Category: Court Decisions

Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) [2003] B.C.S.C. 1422

Date Issued: 

Heiltsuk Tribal Council and Heiltsuk Hemas Society,

on their own behalf and on behalf of all other members

of the Heiltsuk Nation

Petitioners

v.

 

Her Majesty the Queen in Right of British Columbia

as represented by the Minister of Sustainable Resource

Management, Land and Water British Columbia Inc.,

The Deputy Comptroller of Water Rights, The Regional

Water Manager (Cariboo Region) and Omega Salmon Group Ltd.

Respondents

 

Indexed as:  Heiltsuk Tribal Council v. British Columbia (Ministry of Sustainable Resource Management)

Neutral citation:  2003 BCSC 1422.

2003:  June 16-20, 23-26.

Present:  E.P. Murphy, A. McCue, K.E. Gillese, E.K. Christie, C.F. Willms, K.G. O’Callaghan

Before: The Honourable Madam Justice Gerow

 

[1] The petitioners apply pursuant to Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to set aside the decisions of the Minister of Sustainable Resource Management (the Minister), the Deputy Comptroller of Water Rights, the Regional Water Manager (Cariboo Region) and Land and Water British Columbia (LWBC)(collectively, the decision makers) with respect to:

• Conditional water licence 116890 for Martin Lake dated December 19, 2001 (the Martin Lake water licence 2001) and the replacement licence no. 117538 dated August 29, 2002 (the Martin Lake water licence 2002);

• A licence of occupation to operate a commercial fish hatchery, dated January 15, 2002 (the hatchery licence of occupation);

• A licence of occupation for a salt water intake pipe, effluent pipe and general dock, dated October 1, 2002 (the dock and pipe licence of occupation); and

• Conditional water licence 116629 for Link River, dated November 18, 2002 (the Link River water licence).

(collectively, the licences)

[2] The licences were issued to Omega Salmon Group Ltd. (Omega) and, together with other licences issued to it, allow Omega to operate a land based fish hatchery in Ocean Falls, B.C.

[3] The Heiltsuk claim aboriginal rights and title to a large area of land encompassing approximately 33,735 square kilometres. The land being claimed includes the 8.83 hectares or .08 square kilometres granted to Omega under the hatchery licence of occupation and the dock and pipe licence of occupation.

[4] The land is described in the two licences as:

That part or those parts of the following described land shown outlined by bold line on the schedule attached to the Industrial Licence:
Those unalienated and unencumbered portions of District Lots 31 and 104; together with unsurveyed foreshore or land covered by water being part of the bed of Link River, all within Range 3 Coast District, containing 5.88 hectares more or less,
Except for those parts of the land that, on the January 15, 2002 Date, consisted of highways (as defined in the Highway Act) and land covered by water;

And

That part or those parts of the following described land shown outlined by bold line on the schedule attached to the Utility Licence:
That part of District Lot 847, together with unsurveyed foreshore or land covered by water being part of the bed of Cousins Inlet, Range 3, Cost District, containing 2.95 hectares, more or less,
Except for those parts of the land that, on October 1, 2002, consisted of highways (as defined by the Highway Act).

(hereinafter the “land”)

[5] Much of the land impacted by the hatchery licence of occupation and the dock and pipe licence of occupation is filled land created prior to the construction of a pulp mill which was operated in Ocean Falls in the 1900s.

[6] The Heiltsuk also claim aboriginal title and rights to the water in their claimed territory and as a result take the position that they were owed a duty of consultation prior to the issuance of both the Martin Lake water licences and the Link Lake water licence.

[7] The Martin Lake water licence 2002 allows Omega to divert up to 100 cubic feet per second of water from Martin Lake to Link Lake. The Link Lake water licence authorizes the diversion of up to 200 cubic feet per second of water from the Link River to the hatchery. The water which is diverted will pass through the hatchery and then be discharged to Cousins Inlet. If not diverted the water will spill over the existing dam into Cousins Inlet.

[8] The Heiltsuk are seeking the following orders and declarations:

• A declaration that the decision makers had a duty to consult with and accommodate the Heiltsuk’s interests and concerns before issuing the licences and that the decision makers breached their duties.

• A declaration that Omega had a duty to consult with and accommodate the interests and concerns of the Heiltsuk and that Omega breached that duty.

• A declaration that the licences issued by the decision makers are of no force and effect and an order quashing and setting aside the licences.

• An order in the nature of a prohibition barring the issuance of any approvals, permits or other authorizations relating to the proposed Atlantic salmon hatchery development;

• An interim or interlocutory injunction prohibiting Omega from operating the hatchery until either a final disposition of the proceedings or order of the court.

[9] Both the petitioners and Omega object to portions of the affidavit material which has been filed. I agree with both the petitioners and Omega that many statements in the affidavits are irrelevant or inadmissible hearsay, opinion or argument. I am not going to deal with each objection raised, however I have disregarded the statements which are objectionable. In reaching my conclusions, I have relied on direct evidence and the oral histories contained in the affidavit material.

[10] The issues to be determined are:

• Have the Heiltsuk established a prima facie claim of aboriginal title or rights in respect of the lands and waters covered by the licences?

• Have the Heiltsuk established a prima facie infringement of the aboriginal title or rights which they claim?

• Was a duty of consultation and accommodation owed to the Heiltsuk by the decisions makers before they made their decisions to issue the licences and, if so, did they fulfill those duties?

• Was a duty of consultation and accommodation owed by Omega to the Heiltsuk and, if so, did Omega fulfill its duty?

• Is this an appropriate case for the court to exercise judicial review?

• If there were breaches of duty by the decisions makers or Omega what are the appropriate remedies?

CHRONOLOGY REGARDING ISSUANCE OF LICENCES

[11] Omega began the application process in September 2001.

[12] The Heiltsuk became aware of a proposed salmon hatchery to be located at Ocean Falls in November 2001. Following the meeting at which they were advised by LWBC of the proposed salmon hatchery the Heiltsuk met with Omega in November 2001.

[13] On December 17, 2001 Mr. Williams, the Aquaculture Manager at LWBC, sent an email to the Heiltsuk in response to an inquiry from the Heiltsuk as to why there had been no referral regarding the proposed Omega hatchery. He advised the Heiltsuk that Omega had applied for a licence of occupation to construct a fish hatchery on the old industrial lands in Ocean Falls. He further advised that the Province was not sending out any referrals as the land was Crown granted in the past and had been developed. As well, the land was mainly filled foreshore and that, following the Aboriginal Consultation Guidelines, referrals were not required. However, Mr. Williams was aware that the Heiltsuk had at that point had one meeting and another planned with Omega. Omega had been told to document any feedback from the Heiltsuk in the meetings and provide it to LWBC. Mr. Williams further advised that the Martin Lake water licence 2001 was being assigned to Omega.

[14] An Aboriginal Interest Assessment Report was prepared December 19, 2001 by LWBC and a copy was provided to the Heiltsuk.

[15] The Martin Lake water licence 2001 was issued to Omega on December 19, 2001. The licence had originally been granted to Pacific Mills Ltd., who ran a pulp and paper mill on the site, in 1929. The Martin Lake water licence 2002 was issued to Omega on August 29, 2002 relocating the diversion. At the time the Martin Lake water licence 2002 was issued a report was prepared which stated that no referral was required as this was a minor modification to an existing licence.

[16] A letter was sent to Heiltsuk by LWBC regarding the decision not to consult on December 24, 2001 with an invitation to discuss the Aboriginal Interest Assessment report. The letter explained why a referral had not been made and advised the Heiltsuk that they would be kept apprised as the review process continued.

[17] The explanations given as to why the Province did not feel it was necessary to refer the issue to the Heiltsuk were:

• The site had been privately owned for nearly 80 years;

• The core areas of the town and millsite had been extensively disturbed and developed;

• The nature of the land use over that time effectively precluded the exercise of any aboriginal traditional uses;

• A significant portion of the application area was filled foreshore, i.e. land which did not exist prior to the development of the mill and town;

• There were extensive areas of relatively undisturbed vacant Crown land in the area surrounding Ocean Falls;

• Impacts which occurred were at the time of the original development of the site and any aboriginal issues associated with past activity on the land could not be resolved through consultation about the current land use proposal.

[18] Heiltsuk representatives visited another hatchery with Omega in December 2001. Following the meeting Omega advised the Heiltsuk that it wanted to continue an ongoing dialog with the Heiltsuk people.

[19] On January 7, 2001 a letter was sent by the Heiltsuk to LWBC expressing disappointment that there would be no referral and requesting that the Province reconsider its position.

[20] The Heiltsuk attended an open house at Bella Bella with Omega on January 9, 2002 where the Heiltsuk expressed their concerns. The Heiltsuk advised that they did not consider the meeting to be consultation.

[21] On January 11, 2002 Omega sent a letter to Heiltsuk expressing a willingness to work with the Heiltsuk and enter into a partnership with the Heiltsuk.

[22] On January 16, 2002 LWBC sent a letter to the Heiltsuk expressing that although there had been no referral, staff had communicated with members of the Heiltsuk regarding the proposed project and an information package was sent. LWBC advised the Heiltsuk it had requested Omega meet with the Heiltsuk, and understood that Omega had expressed a willingness to enter into a commercial arrangement with the Heiltsuk. LWBC made an offer to assist the Heiltsuk in preparing an application for other lands in the vicinity which could be utilized for the Heiltsuk proposed salmon enhancement facility and in exploring potential opportunities to maximize the benefits from the Omega hatchery. As well, the Heiltsuk were advised that the provincial agencies responsible would ensure that the hatchery was in compliance with all regulatory requirements relating to the Heiltsuk’s concerns about the potential for the introduction of diseases or chemical effluent into the marine environment and the escape of Atlantic salmon.

[23] Memos were sent by Omega to the Heiltsuk providing information on January 15 and 16, 2002 which responded to concerns expressed by the Heiltsuk.

[24] The hatchery licence of occupation was issued to Omega on January 15, 2002.

[25] LWBC sent a referral package to the Heiltsuk on April 10, 2002 with respect to the dock and pipe licence of occupation.

[26] On May 7, 2002 the Heiltsuk sent a letter expressing concerns regarding effluent, clean up of the contaminated site and Atlantic salmon escapes. As well, the Heiltsuk expressed concern that the dock and pipe licence of occupation and project as a whole would impact the Heiltsuk’s ability to site a village and a wild salmon enhancement facility in Ocean Falls.

[27] A meeting was held on May 30, 2002 between representatives of the Heiltsuk, Omega and the Province where details of the project were discussed and the time line for approvals and construction of the project was provided to the Heiltsuk.

[28] Omega sent a follow up letter and information package to the Heiltsuk on June 11, 2002 addressing concerns raised by the Heiltsuk.

[29] Omega sent a letter and video to the Heiltsuk showing various underwater and foreshore video clips from Omega’s habitat survey on June 21, 2002 in response to some of the questions raised by the Heiltsuk.

[30] The Dock and Pipe licence of occupation was issued to Omega on October 1, 2002.

[31] A referral package was sent by LWBC to the Heiltsuk on August 28, 2002 regarding the Link River water licence.

[32] The Heiltsuk responded to the referral on October 15, 2002 outlining their aboriginal claims to Ocean Falls.

[33] A Report for Water Act decision was prepared November 15, 2002.

[34] On November 18, 2002 a letter was sent to the Heiltsuk attaching a copy of the Link River water licence issued to Omega on November 18, 2002.

DUTY OF CONSULTATION

[35] In the cases dealing with the issue of consultation the courts have considered the factual context, including:

• whether there is a general right to occupy lands or whether there is a right to engage in an activity;

• whether there is or has been an infringement; and

• if there is or has been an infringement, whether there is any justification for the infringement.

[36] It is in the final stage of the analysis, i.e., whether there is any justification for the infringement, that the courts have considered whether the Crown has met its fiduciary and constitutional duty of consultation and whether there has been an attempt to accommodate the First Nations. R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, ¶ 64 – 72 and ¶ 81 – 82, R. v. Adams, 1996 CanLII 169 (SCC), [1996] 3 S.C.R. 101, ¶ 46 and 51 – 52.

[37] In Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, Lamer C.J. discussed the issue of consultation in the context of the justification of an infringement of aboriginal title and stated at ¶ 168:

There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal rights.

[38] In Haida Nation v. British Columbia (Minister of Forests) 2002 BCCA 147 (CanLII) (Haida No. 1), Lambert J.A. recognized a three stage analysis in determining whether the Crown has breached its duty to consult consisting of:

1. consideration of whether aboriginal title or rights have been established on a balance of probabilities and a decision regarding the nature and scope of the title and rights;

2. determination of whether the particular title or rights have been infringed by a specific action; and

3. a consideration of whether the Crown has discharged its onus to show justification, including whether it has fulfilled its obligation to consult.

(¶ 46)

[39] Lambert J.A. acknowledged that although both the consultation and the infringement are likely to precede the determination of the aboriginal rights and title, that when determining if there has been a breach of duty the Court must first look at whether the First Nation has proved the title and then whether there has been an infringement of the right. Once those elements are established the onus shifts to the Crown to establish that there was justification for the infringement both before and at the time the infringement occurred. (¶ 46)

[40] In Haida No. 1 the Court of Appeal held that due to the circumstances surrounding the Minister’s consent to the transfer of tenure from MacMillan Bloedel to Weyerhaeuser, the Minister had a legally enforceable duty to consult with respect to the transfer. The main issue in Haida No. 1 was whether any consultation had taken place in the face of a good prima facie case of infringement of aboriginal rights to red cedar.

[41] In TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 2000 CanLII 5713 (ON CA), 186 D.L.R. (4th) 403 (Ont. C.A.), the Court held that it was only after a First Nation has established an infringement of an existing aboriginal or treaty right that the duty of the Crown to consult with the First Nation was a factor for the Court to consider in the justificatory phase of the proceeding. Borins J.A. stated at ¶ 120:

As the decisions of the Supreme Court illustrate, what triggers a consideration of the Crown’s duty to consult is a showing by the First Nation of a violation of an existing Aboriginal or treaty right recognized and affirmed by s. 35(1) of the Constitution Act, 1982. It is at this stage of the proceeding that the Crown is required to address whether it has fulfilled its duty to consult with a First Nation if it intends to justify the constitutionality of its action.
[42] In Taku River Tlingit First Nation v. Tulsequah Chief Mine Project 2002 BCCA 59 (CanLII), it was argued that aboriginal right or title had to be established before there was duty to consult with the aboriginal peoples. In rejecting the argument, Rowles J.A. held that while the onus of proving a prima facie infringement of an aboriginal right or title is on the group challenging the legislation (or in this case the decisions of the statutory decision makers), it did not follow that until there was court ruling the right did not exist. (¶ 183)

[43] In Taku, the court accepted as findings of fact that the proposed road would impose serious impacts on the resources used by the Tinglit, that the Tinglits were not adequately prepared to handle the predicted impacts and that there was no plausible mitigation or compensation possible. The project had not been commenced and it was found that the proposed road would have a profound impact on the Tinglit’s aboriginal way of life and their ability to sustain it. The Tinglit’s were willing to participate in the environmental review process to have their needs accommodated but the project approval certificate had been issued without their concerns being met. (¶ 132 and 202)

[44] In the circumstances, the court felt it was appropriate to dismiss the appeal of the order quashing the certificate and remit the matter to the Ministers to consider afresh the issuance of the project approval certificate. In her dissent, Southin J.A. referred to the fact that the right to be consulted is not a right of veto and was of the view that to remit the matter back to the Ministers would prolong the agony for both the proponent of the project and the Tinglit. (¶ 100 and 101)

[45] Although the Court in Haida No. 1 agreed that the requirement to consult could arise prior to the aboriginal right or title having been established in court proceedings, and that the Crown and Weyerhaeuser were in breach of an enforceable duty to consult and to seek accommodation with the Haida, it did not necessarily follow that the replacement of the licence was invalid. The Court was not prepared to make a finding regarding the validity, invalidity or partial validity of the transfer of the licence but was of the view that it was a matter that could be more readily determined after the extent of the infringement of title and rights had been determined. (¶ 58 and 59)

[46] Lambert J.A. stated that the courts have considerable discretion in shaping the appropriate remedy in a judicial review proceeding before the final determination of the title and rights of the aboriginal people and that the aim of the remedy should be to protect the parties pending the final determination of the nature and scope of title and rights. At the time of the final determination of rights and title the issues of the nature and extent of the infringement and the issue of justification could be dealt with. (¶ 53 and 54)

HAVE THE HEILTSUK ESTABLISHED A PRIMA FACIE CLAIM OF ABORIGINAL TITLE OR RIGHTS IN RESPECT OF THE LANDS AND WATERS COVERED BY THE LICENCE?

[47] The Heiltsuk advance claims based on aboriginal rights and title that have not yet been judicially determined. I am of the view that in interim proceedings of this type, I am not in a position to do more than make preliminary general assessments of the strength of the prima facie claims and potential infringement.

[48] I agree with Tysoe J.’s comment in Gitxsan and other First Nations v. British Columbia (Minister of Forests), 2002 BCSC 1701 (CanLII) that the Court should avoid making detailed evidentiary findings on affidavit material unless it is essential to do so. Critical findings of admissibility or assessing the weight to be given to oral histories should be left to the trial judge responsible for making the final determinations of the claims of rights or title. (¶ 70)

[49] The Heiltsuk’s evidence is that they have been engaged in treaty negotiations with the Province regarding their land claim since 1981 when they filed a Statement of Comprehensive Aboriginal Rights Claim. In 1993, the Heiltsuk filed a Statement of Intent with the B.C. Treaty Commission and were accepted into treaty negotiations with the Provincial and Federal government. Throughout that time, the Heiltsuk have continuously asserted title over the land, including the area described in the licences.

[50] As well, the Heiltsuk have established an aboriginal right to harvest herring spawn on kelp. R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723.

[51] The Heiltsuk argue that based on the affidavit material they have a strong or good prima facie claim of aboriginal rights or title with respect to their territory including Ocean Falls.

[52] Given that I am of the view it is not appropriate for me to assess the weight to be given to the oral history or make findings of admissibility on the basis of the affidavit material, I have accepted the evidence contained in the oral histories at face value for the purpose of determining if the Heiltsuk have a prima facie claim of aboriginal rights and title to Ocean Falls.

[53] The evidence contained in the affidavit material regarding the oral history is that one of the main winter villages of the Heiltsuk was located at Ocean Falls. The Heiltsuk moved away around the time the pulp mill was constructed in 1909. Approximately 300 – 400 Heiltsuk lived in Ocean Falls prior to industrialization in the early 1900s. The area was a good village site in the winter because it was sheltered from the winds and open waters of the outer coast. Link Lake provided fresh water and Cousins Inlet provided seafood including halibut, ling cod, rock cod, spring salmon, crabs, prawns and herring. The evidence is that the Heiltsuk were forced to relocate from the area when the pulp mill was built.

[54] Although the Heiltsuk assert that the village of Tuxvnaq or Duxwana’ka was located in Ocean Falls prior to the establishment of the pulp mill, there is also evidence that in the early 1900s there may have only been one First Nations individual living at Ocean Falls. The survey map prepared at the time of the original Crown grant in 1901 shows one Indian house near the tide flats with an Indian trail leading to it.

[55] There is little direct evidence and no documentary evidence of a forced relocation of the Heiltsuk at the time the pulp mill was constructed. There is no evidence in support of a forced relocation in the Bella Bella story, a book which was referred to by both the Heiltsuk and the Crown. As well, there has been no mention of a forced relocation in the materials filed by the Heiltsuk in the treaty negotiations.

[56] “… [C]laims must be proven on the basis of cogent evidence establishing their validity on the balance of probabilities. Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim.” Mitchell v. M.R.N., [2001] S.C.R. 911 at ¶ 51.

[57] Chief Justice McLachlin was clear that Mitchell did not impose upon aboriginal claimants the requirement of producing indisputable or conclusive evidence from pre-contact times. However, she observed that there was a “distinction between sensitively applying evidentiary principles and straining those principles beyond reason”. In Gladstone, for example, the recognition of an aboriginal right to engage in trading herring roe on kelp was based on an indisputable historical and anthropological record corroborated by written documentation. The Court in Gladstone concluded that there was clear evidence from which it could be inferred that the Heiltsuk were involved in trading herring roe on kelp prior to contact. (¶ 52)

[58] I am of the view that there is insufficient evidence before me to make a finding that the Heiltsuk were forcibly removed from Ocean Falls and I decline to make any finding in that regard.

[59] There is evidence that another First Nation, the Nuxalk Nation, asserts that Ocean Falls, including the land impacted by the licences, is within its territorial boundaries. The Nuxalk have put the Heiltsuk, Omega and the Crown on notice of their claim. The Nuxalk oppose the construction of the hatchery and have advised both Omega and the Crown that they will not permit salmon aquaculture in their territory.

[60] Although the petitioners argue that I should ignore the claims of the Nuxalk, I am of the view that making any findings regarding the Heiltsuk claim of rights and title which could potentially impact the overlapping claim of the Nuxalk in this proceeding is inappropriate.

[61] As set out in Delmaguukw, there are a number of criteria that must be satisfied by the group asserting aboriginal title including exclusive occupancy at the time of sovereignty:

Were it possible to prove title without demonstrating exclusive occupation, the result would be absurd, because it would be possible for more than one aboriginal nation to have aboriginal title over the same piece of land, and then for all of them to attempt to assert the right to exclusive use and occupation over it.

(¶ 155)

[62] Although Lamer C.J. recognizes the possibility of a finding of joint title shared between two or more aboriginal nations, which would involve the right to exclude others except with whom possession is shared, no claim to joint title has been asserted by the Heiltsuk and the Nuxalk are not represented on this application. It is not possible therefore to assess the relative strengths of the two competing claims to the land or what impact the two claims have on each other.

[63] Based on the evidence before me of the overlapping claims, the only conclusion I have been able to reach is that both Heiltsuk and Nuxalk assert aboriginal title over the land, but I am unable to determine whether either has a good prima facie case of aboriginal title.

[64] However, the oral history of the Heiltsuk, which I accept at face value for the purpose of this application, is that the area of Ocean Falls was used as a winter village and the Heiltsuk have fished in the area. I find, therefore, that the Heiltsuk have a strong prima facie case of aboriginal rights to fish in the area and to non-exclusive use of the land. The Heiltsuk’s prima facie claim for aboriginal rights does not require exclusivity.

HAVE THE HEILTSUK SHOWN AN INFRINGEMENT OF AN ABORIGINAL RIGHT?

[65] The Heiltsuk take the position that the licences infringe their claims for aboriginal rights to the land impacted by the licences.

[66] In Gladstone, the Court refers to the Sparrow test for determining whether the government has infringed aboriginal rights which involves:

• asking whether the legislation, or in this case the decisions to grant the licences, has the effect of interfering with an existing aboriginal right; and

• determining whether the interference was unreasonable, imposed undue hardship, or denied the right to the holders of their preferred means of exercising the right.

[67] Even if the answer to one of the questions is no, that does not prevent the court from finding that a right has been infringed, rather it will be a factor for the court to consider in determining whether there has been a prima facie infringement. The onus of proving a prima facie infringement of rights lies on the Heiltsuk, i.e., the challengers of the decisions. Gladstone, ¶ 39 and 43.

[68] Because aboriginal rights are not absolute and do not exist in a vacuum, claimants must assert both a right and the infringement of the right. Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539 (CanLII), ¶ 18 and 19, Delgamuukw, ¶ 160, 162 and 165.

[69] In Cheslatta, the Court of Appeal referred to R. v. Nikal 1996 CanLII 245 (SCC), [1996], 1 S.C.R. 1013 for the proposition that aboriginal rights are like all other rights recognized by our legal system. The rights which are exercised by either a group or individual involve the balancing of those rights with the recognized interests of others. Any declaration regarding an aboriginal right would not be absolute in that it may be subject to infringement or restriction by government where such infringement is not unreasonable and can be justified. (¶ 18 and 19)

[70] The Heiltsuk have raised concerns that the issuances of the licences adversely affect their fishing rights and their non exclusive use of the land.

[71] They say the prima facie infringements regarding their right to the use of the land are:

• the hatchery licence of occupation allowing Omega to operate a hatchery is not their chosen use of the land;

• that it will prevent them from utilizing the area as a village site in the future;

• that the diversion of water will result in an inadequate amount of water for the future village;

• the hatchery will impact the availability of electricity to service a village; and

• the Heiltsuk do not support Atlantic salmon aquaculture, and take the position that their right to self government is irreparably harmed by the imposition of the hatchery in a territory over which they have asserted a claim.

[72] The Heiltsuk say the prima facie infringements regarding their fishing rights are:

• That the discharge from the factory into Cousins Inlet will cause pollution and disease thereby impacting the Heiltsuk fishing rights in the area;

• The construction of the facility has potentially caused pollution as a result of hazardous wastes, in particular asbestos, which was disturbed during construction; and

• The fish reared in the hatchery may escape from the hatchery, or alternatively, from fish farms outside Heiltsuk claimed waters and enter Heiltsuk claimed waters thereby impacting their fishing rights.

(i) Have the Heiltsuk established a prima facie infringement of their right to non exclusive use of the land?

[73] The Heiltsuk argue that this case falls within the cases referred to in Delgamuukw which may require the full consent of the aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (¶ 168) They argue that the Province’s actions authorize aquaculture over Heiltsuk title through the regulation of farmed fish and therefore the Province should have obtained the consent of the Heiltsuk.

[74] I do not agree that the issuance of the licences in question is analogous to the type of situation contemplated in Delgamuukw which would require the full consent of the aboriginal nation. There is no evidence that the Province by issuing the four licences is impacting the right of the Heiltsuk to hunt or fish in the area.

[75] There is no evidence that the Heiltsuk will not be able to locate a village there because of the licences of occupation. The hatchery in issue is a land based facility. The licences of occupation over the .08 square kilometres are for 10 years. Most of the land on which the hatchery is located is filled land created prior to the construction of the pulp mill. The site was a contaminated industrial site which has required significant expenditure by Omega to clean up. There is evidence that Omega has removed 700 tons of industrial debris from the site and plans to continue a process of remediation of the site in co-operation with LWBC.

[76] The Heiltsuk have not established that the issuances of the licences have resulted in a prima facie infringement to their right to non exclusive use of the land.

[77] There is a large area adjacent to the pulp mill site where the town of Ocean Falls was located which had a population of 4,000 people that could be used as a village site. The total population has declined to less than 100 since the closure of the pulp mill 20 years ago.

[78] The diversion of water is not new. The original licence to divert water from Martin Lake was issued 70 years ago and there was sufficient water and electricity to service the town of Ocean Falls.

[79] There is no evidence that the issuance of the licences allowing construction and operation of the hatchery will impact the Heiltsuk’s ability to pursue their negotiations with the Province regarding their claim of aboriginal title or locate a village there in the event they decide to do so.

[80] As well, there is no evidence that the licences will prevent the Heiltsuk from establishing a wild salmon enhancement facility in the future.

[81] With respect to the Heiltsuk’s assertion about self government, there is no evidence to support their position that the hatchery will cause irreparable harm. On the contrary, the evidence is that Omega has cleaned up industrial waste from the site and is committed to continuing rehabilitation of a contaminated site. The licences are of fixed duration.

[82] The right to self govern is, in my view, inextricably bound up in the Heiltsuk’s aboriginal claim to title and their right to use the land for their preferred use, i.e., the Heiltsuk want to decide what the land will be used for and the ability to veto uses of the land which do not accord with their philosophy. The Heiltsuk’s complaint in this regard is that they are opposed to Atlantic salmon aquaculture and do not want any Atlantic salmon aquaculture in their territory.

[83] The necessary factual basis on which to determine whether the claim for self government has been made out is lacking. As set out above, the Nuxalk Nation is also claiming title to the same area and is not before me on this application. A determination regarding the Heiltsuk’s right to self govern in the area would by necessity impact the Nuxalk.

[84] There is no evidence that the construction and operation of the hatchery pursuant to the licences will impact the Heiltsuk’s ability to negotiate or establish the right to self govern in the area in the future. There is no evidence that the construction and operation of the hatchery either has or will cause irreparable harm whereby the Heiltsuk will not be able to utilize the land as they choose in the future.

[85] It is not within the ambit of this application to deal with the many difficult issues which would have to be addressed in order to make a determination of the Heiltsuk’s right to self government beyond the finding that, in my view, there is no evidence to support the Heiltsuk argument that their asserted right to self govern, i.e., the right of the Heiltsuk to make decisions as to the use of the land in the event that they establish their aboriginal title in the future, has been infringed by the issuance of the licences.

[86] Accordingly, I find that the Heiltsuk have not discharged their burden of establishing a prima facie infringement of their aboriginal rights to non-exclusive use of the land.

(ii) Have the Heiltsuk established a prima facie infringement or their aboriginal right to fish?

[87] In Nikal the Supreme Court of Canada, in the course of finding that the bare requirement for a licence did not constitute an infringement of aboriginal fishing rights, rejected the proposition that any government action which affects or interferes with the exercise of aboriginal rights constitutes a prima facie infringement of the right. The Court held that the government must ultimately be able to balance competing interests. (¶ 91-94)

[88] In Gladstone, Lamer C.J. sets out that the threshold requirement for infringement and states that legislation infringes an aboriginal right when it “clearly impinges” upon the rights. (¶ 53 and 151) An infringement has been defined “as any real interference with or diminuation of the right.” Mikisew Cree First Nation v. Canada, 2001 FCT 1426 at ¶ 104.

[89] The Heiltsuk argue that their right to fish could be infringed by discharge of deleterious substances or disease into the marine environment during the construction or operation of the hatchery, the diversion of water and the potential impact of escaped Atlantic salmon on the wild native stock.

[90] There is evidence from Omega’s expert that the construction of the facility will not impact the marine habitat in the area and that the discharge from the hatchery during operation will not pose a threat to marine life.

[91] The Minister of Fisheries and Oceans confirmed on August 16, 2002 that “a harmful alteration, disruption, or destruction (HADD) of fish habitat will not occur as a result of the construction and operation of this facility as proposed.” The Regional Waste Manager, pursuant to the Waste Management Act, R.S.B.C. 1996, c. 482 and regulations confirmed on April 29, 2002 that the hatchery was a regulated site under the Land-Based Fin Fish Waste Control Regulation, B.C. Regulation. 68/94. Neither the Federal Minister of Fisheries nor the Provincial Minister of Water, Land and Air Protection are parties to this petition.

[92] Omega’s expert report was provided to the Heiltsuk and he was in attendance at a meeting with the Heiltsuk in May 2002 in Bella Bella to provide information.

[93] The Heiltsuk presented no evidence that the effluent or construction will impact the marine environment in an adverse way thereby impacting the Heiltsuk’s fishing rights in the area. Although they have presented evidence that asbestos may have been present on the site, the Heiltsuk have presented no evidence that any asbestos or other deleterious substances leached into the marine environment during construction of the hatchery.

[94] The Heiltsuk have expressed concern regarding the possibility of escape of smolts from the hatchery which could adversely impact the wild Pacific salmon in the area. Omega explained that the discharge pipe will have a triple screening system, as required by Provincial and Federal regulations, in order to prevent the escape of fish from its tanks. The likelihood of escapes from a land based facility is remote. The screening criteria and requirements to prevent smolts being introduced into the ocean are governed by the terms of the aquaculture licensing tenure, not by the licences in issue in this application. A federal permit is required for the transporting of smolts. The evidence is that the smolts will be removed by boat from the area.

[95] In my view, the Heiltsuk’s concern about potential escape of salmon from fish farms outside Heiltsuk claimed territory is not an issue before the Court. The issues before me are whether the decision makers erred in granting the four licences to Omega, not whether fish farms, aquatic or land based, should exist in B.C.

[96] The Heiltsuk also argue that the diversion of water could possibly infringe their fishing rights in the area. The original Martin Lake water licence was granted over 70 years and there is no evidence that the diversion of water allowed by it has infringed the Heiltsuk’s asserted right to fish in the area. There is no evidence that the water diverted pursuant to the Link River water licence infringes the fishing rights in the area. The water, although diverted through the hatchery, eventually flows into Cousins Inlet and as a result there is no impact on the volume of water in the Inlet.

[97] On the evidence before me, I find that the Heiltsuk have not discharged their burden of establishing a prima facie infringement of the aboriginal right to fish in the area of Ocean Falls.

IS THERE A DUTY TO CONSULT AND, IF SO, HAS THERE BEEN CONSULTATION?

[98] The Crown has acknowledged that it has a duty to consult with the Heiltsuk regarding any licences it issues to Omega. This is a change of position from when the initial licence, the Martin Lake water licence 2001, was granted to Omega at which time the Crown took the position that it did not need to consult with the Heiltsuk.

[99] In light of the Crown’s concession that it has the duty to consult with the Heiltsuk regarding issuance of the licences, I am granting the order sought by the Heiltsuk that the Crown has a duty to consult with the Heiltsuk regarding the licences.

[100] The Heiltsuk also take the position that Omega owes them a duty of consultation. While not making a formal concession that it owes a duty to consult to the Heiltsuk, Omega has been clear from the commencement of the project that it is willing to consult with the Heiltsuk and says that it has made attempts to do so.

[101] As set out by Lamer C.J. in Delgamuukw, the duty to consult can range from a duty to discuss important decisions that will be taken in respect of lands held pursuant to aboriginal title to a requirement for the full consent of the aboriginal nation depending on the circumstances. Consultation must be in good faith and with the intention to substantially address the concerns of the aboriginal people whose lands are in issue. (¶ 168)

[102] The Crown may rely on consultation which it knows is taking place between aboriginal groups and third parties. In Kelly Lake Cree Nation v. Ministry of Energy and Mines et al., also known as Calliou, [1999] 3 C.N.L.R. 126, (B.C.S.C.), Mr. Justice Taylor dealt with the issue:

[154] There is no question that there is a duty on government to consult with First Nation people before making decisions that will affect rights either established through litigation or recognized by government as existing….It is my view that a consideration of the question of consultation must be taken into account not only the aspects of direct consultation between First Nations people and the provincial government whose officials were charged with responsibility to decide upon these applications, but also the consultations between First Nations people and Amoco that were known to the government to have occurred. The process of consultation cannot be viewed in a vacuum and must take into account the general process by which government deals with First Nations people, including any discussions between resource developers such as Amoco and First Nations people.

[103] The Heiltsuk take the position they have not been consulted at all with respect to the issuance of the licences and that any meetings held between the Heiltsuk and the Province or between Heiltsuk and Omega do not constitute consultation.

[104] In Ryan et al. v. Fort St. James Forest District (District Manager), Smithers Registry, No. 7855 (BCSC) aff’d (1994), 40 B.C.A.C. 91, Macdonald J. dealt with the issue of whether the Gitksan could argue that there had not been adequate consultation when they had refused to participate in the process:

¶ 23 I accept that the Gitksan are entitled to be consulted in respect of such activities. They do not need the doctrine of legitimate expectations to support that right, because the Forest Act itself and the fiduciary obligations toward Native Indians discussed in Delgamuukw, establish that right beyond question. However, consultation did not work here because the Gitksan did not want it to work. The process was impeded by their persistent refusal to take part in the process unless their fundamental demands were met.

. . .

¶ 26 I accept the submission that the M.O.F. more than satisfied any duty to consult which is upon it. It was the failure of the Petitioners to avail themselves of the consultation process, except on their own terms, which lies at the heart of this dispute.

[105] A similar finding was made in Halfway River First Nation v. BC (Ministry of Forests), 1999 BCCA 470 (CanLII). On a review of the consultation which took place in that case, Mr. Justice Finch held:

There is a reciprocal duty on aboriginal peoples to express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions: see Ryan et al v. Fort St. James Forest District (District Manager) (25 January, 1994) Smithers No. 7855, affirmed (1994), 40 B.C.A.C. 91.

(¶ 161)

[106] Here the evidence is that Omega attempted to meet with and consult with the Heiltsuk:

• Omega met with the Heiltsuk in Bella Bella concerning the proposed hatchery in October 2001 just after it had commenced the application process for the licences.

• Omega met with the Heiltsuk in Campbell River in December 2001.

• Omega requested a meeting with the Heiltsuk in January 2002 and met with them in Bella Bella on January 9, 2002.

• Omega provided information to the Heiltsuk in January 2002 following the meeting in response to questions and concerns raised by the Heiltsuk.

• Omega met with the Heiltsuk in Bella Bella on May 30, 2002 and provided additional information following the meeting.

[107] During the various meetings and correspondence with Omega and the Crown the Heiltsuk have taken the position that they have zero tolerance to Atlantic salmon aquaculture and do not want the hatchery in their claimed territory, i.e., they have asserted a right to veto all Atlantic salmon aquaculture operations in their claimed territory.

[108] The Heiltsuk have remained firm in their position that they are opposed to any type of Atlantic salmon aquaculture in the territory over which they are asserting a claim. I find on the evidence that prior to the petition the Heiltsuk have been unwilling to enter into consultation regarding any type of accommodation concerning the hatchery. This is apparent both from the position they have taken throughout the meetings where they have clearly indicated that they do not consider the meetings to be consultation and from correspondence between counsel in which the Heiltsuk have continued to express the view that no consultation has taken place.

[109] The Heiltsuk have never advised the Crown or Omega of any terms upon which they would be willing to withdraw their opposition to the hatchery. Rather, they have maintained their position of zero tolerance for Atlantic fish farming in their claimed territory, including this hatchery site. It is apparent on the evidence that the Heiltsuk do not want a hatchery on the site; i.e., they want a veto with respect to what use the land can be put.

[110] In oral submissions, counsel for the Heiltsuk attempted to characterize the “zero tolerance” of the Heiltsuk as “zero tolerance to law breaking” in that Heiltsuk law prohibits any activities that damage the environment and the Heiltsuk are of the view that the hatchery has the potential to damage the environment.

[111] However, the Heiltsuk clearly advised the Crown and Omega at the various meetings and in correspondence that the Heiltsuk had zero tolerance for fish farms and this hatchery. They told Omega in January 2002 that they did not want the hatchery in Ocean Falls. As of January 2003, their stated position that the proposed hatchery was not welcome in Heiltsuk territory had not changed and they advised Omega and the Crown that they were opposed to the hatchery and wanted it removed.

[112] The conduct of the Heiltsuk both in stating their position as one of zero tolerance to Atlantic salmon aquaculture and in attending meetings at which they stated they did not consider the meeting to be consultation indicates, in my view, an unwillingness to avail themselves of the consultation process.

[113] On all of the evidence, it is clear that the Heiltsuk seek a veto over Omega’s operations. They “want it removed”. While saying they want to consult, their position has reflected an unwillingness to consult.

[114] No authority has been provided to me to support the proposition that the right to consultation carries with it a right to veto a use of the land. On the contrary, the Supreme Court of Canada has recognized that the general economic development of the Province, the protection of the environment or endangered species, as well as building infrastructure and settlement of foreign populations may justify the infringement of aboriginal title. The government is expected to consider the interests of all Canadians including the aboriginal people when considering claims that are unique to the aboriginal people. It is in the end a balancing of competing rights by the government. Any accommodation must be done in good faith and honour. When dealing with generalized claims over vast areas, the court held that accommodation was much broader than a simple matter of determining whether licences had been fairly allocated. (Delgamuukw, ¶ 165, 202, 203)

[115] Although the Crown took the position that consultation was not required regarding the initial two licences, the evidence is that the Crown changed its position and attempted to consult with the Heiltsuk prior to the issuance of the dock and pipe licence of occupation and the Link Lake water licence. There is evidence that there are ongoing opportunities for consultation and accommodation with respect to the hatchery.

[116] Additionally, the evidence is that Omega has made and is making ongoing efforts to provide information to the Heiltsuk about the impact of discharge from the hatchery on the marine environment and to consult in relation to the procedures that are in place to prevent escapes from the hatchery. Omega has expressed a willingness to work with the Heiltsuk to create jobs and establish a wild salmon enhancement facility in the area.

[117] The Heiltsuk have not disclosed their position about the terms they would find acceptable to withdraw their objection to the issuance of the licences to Omega. They have not suggested any terms that should be added to the licences or identified any specific impacts the licences have had on their rights.

[118] In the circumstances, I find that the duty of the Crown to consult was adequately discharged by the Crown and Omega. The process has been frustrated by the Heiltsuk’s failure “to avail themselves of the consultation process, except on their own terms, which lies at the heart of this dispute”. Ryan, at ¶ 6, 24 and 26.

WHETHER THIS IS AN APPROPRIATE CASE TO EXERCISE JUDICIAL REVIEW AND, IS SO, WHAT ARE THE APPROPRIATE REMEDIES?

[119] The Heiltsuk are seeking to have the licences quashed.

[120] Relief under s. 8(1) of the Judicial Review Act is discretionary.

[121] In Klahoose First Nation v. British Columbia (Minister of Forests) (1995), 1995 CanLII 1467 (BC SC), 13 B.C.L.R. (3d) 59 (S.C.), Mackenzie J., as he then was, dismissed an application by a First Nation to quash the Minister’s consent to the transfer of a tree licence. The Court assumed, without deciding, that the Minister had acted in breach of a duty to consult, but exercised its discretion to deny the petitioners their remedy under the Judicial Review Procedure Act. Mackenzie J. held that although the Band had lost the opportunity to consult before the Minister gave his consent, the consent was for the transfer of an existing tenure and no additional interests were alienated which could prejudice the Band’s aboriginal claims. (p. 65)

[122] In this case, not only is there no evidence that the Heiltsuk’s aboriginal claims are prejudiced by the issuance of the licences, but the fact that the Heiltsuk have zero tolerance for Atlantic salmon aquaculture within their claimed territory must also be considered.

[123] Although the Heiltsuk speak to their willingness to consult in regard to the licences which provide the tenures necessary for Omega to operate the hatchery this must be questioned in light of their consistently stated position to the Crown and Omega.

[124] Section 11 of the Judicial Review Procedure Act provides that an application for judicial review is not barred by the passage of time unless: “(b) the court considers that substantial prejudice and hardship will result to any other person affected by reason of delay.”

[125] The Heiltsuk were advised that Omega’s plans for construction and operation of the facility were progressing. In addition, information was provided to them about the amount of the planned investment and the timelines for completion of the project. It is clear from the Heiltsuk’s evidence that they were aware of the issuance of the hatchery licence of occupation and the lack of consultation as early as mid December 2001. At that time, no significant investment had been made by Omega.

[126] The Heiltsuk chose neither to bring the petition at the time nor to apply for an injunction prior to construction of the facility commencing in late 2002. Rather, they waited 13 months after they were aware that the Crown had determined that no consultation about the initial licences was required. The evidence is that as of March 2003 Omega had invested $9.5 million in cleaning up the site and building the facility. Further losses will be incurred if the facility cannot be operated.

[127] Given my findings that the Heiltsuk have not established that there has been a prima facie infringement of their aboriginal rights and that the Crown and Omega have attempted to consult with the Heiltsuk, it is my view this is not an appropriate case to exercise my discretion to either quash the licences or make a prohibition order barring issuance of approvals or licences relating to the hatchery.

[128] I suggest that the parties continue to consult to determine whether the hatchery may adversely affect the Heiltsuk’s rights and, if so, seek a workable accommodation with the Heiltsuk through negotiation. Given the expressed desire of Omega to continue to seek agreements with the Heiltsuk, I find that it is not necessary at this time to make an order in that regard.

CONCLUSION

[129] The following orders and declarations are made:

• The decision makers had in December 2001 and continue to have a duty to consult with the Heiltsuk in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Heiltsuk and the short and long term objectives of the Crown and Omega with respect to the licences;

• The decision makers are to provide the Heiltsuk with all relevant information reasonably requested by them;

• The parties are at liberty to apply to this Court with respect to any question relating to the duty of consultation and accommodation;

• The relief in the petition to quash the licences and for a prohibition order is adjourned generally;

• The balance of the relief sought in the petition regarding the decision makers, including the application for a declaration that the decision makers breached their duty to consult and accommodate the Heiltsuk interests and concerns is dismissed.

