In a recent case, Tsawwassen First Nation v. Martinolich, 2026 BCSC 793, the BC Supreme Court granted a mandatory injunction requiring the leaseholder defendants to remove encroachments that extended from their leased property onto First Nations’ owned land.
This case is worth noting because:
- it confirms that continuing trespass remains a powerful way for First Nations to remedy new and historical encroachments, and
- it demonstrates how robust First Nations law (in this case, Tsawwassen First Nation (“TFN”)’s Land Act provisions re: trespass) can be used in conjunction with the common law to secure robust remedies like injunctions.
Case Details
In the Tsawwassen case, the defendants were leaseholders of a residential property owned by TFN. They were assigned the lease in 2010 pursuant to which they agreed to comply with the headlease dated June 19, 1987 (the “Headlease”).[1]
In 2021, a topographical survey revealed that: (i) a retaining wall, concrete pad, and fill extended onto the adjacent bluff (also owned by TFN per the Tsawwassen Final Agreement); and (ii) the defendants extended the retaining wall without authorization in 2014 (together, the “Encroachments”).[2]
TFN issued a trespass notice pursuant to its Land Act requiring that the defendants remove the Encroachments and stabilize the land within six months. Despite multiple extensions, the defendants failed to comply.[3]
The Court, having concluded the Encroachments were a trespass at common law and per the TFN’s Land Act, granted a mandatory injunction requiring the defendants to remove the Encroachments at their expense. While normally an exceptional remedy, the Court emphasized that injunctive relief is strongly favoured in cases involving interference with property rights—particularly trespass.[4]
The Court also found that the defendants breached their Headlease by extending the retaining wall without first obtaining the required approvals and professional reviews.[5] The Court held that the extension was not a “repair” but a substantial addition that went beyond their obligation to maintain the leased property in a good and tenantable state.[6]
Additionally, the Court rejected the defendants’ arguments that:
- some of the Encroachments predated their leasehold interest or that TFN knew of certain structures earlier; and
- the “unconditional consent and approval” provision in the assignment, or the defences of “leave and licence” or acquiescence given TFN did not have full knowledge of its legal rights and therefore could not provide consent.[7]
The Claim survived a limitations challenge
Ordinarily, the general rule is that proceedings must be brought within a prescribed period (often two years). However, the Court found that neither the trespass nor the breach of Headlease claim was statute-barred.
Regarding trespass, the Court confirmed that trespass is a continuing tort. An encroachment creates a new trespass and resets the limitation period each day it remains. Once TFN notified the defendants of the Encroachments, their ongoing failure to remove them amounted to an intentional interference with TFN’s possessory rights and was therefore a trespass at common law and pursuant to TFN’s Land Act.[8]
Similarly, ongoing contractual obligations—such as compliance with applicable laws—can give rise to continuing breaches. In this case, the Court appeared to accept that the Headlease’s requirement to comply with applicable laws and regulation was a continuing obligation.[9] Helpful to the Court’s determination was the principle of discoverability. The Court held that although TFN knew the structures existed, it did not know (i.e. discover) they encroached onto TFN lands until the 2021 survey.[10]
Key takeaways:
- Continuing trespass remains a powerful claim for First Nations
Trespass protects possessory rights and prevents unauthorized intrusions. It is actionable without proof of damage, does not depend on motive, and “mistake” is not a defence.[11] The rolling limitation period and availability of injunctive relief make continuing trespass particularly useful in the First Nations context, where jurisdictional complexity may delay discovery and enforcement. It is also highly relevant and applicable to environmental matters as a tool to stop and resolve unauthorized dumping, fill placement, contaminant migration, or other ongoing intrusions onto land.
- Parallel legal regimes can offer First Nations more avenues for recovery
Even where First Nation jurisdiction is affirmed, it continues to operate alongside the common law and contractual rights. First Nations should consider all legal tools to enhance available remedies. In this case, while TFN’s legislation established trespass, the common law facilitated a robust remedy—a mandatory injunction requiring the defendants to remove the Encroachments at their own expense. Additionally, it’s worth noting that the Headlease’s indemnity provision enabled TFN to recover greater legal costs (i.e. on solicitor-client basis).[12]
How Woodward & Co. Lawyers LLP Can Support
Woodward & Co. Lawyers LLP works closely with Indigenous Nations across Canada on a wide array of matters, including lands, governance, and contaminated sites. If your Nation is concerned with an unauthorized intrusion on to its lands or wants to know more about navigating parallel legal regimes, a Woodward and Company lawyer can help.
[1] Tsawwassen First Nation v. Martinolich, 2026 BCSC 793 [Martinolich] paras 1, 2, 46, 51 and 74.
[2] Ibid para 56.
[3] Ibid paras 18-20.
[4] Ibid paras 27, 28, 29, 39, 100 and 127.
[5] Ibid paras 78, 88-92.
[6] Ibid para 90.
[7] Ibid paras 34, 54, 62-65.
[8] Ibid para 37.
[9] Ibid paras 82 and 83.
[10] Ibid paras 34, 44, 64 and 125.
[11] Ibid paras 22-26, citing Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124 paras 122, 128, 130 and 132.
[12] Martinolich paras 120 and 127.