Court tells Lytton First Nation not to block composter’s road

Band can’t interfere for at least three months

A judge has ordered the Lytton First Nation to refrain from blocking a road that is used to access an organic composting facility in B.C.’s southern Interior.

B.C. Supreme Court Justice Miriam Gropper has granted a temporary, three-month injunction against the band from interfering with Revolution Infrastructure Inc.’s use of Botanie Creek Road.

The company, which has operated the composting facility on the McKay Ranch since 2009, went to court after the band passed a bylaw in March restricting larger commercial trucks from using the road.

In April, the band — which was concerned about bad smells emanating from the facility and noise and pollution from truck traffic — installed a steel-and-concrete gate on the road. The gate has never been shut or locked.

Food scraps, which are received, sorted and processed at facilities operated by Revolution in the Lower Mainland, are then trucked to the composting facility for conversion into feedstock.

Revolution argued that since July 1879 the ranch has had continuous and uninterrupted access by road over what is now known as Botanie Creek Road. The band disputed the historical path of the road.

In deciding to grant an injunction, the judge concluded that on a preliminary assessment of the merits of the case, there were several serious legal issues to be tried, including whether the road passes through reserve land and to what extent.

Gropper agreed with Revolution’s assertion that if the company’s access to the road is interfered with, its business would be irreparably harmed.

The judge also agreed that the “balance of convenience” in ruling on the injunction application favoured the company, which had argued that the band had acquiesced to an alleged trespass of the road for many years without having made a claim.

“I consider that (the band) has affected the status quo in effect since Revolution has been the owner of the McKay Ranch. I consider that the applicant has shown a sufficiently strong case to meet the balance of convenience test. Factors affecting the public interest are significant.”

The judge also noted that in April, the provincial government had agreed to appoint and pay for a third party facilitator to try to resolve the outstanding issues.

“I am also of the view that the facilitation process may be successful in addressing the issues between the parties. This favours the granting of an interlocutory injunction while the discussions are allowed to occur.”

Gropper ordered that the injunction continue in effect until Nov. 30 and that the parties be allowed to return to court to address extension beyond that date. The band could not be reached for comment.