• The application regarding a declaration that Omega had a duty to consult and seek accommodation with the Heiltsuk is adjourned generally.

• The balance of the relief sought in the petition with respect to Omega, including,, that it was in breach of its duty to consult, is dismissed.

• As well the application for an interim or interlocutory injunction is dismissed.

[130] Given the divided success on the petition, I order that each party bear its own costs.

“L.B. Gerow, J.”
The Honourable Madam Justice L.B. Gerow

 

For complete Supreme Court Judgement

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2189/index.do

Behn v. Moulton Contracting Ltd. [2013] S.C.C. 26

Date Issued: 

Sally Behn, Susan Behn, Richard Behn, Greg Behn,

Rupert Behn, Lovey Behn, Mary Behn and George Behn

Appellants

 

v.

 

Moulton Contracting Ltd. and Her Majesty The Queen

in Right of the Province of British Columbia

Respondents

 

and

 

Attorney General of Canada, Chief Liz Logan, on behalf of 

herself and all other members of the Fort Nelson First Nation 

and the said Fort Nelson First Nation, Grand Council of the 

Crees (Eeyou Istchee)/Cree Regional Authority, Chief Sally Sam, 

Maiyoo Keyoh Society, Council of Forest Industries, Alberta 

Forest Products Association and Moose Cree First Nation

Interveners

 

Indexed as:  Behn v. Moulton Contracting Ltd.

Neutral citation: 2013 SCC 26

File No.:  34404.

2012:  December 11; 2013:  May 9.

Present:  McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

 

On Appeal from The Court of Appeal for British Columbia

                    Civil procedure — Standing — Aboriginal law — Treaty rights — Duty to consult — Individual members of Aboriginal community asserting in defence to tort action against them that issuance of logging licences breached duty to consult and treaty rights — Whether individual members have standing to assert collective rights in defence.

                    Civil procedure — Abuse of process — Motion to strike pleadings — Members of Aboriginal community blocking access to logging site and subsequently asserting in defence to tort action against them that issuance of logging licences breached duty to consult and treaty rights — Whether raising defences constituted abuse of process.

                    After the Crown had granted licences to a logging company to harvest timber in two areas on the territory of the Fort Nelson First Nation in British Columbia, a number of individuals from that First Nation erected a camp that, in effect, blocked the company’s access to the logging sites.  The company brought a tort action against the members of the Aboriginal community, who argued in their defences that the licences were void because they had been issued in breach of the constitutional duty to consult and because they violated their treaty rights.  The logging company filed a motion to strike these defences.  The courts below held that the individual members of the Aboriginal community did not have standing to assert collective rights in their defence; only the community could invoke such rights.  They also concluded that such a challenge to the validity of the licences amounted to a collateral attack or an abuse of process, as the members of the community had failed to challenge the validity of the licences when they were issued.

                    Held:  The appeal should be dismissed.

                    The duty to consult exists to protect the collective rights of Aboriginal peoples and is owed to the Aboriginal group that holds them.  While an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its Aboriginal or treaty rights, here, it does not appear from the pleadings that the First Nation authorized the community members to represent it for the purpose of contesting the legality of the licences.  Given the absence of an allegation of authorization, the members cannot assert a breach of the duty to consult on their own. 

                    Certain Aboriginal and treaty rights may have both collective and individual aspects, and it may well be that in appropriate circumstances, individual members can assert them.  Here, it might be argued that because of a connection between the rights at issue and a specific geographic location within the First Nation’s territory, the community members have a greater interest in the protection of the rights on their traditional family territory than do other members of the First Nation, and that this connection gives them a certain standing to raise the violation of their particular rights as a defence to the tort claim.  However, a definitive pronouncement in this regard cannot be made in the circumstances of this case.

                    Raising a breach of the duty to consult and of treaty rights as a defence was an abuse of process in the circumstances of this case.  Neither the First Nation nor the community members had made any attempt to legally challenge the licences when the Crown granted them.  Had they done so, the logging company would not have been led to believe that it was free to plan and start its operations.  Furthermore, by blocking access to the logging sites, the community members put the logging company in the position of having either to go to court or to forego harvesting timber after having incurred substantial costs.  To allow the members to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.  It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations.

Cases Cited

                    Referred to:  Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Van der Peet, [1996] 2 S.C.R. 507; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Sundown, [1999] 1 S.C.R. 393; R. v. Marshall, [1999] 3 S.C.R. 533; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; R. v. Power, [1994] 1 S.C.R. 601; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307.

Statutes and Regulations Cited

Constitution Act, 1982 s. 35 .

Forest Act, R.S.B.C. 1996, c. 157. 

Indian Act, R.S.C. 1985, c. I‑5 .

Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 9‑5(1).

Supreme Court Rules, B.C. Reg. 221/90 [rep.], r. 19(24). 

Treaties and Agreements

Treaty No. 8 (1899).

Authors Cited

Newman, Dwight G.  The Duty to Consult:  New Relationships with Aboriginal Peoples.  Saskatoon:  Purich, 2009.

Perell, Paul M.  “A Survey of Abuse of Process”, in Todd L. Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation 2007.  Toronto:  Thomson Carswell, 2007, 243.

Woodward, Jack.  Native Law, vol. 1.  Toronto:  Carswell, 1994 (loose‑leaf updated 2012, release 5). 

                    APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Chiasson and Frankel JJ.A.), 2011 BCCA 311, 20 B.C.L.R. (5th) 35, 309 B.C.A.C. 15, 523 W.A.C. 15, [2011] 3 C.N.L.R. 271, 335 D.L.R. (4th) 330, [2011] B.C.J. No. 1271 (QL), 2011 CarswellBC 1693, affirming a decision of Hinkson J., 2010 BCSC 506, [2010] 4 C.N.L.R. 132, [2010] B.C.J. No. 665 (QL), 2010 CarswellBC 889.  Appeal dismissed.

                    Robert J. M. Janes and Karey M. Brooks, for the appellants.

                    Charles F. Willms and Bridget Gilbride, for the respondent Moulton Contracting Ltd.

                    Keith J. Phillips and Joel Oliphant, for the respondent Her Majesty the Queen in Right of the Province of British Columbia.

                    Brian McLaughlin, for the intervener the Attorney General of Canada.

                    Allisun Rana and Julie Tannahill, for the interveners Chief Liz Logan, on behalf of herself and all other members of the Fort Nelson First Nation and the said Fort Nelson First Nation.

                    John Hurley and François Dandonneau, for the interveners the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority.

                    Christopher G. Devlin and John W. Gailus, for the interveners Chief Sally Sam and the Maiyoo Keyoh Society.

                    John J. L. Hunter, Q.C.Mark S. Oulton and Stephanie McHugh, for the interveners the Council of Forest Industries and the Alberta Forest Products Association.

                    Jean Teillet and Nuri G. Frame, for the intervener the Moose Cree First Nation.

                    The judgment of the Court was delivered by

                    LeBel J. — 

I.       Introduction — Overview

[1]                              This appeal raises issues of standing and abuse of process in the context of relations between members of an Aboriginal community, a logging company, and a provincial government.  After the Crown had granted licences to a logging company to harvest timber in two areas on the territory of the Fort Nelson First Nation (“FNFN”) in British Columbia, a number of individuals from that First Nation erected a camp that, in effect, blocked the company’s access to the logging sites.  The company brought a tort action against these members of the Aboriginal community, who argued in their defence that the licences were void because they had been issued in breach of the constitutional duty to consult and because they violated the community members’ treaty rights.

[2]                              The logging company filed a motion to strike these defences.  The courts below held that the individual members of the Aboriginal community (the “Behns”) did not have standing to assert collective rights in their defence; only the community could raise such rights.  The courts below also concluded that such a challenge to the validity of the licences amounted to a collateral attack or an abuse of process, as the Behns had failed to challenge the validity of the licences when they were issued.

[3]                              The Court is asked to consider in this appeal whether an individual member or group of members of an Aboriginal community can raise a breach of Aboriginal and treaty rights as a defence to a tort action and, if so, in what circumstances.  But, as this question of standing is not determinative for the purposes of this appeal, the Court must also decide whether the doctrine of abuse of process applies in this case.

[4]                              For the reasons that follow, I would dismiss the appeal.

II.  Facts

[5]                              As this is an appeal from a decision on a motion to strike pleadings, the following facts are taken from the pleadings.  The Behns are, with one exception, members of the FNFN, a “band” within the meaning of the Indian Act, R.S.C. 1985, c. I-5 .  The FNFN is a party to Treaty No. 8 of 1899, which covers an area comprising parts of Alberta, British Columbia, Saskatchewan and the Northwest Territories.  The Behns allege that they have traditionally hunted and trapped on a part of the FNFN’s territory that has historically been allocated to their family.

[6]                              Moulton Contracting Ltd. (“Moulton”) is a company incorporated pursuant to the laws of British Columbia.  On June 27, 2006, the British Columbia Ministry of Forests (“MOF”) granted Moulton two timber sale licences and a road permit (the “Authorizations”) pursuant to the Forest Act, R.S.B.C. 1996, c. 157.  These Authorizations entitled Moulton to harvest timber on two parcels of land within the FNFN’s territory, both of which are within the Behn family trapline.  The Behns stated in their Amended Statement of Defence that the FNFN manages its territory by allocating parts of it (called traplines) to specific families:

While the rights provided for in the Treaty # 8 extended throughout the tract described in the treaty, most of the aboriginal people comprising the Fort Nelson First Nation traditionally ordered themselves so that the rights to hunt and trap set out in Treaty 8 were exercised in tracts of land associated with different extended families. These extended families were headed by a headman. [A.R., at p. 89]

[7]                              Before granting the Authorizations, the MOF had contacted representatives of the FNFN and individual trappers, including George Behn, the headman of the Behn family, in developing and amending its forest development plan (“FDP”).  The MOF contacted the FNFN in August 2004 and individual trappers, including Mr. Behn, in September 2004 to notify them that additional harvesting blocks were being proposed.  The trappers it contacted were invited to advise it of any concerns they had or provide it with comments by October 20, 2004.  MOF officials met a representative of the FNFN in November 2004 to discuss consultation on the proposed amendment to the FDP.  The issue of funding to enable the FNFN to provide information to the MOF was discussed at that meeting.  Funding was ultimately refused.  On January 31, 2005, the MOF wrote to the FNFN to advise it that archaeological impact assessments would be conducted for certain areas proposed for harvesting in the amendment to the FDP.  Two archaeological impact assessments were completed in August 2005, and copies of them were delivered to the FNFN.  The MOF and the FNFN met again on September 21, 2005 to discuss the proposed amendment further.

[8]                              The MOF approved the amendment to the FDP.  On June 2, 2006, it put the two timber sale licences relevant to this appeal up for sale.  After granting the Authorizations to Moulton, the MOF wrote to George Behn on June 28, 2006, to advise him that Moulton had been awarded licences to harvest timber within his trapping area.  In that letter, George Behn was advised to contact Moulton directly to confirm the date its harvesting operations were to commence.  The MOF again wrote to Mr. Behn on July 17, 2006, to advise him that the operations would begin on August 1, 2006.  On August 31, 2006, George Behn wrote to the MOF, requesting that the Authorizations granted to Moulton be cancelled and seeking consultation.  No copy of this letter was sent to Moulton.

[9]                              Between September 19 and September 22, 2006, Moulton started moving its equipment to one of the two sites to which the Authorizations applied.  On September 25, 2006, the MOF notified Moulton that there was a potential problem with George Behn.  The MOF requested that Moulton move its operations to the second site.  Moulton replied that it could not do so because it had commitments to a mill to deliver timber from the first site.

[10]                          In early October 2006, the Behns erected a camp on the access road leading to the parcels of land to which the Authorizations applied.  The camp blocked access to the land where Moulton was authorized to harvest timber.

[11]                          On November 23, 2006, Moulton filed a statement of claim in the British Columbia Supreme Court against the Behns, Chief Logan on behalf of herself and the FNFN, and the Crown.  Moulton claimed damages from the Behns for interference with contractual relations.  In their statement of defence, the Behns denied that their conduct was unlawful.  They alleged that the Authorizations were illegal for two reasons.  First, the Crown had failed to fulfil its duty to consult in issuing the Authorizations.  Second, the Authorizations infringed their hunting and trapping rights under Treaty No. 8.

[12]                          Moulton applied under Rule 19(24) of the Supreme Court Rules, B.C. Reg. 221/90 [repealed] (now Rule 9-5(1), Supreme Court Civil Rules, B.C. Reg. 168/2009), to have a number of paragraphs struck out of the Behns’ statement of defence on the ground (1) that it was plain and obvious that they did not disclose a reasonable defence, or (2) that the relief being sought in them constituted an abuse of process.  In substance, the paragraphs Moulton sought to have struck related to the Behns’ allegations that the Authorizations were invalid because they had been issued in breach of the Crown’s duty to consult and because they violated the Behns’ treaty rights, and to their allegations that their acts were neither illegal nor tortious.  The Crown supported Moulton’s application and further submitted that the Behns lacked standing to raise a breach of the duty to consult or of treaty rights, as only the FNFN had such standing.

III.    Judicial History

A.  British Columbia Supreme Court, 2010 BCSC 506, [2010] 4 C.N.L.R. 132

[13]                          Hinkson J. held that the Behns lacked standing to raise the defences pertaining to the duty to consult and treaty rights.  He stated that although Aboriginal and treaty rights are exercised by individuals, they are collective in nature.  As a result, they are not possessed by nor do they reside with individuals.  He mentioned that collective rights can be asserted by individuals only if the individuals are authorized to do so by the collective.  Hinkson J. found that the FNFN had not authorized the Behns to assert these rights.

[14]                          Hinkson J. also held that the impugned paragraphs in which the Behns submitted that the Authorizations were invalid had to be struck out as an abuse of process under Rule 19(24) of the Supreme Court Rules.  He reasoned that the Behns could not be permitted to introduce the subject matter of the invalidity of the Authorizations now in their statement of defence, as they should instead have applied for judicial review.

[15]                          It should be noted that the trial then proceeded from September to November 2011 in the British Columbia Supreme Court on the basis of the paragraphs that had survived the motion to strike.  The trial judge has reserved his judgment until this Court disposes of this appeal.

B.     British Columbia Court of Appeal, 2011 BCCA 311, 20 B.C.L.R. (5th) 35

[16]                          Saunders J.A., writing for the Court of Appeal, agreed with Hinkson J. that the Behns lacked standing to assert that the duty to consult owed to the FNFN had not been met and that collective rights had been infringed by the issuance of the Authorizations.  She said, at para. 39, that “an attack on a non-Aboriginal party’s rights, on the basis of treaty or constitutional propositions, requires authorization by the collective in whom the treaty and constitutional rights inhere”.  In this case, the Behns had received no such authorization by the FNFN.  Saunders J.A. was careful to point out that she was not suggesting that collective rights could never provide a defence to individual members of an Aboriginal community.

[17]                          Saunders J.A. also concluded that the defences raised by the Behns constituted an impermissible collateral attack upon the Authorizations granted to Moulton.  She added that this conclusion was not incompatible with the proper administration of justice, since the FNFN, as a collective, had the capacity to challenge the Authorizations through a number of legal avenues.  She therefore upheld Hinkson J.’s conclusion that the impugned defences constituted an abuse of process.

IV.    Analysis

A.     Issues

[18]                          Three issues must be addressed in this appeal. First, can the Behns, as individual members of an Aboriginal community, assert a breach of the duty to consult?  This issue raises the question to whom the Crown owes a duty to consult.  Second, can treaty rights be invoked by individual members of an Aboriginal community?  These two issues relate to standing.

[19]                          The third issue relates to abuse of process.  Does it amount to an abuse of process for the Behns to challenge the validity of the Authorizations now that they are being sued by Moulton after having failed to take legal action when the Authorizations were first issued even though they objected to their validity at the time?

B.     Positions of the Parties

 

                    (1)     Behns

[20]                          The Behns submit that the Court of Appeal erred in holding that they lacked standing to assert defences based on treaty rights and that challenging the validity of the Authorizations constituted an impermissible collateral attack.  The Behns contend that the principles related to standing apply to the assertion of a claim, not of a defence.  As a result, they do not apply in this case, since the Behns are simply defending against an action.  In the alternative, the Behns assert that they have standing because, as members of the FNFN, they have a substantial and direct interest in their rights under Treaty No. 8.

[21]                          On the collateral attack issue, the Behns argue, relying on Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, that the defences they assert do not constitute a collateral attack, since they are not parties to the Authorizations.  Alternatively, they submit that, if the impugned paragraphs do constitute a collateral attack, the attack is permissible, because the legislature did not intend that any attempt to question the lawfulness of the Authorizations could be made only by applying for judicial review.

[22]                          Finally, the Behns submit that the principle of the rule of law will be violated if they cannot assert their defences.  They contend that whether their conduct was lawful cannot be determined without also addressing the lawfulness of the Authorizations.

                    (2)     Moulton

[23]                          Moulton responds that the Behns have no standing to raise a defence based on Aboriginal or treaty rights, because only the FNFN, as the collective, can assert a claim that these rights have been infringed.  Moulton also contends that the Crown’s duty to consult is owed to the collective, not to individual members of the collective.  Responding to the Behns’ submission that they have standing because they are only seeking the dismissal of the action, Moulton submits that they are relying on an affirmative defence that requires an order declaring the Authorizations to be invalid.  Moulton adds that the activity for which the Behns are now being sued — erecting and participating in a blockade — is not a right protected under Treaty No. 8.  Finally, since the Behns could have challenged the legality of the Authorizations by applying for judicial review when they were issued, Moulton submits that it amounts to a collateral attack for the Behns to challenge their validity now as a defence to a tort claim.

                    (3)     Crown

[24]                          According to the Crown, the collective nature of Aboriginal and treaty rights means that claims in relation to such rights must be brought by, or on behalf of, the Aboriginal community.  Although the Crown recognizes the Behns’ interest in their treaty rights, it submits that their position on this issue disregards two factors: (1) the issue arising in the litigation concerns a defence to a claim related to a blockade, not to the exercise of hunting or trapping rights; and (2) the FNFN is named as a party to the proceedings and therefore represents the community in them.  The Crown further submits that having a substantial and direct interest in a treaty right does not entitle an individual to bring a treaty rights claim or defence.

[25]                          On whether the impugned paragraphs constitute an impermissible collateral attack, the Crown submits that the question is whether the claimant is content to let the government’s decision stand.  In the instant case, the impugned defences raise an unequivocal challenge to the validity and legal force of the Authorizations.  Furthermore, the Crown submits that the Behns could have challenged the validity of the Authorizations by applying for judicial review instead of blockading a road.

C.     Standing

                    (1)     Duty to Consult

[26]                          In defence to Moulton’s claim, as I mentioned above, the Behns argue, inter alia, that their conduct was not illegal, because the Crown had issued the Authorizations in breach of the duty to consult and the Authorizations were therefore invalid.  The question that arises with respect to this particular defence is whether the Behns can assert the duty to consult on their own in the first place.

[27]                          In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, this Court confirmed that the Crown has a duty to consult Aboriginal peoples and explained the scope of application of that duty in respect of Aboriginal rights, stating that “consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35  [of the Constitution Act, 1982 ] demands”: para. 38.  In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, the Court held that the duty to consult applies in the context of treaty rights: paras. 32-34.  The Crown cannot in a treaty contract out of its duty to consult Aboriginal peoples, as this duty “applies independently of the expressed or implied intention of the parties”: Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 61.

[28]                          The duty to consult is both a legal and a constitutional duty: Haida Nation, at para. 10; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 6; see also J. Woodward, Native Law, vol. 1 (loose-leaf), at p. 5-38.  This duty is grounded in the honour of the Crown: Haida NationBeckman, at para. 38; Kapp, at para. 6.  As Binnie J. said in Beckman, at para. 44, “[t]he concept of the duty to consult is a valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose.”  The duty to consult is part of the process for achieving “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 186, quoting R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 31; Haida Nation, at para. 17; see also D. G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (2009).

[29]                          The duty to consult is triggered “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”: Haida Nation, at para. 35.  The content of the duty varies depending on the context, as it lies on a spectrum of different actions to be taken by the Crown: Haida Nation, at para. 43.  An important component of the duty to consult is a requirement that good faith be shown by both the Crown and the Aboriginal people in question: Haida Nation, at para. 42.  Both parties must take a reasonable and fair approach in their dealings.  The duty does not require that an agreement be reached, nor does it give Aboriginal peoples a veto: Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at paras. 2 and 22; Haida Nation, at para. 48.

[30]                          The duty to consult exists to protect the collective rights of Aboriginal peoples.  For this reason, it is owed to the Aboriginal group that holds the s. 35  rights, which are collective in nature: Beckman, at para. 35; Woodward, at p. 5-55.  But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35  rights: see, e.g., Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.

[31]                          In this appeal, it does not appear from the pleadings that the FNFN authorized George Behn or any other person to represent it for the purpose of contesting the legality of the Authorizations.  I note, though, that it is alleged in the pleadings of other parties before this Court that the FNFN had implicitly authorized the Behns to represent it.  As a matter of fact, the FNFN was a party in the proceedings in the courts below, because Moulton was arguing that it had combined or conspired with others to block access to Moulton’s logging sites.  The FNFN is also an intervener in this Court.  But, given the absence of an allegation of an authorization from the FNFN, in the circumstances of this case, the Behns cannot assert a breach of the duty to consult on their own, as that duty is owed to the Aboriginal community, the FNFN.  Even if it were assumed that such a claim by individuals is possible, the allegations in the pleadings provide no basis for one in the context of this appeal.

                    (2)     Aboriginal or Treaty Rights

[32]                          The Behns also challenge the legality of the Authorizations on the basis that they breach their rights to hunt and trap under Treaty No. 8.  This is an important issue, but a definitive pronouncement in this regard cannot be made in the circumstances of this case.  I would caution against doing so at this stage of the proceedings and of the development of the law. 

[33]                          The Crown argues that claims in relation to treaty rights must be brought by, or on behalf of, the Aboriginal community.  This general proposition is too narrow.  It is true that Aboriginal and treaty rights are collective in nature: see R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1112; Delgamuukw, at para. 115; R. v. Sundown, [1999] 1 S.C.R. 393, at para. 36; R. v. Marshall, [1999] 3 S.C.R. 533, at paras. 17 and 37; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 31; Beckman, at para. 35.  However, certain rights, despite being held by the Aboriginal community, are nonetheless exercised by individual members or assigned to them.  These rights may therefore have both collective and individual aspects. Individual members of a community may have a vested interest in the protection of these rights. It may well be that, in appropriate circumstances, individual members can assert certain Aboriginal or treaty rights, as some of the interveners have proposed.

[34]                          Some interesting suggestions have been made in respect of the classification of Aboriginal and treaty rights.  For example, the interveners Grand Council of the Crees and Cree Regional Authority propose in their factum, at para. 14, that a distinction be made between three types of Aboriginal and treaty rights: (a) rights that are exclusively collective; (b) rights that are mixed; and (c) rights that are predominantly individual.  These interveners also attempt to classify a variety of rights on the basis of these three categories.

[35]                          These suggestions bear witness to the diversity of Aboriginal and treaty rights.  But I would not, on the occasion of this appeal and at this stage of the development of the law, try to develop broad categories for these rights and to slot each right in the appropriate one.  It will suffice to acknowledge that, despite the critical importance of the collective aspect of Aboriginal and treaty rights, rights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour.  In a broad sense, it could be said that these rights might belong to them or that they have an individual aspect regardless of their collective nature.  Nothing more need be said at this time. 

[36]                          In this appeal, the Behns assert in their defence that the Authorizations are illegal because they breach their treaty rights to hunt and trap.  They recognize that these rights have traditionally been held by the FNFN, which is a party to Treaty No. 8.  But they also allege that specific tracts of land have traditionally been assigned to and associated with particular family groups.  They assert in their pleadings that the Authorizations granted to Moulton are for logging in specific areas within the territory traditionally assigned to the Behns, where they have exercised their rights to hunt and trap.  On the basis of an allegation of a connection between their rights to hunt and trap and a specific geographic location within the FNFN territory, the Behns assert that they have a greater interest in the protection of hunting and trapping rights on their traditional family territory than do other members of the FNFN.  It might be argued that this connection gives them a certain standing to raise the violation of their particular rights as a defence to Moulton’s tort claim.  But a final decision on this issue of standing is not necessary in this appeal, because another issue will be determinative, that of abuse of process.

D.     Abuse of Process

[37]                          The key issue in this appeal is whether the Behns’ acts constitute an abuse of process.  In my opinion, in the circumstances of this case, raising a breach of the duty to consult and of treaty rights as a defence was an abuse of process.  If the Behns were of the view that they had standing, themselves or through the FNFN, they should have raised the issue at the appropriate time.  Neither the Behns nor the FNFN had made any attempt to legally challenge the Authorizations when the British Columbia government granted them.  It is common ground that the Behns did not apply for judicial review, ask for an injunction or seek any other form of judicial relief against the province or against Moulton.  Nor did the FNFN make any such move. 

[38]                          Had the Behns acted when the Authorizations were granted, clause 9.00 of the timber sale agreements provided that the Timber Sales Manager had the power to suspend the Authorizations until the legal issues were resolved: trial judgment, at para. 16.  Moulton would not then have been led to believe that it was free to plan and start its logging operations.  Moreover, legal issues like standing could have been addressed at the proper time and in the appropriate context.

[39]                          In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, Arbour J. wrote for the majority of this Court that the doctrine of abuse of process has its roots in a judge’s inherent and residual discretion to prevent abuse of the court’s process: para. 35; see also P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243.  Abuse of process was described in R. v. Power, [1994] 1 S.C.R. 601, at p. 616, as the bringing of proceedings that are “unfair to the point that they are contrary to the interest of justice”, and in R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667, as “oppressive treatment”.  In addition to proceedings that are oppressive or vexatious and that violate the principles of justice, McLachlin J. (as she then was) said in her dissent in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007, that the doctrine of abuse of process evokes the “public interest in a fair and just trial process and the proper administration of justice”.  Arbour J. observed in C.U.P.E. that the doctrine is not limited to criminal law, but applies in a variety of legal contexts: para. 36.

[40]                          The doctrine of abuse of process is characterized by its flexibility.  Unlike the concepts of res judicata and issue estoppel, abuse of process is unencumbered by specific requirements.  In Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Goudge J.A., who was dissenting, but whose reasons this Court subsequently approved (2002 SCC 63, [2002] 3 S.C.R. 307), stated at paras. 55-56 that the doctrine of abuse of process

engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.  It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.  See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 [(C.A.)], at p. 358 . . . .

 

                             One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.  See Solomon v. Smithsupra.  It is on that basis that Nordheimer J. found that this third party claim ought to be terminated as an abuse of process. [Emphasis added.]

[41]                          As can be seen from the case law, the administration of justice and fairness are at the heart of the doctrine of abuse of process.  In Canam Enterprises and in C.U.P.E., the doctrine was used to preclude relitigation of an issue in circumstances in which the requirements for issue estoppel were not met.  But it is not limited to preventing relitigation.  For example, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, the Court held that an unreasonable delay that causes serious prejudice could amount to an abuse of process (paras. 101-21).  The doctrine of abuse of process is flexible, and it exists to ensure that the administration of justice is not brought into disrepute.

[42]                          In my opinion, the Behns’ acts amount to an abuse of process.  The Behns clearly objected to the validity of the Authorizations on the grounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult.  On the face of the record, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued.  They did not raise their concerns with Moulton after the Authorizations were issued.  Instead, without any warning, they set up a camp that blocked access to the logging sites assigned to Moulton.  By doing so, the Behns put Moulton in the position of having either to go to court or to forgo harvesting timber pursuant to the Authorizations it had received after having incurred substantial costs to start its operations.  To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.  It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations.  The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence.

V.     Conclusion

[43]                          For these reasons, I would dismiss the appeal with costs to the respondent Moulton.

                    Appeal dismissed with costs.

                    Solicitors for the appellants:  Janes Freedman Kyle Law Corporation, Vancouver.

                    Solicitors for the respondent Moulton Contracting Ltd.:  Fasken Martineau DuMoulin, Vancouver.

                    Solicitor for the respondent Her Majesty the Queen in Right of the Province of British Columbia:  Attorney General of British Columbia, Victoria.

                    Solicitor for the intervener the Attorney General of Canada:  Attorney General of Canada, Vancouver.

                    Solicitors for the interveners Chief Liz Logan, on behalf of herself and all other members of the Fort Nelson First Nation and the said Fort Nelson First Nation:  Rana Law, Calgary.

                    Solicitors for the interveners the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority:  Gowling Lafleur Henderson, Montréal.

                    Solicitors for the interveners Chief Sally Sam and the Maiyoo Keyoh Society:  Devlin Gailus, Victoria.

                    Solicitors for the interveners the Council of Forest Industries and the Alberta Forest Products Association:  Hunter Litigation Chambers Law Corporation, Vancouver.

                    Solicitors for the intervener the Moose Cree First Nation:  Pape Salter Teillet, Toronto.

 

For complete Supreme Court Judgement

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Halfway River First Nation v. British Columbia (Minister of Forests) [1999] 4 CNLR, (BCCA 470)

Date Issued: 

CHIEF BERNIE METECHEAH, on his own behalf and

on behalf of all other members of the

HALFWAY RIVER FIRST NATION, and the

HALFWAY RIVER FIRST NATION

Petitioners (Respondents)

v.

 

DAVID LAWSON, DISTRICT MANAGER,

FORT ST. JOHN FOREST DISTRICT and

THE MINISTRY OF FORESTS

Respondents (Appellants)

and

 

CANADIAN FOREST PRODUCTS LTD.

Respondents (Appellants)

 

Indexed as:  Halfway River First Nation v. British Columbia (Ministry of Forests)

Neutral citation:  1999 BCCA 470.

1999:  January 19, 20, 21, 22; 1999:  August 12.

Present:  M.W.W. Frey, H.M. Groberman, Q.C., S.B. Armstrong, J.M. Marks, C. Allan Donovan

Before: The Honourable Madam Justice Southin, The Honourable Mr. Justice Finch, The Honourable Madam Justice Huddart

 

I Introduction

[1]  The Ministry of Forests (“the Ministry”), its District Manager at Fort St. John, David Lawson, (“the District Manager”) and Canadian Forest Products Limited (“Canfor”) appeal the order of the Supreme Court of British Columbia pronounced 24 June, 1997, which quashed the decision of the District Manager on 13 September, 1996, approving Canfor’s application for Cutting Permit 212.  Canfor holds the timber harvesting licence for the wilderness area in which C.P.212 would permit logging. It is Crown land, adjacent to the reserve land granted to the Halfway River First Nation.  The Halfway Nation are descendants of the Beaver People who were signatories to Treaty 8 in 1900.  

 

[2]  The part of Treaty 8 that preserved the signatories right to hunt says:

And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

                                      (my emphasis)

 

[3]  The petitioners claimed under the Treaty the traditional right to hunt on the Crown land adjacent to their reserve, which they refer to as the “Tusdzuh” area, including the areas covered by C.P.212.  In addition, they have an outstanding Treaty Land Entitlement Claim (T.L.E.C.) against the federal Crown, and they say lands recoverable in that claim may be located in the Tusdzuh.

 

[4]  Among many other arguments advanced the petitioners said that issuance of the permit, and the logging it will allow, infringes their hunting rights under the Treaty, and that such infringement cannot be justified by the Crown.  The petitioners also claimed that C.P.212 was granted by the District Manager in breach of his administrative law duty of fairness, in that he fettered his discretion by applying government policy, prejudged Canfor’s right to have the permit issued, failed to give adequate notice of his intention to decide the question, and failed to provide an adequate opportunity for them to be heard.  The petitioners also said the District Manager reached a patently unreasonable decision in deciding factual issues on an incomplete evidentiary base.

 

[5]  The learned chambers judge accepted all these submissions and held therefore that C.P.212 should be quashed.  Other submissions were rejected.

 

[6]  On this appeal, the appellants say the learned chambers judge erred on all counts.  They say that, properly construed, the plaintiffs’ right under Treaty 8 to hunt is subject to the Crown’s right to “require”, or “take up” lands from time to time for, among other purposes, “lumbering”; and that the issuance of C.P.212 therefore did not breach or infringe the petitioners’ treaty rights to hunt.  Alternatively, the petitioners say that if the treaty right to hunt was breached, that breach was justified within the test laid down in R. v. Sparrow,1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, 3 C.N.L.R. 160, 4 W.W.R. 410.

 

[7]  As to the administrative law issues, the appellants say the learned chambers judge erred in finding that the District Manager had fettered his discretion, that his decision gave rise to a reasonable apprehension of bias, and that he failed to give adequate notice or opportunity to be heard.  They also say the learned chambers judge erred in holding the District Manager’s decision to be patently unreasonable.

 

[8]  For the reasons that follow, I have concluded that the only lack of procedural fairness in the decision-making process of the District Manager was the failure to provide to the petitioners an opportunity to be heard.  In my respectful view, the learned chambers judge erred in holding that there was a lack of procedural fairness on the other three grounds that were raised.  I have also concluded that the issuance of the cutting permit infringed the petitioners’ treaty right to hunt, that the Crown has failed to show that infringement was justified, and that the learned chambers judge did not err in quashing the District Manager’s approval of Canfor’s permit application.

 

II Background

[9]  Treaty 8 is one of 11 numbered treaties made between the federal government and various Indian bands between 1871 and 1923.  B.C. joined confederation in 1871, but the provincial government was not represented in these treaty negotiations.  Treaty 8 was negotiated in 1899, and was adhered to in that year by a number of bands who lived in what are now Alberta, Saskatchewan and the Northwest Territories.  The first adherents, a band of Cree Indians, signed the treaty at Lesser Slave Lake in June, 1899.  The Hudson Hope Beaver people, from whom the petitioners are descended, adhered to the treaty at Fort St. John in 1900.  At that time there were 46 Beaver people living in the vicinity of Fort St. John.  The Hudson Hope people are now spread between the Halfway River Nation and the West Moberley Band.

 

[10] On this appeal, counsel for the Ministry of Forests told the Court that the British Columbia government acknowledged that it was bound by the provisions of Treaty 8 concerning the petitioners’ rights to hunt and fish, but made no similar concession in respect of the petitioners’ right to lands under the treaty.

 

[11] The full provisions of the treaty are set out in the reasons of my colleague, Madam Justice Southin.  The Indians could neither read nor write English, and the terms of the treaty were interpreted to them orally.  There is a question in this case as to what extrinsic evidence, if any, is admissible in interpreting the treaty.  The commissioners who acted on behalf of the federal government made a report concerning their discussions and negotiations with the original adherents to the treaty in 1899.  There is no similar record of what was said to the Beaver people of Fort St. John in 1900.  The appellant Minister says the extrinsic evidence of what occurred in 1899, and which was admitted and considered in R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, is not admissible for the purposes of construing the treaty adhered to by the petitioners’ ancestors in 1900.  

 

[12] In 1900 title to Crown land was vested in the provincial Crown by virtue of the terms of union between British Columbia and Canada in 1871.  Treaty 8 provides for reserve lands to be set aside for the Indians, to the extent of one square mile for each family of five, or 160 acres per individual.  The “selection” of such reserves was to be made in the manner provided for in the treaty.

 

[13] On 15 May, 1907 the provincial government transferred administration and control of lands in the Peace River block to the federal government by Executive Order-in-Council.  The transfer covered about 3.5 million acres of land, selected as agreed in 1884.  By virtue of s.91(24) of the Constitution Act, 1867, the federal government already had all jurisdiction to deal with “Indians and land reserved for Indians”.

 

[14] The reserve lands of the Halfway River Nation were not finally surveyed and located until 1914.  The reserve is located on the north bank of the Halfway River, about 100 miles west of the city of Fort St. John.  The reserve comprises about 9,880 acres.

 

[15] The lands to the south and west of the Halfway River reserve were, in 1900 and 1914, unsettled and undeveloped wilderness.  The Halfway River Nation referred to this area as the Tusdzuh.  It is an area that the petitioners and their ancestors have used for hunting, fishing, trapping and the gathering of food and medicinal plants.  The area was plentiful with game, and conveniently located for the purposes of the Halfway Nation.  The petitioners or their forebears built cabins, corrals and meat drying racks in the area for use in conjunction with their hunting activities.  The time of building, and the precise location of these structures, is not disclosed in the evidence.

 

[16] In 1930 the federal government transferred administration and control of the lands in the Peace River block back to the provincial government by the Railway Belt Retransfer Agreement Act, S.B.C. 1930, c.60.  Also in 1930, the Constitution Act, 1930 was enacted by the parliament of the United Kingdom giving effect to, inter alia, the agreement between the federal and B.C. provincial governments by which the retransfer of lands, including the Peace River block, took place.  There was an exception from the retransfer of the Indian reserve lands located in the Peace River block.

 

[17] It is significant for the purposes of this case, and to understanding earlier jurisprudence interpreting Treaty 8 and other of the numbered treaties, that B.C. is not affected by the Natural Resources Transfer Act, 1930 (Constitution Act, 1930 Schedule II), which was an important consideration in such cases as R. v. Badger, supra and R. v. Horse, 1988 CanLII 91 (SCC), [1988] 1 S.C.R. 187.

 

[18] In 1982, the Constitution Act, 1982 was enacted.  Section 35 of the Act provides:

 

35.  (1)  The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 

[19] About 15 years ago, at a date not disclosed in the evidence, the Halfway River Nation entered into negotiations with both the federal and provincial governments to allow the expansion of its reserve lands.  They subsequently advanced a Treaty Land Entitlement Claim (TLEC) against the Crown in Right of Canada asserting a shortfall of over 2,000 acres in the reserve lands allocated to them in 1914.  In fact, the Nation has made a demand for over 35,000 acres of additional land, the basis for which claim was not made clear in the submissions of counsel.  Whatever the area entitlement of the petitioners to further reserve lands may be, there is an unresolved issue as to their location.  The petitioners claim that the entitlement may be located, in whole or in part, in the Tusdzuh, the wilderness area to the south of their present reserve lands.

 

[20] There are now said to be 184 men, women and children in the Halfway River Nation.  They are a poor people, economically, and have in general not adapted themselves to the agricultural lifestyle contemplated in those parts of Treaty 8 granting each family of five one square mile of land, or each individual 160 acres of land, as well as livestock, farm implements and machinery, and such seed as was suited to the locality of the Band.  They have instead pursued their traditional means of support and sustenance, of which moose hunting is an important element.  75% of the members of the Halfway River Nation live on social assistance.

 

[21] The lands referred to by the petitioners as the Tusdzuh are vast areas in which, until fairly recent times, there has been limited industrial use or development.  There has been some mining since the early 1900s and, more recently, some oil and gas exploration.  A network of seismic lines was cut for that purpose.  The evidence does not disclose when the first timber harvesting licence was granted.  Canfor obtained one part of its current timber harvesting licence in 1983, and a second part in 1989.  These licences were amalgamated into Forest Licence No. A181154.

 

[22] In 1991, Canfor first identified the areas covered by C.P.212 in its five year Forest Development Plan for 1991-96.  Chief Metecheah wrote to the Minister of Forests on 20 January, 1992 requesting a meeting to discuss the development of lands in the Tusdzuh.  On 30 June, 1992, Canfor wrote to the Treaty 8 Tribal Association (of which the Halfway River Nation is a member) advising of the proposed harvesting.  From that time up to the present litigation there have been both correspondence and telephone communications between the parties to these proceedings: these are more specifically detailed in the reasons for judgment of the learned chambers judge, and in Appendix A to her reasons, setting out a “chronology of notices and consultation”.  Particular reference to some of these communications will be made later in these reasons, as may appear necessary.

 

III The Legislative Scheme

[23] The authority of the District Manager to issue a cutting a permit derives from the  Forest Act, R.S.B.C. 1979, c. 140, as am. S.B.C. 1980, c. 14 (the Act), the Forest Practices Code of British Columbia Act, S.B.C. 1994, c. 41 (the Code, now R.S.B.C. 1996, c. 159) and subsequent regulations, and the Ministry of Forests Act, R.S.B.C. 1979, c. 272, as am. S.B.C. 1980, c. 14.  That latter statute amended various aspects of the Forest Act, the Ministry of Forests Act, and the Range Act, R.S.B.C. 1979, c. 355.  The 1980 amendment to s. 158(2) of the Forest Act provides:

     

     158 (2)  Without limiting ss. (1), the Lieutenant Governor in Council may make regulations respecting …

     (d.1)  the establishment of an area of the Province as a forest district, the abolition and variation in boundaries and name of a forest district and the consolidation of 2 or more forest districts; …

 

 

Section 2(1) of the Ministry of Forests Act, R.S.B.C. 1979, c. 272 (now R.S.B.C. 1996, c.300) was amended to state:

 

     2 (1)  The following persons may be appointed under the Public Service Act: …

     (d)  a district manager for a forest district established under the Forest Act and the part of a range district established under the Range Act that covers the same area as the forest district; …

     

     

[24] That section, in combination with the Public Service Act, R.S.B.C. 1979, c.343, authorized the Lieutenant Governor in Council to appoint district managers for forest districts established under the Forest Act.  Section 9 of the 1979 Forest Act (now section 11) specified that no rights to harvest Crown timber could be granted on behalf of the government except in accordance with the Act.  Section 10 (now section 12) specified that a District Manager, a regional manager or the minister may enter into agreements granting rights to harvest timber in the form of licenses and/or permits subject to the provisions of the Act and the Regulations.  In 1994, section 247 of the Code amended section 10 of the Forest Act, subjecting the District Manager’s authority to enter into agreements granting rights to harvest timber to the requirements of the Code.  Section 238 of the Code states that every cutting permit in existence at the time the Code came into force remains in existence, but ceases to have effect two years after the date the section came into force unless the District Manager determines that the operational planning requirements of the cutting permit are consistent with the requirements of the Code.  With the exception of a few sections, the Code came into effect pursuant to Reg. 165/95 on June 15, 1995.

 

[25] The relationship between the Forest Act and the Forest Practices Code with respect to the District Manager’s authority to issue a cutting permit pursuant to a forest licence agreement is important.  The Code regulates the actual practice of forestry as it occurs on the ground, whereas the Act governs matters such as the formation of forest licence agreements and the determination of the annual allowable cut.  The Code does not replace the Act but supplements it, as contemplated by s. 10 of the Act (now s. 12) where the authority of officials (including the District Manager) in the Ministry of Forests to issue licenses is circumscribed by the Code insofar as the Code requires that certain operational plans receive approval before the granting of licenses or permits.  The process by which those plans receive approval is set out in the Code and in the Regulations enacted pursuant to the Code.  Sections 10 and 12 of the 1979 Act, as amended in 1980, provide:

     

     10.  Subject to this Act and the Regulations, a district manager, a regional manager or the minister, on behalf of the Crown, may enter into an agreement granting rights to harvest Crown timber in the form of a 

         (a)  forest licence;

         (b)  timber sale licence;

         (c)  timber licence;

         (d)  tree farm licence; …

     

     12.  A forest licence …

         (f)  shall provide for cutting permits to be issued by the Crown to authorize the allowable annual cut to be harvested, within the limits provided in the licence, from specific areas of land in the public sustained yield unit or timber supply area described in the licence; 

                           . . .

 

 

[26] The enactment of the Forest Practices Code further amended these provisions, so as to render the formation of agreements under section 10 of the Act subject to the provisions of the Code (s. 247 of the Code).

 

[27] In addition, the preamble to the Code provides a broad set of principles to guide the actions of forestry officials, and by which the statute is to be interpreted.  

