price intact ecosystems? What price moose and lichens and migratory birds? 

Many of us resist pricing the ‘ecosystem services’ a forest offers. It feels like another step in the commodification of everything. It feels morally and spiritually insulting.  The headline of a recent article in the Guardian was meant to shock: ‘How much is an elephant’s life worth?’ But the recently released study, commissioned by the British government, ‘The Economics of Biodiversity: the Dasgupta Review’, makes the case that failing to recognise nature as an asset is part of the problem. 

The solution begins, the report says, by understanding that our economies are embedded within nature, not external to it. We must change how we measure economic success because gross domestic product does not account for the depreciation of assets, including environmental ones. “As our primary measure of economic success,” the authors write, “it therefore encourages us to pursue unsustainable economic growth and development.”

What price a lost forest? And who pays that price? Whose forest was it, in the first place?

Back to court. The third element established by RJR MacDonald Inc. v. Crown for determining whether to grant the ‘remedy’ of an injunction is the ‘balance of convenience’. 

Finally an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits (the balance of convenience.)

James argued that this analysis of greater harm “must also include consideration of the public interest at stake” and that “The conservation of species at risk is undoubtedly a matter of critical public interest.” He cited the preamble to Canada’s Species at Risk Act:

Wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic, cultural, spiritual, recreational, educational, historical, economic, medical, ecological and scientific reasons (…)

He cited Justice Martineau in Centre Quebecois du droit de l’environment:

The otherness between humans and animals, between people and things without an owner, has given way to a universal legal concept whereby wildlife species and ecosystems are part of the world’s heritage and it has become necessary to preserve the natural habitat of species at risk.”

He brought in Justice Brothers’ ruling in the Bancroft  case: 

The species need people like Mr. Bancroft and organizations ….to take action and speak for them.(…) How else would the Mainland Moose, Ram’s-head Ladyslipper, Canada Warbler, Black Ash, Wood Turtle or Eastern Peewee find protection when and if a government failed to reasonably execute its duties and responsibilities?

The culmination of his argument was the contention that ecosystems and moose must be recognized as having value in ‘the balance of convenience’. It was at this point that the judge peered at James and mildly inquired, ‘Do you think I will find precedent for your argument?’

The precedent cited at length in WestFor’s brief is Slocan Forest Products Ltd. v. Valhalla Wilderness Society. 

71. (22) The balancing of convenience that was under consideration on July 16, 1997 and is reviewed in this application, is not one between the plaintiff as one lawful resource user and Mr. Anderson as another lawful resource user in conflict (…) Nor was it an appropriate forum to review the wisdom of issuing permits to log 17 cut-blocks or construct roads on hydrologically unstable terrain in crucial watersheds. It was a balancing of convenience between a plaintiff with the legal right to construct, use and maintain a public road, use a forest road and harvest timber on one hand, and a crowd of persons who resorted to illegal use of a blockade to impede that legal right, on the other.

72. (23) The virtue of this cause and the objective correctness of their values and their assessment of potential harm from the road construction and logging are all completely irrelevant because the rule of law in our democracy requires that rights are established and adjudicated by due process, not by force. Once it was established that user rights had been granted after due process by properly authorized administrative officials, there is indeed nothing that can be placed on the balance on the side of the blockade.

We have yet to hear Justice Coady’s ruling but, in the meantime, what about those precious ‘user rights’? WestFor’s ‘user rights’, its license to harvest on crown land in Southwest Nova Scotia, were granted by the Minister of Lands and Forestry, the very same Minister who, Justice Brothers ruled, systematically failed to fulfill his responsibilities under the Endangered Species Act. He failed, for example, to identify core habitat for the Mainland moose.

WestFor has only been in existence since 2016. It was hustled into being just before the Lahey Report got under way. Its stated purpose is to increase efficiency of harvesting on Crown land. Its license is only good for a year at a time. The current one is up for renewal on September 30^th. In its insistence on clearcutting $2.8 million worth of Mainland moose habitat in spite of a tremendous outcry from citizens, WestFor has made clear that it only values our forests as ‘timber by-products’. 

Though the law is a laggard in the area of injunctions, in other areas progress is being made in recognizing the rights of nature which are also our rights, as humans, to a liveable planet.

Here in Nova Scotia, the Lahey Report is about to be implemented. Finally. This report makes it crystal clear that, for 85% of forested Crown land, efficient removal of timber  will no longer be the priority. Instead, “the overarching priority will be the protection and enhancement of ecosystems.” Is it appropriate then, for a consortium of sawmills with WestFor’s track record and values to be granted ‘user rights’ to our Crown land when these rights come up for renewal?

Bearing in mind that an uninhabitable planet is quite inconvenient and that extinction cannot be cured, it is past time that we begin to value living forests in all their dimensions, from storing carbon to sheltering moose. Let us repair the harm we have done before it is too late. Let us take back those ‘user rights’ and use them more wisely.