     

[28] The preamble to the Forest Practices Code is as follows:

 

 

WHEREAS British Columbians desire sustainable use of the forests they hold in trust for future generations;

 

AND WHEREAS sustainable use includes

 

     (a)  managing forests to meet present needs without compromising the needs of future generations,

 

     (b)  providing stewardship of forests based on an ethic of respect for the land,

 

     (c)  balancing productive, spiritual, ecological and recreational values of forests to meet the economic and cultural needs of peoples and communities, including First Nations,

 

     (d)  conserving biological diversity, soil, water, fish, wildlife, scenic diversity and other forest resources, and

 

     (e)  restoring damaged ecologies;

 

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

 

 

[29] The Code is to be interpreted so as to achieve the principles set out in the preamble:  see Koopman v. Ostergaard (1995), 1995 CanLII 1755 (BC SC), 12 B.C.L.R. (3d) 154 (S.C.); Chetwynd Environmental Society v. British Columbia (1995), 1995 CanLII 368 (BC SC), 13 B.C.L.R. (3d) 338 (S.C.).  The preamble of the Code, therefore, is to receive a broad and liberal construction so as to best ensure the attainment of the Code’s goals: International Forest Products v. British Columbia (Ministry of Forests)(unreported. 19 March, 1997.  Forest Appeals Commission (Vigod, Chair), App. No. 96/02(b)).

 

[30] In addition to receiving guidance from the preamble’s principles, the District Manager’s authority to grant cutting permits is subject to certain specific operational planning requirements under the Code.  These generally take the form of requiring the permit holder to demonstrate that the plans for harvesting conform to certain environmental standards.  The operational planning requirements are set out in Part 3 of the Code, directing that the holder of an agreement under the Forest Act must carry out certain impact assessments of the proposed harvest area and integrate the findings of such an assessment into forest development plans (ss. 101719), logging plans (s. 112021), silviculture prescriptions and plans (s. 12142223, 25), and access management, stand management, and range use plans (ss. 131516242627).  There are numerous provisions that allow for the holder of an agreement under the Forest Act to apply for exemptions from these requirements (Part 3, Division 3).

 

[31] Finally, the District Manager’s authority to grant cutting permits pursuant to forest licence agreements entered into under the Act is limited by many of the regulations enacted pursuant to the Code.  Specifically, the Operational Planning Regulations [B.C. Reg. 174/95] identify areas where the District Manager must satisfy himself of the nature of the various kinds of public consultations that have occurred and need to occur.  According to sections 5–8 of the Operational Planning Regulations the proponent of an operational plan or forest development plan is required to ensure that the best information available is used and that the District Manager approves of it.  

 

[32] Under the Regulations, before a person submits, or a District Manager puts into effect, a forest development plan, they must publish notice of the plan to the public (s.2).  The District Manager must provide an opportunity for review and comment to an interested or affected person (s.4(4)), and must consider all comments received (s.4(5)).  

 

[33] Section 4(4) of the Regulations provides:

 

An opportunity for review and comment provided to an interested or affected person under s-s.(1) will only be adequate for the purposes of that subsection if, in the opinion of the district manager, the opportunity is commensurate with the nature and extent of that person’s interest in the area under the plan and any right that person may have to use the area under the plan.

 

[34] Finally, under s.6(1)(a) of the Regulations the District Manager has a discretion to require that operational plans be referred to any other resource agency, person, or other agency he may specify.  I observe in passing that the District Manager’s discretion to determine the adequacy of the opportunity to “review and comment” does not extend to that consultation required by the jurisprudence concerning the Crown’s obligation to justify infringement of aboriginal or treaty rights.  

 

[35] The proponent of a plan is under an obligation to use the best information available (s.11(1)) and to use all information known to the person (s.11(2)(b)).  These provisions confer a very broad discretion.  It would appear, however, to be the sort of discretion calling for expertise beyond that of a professional forester.  Whether a set plan of logging is acceptable to those members of the public who have a stake in it appears to be a question of judgment that any properly informed person would be as well able to answer as a forester.

 

[36] In summary then, the District Manager’s powers to issue cutting permits are found in s.10 of the 1979 Forest Act as amended by s.247 of the Code in 1994, and those powers are subject to the requirements of the Code.  The preamble to the Code states the guiding principles for forest management which include meeting “the economic and cultural needs of First Nations”.  Section 4(4) to the Regulations gives the District Manager a discretion to determine the adequacy of consultation with interested parties, as specified in s.4(1).

 

IV The Decision of the District Manager

[37] After investigation, reviews and discussion, the District Manager finally decided to issue C.P.212 on 13 September, 1996.  His reasons for doing so are set out in a letter he wrote to Chief Metecheah on 3 October, 1996.  In summary, the District Manager held:

 

1.   Canfor’s application for C.P.212 was consistent with Canfor’s approved five year forest development plan;

 

2.   C.P.212 was in substantial compliance with the requirements of the Forest Practices Code;

 

3.   Canfor’s harvesting operations would have minimal impacts on wildlife habitat suitability and capability for ungulates (moose and deer) and black bear in the area;

 

4.   There would be minimal to no impact on fish habitat or fishing activities;

 

5.   It was not the policy of the Provincial government to halt resource development pending resolution of a Treaty Land Entitlement Claim (TLEC) advanced by the petitioners against the federal Crown;

 

6.   Canfor would be required to perform an Archeological Impact Assessment (AIA) in block 4 of C.P.212 where an old First Nations pack trail was located;

 

7.   The proposed harvesting plan included sufficient measures to mitigate any concerns as to the trapping of fur bearing animals in the area;

 

8.   Canfor’s plan would deactivate all roads seasonally, to make them impassable, and on completion of harvesting, would deactivate the roads permanently.

 

9.   Canfor’s proposed harvesting activities would not infringe the petitioners’ Treaty 8 rights of hunting, fishing and trapping.

 

[38] There does not appear to be any statutory requirement for the giving of such reasons, either oral or written.  The reasons are useful, however, because they record the factors the District Manager took into account in reaching his decision, and they lend an air of openness to the process he followed.  On the other hand, the giving of reasons may suggest a more judicial or quasi-judicial process than is required by the legislative scheme.

 

V The Decision of the Chambers Judge

[39] The Halfway River First Nation brought an application for judicial review, seeking to quash the decision of the District Manager to issue C.P.212.  That application was brought pursuant to the Judicial Review Procedure Act, which provides remedies for administrative actions in excess of statutory powers.  Whether this was the proper form of proceedings to bring is considered more fully below.  On that application, Madam Justice Dorgan granted certiorari and quashed the decision of the District Manager, citing reasons related to the various issues involved, which are outlined below.

 

     A.   Fettering:

 

[40] The learned chambers judge held that the District Manager had fettered his discretion.  She said at para.35:

 

[35] Notwithstanding these references which indicate a notion of weighing various interests, on the whole of the record I am satisfied that Lawson fettered his discretion by treating the government policy of not halting development as a given and by simply following the direction of the Minister of Forests not to halt development.  This is particularly evident from p.4 of his Reasons for Decision which reads:

 

     … in December 1995 the Minister of Forests advised both ourselves and the Halfway band that it is not the policy of the provincial government to halt resource development pending resolution of the Treaty Land Entitlement (TLE) claim and that we must honour legal obligations to both the Forest Industry as well as First Nations.  This fact was again reiterated by Janna Kumi, Assistant Deputy Minister, Operations, upon her meeting with the Halfway Band in January 1996.

 

     B.   Bias

 

[41] The learned chambers judge held that there was no actual bias in the District Manager’s decision, but that there was a reasonable apprehension of bias.  She said at paras.48-9:

 

[48] However, a further statement by Lawson is of concern.  In his letter to Chief Metecheah dated August 29, 1996 Lawson states:

 

     “I must inform you that if the application is in order and abides by all ministry regulations and the Forest Practices Code I have no compelling reasons not to approve their application.” 

 

This statement strongly suggests that Lawson had already concluded that there was no infringement of Treaty or Aboriginal Rights.  His only remaining concerns about the application were with respect to compliance with MOF and Code requirements.  He requests information on Aboriginal and Treaty Rights with respect to future Canfor activities but makes no reference to such rights vis-a-vis CP212.  The only conclusion to be drawn from this letter is that Lawson had already decided that there was no infringement of Halfway’s rights.

 

[49] As well, it should be noted that at paragraph 18 of the affidavit of David Menzies, he states:

 

     Approval to proceed with harvesting in Blocks 1, 2, 4, 5, 17 and 19 was granted by the District Manager on September 13, 1996 (attached as Exhibit 8).  The formal application letter was only sent after the Ministry of Forests confirmed that the application would be granted, consistent with the approval already granted for the Development Plan.

                                   [emphasis added]

 

This evidence indicates that once the Development Plan was approved, all applications for cutting permits within it will likely be approved as well and is evidence which supports a finding of a reasonable apprehension of bias.

 

 

[42] She held that the petitioners had not waived their right to rely on the allegation of apprehended bias.

 

     C.   The District Manager’s “Errors of Fact”

 

[43] The learned chambers judge held that it was patently unreasonable for the District Manager to conclude that there was no infringement of the petitioner’s hunting rights under Treaty 8.  In reaching this conclusion, she said in part at paras. 63, 66 and 68:

 

[63] In the present case, it cannot be said that there was no evidence supporting Lawson’s finding that Aboriginal and Treaty Rights would not be infringed.  Lawson had the CHOA report and information provided by BCE staff regarding the impact of harvesting on the traditional activities of hunting, trapping and fishing.

                       . . .

 

[66] Given the limited evidence available to Lawson, the factual conclusions which he reached as to infringement of Treaty 8 or Aboriginal Rights is unreasonable.  There was some evidence supporting his findings, however, Lawson had no information from Halfway.  How can one reach any reasonable conclusion as to the impact on Halfway’s rights without obtaining information from Halfway on their uses of the area in question?  This problem was recognized in the CHOA report, which stated, at 33-34:

 

     In summary, the Cultural Heritage (Ethnographic) Overview presented here provides a useful starting point for assessing the extent of the Halfway River First Nation’s use of the Tusdzah study area.  It demonstrates the area was, and continues to be, utilized for hunting, fishing, trapping and plant collecting, and provides a ranking of the use potential for each of these activities.  However, these data alone are not sufficient to understanding the issues surrounding infringement of Treaty and/or Aboriginal rights of the Halfway River Peoples.  It is my opinion that additional cultural and ecological studies of the Tusdzah study area are required before this issue can be adequately addressed.

                       . . .

 

     However, as discussed above, there are numerous shortcomings with a study of this nature, from both a cultural and ecological perspective.  In fact, I suggest that until more detailed information is obtained in both these areas, studies such as this will fail to adequately address the concerns and management needs of forest managers and First Nations.

 

                       . . .

 

[68] Given the importance attached to Treaty and Aboriginal Rights, in the absence of significant information and in the face of assertions by Halfway as to their uses of CP212, it was patently unreasonable for Lawson to conclude that there was no infringement.

 

 

     D.   Notice

 

[44] The learned chambers judge held that the highest standard of fairness should apply in the circumstances of this case, and although the petitioners had some notice of Canfor’s application for C.P.212, that notice was inadequate because the petitioners did not see Canfor’s application in final form until after the Cutting Permit had been approved by the District Manager, and the petitioners had no specific notice that the District Manager would make his decision on 13 September, 1996 or on any other date.  The history of the notice given to the petitioners is set out in para.73 of her reasons.

 

     E.   Infringement of Treaty 8 Right to Hunt

 

[45] The learned chambers judge held that there was a prima facie infringement of the petitioners Treaty 8 right to hunt, as recognized and affirmed by s.35(1) of the Constitution Act, 1982 which provides:

 

35.  (1)  The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 

 

[46] She held that infringement was to be determined in accordance with the test laid down in R. v. Sparrow, supra.  She said in part at paras.91-93:

 

[91] Pursuant to Treaty 8 the Beaver First Nation (of which Halfway is a member) agreed to surrender “all their rights, titles and privileges whatsoever” to the Tusdzuh area.  Treaty 8 appears to have extinguished any non-Treaty Aboriginal Rights Halfway may have had prior to entering into the Treaty.

 

     See for example Ontario (Attorney General) v. Bear Island Foundation, 1991 CanLII 75 (SCC), [1991] 2 S.C.R. 570 at 575; 83 D.L.R. (4th) 381.

 

[92] In return for the surrender of land, the government agreed that the Natives would have the “right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered.”  In R. v. Noel, 1995 CanLII 6237 (NWT TC), [1995] 4 C.N.L.R. 78 at 88 (N.W.T. Terr. Ct.), Halifax J. stated:

 

     There is no doubt that Treaty No. 8 provided a right to fish, hunt and trap to persons covered under that Treaty.

 

[93] According to the Treaty, these rights were subject to “such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

 

[47] She held, citing R. v. Badger, supra (at para.101): 

 

… that any interference with the right to hunt, fish or trap constitutes a prima facieinfringement of Treaty 8 rights.

 

[48] She considered the availability to Canfor of other areas in which to log at para.108:

 

[108]     While the onus is on the petitioners to establish infringement, it is worth noting that there is no persuasive evidence to suggest that other areas do not exist which Canfor could log in place of CP212 to avoid interfering with aboriginal rights.

 

 

She said at para.114:

 

[114]     The MOF and Canfor argue that Halfway has the rest of the Tusdzuh area in which to enjoy the preferred means of exercising its rights.  This again ignores the holistic perspective of Halfway.  Their preferred means are to exercise their rights to hunt, trap and fish in an unspoiled wilderness in close proximity to their reserve lands.  In that sense, the approval of CP 212 denies Halfway the preferred means of exercising its rights.

 

     F.   Justification of Infringement

 

[49] The learned chambers judge held that the Crown’s infringement of the petitioners’ Treaty 8 right to hunt was not justified because it had failed in its fiduciary duty to engage in adequate, reasonable consultation with the petitioners.  She said, in part at paras. 140-142 and 158-159:

 

[140]     In summary, then, the following meaningful opportunities to consult were provided:

 

     (a)  Fourteen letters from the MOF to Halfway during 1995 and 1996 requesting information and/or a meeting or offering consultation.

 

     (b)  Three meetings between Lawson and Halfway:  on November 27/28, 1995; and February 2 and May 13, 1996.

 

     (c)  Five telephone calls between the MOF and Halfway in 1995 and 1996.

 

     (d)  An opportunity to provide feedback on the CHOA.

 

[141]     The following reasonable opportunities to consult were denied to Halfway:

 

     (a)  Halfway was not invited to attend the meeting between MOF and Canfor employees at which the cutting permit was approved.

 

     (b)  The report “Potential Impacts to Fish & Wildlife Resources” was not provided to Halfway until August 26, 1996, despite that a draft copy was available January 4, 1996.

 

     (c)  There was no real opportunity to participate in the CHOA.

 

     (d)  Canfor’s actual application for CP212 was not provided to Halfway until after the decision was made.

 

[142]     While the MOF did make some efforts to inform itself, by requesting information from and meetings with Halfway, I have concluded these measures were inadequate.  Briefing notes prepared by the MOF indicate that there was inadequate information with respect to potential infringement of treaty and aboriginal rights.

 

                       . . .

 

[158]     Finally, the present case is categorically different from Ryan in that in the present case the MOF failed to make all reasonable efforts to consult.  In Ryan Macdonald J. stated, at 10, “I accept the submission that the M.O.F. more than satisfied any duty to consult which is upon it.”  While Halfway may not have been entirely reasonable, the fact remains that the MOF did not meet its fiduciary obligations.

                       . . .

 

[159](1)  Halfway has a treaty right to hunt, fish and trap in the Tusdzuh area.  There is some evidence to suggest that the harvesting in CP212 will infringe upon this right, and in my view this evidence establishes prima facie infringement.  The MOF has failed to justify this infringement under the second stage of the Sparrow test.  Of particular significance is the fact that the MOF did not adequately consult with Halfway prior to approving Canfor’s CP212 application.

 

     (2)  The MOF owes a fiduciary duty to Halfway.  As part of this duty, the MOF must consult with the Band prior to making decisions which may affect treaty or aboriginal rights.  The MOF failed to make all reasonable efforts to consult with Halfway, and in particular failed to fully inform itself respecting aboriginal and treaty rights in the Tusdzuh region and the impact the approval of CP212 would have on these rights.  The MOF also failed to provide Halfway with information relevant to CP212 approval.

 

 

VI Issues

[50] The following issues are raised by this appeal:  

 

     1.   Whether judicial review of the District Manager’s decision to issue a cutting permit is a proper proceeding in which to consider the alleged infringement of treaty rights;

     2.   The standard of review to be applied by this Court in reviewing the chambers judge’s decisions as to fettering, reasonable apprehension of bias, adequacy of notice, and opportunity to be heard;

     3.   Whether the chambers judge erred in deciding that the District Manager had fettered his discretion, that there was a reasonable apprehension of bias, or that there was inadequate notice, or opportunity to be heard;

     4.   Whether the chambers judge applied the correct standard of review to the District Manager’s decision that treaty rights had not been infringed, and that the cutting permit should issue;

     5.   What is the true interpretation of Treaty 8, and the effect of s.35 of the Constitution Act, 1982, and then, whether the petitioner’s right to hunt under the Treaty has been infringed; and

     6.   If there is an infringement of treaty rights, whether that infringement is justified.

 

VII Form of Proceedings

[51] Madam Justice Southin takes the position that this Court should not decide the question of treaty rights or infringement on an application for judicial review, and that an action properly constituted is necessary for that purpose.  With respect I take a different view of that matter.

 

[52] Review of administrative decisions is traditionally challenged by way of judicial review:  Judicial Review Procedure Act, R.S.B.C. 1996, c. 241s.2(a).  The Halfway River First Nation was a party in the consultation process contemplated under the Forest Practices Code and by Ministerial policy guidelines.  It brought a petition for certiorari, seeking to quash the District Manager’s decision.  Such proceedings are usually decided on affidavit evidence.  

[53] Where the issues raised on such an application are sufficiently complex, and are closely tied to questions of fact, a chambers judge has a discretion to order a trial of the proceedings. Under Supreme Court Rule 52(11)(d), “the court may order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed, and may give directions for the conduct of the trial and of pre-trial proceedings, and for the disposition of the application.”  The court’s powers under this Rule can be invoked on the court’s own motion or on an application of a party.  

 

[54] Here we are told by counsel for the Minister that he took the position in the court below that the issue of Treaty rights and their breach had not been properly raised in the petition, and could not properly be decided on affidavit evidence, and without pleadings.  The chambers judge does not mention these matters in her reasons, and it is impossible to tell how strenuously the point was argued.  In any event, counsel for the Minister does not appear to have moved under Rule 52(11)(d) to have the proceedings converted into a trial.  

 

[55] In considering whether to issue C.P.212, the District Manager must be taken to have been aware of his fiduciary duty to the petitioners, as an agent of the Crown, of the right the petitioners asserted under Treaty 8, and of the possibility that issuance of the permit might constitute an infringement of that right.  Of necessity his decision included a ruling on legal and constitutional rights.  On these matters his decision is owed no deference by the courts, and is to be judged on the standard of correctness.  

 

[56] Those matters are nonetheless capable of disposition on affidavit evidence on an application for judicial review.  And the District Manager and the forest industry would be in an impossible situation if, before deciding to issue a cutting permit, the applicant was required to commence an action by writ for resolution of any dispute over treaty rights, and the District Manager was bound to wait for the disposition of such an action (and the appeals) before deciding to issue a permit.

 

[57] The learned chambers judge had a discretion under Rule 52(11)(d) whether to have the proceedings converted into a trial, and I am not at all persuaded that she erred in the exercise of that discretion by proceeding as she did.  Counsel for the minister did not make a motion under the Rule, and it would be unfair to all concerned to refuse now to decide the treaty issues dealt with by the chambers judge, and which the District Manager could not avoid confronting.

 

VIII Standard of Review to be Applied to the Decision of the Chambers Judge Concerning Fettering, Bias, Notice and Hearing

 

 

[58] The learned chambers judge held that the process followed by the District Manager offended the rules of procedural fairness in four respects:  he fettered his decision by applying government policy; he pre-judged the merits of issuance of the cutting permit before hearing from the petitioners; he failed to give the petitioners adequate notice of his intention to decide whether to issue C.P.212; and he failed to provide an opportunity to be heard.  These are all matters of procedural fairness, and do not go to the substance or merits of the District Manager’s decision.  There is, therefore, no element of curial deference owed to that decision by either the chambers judge or by this Court.  

 

[59] The chambers judge’s decisions on fettering, apprehension of bias, inadequacy of notice and opportunity to be heard are all questions of mixed law and fact.  To the extent that her decision involves questions of fact decided on affidavit and other documentary evidence, this Court would intervene only if the decision was clearly wrong, that is to say not reasonably supported by the evidence:  see Placer Development Limited v. Skyline Explorations Limited (1985), 67 B.C.L.R. 367 (C.A.)at 389; Colliers Macaulay Nichols Inc. v. Clark, [1989] B.C.J. No. 2445 (C.A.) at para.13; Orangeville Raceway Limited v. Wood Gundy Inc. (1995), 1995 CanLII 2663 (BC CA), 6 B.C.L.R. (3d) 391 (C.A.) at 400; and Rootman Estate v. British Columbia (Public Trustee), [1998] B.C.J. No. 2823 (C.A.) at para.26.

 

[60] To the extent that her decision involves questions of law this Court would, of course, intervene if it were shown that the judge misapprehended the law or applied the appropriate legal principles incorrectly.

 

IX Whether the Chambers Judge Erred in Deciding Those Issues

     A.   Fettering

 

[61] The learned chambers judge held (para.35) that the District Manager fettered his discretion concerning issuance of the cutting permit by “treating the government policy of not halting development as a given and by simply following the direction of the Minister of Forests not to halt development.”

 

[62] The general rule concerning fettering is set out in Maple Lodge Farms Ltd. v. Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2, which holds that decision makers cannot limit the exercise of the discretion imposed upon them by adopting a policy, and then refusing to consider other factors that are legally relevant.  Other cases to the same effect are Davidson v. Maple Ridge (District) (1991), 60 B.C.L.R. (2d) 24 (C.A.) and T(C) v. Langley School District No. 35 (1985), 1985 CanLII 557 (BC CA), 65 B.C.L.R. 197 (C.A.).  Government agencies and administrative bodies must, of necessity, adopt policies to guide their operations.  And valid guidelines and policies can be considered in the exercise of a discretion, provided that the decision maker puts his or her mind to the specific circumstances of the case rather than blindly following the policy: see Maple Lodge Farm, supra at pages 6-8 and Clare v. Thompson (1983), 1993 CanLII 523 (BC CA), 83 B.C.L.R. (2d) 263 (C.A.).  It appears to me, with respect, that the learned chambers judge applied correct legal principles in her consideration of whether the District Manager fettered his discretion.  

 

[63] The question then is whether she applied those principles correctly in the circumstances of this case.  In my respectful view she did not.  Government policy, as expressed by the District Manager, was to not halt resource development pending resolution of the TLECs.  In other words, such claims would not be treated as an automatic bar to the issuance of cutting permits.  Even though such a claim was pending in respect of a potential logging area, the policy was to consider the application for a cutting permit in accordance with the requirements of the regulations, Act and Code.

 

[64] A TLEC does not, on its face, require the cessation of all logging in the subject area.  Such a claim does not impose any obligation on the District Manager, or on the Ministry generally.  The claim is simply one factor for the District Manager to consider with respect to the land’s significance as a traditional hunting area, and to potential land use.

 

[65] The government policy in respect of TLECs does not preclude a District Manager from considering aboriginal hunting rights, and the effect that logging might have upon them.  It is apparent in this case that the District Manager gave a full consideration to the information before him concerning those hunting rights.  Cognisance by him of the government policy on TLECs did not give rise to the automatic issuance of a cutting permit without further consideration of other matters relevant to that decision.

 

[66] I am therefore of the view that the learned chambers judge erred in applying the legal principles concerning fettering to the facts of this case.  While the existence of TLEC was a factor for the District Manager to consider, the government policy of not halting resource development while such a claim was pending did not limit or impair the District Manager’s discretion, or its exercise.  Misapplication of the appropriate legal principle is an error of law that this Court can and should correct.

 

     B.   Reasonable Apprehension of Bias

 

[67] The basic legal test on this issue is whether reasonable right-minded persons informed of the relevant facts, and looking at the matter realistically and practically, would consider that the District Manager had prejudged the question of whether to issue C.P.212: see Committee for Justice and Liberty v. Canada (National Energy Board) (1978), 1976 CanLII 2 (SCC), 1 S.C.R. 369 at 394-95, and Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 1992 CanLII 84 (SCC), 1 S.C.R. 623.

 

[68] The matter is a little more complex in this case where the District Manager’s role includes both an investigative and an adjudicative function.  The expression of a tentative or preliminary opinion on what the evidence shows in the investigative stage does not necessarily amount to a reasonable apprehension of bias:  see Emcom Services Inc. v. British Columbia (Council of Human Rights) (1991), 49 Admin.L.R. 220 (B.C.S.C.) and United Metallurgists of America Local 4589 v. Bombardier-MLW Limited, 1980 CanLII 178 (SCC), [1980] 1 S.C.R. 905.

 

[69] In a case such as this the District Manager has a continuing and progressive role to play in making the numerous enquiries required of him by the Regulations, Act and Code, and in communicating with the applicant and others who have a stake in his decision.  It is to be expected that his conclusions would develop over time as more information was obtained, and as interested parties made their positions known.  His “decision letter” was written to Chief Metecheah on 3 October, 1996, but it is clear that the components of that decision were the result of previous investigations and deliberations.

 

[70] In these circumstances I think one should be very cautious about inferring prejudgment or the appearance of bias to the District Manager.

 

[71] The learned chambers judge’s conclusion that there was a reasonable apprehension of bias is based primarily on the statement the District Manager made in his letter of 29 August, 1996 to Chief Metecheah, that if the appellants’ application complied with the Ministry’s regulations and the Code he had “no compelling reasons” not to approve their application.

 

[72] Applying the legal test set out above, and having regard to the nature of the District Manager’s investigative and adjudicative roles, it would, in my view, be unreasonable to infer from that letter that the District Manager had closed his mind to anything further the petitioners might wish to put forward.  A fair reading of his statement is that he had formed a tentative view on the information then available that the permit should issue, but that the final decision had not been made, and he was prepared to refuse issuance of the permit if there was a good reason to do so.

 

[73] Nor in my view does the statement from David Menzies’ affidavit, quoted at para.49 of the chambers judge’s reasons, support an inference of bias reasonably apprehended.  Administrative procedures followed by the District Manager in confirming approval of the appellants’ application, before the formal application was received, are consistent with the continuing nature of the District Manager’s contact and dialogue with the applicants.

 

[74] It may be that the District Manager held a mistaken view of the law concerning the Crown’s duty to satisfy itself that there was no infringement of the aboriginal right to hunt, and that the onus did not lie upon the petitioners to assert and prove that right or infringement.  But in my view a misapprehension of the law by an administrative officer does not necessarily demonstrate a failure by him to keep an open mind, or an unwillingness to decide the issues on the merits as he saw them.  Even the most open minds may sometimes fall into legal error.

 

[75] In my respectful view, the learned chambers judge erred in holding that the District Manager’s conduct gave rise to a reasonable apprehension of bias.

 

     C.   Adequacy of Notice

 

[76] The learned chambers judge held that the petitioners did not have adequate notice that the District Manager would make his decision on 13 September, 1996 (para.78 of her reasons).  With respect, I think the learned chambers judge more closely equated the decision making process in this case with a purely adjudicative process than is warranted by the legislative scheme.

 

[77] As indicated above, this is not a case where a formal hearing on a fixed date was held or required.  The District Manager’s job required him to develop information over time, and it was properly within his role as an administrator to make tentative decisions as he went along, up to the time when he was finally satisfied that a cutting permit should or should not issue in accordance with the requirements of the Regulations, Act and Code.  

 

[78] In para.73 of her reasons the learned chambers judge set out in detail the means by which the petitioners were made aware of Canfor’s logging plans for the area covered by C.P.212.  The first notice, on the chambers judge’s findings of fact, occurred in 1991.  On 8 November, 1995 the District Manager sent the petitioner a copy of Canfor’s application for C.P.212, and on 5 March, 1996 the District Manager wrote to the petitioners’ lawyer to advise that “a decision regarding C.P.212 would be made within the next couple of weeks”.  In fact, the decision was not made for another six months.

 

[79] On 13 May, 1996 the District Manager provided the petitioners with a map of Canfor’s proposed harvesting activities, including blocks in C.P.212.  The map was colour-coded and clearly identified the cut blocks under consideration by the District Manager.  The learned chambers judge described the meeting at which this map was presented to the petitioners as “the only true advance notice” of Canfor’s plans, but she held it to be defective as notice because it did not give the date on which his decision would be made.  

 

[80] In my respectful view the learned chambers judge was plainly wrong to conclude that adequate notice had not been given in this case.  Only if it could be said that notice of a fixed date for decision was required by law could her conclusion be justified.  For the reasons expressed above, notice of such a fixed date was not required either by the statute, or by the requirements of procedural fairness.  Imposing a requirement for such a fixed date would be inconsistent with the administrative regime under which the District Manager operated, and would unnecessarily restrict the flexibility that such a regime contemplates.  The petitioners were well aware of Canfor’s plans to log in the area covered by C.P.212 and had time to submit evidence and to make representations.  The notice was adequate in the context of the legislative scheme, and the nature of the District Manager’s duties.

 

     D.   The Right to be Heard

 

[81] The learned chambers judge dealt with this issue at paras. 69-72.  She held that the District Manager had not met the high standards of fairness in ensuring that the petitioners had an effective opportunity to be heard.  She said the right to be heard was very similar to the consultation requirement encompassed by the Ministry’s fiduciary duty to the petitioners.

 

[82] Under the legislative scheme described above, there is no requirement for the District Manager to hold a formal “hearing”, and in fact none was.  However, the legislation and the Regulations do require consideration of First Nations’ economic and cultural needs, and imply a positive duty on the District Manager to consult and ascertain the petitioners’ position, as part of an administrative process that is procedurally fair.  As the District Manager did not do this it is my view that the learned chambers judge was correct in holding there to have been a breach of the duty of procedural fairness. 

 

     E.   Conclusion on Administrative Law Issues

 

[83] In my respectful view, there was a failure to provide the petitioners an adequate opportunity to be heard.  Otherwise, there was no lack of procedural fairness on any of the other grounds asserted by the petitioners, and found by the learned chambers judge.

 

X The Standard of Review Applicable to the District Manager’s Decision

 

[84] The learned chambers judge treated the District Manager’s decision as to treaty rights, and breach of same, as a question of fact (see para.37 above, quoting the chambers judge’s reasons at paras. 63, 66 and 68).  She appears to have concluded, or assumed, that it was within the statutory powers of the District Manager to decide such matters, and she therefore asked whether his decisions on those matters were patently unreasonable.  She concluded that the District Manager’s decisions on those matters were patently unreasonable (see her conclusion No. 5 at para.158), and she therefore held that she was justified in substituting her view on those matters for those of the District Manager.

 

[85] With respect, interpreting the treaty, deciding on the scope and interplay of the rights granted by it to both the petitioners and the Crown, and determining whether the petitioners’ rights under the treaty were infringed, are all questions of law, although the last question may be one of mixed fact and law.  Even though he has a fiduciary duty, the District Manager had no special expertise in deciding any of these issues, and as I understand the legislation, he has no authority to decide questions of general law such as these.  To the extent that his decisions involve legal components, in the absence of any preclusive clause, they are reviewable on the standard of correctness:  see Pezim v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557 at para.63; Zurich Insurance Company v. Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554; and University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353.

 

[86] Moreover, as an agent of the Crown, bound by a fiduciary duty to the petitioners arising from the treaty in issue, the District Manager could not be seen as an impartial arbitrator in resolving issues arising under that treaty.  To accord his decision on such questions the deference afforded by the “patently unreasonable” standard would, in effect, allow him to be the judge in his own cause.

 

[87] As I consider these issues, characterized in the chambers judge’s reasons as aboriginal issues, to be questions of law, the test applied to the District Manager’s decision is that of correctness.  Similarly, of course, the standard of correctness applies to her conclusions.  In other words, the question for us is whether she erred in law.

 

XI Treaty 8

     A.   Principles of Treaty Interpretation

 

[88] The principles applicable in the interpretation of treaties between the Crown and First Nations have been discussed and expounded in a number of cases:  see Calder v. Attorney General of British Columbia, 1973 CanLII 4 (SCC), [1973] S.C.R. 313 at p.404; R. v. Sutherland, 1980 CanLII 18 (SCC), [1980] 2 S.C.R. 451; R. v. Taylor (1981), 1981 CanLII 1657 (ON CA), 34 O.R. (2d) 360 (Ont.C.A.); R. v. Bartleman (1984), 1984 CanLII 547 (BC CA), 55 B.C.L.R. 78 (C.A.); Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29; Simon v. R., 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387; R. v. Horse, supraSaanichton Marina Ltd. et al v. Tsawout Indian Band (1989), 1989 CanLII 2721 (BC CA), 36 B.C.L.R. (2d) 79 (C.A.); Mitchell v. Peguis Indian Band, 1990 CanLII 117 (SCC), [1990] 2 S.C.R. 85; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025; R. v. Sparrow, supra; and R. v. Badger, supra.

 

[89] In Saanichton v. Tsawout, supra, Mr. Justice Hinkson conveniently summarized the then principles of interpretation at pp. 84-85:

(b)  Interpretation of Indian treaties – general principles

 

     In approaching the interpretation of Indian treaties the courts in Canada have developed certain principles which have been enunciated as follows:

 

     (a)  The treaty should be given a fair, large and liberal construction in favour of the Indians;

 

     (b)  Treaties must be construed not according to the technical meaning of their words, but in the sense that they would naturally be understood by the Indians;

 

     (c)  As the Honour of the Crown is always involved, no appearance of “sharp dealing” should be sanctioned;

 

     (d)  Any ambiguity in wording should be interpreted as against the drafters and should not be interpreted to the prejudice of the Indians if another construction is reasonably possible;

 

     (e)  Evidence by conduct or otherwise as to how the parties understood the treaty is of assistance in giving it content.

 

[90] Paragraph (d) in that list should now be modified to include the statement of Mr. Justice Cory in R. v. Badger, supra at 794:

 

Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians.  A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed.

 

[91] And to para.(e) one might add the following, from R. v. Sioui, supra, at 1035, per Lamer, J. (as he then was):

 

In particular, [Courts] must take into account the historical context and perception each party might have as to the nature of the undertaking contained in the document under consideration ….

 

[92] Those are the principles which I consider applicable in the circumstances of this case. 

 

     B.   The Parties’ Positions

 

         1.   The Appellants’ Position

 

[93] The positions of the Ministry of Forests and of Canfor are very similar, if not identical, and I consider them together.

 

[94] Both the Minister and Canfor say that the Indian right to hunt preserved in paragraph 9 of Treaty 8 (quoted above at para.2 of these reasons) is expressly made subject to two independent rights of the Crown which are of equal status to the Indian’s rights.  Those two Crown rights are the government power to regulate hunting etc. and the government right to “require” or “take up” parts of the Treaty lands for, inter alia, “lumbering”.  The appellants say that the Crown’s right to require or take up lands for one of the listed purposes limits or qualifies the petitioners’ right to hunt.  The appellants say the Crown’s right to acquire or take up land is clearly expressed, and is not ambiguous.

 

[95] The appellants say that no extrinsic evidence is necessary or admissible to alter the terms of the treaty by adding to or subtracting from its express terms.

 

[96] The appellants say the granting of C.P.212 was an exercise by the Crown of its express right to require or take up land, and there is therefore no infringement of the petitioners’ treaty right to hunt.

 

[97] The appellants say that the learned chambers judge erred when she held that any interference with the petitioners’ right to hunt was a breach of Treaty 8, and say further that she erred in basing her decision on the petitioners’ “holistic perspective” and in holding that they had the right to exercise their “preferred means” of hunting in an “unspoiled wilderness”.  The Minister says such conclusions are embarrassing as they do not reflect the historical realities of what had occurred in the Tusdzuh (mining and oil and gas exploration) before the granting of C.P.212.

 

[98] The appellants say that s.35 of the Constitution Act, 1982 gives the petitioners no better position than they held before 1982, because their right to hunt in the treaty lands was, and remains, a defeasible right subject to derogation by the Crown’s exercise of its rights.  The power to require and take up lands remains unimpaired by s.35.

 

[99] The appellants maintain that “taken up” includes designation of land by the Crown in a cutting permit, and that visible signs of occupation, or incompatible land use (see R. v. Badger, supra, at paragraphs 53, 54, and 66-68) are not necessary as indicia.  The appellants say those considerations that are relevant where an Indian is charged with an offence as in Badger, are not relevant here where such an offence is not alleged, and the Crown is merely exercising its Treaty right.

 

[100]     So the appellants say that as a result of the “geographical limitation” in Treaty 8 the Crown is entitled to take up Treaty lands for “settlement, mining, lumbering, or other purposes” without violating any promise made by the Crown to the Indians.  As there has been no infringement of Indian treaty rights, no “justification” analysis is required.

 

         2.   The Petitioners’ Position

 

[101]     The petitioners say that the Crown’s (and Canfor’s) approach to Treaty 8 would give the Crown “the unlimited and unfettered right to take up any land or all lands as it sees fit and does not have to justify its decision in any way”.  It says this approach would allow the Crown to ignore the impact of such conduct on the rights of aboriginal signatories and would render meaningless the 1982 constitutionalization of Treaty rights.  The Crown’s approach, say the petitioners, is therefore unreasonable and manifestly wrong.  To give the Treaty such an interpretation would not uphold the honour and integrity of the Crown.

 

[102]     The petitioners say that the government power to require or take up land is not a separate right in itself.  It is rather a limitation on the petitioners’ right to hunt, etc.  The petitioners say s.35 guaranteed the aboriginal rights to hunt and fish.  The Crown’s right of defeasance is not mentioned in s.35, and is therefore not subject to a similar guarantee.

 

[103]     Prior to 1982, before the right to hunt was guaranteed by s.35, the Crown could have exercised its right of defeasance, and so overridden or limited the right to hunt.  But since the enactment of s.35 the Crown’s right is not so unlimited.  Now the Crown can only exercise its right after consultation with the Indians.  The Treaty creates competing, or conflicting rights – the Indian right to hunt on the one hand, and the Crown’s right to take up such hunting grounds for the listed purposes on the other.  Such competing rights cannot be exercised in disregard of one another.  If exercise of the Crown right will impair or infringe the aboriginal right, then such infringement must be justified on the analysis set out in Sparrow, supra (a non-Treaty case).

 

[104]     The petitioners say the meaning of the Treaty proviso allowing the Crown to require or take up lands is ambiguous and can be read in more than one way.  It should therefore be read in the context of the Crown’s oral promises at the time of Treaty negotiations.  Extrinsic evidence, including the representations made by the Crown’s negotiators to the signatories in 1899, as well as in 1900, is admissible for the purposes of construing the Treaty.  The petitioners say the Treaty should be read in a broad, open fashion, and construed in a liberal way in favour of the Indians.  All subsequent adhesions refer back to the Treaty made at Lesser Slave Lake with the Cree people in 1899, and the oral promises made there are essential to a true understanding of the Treaty made with the petitioners’ forebears.

 

     C.   The Admissibility of Extrinsic Evidence

 

[105]     In support of its argument against the admissibility of extrinsic evidence, The Ministry of Forests relies on R. v. Horse, supra, where Mr. Justice Estey, writing for the court, said at S.C.R. 201:

 

     I have some reservations about the use of this material as an aid to interpreting the terms of Treaty No. 6.  In my view the terms are not ambiguous.  The normal rule with respect to interpretation of contractual documents is that extrinsic evidence is not to be used in the absence of ambiguity; nor can it be invoked where the result would be to alter the terms of a document by adding to or subtracting from the written agreement.

 

And further at p.203:

 

     In my opinion there is no ambiguity which would bring in extraneous interpretative material.  Nevertheless I am prepared to consider the Morris text, proffered by the appellants, as a useful guide to the interpretation of Treaty No. 6.  At the very least, the text as a whole enables one to view the treaty at issue here in its overall historical context.

 

[106]     Those comments were made in a case involving Treaty 6, which has an identical “geographical limitation” to that contained in Treaty 8.  Further, Horse was concerned with the interpretation of s.12 of the Saskatchewan Natural Resources Transfer Agreement, which required interpretation of the words “unoccupied Crown land” and “right of access”, language not at issue in this case.  Counsel for the Ministry also referred us to R. v. Sioui, supra and R. v. Badger, supra.  In my respectful view, the conventional statement of the rule governing admissibility of extrinsic evidence enunciated in R. v. Horse has been somewhat relaxed by subsequent decisions.  In R. v. Sioui, supra, after referring to R. v. Horse at p.1049, Mr. Justice Lamer (as he then was) said at p.1068:

 

     The historical context, which has been used to demonstrate the existence of the treaty, may equally assist us in interpreting the extent of the rights contained in it.  As MacKinnon J.A. said in Taylor and Williams, supra, at p.232:

 

         Cases on Indian or aboriginal rights can never be determined in a vacuum.  It is of importance to consider the history and oral traditions of the tribes concerned, and the surrounding circumstances at the time of the treaty, relied on by both parties, in determining the treaty’s effect.

 

[107]     And in R. v. Badger, supra, Mr. Justice Cory for the majority held at pp.798-9:

     Third, the applicable interpretative principles must be borne in mind.  Treaties and statutes relating to Indians should be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians.  In addition, when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing.  The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement:  see Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), at pp.338-42;Sioui, supra, at p.1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991); Jean Fiesen, Grant me Wherewith to Make my Living (1985).  The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines.  Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories.  Even if they had been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently.  As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction.  Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing.  This applies, as well, to those words in a treaty which impose a limitation on the right which has been granted.  See Nowegijick, supra, at p.36; Sioui, supra, at pp. 1035-36 and 1044; Sparrow, supra, at p.1107; and Mitchell, supra, where La Forest J. noted the significant difference that exists between the interpretation of treaties and statutes which pertain to Indians. 

 

[108]     I observe in passing that R. v. Badger, like R. v. Horse also involved interpretation of s.12 of the Natural Resources Transfer Agreement, 1930.  But I understand the ruling concerning the admissibility of extrinsic evidence to be equally applicable in a case such as this one, where that agreement is not in issue.

 

[109]     In this case, the learned chambers judge held that extrinsic evidence was admissible to explain the “context” in which the Treaty was signed (at paras. 96-98 of her reasons).  In my respectful view in so doing she did not err in principle.  The passage quoted above from the judgment of Mr. Justice Cory in Badger at pp.798-9 is particularly apt in this case.  The Treaty, written in English, purports to reflect the mutual understanding of the Crown and all aboriginal signatories.  The understanding of the aboriginal peoples cannot be deduced from the language of the Treaty alone, because its meaning to the aboriginal signatories could only have been expressed to them orally by interpretation into their languages, and by whatever oral explanations were necessary to ensure their understanding.

 

     D.   What Extrinsic Evidence is Admissible

 

[110]     The Crown says, without admitting any ambiguity in the Treaty, that even if extrinsic evidence is admissible for the purpose of giving historical context, evidence of the Commissioner’s Report on negotiations in 1899 is not admissible in this case, because there is no evidence that what was said by the government negotiators at Lesser Slave Lake, and elsewhere in 1899, was also said at Fort St. John in 1900, when the Beaver people signed.  In particular, the Crown says that the passage of the Commissioner’s Report referred to by Mr. Justice Cory in Badger, and by the learned chambers judge in this case, is not evidence of what was said to the Beaver people at Fort St. John.  In the Crown’s submission, only the report of the Commissioners made in 1900 is admissible.

 

[111]     What the Commissioners report of 1889 said, as quoted in part by the learned chambers judge at para.98 of her reasons, is this:

 

There was expressed at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges, … We pointed out … that the same means of earning a livelihood would continue after the treaty as existed before it …

 

     Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed.  The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits.  But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.

 

[112]     In my respectful view, the position of the Crown on this issue is not tenable.  The adhesion signed by the representatives of the Beaver people at Fort St. John in 1900 contains this:

 

     The Beaver Indians of the Upper Peace River and the country thereabouts, having met at Fort St. John, on this thirtieth day of May, in this present year 1900, Her Majesty’s Commissioner, James Ansdell Macrae, Esquire, and having had explained to them the terms of the treaty unto which the Chief and Headmen of the Indians of Lesser Slave Lake and adjacent country set their hands on the twenty-first day of June, in the year 1899, do join in the cession made by the said Treaty, and agree to adhere to the terms thereof in consideration of the undertakings made therein.

                                      (my emphasis)

 

[113]     The terms of the Treaty signed by the Indians at Lesser Slave Lake had been explained to them orally, as indicated in the Commissioner’s report in 1899, and it is therefore, in my view, a reasonable inference from the terms of the Beavers’ adhesion in 1900 that the terms of the Treaty were explained to them in similar, if not identical, terms.

 

[114]     Moreover, it would not be consistent with the honour and integrity of the Crown to accept that the Treaty was interpreted and explained to the Indians at Lesser Slave Lake in one way, but interpreted and explained to the Beaver at Fort St. John in another less favourable and more limited way.  To accept the proposition put forward by the Ministry would be to acknowledge that the same Treaty language is to be given different meanings in respect of different signatories.  Only the clearest evidence could persuade me to such a conclusion, and such evidence is not present in this case.

 

[115]     The Ministry of Forests further objects to the admission of the affidavit evidence of Father Gabriel Breynat, an interpreter present at the signing of Treaty 8 in 1899 at Fort Chippewan, and Fond du Lac.  This affidavit was sworn in 1937 at Ottawa, Ontario.  The Ministry says the document is irrelevant, and in addition has not been properly proven as an ancient document.

 

[116]     The objection as to relevance is similar to the Crown’s objection to the Commissioner’s Report of 1899, as relating to events at a different time and place, and with a different Indian people.  I would not give effect to the objection based on relevance for the reasons expressed above.

 

[117]     Turning to the question of proof, the general rule in Canada governing the admissibility of ancient documents (a document more than thirty years old) is that any document “which is produced from proper custody, is presumed in the absence of circumstances of suspicion, to have been duly signed, sealed, attested, delivered, or published according to its purport”:  Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (Toronto: Butterworths, 1992) at 955.  If there are suspicious circumstances surrounding the origins of the document, the court will either require proof of the execution of it as being in a similar manner as the execution of a similar document of a more recent date.  Further, documents are considered to have been in “proper custody” when they have been kept by someone in a place where the documents might reasonably and naturally be expected to be found:  Sopinka et al, supra at 956, citing Doe d. Jacobs v. Phillips (1845), 8 Q.B. 158, 115 E.R. 835, and Thompson v. Bennett (1872), 22 U.C.C.P. 393 (C.A.).

 

[118]     The affidavit of Father Breynat appears on its face to have been executed in a manner consistent with the execution of modern affidavits.  The copy produced is not entitled in any particular cause or matter, and one cannot tell from the document itself the purpose for which it was sworn.  I would not say that this gives rise to suspicions concerning its origins, but rather that there is an unanswered question as to why it was sworn.

 

[119]     The affidavit of Father Breynat was adduced in these proceedings as an exhibit to the affidavit of Michael Pflueger.  He is Alberta counsel representing the Halfway River First Nation in its Treaty Land Entitlement Claim.  His affidavit does not disclose in whose custody Father Breynat’s affidavit has been kept.  There is a notation at the top of page 1 of Father Breynat’s affidavit, clearly not part of the original, which says “Anthropology UA”, which I take to be a reference to the Anthropology Department at the University of Alberta.  However, there is nothing to indicate whether the University was the custodian of the document.  Mr. Pflueger deposes that the affidavit of Father Breynat is part of “the standard treaty package that is submitted with Treaty Land Entitlement Claims”.

 

[120]     On the evidence as it stands, I do not think there is any indication of suspicious circumstances surrounding the document’s origins.  However, I think the evidence falls short of proving that the document was produced from “proper custody”.  Wigmore, Evidence in Trials at Common Law vol. 7 (Boston: Middlebound & Company, 1978) explains why evidence as to custody of such a document is important:

 

A forger usually cannot secure the placing of a document in such custody; and hence the naturalness of its custody, being relevant circumstantially, is required in combination with the document’s age.

 

I think therefore that Father Breynat’s affidavit is inadmissible as not having been properly proven.  The learned chambers judge did not refer to this affidavit, so she cannot be said to have made any error on that account.

 

     E.   R. v. Sparrow and its Application

 

[121]     In R. v. Sparrow, supra, the Supreme Court of Canada considered the effect of s.35(1) of the Constitution Act, 1982 on the status of aboriginal rights, and set out a framework for deciding whether aboriginal rights had been interfered with, and if so, whether such interference could be justified.  In Sparrow a native fisher was charged with an offence under the Fisheries Act, R.S.C. 1970, CF-14.  In his defence, he admitted the constituent elements of the charge, but argued that he was exercising an existing aboriginal right to fish, and that the statutory and regulatory restrictions imposed were inconsistent with s.35.

 

[122]     The court held that the words in s.35 “existing aboriginal rights” must be interpreted flexibly, so as to permit their evolution over time, and that “an approach to the constitutional guarantee embodied in s.35(1) that would incorporate ‘frozen rights’ must be rejected.”  It held that the Crown had failed to discharge the onus of proving that the aboriginal right to fish had been extinguished, and it held that the scope of the right to fish for food was not confined to mere subsistence, but included as well fishing for social and ceremonial purposes.

 

[123]     The court also considered the meaning of the words “recognized and affirmed” in s.35.  It held that a generous, liberal interpretation of those words was required.  It held the relationship between government and aboriginal peoples was trustlike, rather than adversarial, and that the words “recognized and affirmed” incorporated a fiduciary relationship, and so imported some restraint on the exercise of sovereign power.  Federal legislative powers continue to exist, but those powers “must be reconciled with the federal duty”, and that reconciliation could best be achieved by requiring “justification” of any government regulation that infringed or denied aboriginal rights.  Section 35 was therefore “a strong check on legislative power”.  The court emphasized the importance of “context” and the “case by case approach to s.35(1)”.

 

[124]     The court then set out the test for prima facie interference with an existing aboriginal right.  First, does the impugned legislation have the effect of interfering with an existing aboriginal right, having regard for the character or incidence of the right in issue?  Infringement may be found where the statutory limitations on the right are unreasonable, impose undue hardship, or deny the aboriginal the preferred means of exercising the right.  The question is whether either the purpose or effect of the statutory regulation unnecessarily infringes the aboriginal interest.

 

[125]     The court then considered the question, if a prima facie infringement be found, of how the Crown could show that the infringement was justified.  The justification analysis involved asking whether there is a valid legislative objective. In the context of Sparrow, conservation and resource management were considered to be valid legislative objectives.  The Crown has a heavy burden on the justification issue because its honour is at stake.  Justification also requires considering whether the aboriginal interest at stake has been infringed, “as little as possible”, whether in cases of expropriation fair compensation is available, and whether the aboriginal group has been consulted with respect to conservation, or at least informed of the proposed regulatory scheme.  This list of factors was said not to be exhaustive.

 

[126]     There are several features in the present case that differ from Sparrow, and the extent to which those differences may qualify or limit Sparrow’s application to this case will have to be considered.  First, there is the fact that the right to hunt in this case is based on Treaty 8.  There was no treaty in Sparrow.  Second, Sparrow is another case involving the allegation of an offence against a native person, in answer to which charge he has relied upon his aboriginal right.  In this case there is no offence alleged.  It is the provincial Crown which asserts a positive right under Treaty 8 to require or to take up land as the basis for its legislative scheme in respect of forestry.  Third, in Sparrow the attack was made on the constitutional validity of federal legislation, the Fisheries Act.  In this case the petitioners do not allege that any legislation is unconstitutional.  The amended petition alleges that the decision of the District Manager in issuing C.P.212 was in breach of constitutional or administrative law duties.  The attack is therefore on executive or administrative conduct rather than on any legislative enactment.  Fourth, and finally, it is provincial legislation that authorizes the impugned conduct.  In Sparrow, the attack was on federal legislation.

 

[127]     The fact that a treaty underlies the aboriginal right to hunt in this case does not, to my mind, render inapplicable the s.35(1) analysis engaged in by the court in Sparrow.  Section 35(1) gives constitutional status to both aboriginal and treaty rights.  As indicated above, treaties with aboriginal peoples have always engaged the honour and integrity of the Crown.  The fiduciary duties of the Crown are, if anything, more obvious where it has reduced its solemn promises to writing.

 

[128]     As noted above in discussing some of the other cases, there is in this case no allegation of an offence by an aboriginal person.  The Crown asserts its positive rights under the Treaty as the basis for its forestry program.  In Sparrow, the federal Crown relied on its enumerated powers in s.91 of the Constitution Act, 1867 (the BNA Act) as the basis for its legislative and regulatory scheme in respect of fisheries.  Here, even if one accepts that the Crown’s right to require or take up land under Treaty 8 has achieved constitutional status under s.35(1) (a position which the petitioners stoutly reject), its authority to act could be no higher than the constitutional powers the federal Crown sought to exercise in Sparrow.

 

[129]     In my view the fact that the Crown asserts its rights under Treaty 8 can place it in no better position vis-a-vis a competing or conflicting aboriginal treaty right than the position the Crown enjoys in exercising the powers granted in either s.91 or 92 of the Constitution Act, 1867.

 

[130]     There is also a distinction between the alleged unconstitutionality of legislation in Sparrow, and the attack here on the conduct of a government official; and the fact that the conduct was authorized under provincial legislation, whereas in Sparrow a federal statute was impugned.  Here the petitioners do not challenge the validity of the provincial legislation concerning forestry.  They seek to prohibit any activity in connection with C.P. 212 until the Ministry has fulfilled its “fiduciary and constitutional” duty to consult with the petitioners.  

 

     F.   Interpretation of Treaty 8 and Infringement of the Right to Hunt

 

 

[131]     The appellants say the learned chambers judge erred in holding, at para.101, that: “…That any interference with the right to hunt, fish or trap constitutes a prima facie infringement of Treaty 8 rights” and further erred in holding (at para.114) that the issue was to be considered from the petitioners’ “holistic perspective”, and that the approval of C.P.212 denied the petitioners “their preferred means… to hunt… in an unspoiled wilderness in close proximity to their reserve lands.”  The appellants assert the Crown’s independent right under the Treaty to require or take up lands as described above in these reasons.

 

[132]     I begin by observing that earlier cases involving the interpretation of the proviso in Treaty 8 (e.g. R. v. Badger, supra) or similar language in other treaties (e.g. R. v. Horse, supra) are of limited assistance for two reasons.  First, they are cases involving a charge against an Indian for breach of a provincial statute, in answer to which the accused relied upon the treaty right to hunt.  Second, they are cases involving the interpretation of s.12 of the Natural Resources Transfer Agreement, in addition to the language of the treaty granting the right to hunt.  The only case we were cited involving the interpretation of Treaty 8, and in which the Natural Resources Transfer Agreement was not a factor, is R. v. Noel, 1995 CanLII 6237 (NWT TC), [1995] 4 C.N.L.R. 78, a decision of the Northwest Territories Territorial Court.  As with the other cases, Noel was a charge against a native for breach of legislation in answer to which he relied on his Treaty 8 right to hunt.

 

[133]     A second observation I would make is that prior to the enactment of s.35 of the Constitution Act, 1982, parliamentary sovereignty was not limited or restricted by treaties with aboriginal peoples, and the federal government had the power to vary or repeal treaty rights by act of parliament:  see R. v. Sikyea, 1964 CanLII 62 (SCC), [1964] S.C.R. 642, and Daniels v. White, 1968 CanLII 67 (SCC), [1968] S.C.R. 517 where the Migratory Birds Convention Act was held to supersede Indian treaty rights. 

 

[134]     The third observation I would make is that the Indians’ right to hunt granted to the signatories of Treaty 8, and the Crown’s right to regulate, and to require or take up lands, cannot be given meaning without reference to one another.  They are competing, or conflicting rights as has been recently affirmed in R. v. Sundown, 1999 CanLII 673 (SCC), [1999] S.C.J. No. 13 at paras. 42 and 43.  The Indians’ right to hunt is subject to the “geographical limitation”, and the Crown’s right to take up land cannot be read as absolute or unrestricted, for to do so (as even the Crown concedes) would render the right to hunt meaningless.  Such a position cannot be asserted in conformity with the Crown’s honour and integrity.  So even before the enactment of s.35 in 1982, a balancing of the competing rights of the parties to the Treaty was necessary.

 

[135]     Fourth, the enactment of s.35 in 1982 has improved the position of the petitioners.  Their right to hunt, and other treaty rights, now have constitutional status.  They are therefore protected by the supreme law of Canada, and those rights cannot be infringed or restricted other than in conformity with constitutional norms. 

 

[136]     I am therefore of the view that it is unrealistic to regard the Crown’s right to take up land as a separate or independent right, rather than as a limitation or restriction on the Indians’ right to hunt.  In either case, however, the Crown’s right qualifies the Indians’ rights and cannot therefore be exercised without affecting those rights.

 

[137]     The effect of the decision to issue C.P.212, and the reasonableness of the District Manager’s decision, must be viewed in the context of the competing rights created by Treaty 8, namely the Indians’ right to hunt, and the government’s right to take up land for lumbering.  The petitioners’ interest in the logging activity proposed in the Tusdzuh was known from the outset, and it was recognized by both appellants.  In his letter of 3 October, 1996, the District Manager recognized the petitioners’ assertion of a Treaty Land Entitlement Claim (TLEC) in the area where C.P.212 was located, as well as the effect logging might have on wildlife habitat and hunting activities.  His view was that Canfor’s proposed logging plan would have “minimal impact” on those matters, and that the plan included elements that would “mitigate” the impact of logging.  

[138]     In my view the District Manager effectively acknowledged that C.P.212 would affect the petitioners’ hunting rights in some way.  Given the fiduciary nature of the relationship between government and Indians, and the constitutional protection afforded by s.35 over the treaty right to hunt, it seems to me that the interference contemplated by C.P.212 amounts to an infringement of the petitioners’ right to hunt.  The granting of C.P.212 was the de facto assertion of the government’s right to take up land, a right that by its very nature limited or interfered with the right to hunt.

 

[139]     I do not think the learned chambers judge erred in holding that any interference with the right to hunt was a prima facie infringement of the petitioners’ Treaty 8 right to hunt.

 

[140]     In my respectful view, the learned chambers judge overstated the petitioners’ position in holding that they were entitled to exercise their “preferred means of hunting” by doing so in an “unspoiled wilderness”.  The Tusdzuh was not unspoiled wilderness in 1996 when the District Manager approved C.P.212, nor was it unspoiled wilderness in 1982 when treaty rights received constitutional protection.  This was a wilderness criss-crossed with seismic lines, where oil and gas exploration and mining had taken place.  

 

[141]     Nor do I think “preferred means” should be taken to refer to an area, or the nature of the area, where hunting or fishing rights might be exercised.  Those words more correctly refer to the methods or modes of hunting or fishing employed.  

 

[142]     But despite these disagreements with the reasons of the learned chambers judge, I do not think she erred in concluding that approval of C.P.212 constituted a prima facie infringement of the Treaty 8 right to hunt because the proposed activity would limit or impair in some degree the exercise of that right.

 

[143]     The appellants contend that in reaching that conclusion the learned chambers judge substituted her finding of fact for that of the District Manager.  But the interpretation of Treaty rights, and a decision as to whether they have been breached, are not within any jurisdiction conferred on the District Manager by the Forest Act, Forest Practices Code or relevant regulations.  They are questions of law and even the District Manager acknowledges that the proposed harvesting would have some effect on hunting.  He said (at p.3 of the letter of 3 October, 1996) that:

 

…the proposed harvest areas would have minimal impacts on wildlife habitat suitability and capability for ungulates and black bear…

 

[144]     I respectfully agree with the learned chambers judge that any interference with the right to hunt is a prima facie infringement of the Indians’ treaty right as protected by s.35 of the Constitution Act, 1982.

 

XII Justification

[145]     The analysis required in deciding whether infringement of a treaty right is justified is referred to above briefly in paragraph 83.  Although Sparrow was not a treaty case, in my view the same approach is warranted here as in cases of aboriginal rights, as both treaty and aboriginal rights have constitutional protection under s.35(1) of the Constitution Act, 1982.

 

[146]     Justification requires consideration of the following questions (said in Sparrow not to be an exhaustive or exclusive list):

     1.   Whether the legislative or administrative objective is of sufficient importance to warrant infringement; 

     2.   Whether the legislative or administrative conduct infringes the treaty right as little as possible;

     3.   Whether the effects of infringement outweigh the benefits derived from the government action; and

     4.   Whether adequate meaningful consultation has taken place.

 

[147]     Overriding all these issues is whether the honour and integrity of the Crown has been upheld in its treatment of the petitioners’ rights. 

 

[148]     I will consider those issues in turn.

 

     A.   Importance of the Legislative Objective

 

[149]     The learned chambers judge does not appear to have addressed this question, nor does the petitioner appear to have led any evidence to suggest that the objectives of the Forest Act and Code are not of sufficient importance to warrant infringement of the petitioners right to hunt.

 

[150]     It would, in my view, be unduly limited, and therefore wrong, to consider the objective in issuing a cutting permit only from the perspective of Canfor’s presumed goal to have a productive forest business with attendant economic benefits, or from the perspective of the Provincial Government to have a viable forest industry and a vibrant Provincial economy.  The objectives of the forestry legislation go far beyond economics.  The preamble to the Code (see para.28 above) refers to British Columbians’ desire for sustainable use of the forests they hold in trust for future generations, and to the varied and sometimes competing objectives encompassed within the words “sustainable use”.

 

[151]     In Sparrow the legislative objective was found to be conservation of the fishery, and the Court held that to be a sufficiently important objective to warrant infringement of the aboriginal right to fish for food.  Viewing the legislative scheme in respect of forestry as a whole, and by a parity of reasoning with Sparrow, in my view the legislative objectives of the Forest Act and Code are sufficiently important to warrant infringement of the petitioners’ treaty right to hunt in the affected area.  Those objectives include conservation, and the economic and cultural needs of all peoples and communities in the Province.

 

     B.   Minimal Impairment

 

[152]     As with the first issue, the learned chambers judge does not appear to have addressed directly the question of minimal infringement.  When dealing with the issue of infringement of the right to hunt, she did say (at para.108) that “there is no persuasive evidence to suggest that other areas do not exist which Canfor could log in place of C.P.212 to avoid interfering with aboriginal rights”.

 

[153]     But the learned chambers judge stopped short of saying that minimal interference means no interference, and correctly so, for the law does not impose such a stringent standard.  In R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013 at 1065, the Court held that “[s]o long as the infringement was one which in the context of the circumstances presented could reasonably be considered to be as minimal as possible then it will meet the test”.

 

[154]     The onus for showing minimal impairment rests on the Crown.  See Semiahmoo Indian Band v. Canada (1997), 1997 CanLII 6347 (FCA), 148 D.L.R. (4th) 523, [1998] 1 C.N.L.R. 250 at 268 (F.C.A.).  

 

[155]     In this context, the findings of the District Manager are significant.  He found (see para.32 above) that Canfor’s proposed operations would have minimal impacts on wildlife habitat suitability and capability for moose, deer and bear, that there would be minimal to no impact on fish habitat or fishing activities, and that the proposed harvesting plan included sufficient measures to mitigate any concerns as to the trapping of fur bearing animals in the area.

 

[156]     In my respectful view, these findings, which are within the scope of the District Manager’s authority to make, are sufficient to meet the tests for minimal impairment or infringement of the right to hunt.

 

     C.   Whether the Effects of Infringement Outweigh the Benefits to be Derived from the Government Action

 

[157]     Again, this issue was not addressed by the chambers judge.  Given the minimal effects on hunting that the proposed logging would have, as found by the District Manager, and in the absence of any evidence to the contrary, it is in my view a fair inference that the benefits to be derived from implementation of the legislative scheme, and the issuance of cutting permits in accordance with its requirements, would outweigh any detriment to the petitioners caused by the infringement of the right to hunt.

 

     D.   Adequate Meaningful Consultation

 

[158]     The learned chambers judge found that there had been inadequate consultation with the petitioners, and it is upon this ground that she found the Crown had failed in its attempts to justify the infringement of the petitioners’ right to hunt.  

[159]     It is perhaps worth mentioning here the difference between adequate notice as a requirement of procedural fairness (considered above at paras.66-70) and adequate consultation, which is a substantive requirement under the test for justification.  The fact that adequate notice of an intended decision may have been given, does not mean that the requirement for adequate consultation has also been met.

 

[160]     The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action:  see R. v. Sampson (1995), 1995 CanLII 3254 (BC CA), 16 B.C.L.R. (3d) 226 at 251 (C.A.); R. v. Noel, 1995 CanLII 6237 (NWT TC), [1995] 4 C.N.L.R. 78 (Y.T.T.C.) at 94-95; R. v. Jack (1995), 1995 CanLII 3450 (BC CA), 16 B.C.L.R. (3d) 201 at 222-223 (C.A.); Eastmain Band v. Robinson (1992), 1992 CanLII 2415 (FCA), 99 D.L.R. (4th) 16 at 27 (F.C.A.); and R. v. Nikal, supra.

 

[161]     There is a reciprocal duty on aboriginal peoples to express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them.  They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions:  see Ryan et al v. Fort St. James Forest District (District Manager) (25 January, 1994) Smithers No. 7855, affirmed (1994), 40 B.C.A.C. 91.

 

[162]     The chambers judge’s findings as to what steps were taken by way of consultation are matters of fact that cannot be impugned unless there is no evidence to support them.  In my view there is such evidence and we must accept the facts as found by her.

 

[163]     It remains to consider the adequacy or inadequacy of the Crown’s efforts in that behalf.

 

[164]     The learned chambers judge found (at para.141) that:

 

     The following reasonable opportunities to consult were denied to Halfway:

 

     (a)  Halfway was not invited to attend the meeting between MOF and Canfor employees at which the cutting permit was approved.

 

     (b)  The report “Potential Impacts to Fish & Wildlife Resources’ was not provided to Halfway until August 26, 1996, despite that a draft copy was available January 4, 1996.

 

     (c)  There was no real opportunity to participate in the CHOA.

 

     (d)  Canfor’s actual application for CP212 was not provided to Halfway until after the decision was made.

 

[165]     These findings, particularly (b) and (c) support the conclusion that the Crown did not meet the first and second parts of the consultation test referred to, namely to provide in a timely way information the aboriginal group would need in order to inform itself on the effects of the proposed action, and to ensure that the aboriginal group had an opportunity to express their interests and concerns.

 

[166]     I respectfully agree with the learned chambers judge that given the positive duty to inform resting on the Crown, it is no answer for it to say that the petitioners did not take affirmative steps in their own interests to be informed, conduct that the learned chambers judge described as possibly “not … entirely reasonable”.

 

[167]     As laid down in the cases on justification, the Crown must satisfy all aspects of the test if it is to succeed.  Thus, even though there was a sufficiently important legislative objective, the petitioners rights were infringed as little as possible, and the effects of the infringement are outweighed by the benefits to be derived from the government’s conduct, justification of the infringement has not been established because the Crown failed in its duty to consult.  It would be inconsistent with the honour and integrity of the Crown to find justification where the Crown has not met that duty.

 

XIII Remedy

[168]     The learned chambers judge granted “an order quashing the decision made September 13, 1996 which approved the application for CP.212”.

 

[169]     I would dismiss the appeal from that order for the reasons given above.

 

 

“The Honourable Mr. Justice Finch”

 

 

 

Reasons for Judgment of the Honourable Madam Justice Huddart:

 

 

[170]                       My approach to the issues on this appeal varies somewhat from those of my colleagues, whose reasons I have had the opportunity to read in draft.  While I agree entirely with Mr. Justice Finch with regard to the administrative law issues, like Madam Justice Southin I part company with him on his application of the principles from Sparrow, supra, to the circumstances of this case.

 

[171]                       The larger question may be whether the province’s forest management scheme permits the accommodation of treaty and aboriginal rights with the perceived rights of licensees. However, the constitutionality of the legislative scheme governing the management of the province’s forests is not in issue on this appeal.  So we must accept, for the purposes of our analysis in this case, that the legislature and executive have provided an acceptable method of “recognizing and affirming” treaty and aboriginal rights of first nations in making the decisions required by that management scheme.  The scheme obviously contemplates situations where shared use would be made of the territory in question.  Shared use was also envisaged by the treaty makers on both sides of Treaty 8.  That is evident from the evidence in this case and from the discussion in Badger, supra, about the same Treaty 8.  Thus accepting the adequacy of the legislative scheme to accommodate treaty and aboriginal rights is not necessarily offensive to the interests of the Halfway River First Nation. 

 

[172]                       I agree with Mr. Justice Finch that the District Manager’s decision must be reviewed “in the context of the competing rights created by Treaty 8”.  On the facts as the District Manager found them, however, this is not a case of “visible incompatible uses” such as would give rise to the “geographical limitation” on the right to hunt as Cory J. discussed it in Badger, supra.

 

[173]                       I do not think the District Manager for a moment thought he was “taking up” or “requiring” any part of the Halfway traditional hunting grounds so as to exclude Halfway’s right to hunt or to extinguish the hunting right over a particular area, whatever the Crown may now assert in support of his decision to issue a cutting permit. At most the Crown can be seen as allowing the temporary use of some land for a specific purpose, compatible with the continued long-term use of the land for Halfway’s traditional hunting activities.  The Crown was asserting a shared use, not a taking up of land for an incompatible use.  There was evidence before the District Manager to support a finding that the treaty right to hunt and Canfor’s tree harvesting were compatible uses.  That finding must underpin his conclusion that CP212 would not infringe the treaty right to hunt.

[174]                       Nor do I agree with Canfor’s argument that the test formulated by Cory J. in Badger is not applicable to a lumbering use.  Justice Cory is clear that, “whether or not land has been taken up or occupied is a question of fact that must be resolved on a case-by-case basis” i.e. whether a proposed use is incompatible with the treaty right is a question of fact.  The same can be said of “required or taken up … for the purpose of … lumbering”, although I would compare lumbering more with the wilderness park use in R. v. Sioui 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025 and R. v. Sundown 1999 CanLII 673 (SCC), [1999] S.C.J. No. 13, than with settlement, or the use for a game preserve in Rex v. Smith (1935), 1935 CanLII 140 (SK CA), 2 W.W.R. 433 (Sask. C.A.) or a public road corridor in R. v.Mousseau 1980 CanLII 194 (SCC), [1980] 2 S.C.R. 89. 

 

[175]                       The District Manager’s task was to allocate the use of the land in the Timber Supply Area among competing, perhaps conflicting, but ultimately compatible uses among which the land could be shared; not unlike the sharing of herring spawn in R. v. Gladstone 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723.

 

[176]                       Nevertheless, a shared use decision may be scrutinized to ensure compliance with the various obligations on the District Manager, including his obligation to “act constitutionally”, as I recall Crown counsel putting it in oral argument.  Counsel agreed Sparrow provided the guidelines for that scrutinization on judicial review if a treaty right was engaged and I will expand further on that analysis below.

[177]                       Just as the impact of a statute or regulation may be scrutinized to ensure recognition and affirmation of treaty rights of aboriginal peoples, so may the impact of a decision made under such a statute or regulation by an employee of the Crown.  The District Manager can no more follow a provision of a statute, regulation, or policy of the Ministry of Forestry in such a way as to offend the Constitution than he could to offend the Criminal Code or the Offence Act.

 

[178]                       I share Mr. Justice Finch’s view that the District Manager was under a positive obligation to the Halfway River First Nation to recognize and affirm its treaty right to hunt in determining whether to grant Cutting Permit 212 to Canfor.  This constitutional obligation required him to interpret the Forest Act and the Forest Practices Code so that he might apply government forest policy with respect for Halfway’s rights.  Moreover, the District Manager was also required to determine the nature and extent of the treaty right to hunt so as to honour the Crown’s fiduciary obligation to the first nation: Delgamuukw v. B.C.1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010 at 1112-1113 per Lamer C.J.C.; and see the discussion by Williams C.J.S.C. in Cheslatta Carrier Nation v. B.C. (1998), 1998 CanLII 6737 (BC SC), 53 B.C.L.R. 1 at 14-15.

[179]                        Mr. Justice Finch points out that the District Manager’s failure to consult adequately precluded justification under the second stage of the Sparrow analysis of the infringement of the Halfway treaty right to hunt he considered was constituted by CP212.  In my view this deficiency in the decision-making process is a breach of the Crown’s fiduciary responsibilities that makes this Court’s application of the Sparrow analysis premature.

 

[180]                       Because only the first nation will have information about the scope of their use of the land, and of the importance of the use of the land to their culture and identity, if the Sparrow guidelines are to organize the review of an administrative decision it makes good sense to require the first nation to establish the scope of the right at the first opportunity, to the decision-maker himself during the consultation he is required to undertake, so that he might satisfy his obligation to act constitutionally.  It is only upon ascertaining the full scope of the right that an administrative decision maker can weigh that right against the interests of the various proposed users and determine whether the proposed uses are compatible. This characterization is crucial to an assessment of whether a particular treaty or aboriginal right has been, or will be infringed.  Thus, particularly in the context of a judicial review where the Court relies heavily upon the findings of the decision maker, a consideration of whether consultation has been adequate must precede any infringement/justification analysis using the Sparrow guidelines.

 

[181]                       It is implicit in Halfway’s submission that the proposed lumbering use is incompatible with its rights or at least would be found to be so if the District Manager had full information and properly considered the scope of its treaty right to hunt and of its aboriginal right to use the particular tract in question for religious and spiritual purposes.

 

[182]                       The requirement that a decision-maker under the Forest Act and the Forest Practices Codeconsult with a first nation that may be affected by his decision does not mean the first nation is absolved of any responsibility.  Once the District Manager has set up an adequate opportunity to consult, the first nation is required to co-operate fully with that process and to offer the relevant information to aid in determining the exact nature of the right in question.  The first nation must take advantage of this opportunity as it arises.  It cannot unreasonably refuse to participate as the first nation was found to have done in Ryan et al v. Fort St. James Forest District (District Manager) (25 January, 1994) Smithers No. 7855, affirmed (1994), 40 B.C.A.C. 91.  In my view, a first nation should not be permitted to provide evidence on judicial review it has had an appropriate opportunity to provide to the decision-maker, to support a petition asserting a failure to respect a treaty right.

 

[183]                       The District Manager’s failure to consult adequately means that we cannot know what additional information might have been available to him regarding the nature and extent of the Treaty 8 right to hunt or of other aboriginal rights not surrendered by the treaty.  Nor can we know how he might have weighed that information with information he might have sought regarding other possible cutting areas to meet Canfor’s needs while minimizing the effects on the Halfway River First Nation’s treaty right to hunt.  Counsel adverted in argument to Canfor having obtained permits to cut in other areas to replace CP212 after the chambers judge made her order.  Finally, any weighing of benefits is limited by the evidence, in this case almost entirely put forward by Canfor.  Only when adequate consultation has taken place and both parties have fulfilled their respective consultation duties will the District Manager be in a position to determine whether the uses are compatible or a geographical limitation is being asserted, and the consequences in either event to the application for a cutting permit.

 

[184]                       Halfway did not receive an appropriate opportunity to establish the scope of its right.  Thus, the District Manager’s decision must be set aside because it was made without the information about Halfway’s rights he should have made reasonable efforts to obtain.  The most that can be decided definitively on judicial review in such circumstances is whether the legislative objective was sufficiently important to warrant infringement.  About that there has never been a question in this case.

 

[185]                       This conclusion does not signify agreement with Canfor’s submission that the interference by CP212 with Halfway’s treaty right to hunt could not be elevated to an infringement of a constitutional right.  There was evidence of a diminution of the treaty right in this case for the valid purpose of lumbering, a purpose recognized by the treaty itself as a reason for government encroachment on the treaty right to hunt.  There was evidence the proposed lumbering activity would preclude hunting in an area considerably larger than the particular cutting blocks during active logging for two years.  While mitigating steps were to be taken, there was also evidence of the detrimental effect of road construction on the long-term use of the area by native hunters.  Common sense suggests these effects might be sufficiently meaningful, particularly when they are felt in an area near the first nation’s reserve, to require justification by the government of its action, depending on the nature of the hunting right.  Had the District Manager understood the extent of his obligation to consult, he might have concluded the activities of Canfor authorized by CP212 would result in a meaningful diminution of the Treaty 8 right to hunt, just as he might have seen to the mitigation of such effects or to compensation for them as part of his analysis of how the proposed use and the treaty right could be accommodated to each other.

 

[186]     My difference with the reasoning of Mr. Justice Finch flows from my view that the chambers judge was wrong when she found that “any interference” with the right to hunt constituted an “infringement” of the treaty right requiring justification.  I cannot read either Sparrow or Badger to support that view.  As my colleague notes at para. 124, in Sparrow the court stated the question as “whether either the purpose or effect of the statutory regulation unnecessarily infringes the aboriginal interest.”  In Badger, at 818, in his discussion as to whether conservation regulations infringed the treaty right to hunt, Cory J. indicated the impugned provisions might not be permissible “if they erode an important aspect of the Indian hunting rights.” In Gladstonesupra, Lamer C.J.C. indicated that a “meaningful diminution” of an aboriginal right would be required to constitute an infringement.  Each of these expressions of the test for an “infringement” imports a judgment as to the degree and significance of the interference.  To make that judgment requires information from which the scope of the existing treaty or aboriginal right can be determined, as well as information about the precise nature of the interference.

 

[187]     Incidentally, as an aside, given the significance of particular land to aboriginal culture and identity, I would not preclude “preferred means” from being extended to include a preferred tract of land.  Proof may be available that use of a particular tract of land is fundamental to a first nation’s collective identity, as it is to many indigenous cultures.   While it may be that “preferred area” for hunting is not relevant, “preferred area” for religious and spiritual purposes is likely to be.  Such rights do not appear to have been included in the treaty-making one way or the other.

 

[188]     If, after the requisite consultation has occurred, the District Manager confirms the nature of his decision is one involving compatible shared uses, modification of the Sparrow guidelines for review of his allocation of the resources is likely to be necessary.  I find support for such modification in the following statement from Sparrow, at 1111 (per Dickson C.J.C. and La Forest J.):

        

        … We wish to emphasize the importance of context and a case-by-case approach to s. 35(1).  Given the generality of the text of the constitutional provision and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case.

[189]     As is apparent from the discussion in Gladstone, supra, it will be impossible to determine how the contours of the justificatory standard should be modified without an understanding of the existing treaty and aboriginal rights and the precise nature of the competing use or uses proposed.  Lamer C.J.C. emphasized the distinction between a right with an internal limit such as the right to fish for social, ceremonial and food purposes in Sparrow and a right with an external, market-driven limit such as the right to sell herring spawn commercially at issue in Gladstone. As he noted, the scope of the aboriginal right can determine whether or not exclusive exercise of that right is warranted or how the doctrine of priority will be applied in a government decision on resource allocation.  In the circumstances of the case at hand the scope of the Halfway nation’s hunting right is yet to be fully determined.  Thus it is impossible to reach a conclusion as to what justificatory standard would be applied to the issuance of the cutting permit.

 

[190]     Where the decision maker has determined the proposed uses are compatible with the aboriginal right, the question becomes one of accommodation as opposed to one of exclusive exercise of either the aboriginal right in question or the Crown’s proposed use.  In Siouisupra, the Court held it was up to the Crown “to prove that its occupancy of the territory cannot be accommodated to reasonable exercise of the Hurons’ rights,” if the Crown wanted to assert its occupancy of the land in question was incompatible with the Hurons’ religious customs or rites.  It may be that guidance can be found in this concept for the review of an administrative decision on the allocation of resources among compatible uses.  

 

[191]     In summary, so as to fulfill the Crown’s fiduciary and constitutional duties to Halfway, the District Manager is required to initiate a process of adequate and meaningful consultation with Halfway to ascertain the nature and scope of the treaty right at issue.  Having done so, and having determined the effect of the proposed non-aboriginal use, he then makes a determination as to whether the proposed use is compatible with the treaty right.  If it is he must seek to accommodate the uses to each other.  It will be that accommodation the court reviews within the contours of a justificatory standard yet to be determined.

 

[192]     If the District Manager determines the proposed use is incompatible with the treaty right, he will be asserting a geographical limitation on the treaty right.  In that event, I agree with Mr. Justice Finch that his decision may be reviewed under the Sparrow analysis.  

 

[193]     It follows from these reasons that I too would affirm the order of Dorgan J. setting aside the decision of the District Forest Manager to grant CP212.  

 

 

                                                            

                       “The Honourable Madam Justice Huddart”

 

Reasons for Judgment of the Honourable Madam Justice Southin:

 

[194]     This is an appeal by the respondents below from this judgment pronounced 24 June 1997:

 

     THIS COURT ORDERS that 

•           the decision of the District Manager made September 13, 1996, approving the application for Cutting Permit 212 be quashed; and

•           costs be awarded to the Petitioner.

 

[195]     What led to this judgment was a petition for judicial review brought in late 1996 for an order:

 

[1.  Reviewing and setting aside the decision of the Ministry of Forests to allow forestry ] activities within Cutting Permit 212;

 

2.   Declaring that the Ministry of Forests has a fiduciary and constitutional duty to adequately consult with the Halfway River First Nation and declaring that the level of consultation to date is insufficient;

 

3.   Compelling the Ministry of Forests to consult with the Halfway River First Nation with respect to the full scope, nature and extent of the impact of proposed forestry activities on the exercise of the Treaty and Aboriginal rights of the Halfway River First Nation in accordance with the reasons and directions of this Honourable Court, and compelling the Ministry of Forests to provide funding to the Halfway River First Nation to support this consultation process;

 

[There is no “4.” in the amended petition.]

 

5.   Remitting the matter to the Respondent Ministry of Forests to complete the consultation process and then reconsider and determine whether to consent to the proposed cutting activities, and to determine appropriate conditions and requirements to be imposed upon any such cutting activities;

 

6.   Prohibiting the Ministry of Forests from making any decision with respect to forestry activity within Cutting Permit 212 until completing the consultation process ordered by this Honourable Court.

 

7.   Retaining jurisdiction over matters dealt within this application such that any party may return to the Court, by motion, for determination of any issue relating to the consultation or the implementation of this Order.

 

8.   Such other relief as this Honourable Court may deem meet; and

 

9.   Costs on a solicitor client basis.

 

[196]     The central point was an assertion by the respondents in this Court that rights preserved to them under s. 35 of the Constitution Act, 1982 were infringed by that act of the District Manager.

 

[197]     The learned judge below had before her not only this petition for judicial review but also an application by the respondent below, here the appellant, Canadian Forest Products Ltd., more familiarly known in this Province as Canfor, for an interlocutory injunction restraining the Chief and Halfway River First Nation from interfering with the implementation of the cutting permit.

 

[198]     The petition recites that in support of it will be read the affidavits of Chief Bernie Metecheah, Chief George Desjarlais, Stewart Cameron, Peter Havlik, Judy Maas, and Michael Pflueger.  These affidavits and their exhibits comprise nearly 1,000 pages in the appeal book.

 

[199]     As both proceedings came on together, the learned judge below had affidavits from both sides in both proceedings.  In its action, Canfor filed the affidavits of James Stephenson, Jill Marks and J. David Menzies, totalling 330 pages of the appeal book.  The Crown in this proceeding filed, among others, two affidavits of Mr. Lawson, the District Manager, bearing date the 20th December, 1996, and amounting to 432 pages.  There were some further shorter affidavits from both sides.  Thus, the appeal book, excluding the reasons for judgment, judgment and notice of appeal, is 2,376 pages.

 

[200]     These proceedings engaged the chambers judge in eight days of hearing.

 

[201]     As I shall explain, I would allow the appeal on the simple footing that the central issue in this case concerning the existence or non-existence of rights in the Halfway River First Nation under s. 35 of the Constitution Act, 1982, ought to have been dealt with by action.  For a precedent of an action on a treaty, see Saanichton Marina Ltd. v. Claxton (1988), 1987 CanLII 2805 (BC SC), 18 B.C.L.R. (2d) 217, aff’d. (1989), 1989 CanLII 2721 (BC CA), 36 B.C.L.R. (2d) 79, in which the learned trial judge, Mr. Justice Meredith, most usefully included in his reasons for judgment the Tsawout Indian Band statement of claim. 

 

[202]     In revising these reasons, I have had the benefit of the draft reasons of my colleagues. 

 

[203]     If this were not the first case on the implications for British Columbia of Treaty 8 and if these implications did not go far beyond whether Canfor can or cannot log these cut blocks, I would agree with Mr. Justice Finch that, as the parties did not object to the mode of proceeding, it must be taken to be satisfactory.  But, in my opinion, the courts do have an obligation to ensure that a case the implications of which extend beyond the parties ─ and the implications of this case may extend not only to all the inhabitants of the Peace River but also, because the Peace River country is not poor in resources, to all the inhabitants of British Columbia ─ is fully explored on proper evidence.  Furthermore, to my mind, the so-called administrative law issues in this case are nothing but distractions from the issues arising on the Treaty.

 

[204]     By s. 35(1), of the Constitution Act, 1982:

 

35. (1)  The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.  

[205]     Because Treaty No. 8 is central to this case and to all other cases which may arise in the Peace River between First Nations, on the one hand, and the Crown and the non-aboriginal inhabitants on the other, I set it out in full:

 

                  TREATY No. 8

 

     ARTICLES OF A TREATY made and concluded at the several dates mentioned therein, in the year of Our Lord one thousand eight hundred and ninety-nine, between Her most Gracious Majesty the Queen of Great Britain and Ireland, by Her Commissioners the Honourable David Laird, of Winnipeg, Manitoba, Indian Commissioner for the said Province and the Northwest Territories; James Andrew Joseph McKenna, of Ottawa, Ontario, Esquire, and the Honourable James Hamilton Ross, of Regina, in the Northwest Territories, of the one part; and the Cree, Beaver, Chipewyan and other Indians, inhabitants of the territory within the limits hereinafter defined and described, by their Chiefs and Headmen, hereunto subscribed, of the other part:—

 

     WHEREAS, the Indians inhabiting the territory hereinafter defined have, pursuant to notice given by the Honourable Superintendent General of Indian Affairs in the year 1898, been convened to meet a Commission representing Her Majesty’s Government of the Dominion of Canada at certain places in the said territory in this present year 1899, to deliberate upon certain matters of interest to Her Most Gracious Majesty, of the one part, and the said Indians of the other.

 

     AND WHEREAS, the said Indians have been notified and informed by Her Majesty’s said Commission that it is Her desire to open for settlement, immigration, trade, travel, mining, lumbering, and such other purposes as to Her Majesty may seem meet, a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of Her Indian subjects inhabiting the said tract, and to make a treaty, and arrange with them, so that there may be peace and good will between them and Her Majesty’s other subjects, and that Her Indian people may know and be assured of what allowances they are to count upon and receive from Her Majesty’s bounty and benevolence.

 

     AND WHEREAS, the Indians of the said tract, duly convened in council at the respective points named hereunder, and being requested by Her Majesty’s Commissioners to name certain Chiefs and Headmen who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon, and to become responsible to Her Majesty for the faithful performance by their respective bands of such obligations as shall be assumed by them, the said Indians have therefore acknowledged for that purpose the several Chiefs and Headmen who have subscribed hereto.

 

     AND WHEREAS, the said Commissioners have proceeded to negotiate a treaty with the Cree, Beaver, Chipewyan and other Indians, inhabiting the district hereinafter defined and described, and the same has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands included within the following limits, that is to say:—

 

     Commencing at the source of the main branch of the Red Deer River in Alberta, thence due west to the central range of the Rocky Mountains, thence northwesterly along the said range to the point where it intersects the 60th parallel of north latitude, thence east along said parallel to the point where it intersects Hay River, thence northeasterly down said river to the south shore of Great Slave Lake, thence along the said shore northeasterly (and including such rights to the islands in said lakes as the Indians mentioned in the treaty may possess), and thence easterly and northeasterly along the south shores of Christie’s Bay and McLeod’s Bay to old Fort Reliance near the mouth of Lockhart’s River, thence southeasterly in a straight line to and including Black Lake, thence southwesterly up the stream from Cree Lake, thence including said lake southwesterly along the height of land between the Athabasca and Churchill Rivers to where it intersects the northern boundary of Treaty Six, and along the said boundary easterly, northerly and southwesterly, to the place of commencement.

 

     AND ALSO the said Indian rights, titles and privileges whatsoever to all other lands wherever situated in the Northwest Territories, British Columbia, or in any other portion of the Dominion of Canada.

     

     TO HAVE AND TO HOLD the same to Her Majesty the Queen and Her successors for ever.

 

     And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fish­ing throughout the tract surrendered as hereto­fore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settle­ment, mining, lumbering, trading or other purposes.

 

     And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such bands as desire reserves, the same not to exceed in all one square mile for each family of five for such number of families as may elect to reside on reserves, or in that proportion for larger or smaller families; and for such families or individual Indians as may prefer to live apart from band reserves, Her Majesty undertakes to provide land in severalty to the extent of 160 acres to each Indian, the land to be conveyed with a proviso as to non-alienation without the consent of the Governor General in Council of Canada, the selection of such reserves, and lands in severalty, to be made in the manner following, namely, the Superintendent General of Indian Affairs shall depute and send a suitable person to determine and set apart such reserves and lands, after con­sulting with the Indians concerned as to the locality which may be found suitable and open for selection.

 

     Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any band as She may see fit; and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty’s Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained.

 

     It is further agreed between Her Majesty and Her said Indian subjects that such portions of the reserves and lands above indicated as may at any time be required for public works, buildings, railways, or roads of whatsoever nature may be appropriated for that purpose by Her Majesty’s Government of the Dominion of Canada, due compensation being made to the Indians for the value of any improvements thereon, and an equivalent in land, money or other consideration for the area of the reserve so appropriated.

 

     And with a view to show the satisfaction of Her Majesty with the behaviour and good conduct of Her Indians, and in extinguishment of all their past claims, She hereby, through Her Commissioners, agrees to make each Chief a present of thirty-two dollars in cash, to each Headman twenty-two dollars, and to every other Indian of whatever age, of the families represented at the time and place of payment, twelve dollars.

 

     Her Majesty also agrees that next year, and annually afterwards for ever, She will cause to be paid to the said Indians in cash, at suitable places and dates, of which the said Indians shall be duly notified, to each Chief twenty-five dollars, each Headman, not to exceed four to a large Band and two to a small Band, fifteen dollars, and to every other Indian, of whatever age, five dollars, the same, unless there be some exceptional reason, to be paid only to heads of families for those belonging thereto.

 

     FURTHER, Her Majesty agrees that each Chief, after signing the treaty, shall receive a silver medal and a suitable flag, and next year, and every third year thereafter, each Chief and Headman shall receive a suitable suit of clothing.

 

     FURTHER, Her Majesty agrees to pay the salaries of such teachers to instruct the children of said Indians as to Her Majesty’s Government of Canada may seem advisable.

 

     FURTHER, Her Majesty agrees to supply each Chief of a Band that selects a reserve, for the use of that Band, ten axes, five hand-saws, five augers, one grindstone, and the necessary files and whetstones.

 

     FURTHER, Her Majesty agrees that each Band that elects to take a reserve and cultivate the soil, shall, as soon as convenient after such reserve is set aside and settled upon, and the Band has signified its choice and is prepared to break up the soil, receive two hoes, one spade, one scythe and two hay forks for every family so settled, and for every three families one plough and one harrow, and to the Chief, for the use of his Band, two horses or a yoke of oxen, and for each Band potatoes, barley, oats and wheat (if such seed be suited to the locality of the reserve), to plant the land actually broken up, and provisions for one month in the spring for several years while planting such seeds; and to every family one cow, and every Chief one bull, and one mowing-machine and one reaper for the use of his Band when it is ready for them; for such families as prefer to raise stock instead of cultivating the soil, every family of five persons, two cows, and every Chief two bulls and two mowing-machines when ready for their use, and a like proportion for smaller or larger families.  The aforesaid articles, machines and cattle to be given one for all for the encouragement of agriculture and stock raising; and for such Bands as prefer to continue hunting and fishing, as much ammunition and twine for making nets annually as will amount in value to one dollar per head of the families so engaged in hunting and fishing.

 

     And the undersigned Cree, Beaver, Chipewyan and other Indian Chiefs and Headmen, on their own behalf and on behalf of all the Indians whom they represent, DO HEREBY SOLEMNLY PROMISE and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen.

 

     THEY PROMISE AND ENGAGE that they will, in all respects, obey and abide by the law; that they will maintain peace between each other, and between themselves and other tribes of Indians, and between themselves and others of Her Majesty’s subjects, whether Indians, half-breeds or whites, this year inhabiting and hereafter to inhabit any part of the said ceded territory; and that they will not molest the person or property of any inhabitant of such ceded tract, or of any other district or country, or interfere with or trouble any person passing or travelling through the said tract or any part thereof, and that they will assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this Treaty or infringing the law in force in the country so ceded.

                                   [Emphasis mine.]

 

[206]     The Beaver Indians, from whom the present respondents are descended, adhered to the Treaty in 1900: 

 

     The Beaver Indians of the Upper Peace River and the country thereabouts, having met at Fort St. John, on this thirtieth day of May, in this present year 1900, Her Majesty’s Commissioner, James Ansdell Macrae, Esquire, and having had explained to them the terms of the treaty unto which the Chief and Headmen of the Indians of Lesser Slave Lake and adjacent country set their hands on the twenty-first day of June, in the year 1899, do join in the cession made by the said treaty, and agree to adhere to the terms thereof, in consideration of the undertakings made therein.

 

     In witness whereof, Her Majesty’s said Commissioner, and the following of the said Beaver Indians, have hereunto set their hands, at Fort St. John, on this the thirtieth day of May, in the year herein first above written.

 

         [Here followed the signatures.]

 

[207]     Canfor holds under the Crown a forest licence A18154 dated 28th June, 1993, which covers a very substantial area of northeastern British Columbia between the Rocky Mountains and 120° west longitude, being there the boundary between this Province and Alberta.  Under such a licence the District Manager from time to time issues cutting permits.  The issuance of such permits is governed not only by the terms of the licence but also by the terms of the Forest Act.

[208]     For the purposes of these reasons for judgment I accept:

1.   The Halfway River First Nation, which has its reserve on the Halfway River, claims under Treaty 8 the right to hunt, fish and trap, particularly to hunt moose, in the area covered by the cutting permit, the logging of which may impede their hunting for moose.

 

2.   The holder of a forest licence does not, under its licence, acquire any exclusive right of occupation of the lands encompassed in a cutting permit.

 

3.   Neither the Wildlife Act, R.S.B.C. 1996, c. 488, nor any other statute of this Province forbids hunting on lands upon which logging is being carried on but it does prohibit the dangerous discharge of firearms.  It would be dangerous to discharge firearms where logging is being carried on and I do not think for one moment that any member of the Halfway River First Nation would do such a thing even if there were no statutory prohibition.

 

[209]     The respondents assert a breach of the Treaty in two ways:

1.   When the reserve for the Halfway people was set up, which was said not to have happened until 1914, that is, some fourteen years after the Beaver had adhered to the Treaty, they received less than their entitlement under the Treaty.  In its claim to the Federal Government, submitted in 1995 under the Federal Land Claims Process, the Halfway River First Nation calculated the shortfall thus:

 

15.1 The following is a summary of the key population figures indicating a shortfall at date of first survey.  Detailed information concerning individual members of the Halfway River Band, absentees/arrears and late adherents is contained in the Genealogical Appendices.

 

     Halfway River Band on Hudson Hope Band

     Paylist – Date of First Survey – 1914      77

     Deduct Double Counts                       0

     Base Paylist                              77

     Absentees/Arrears                          13

     Late Adherents                             4

     Adjusted Date of First Survey Population   94

 

     Calculation of Shortfall

     94 x 128 acres – 9823 acres = Treaty Land

       Entitlement Shortfall of 2,139 acres

 

     I do not pretend to have grasped the full import of this claim, nor the relationship to it, if any, of Section 13 of the British Columbia Terms of Union and the various events arising from that section, as to which see my judgment in British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 1991 CanLII 5712 (BC CA), 54 B.C.L.R. (2d) 156 at 176 (C.A.), where the whole sorry history of reserves in other parts of the Province is recounted and in which, in my opinion, the right clearly belonged to the Mount Currie Indian Band.  If the Halfway River First Nation is right and the claim is not settled but must be pursued in an action, an interesting question of law will fall to be determined:  Is British Columbia bound to provide further lands and, if so, who is to choose those lands, or is Canada bound to pay compensation and, in either event, to what ancillary remedies, if any, is the Halfway River First Nation entitled?  At this stage, no authority with the power to resolve the claim as made in 1995 has made any findings of fact or law relating thereto.

 

2.   Development in the area has deleteriously affected the hunting.  Chief Metecheah deposes:

 

3.   The Halfway River First Nation community is very poor.  More than 75% of our members rely on social assistance and hunting to feed their families.  Because we are so poor, the members of our community rely very much on hunting to feed their children.

 

4.   All of the land within Cutting Permit 212 (“C.P. 212”) is very good for hunting and is the land that is used the most by our people to feed their children.  The C.P. 212 area is next to our reserve.  Our members don’t need to spend much money to get there to get food for their families.

 

5.   All through C.P. 212, there is proof of this use.  Our members’ permanent camp sites, corrals and meat drying racks are everywhere in the area.

 

6.   We have many religious, cultural and historical sites in C.P. 212.

 

7.   I am told by one of our members that some of the cut blocks are right where important spiritual ceremonies are held.

 

8.   We have told the Ministry of Forests (“Ministry”) that we are willing to gather this information but we need money and help to do this.

 

9.   I have hunted throughout the Treaty 8 territory all my life and I have seen the effects of forestry activities on wildlife and hunting.  The land is not as good for hunting once the trees have been cut.  Non-Native hunters use the roads left by the forestry people to hunt in our traditional territory and there is less game left to feed our families.

 

10.  If the hunting in C.P. 212 is affected, children in our community will go hungry.

 

11.  C.P. 212 is right next to our Reserve.  Because of all of the things that the government has done to our traditional territory by allowing logging companies and oil and gas companies to cut trees and pollute the land without consulting us or respecting our rights, our people must go farther and farther from our Reserve to get to land where we can hunt and gather berries and medicine.  We use the land in C.P. 212 for teaching our children about our spiritual beliefs and our way of life.  If the trees in C.P. 212 are cut down and the animals are driven away we will not be able to teach our children how to hunt and how our ancestors lived.

 

[210]     The appellants do not accept that the development of the area has adversely affected the animal population or, more particularly, that cutting pursuant to this cutting permit will do so.  There is some evidence that logging, because it results in fresh growth, ultimately produces good browse for ungulates, including moose.

 

[211]     The assertions by the Chief in paragraphs 9-11 are sweeping and I am sure he is profoundly convinced of their truth.  But, in my opinion, assertions, even if contained in an affidavit, which are sweeping in scope but which the deponent does not support, to use Lord Blackburn’s words in another context, by condescending to particulars, should be given little weight in a proceeding seeking a final, in contra­distinction to an interlocutory, order.

 

[212]     As I understand Mr. Justice Finch’s reasons, his central premise is set forth in this paragraph:  

 

[144]  I respectfully agree with the learned chambers judge that any interference with the right to hunt is a prima facie infringement of the Indians’ treaty right as protected by s.35of the Constitution Act, 1982.

 

[213]     That premise leads inexorably to the application of the doctrine of R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, [1990] 4 W.W.R. 410, 46 B.C.L.R. (2d) 1.

 

[214]     It is upon that premise that my colleague and I part company.

 

[215]     I accept that the doctrine of the honour of the Crown applies to the interpretation of treaties which are within s. 35(1) of the Constitution Act.  But I do not accept that the central words of the Treaty bear the construction put upon them by my colleague.  To my mind, the words which, in the court below, ought to have been but were not addressed, except perhaps by a side wind, are “as may be required or taken up”.  Do the words empower the Crown, to whom all the lands covered by the Treaty were surrendered, to convey those lands away to others in fee simple?  Such a conveyance would, of course, give exclusive possession to the grantee.

 

[216]     In the case at bar, the issuance of a cutting permit did not give exclusive possession to the appellant Canfor.  It did not exclude the respondents from hunting.  But if the Crown did grant all the lands away, it might be argued with some force that it had made the reservation nugatory.  One might apply the common law doctrine of derogation from a grant, by analogy, to such a state of affairs.

 

[217]     In order that the significance of the principal issue to this Province may be understood, I must set out some history.

 

[218]     By the British Columbia Boundaries Act, 26 & 27 Vict., c. 83 (1863), Parliament at Westminster established the boundaries of then Colony of British Columbia thus:

 

     3.  British Columbia shall for the Purposes of the said Act, and for all other Purposes, be held to comprise all such Territories within the Dominions of Her Majesty as are bounded to the South by the Territories of the United States of America, to the West by the Pacific Oceanand the Frontier of the Russian Territories in North America, to the North by the Sixtieth Parallel of North Latitude, and to the East, from the Boundary of the United States Northwards, by the Rocky Mountains and the One hundred and twentieth Meridian of West Longitude, and shall include Queen Charlotte’s Island and all other Islands adjacent to the said Territories, except Vancouver’s Island and the Islands adjacent thereto.

 

[219]     When the Colony of British Columbia, which by then encompassed Vancouver Island as well, became part of Canada in 1871, it did so pursuant to the Terms of Union and the order in council of 16 May 1871.  By the Terms of Union a substantial part of British Columbia known as the Railway Block was conveyed to the Dominion government.  By subsequent statutes, other lands known as the Peace River Block were granted by the Province to Canada.  These statutes are recited in the Railway Belt Retransfer Agreement Act, S.B.C. 1930, c. 60.

 

[220]     From the time that the Beaver adhered to this treaty in 1900 until after the Second World War, there was very little settlement in what British Columbians call the Peace River which, more sensibly, ought to have been part of Alberta, lying as it does east of the Rocky Mountains.

 

[221]     The introduction by Gordon E. Bowes to Peace River Chronicles (Prescott Publishing Co., 1963) gives a sufficient overview [p. 13 et seq]:

     The Hudson’s Bay Company remained in undisturbed possession of its huge fur preserve until the gold rush to the Peace and the Finlay in 1862.  Many of the gold-seekers turned to the fur trade themselves, and so ended the Company’s monopoly.  There was another gold rush in the years 1870-73, this time to the Omineca country.  Klondikers passed through in 1898-99, and a few returned later as traders.  In 1908-09, there was a smaller gold rush to McConnell Creek on the Ingenika River.

 

     Ignoring difficulties and hardships, the miners and the independent traders and trappers opened up the country and made it known to the outside world.  They were soon followed by missionaries, travellers, and railway and geological survey parties.  Their favourable reports drew attention to the agricultural advantages of the eastern part of the region.

 

     Land surveyors and settlers entered the Peace River region of British Columbia only a few years prior to the First World War.  Until that time, the area from the Rockies east to the Alberta boundary had been kept under a provincial government reserve which prohibited homesteading.  The purpose of this reserve was to permit the federal government to select 3,500,000 acres of unalienated arable land (the Peace River Block) in return for aid given earlier by Ottawa for railway construction elsewhere in the province.  The long-delayed choice of the block was announced in 1907, and Ottawa threw open some of the lands for homesteading in 1912.

 

     Lack of transportation has been the great obstacle to development of the region.  Some settlers came in on the mere rumour of a railway.  In 1913 there were 40 settlers near Hudson Hope, 30 along the Peace down to Fort St. John, and about 400 in the Pouce Coupe prairie.  Even Finlay Forks had two general stores in 1913, and hopes were high.  The First World War pricked the bubble, leaving deserted cabins everywhere.

 

     The building of what is now the Northern Alberta Railways line in 1916 from Edmonton to Grande Prairie on the Alberta side facilitated some further settlement of the eastern half of the region.  Following the war, the Soldier Settlement Board helped to establish veterans on the land.  Another influx of land-hungry settlers occurred in 1928 and 1929, with the result that there were almost 7,000 persons in the eastern part of the region by 1931.

 

     The completion of the Northern Alberta Railways line to Dawson Creek in January 1931 marked the beginning of a new era.  At long last the railway had arrived, if only just within the area’s eastern boundary!  During the depression years discouraged wheat farmers from the parched districts of southern Alberta and Saskatchewan swelled the migratory waves.  The trek into the Promised Land with livestock and farm equipment sometimes took as long as three or four months.

 

     The arrival of bush pilots and the establishment of air lines in the thirties heralded the coming of further improvements in transportation.  The Second World War, with its building of airports and the Alaska Highway and its forced economic expansion, played a sudden and spectacular part in the region’s growth.  Dawson Creek was given a highway to the Yukon and Alaska a full decade before it obtained one to the rest of the province!  In the immediate post-war years, settlement continued in substantial volume.  A major land boom occurred in 1948-49.  Dawson Creek established itself in the front rank in all of Western Canada for grain shipments.  The eastern part of the region is still the fastest-growing section of British Columbia.

 

     The initial exploitation of the oil and gas fields, the completion of the John Hart Highway from Prince George in 1952, the building in 1957 of Canada’s first major natural gas pipeline, Westcoast Transmission Company’s line from Taylor south to the American border, the long-delayed and eagerly-awaited extension of the Pacific Great Eastern Railway to Fort St. John and Dawson Creek in 1958, the completion of the Western Pacific Products and Crude Oil pipeline to Kamloops in 1961, and the construction, now under way, of the great hydro-electric power project near Hudson Hope, all represent other significant steps in the region’s development in recent years.

 

     The present prosperity and the growing commercial importance of Dawson Creek, Fort St. John, Hudson Hope, Taylor, and Chetwynd contrast sharply with conditions two decades ago.  Isolated no longer, and provided with air lines, highways, railways, and gas and oil pipelines, the region has overcome its transportation problems.  Nature’s lavish endowment of this corner of British Columbia is becoming evident to all.  Not only one of the world’s greatest power sites but also the untold wealth of natural gas, oil, coal, base metals, gold, timber, and millions of fertile acres for agriculture are beginning to make the pioneers’ wildest dreams come true.

 

[222]     Thus, I think it fair to infer that from the time they adhered to the Treaty in 1900 until after the Second World War, the Beaver people, including the present respondents, were left with their hunting ranges largely free of the “taking up” for any purpose by the Crown of lands ceded to it and from intrusion by non-natives upon those lands for such purposes as hunting, fishing, exploring for minerals, and so forth.  Thus, until then, no issue could have arisen of breach by the Crown.

 

[223]     Since the early 1960’s, there has been in the Peace River further extensive taking up of land by the Crown, although to what extent that taking up has excluded the Beaver people from their traditional hunting ranges by the granting of exclusive possession to others, does not appear with any clarity in the evidence in this case.

 

[224]     In my opinion the issue is not whether there is an infringement and justification within the Sparrow test, but whether the Crown has so conducted itself since 1900 as to be in breach of the Treaty.  The proper parties to a proceeding to determine that issue are in my opinion the Halfway River First Nation and the Attorney General for British Columbia, or, if monetary compensation is sought, Her Majesty the Queen in right of British Columbia, and the proper means of proceeding is an action.

 

[225]     The question in such an action would be whether what the Crown has done throughout the Halfway River First Nation’s traditional lands by taking up land for oil and gas production, forestry, and other activities has so affected the population of game animals as to make the right of hunting illusory.  “To make the right of hunting illusory” may be the wrong test.  Perhaps the right test is “to impair substantially the right of hunting” or some other formulation of words.

 

[226]     Whatever is the correct formulation, it cannot be applied without addressing all that has been done by the Crown since the lands were ceded to it.  The Beaver Indians have the right to hunt but that right is burdened or cut down by the right of the Crown to take up lands.  There are many issues of fact to be addressed on proper evidence to answer the question in whatever terms one puts it.

 

[227]     My colleague, Madam Justice Huddart, approaches this case differently from Mr. Justice Finch.  The culmination of her reasons is in this paragraph:

[191]     In summary, so as to fulfill the Crown’s fiduciary and constitutional duties to Halfway, the District Manager is required to initiate a process of adequate and meaningful consultation with Halfway to ascertain the nature and scope of the treaty right at issue.  Having done so, and having determined the effect of the proposed non-aboriginal use, he then makes a determination as to whether the proposed use is compatible with the treaty right.  If it is he must seek to accommodate the uses to each other.  It will be that accommodation the court reviews within the contours of a justificatory standard yet to be determined.

 

[228]     Essentially, therefore, she accedes to the respondent’s prayer for relief contained in the petition for judicial review.

 

[229]     With respect, to create a system in which those appointed to administrative positions under the Forest Act or any other statute of British Columbia regulating Crown land in the Peace River are expected to consult “to ascertain the nature and scope of the treaty right at issue” and to determine “whether the proposed use is compatible with the treaty right” is to place on our civil servants a burden they should not have to bear – a patchwork quilt of decision making by persons appointed not for their skill in legal questions but for their skill in forestry, mining, oil and gas, and agriculture.

 

[230]     A District Manager under the Forest Act is no more qualified to decide a legal issue arising under this treaty than my colleagues and I are qualified to decide how much timber Canfor should be permitted or required to cut in any one year in order to conform to the terms of its tenure.

[231]     Not only is this burden on the civil servants unfair to them, but also it ladens the people of British Columbia with burdens heavy to be borne, burdens which no other province’s people have to bear, even though the other provinces, except Newfoundland, also have First Nations.

 

[232]     If my colleagues are right, British Columbia, which was once described as the spoilt child of Confederation, is about to become the downtrodden stepchild of Confederation.

 

[233]     This case has serious economic implications.  To decide the issues arising on the evidence here adduced, which, as the parties chose to proceed, was not focused on that question only, is a course fraught with danger, especially to third parties.  Those third parties include, as well as those who have rights acquired under the Forest Act, R.S.B.C. 1996, c. 157, and predecessor statutes, those who have rights acquired under the Petroleum and Natural Gas Act, R.S.B.C. 1996, c. 361, and predecessor statutes, the Mineral Tenure Act, R.S.B.C. 1996, c. 292, and predecessor statutes, and the Land Act, R.S.B.C. 1996, c. 245, and predecessor statutes.

 

[234]     If the Crown has so conducted itself that it has committed a breach of its obligations under the Treaty to the respondents, and, perhaps, other First Nations who are also Beaver Indians, then it is right that the Crown should answer for that wrong and pay up.  The paying up will be done by all the taxpayers of British Columbia.  But it is not right that Canfor and all others, who in accordance with the Statutes of British Columbia have obtained from the Crown rights to lands in the Peace River and conducted their affairs in the not unreasonable belief that they were exercising legal rights, should find themselves under attack in a proceeding such as this.

 

[235]     Canfor, a substantial corporation, presumably can afford this litigation.  But others whose rights may be imperilled may not have Canfor’s bank account.

 

[236]     I would allow the appeal and set aside the judgment below.

 

“The Honourable Madam Justice Southin”  

 

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Hupacasth First Nation v. British Columbia (Minister of Forests) [2005] B.C.S.C. 1712

Date Issued: 

Ke-Kin-Is-Uqs, also known as Judith Sayers,

Chief Councillor suing on her own behalf and

on behalf of all members of the Hupacasath First Nation,

the Hupacasath First Nation Council,

and the Hupacasath First Nation                                                                                   Petitioners

 

v.

 

Minister of Forests of the Province of British Columbia,

The Chief Forester, and Brascan Corporation                           Respondents

 

Indexed as:  Hupacasth First Nation v. British Columbia (Minister of Forests)

Neutral citation:  2005 BCSC 1712.

2005:  July 11-15.

Present:  P.R. Grant, D. Schultze, G.R. Thompson, D.R. Clark, Q.C.

Before: The Honourable Madam Justice Lynn Smith

 

I. INTRODUCTION

[1] The Hupacasath First Nation (“HFN”) seeks judicial review of decisions by the British Columbia Minister of Forests and the Chief Forester.

[2] The individual petitioner, Ke-Kin-Is-Uqs (also known as Judith Sayers), is a member and elected Chief of the petitioner HFN. The Hupacasath people were formerly known as the Opetchesaht, and are an aboriginal people of Canada within the meaning of s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K), 1982, c.11.

[3] The respondent Brascan Corporation (“Brascan”) controls the lands and is the licensee under the Tree Farm Licence (“TFL”) relevant to these proceedings. Brascan has recently changed its name to Brookfield Asset Management Inc., but for convenience I will continue to refer to it as Brascan.

[4] The petitioners seek judicial review of two decisions: (1) the July 9, 2004 decision of the Minister of Forests consenting to the removal of certain privately owned land (the “Removed Lands”) from Tree Farm Licence 44 (“TFL 44”); (2) the August 26, 2004 decision of the Chief Forester determining a new allowable annual cut for TFL 44, effective July 9, 2004.

[5] The petitioners seek relief based on an alleged breach of the constitutional duty of the Provincial Crown to consult with them regarding the Crown’s decisions to permit removal of the land from TFL 44 and to amend the allowable annual cut for TFL 44. Alternatively, they seek relief based on an alleged failure of the relevant provincial authorities to comply with the governing statutes and regulations. They seek orders quashing or suspending the two decisions, and referring the matter for reconsideration after there has been consultation and compliance with the statutes.

[6] The respondents oppose the petition on a number of grounds, one of the most significant being that the Removed Lands are privately owned. Their position is that there was no duty on the Crown to consult; if there was any duty, it was met; and if there was any failure in a duty to consult, the relief sought by the petitioners should not be granted in all of the circumstances. Their position is further that the decisions were made in compliance with applicable laws.

[7] The origin of the constitutional duty of the Crown to aboriginal peoples is in s. 35 of the Constitution Act, 1982, which states:

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

[8] The statutory provision governing the removal of land from a TFL is s. 39.1 of the Forest Act, R.S.B.C. 1996, c. 157, brought into force May 13, 2004:

39.1 (1) The minister may change the boundary or area of a tree farm licence with the consent of its holder.

(2) The discretion of the minister under subsection (1) includes the discretion to change the boundary or area of the tree farm licence with the consent of its holder by

(a) adding private land of the holder of the tree farm licence to the area of the licence, or

(b) removing private land from the area of the licence.

The Ministry of Forests Act, R.S.B.C. 1996, c. 300, provides authority for the Minister to enter into agreements:

6 The minister may

(a) enter into an agreement or arrangement with any person or province or with Canada relating to a matter included in the minister’s duties, powers and functions, and …

The Forest Act provides for the determination of the allowable annual cut in s. 8, which states in part:

8 (1) The chief forester must determine an allowable annual cut at least once every 5 years after the date of the last determination, for

(a) the Crown land in each timber supply area, excluding tree farm licence areas, community forest agreement areas and woodlot licence areas, and

(b) each tree farm licence area.

[9] Evidence was tendered in the form of affidavits (in a Chambers Record of some 21 volumes). The evidence went in almost entirely without objection, but where objection was taken to evidence or submissions were made as to its weight, I have disregarded the evidence or have taken those submissions into account in weighing it.

II. FACTS

[10] The Hupacasath live near Port Alberni, on Vancouver Island. They assert aboriginal rights and title with respect to some 232,000 hectares of land in central Vancouver Island. They claim that most of the privately owned Removed Lands are within their traditional territory. The territory which they claim is described in the affidavit of Chief Sayers as encompassing:

… the headwaters of the Ash and Elsie River systems in the northwest, east to the height of land on the Beaufort Range and then southeast to Mount Arrowsmith to Labour Day Lake and the Cameron River system; the southeast boundary includes the China Creek, Franklin River, Corrigan Creek Areas and the north part of the Coleman Creek Area; the southern boundary follows Alberni Inlet to Handy Creek then northwest to follow the height of land between Henderson Lake and Nahmint Lake; the west boundary includes the headwaters of the Sproat Lake and Great Central Lake Areas; and including the river beds and lake beds of all bodies of water.

[11] The HFN occupied their claimed traditional territory at the time of first contact with Europeans, according to the evidence they tendered. They have never surrendered their aboriginal rights and title by treaty.

[12] Hupacasath elders deposed that the Hupacasath have names, which pre-date contact, for places found throughout their traditional territory. They have traditionally used the claimed traditional territory for hunting wildlife (including deer and marmot), gathering food and medicinal plants, fishing for trout and salmon (a mainstay of their diet) and harvesting red and yellow cedar for numerous uses, including the building of houses and canoes. The Hupacasath traditionally visited sacred sites throughout their traditional territory for spiritual purposes, and continue to do so. The petitioners’ evidence is that their sacred sites are secret, specific to families, and must be secluded from, and untouched by, other human beings. One particularly important sacred site is Grassy Mountain, which is in the Removed Lands and has never been logged.

[13] The petitioners’ evidence as to their traditional use of the land was not contradicted, although the Crown tendered some evidence regarding overlapping claims to some of the same territory.

[14] Chief Judith Sayers deposed that the Hupacasath have never been conquered. That assertion is questioned by the Crown. Counsel for the Crown referred to some historical sources stating that another First Nation, the Tseshaht, may have been the dominant group in a portion of the land in the upper Alberni Inlet and the lower Somass River at the time the Crown asserted sovereignty in 1846. The Crown also pointed to some evidence that the Ucluelet took another area (called Nahmint) from the Hupacasath. I make no finding on this point, because the scant evidence before me does not permit it, but note that the evidence referred to by the Crown, if accepted, would not on its own ground a conclusion that the Hupacasath had been conquered.

[15] About 50% of the HFN claimed traditional territory is not subject to any competing claim.

[16] With respect to the other 50%, the Tseshaht, Cape Mudge, Comox, Qualicum, Snuneymuxw, Te’mexw, Uchucklesaht and Ucluelet First Nations have advanced claims and indicated consultative boundaries that overlap with some portions of the HFN claimed territory.

[17] The Tseshaht have two Indian Reserves in the middle of the HFN asserted traditional territory. The largest of the Tseshaht Reserves is between two smaller HFN Reserves near the city of Port Alberni.

[18] In 1980 the Nuu-Chah-Nulth Tribal Council, of which the HFN was a member, filed a comprehensive land claim with the federal government.

[19] In 1993, the Nuu-Chah-Nulth Tribal Council provided to the Provincial Crown a Statement of Intent, which included the claims of the HFN, as part of the British Columbia Treaty Process. This led to a Framework Agreement signed with the provincial and federal Crown on March 27, 1996, marking entry into Stage Four of the treaty process.

[20] The HFN provided its own land selection to the Provincial Crown on September 23, 1998. The land selection covered lands in TFL 44, including the Removed Lands, which were then owned by Weyerhaeuser Company Limited (“Weyerhaeuser”).

[21] On February 22, 2000, the HFN filed a Statement of Intent to engage in direct treaty negotiations with Canada and British Columbia, following HFN withdrawal from negotiations as part of the Nuu-Chah-Nulth Tribal Council, and confirmed its agreement to resolve overlapping claims. On February 21, 2001, the Crown agreed to resume treaty negotiations directly with the HFN. Those Treaty negotiations are currently at Stage Four.

[22] The Removed Lands are located in the centre of Vancouver Island. The area of the Removed Lands is about 70,000 hectares and is largely within the HFN claimed traditional territory. The Removed Lands roughly form a rectangle that runs along the northwest/southeast plane of Vancouver Island, but exclude an area around Port Alberni that stretches northeast. Their western border cuts through the eastern tip of Great Central Lake and Sterling Arm in Sprout Lake, and their eastern border stops short of Home and Cameron Lakes. Smaller pockets of the Removed Lands are located within the borders of TFL 44, primarily around Great Central Lake and Sprout Lake, Alberni Inlet, Bamfield and Ucluelet.

[23] The Removed Lands have been privately owned since 1887 when the Dominion of Canada transferred a tract of land (the “Railway Lands”) to the Esquimalt and Nanaimo Railway Company. The Dominion had received the lands from the British Columbia Government in 1884 under the Settlement Act, 1884, chap. 14 S.B.C. (An Act relating to the Island Railway, the Graving Dock and Railway Lands of the Province)).

[24] MacMillan Bloedel Limited owned the lands for a time, and Weyerhaeuser owned them until May, 2005.

[25] Although the lands have been used for logging for over 100 years, some old growth areas remain untouched.

[26] Making an estimate based on the maps provided in evidence, about 40% of the Removed Lands is not subject to any competing claim from other First Nations.

[27] TFLs are created under the Forest Act, and permit logging by private entities on Crown land.

[28] A TFL may also cover private land. This occurs when an owner of private land adjacent to a TFL on Crown land agrees to have the same TFL extend to cover the private land, in order to permit a unified managed logging operation. In the past, private landowners were given tax incentives, preferential harvesting rights, and other economic incentives to bring their land under a TFL.

[29] Once private land has come under a TFL, the land or an interest in the land cannot be alienated to third parties without the prior written consent of the Minister of Forests (s. 54.7 of the Forest Act). The land cannot be used for other non-forestry purposes (s. 2(1) of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 (“Forest Practices Code”)). The permission of the Minister of Forests must be obtained to remove the land from the TFL (s. 39.1 of the Forest Act).

[30] The Land Title Act, R.S.B.C. 1996, c. 250, s. 281, provides that the Minister of Forests may file a written notice in the Land Title Office showing that land for which indefeasible title is registered has become subject to a TFL. The evidence is silent as to whether the Minister had filed a written notice with respect to the TFL covering the Removed Lands.

[31] Around 1945 the then owner of the Removed Lands held a TFL covering adjacent Crown land and agreed to have the Removed Lands brought under that TFL. Brascan produced evidence that the Removed Lands have been moved in and out of the TFL more than once.

[32] Beginning in about 1995, the Provincial Crown engaged in consultation with the HFN and Weyerhaeuser regarding forestry activity within TFL 44.

[33] John Laing, a Tenures Officer of the Ministry of Forests, deposed that there is “a long history of extensive consultations and accommodations with the [HFN] in relation to forestry operations and activities on TFL 44”. In the exhibits to Mr. Laing’s affidavit, recording consultations with the HFN, there is no indication that those involved in the consultation made a distinction between the private lands and the Crown lands. It appears from the evidence as a whole that in general no distinction was made between the Crown lands and the Removed Lands regarding the fact or degree of consultation.

[34] In 1997, the HFN established a liaison position within the Band to review and respond to forest consultation requests. In 1998, a Joint Forest Council was formed between the Crown and the HFN.

[35] Chief Judith Sayers deposed that the consultation processes dealt with the following concerns: protecting and enhancing fish habitat and rebuilding salmon runs, protecting and enhancing water quality, protecting sacred sites, protecting and managing red and yellow cedar and maintaining old growth trees, protecting culturally modified trees, protecting and enhancing bird and wildlife habitat, protecting uncommon tree and plant species such as Yew which are used for cultural and medicinal purposes, and providing access to the territory for HFN members to exercise spiritual practices and aboriginal hunting and fishing rights. She swore that between 1998 and June 2004, the HFN and Weyerhaeuser met almost monthly to consult on forestry-related issues and by 2001 had developed an efficient process for considering and integrating aboriginal interests into the operational-level planning of forestry operations, with the result that Ministry intervention was rarely required.

[36] On August 6, 1999, following public consultations, the MacMillan Bloedel Parks Settlement Agreement, written by David Perry (the “Perry Report”) was submitted to government regarding the contemplated removal of private lands from TFL 44 and TFL 39. The report concluded that such a transfer might impinge on aboriginal rights because any removed lands would be subject to the much less restrictive private forest regulations.

[37] On November 30, 2000, Weyerhaeuser entered into a Memorandum of Understanding with the HFN, which included a consultation protocol regarding the Ash River lands, which at that time were being transferred from the Crown to Weyerhaeuser. They form part of the Removed Lands.

[38] In 2001, Weyerhaeuser published a document (Coastal Competitive Reform: A Proposal for Market-based Stumpage and Tenure Diversification for Coastal B.C., October 2001) in which it referred to the economic benefits of removing private lands from Tree Farm Licences. The document states:

4.2.2 Removal of Private Lands from TFLs

A few coastal companies have private land within their Tree Farm Licences (TFLs). Private land within TFLs is managed to the Forest Practices Code. Private land outside TFLs is managed to the lower cost and results-based private forest land regulations. Private land inside the TFLs is subject to an AAC approval from the Chief Forester of the Ministry of Forests. Private land outside TFLs is subject to an economic harvest regime. Private land inside the TFLs is subject to provincial log export restrictions with the logs financially restricted for being exported. The value of removing private lands from the TFLs is attributed to those three areas: 1) regulatory cost reduction; 2) harvest rate benefit; and 3) log export benefit.

[39] On October 1, 2003, the HFN announced that it had completed the first phase of a Land Use Plan for its claimed traditional territory.

[40] Weyerhaeuser wrote to the Minister of Forests on December 5, 2003, requesting removal of private land from both TFL 39 and TFL 44.

[41] Counsel for the petitioners advised the court that the petitioners filed a writ (Van. Reg. No. SO36690) claiming aboriginal title to their traditional territory on December 10, 2003, in order to avoid a possible limitations defence.

[42] The West Island Woodlands Community Advisory Group (“WIWAG”) was formed around 1998. It was sponsored by Weyerhaeuser in compliance with one of the requirements for certification by the Canadian Standards Association (“CSA”). It is composed of representatives from various sectors, including regional and city governments, small businesses, Parks Canada, woodlot owners, sawmill owners, logging contractors, First Nations (Hupacasath and Tseshaht), environmental organizations, Ministry of Forests and contractors.

[43] The CSA Standard 5.2 (in Sustainable Forest Management: Requirements and Guidance) states:

5.2 Interested Parties

The organization shall

a) openly seek representation from a broad range of interested parties, including DFA-related workers, and invite them to participate in developing the public participation process;

b) provide interested parties with relevant background information;

c) demonstrate through documentation that efforts were made to contact Aboriginal forest users and communities affected by or interested in forest management in the DFA;

d) demonstrate through documentation that efforts were made to encourage Aboriginal forest users and communities to become involved in identifying and addressing SFM values;

e) recognize Aboriginal and treaty rights and agree that Aboriginal participation in the public participation process will not prejudice those rights;

f) establish and maintain a list of interested parties, including those that chose to participate, those that decided not to participate, and those that were unable to participate. The list shall contain names and contact information, as well as any links to the organization.

[44] The WIWAG minutes show that on September 19, 2002, Tom Holmes of Weyerhaeuser made a presentation to WIWAG in which he advised WIWAG that Weyerhaeuser was “trying to change the status of Private Lands inside of the TFL”.

[45] The minutes of the January 8, 2004 meeting of WIWAG state that “[t]he rumor mill has indicated that Private Lands currently in TFL #44 will be taken out of the Tree Farm Licence by March”, that the group asked Steve Chambers of Weyerhaeuser for more information, and that he inquired and reported that Weyerhaeuser was not aware of this development.

[46] On February 12, 2004, Stan Coleman, the Unit Manager (West Island Timberlands) for Weyerhaeuser, advised a WIWAG meeting that Weyerhaeuser was “actively seeking to remove its private lands from TFL 44” and addressed “the likely management practices that would apply on those lands after their removal”. There was further discussion about the “fate of the private lands in the TFL” at the WIWAG meeting of May 13, 2004.

[47] The minutes of the meetings show that Tawney Lem attended as the HFN representative at all of these meetings and that, with the exception of the September 19, 2002 meeting, there was apparently no representative of the Provincial Crown present.

[48] Chief Sayers deposed, and her evidence was not contradicted in this respect, that no representative of the Minister or Chief Forester ever contacted her or any other HFN representative to propose consultation regarding the removal of the lands from the TFL.

[49] On June 11, 2004, Chief Sayers, at a meeting with Weyerhaeuser discussing the Removed Lands, proposed certain conditions before Weyerhaeuser could “get the land out”.

[50] Tawney Lem and Judith Sayers both deposed that they believed that Weyerhaeuser and the government were having discussions, but did not know that Weyerhaeuser had made formal application for permission to remove the lands.

[51] The evidence thus shows that the HFN (through WIWAG meetings with Weyerhaeuser) became aware of Weyerhaeuser’s desire to remove the lands from the TFL as early as 2002, and learned of the company’s pursuit of the issue with government in early 2004. The evidence does not show, however, any formal consultation or indeed any discussion between the Minister or other agent of the Crown and the HFN regarding Weyerhaeuser’s initiative.

[52] The Minister of Forests made the removal decision on July 9, 2004, pursuant to the newly-enacted s. 39.1 of the Forest Act. In his letter advising of the decision, the then Minister, the Honourable Michael DeJong, set out a number of terms and conditions. These were:

Future Forest Management

Subject to applicable law and Weyerhaeuser’s operation, risk management and other needs, the current status of “managed forest” on the private property will continue and be subject to all applicable legislation and regulations within the Private Managed Forest Land Act that governs planning, soil conservation, harvesting rate and reforestation. Variable retention and stewardship zoning on old growth areas will be maintained indefinitely. Federally, the Department of Fisheries and Oceans and the Species at Risk Act will govern fish habitat and wildlife issues.

Water Quality

Private Forest Watershed Assessment Plan (PFWAP) for key community watersheds will be developed in collaboration with the Ministry of Sustainable Resource Management, Department of Fisheries and Oceans, local stream keepers and municipal governments. Weyerhaeuser will commit to periodic follow-up meetings with impacted stakeholders to verify the commitments have been kept. Weyerhaeuser commits to initiating a PLWAP on the China Creek Watershed within 1-year of closing and other communities with high fisheries value watersheds, within private lands, will be prioritized for PLWAP within 1-year of closing.

Critical Wildlife Habitat

Weyerhaeuser will maintain all current critical wildlife habitat areas within the subject private lands for 2 years while a long-term plan for protecting Ungulate Winter Ranges and Wildlife Habitat Area #1-002 is developed with the Ministry of Water, Land and Air Protection.

Certification

Weyerhaeuser will maintain ISO and/or CSA certifications and continue to subject the private lands to the public advisory as per CSA standards.

Access (Road Systems)

Weyerhaeuser will maintain current access for the public, industrial road user and aboriginal groups.

Log Exports

Weyerhaeuser will maintain its commitment to a voluntary moratorium of log exports from the private lands authorized by this letter for removal from the TFL until February 1, 2006.

Research Installations

Within 60 days of the date of this letter, Weyerhaeuser will enter into a Memorandum of Understanding that reconfirms the relationship between the Ministry of Forests and Weyerhaeuser regarding ministry research installations located on the private lands.

First Nations Consultation

Based on the commitment by Weyerhaeuser with respect to the managed forest designation, land-use does not change significantly. If Weyerhaeuser’s use of its private land will interfere with an exercise of an aboriginal right, Weyerhaeuser will endeavour to provide notice and the period of time the areas would be affected.

Powell River Canoe Route

Identifying the canoe route as a high value recreation feature for the Powell River community, subject to applicable law and Weyerhaeuser’s operational and risk management needs, Weyerhaeuser in consultation with CSA Community Advisory Group commits to maintaining its protection. This commitment to maintain this important recreational feature will be maintained for the duration of the Forest Stewardship Plan.

Allowable Annual Cut (AAC) Determination

Due to the significance of the private land deletion and its impact on the AAC determination for TFLs 39 and 44, I expect the chief forester will make a new AAC determination reflecting the reduction in size of the TFLs effective the date the private lands are removed.

[53] The HFN received notice of the removal decision on July 13, 2004, and on July 19, 2004, gave notice to the Minister of Forests that it considered that the removal decision infringed its aboriginal rights and title. The HFN informed the Minister that accommodation of HFN rights could be achieved by respecting the HFN Land Use Plan and on August 12, 2004, Chief Sayers outlined a list of conditions that Weyerhaeuser would have to satisfy in order to gain HFN acceptance of the removal decision.

[54] Weyerhaeuser informed the HFN on August 20, 2004, that Weyerhaeuser no longer had an obligation to consult with them with respect to activities on the Removed Lands.

[55] On August 26, 2004, the Deputy Chief Forester amended the allowable annual cut for TFL 44, retroactive to July 9, 2004. In his Rationale for AAC Adjustment Resulting from the Deletion of Private Lands (the “Amendment Rationale”), the Deputy Chief Forester stated:

I am satisfied that the assessment provided by Weyerhaeuser is a reasonable portrayal of the impact of reducing the THLB assumed in the 2003 AAC determination. Based on the assessment, my knowledge of the previous analysis, and on expert advice from Ministry staff, I hereby determine that the AAC for TFL 44 is 1 327 000 cubic metres, effective July 9, 2004

Within the AAC, I also conclude that harvesting in the Clayoquot Working Circle should not exceed 29 hectares per year.

[56] The evidence shows that the amendment was based on a Weyerhaeuser assessment and was simply mathematical; the allowable annual cut was reduced by the proportion that the Removed Lands bore to the total TFL area. Kenneth Baker, the Deputy Chief Forester at the time, deposed that the information and factors on which the original determination had been based 13 months earlier had not changed, that he had considered “concerns regarding identified wildlife, wildlife habitat and retention of old growth forests”, and that he decided on that basis that a proportional reduction was appropriate.

[57] The province confirmed in September, 2004, that it was ready to resume Stage Four treaty negotiations with the Hupacasath directly.

[58] Weyerhaeuser advised the HFN of the allowable annual cut amendment on September 14, 2004.

[59] In October 2004, Brascan began to negotiate with Weyerhaeuser for the purchase of all of Weyerhaeuser’s coastal forestry assets and operations. Brascan has produced evidence, which was uncontradicted, that the removal of the privately owned lands from TFL 44 was a critical consideration in its decision to proceed with the transaction. Its business plan was based on the premise that it would be able to conduct two different logging operations, through two different entities, under different management regimes for the Crown land than for the private land. Unlike lands in the TFL system, private timberlands can be “harvested to market”, thus allowing private owners to harvest the species commanding the best prices in the market. A further benefit for private owners is that they are not subject to TFL restrictions on the export of logs that are surplus to the demands of domestic mills.

[60] The Tseshaht First Nation entered into a Forest and Range Agreement with the Minister of Forests on October 15, 2004, providing the Tseshaht with access to two non-replaceable licences to harvest timber on TFL 44, in areas forming part of the asserted traditional territory of both the Hupacasath and the Tseshaht.

[61] On November 16, 2004, the District Manager of the South Island Forest District sent the HFN the Amendment Rationale for the allowable annual cut amendment.

[62] The Supreme Court of Canada handed down its decisions on November 18, 2004, in Haida First Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (CanLII) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74 (CanLII). The Court held that although there is a duty on the Crown to consult with and accommodate the interests of aboriginal peoples, there is no obligation on third parties (such as Weyerhaeuser) to consult and accommodate, overturning the British Columbia Court of Appeal on that point.

[63] Brascan made a proposal to Weyerhaeuser on December 6, 2004, regarding the purchase of Weyerhaeuser’s coastal timber assets, including the Removed Lands. Weyerhaeuser accepted that proposal on December 14, 2004. The parties entered into an exclusivity agreement, which thereafter precluded Brascan from making inquiries of the Crown or of the HFN regarding the legal validity of the removal decision.

[64] This petition was filed on December 15, 2004, and Brascan learned of it on December 16, 2004.

[65] Weyerhaeuser and Brascan publicly announced the agreement for purchase and sale on February 17, 2005, and government approvals were obtained.

[66] The petitioners applied for an order enjoining the completion of the sale pending consultation and accommodation. Madam Justice Ross refused that application on March 11, 2005 (Hupacasath First Nation v. British Columbia (Minister of Forests), [2005] 2 C.N.L.R. 138, 2005 BCSC 345 (CanLII)), finding that although there was a triable issue and the potential for irreparable harm, the balance of convenience did not favour granting interim relief.

[67] On April 27, 2005, Weyerhaeuser was joined as a party to the petition by consent and an amended petition was filed.

[68] The sale to Brascan for the total purchase price of $1.4 billion closed on May 30, 2005. The purchase included 258,000 hectares of privately owned timberlands, the annual harvesting rights to 3.6 million cubic metres of Crown timberlands, five coastal sawmills and two remanufacturing facilities.

[69] After receiving Weyerhaeuser’s coastal assets, Brascan transferred the Removed Lands to Island Timberlands GP Ltd. to be held beneficially for Island Timberlands Limited Partnership (“Island Timberlands”) and it transferred its interest in TFL 44 and the Crown land based operations to Cascadia Forest Products Ltd. (“Cascadia”). Island Timberlands is a limited partnership in which Brascan holds the majority interest and Cascadia is a wholly owned subsidiary of Brascan. (I was advised by counsel for Brascan on November 28, 2005 that Brascan has agreed to sell Cascadia to Western Forest Products Inc., a public company in which Brascan has an indirect non-controlling interest, subject to government approvals.)

[70] For convenience, however, I will refer to Brascan as both the owner of the Removed Lands and the holder of TFL 44.

[71] Brascan considers that Island Timberlands will be significantly more profitable than Cascadia because Island Timberlands will be able to operate outside the more restrictive conditions of the TFL.

[72] On May 30, 2005, Mr. Justice Goepel granted interim relief requiring Brascan to provide the petitioners with seven days notice of any intention to use the Removed Lands in a manner that will interfere with the exercise of an aboriginal right by the petitioners. At the conclusion of the hearing of this petition, I continued that order pending judgment.

III. ISSUES

[73] I will address the issues in the following sequence:

A. Duty to Consult

(1) The Foundational Principles

(2) The Legal Test

(3) Knowledge of the Crown

(4) Contemplated conduct affecting aboriginal rights

a. Could the HFN have aboriginal rights or title with respect to the Removed Lands?

b. Did the Crown contemplate conduct that might adversely affect HFN rights?

(5) The Crown’s duty

a. What was the nature and scope of the Crown’s duty?

b. Did the Crown fulfill its duty to consult and accommodate?

(6) Amendment to the allowable annual cut

(7) Remedy

B. Compliance with Provincial Statutory Requirements

C. Summary of Conclusions

IV. ANALYSIS

A. Duty to Consult

(1) The Foundational Principles

[74] In R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507 at paras. 30-31, Lamer C.J.C., for the majority, described the nature and origin of the aboriginal rights protected under s. 35(1) of the Constitution Act, 1982:

In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.

More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [emphasis in original]

[75] In Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, the Supreme Court of Canada addressed a claim for aboriginal title over land in British Columbia. The Court held that aboriginal title is sui generis and began to sketch an outline of some of its characteristics, which include: it is held communally; it is inalienable; and it cannot be transferred, sold or surrendered to anyone other than the Crown (paras. 113-15).

[76] The Court held that aboriginal rights cannot be extinguished by provincial laws of general application. It stated that constitutionally recognized aboriginal rights fall along a spectrum. At one end of the spectrum are those aboriginal rights which relate to practices, customs and traditions integral to the distinctive aboriginal culture of the group claiming the rights but where the degree of use and occupation of the land is insufficient to support a claim of aboriginal title (para. 138). At the other end of the spectrum is aboriginal title itself. The Court stated that s. 35(1) of the Constitution Act, 1982, whose purpose is to reconcile the prior presence of aboriginal peoples in Canada with the assertion of Crown sovereignty, allows for the possibility that the Crown may infringe aboriginal title so long as such infringement is justified (para. 150). In the context of assessing whether an infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples, the Crown has a duty to consult the aboriginal people in question (para. 168).

[77] In R. v. Marshall; R. v. Bernard, [2005] 3 C.N.L.R. 214, 2005 SCC 43 (CanLII), the Supreme Court of Canada elaborated on what it had previously said about the nature of aboriginal title. The accused had argued that as Mi’kmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title.

[78] The Court held that aboriginal title is one of the aboriginal rights and that, in order to prove aboriginal title, the claimant must establish aboriginal practices that indicate possession similar to that associated with title at common law. To establish title, claimants must prove “‘exclusive’ pre-sovereignty ‘occupation’” of the land (referring to Delgamuukw at para. 143) (para. 55). The Court said (at paras. 56-57) that “occupation” means physical occupation and that “exclusive occupation” means “the intention and capacity to retain exclusive control”. The latter is not negated by occasional acts of trespass or the presence of other aboriginal groups with consent. Shared exclusivity could result in joint title and non-exclusive occupation may establish aboriginal rights short of title.

[79] The Chief Justice wrote at para. 38:

Where title to lands formerly occupied by an aboriginal people has not been surrendered, a claim for aboriginal title to the land may be made under the common law. Aboriginal peoples used the land in many ways at the time of sovereignty. Some uses, like hunting and fishing, give rights to continue those practices in today’s world: see R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013. Aboriginal title, based on occupancy at the time of sovereignty, is one of these various aboriginal rights.

[80] Aboriginal rights refer to specific independent rights, such as the right to hunt or fish and they are not derivative of aboriginal title. This point is highlighted at para. 53:

Different aboriginal practices correspond to different modern rights. This Court has rejected the view of a dominant right to title to the land, from which other rights, like the right to hunt or fish, flow: R. v. Adams, 1996 CanLII 169 (SCC), [1996] 3 S.C.R. 101, at para. 26; R. v Côté, 1996 CanLII 170 (SCC), [1996] 3 S.C.R. 139, at paras. 35-39. It is more accurate to speak of a variety of independent aboriginal rights.

[81] A claim to aboriginal title must be subject to a stringent test, and evidence to establish a claim to aboriginal title must correspond to the core element of a fee simple, that is, it must show “exclusivity” (para. 40). At para. 77 the Court stated:

… [t]he common law right to title is commensurate with exclusionary rights of control. That is what it means and has always meant. If the ancient aboriginal practices do not indicate that type of control, then title is not the appropriate right. To confer title in the absence of evidence of sufficiently regular and exclusive pre-sovereignty occupation, would transform the ancient right into a new and different right. It would also obliterate the distinction that this Court has consistently made between lesser aboriginal rights like the right to fish and the highest aboriginal right, the right to title to the land: Adams, Côté.

[82] The Court in Marshall left open the question of whether the granting of a fee simple by the Crown extinguishes aboriginal title.

[83] The Court of Appeal for British Columbia in Skeetchestn Indian Band v. British Columbia (Registrar of Land Titles) (2000), 80 B.C.L.R. (3d) 233, 2000 BCCA 525 (CanLII), concluded that the Registrar of Land Titles had acted correctly in refusing to register a certificate of pending litigation regarding the appellant First Nation’s land claim on the basis that aboriginal title was not a registrable interest. Southin J.A. commented at para. 5:

Sooner or later, the question of whether those who hold certificates of indefeasible title, whether to ranch lands on Kamloops Lake or to a small lot with a house on it on Railway Avenue in the Village of Ashcroft or an office tower on Georgia Street in the City of Vancouver, are subject to claims of aboriginal right must be decided. If it is proper in some aspects of Indian claims to weigh in the balance in favour of the claimant the honour of the Crown, as I thought was right in my dissenting judgment in Attorney General (British Columbia) v. Mount Currie Indian Band (1991), 1991 CanLII 5712 (BC CA), 54 B.C.L.R. (2d) 156 (B.C.C.A.), should the honour of the Crown not also be weighed when determining whether a Crown grant in fee simple, at least one made before 17th April, 1982, assures to a person who obtained, founded on the grant, whether through the absolute fee system explained hereafter or directly, a certificate of indefeasible title, and his successors in title, the title for which he paid free of aboriginal claims?

Referring to Delgamuukw, Southin J.A. stated at para. 32:

It is for the Supreme Court of Canada to tell the courts of this Province what the implications of that judgment are for the holders of certificates of indefeasible title in a case where the issue directly arises, as it may do if the action brought by the appellants goes to trial.

[84] In concurring reasons, MacKenzie J.A. referred to the dangers of a piecemeal approach in deciding these fundamentally important and complex issues, at para. 81-82:

This submission highlights the complexity of the issues surrounding aboriginal rights in lands alienated by the Crown. Registration is only one aspect and not the most important. More central questions are those that have been in the forefront of the Australian litigation – infringement, reconciliation and remedies. The issues may be even more complex in Canada because of the divided jurisdiction over land, and constitutional uncertainties as to the line between federal and provincial powers and responsibilities.

These broader issues are not before the court on this appeal but they underline the danger of a piecemeal approach when many implications may be hidden. I agree with Lamperson J. and Southin J.A. that this appeal from the Registrar is not the place to decide the larger questions.

[85] All parties to this proceeding agreed that, as in Skeetchestn, it is unnecessary and would be inadvisable for this Court to reach a conclusion regarding the broader issues respecting aboriginal rights and title in lands alienated by the Crown.

[86] I note that in these Reasons I generally use “aboriginal rights” as a generic term which, in most contexts, includes aboriginal title.

(2) The Legal Test

[87] In Haida Nation and Taku River, the Supreme Court of Canada made clear that the Crown’s duty to consult with and possibly accommodate the rights of aboriginal peoples exists prior to the final proof of aboriginal rights in court and prior to the signing of treaties.

[88] In Haida Nation, the provincial Minister of Forests had made certain decisions regarding TFL 39, which covers Crown land in northern coastal British Columbia. The Court summarized the issue at para. 5-6:

In January of 2000, the Haida people launched a lawsuit objecting to the three replacement decisions and the transfer of T.F.L. 39 to Weyerhaeuser and asking that they be set aside. They argued legal encumbrance, equitable encumbrance and breach of fiduciary duty, all grounded in their assertion of Aboriginal title.

This brings us to the issue before this Court. The government holds legal title to the land. Exercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land. But the Haida people also claim title to the land – title which they are in the process of trying to prove – and object to the harvesting of the forests on Block 6 as proposed in T.F.L. 39. In this situation, what duty if any does the government owe the Haida people? More concretely, is the government required to consult with them about decisions to harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven their title to land and their Aboriginal rights? [emphasis in original]

[89] The Supreme Court referred to the finding by the chambers judge that the Haida had a strong claim to aboriginal title to the land, called Haida Gwaii. The Court also referred to the Haida argument that without consultation and accommodation, they might win their aboriginal title claim in the end, but find themselves deprived of the forests vital to their economy and their culture (para. 7).

[90] A summary of the Court’s conclusion is found at para. 10 of the reasons for judgment of the Chief Justice:

I conclude that the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach agreement. The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida people’s concerns, although the possibility remains that it could become liable for assumed obligations. It follows that I would dismiss the Crown’s appeal and allow the appeal of Weyerhaeuser.

[91] Chief Justice McLachlin held that, because the aboriginal interest is insufficiently specific, the duty to consult is not derived from the Crown acting as fiduciary (para. 18). Rather, the source of the duty is the honour of the Crown, which is always at stake in its dealings with aboriginal peoples (para. 16). This concept must be understood generously “in order to reflect the underlying realities from which it stems” (para. 17). The Court held:

In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”: Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31. (para. 17)

[92] The duty relates not only to the Crown’s conduct in decision making about lands but also to the Crown’s conduct in the treaty making and interpretation process (para. 19). It includes issues relating to claims to resources. At para. 22 Chief Justice McLachlin wrote:

The Court affirmed the duty to consult regarding resources to which Aboriginal peoples make claim a few years later in R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013, where Cory J. wrote: “So long as every reasonable effort is made to inform and to consult, such efforts would suffice to meet the justification requirement”….

[93] The source of the duty was summarized at para. 25:

Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

[94] The duty arises not when aboriginal claims have been proved and resolved, but once claims affecting those interests are being seriously pursued in the process of treaty negotiation and proof. The Court stated:

It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable. (para. 27)

[95] The Court distinguished between what is sufficient to trigger the existence of the duty and what is to be considered in determining the scope or content of the duty. It held that:

Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. Parties can assess these matters, and if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty. (para. 37)

[96] The Court held that the content of the duty to consult and accommodate varies with the circumstances and is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title and to the seriousness of the potentially adverse effect upon the right or title claimed (para. 39).

[97] Thus, the Court said, there will be a spectrum (para. 43). Where, for example, the claim to title is weak, the aboriginal right limited, or the potential for infringement minor, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. At the other end of the spectrum are the cases where a strong prima facie case for the aboriginal rights claim is established, the right and potential infringement is of high significance to the aboriginal people and the risk of non-compensable damage is high (para. 44). In such cases, “deep consultation”, aimed at finding a satisfactory interim solution, may be required. In discussing what is “meaningful consultation” the Court referred (at para. 46) to the New Zealand Minister of Justice’s Guide for Consultation with Maori 1997 and to its statement that:

Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed…

[98] Emphasizing that the process does not give aboriginal groups a veto over what can be done with land pending final proof of the claim, the Chief Justice said that what is required is “a process of balancing interests, of give and take” (para. 48).

[99] After holding that third parties do not owe a duty to consult and accommodate, the Court rejected the argument that any duty to consult or accommodate rests solely with the federal government and held that the duty may also rest with provincial governments (paras. 52-59).

[100] Discussing the possible role of third parties in a consultation process, and stating that the honour of the Crown cannot be delegated, the Chief Justice wrote at para. 53:

It is suggested (per Lambert J.A.) that a third party’s obligation to consult Aboriginal peoples may arise from the ability of the third party to rely on justification as a defence against infringement. However, the duty to consult and accommodate, as discussed above, flows from the Crown’s assumption of sovereignty over lands and resources formerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments. Similarly, the terms of T.F.L. 39 mandated Weyerhaeuser to specify measures that it would take to identify and consult with “aboriginal people claiming an aboriginal interest in or to the area” (Tree Farm Licence No. 39, Haida Tree Farm Licence, para. 2.09(g)(ii)). However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated.

[101] As to procedure, the matter may come to court by way of judicial review (para. 60). The existence or extent of the duty to consult or accommodate is a question of law reviewable on a correctness standard but it is typically premised on an assessment of the facts; thus, a degree of deference to the finding of fact of the initial adjudicator may be appropriate (para. 61). The examination of the process itself, the Court said, would likely be on a standard of reasonableness with the question being whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right in question” (para. 62).

[102] Thus, in summary, the Court stated at para. 63:

Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government’s process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.

[103] On the facts before it, the Court found that the province had knowledge of the potential existence of aboriginal rights or title and contemplated conduct that might adversely affect them, that it had not consulted with the Haida at all, and that

… the province has a duty to consult and perhaps accommodate on T.F.L. decisions. The T.F.L. decision reflects the strategic planning for utilization of the resource. Decisions made during strategic planning may have potentially serious impacts on Aboriginal right and title. (para. 76)

[104] The order approved by the Supreme Court contained a declaration that the provincial Crown had legally enforceable duties to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interest of the Haida people on the one hand and the Crown’s objectives to manage the TFL in accordance with the public interest on the other hand.

[105] I pause to comment that although the Haida Nation case shares a significant aspect of the case before me, in that it arises from a Ministerial decision regarding a TFL, there is also a notable difference: it concerned Crown land, not privately owned land. Counsel for the respondents emphasized that distinction and one other: that in Haida Nation a claim to aboriginal title was advanced. I will return to these points later.

[106] In Taku River, a mining company sought permission from the provincial government to reopen an old mine in British Columbia and to build a road through a portion of the Taku River Tlinget First Nation’s (TRTFN) claimed traditional territory.

[107] The Supreme Court of Canada held that, on the principles discussed in Haida Nation, the Crown was under a duty to consult with the TRTFN regarding the decision to reopen the mine. It further held that the duty had been complied with on the facts of the case. The province had conducted an environmental review process in which the TRTFN had, for the most part, participated fully, putting their views before the decision-makers. Steps had been taken to address the TRTFN concerns. The Court held that it was not necessary for the province to set up a separate aboriginal consultation process.

[108] In discussing the source of the duty on the Crown, the Court stated at para. 24:

The Province’s submissions present an impoverished vision of the honour of the Crown and all that it implies. As discussed in the companion case of Haida, supra, the principle of the honour of the Crown grounds the Crown’s duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).

[109] Very recently (one week ago), the Supreme Court of Canada delivered its decision in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] S.C.J. No. 71, 2005 SCC 69 (CanLII). I requested from the parties, and have received, their submissions as to its implications for the case before me.

[110] The issue in Mikisew arose when the federal government approved the construction of a winter road through the Mikisew Reserve, over the protests of the Mikisew. The Mikisew are under Treaty 8, which permits the Crown to “take up” land from time to time for purposes such as settlement, mining, lumbering and trading. Their reserve is in Wood Buffalo National Park, on Crown land.

[111] The Supreme Court held that the Crown had breached its duty of consultation. Binnie J. stated that, given that the Crown was proposing to build a fairly minor winter road on surrendered lands where the Mikisew hunting, fishing and trapping rights were expressly subject to the “taking up” limitation, the Crown’s duty lay at the lower end of the spectrum (para. 64). The Court quashed the Minister’s approval order and remitted the winter road project to the Minister to be dealt with in accordance with the Court’s Reasons.

[112] Much of the discussion in the case relates to the Crown’s duties in the context of defined and acknowledged treaty rights, and is not directly relevant to the case before me. However, the Court made some general statements about the duty of consultation which may have some bearing.

[113] In the opening paragraph, Binnie J. wrote:

The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people’s concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies. And so it is in this case.

[114] Further, in para. 55, he commented:

… The duty to consult is, as stated in Haida Nation, triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the Crown’s duty. …

[115] With respect to the content of the duty to consult, the Court stated at para. 64 that the duty had both informational and response components. Thus, the Court held that the Crown should have given notice to the Mikisew and engaged directly with them, rather than doing so as an afterthought to a general public consultation with Park users; it should have provided information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests; and it should have solicited and listened carefully to the Mikisew concerns and attempted to minimize adverse impacts on their hunting, fishing and trapping rights.

[116] I note, however, as counsel for the respondents pointed out, that the content of the duty to consult could differ outside the context of a treaty rights case.

[117] In Musqueam v. British Columbia (Minister of Sustainable Resource Management) (2005), 37 B.C.L.R. (4th) 309, 2005 BCCA 128 (CanLII), the Musqueam Indian Band sought an order quashing a decision by the provincial Crown to sell the University of British Columbia Golf Course (which was on Crown land) to the University of British Columbia. The Musqueam argued that the respondents had not consulted in good faith concerning a possible accommodation of any infringement of the appellant’s asserted aboriginal interests in the Golf Course land. The Crown conceded, and the Court held, that the Band had shown a strong claim of aboriginal title to the lands. The Court concluded that the Crown had failed to consult meaningfully, and ordered that the authorization for the sale be suspended for two years to provide for proper consultation.

[118] Hall J.A. commented that the decision in Haida Nation pertains to a range of asserted aboriginal rights, including title:

Thus, provincial governments can justifiably infringe aboriginal title, but as the Supreme Court of Canada recently stated in Haida, if there is infringement or potential infringement of an aboriginal right – which of course includes aboriginal title – consultation is required with those affected with a view to reaching some accommodation pending final resolution of the validity of the rights claimed. (para. 87)

In summarizing his conclusions on why the Crown had failed in its duty here, Hall J.A. wrote (at paras. 94-96):

In my view, the duty owed to the Musqueam by LWBC in this case tended to the more expansive end of the spectrum. The Crown conceded the Musqueam had a prima facie case for title over the Golf Course Land, and the report of the archaeological firm noted that the Musqueam had the strongest case of the bands in the area. Potential infringement is of significance to the Musqueam in light of their concerns about their land base. If the land is sold to a third party, there will likely be no opportunity for the Musqueam to prove their connection to this land again. The Musqueam were therefore entitled to a meaningful consultation process in order that avenues of accommodation could be explored.

In light of my view of the consultation required in this situation, I consider that the consultation process was flawed. If this was only a case where notice was required, the consultation may have been sufficient. However, in the present case, I consider the consultation was left until a too advanced stage in the proposed sale transaction. As McLachlin C.J. observed in Haida, there is ultimately no obligation on parties to agree after due consultation but in my view a decent regard must be had for transparent and informed discussion. Of course, legitimate time constraints may exist in some cases where the luxury of stately progress towards a business decision does not exist, but such urgency was not readily apparent in the present case. These lands have been used as a public golf course for a long time, and the status quo is not about to change having regard to the extant lease arrangements. The Musqueam should have had the benefit of an earlier consultation process as opposed to a series of counter-offers following the decision by LWBC to proceed with the sale.

I note that McLachlin C.J. suggested there should be some measure of deference when a court considers the adequacy of the government’s efforts to consult with an aboriginal group, and that administrative law principles suggest a standard of reasonableness would be used by the court when the question is not a purely legal question. She also observed that what is required is not perfection, but reasonableness in any consultation process followed by the Crown. However, even providing an appropriate measure of deference, for the reasons set out above, the Province in my view did not adequately consult with the Musqueam regarding the sale of the Golf Course Land.

[119] I will next briefly discuss what emerges from some of the recent trial-level decisions on the duty to consult.

[120] Gitxsan First Nation v. British Columbia (Minister of Forests) (2002), 10 B.C.L.R. (4th) 126, 2002 BCSC 1701 (CanLII) (Gitxsan First Nation #1) was decided prior to the Supreme Court of Canada decision in Haida Nation. The claimant First Nations sought to set aside the respondent Minister of Forest’s consent to a change in corporate control of Skeena Cellulose, which held a TFL and several forest licences over Crown land. The First Nations asserted rights and title to that land. Tysoe J. held that each of the petitioning First Nations had a good prima facie claim of aboriginal title and a strong prima facie claim of aboriginal rights with respect to at least part of the lands concerned. He noted at para. 72:

The claims for aboriginal rights are stronger than the claims for aboriginal title because they do not require an element of exclusivity, but each claim qualifies for a classification as a good or strong prima facie claim.

[121] Tysoe J. rejected the Crown’s argument that a prima facie case could not be made out because there were overlapping claims to the lands, finding instead that in such a case, the court can “conclude that the competing groups have each established aboriginal rights in respect of the area” (at para. 74). He concluded that the government did have a duty to consult. In so doing, he rejected the Crown’s argument that the change in ownership was “neutral” and did not require any consultation (para. 82). Tysoe J. did not quash the Minister’s decision to consent to the change in control but directed that the Minister be given an opportunity to fulfill the duty.

[122] The Gitanyow First Nation returned to court in 2004, arguing that the Minister had not provided adequate and meaningful consultation, and that the decision consenting to the change in control should be quashed. Following the Supreme Court of Canada decision in Haida Nation, Tysoe J. declared that the Crown had not yet fulfilled its duty to consult. Rather than granting the further relief requested by the Gitanyow, he ordered the parties to resume negotiations: see (2004), 38 B.C.L.R. (4th) 57, 2004 BCSC 1734 (CanLII) (“Gitxsan First Nation #2”).

[123] Powers J. in Homalco Indian Band v. British Columbia (Minister of Agriculture, Food and Fisheries) (2004), 39 B.C.L.R. (4th) 263, 2005 BCSC 283 (CanLII), considered an application for judicial review of an amendment to a licence for a salmon farm in Bute Inlet, allowing the introduction of Atlantic salmon to the farm. A company called Marine Harvest held the licence for the salmon farm; the Homalco claimed aboriginal title and rights in that area. The Homalco argued that the introduction of Atlantic salmon could bring potentially serious adverse consequences for the wild salmon stocks, and indeed that the mere presence of a fish farm carried risks. Powers J. noted at para. 16 that the petitioner “correctly argues that the duty arises when the Crown makes decisions that have a serious impact on asserted Aboriginal rights and title” and found at para. 25 that:

1. There is a reasonable probability that the Homalco will be able to establish Aboriginal title to at least some parts of the Homalco Territory including portions of Bute Inlet in the vicinity of Church House…

2. There is a substantial probability that the Homalco will be able to establish Aboriginal rights to harvest wild Pacific salmon and other marine resources of the Homalco territory.

[124] The Court found that a duty to consult existed. In considerable measure the conclusion seemed to flow from the finding regarding the likelihood that the Homalco would be able to establish aboriginal rights to fish in the area they claimed. The application for judicial review was adjourned. Until the consultation process was complete, the company was not to add additional Atlantic salmon to the site.

[125] At issue in Musqueam Indian Band v. Richmond (City) (2005), 12 M.P.L.R. (4th) 97, 2005 BCSC 1069 (CanLII) was the decision of the Lottery Corporation (a Provincial Crown corporation) to place a casino on Crown lands against which aboriginal title was asserted. The Court held that a duty to consult was triggered. Brown J. held that the Province was aware that the lands were the subject of a Musqueam claim, and that the placement of the casino might adversely affect the Musqueam’s aboriginal title interests. The Court referred to the limited amount of Crown land available to meet the Musqueam First Nation’s aboriginal title claims, and held that the Crown had a duty to consult and accommodate. Brown J. declined to set aside the decision to relocate the casino, taking into account the balance of convenience.

[126] In Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests) [2005] 3 C.N.L.R. 74, 2005 BCSC 697 (under appeal) (CanLII), the issue was the Crown’s application of the Forest and Range Agreement program. The program involved the allocation of forest tenures to First Nations following the enactment of the Forest Revitalization Act, S.B.C. 2003, c. 17, which took back 20% of the allowable annual cut from major replaceable forest licences and TFLs throughout the province. The Huu-Ay-Aht objected to the province’s use of a population-based formula for the allocation of forest tenures. One of the Crown’s arguments was that its duty to consult and accommodate aboriginal interests is not triggered by the Crown’s general management of forestry permits and approvals; rather, it is only triggered by specific decisions that have the potential to infringe on s. 35 rights.

[127] Dillon J. said the following at para. 104:

…declaratory relief has been granted by this court in several cases involving First Nations disputes concerning the duty to consult. In regards to forestry decisions, declaratory relief stems from the initial decisions to issue timber licences. In this case, the FRA initiative is a creature of statute, the Forestry Revitalization Act and the Forest Act, which enable the province to make specific agreements with First Nations regarding forest tenure. The FRA is the vehicle that the Ministry chose to deliver those specific agreements. The concept of ‘decision’ should not be strictly applied when there is legislative enablement for a government initiative that directly affects the constitutional rights of First Nations. This approach has been approved by the Supreme Court of Canada in Haida when it spoke of review of governmental action affecting the duty to consult. The petitioners are entitled to seek the declaratory relief under the JRPA that the FRA policy does not meet the Crown’s constitutional obligation to consult the HFN.

[128] That the Crown held title to the land was taken as one factor among several in the Court’s finding that the First Nation had a strong prima facie case (para. 120):

The HFN and the Crown are near the end of treaty negotiations with an agreement in principle that acknowledges rights related to forest resources and title to certain lands without legally recognizing HFN’s rights or title. There have been two previous accommodation agreements (the IMA and IMEA) that, for six years, had provided a process for continuing consultation that had been honoured by both parties. On this basis alone, the HFN have shown a strong prima facie claim to title and rights related to forestry resources such that consultation with respect to ongoing operations is warranted. In addition, the Crown holds title to the land in question with the HFN claim based upon occupation of the lands before Crown sovereignty. Although there are overlapping claims over part of the Hahoothlee, a part is exclusively claimed by the HFN. The issue of exclusive possession is challenging but not insurmountable (see Musqueam at paras. 87-88). It certainly does not mean that no consultation should occur. The level of potential infringement of rights to timber resources is severe given the harvest rate contemplated by third parties over the next five years.

[129] The duty of consultation and accommodation was applied by the Superior Court of Quebec in Betsiamites First Nation v. Attorney General of Canada, 2005 J.Q. No. 8173 (QL). That case dealt with the duty to consult and accommodate regarding timber supply and forest management agreements granted to a private company planning logging operations in an area to which the Betsiamites First Nation (“BFN”) asserted aboriginal rights and title. The Court concluded that the Crown, which had conceded that BFN had rights relating to food, ritual and social purposes on the territory, was also aware of the potential existence of aboriginal title, as past negotiations had revealed the nature, extent and complexity of land claims. The parties had reached an advanced stage in treaty negotiations, having achieved an Agreement in Principle.

[130] Grenier J. held that the province of Quebec had violated its constitutional duty to consult the BFN, and ordered the defendant logging company to cease its operations until a judgment on the merits was rendered on the application for an interlocutory injunction. The decision is now on appeal.

[131] In addition to the judicial decisions I have referred to, two decisions of environmental tribunals have come to my attention. While these decisions do not have precedential value, their reasoning is of interest.

[132] In TimberWest Forest Corp v. British Columbia (Deputy Administrator, Pesticide Control Act), [2003] B.C.E.A. No 31, TimberWest appealed the Deputy Administrator’s decision to place a number of conditions on a Pest Management Plan (PMP) TimberWest had submitted for authorization. Under the PMP, TimberWest sought permission to use pesticides on its land (formerly part of the Railway Lands, like the Removed Lands in this case.) The Cowichan First Nation (CFN) claimed aboriginal rights and title to those lands. Before authorizing the PMP, the Deputy Administrator met with representatives of the CFN concerning the proposed PMP. When the final PMP was issued, it took into consideration the CFN’s asserted aboriginal rights by restricting the use of pesticides at sites of particular spiritual or ceremonial significance to the CFN.

[133] Before the Environmental Appeal Board, TimberWest argued that the PMP restrictions were based on irrelevant considerations, one of which was the Deputy Administrator’s consultation with the CFN. Based on the Court of Appeal decisions in Haida Nation, (2000), 99 B.C.L.R. (3d) 209, 2002 BCCA 147 (CanLII), and Taku River, (2000), 98 B.C.L.R. (3d) 16, 2002 BCCA 59 (CanLII), the Panel acknowledged that the Deputy Administrator had a duty to consult and accommodate with aboriginals in the circumstances, and held that aboriginal rights and title are not subordinate to the rights of a fee simple owner.

[134] The Panel also held that where the Crown performs a regulatory role, the infringement of an aboriginal right can occur whenever the Crown exercises its decision making powers, regardless of the tenure of lands affected, reasoning:

… limiting aboriginal people to challenging only the original grant of fee simple, rather than any subsequent Crown authorized use of the private land, would be contrary to the purpose of section 35 of the Constitution Act, 1982 … (para. 203)

[135] The Panel concluded that the Deputy Minister did have a duty to consult and accommodate CFN interests before issuing his authorization of the PMP, and therefore, that the CFN’s claims of aboriginal rights and title were relevant considerations.

[136] In Penelakut First Nations Elders v. British Columbia (Regional Waste Management), [2005] B.C.W.L.D. 547, elders of the Penelakut First Nation appealed the Regional Waste Manager’s decision to authorize the discharge of waste from a land-based fish hatchery on Salt Spring Island that was located on land leased from a third party. The Penelakut First Nation asserted aboriginal rights to harvest food and to visit a sacred burial site near the hatchery site. The Environmental Appeal Board Panel held that the Provincial Crown had a duty to consult and accommodate aboriginal peoples in those circumstances, and that the Crown had met its duty.

[137] To summarize the effect of the judicial authorities, they show a three-step process for considering an alleged failure of the Crown to consult with and accommodate aboriginal people.

[138] First, in determining whether a duty to consult arises, the court must assess whether the Crown has knowledge, real or constructive, of the potential existence of the aboriginal rights. Second, the court must determine if the Crown contemplated conduct that might adversely affect those rights. If there is such knowledge and contemplated conduct, then the court must take the third step and consider the scope and content of the duty to consult and accommodate, and whether that duty has been met. Determining the scope and content of the duty necessitates a preliminary assessment of the strength of the case supporting the existence of the right, and a consideration of the seriousness of the potentially adverse effect upon the rights claimed.

(3) Knowledge of the Crown

[139] Did the Crown have knowledge, real or constructive, of the existence of potential aboriginal rights pertaining to the Removed Lands and to the surrounding Crown lands?

[140] The petitioners claim that most of the Removed Lands and a portion of Crown lands within TFL 44 are in their traditional territory. They rely on past negotiations and consultations with the Provincial Crown to prove that the Crown knew the extent and nature of their claim.

[141] As part of treaty negotiations, which have reached Stage Four, the HFN presented evidence to the Crown, including a “land selection” which encompasses the area in question. As well, the HFN had provided to the Crown a copy of their Land Use Plan for their claimed traditional territory.

[142] Between about 1994 and July 2004 there was consultation between the Crown and HFN with respect to logging plans in TFL 44, including the Removed Lands. During that period, the Crown was in a position to learn the details of the HFN position regarding the territory.

[143] The petitioners produced evidence from ethnographers and anthropologists indicating that Hupacasath people were present in the area in question at the time of first contact with Europeans. At least some of that evidence is in the public domain.

[144] The petitioners also argue that R. v. NTC Smokehouse (1993), 1996 CanLII 159 (SCC), 80 B.C.L.R. (2d) 158 (CA), [1996] 2 S.C.R. 672, shows previous judicial recognition of a Hupacasath aboriginal right to fish for salmon in the Somass River.

[145] In NTC Smokehouse, the defendant company was charged with selling fish allegedly caught illegally by Sheshaht (Tseshaht) and Opetchesaht (Hupacasath) people. The Provincial Court Judge at trial found that the “Sheshaht people” had established an aboriginal right to fish, without specifying whether the finding was meant to include or exclude the Hupacasath. The findings of fact at trial were upheld and adopted in both the British Columbia Court of Appeal and the Supreme Court of Canada. No level of court specifically addressed whether there was a basis for distinction between the Tseshaht and Hupacasath. Wallace J.A. stated that one of the questions before the Court of Appeal was “[d]oes the Aboriginal right of the Sheshaht and Opetchesaht Bands to fish for food encompass the commercial sale of fish?” (at para. 34). At para. 45, Wallace J.A. wrote:

Section 839(1) of the Criminal Code provides that an appeal to this Court from the summary conviction appeal court may “be taken on any ground that involves a question of law alone”. Findings of fact and questions of mixed fact and law are not reviewable by the court. The nature and scope of the aboriginal rights of the Seshaht and Opetchesaht peoples in this case were determined as a question of fact on the basis of the traditional practices integral to the aboriginal society of the claimants’ ancestors. Accordingly, the trial judge’s ruling that the commercial sale of fish cannot be characterized as an aboriginal fishing right of the Seshaht and Opetchesaht Indian Bands should not be disturbed.

[146] In the Supreme Court of Canada, Lamer C.J.C. stated:

For the purposes of this analysis no distinction will be made between the cultures of the Sheshaht and Opetchesaht because no such distinction was made by the appellant in its factum nor in the decisions of the courts below. Further, the evidence presented at trial did not distinguish between the cultures and history of the two bands. Normally, because the determination of whether or not an aboriginal right exists is specific to the particular aboriginal group claiming the right, distinctions between aboriginal claimants will be significant and important; however, in this case it does not appear, as a factual matter, that any significant distinctions exist between the Sheshaht and the Opetchesaht. (para. 23)

[147] There is a Tseshaht reserve at the mouth of the Somass River. The respondents argue that the right to fish for food was recognized basically as a communal right held by a larger community composed of both the Tseshaht and the Hupacasath bands and point out that the Tseshaht now dispute whether the Hupacasath have retained their aboriginal rights to fish in the area and may seek to prevent them from fishing there.

[148] I do not read NTC Smokehouse as constituting specific judicial determination that the HFN has an aboriginal right to fish in the Somass River, though it does show judicial recognition of such a right on the part of a larger Tseshaht/Hupacasath community, without distinction between the two groups.

[149] I note that the evidence tendered in the NTC Smokehouse case and the findings of fact of the trial judge were within the knowledge of the Provincial Crown, which appeared as intervener in both the Court of Appeal and Supreme Court of Canada actions.

[150] Given the treaty negotiations, the prior consultations, the publicly available information, and the evidence in NTC Smokehouse, I find that the Crown was aware or should have been aware, when it made the removal decision, of the HFN claims, and of the potential existence of aboriginal rights pertaining to the Removed Lands and the surrounding Crown lands in TFL 44.

(4) Contemplated conduct affecting aboriginal rights

[151] Did the Crown contemplate conduct that could adversely affect aboriginal rights?

[152] I will address this question in two stages. First, could the HFN have aboriginal rights (including possible aboriginal title) with respect to the privately owned land? Second, did the Crown contemplate conduct that might adversely affect HFN aboriginal rights with respect to the Removed Lands or with respect to the Crown land in TFL 44?

(a) Could the HFN have aboriginal rights with respect to the Removed Lands?

[153] As a threshold issue, I must decide whether the honour of the Crown is at stake only when its dealings relate to Crown land. Does the fact that the Removed Lands are private lands mean that the honour of the Crown cannot be implicated and thus, that a duty to consult and accommodate cannot arise on these facts?

[154] I will first briefly summarize the parties’ submissions on this point.

[155] Mr. Thompson for the Crown submitted that Haida Nation is premised on the fact that the Crown held legal title to the land and that the aboriginal group claimed aboriginal title to that land. He submitted that for claims to give rise to a duty to consult, they must be ones that are capable of realization. He urged that the petitioners in these proceedings do not challenge the original Crown grant or the fee simple title held now by Island Timberlands.

[156] The Crown’s position is that aboriginal title and fee simple title are fundamentally incompatible, because the former, which Delgamuukw described at para. 117 as “the right to exclusive use and occupation of the land” cannot coexist with fee simple title, the highest form of tenure in Canadian law and the most substantial estate that can exist in land.

[157] Thus, Mr. Thompson argued, a claim to aboriginal title over private land is not realizable and no duty to consult can arise.

[158] The Crown referred to the comments of Mahoney J. in the case of Hamlet of Baker Lake v. The Queen, [1980] 1 F.C. 518 at para. 102 (T.D.) (Q.L.):

The coexistence of an aboriginal title with the estate of the ordinary private landholder is readily recognized as an absurdity. The communal right of aborigines to occupy it cannot be reconciled with the right of a private owner to peaceful enjoyment of his land.

[159] The Crown also relies on Skeetchesten and this statement by MacKenzie J.A. at para. 72:

The appellant’s ultimate objective is stated to be reconciliation of the claimed aboriginal title with Kamlands title to the 6 Mile Ranch in some form of accommodation of interests. The appellant argues that the present use of the lands as a ranch is compatible with aboriginal title but an intensive resort development with hotels, condominiums and golf courses would be incompatible. This submission appears to have an inherent contradiction inasmuch as the claimed aboriginal title and the fee simple title each involve rights to exclusive possession which are mutually exclusive.

[160] In the Crown’s view, if the petitioners were to challenge the fee simple owner’s title, such a challenge would not succeed either because of the inherent incompatibility of fee simple and aboriginal title or because the infringement of aboriginal title would be justified.

[161] With respect to justification for infringement of aboriginal title, the Crown’s position is that both requirements can be met: (a) the infringement is in furtherance of a legislative objective that is compelling, substantial and reconcilable with aboriginal rights and the broader community of which they are a part; and (b) it is consistent with the special fiduciary relationship between the Crown and aboriginal peoples: Delgamuukw, paras. 161-162.

[162] The Crown also submits that aboriginal title to the Removed Lands may have been extinguished as a result of the Federal Crown grant in 1887 to the Esquimault and Nanaimo Railway (although the Crown urges that I should not reach a conclusion regarding extinction of title.)

[163] Further, the Crown’s position is that the question of whether aboriginal title and fee simple title can co-exist is inappropriate for a petition on judicial review and should not be decided in this proceeding.

[164] Under the terms of the British Columbia Treaty Process, the petitioners will not be able to obtain title to any private lands, except on a willing seller/willing buyer basis, and the Crown relies on that fact as further support for its position that there is a fundamental incompatibility between aboriginal title and fee simple title. The Crown’s position is that it does not recognize aboriginal title to lands that are privately held and that it does not have jurisdiction to provide privately held land if it is claimed.

[165] With respect to aboriginal rights short of title, Mr. Thompson argued that any aboriginal rights exercised by the HFN on the Removed Lands are at the sufferance of the private landowner, which can at any time prohibit access to its private property. He further submitted that aboriginal rights are subject to the right of the fee simple landowners to put their lands to uses that are visibly incompatible with the exercise of aboriginal rights, such as the harvesting of commercial timber.

[166] The Crown submits that a finding by this Court that the petitioners have established a prima facie case would “necessitate a finding that aboriginal rights and title not only exist on private land, … but a finding that First Nations must be consulted by the Crown or even private landowners when exercising their rights as fee simple titleholders at common law.” The Crown argued that “[s]uch a finding would constitute a step towards a challenge to the entire Torrens property system in British Columbia.”

[167] Brascan’s argument is consistent with that of the Crown. Brascan argues that the petitioners have not established a credible claim to aboriginal title in the Removed Lands. Mr. Clark pointed to the absence of authority for a duty to consult where the claim is for aboriginal title to privately owned land and emphasized that fee simple is the highest form of tenure in Canadian law and the most substantial estate which can exist in land. Brascan’s position is that it is logically impossible for both aboriginal title and fee simple title to co-exist on the same parcel of land. Brascan also stresses that the petitioners are not challenging the fee simple title.

[168] The petitioners respond that the authorities do not exempt private land from the duty to consult, and that the authorities do not support the proposition that aboriginal rights and title are inapplicable on private lands. Mr. Grant for the petitioners argued that aboriginal rights and title can co-exist with fee simple title. Further, he submitted that, although the petitioners are not challenging the fee simple title in this proceeding, they have filed a writ claiming aboriginal title over their traditional territory, which includes the Removed Lands.

[169] Mr. Grant argued that Crown sovereignty continues over all lands, including those held in fee simple, and that the obligation to consult flows simply from s. 35 of the Constitution Act, 1982, and the previous occupation of lands by an aboriginal group.

[170] I will begin my analysis with a review of some of the relevant authorities on the possible co-existence of private land ownership with aboriginal title and rights.

[171] As I read the cases, it has not yet been decided what meaning, if any, aboriginal title continues to have once the land over which it is asserted has been granted in fee simple to a third party.

[172] Skeetschten holds that aboriginal title is not a registrable interest, but leaves open the larger question of whether aboriginal title can co-exist with fee simple title. Southin J.A. adopted the metaphor used by MacKenzie J.A. that an aboriginal title claim is “upstream” of the certificate of indefeasible title:

During argument, my colleague, Mr. Justice Mackenzie, encapsulated the Registrar’s argument thus: “The claim of the appellant is upstream of the certificate of indefeasible title. The Registrar’s duties are downstream of the certificate.” (para. 4)

MacKenzie J.A. and Rowles J.A., after making the comment at para. 72 relied on by the Crown, that “the claimed aboriginal title and the fee simple title each involve rights to exclusive possession which are mutually exclusive”, adverted to the complexity of the issues surrounding aboriginal rights in lands alienated by the Crown and concluded that the court was bound by its earlier decision in Re Uukw et al. v. The Queen in Right of British Columbia et al. (1987), 1987 CanLII 2630 (BC CA), 37 D.L.R. (4th) 408 (B.C.C.A.) regarding registrability of aboriginal land claims (para. 83).

[173] As for aboriginal rights short of aboriginal title, although there is some authority with respect to their continued existence relating to privately owned land, many questions remain open.

[174] In Delgamuukw at para. 36, the Supreme Court of Canada summarized the Reasons of Macfarlane J.A. in the Court of Appeal regarding aboriginal rights and extinguishment:

The purpose of the colonial instruments in question was to facilitate an orderly settlement of the province, and to give the Crown control over grants to third parties. It is not inevitable, upon a reading of the statutory scheme, that the aboriginal interest was to be disregarded. They did not foreclose the possibility of treaties or of co-existence of aboriginal and Crown interests. Similarly, even fee simple grants to third parties do not necessarily exclude aboriginal use. For example, uncultivated vacant land held in fee simple does not necessarily preclude the exercise of hunting rights. Moreover, it is clear that, at common law, two or more interests in land less than fee simple can co-exist. However, since the record was not sufficiently specific to permit the detailed analysis of such issues, Macfarlane J.A. suggested that these issues be dealt with in negotiation. He concluded that extinguishment by a particular grant needed to be determined on a case by case basis. [emphasis added]

[175] Lamer C.J.C. later considered whether provincial laws of general application could extinguish aboriginal rights, and concluded:

It follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24). Prior to 1982, as a result, they could not be extinguished by provincial laws of general application. (para. 181)

[176] The relationship between existing treaty rights and private property was considered in R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771. That case involved hunting offences under the Alberta Wildlife Act, S.A. 1984, c. W-9.1. Three accused, with rights under Treaty No. 8, were caught hunting on private land. On appeal, the Court considered whether status Indians under Treaty No. 8 had the right to hunt for food on private land. The Court considered the text of Treaty No. 8, which provided for hunting, trapping and fishing “throughout the tract surrendered . . . saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes” (para. 40).

[177] Cory J. considered the text of the treaty and the circumstances in which it was signed and concluded:

… the oral promises made by the Crown’s representatives and the Indians’ own oral history indicate that it was understood that land would be taken up and occupied in a way which precluded hunting when it was put to a visible use that was incompatible with hunting. (para. 58)

As to whether aboriginals had a treaty right of access to hunt on privately owned lands, he concluded they did not where the land is put to a “visible, incompatible use”. He held at para. 66:

Where lands are privately owned, it must be determined on a case-by-case basis whether they are “other lands” to which Indians had a “right of access” under the Treaty. If the lands are occupied, that is, put to visible use which is incompatible with hunting, Indians will not have a right of access. Conversely, if privately owned land is unoccupied and not put to visible use, Indians, pursuant to Treaty No. 8, will have a right of access in order to hunt for food.

[178] Access to private land to practise aboriginal rights, as opposed to treaty rights, was considered in R. v. Alphonse (1993), 1993 CanLII 4517 (BC CA), 80 B.C.L.R. (2d) 17 (C.A.). That case concerned an appeal from charges under the Wildlife Act, S.B.C. 1982, c. 57, for hunting out of season on private, uncultivated land. The accused alleged that he was exercising an aboriginal hunting right at the time of his arrest. Macfarlane J.A. considered whether this defence was ineffective because Mr. Alphonse was hunting on private land.

[179] Macfarlane J.A. concluded that if legislation, such as the Trespass Act, R.S.B.C. 1979, c. 411, or the Wildlife Act, does not circumscribe the aboriginal rights in question, then those rights can be exercised. He dismissed the Crown’s argument that consent of the owner of private land was required, and concluded:

Applying the Trespass Act to the circumstances of this case, there was no prohibition with respect to hunting on the lands in question. That being so, it was not unlawful to hunt on those lands. Thus, it was not unlawful to exercise an aboriginal right on those lands. (para. 34)

Lambert J.A., in separate and concurring reasons for judgment, held:

The second aspect of this question relates to whether the exercise by Mr. Alphonse of a hunting right incidental to his aboriginal title or of a separate hunting right over the traditional ancestral lands of the Shuswap people may have been regulated in such a way as to preclude that exercise on land owned by the Onward Cattle Co. Ltd. in fee simple. In my opinion there is nothing in the Wildlife Act, the Trespass Act, or any other Provincial legislation which, by referential incorporation as Federal legislation or otherwise, might be thought to have precluded the exercise by Mr. Alphonse of a right to shoot the mule deer on this private land. The land was uncultivated bush; it was not occupied by livestock; it was not surrounded by a fence or a natural boundary; and it was not posted with signs prohibiting trespass. Just as in R. v. Bartleman (1984), 1984 CanLII 547 (BC CA), 55 B.C.L.R. 78 (B.C.C.A.), where such land was available for the exercise of treaty hunting rights over unoccupied lands, so in this case it was available for the exercise of aboriginal hunting rights. That is not to say that it would not have been available if it had been occupied by livestock or surrounded by a fence. Such a supposition raises a number of questions which it is not necessary to resolve in this appeal. (para. 111)

[180] Read together, Badger and Alphonse indicate that existing aboriginal and treaty rights, for example to hunt or fish, may be exercised on unoccupied private land if the activity is permitted by statute or common law and is not prohibited by the private landowner. With treaty rights, at least where a “tracts taken-up clause” is included in the relevant treaty, their exercise is precluded if the private land is occupied and visibly used for incompatible purposes. The exercise of aboriginal rights may also be precluded by visible, incompatible use, although the point does not appear to have been finally determined.

[181] I did not understand the petitioners to dispute that, whatever remains of aboriginal rights (short of title) with respect to private land, the owner of that land can preclude access as part of the owner’s rights to exclusive use and possession.

[182] I turn now to my analysis and conclusions regarding the respondents’ argument that the private ownership of the land precludes a claim for aboriginal title and, correspondingly, the existence of a duty to consult.

[183] There are no judicial decisions directly on point, so far as the research of counsel or my own research has disclosed. (As described above, two B.C. Environmental Appeal Board cases have addressed the point, but neither has previously been referred to in a judicial decision as far as I am aware, the cases were not the subject of submissions before me, and in any event, they do not have precedential value.)

[184] The Supreme Court of Canada and B.C. Court of Appeal authorities on the duty to consult (Delgamuukw, Haida Nation, Taku River, Musqueam and Mikisew) all involved Crown land, though they do not explicitly limit the duty to Crown land. The reasons in Haida Nation and Taku River do not emphasize Crown ownership of the land in question. Most of the discussion centres on the Crown as decision-maker rather than the Crown as landowner.

[185] The lower court cases decided since Haida Nation and Taku River have begun the development of the common law on duty to consult, as envisioned by the Supreme Court of Canada, and show a variety of circumstances in which the duty has been found to exist. Often the reasoning centres on Crown decision-making. However, all cases but one (Homalco) clearly involved Crown land.

[186] In Gitxsan First Nation #1, a change of corporate ownership of a company that held a TFL and forest licences over Crown land was challenged. In Huu-Ay-Aht, it was the operation of the provincial Forest and Range Agreement program. Musqueam v. Richmond and Betsiamites both concerned directly the use of Crown land or resources.

[187] In Homalco, the issue was the location and choice of fish stock for a fish farm operated by a private party. Homalco involved a decision whose effect was possibly to endanger fish stocks in waters where the First Nation claimed an aboriginal right to fish, adjacent to Crown land where they claimed aboriginal title.

[188] Despite the absence of authority on point, direction can be found in the principles articulated by the Supreme Court of Canada.

[189] The Supreme Court has found that consultation and accommodation are required where a First Nation advances a factually credible claim to aboriginal rights. The rights claimed can be as limited as the right to enter upon the land to fish, hunt or visit a sacred site, or as extensive as the right to maintain exclusive possession (aboriginal title). It is not necessary for the claimant to show that the claim will succeed; only that it is a credible claim. The strength of the claim, if it passes the threshold of credibility, does not bear on the existence of the duty; rather, it is relevant to the content of the duty. The Court reiterated in Mikisew that the initial threshold is low, and that “[t]he flexibility lies not in the trigger (“might adversely affect it”) but in the variable content of the duty once triggered” (para. 34).

[190] The duty to consult exists because of the need to reconcile the pre-existence of aboriginal societies with the sovereignty of the Crown.

[191] The Crown is sovereign over all lands, including those held in fee simple. Certain decisions by the Crown, such as this decision to remove the lands from the TFL, may significantly affect land to which aboriginal peoples lay claim, even though the Crown is not the title-holder to the land. Crown sovereignty and its power to make decisions about land during the time (which may be lengthy) when claims of aboriginal rights have been advanced but not yet proved triggers the duty to consult. Crown ownership of the land is not a necessary condition for the existence of that power to make decisions.

[192] Although Crown sovereignty extends to all land, Crown decision-making power about the land does not. Here, the Minister had specific and significant control over activities on the land, could prevent it from being used for non-forestry purposes, and could even prevent it from being alienated. These are unique and unusual circumstances.

[193] The respondents are asking me to decide at this stage, which is in effect an interim proceeding, that the removal decision could have no effect on aboriginal title. They urge, in general, that aboriginal title and fee simple title are fundamentally inconsistent and that it is logically impossible for them to co-exist on the same parcel of land, and in particular, that with respect to the Railway Lands aboriginal title was extinguished by the Federal Crown grant.

[194] Thus, they are asking me in fact to decide what they say I should refrain from deciding, by seeking a conclusion that the door is closed on aboriginal title claims when land is held in fee simple by a third party.

[195] The petitioners, on the other hand, are not seeking a ruling that aboriginal title continues to exist: only that it might. They are content that the door remain open, as it has been left by the higher courts. They assert aboriginal title without challenging the fee simple title in this proceeding, on the premise that this claim, under the existing state of the law, is sufficiently credible to found a duty to consult.

[196] Here, the Provincial Crown and the HFN are at Stage Four in treaty negotiations. Prior to the removal decision, the province consulted with the HFN regarding its actions within HFN claimed traditional territory as a whole. There is no evidence that the Provincial Crown made any distinction in this consultation process between the Crown land and the private land. When the Removed Lands were under TFL 44, the Crown had the power to restrict significantly the owner’s use of those lands, and could refuse to permit the alienation of those lands. The TFL was registrable against title under the Land Title Act by way of notice. The decision to remove the land from the TFL was a decision with important ramifications for the future of that land.

[197] I do not accept the respondents’ argument that this case is distinguishable from Haida Nation and Taku River.

[198] First, I do not find it significant that the fee simple title is not attacked in this proceeding. Further, the petitioners are advancing a claim to aboriginal title in a separate proceeding.

[199] Second, I conclude that the principles articulated in Haida Nation and Taku River can apply outside the context of Crown land. The Crown’s honour does not exist only when the Crown is a land-owner. The Crown’s honour can be implicated in this kind of decision-making affecting private land. Here, the Crown’s decision to permit removal of the lands from TFL 44 is one that could give rise to a duty to consult and accommodate. I refer back to the words of the Supreme Court in Haida Nation at para. 76: the province may have a duty to consult and perhaps accommodate on TFL decisions, which reflect the strategic planning for the utilization of the resource and which may potentially have serious impacts on aboriginal rights.

[200] I have concluded that the existence of a duty to consult, in these unique circumstances, is not precluded by the fact that these are private lands.

(b) Did the Crown contemplate conduct that might adversely affect HFN rights?

[201] The next step is to determine whether the Minister’s decision to remove the land from TFL 44 in fact had the potential to affect adversely aboriginal rights or title asserted by the HFN.

[202] The petitioners argue that their ability to exercise their aboriginal rights with respect to the Removed Lands requires that they have access to and protection of the land’s wildlife, fish and plant resources and the sacred sites integral to their way of life.

[203] The Removed Lands, when managed as part of TFL 44, were subject to the Forest Act, the Forest Practices Code and the Forest and Range Practices Act. They are no longer subject to that legislation. The petitioners urge that, as a result, the removal decision has significantly reduced the Crown’s ability to control forestry activities on the removed lands; it terminates, for example, the landowner’s obligations to submit a management plan, a timber supply analysis, and a 20-year plan and to be subject to an allowable annual cut.

[204] The HFN argues that the removal decision also purports to end the obligation of the Crown to consult with them regarding significant management decisions affecting the Removed Lands, pointing to past consultation and accommodation which led, for example, to protection of their sacred sites.

[205] The petitioners argue that the “management objectives” in the Private Managed Forest Land Act, S.B.C. 2003, c. 88, the legislation which now applies to the Removed Lands, are vague and non-specific, provide significantly reduced protection, and are easily avoided due to the regime’s voluntary nature. The legislation permits landowners to withdraw their lands from the managed forest classification at will, subject only to the possible payment of an exit fee to the local taxing authority and the loss of a benefit in terms of property tax rates (ss. 17-19).

[206] They submit that the level of environmental protection on the Removed Lands has been reduced.

[207] They also point to the fact that the owner’s powers over the Removed Lands have increased. For example, the owner can now subdivide and develop the lands for housing and sell the lands without the permission of the Minister.

[208] The petitioners concede that the HFN have always needed permission to go on the land since it became privately owned, but argue that previously there was a context in which permission was obtained, and a process under the terms of the TFL for managing the use of the land in consultation with them.

[209] The petitioners also argue that there is a potential adverse affect on their ability to exercise their aboriginal rights to resources on Crown land in TFL 44 because statutory and regulatory forest cover requirements for environmental purposes are often expressed as a proportion of the TFL’s total area; thus, the reduction of the total area of TFL 44 reduces in absolute terms the minimum size of the areas which are protected.

[210] The Crown argues that even if a claim does exist, there is no possible adverse impact on, or infringement of, asserted aboriginal rights or title since the petitioners continue to have the same ability to access the lands for cultural and other purposes. It submits that the change in the regulatory regime has not resulted in lesser environmental protections and that the removed lands have never been available for land selection through treaty in any event.

[211] Further, the Crown points to the conditions regarding the Removed Lands imposed by the Minister and agreed to by Brascan, in support of the argument that if the Hupacasath have any claim, their interests were accounted for and protected by the Minister of Forests when the removal decision was implemented, well beyond what would actually have been required.

[212] The Crown’s position is that it had an enforceable contract with Weyerhaeuser and that Brascan has subsequently indicated that it considers itself equally bound by the terms and conditions and will continue to manage the private lands in accordance with the provisions of the July 9 letter. It submits that Brascan has also agreed to be bound by the letter of agreement with the Ministry of Water, Land and Air Protection to protect ungulate winter ranges and other habitats and work to develop permanent protections for two years.

[213] The Crown argues that any failure by Brascan to continue to manage the lands under the Private Managed Forest Land Act would be a contractual breach and subject to remedy or penalty, and that federal legislation (the Fisheries Act, R.S.C. 1985, c. F-14, Navigable Waters Protection Act, R.S.C. 1985, c. N-22, Species at Risk Act, S.C. 2002, c. 29) and provincial legislation (Water Act, R.S.B.C. 1996, C. 483, Heritage Conversation Act, R.S.B.C. 1996, c. 187, Environmental Management Act, S.B.C. 2003, c. 53) continues to apply. The Crown points to the conditions imposed by the Minister regarding water quality and fish habitat through management objectives under the Private Managed Forest Land Act.

[214] The Crown argues that it is significant that Weyerhaeuser and now Brascan have agreed to maintain International Standards Organization (ISO) and CSA certifications, which require engagement of aboriginal groups in forms of consultation. Brascan submits that these certifications carry a comprehensive set of standards, which are not easily met, and that certification is not lightly obtained. Brascan points to evidence showing that HFN representatives had in fact agreed that CSA certification was preferable to the TFL regime.

[215] The respondents both argue that the petitioners are not entitled to an unchanging regulatory regime. They submit that, while there may be fewer opportunities for judicial review applications because there will be fewer decisions made by government, in any event the entire forest industry is moving towards a “results based” rather than a codified and process-oriented management regime.

[216] As did the Crown, Brascan argues that there in fact will be no change in the ability of the petitioners to access the private lands. It says that sites and objects having historical or cultural value to an aboriginal people, including those located on private land, are protected under the Heritage Conservation Act.

[217] Brascan confirmed in argument that it will abide by the Minister’s conditions for the removal decision. In response to a question from the Court as to whether the agreement between the government and Weyerhaeuser is enforceable as between the government and Brascan, Mr. Clark for Brascan stated that there has to be good faith between government and industry. He said that government “calls the shots” and that Brascan will abide by the government’s conditions, because if it did not, it would find itself subject to regulation and law reform, and “back to where it started”.

[218] Brascan argues that it is maintaining many of Weyerhaeuser’s policies and procedures with employees trained to be sensitive to aboriginal cultural issues, that it is in the business of timber harvesting for the long term and that the private lands in question are highly productive and can support in perpetuity large scale commercially viable harvesting on a sustainable basis.

[219] Brascan argues that there is no evidence of any concrete adverse effects from removal decision on the petitioners’ asserted rights because both Weyerhaeuser and Brascan have complied fully with the Minister’s conditions and the applicable legislation.

[220] In the alternative, Brascan argues that if the HFN did successfully establish aboriginal title in the removed lands, their only remedy could be against the Crown, and not against Brascan’s title, because aboriginal title is an encumbrance on the Crown’s underlying title and does not attach to fee simple title.

[221] I will now state my conclusions on the question whether the Crown contemplated conduct that might adversely affect Hupacasath aboriginal rights.

[222] The difference between the level of regulation of forestry activities on the land before removal from the TFL, under the Forest Act and the Forest Practices Code, and after removal under the Private Managed Forest Land Act, is significant enough, according to Brascan, that removal of the lands was a major factor in its decision to enter into the agreement to purchase Weyerhaeuser’s coastal assets.

[223] The removal decision, by all accounts, results in a lower level of possible government intervention in the activities on the land than existed under the TFL regime. There is a reduced level of forestry management and a lesser degree of environmental over-sight. Access to the land by the Hupacasath becomes, in practical terms, less secure because of the withdrawal of the Crown from the picture. There will possibly be increased pressure on the resources on the Crown land in the TFL as a result of the withdrawal of the Removed Lands. The lands may now be developed and re-sold.

[224] The conditions in the Minister’s letter are not enforceable by the HFN, even if they are enforceable by the Minister.

[225] In agreeing to the removal of the lands, the Crown decided to relinquish control over the activities on the land, control that permitted a degree of protection of potential aboriginal rights over and above that which flows from the continued application of federal and provincial legislation.

[226] Further, it is undisputed that nothing formally prevents Brascan from ceasing its voluntary compliance with the Private Managed Forest Land Act regime at any time its operational requirements so dictate. The conditions in the Minister’s letter to Weyerhaeuser, assuming that they are binding on Brascan, require maintenance of the current status of “managed forest” on the private property “[s]ubject to applicable law and Weyerhaeuser’s operation, risk management and other needs.” Similarly, the conditions state that “[v]ariable retention and stewardship zoning on old growth areas will be maintained indefinitely”, which would seem to allow for a change at any time.

[227] Brascan’s agreement to maintain current critical wildlife habitat areas for two years while a long-term plan is developed with the Ministry of Water, Land and Air Protection does not require that any ultimate agreement be reached.

[228] Although there is no evidence that the Hupacasath have experienced problems in exercising specific aboriginal rights on the land since the removal decision, the question is whether a greater potential now exists for such rights to be adversely affected than did before.

[229] The authorities reveal that the contemplated adverse effect need not be obvious. The test, as articulated by Haida Nation, and subsequently followed in a number of cases, focuses on conduct that has the potential to cause an adverse effect. In Gitxsan First Nation #1, Tysoe J. rejected the Crown’s argument that the transfer of a TFL and forest licences was a “neutral” decision that did not require any consultation (para. 82). He held that the potential for an adverse effect did result; the transfer changed the identity of the controlling mind of Skeena and the philosophy of the persons making the decisions associated with the licences and prevented the sale of the licences.

[230] The change from the regulatory regime before July 9, 2004, to the post-removal regime does have the potential to affect adversely aboriginal interests, despite the conditions imposed by the Minister, the continued application of federal and provincial legislation and the effect of the certification requirements. The Crown has relinquished its ability to protect undeclared aboriginal rights and to maintain the integrity of the treaty process.

[231] I find that the petitioners have established that the decision to remove the lands from management under the TFL regime has the potential to affect their ability to exercise aboriginal rights they may have on the Removed Lands (to fish, to hunt, to gather food, to harvest trees, to visit sacred places). I find that when the Minister decided to remove the lands from TFL 44, he contemplated conduct that had the potential to affect adversely the HFN’s aboriginal rights.

[232] I find as well that the Minister’s decision has the potential to affect the HFN’s aboriginal rights with respect to Crown land within their asserted traditional territory. Increased logging on the Removed Lands could have an impact on adjacent Crown land. Although the regulatory regime is not changed within TFL 44, activities such as logging and protection of old growth areas in TFL 44 may be altered as a result of the removal decision. The change has the potential to affect adversely the aboriginal rights asserted by the HFN.

[233] Thus, I find that the Minister contemplated conduct which he knew or ought to have known had the potential to affect adversely Hupacasath aboriginal rights.

(5) The Crown’s duty

(a) What was the nature and scope of the Crown’s duty?

[234] The scope of the duty is proportionate to a preliminary assessment of the strength of the case and to the seriousness of the potentially adverse effects upon the right or title claimed.

[235] Where the claim to title is weak, the aboriginal right limited, or the potential for infringement minor, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. It is different when a strong prima facie case is established, the right and potential infringement is of high significance to the aboriginal peoples, and the risk of non-compensable damage is high: deep consultation, aimed at finding a satisfactory interim solution, may then be required: Haida Nation, paras. 43-44.

[236] While the petitioners’ position is that they have shown a strong prima facie claim for aboriginal rights over all of their traditional territory, the Crown’s position is that the claim is non-existent on the Removed Lands and weak, at best, on the Crown land.

[237] In assessing the strength of the HFN claim, I take into account both the evidence as to traditional use (by the HFN and others) and the fact that the Removed Lands are privately owned: thus, I consider in a preliminary way both the factual and legal strength of the claim.

[238] There was some dispute in argument about the extent to which the Deputy Chief Forester acknowledged the claims of the HFN in his rationale for the amendment to the allowable annual cut. I agree with the Crown that he did not acknowledge the validity of those claims, as opposed to the fact that they were being made.

[239] I also agree with the submission of the Crown that the fact that the petitioners were accepted into the B.C. Treaty Process does not in itself reveal that they have a strong case since there was no evidence as to the criteria imposed for inclusion in the Treaty Process. However, the fact that negotiations are at Stage Four was a factor in my earlier conclusion that the Crown was or should have been aware of the nature and extent of the Hupacasath claim and the potential for adverse effect on aboriginal rights.

[240] The southern part of the asserted HFN traditional territory is subject to extensive overlapping claims by eight other First Nations, and the Crown specifically submitted that the strength of the HFN’s claim was reduced in light of historical evidence that they were conquered by the Tseshaht. As stated above, I make no finding as to conquest. I also note that I have taken into account, in assessing the evidence on traditional use and occupation, the submissions of counsel regarding factors bearing on its weight.

[241] The respondents conceded that both the northern area of the traditional territory as a whole, and more specifically the northern area of the Removed Lands, are relatively free of overlap.

[242] In Gitxsan First Nation #1 the Court noted, in responding to the Crown’s argument that a prima facie case could not be made out because of overlapping claims, that:

… in the event that the overlapping claims result in a finding that aboriginal title to a disputed area has not been established, it is still possible for the Court to conclude that the competing groups have each established aboriginal rights in respect of the area. (para. 74)

[243] In its most recent pronouncement in Marshall, the Supreme Court of Canada stated that aboriginal title requires the intention and capacity to retain exclusive control, that shared exclusivity could result in joint title and that aboriginal title is not negated by occasional acts of trespass or entry onto the land by consent (para. 57).

[244] Because of the private ownership of the land, and the position taken by the province in treaty negotiations, the prospect that the HFN will in the end obtain exclusive possession of any of the Removed Lands or ownership of the resources on them seems remote.

[245] However, the Removed Lands are contiguous with Crown land, and the removal decision affects the Crown land claimed by the HFN as part of its traditional territory. The prospect exists that the HFN will obtain exclusive possession of some of that Crown land or its resources through treaty.

[246] Based on the evidence before me, including the uncontradicted evidence of the Hupacasath elders regarding traditional use of the territory they describe, for the purposes of this application my preliminary assessment of the strength of the case is as follows.

[247] I will first address the case regarding Crown land. I find that the HFN has shown a strong prima facie case for aboriginal rights including title with respect to the portion of their asserted traditional territory on the Crown land which is not subject to any overlapping claims. I reach no conclusions on the strength of the competing claims by other First Nations, but take those claims into account in concluding that the HFN prima facie case for aboriginal title to the portion of Crown land subject to overlap is weaker than for the other portion. Regarding the portion of their asserted traditional territory on Crown land subject to overlapping claims, the petitioners have shown a good prima facie case for aboriginal rights to hunt, fish, gather food, harvest trees and visit sacred sites. Since those rights do not require exclusivity, the existence of the overlapping claims does not in general weaken the petitioners’ case.

[248] Second, with respect to the Removed Lands, I find that the petitioners have shown a prima facie case for aboriginal rights to hunt, fish, gather food, harvest trees and visit sacred sites on their asserted traditional territory, subject to the rights of the fee simple owner of that land to prohibit their access. Again, because the exercise of these aboriginal rights does not require exclusivity, I do not find that the existence of overlapping claims in general weakens the HFN case. I find that the petitioners have also shown a prima facie case for aboriginal title (if such title has not been extinguished and continues to exist with respect to the Removed Lands), with respect to the portion of their traditional territory not subject to overlapping claims. As for the portion of the traditional territory on the Removed Lands subject to overlapping claims, given the requirement of exclusivity, I find they have shown a weak prima facie case.

[249] On the existing state of the law, the petitioners’ aboriginal rights with respect to the Removed Lands are at best highly attenuated. Prior to the removal decision, the owners of the lands could have decided to exclude the Hupacasath from access to the lands at any time, subject to possible intervention by the Crown through its power to control activities on the land under the TFL. Their claimed aboriginal title, if it has not been extinguished, seems very unlikely to result in the Hupacasath obtaining exclusive possession of the Removed Lands in the future. The authorities indicate that the possible availability of the land to satisfy future land claims or treaty settlements is an important consideration in determining the extent of the Crown’s duty.

[250] The extent of the Crown’s duty is also proportionate to the seriousness of the potential adverse effect on the claimed aboriginal rights.

[251] I have described in the preceding part of these Reasons the potential adverse effects of the removal decision on HFN aboriginal rights.

[252] As a consequence of changes in activities on the Removed Lands, there might be some impact on fishing or hunting on the HFN claimed traditional territory outside the Removed Lands (and on Crown lands). I would say that the potential effect of the removal decision on the claimed aboriginal rights pertaining to the Crown land is modest.

[253] With respect to the Removed Lands themselves, the previous level of regulation of logging, wildlife protection and other activities on the land has been replaced by a different and much more forgiving regime. As well, the use of some of the lands could change altogether, for example through development for housing. The potential effect of the removal decision on the claimed traditional territory in the Removed Lands is serious.

[254] Taking both the strength of the HFN claim and the seriousness of the potential adverse effects into account, I find that the duty to consult was at a moderate level with respect to the Crown lands, and at a lower level with respect to the Removed Lands.

(b) Did the Crown fulfill its duty to consult and accommodate?

[255] I turn to the question of whether the Crown’s duty to consult was in fact fulfilled.

[256] Consultation requires good faith on both sides, which does not preclude hard bargaining. Aboriginal claimants must not frustrate the Crown’s reasonable efforts, nor should they take unreasonable positions to thwart government in its consultation attempts: Haida Nation at para. 42. The standard is reasonableness, not perfection (para. 62). The right to be consulted is not a right to veto (para. 48). What is required is a process of balancing interests, of give and take (para. 48).

[257] The Crown argued that the strength of the prima facie case, if it exists, is so slight that at most the HFN was entitled to notice. Mr. Thompson submitted that the after-the-fact public notice released by the Crown on July 13, 2004 was sufficient notice and satisfies the test with respect to the honour of the Crown. He did not refer to any authority in support of his position that after-the-fact notice could suffice as consultation, and I am not persuaded by this submission, which seems inconsistent with the Supreme Court of Canada’s pronouncements as to the meaning of consultation.

[258] The Crown conceded that there are remaining Crown lands which may be impacted, that consultation about these lands is ongoing and submitted that because, in that context, the HFN will have a chance to be consulted about specific impacts flowing from the removal decision, nothing else is necessary.

[259] Both the Crown and Brascan argued that the WIWAG meetings and other interaction between the HFN and Weyerhaeuser fulfilled any consultation requirements on the Crown. The Crown pointed to the fact that the prevailing framework until November 2004 was the B.C. Court of Appeal decision in Haida Nation, which required third party consultation.

[260] Brascan pointed to the statement by the Chief Justice in Haida Nation at para. 53 that “[t]he Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments”, and argued that in effect Weyerhaeuser was carrying out the Crown’s obligations.

[261] However, there is no evidence that the Crown delegated the procedural (or any) aspects of consultation to Weyerhaeuser. The WIWAG process was not the Crown’s, whether directly or indirectly, and the WIWAG process did not involve consultation by the Crown about the pending removal decision.

[262] Most significantly, there is no evidence of any occasion when the Ministry either sought out or had the opportunity to hear the HFN’s views about the Weyerhaeuser proposal to remove the lands, or the HFN’s views about appropriate measures to accommodate aboriginal interests. Weyerhaeuser’s discussions with the petitioners were in a context of asymmetrical information. The HFN did not know that Weyerhaeuser had made formal application to remove the lands, what representations it had made, or what terms and conditions were under discussion. Nor could it be said that the HFN had an opportunity to express their interests and concerns to the Crown, or to ensure that their representations were seriously considered and, where possible, integrated into the proposed plan of action.

[263] The respondents both argued that the HFN’s interests were in fact accommodated, beyond what would have been required, by the conditions imposed by the Minister. The Brascan submission put it this way:

The conditions to the Removal Letter are extensive, unusual and onerous. As will be discussed in more detail below, the conditions not only guarantee aboriginal access and notice, practices originally established on a voluntary basis by Weyerhaeuser, but they also protect aboriginal interests by imposing stringent environmental and forest practice requirements for the management of the lands. Environmental protection was further strengthened by Weyerhaeuser’s concurrent agreement to protect ungulate winter ranges and a wildlife habitat area within the removed lands. The owners of privately owned timberlands are not normally required to adhere to such conditions or agreements.

[264] I do not find this to be an answer to the alleged breach of the duty to consult. While the Ministry and Weyerhaeuser may have turned their minds to what would protect aboriginal interests, the HFN have a position about what is necessary to do so and they should have been able to put their views and position forward to the Crown while the Crown was considering whether to accede to the request to remove the land.

[265] The Brascan submission emphasized that the courts do not insist on elaborate consultation or attempts at accommodation where it would be futile in light of inflexible or unreasonable positions taken by aboriginal claimants. Brascan argues that the petitioners have repeatedly asserted that their consent was required for the lands to be removed, and that they would refuse their support unless there was an acknowledgment of Hupacasath rights and title to Brascan’s lands, control over resources on Brascan’s lands, and agreements with respect to jobs and revenues for the HFN. Thus, Mr. Clark submitted, consultation and attempts at accommodation beyond what in fact took place would have been manifestly useless in the light of the petitioners’ intransigence. He referred to Heiltsuk Tribal Council v. British Columbia (2003), 2003 BCSC 1422 (CanLII), 19 B.C.L.R. (4th) 107 at paras. 71-86, 103-118, 2003 BCSC 1422; Halfway River First Nation v. British Columbia (Min. of Forests) (1999), 1999 BCCA 470 (CanLII), 64 B.C.L.R. (3d) 206 at para. 161 per Finch J.A, 1999 BCCA 470; and Lax Kw’Alaams Indian Band v. British Columbia, 2004 BCSC 420 (CanLII) at para. 62.

[266] In Halfway River, Finch J.A. stated at para. 160-61:

The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action… .

There is a reciprocal duty on aboriginal peoples to express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions… .

[267] There is no evidence that the HFN refused to meet or to participate. The evidence that the HFN took the position with Brascan that it needed HFN consent to “get the land out” because of their asserted aboriginal rights and title to the land, without more, does not persuade me that they did frustrate or would have frustrated a consultation process. There was no consultation process for them to frustrate.

[268] The Crown argued that there was a duty on the HFN to take steps to deal with the issue, after it received notice on February 12, 2004 at the WIWAG meeting of Weyerhaeuser’s application to remove the land, by approaching the Minister of Forests to discuss its concerns about the potential impact of removing the lands from the TFL. The Crown argued that consultation is a “two-way street” (referring to Cheslatta Carrier Nation v. British Columbia (Environmental Assessment Act, Project Assessment Director, (1998), 1998 CanLII 6737 (BC SC), 53 B.C.L.R. (3d) 1 at para. 73 (S.C.) and to Ryan v. British Columbia (Minister of Forests – District Manager) (1994), 40 B.C.A.C. 91 (C.A.)).

[269] While there is no doubt the HFN knew that Weyerhaeuser was trying to persuade the Crown to remove the land, there is no evidence that HFN leaders knew that a formal application had been made, or that the Crown was considering it. I do not find that the failure of the HFN to make representations to the Crown in the February – July 2004 period disentitles them from now seeking review of the Crown’s failure to meet its duty to consult and accommodate.

[270] I do not find that what transpired in this case is comparable to what occurred in Heiltsuk or in Lax Hw’Alaams or that the HFN failed to meet their reciprocal duty to express their interests and concerns.

[271] Here, despite the previous history of consultation with the HFN about the management of TFL 44, the Crown did not attempt consultation at all. The Crown did not meet what Finch J.A. described as its “positive obligation”.

[272] I recognize that, as stated in Taku River at para. 40, the Crown does not have to develop a special or separate consultation process for aboriginal groups so long as the public consultation process takes aboriginal interests into account. However, the Crown did not conduct any public consultation process with respect to this decision and the participation of HFN representatives in WIWAG did not constitute consultation by the Crown.

[273] In summary, the Crown had a duty to consult with the HFN regarding the removal of the land from TFL 44, and regarding the consequences of the removal of that land on the remaining (Crown land) portion of TFL 44.

[274] The Crown’s duty with respect to alleged aboriginal rights on the Removed Land is at a low level and does not require “deep consultation”. It does require informed discussion between the Crown and the HFN in which the HFN have the opportunity to put forward their views and in which the Crown considers the HFN position in good faith and where possible integrates them into its plan of action. The Crown has not met that duty.

[275] The duty on the Crown with respect to the effect of the removal decision on aboriginal rights asserted on Crown land is higher, and requires something closer to “deep consultation”. On the evidence, the Crown did not meet that duty.

(6) Amendment to the allowable annual cut

[276] I must also consider whether the Crown met its duty to consult with respect to the decision of the Chief Forester to determine a new allowable annual cut for Crown lands remaining in TFL 44. Did the Crown contemplate that its amendment to the allowable annual cut had the potential to affect adversely HFN aboriginal rights in the Crown land that remained in the TFL area?

[277] The Crown was aware of the HFN claim to the Crown land under the TFL, and had consulted with the HFN in the past regarding decisions relating to the TFL, including the allowable annual cut. As set out above, my preliminary assessment is that the HFN prima facie claim to aboriginal rights on the Crown land is strong, particularly so with respect to land that is not subject to overlapping claims.

[278] The petitioners submit that the Chief Forester’s amendment decision has the direct (and the potentially adverse) effect of altering the rate at which timber harvesting will take place on lands over which they assert aboriginal rights. Further, they submit the adjustment has the indirect effect of altering the protective measures previously established in TFL 44. They argue the August 26, 2004, adjustment, which they say was made without reference to localized considerations, affects measures previously adopted to conserve wildlife and fish habitat, water quality, and biodiversity.

[279] The Crown submits that the adjustment in question does not have a potential adverse effect on the asserted aboriginal rights of the HFN, as it reduces the level of harvest on a wholly proportional basis. The Crown submits that the adjustment at worst leaves the Hupacasath in the same position they were in prior to the removal decision, or in fact benefits them. The Crown submits that no duty to consult is triggered.

[280] The Crown also submits that the petitioners failed to respond on two occasions when the Crown contacted them to solicit approval of the original allowable annual cut determination for TFL 44 and that therefore the petitioners’ claims of concern regarding the adjustment should be viewed with some scepticism.

[281] Given the Crown’s knowledge of the HFN claim, the past history of consultation, and the potential for the allowable annual cut amendment to affect the claimed aboriginal rights, I find that the Crown had a duty to consult the HFN about that decision.

[282] As already described, the authorities show that the scope and content of the duty will be proportional to the strength of the claim and the seriousness of the potentially adverse effect upon the right or title claimed.

[283] Here, the decision reduces the rate of timber harvesting on the Crown land, proportionate to the change in total area in the TFL resulting from the removal of the lands. The HFN position, as I understand it, is that the decision is problematic with respect to their asserted aboriginal rights because the rate was not reduced more.

[284] The Crown points out that the allowable annual cut determination is a lengthy and complex process, taking at least 20 months and occurring every five years. Mr. Thompson also submitted that the Crown had to reduce the rate of timber harvesting in the TFL once the Removed Lands were out; otherwise, there would have been an unsustainable rate of harvesting.

[285] In all of the circumstances, it is fair to characterize the potentially adverse effect, if any, as minor. Under Haida Nation, where potential infringement is minor, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice (para. 43).

[286] The HFN first received notice on July 13, 2004 that it was likely the Chief Forester would amend the allowable annual cut on, when a copy of the Minister of Forests’ letter of July 9, 2004 was forwarded to them. That letter stated:

Allowable Annual Cut (AAC) Determination

Due to the significance of the private land deletion and its impact on the AAC determination for TFLs 39 and 44, I expect the chief forester will make a new AAC determination reflecting the reduction in size of the TFLs effective the date the private lands are removed

[287] More generally, the HFN were aware, or should have been aware, that the allowable annual cut would be changed if the “management assumptions” on which it was based changed. The original Rationale for Allowable Annual Cut (AAC) Determination for Tree Farm Licence 44 effective August 1, 2003, provided at p. 33:

…If additional significant new information is made available to me in respect of the management assumptions upon which I have predicated this decision, or First Nations’ interests, then I am prepared to revisit this determination sooner than the five years required by legislation

[288] The HFN received notice of the allowable annual cut amendment from Weyerhaeuser, on September 14, 2004, and the Amendment Rationale from the Ministry of Forests on November 16, 2004.

[289] The HFN had notice that it was likely the allowable annual cut was going to be amended and knew, or should have known, that the Chief Forester had explicitly reserved the right to amend the allowable annual cut if the assumptions on which the original cut was based changed. There is no evidence that the HFN contacted the Chief Forester after the removal decision was made but before the allowable annual cut was adjusted to discuss how their aboriginal interests would be affected. At the same time, there is no indication that the Crown approached them or asked them for their views.

[290] I have concluded that in these circumstances, where the Crown gave notice and disclosed information regarding its decision, and where there is no evidence that it failed to respond to concerns raised by the HFN, it fulfilled its duty to consult.

(7) What remedy, if any, should be granted as a result of the breach of duty to consult and accommodate?

[291] First, the petitioners sought declaratory relief.

[292] There will be a declaration that the Minister of Forests had, prior to the removal decision on July 9, 2004, and continues to have, a duty to consult with the Hupacasath in good faith and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.

[293] There will be a declaration that making the removal decision on July 9, 2004 without consultation with the Hupacasath was inconsistent with the honour of the Crown in right of British Columbia in its dealings with the Hupacasath.

[294] There will be a declaration that the Chief Forester had, prior to the August 26, 2004 decision to amend the allowable annual cut for TFL 44, and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.

[295] Second, the petitioners urge that unless this Court orders, in addition to declaratory relief, that the Minister’s decision be quashed or suspended in its effect, any consultation would be a purely formal and empty exercise because the Minister has “stripped himself” of the ability to exercise statutory powers over the Removed Lands.

[296] The petitioners ask that I set aside or stay the effects of the removal decision, and refer the matter for reconsideration after further consultation with the petitioners and after the seeking of meaningful workable accommodation. Mr. Grant for the petitioners referred to the Crown’s conduct in this matter as “egregious” and described the possible impact on Hupacasath aboriginal rights of leaving the removal decision in place as very serious. In particular, he emphasized the right to fish and the right to carry on sacred practices on the land.

[297] The petitioners argue that Brascan was well aware of their position and of this petition when it completed the purchase of the Weyerhaeuser coastal assets and that it should not now be able to assert prejudice resulting from its reliance on the validity of the removal decision.

[298] The Crown argues that there is a duty on the HFN to take steps and advise the Crown of its concerns and that First Nations cannot frustrate the consultation process by refusing to meet or participate or by imposing unreasonable conditions, as set out in Halfway River at para. 161; thus, a remedy should be refused.

[299] As stated above, I do not find that construction of the facts to be accurate. It has not been established on the evidence that the HFN refused to meet, imposed unreasonable conditions or was intransigent.

[300] The Crown also argued that the petitioners did not commence this proceeding until over five months after the removal decision and that there has been a significant delay in filing materials, a factor for the exercise of discretion against granting relief.

[301] The petitioners notified the Minister of their position very shortly after they learned of the removal decision and have proceeded relatively expeditiously. I do not find that the remedy granted should be affected by alleged delay on their part.

[302] The Crown argued that remedies under judicial review are wholly discretionary and that the court may withhold a remedy for objective reasons, including a balancing of potential prejudices to parties who have relied on the Minister’s consent in good faith. The Crown argued that private landowners have spent money and taken steps in reliance on the Minister’s decision, a factor weighing against setting it aside. It also urged that granting the relief sought by the petitioners would affect the public interest because it would “subvert public confidence in the finality of government decisions”.

[303] The Crown argues that setting aside the decision and restoring the Removed Lands to TFL 44 would serve no purpose since the petitioners are not challenging the fee simple title of Brascan and any aboriginal rights asserted are subject to the visible and incompatible use doctrine and can only be exercised at the sufferance of Brascan.

[304] The Crown argued that the impact on the public interest and third parties far outweighs the speculative prejudice alleged by the petitioners.

[305] Brascan joined in the Crown’s submission.

[306] In addition, Mr. Clark for Brascan argued that a key factor for Brascan in purchasing Weyerhaeuser’s property was the prospect of high quality, privately owned timberlands and that when Brascan learned that this petition had been filed on December 16, 2004, Brascan was already deeply committed and the essential terms of the proposed purchase were already in place. He argued that Brascan was justified in relying on the validity of the removal decision when it bought Weyerhaeuser’s assets, pointing to evidence of Brascan’s understanding about the background to the removal decision: namely, that similar previous removal decisions by the Minister had not been challenged and that Weyerhaeuser had had positive working relationships with First Nations and had informed HFN representatives of its quest to have the lands removed.

[307] Mr. Clark argued that the petitioners are really seeking the right to consent and approval, and that the Court should exercise its discretion against the remedies sought by the petitioners for three main reasons: (1) the immateriality of the alleged failure to consult and accommodate, especially in light of the practical futility of the remedies sought; (2) the serious and irremediable prejudice Brascan and many others would suffer if the remedies were granted; and (3) the public interest in the validity and reliability of administrative decisions with respect to private land in British Columbia.

[308] In support of the assertion of prejudice, Mr. Clark tendered evidence in the form of an affidavit from Reid Carter, the Managing Partner of Brascan Timberlands Management LP.

[309] Mr. Carter deposed that Island Timberlands’ operations are based in Nanaimo, employing about 285 people in operating the privately owned timberlands and the sale of logs, and holding agreements with independent logging contractors which employ about 450 – 500 people. He deposed that in forming Island Timberlands, Brascan represented to potential institutional partners the advantages of the privately owned timberlands. He swore that Brascan’s estimate is that the profit margin on the sale of timber from the privately owned timberlands business is about $25- $30 per cubic metre higher than the margin attainable from the timber within TFL 44, and that Island Timberlands could face a loss of $15-$24 million annually if the Removed Lands are returned to TFL 44 because of this difference in margin. He stated that the value of the Brascan purchase from Weyerhaeuser would be seriously impacted by such an outcome.

[310] Mr. Carter stated opinions in his affidavit about the wide economic consequences of a reversal of the removal decision for Brascan, its shareholders, Island Timberlands, its investment partners and employees, and the surrounding communities. The petitioners objected to this opinion evidence, and I have disregarded it because Mr. Carter’s qualifications to provide expert opinion evidence were not set out in the affidavit or otherwise provided to the Court

[311] I do take into account other aspects of Mr. Carter’s evidence, including his statements that if the privately owned timberlands were returned to TFL 44 the forced co-mingling of two incompatible businesses would result and that Island Timberlands would need to reassess and reconfigure its business plans in a significant way possibly leading to reduced production and job losses.

[312] I also take into account the context in which Brascan made its decision to go forward with the purchase.

[313] On November 30, 2005, in conjunction with his submissions on the impact of the Mikisew case, counsel for Brascan also advanced arguments based on the increased prejudice to third parties that would flow from an order setting aside the removal decision, in the light of the recent sale of Cascadia to Western Forest Products Inc., and offered to provide affidavit evidence in support of those arguments. Counsel for the petitioners objected to this. I have not taken those recent submissions as to increased prejudice into account in reaching my conclusions.

[314] I am satisfied on the evidence before me that there would be significant prejudice to Island Timberlands and to Brascan if the Removal Decision were set aside or suspended in its effects.

[315] Finally, Mr. Clark argued that third parties are not responsible for the Crown’s failure to consult or accommodate and indeed the honour of the Crown can weigh in favour of third parties, as stated by Madam Justice Southin in Skeetchestn at para. 5. He submitted that if there is to be any remedy, it should be to direct the Crown and the petitioners to engage in consultation and if necessary, arrive at appropriate accommodation measures that engage the resources of the Crown and not Brascan.

[316] Should the decision to permit the removal of lands from TFL 44 be quashed and set aside, or suspended in its effects?

[317] In the light of the substantial prejudice to third parties which could flow from quashing or suspending the removal decision, compared with the lesser prejudice which could befall the HFN if the removal decision is left in effect, I have concluded that the removal decision should not be quashed or set aside.

[318] However, I believe that a meaningful remedy can be granted pending the completion of consultation.

[319] Both of the respondents took the position that the conditions in the Minister’s letter of July 9, 2004, amounted to more than reasonable accommodation of the HFN’s interests. Counsel for the petitioners argued forcefully, however, that those conditions are not enforceable by the HFN and are imprecise in some respects.

[320] I have concluded that appropriate interim relief for the Crown’s breach of its duty to consult and accommodate regarding the removal decision can be built upon the conditions in the Minister’s letter.

[321] The following will be terms of this Court’s order and will be in effect for two years from the date of entry of this order or until the province has completed consultations with the HFN, whichever is sooner:

1. Brascan will maintain the current status of “managed forest” on the Removed Lands and will keep the land under the Private Managed Forest Land Act, subject to all of its provisions and regulations governing planning, soil conservation, harvesting rate and reforestation;
2. Brascan will maintain variable retention and stewardship zoning on old growth areas in the Removed Lands;
3. Brascan will fulfill its commitments in the Minister’s letter regarding maintenance of water quality on the Removed Lands;
4. Brascan will maintain all current wildlife habitat areas on the Removed Lands;
5. Brascan will maintain ISO or CSA certifications and will continue to subject the Removed Lands to the public advisory process as per CSA standards;
6. Brascan will maintain current access for aboriginal groups to the Removed Lands;
7. Brascan will provide to the HFN seven days notice of any intention to conduct activities on the land which may interfere with the exercise of aboriginal rights asserted by the HFN.

[322] This order will apply to Brascan, Island Timberlands, and their successors in interest.

[323] The parties will exchange positions as to what kinds of activities might interfere with the exercise of aboriginal rights and if there is a failure to agree on a framework, the matter will go to mediation. The Crown will facilitate the operation of this term of the order, including, if requested by the petitioners and Brascan, providing the services of independent mediators at Crown expense.

[324] The petitioners also seek orders for disclosure of information relevant to the consultation.

[325] I will order that the Crown and the petitioners provide to each other such information as is reasonably necessary for the consultation to be completed. Counsel for the Crown suggested that there should be discussion between the parties as to the exact type and extent of the information to be provided, as in Homalco (at para. 124) and Gitxsan First Nation #1 (at para. 113). I agree. I direct that the Crown and the petitioners attempt to agree on the information exchange. If they are unable to agree, the matter will go to mediation.

[326] As well, the Crown and the petitioners will attempt to agree on a consultation process and if they are unable to agree on a process, they will go to mediation. If mediation fails, they may seek further directions from the Court.

B. Compliance with Provincial Statutory Requirements

[327] In addition to the claims based on the Crown’s duty to consult and accommodate, the HFN also claims that the decisions of both the Minister of Forests to remove the lands from TFL 44 and the Deputy Chief Forester to amend the allowable annual cut did not comply with applicable statutes, and that therefore, this Court should quash or suspend those decisions.

[328] First, the petitioners argue that the Minister of Forests’ decision to remove the private lands from TFL 44 did not comply with the requirements of the Forest Practices Code, and its successor the Forest and Range Practices Act, S.B.C. 2002 c. 69 [“FRPC”]. The HFN claims that the removal decision changes Resource Management Zones, thus invoking the comment and review requirements of s. 3(3) of the Forest Practices Code.

[329] They also claim that the removal decision is invalid because it purports to cancel a wildlife habitat area (specifically, WHA #1-002) that only the Minister of Water, Land and Air Protection (WLAP) has the authority to repeal.

[330] Second, the petitioners submit that the adjustment to the annual allowable cut is invalid because the Deputy Chief Forester did not turn his mind to all the factors that must be considered to properly fulfill that officer’s statutory decision-making function. They submit that under s. 8(8) of the Forest Act, the Chief Forester is required to consider, among other things, what rate of timber production can be sustained in the area. They claim that the former deputy’s proportional adjustment was purely mathematical and ignored the localized considerations that would need to be considered to meet the guiding objectives.

[331] I have considered the evidence, the authorities and the submissions of counsel and have concluded that the alleged statutory breaches in this case would not, even if they were established, warrant the exercise of my discretion to grant an order to quash or suspend the removal decision or the allowable annual cut amendment, given the balance of convenience and prejudice.

[332] Since I have granted relief to the petitioners on the basis of the breach of the Crown’s duty to consult, it is unnecessary for me to decide the issues raised regarding breach of statutory duties.

C. Summary of Conclusions

[333] The Minister of Forests’ decision to remove lands from TFL 44 gave rise to a duty on the Provincial Crown to consult the Hupacasath. The Crown failed to meet that duty.

[334] The Chief Forester’s decision to amend the allowable annual cut for TFL 44 gave rise to a duty on the Provincial Crown to consult the Hupacasath. The Crown met that duty.

[335] The petitioners will have declaratory relief. I decline to order that the removal decision be quashed or suspended. Certain conditions regarding the use of the Removed Lands for up to two years, pending the completion of consultation and accommodation, are imposed as terms of this order. Where the parties fail to agree on matters regarding the consultation they will go to mediation.

[336] I find it unnecessary to decide the issues raised regarding the alleged breach of statutory duties.

[337] The petitioners have largely been successful, and will have their costs of these proceedings.

[338] I am not seized of this matter.

“Lynn Smith, J.”
The Honourable Madam Justice Lynn Smith

 

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Beckman v. Little Salmon Carmack First Nation [2010] S.C.C. 53

Date Issued: 

David Beckman, in his capacity as Director,

Agriculture Branch, Department of Energy,

Mines and Resources, Minister of Energy,

Mines and Resources,

and Government of Yukon                                                        Appellants/Respondents on cross-appeal

 

v.

 

Little Salmon/Carmacks First Nation and

Johnny Sam and Eddie Skookum,

on behalf of themselves and

all other members of the

Little Salmon/Carmacks First Nation                                            Respondents/Appellants on cross-appeal

 

and

 

Attorney General of Canada, Attorney General of Quebec,

Attorney General of Newfoundland and Labrador,

Gwich’in Tribal Council, Sahtu Secretariat Inc.,

Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority,

Council of Yukon First Nations, Kwanlin Dün First Nation,

Nunavut Tunngavik Inc., Tlicho Government, Te’Mexw Nations and

Assembly of Nations                                                          Interveners

 

Indexed as:  Beckman v. Little Salmon Carmack First Nation

Neutral citation:  2010 SCC 53.

File No.:  32850.

2009: November 12; 2010: November 19.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

 

ON APPEAL FROM THE COURT OF APPEAL FOR THE YUKON TERRITORY

            Constitutional law — Aboriginal peoples — Aboriginal rights — Land claims — Duty of Crown to consult and accommodate in the context of a modern comprehensive land claims treaty — Treaty provides Aboriginal right of access for hunting and fishing for subsistence in their traditional territory — Application by non‑Aboriginal for an agricultural land grant within territory approved by Crown — Whether Crown had duty to consult and accommodate Aboriginal peoples — If so, whether Crown discharged its duty — Constitution Act, 1982 s. 35 .

            Crown law — Honour of the Crown — Duty to consult and accommodate Aboriginal peoples — Whether Crown has duty to consult and accommodate prior to making decisions that might adversely affect Aboriginal rights and title claims.

            Administrative law — Judicial review — Standard of review — Whether decision maker had duty to consult and accommodate  If so, whether decision maker discharged this duty — Lands Act, R.S.Y. 2002, c. 132; Territorial Lands (Yukon) Act, S.Y. 2003, c. 17.

            Little Salmon/Carmacks entered into a land claims agreement with the governments of Canada and the Yukon Territory in 1997, after 20 years of negotiations.  Under the treaty, Little Salmon/Carmacks members have a right of access for hunting and fishing for subsistence in their traditional territory, which includes a parcel of 65 hectares for which P submitted an application for an agricultural land grant in November 2001.  The land applied for by P is within the trapline of S, who is a member of Little Salmon/Carmacks. 

            Little Salmon/Carmacks disclaim any allegation that a grant to P would violate the treaty, which itself contemplates that surrendered land may be taken up from time to time for other purposes, including agriculture.  Nevertheless, until such taking up occurs, the members of Little Salmon/Carmacks attach importance to their ongoing treaty interest in surrendered Crown lands (of which the 65 acres forms a small part).  Little Salmon/Carmacks contend that in considering the grant to P the territorial government proceeded without proper consultation and without proper regard to relevant First Nation’s concerns.

            The Yukon government’s Land Application Review Committee (“LARC”) considered P’s application at a meeting to which it invited Little Salmon/Carmacks.  The latter submitted a letter of opposition to P’s application prior to the meeting, but did not attend.  At the meeting, LARC recommended approval of the application and, in October 2004, the Director, Agriculture Branch, Yukon Department of Energy, Mines and Resources, approved it.  Little Salmon/Carmacks appealed the decision to the Assistant Deputy Minister, who rejected its review request.  On judicial review, however, the Director’s decision was quashed and set aside.  The chambers judge held that the Yukon failed to comply with the duty to consult and accommodate.  The Court of Appeal allowed the Yukon’s appeal.

            Held:  The appeal and cross‑appeal should be dismissed. 

            Per McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ.:  When a modern land claim treaty has been concluded, the first step is to look at its provisions and try to determine the parties’ respective obligations, and whether there is some form of consultation provided for in the treaty itself.  While consultation may be shaped by agreement of the parties, the Crown cannot contract out of its duty of honourable dealing with Aboriginal people — it is a doctrine that applies independently of the intention of the parties as expressed or implied in the treaty itself.

            In this case, a continuing duty to consult existed.  Members of Little Salmon/Carmacks possessed an express treaty right to hunt and fish for subsistence on their traditional lands, now surrendered and classified as Crown lands.  While the Treaty did not prevent the government from making land grants out of the Crown’s holdings, and indeed it contemplated such an eventuality, it was obvious that such grants might adversely affect the traditional economic and cultural activities of Little Salmon/Carmacks, and the Yukon was required to consult with Little Salmon/Carmacks to determine the nature and extent of such adverse effects. 

            The treaty itself set out the elements the parties regarded as an appropriate level of consultation (where the treaty requires consultation) including proper notice of a matter to be decided in sufficient form and detail to allow that party to prepare its view on the matter; a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and full and fair consideration by the party obliged to consult of any views presented.

            The actual treaty provisions themselves did not govern the process for agricultural grants at the time.  However, given the existence of the treaty surrender and the legislation in place to implement it, and the decision of the parties not to incorporate a more elaborate consultation process in the Treaty itself, the scope of the duty of consultation in this situation was at the lower end of the spectrum.

            Accordingly, the Director was required, as a matter of compliance with the legal duty to consult based on the honour of the Crown, to be informed about and consider the nature and severity of  any adverse impact of the proposed grant before he made a decision to determine (amongst other things) whether accommodation was necessary or appropriate.  The purpose of consultation was not to re‑open the Treaty or to re‑negotiate the availability of the lands for an agricultural grant.  Such availability was already established in the Treaty.  Consultation was required to help manage the important ongoing relationship between the government and the Aboriginal community in a way that upheld the honour of the Crown and promoted the objective of reconciliation.

            In this case, the duty of consultation was discharged.  Little Salmon/Carmacks acknowledges that it received appropriate notice and information.  The Little Salmon/Carmacks objections were made in writing and they were dealt with at a meeting at which Little Salmon/Carmacks was entitled to be present (but failed to attend).  Both Little Salmon/Carmacks’ objections and the response of those who attended the meeting were before the Director when, in the exercise of his delegated authority, he approved P’s application.  Neither the honour of the Crown nor the duty to consult required more.

            Nor was there any breach of procedural fairness.  While procedural fairness is a flexible concept, and takes into account the Aboriginal dimensions of the decision facing the Director, it is nevertheless a doctrine that applies as a matter of administrative law to regulate relations between the government decision makers and all residents of the Yukon, Aboriginal as well as non‑Aboriginal.

            While the Yukon had a duty to consult, there was no further duty of accommodation on the facts of this case.  Nothing in the treaty itself or in the surrounding circumstances gave rise to such a requirement.

            In exercising his discretion in this case, as in all others, the Director was required to respect legal and constitutional limits.  The constitutional limits included the honour of the Crown and its supporting doctrine of the duty to consult.  The standard of review in that respect, including the adequacy of the consultation, is correctness.  Within the limits established by the law and the Constitution, however, the Director’s decision should be reviewed on a standard of reasonableness.

            In this case, the Director did not err in law in concluding that the level of consultation that had taken place was adequate.  The advice the Director received from his officials after consultation is that the impact of the grant of 65 hectares would not be significant.  There is no evidence that he failed to give full and fair consideration to the concerns of Little Salmon/Carmacks.  The material filed by the parties on the judicial review application does not demonstrate any palpable error of fact in his conclusion.  Whether or not a court would have reached a different conclusion is not relevant.  The decision to approve or not to approve the grant was given by the legislature to the Minister who, in the usual way, delegated the authority to the Director.  His disposition was reasonable in the circumstances.

            Per LeBel and Deschamps JJ.:  Whereas past cases have concerned unilateral actions by the Crown that triggered a duty to consult for which the terms had not been negotiated, in the case at bar, the parties have moved on to another stage.  Formal consultation processes are now a permanent feature of treaty law, and the Little Salmon/Carmacks Final Agreement affords just one example of this.  To give full effect to the provisions of a treaty such as the Final Agreement is to renounce a paternalistic approach to relations with Aboriginal peoples.  It is a way to recognize that Aboriginal peoples have full legal capacity.  To disregard the provisions of such a treaty can only encourage litigation, hinder future negotiations and threaten the ultimate objective of reconciliation.

            To allow one party to renege unilaterally on its constitutional undertaking by superimposing further rights and obligations relating to matters already provided for in the treaty could result in a paternalistic legal contempt, compromise the national treaty negotiation process and frustrate the ultimate objective of reconciliation.  This is the danger of what seems to be an unfortunate attempt to take the constitutional principle of the honour of the Crown hostage together with the principle of the duty to consult Aboriginal peoples that flows from it.

            In concluding a treaty, the Crown does not act dishonourably in agreeing with an Aboriginal community on an elaborate framework involving various forms of consultation with respect to the exercise of that community’s rights.  Nor does the Crown act dishonourably if it requires the Aboriginal party to agree that no parallel mechanism relating to a matter covered by the treaty will enable that party to renege on its undertakings.  Legal certainty is the primary objective of all parties to a comprehensive land claim agreement.

            Legal certainty cannot be attained if one of the parties to a treaty can unilaterally renege on its undertakings with respect to a matter provided for in the treaty where there is no provision for its doing so in the treaty.  This does not rule out the possibility of there being matters not covered by a treaty with respect to which the Aboriginal party has not surrendered possible Aboriginal rights.  Nor does legal certainty imply that an equitable review mechanism cannot be provided for in a treaty.

            Thus, it should be obvious that the best way for a court to contribute to ensuring that a treaty fosters a positive long relationship between Aboriginal and non‑Aboriginal communities consists in ensuring that the parties cannot unilaterally renege on their undertakings.  And once legal certainty has been pursued as a common objective at the negotiation stage, it cannot become a one‑way proposition at the stage of implementation of the treaty.  On the contrary, certainty with respect to one party’s rights implies that the party in question must discharge its obligations and respect the other party’s rights.  Having laboured so hard, in their common interest, to substitute a well‑defined legal system for an uncertain normative system, both the Aboriginal party and the Crown party have an interest in seeing their efforts bear fruit.

            It is in fact because the agreement in issue does provide that the Aboriginal party has a right to various forms of consultation with respect to the rights the Crown wishes to exercise in this case that rights and obligations foreign to the mechanism provided for in the treaty must not be superimposed on it, and not simply because this is a “modern” treaty constituting a land claims agreement.

            Even when the treaty in issue is a land claims agreement, the Court must first identify the common intention of the parties and then decide whether the common law constitutional duty to consult applies to the Aboriginal party.  Therefore, where there is a treaty, the common law duty to consult will apply only if the parties to the treaty have failed to address the issue of consultation.

            The consultation that must take place if a right of the Aboriginal party is impaired will consist in either:  (1) the measures provided for in the treaty in this regard; or (2) if no such measures are provided for in the treaty, the consultation required under the common law framework.

            Where a treaty provides for a mechanism for consultation, what it does is to override the common law duty to consult Aboriginal peoples; it does not affect the general administrative law principle of procedural fairness, which may give rise to a duty to consult rights holders individually.

            The courts are not blind to omissions, or gaps left in the treaty, by the parties with respect to consultation, and the common law duty to consult could always be applied to fill such a gap.  But no such gap can be found in this case.

            These general considerations alone would form a sufficient basis for dismissing the appeal. 

            But the provisions of the Final Agreement also confirm this conclusion.  The Final Agreement includes general and interpretive provisions that are reproduced from the Umbrella Agreement.  More precisely, this framework was first developed by the parties to the Umbrella Agreement, and was then incorporated by the parties into the various final agreements concluded under the Umbrella Agreement.  Where there is any inconsistency or conflict, the rules of this framework prevail over the common law principles on the interpretation of treaties between governments and Aboriginal peoples.

            These general and interpretive provisions also establish certain rules with respect to the relationships of the Umbrella Agreement and any final agreement concluded under it, not only the relationship between them, but also that with the law in general.  These rules can be summarized in the principle that the Final Agreement prevails over any other non‑constitutional legal rule, subject to the requirement that its provisions not be so construed as to affect the rights of “Yukon Indian people” as Canadian citizens and their entitlement to all the rights, benefits and protections of other citizens.  In short, therefore, with certain exceptions, the treaty overrides Aboriginal rights related to the matters to which it applies, and in cases of conflict or inconsistency, it prevails over all other non‑constitutional law.

            Regarding the relationship between the treaty in issue and the rest of our constitutional law other than the case law on Aboriginal rights, such a treaty clearly cannot on its own amend the Constitution of Canada.  In other words, the Final Agreement contains no provisions that affect the general principle that the common law duty to consult will apply only where the parties have failed to address the issue of consultation.  This will depend on whether the parties have come to an agreement on this issue, and if they have, the treaty will — unless, of course, the treaty itself provides otherwise — override the application to the parties of any parallel framework, including the common law framework.

            In this case, the parties included provisions in the treaty that deal with consultation on the very question of the Crown’s right to transfer Crown land upon an application like the one made by P.

            P’s application constituted a project to which the assessment process provided for in Chapter 12 of the Final Agreement applied.  Although that process had not yet been implemented, Chapter 12, including the transitional legal rules it contains, had been.  Under those rules, any existing development assessment process would remain applicable.  The requirements of the processes in question included not only consultation with the First Nation concerned, but also its participation in the assessment of the project.  Any such participation would involve a more extensive consultation than would be required by the common law duty in that regard.  Therefore, nothing in this case can justify resorting to a duty other than the one provided for in the Final Agreement.

            Moreover, the provisions of Chapter 16 on fish and wildlife management establish a framework under which the First Nations are generally invited to participate in the management of those resources at the pre‑decision stage.  In particular, the invitation they receive to propose fish and wildlife management plans can be regarded as consultation.

            The territorial government’s conduct raises questions in some respects.  In particular, there is the fact that the Director did not notify the First Nation of his decision of October 18, 2004 until July 27, 2005.  Under s. 81(1) of the Yukon Environmental and Socio‑economic Assessment Act, S.C. 2003, c. 7 (“YESAA ”), the “designated office” and, if applicable, the executive committee of the Yukon Development Assessment Board would have been entitled to receive copies of that decision and, one can only assume, to receive them within a reasonable time.  Here, the functional equivalent of the designated office is the Land Application Review Committee (“LARC”).  Even if representatives of the First Nation did not attend the August 13, 2004 meeting, it would be expected that the Director would inform that First Nation of his decision within a reasonable time.  Nonetheless, the time elapsed after the decision did not affect the quality of the prior consultation.

            The territorial government’s decision to proceed with P’s application at the “prescreening” stage despite the requirement of consultation in the context of the First Nation’s fish and wildlife management plan was not an exemplary practice either.  However, the First Nation did not express concern about this in its letter of July 27, 2004 to Yukon’s Lands Branch.  And as can be seen from the minutes of the August 13, 2004 meeting, the concerns of the First Nation with respect to resource conservation were taken into consideration.  Also, the required consultation in the context of the fish and wildlife management plan was far more limited than the consultation to which the First Nation was entitled in participating in LARC, which was responsible for assessing the specific project in issue in this appeal.  Finally, the First Nation, the renewable resources council and the Minister had not agreed on a provisional suspension of the processing of applications for land in the area in question.

            Despite these aspects of the handling of P’s application that are open to criticism, it can be seen from the facts as a whole that the respondents received what they were entitled to receive from the appellants where consultation as a First Nation is concerned.  In fact, in some respects they were consulted to an even greater extent than they would have been under the YESAA 

            The only right the First Nation would have had under the YESAA  was to be heard by the assessment district office as a stakeholder.  That consultation would have been minimal, whereas the First Nation was invited to participate directly in the assessment of P’s application as a member of LARC. 

            It is true that the First Nation’s representatives did not attend the August 13, 2004 meeting.  They did not notify the other members of LARC that they would be absent and did not request that the meeting be adjourned, but they had already submitted comments in a letter.

            Thus, the process that led to the October 18, 2004 decision on P’s application was consistent with the transitional law provisions of Chapter 12 of the Final Agreement.  There is no legal basis for finding that the Crown breached its duty to consult.

Cases Cited

By Binnie J.

            Considered:  R. v. Marshall, [1999] 3 S.C.R. 456; R. v. Badger, [1996] 1 S.C.R. 771; applied:  Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Van der Peet, [1996] 2 S.C.R. 507; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; referred to:  Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; R. v. Taylor (1981), 62 C.C.C. (2d) 227, leave to appeal refused, [1981] 2 S.C.R. xi; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Nikal, [1996] 1 S.C.R. 1013; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256.

By Deschamps J.

            Considered:  Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; referred to:  Guerin v. The Queen, [1984] 2 S.C.R. 335; R. v. Sparrow, [1990] 1 S.C.R. 1075; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, [1950] S.C.R. 211; Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159;Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. White (1964), 50 D.L.R. (2d) 613, aff’d (1965), 52 D.L.R. (2d) 481; R. v. Sioui, [1990] 1 S.C.R. 1025; Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434; R. v. Badger, [1996] 1 S.C.R. 771; R. v. Sundown, [1999] 1 S.C.R. 393; R. v. Marshall, [1999] 3 S.C.R. 456; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746.

Statutes and Regulations Cited

Assessable Activities, Exceptions and Executive Committee Projects Regulations, SOR/2005‑379, ss. 2, 5, Sch. 1, Part 13, item 27.

Canadian Charter of Rights and Freedoms .

Canadian Environmental Assessment Act, S.C. 1992, c. 37 .

Constitution Act, 1867 , Part VI.

Constitution Act, 1982 ss. 25 35 , 52 , Part V.

Environmental Assessment Act, S.Y. 2003, c. 2 [rep. O.I.C. 2005/202, (2006) 25 Y. Gaz. II, 32].

Indian Act, R.S.C. 1985, c. I‑5 .

Lands Act, R.S.Y. 2002, c. 132, s. 7(1)(a).

Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.

Territorial Lands (Yukon) Act, S.Y. 2003, c. 17. 

Wildlife Act, R.S.Y. 2002, c. 229, ss. 13(1), 82, 187.

Yukon Environmental and Socio‑economic Assessment Act, S.C. 2003, c. 7 ss. 2(1)  “territory”, 5, 8, 20(1), 23(1), 47(2), 50(1), 55(1)(b), 55(4), 60, 63, 81(1), 82(1), 83(1), 84(1), 122(c), 134.

Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34 ss. 5 6(2) , 13 .

Treaties and Agreements

James Bay and Northern Québec Agreement (1975).

Little Salmon/Carmacks First Nation Final Agreement, July 1, 1997 (online:  http://www.eco.gov.yk.ca/pdf/little_salmon_carmacks_fa.pdf).

Treaty No. 8 (1899).

Treaty No. 11 (1921).

Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (1993).

Authors Cited

Canada.  Indian and Northern Affairs.  Federal Policy for the Settlement of Native Claims.  Ottawa:  Indian and Northern Affairs Canada, 1993.

Grammond, Sébastien.  Aménager la coexistence:  Les peuples autochtones et le droit canadien.  Cowansville, Qué.:  Yvon Blais, 2003.

Newman, Dwight G. The Duty to Consult:  New Relationships with Aboriginal Peoples.  Saskatoon: Purich Publishing, 2009.

Saint‑Hilaire, Maxime.  “La proposition d’entente de principe avec les Innus: vers une nouvelle génération de traités?” (2003), 44 C. de D. 395.

Stevenson, Mark L.  “Visions of Certainty:  Challenging Assumptions”, in Law Commission of Canada, ed., Speaking Truth to Power:  A Treaty Forum.  Ottawa:  Minister of Public Works and Government Services Canada, 2001, 113.

Williams, Robert A. Linking Arms Together:  American Indian Treaty Visions of Law and Peace, 1600‑1800.  New York:  Oxford University Press, 1997.

Yukon.  Agriculture for the 90s:  A Yukon Policy.  Whitehorse: Yukon Government, 1991.

            APPEAL and CROSS‑APPEAL from a judgment of the Yukon Court of Appeal (Newbury, Kirkpatrick and Tysoe JJ.A.), 2008 YKCA 13, 296 D.L.R. (4th) 99, 258 B.C.A.C. 160, 434 W.A.C. 160, [2008] 4 C.N.L.R. 25, 71 R.P.R. (4th) 162, [2008] Y.J. No. 55 (QL), 2008 CarswellYukon 62, setting aside the decision of Veale J., 2007 YKSC 28, [2007] 3 C.N.L.R. 42, [2007] Y.J. No. 24 (QL), 2007 CarswellYukon 18, quashing the approval of application for land grant.  Appeal and cross‑appeal dismissed.

            Brad ArmstrongQ.C.Keith BergnerPenelope Gawn and Lesley McCullough, for the appellants/respondents on cross‑appeal.

            Jean TeilletArthur Pape and Richard B. Salter, for the respondents/appellants on cross‑appeal.

            Mitchell R. TaylorQ.C., for the intervener the Attorney General of Canada.

            Hugues Melançon and Natacha Lavoie, for the intervener the Attorney General of Quebec.

            Rolf Pritchard and Justin S. C. Mellor, for the intervener the Attorney General of Newfoundland and Labrador.

            Brian A. CraneQ.C., for the interveners the Gwich’in Tribal Council and Sahtu Secretariat Inc.

            Jean‑Sébastien Clément and François Dandonneau, for the intervener the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority.

            James M. CoadyDave Joe and Daryn R. Leas, for the intervener the Council of Yukon First Nations.

            Joseph J. ArvayQ.C., and Bruce Elwood, for the intervener the Kwanlin Dün First Nation.

            James R. AldridgeQ.C., and Dominique Nouvet, for the intervener Nunavut Tunngavik Inc.

            John Donihee, for the intervener the Tlicho Government.

            Robert J. M. Janes and Karey M. Brooks, for the intervener the Te’Mexw Nations.

            Peter W. Hutchins and Julie Corry, for the intervener the Assembly of First Nations.

                    The judgment of McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ. was delivered by

[1]                              BINNIE J. — This appeal raises important questions about the interpretation and implementation of modern comprehensive land claims treaties between the Crown and First Nations and other levels of government.

[2]                              The treaty at issue here is the Little Salmon/Carmacks First Nation Final Agreement (the “LSCFN Treaty”), which was finalized in 1996 and ratified by members of the First Nation in 1997.  The LSCFN Treaty is one of 11 that arose out of and implement an umbrella agreement signed in 1993 after 20 years of negotiations between representatives of all of the Yukon First Nations and the federal and territorial governments.  It was a monumental achievement.  These treaties fall within the protection of s. 35  of the Constitution Act, 1982 , which gives constitutional protection to existing Aboriginal and treaty rights.

[3]                              The present dispute relates to an application for judicial review of a decision by the Yukon territorial government dated October 18, 2004, to approve the grant of 65 hectares of surrendered land to a Yukon resident named Larry Paulsen.  The plot borders on the settlement lands of the Little Salmon/Carmacks First Nation, and forms part of its traditional territory, to which its members have a treaty right of access for hunting and fishing for subsistence.  In the result, Mr. Paulsen still awaits the outcome of the grant application he submitted on November 5, 2001.

[4]                              The First Nation disclaims any allegation that the Paulsen grant would violate the LSCFN Treaty, which itself contemplates that surrendered land may be taken up from time to time for other purposes, including agriculture.  Nevertheless, until such taking up occurs, the members of the LSCFN have an ongoing treaty interest in surrendered Crown lands (of which the 65 hectares form a small part), to which they have a treaty right of access for hunting and fishing for subsistence.  The LSCFN contends that the territorial government proceeded without proper consultation and without proper regard to relevant First Nation’s concerns.  They say the decision of October 18, 2004, to approve the Paulsen grant should be quashed.

[5]                              The territorial government responds that no consultation was required.  The LSCFN Treaty, it says, is a complete code.  The treaty refers to consultation in over 60 different places but a land grant application is not one of them.  Where not specifically included, the duty to consult, the government says, is excluded.

[6]                              The important context of this appeal, therefore, is an application for judicial review of a decision that was required to be made by the territorial government having regard to relevant constitutional as well as administrative law constraints.  The Yukon Court of Appeal held, as had the trial judge, that the LSCFN Treaty did not exclude the duty of consultation, although in this case the content of that duty was at the lower end of the spectrum (2007 YKSC 28; 2008 YKCA 13).  The Court of Appeal went on to hold, disagreeing in this respect with the trial judge, that on the facts the government’s duty of consultation had been fulfilled.

[7]                              I agree that the duty of consultation was not excluded by the LSCFN Treaty, although its terms were relevant to the exercise of the territorial government discretion, as were other principles of administrative and Aboriginal law, as will be discussed.  On the facts of the Paulsen application, however, I agree with the conclusion of the Court of Appeal that the First Nation did not make out its case.  The First Nation received ample notice of the Paulsen application, an adequate information package, and the means to make known its concerns to the decision maker.  The LSCFN’s objections were made in writing and they were dealt with at a meeting at which the First Nation was entitled to be present (but failed to show up).  Both the First Nation’s objections and the response of those who attended the meeting were before the appellant when, in the exercise of his delegated authority, he approved the Paulsen application.  In light of the consultation provisions contained in the treaty, neither the honour of the Crown nor the duty to consult were breached.  Nor was there any breach of procedural fairness.  Nor can it be said that the appellant acted unreasonably in making the decision that he did.  I would dismiss the appeal and cross-appeal.

I.       Overview

[8]                              Historically, treaties were the means by which the Crown sought to reconcile the Aboriginal inhabitants of what is now Canada to the assertion of European sovereignty over the territories traditionally occupied by First Nations.  The objective was not only to build alliances with First Nations but to keep the peace and to open up the major part of those territories to colonization and settlement.  No treaties were signed with the Yukon First Nations until modern times.

[9]                              Unlike their historical counterparts, the modern comprehensive treaty is the product of lengthy negotiations between well-resourced and sophisticated parties.  The negotiation costs to Yukon First Nations of their various treaties, financed by the federal government through reimbursable loans, were enormous.  The LSCFN share alone exceeded seven million dollars.  Under the Yukon treaties, the Yukon First Nations surrendered their Aboriginal rights in almost 484,000 square kilometres, roughly the size of Spain, in exchange for defined treaty rights in respect of land tenure and a quantum of settlement land (41,595 square kilometres), access to Crown lands, fish and wildlife harvesting, heritage resources, financial compensation, and participation in the management of public resources.  To this end, the LSCFN Treaty creates important institutions of self-government and authorities such as the Yukon Environmental and Socio-economic Assessment Board and the Carmacks Renewable Resources Council, whose members are jointly nominated by the First Nation and the territorial government.

[10]                          The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35  of the Constitution Act, 1982 .  The modern treaties, including those at issue here, attempt to further the objective of reconciliation not only by addressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship between Aboriginal and non-Aboriginal communities.  Thoughtful administration of the treaty will help manage, even if it fails to eliminate, some of the misunderstandings and grievances that have characterized the past.  Still, as the facts of this case show, the treaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract.  The treaty is as much about building relationships as it is about the settlement of ancient grievances.  The future is more important than the past.  A canoeist who hopes to make progress faces forwards, not backwards.

[11]                          Equally, however, the LSCFN is bound to recognize that the $34 million and other treaty benefits it received in exchange for the surrender has earned the territorial government a measure of flexibility in taking up surrendered lands for other purposes.

[12]                          The increased detail and sophistication of modern treaties represents a quantum leap beyond the pre-Confederation historical treaties such as the 1760-61 Treaty at issue in R. v. Marshall, [1999] 3 S.C.R. 456, and post-Confederation treaties such as Treaty No. 8 (1899) at issue in R. v. Badger, [1996] 1 S.C.R. 771, and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388.  The historical treaties were typically expressed in lofty terms of high generality and were often ambiguous.  The courts were obliged to resort to general principles (such as the honour of the Crown) to fill the gaps and achieve a fair outcome.  Modern comprehensive land claim agreements, on the other hand, starting perhaps with the James Bay and Northern Québec Agreement (1975), while still to be interpreted and applied in a manner that upholds the honour of the Crown, were nevertheless intended to create some precision around property and governance rights and obligations.  Instead of ad hoc remedies to smooth the way to reconciliation, the modern treaties are designed to place Aboriginal and non-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency, and predictability.  It is up to the parties, when treaty issues arise, to act diligently to advance their respective interests.  Good government requires that decisions be taken in a timely way.  To the extent the Yukon territorial government argues that the Yukon treaties represent a new departure and not just an elaboration of the status quo, I think it is correct.  However, as the trial judge Veale J. aptly remarked, the new departure represents but a step — albeit a very important step — in the long journey of reconciliation (para. 69).

[13]                          There was in this case, as mentioned, an express treaty right of members of the First Nation to hunt and fish for subsistence on their traditional lands, now surrendered and classified as Crown lands.  While the LSCFN Treaty did not prevent the government from making land grants out of the Crown’s land holdings, and indeed it contemplated such an eventuality, it was obvious that such grants might adversely affect the traditional economic activities of the LSCFN, and the territorial government was required to consult with the LSCFN to determine the nature and extent of such adverse effects. 

[14]                          The delegated statutory decision maker was the appellant David Beckman, the Director of the Agriculture Branch of the territorial Department of Energy, Mines and Resources.  He was authorized, subject to the treaty provisions, to issue land grants to non-settlement lands under the Lands Act, R.S.Y. 2002, c. 132, and the Territorial Lands (Yukon) Act, S.Y. 2003, c. 17.  The First Nation argues that in exercising his discretion to approve the grant the Director was required to have regard to First Nation’s concerns and to engage in consultation.  This is true.  The First Nation goes too far, however, in seeking to impose on the territorial government not only the procedural protection of consultation but also a substantive right of accommodation.  The First Nation protests that its concerns were not taken seriously — if they had been, it contends, the Paulsen application would have been denied.  This overstates the scope of the duty to consult in this case.  The First Nation does not have a veto over the approval process.  No such substantive right is found in the treaty or in the general law, constitutional or otherwise.  The Paulsen application had been pending almost three years before it was eventually approved.  It was a relatively minor parcel of 65 hectares whose agricultural use, according to the advice received by the Director (and which he was entitled to accept), would not have any significant adverse effect on First Nation’s interests. 

[15]                          Unlike Mikisew Cree where some accommodation was possible through a rerouting of the proposed winter road, in this case, the stark decision before the appellant Director was to grant or refuse the modified Paulsen application.  He had before him the relevant information.  Face-to-face consultation between the First Nation and the Director (as decision maker) was not required.  In my view, the decision was reasonable having regard to the terms of the treaty, and in reaching it the Director did not breach the requirements of the duty to consult, natural justice, or procedural fairness.  There was no constitutionalimpediment to approval of the Paulsen application and from an administrative law perspective the outcome fell within a range of reasonable outcomes. 

II.      Facts

[16]                          On November 5, 2001, Larry Paulsen submitted his application for an agricultural land grant of 65 hectares.  He planned to grow hay, put up some buildings and raise livestock.  The procedure governing such grant applications was set out in a pre-treaty territorial government policy, Agriculture for the 90s: A Yukon Policy (1991) (the “1991 Agriculture Policy”).

[17]                          The Paulsen application (eventually in the form of a “Farm Development Plan”) was pre-screened by the Agriculture Branch and the Lands Branch as well as the Land Claims and Implementation Secretariat (all staffed by territorial civil servants) for completeness and compliance with current government policies.  

[18]                          The Paulsen application was then sent to the Agriculture Land Application Review Committee (“ALARC”) for a more in-depth technical review by various Yukon government officials.  ALARC was established under the 1991 Agriculture Policy.  It predates and is completely independent from the treaty.  The civil servants on ALARC recommended that Mr. Paulsen reconfigure his parcel to include only the “bench” of land set back from the Yukon River for reasons related to the suitability of the soil and unspecified environmental, wildlife, and trapping concerns.  Mr. Paulsen complied.

[19]                          On February 24, 2004, ALARC recommended that the Paulsen application for the parcel, as reconfigured, proceed to the next level of review, namely, the Land Application Review Committee (“LARC”), which includes First Nation’s representatives.  LARC also functioned under the 1991 Agriculture Policy and, as well, existed entirely independently of the treaties.

[20]                          Reference should also be made at this point to the Fish and Wildlife Management Board — a treaty body composed of persons nominated by the First Nation and Yukon government — which in August 2004 (i.e. while the Paulsen application was pending) adopted a Fish and Wildlife Management Plan (“FWMP”) that identified a need to protect wildlife and habitat in the area of the Yukon River, which includes the Paulsen lands.  It proposed that an area in the order of some 10,000 hectares be designated as a Habitat Protection Area under the Wildlife Act, R.S.Y. 2002, c. 229.  The FWMP also recognized the need to preserve the First Nation’s ability to transfer its culture and traditions to its youth through opportunities to participate in traditional activities.  The FWMP did not, however, call for a freeze on approval of agricultural land grants in the area pending action on the FWMP proposals.

[21]                          Trapline #143 was registered to Johnny Sam, a member of the LSCFN.  His trapline is in a category administered by the Yukon government, not the First Nation.  It helps him to earn a livelihood as well as to provide a training ground for his grandchildren and other First Nation youth in the ways of trapping and living off the land.  The trapline covers an area of approximately 21,435 hectares.  As noted by the Court of Appeal, the 65 hectares applied for by Mr. Paulsen is approximately one-third of one percent of the trapline.  A portion of the trapline had already been damaged by forest fire, which, in the LSCFN view, added to the significance of the loss of a further 65 hectares.  The severity of the impact of land grants, whether taken individually or cumulatively, properly constituted an important element of the consultation with LARC and, ultimately, a relevant consideration to be taken into account by the Director in reaching his decision.

[22]                          The LARC meeting to discuss the Paulsen application was scheduled for August 13, 2004.  The First Nation received notice and was invited to provide comments prior to the meeting and to participate in the discussion as a member of LARC.  

[23]                          On July 27, 2004, the First Nation submitted a letter of opposition to the Paulsen application.  The letter identified concerns about impacts on Trapline #143, nearby timber harvesting, the loss of animals to hunt in the area, and adjacent cultural and heritage sites.  No reference was made in the First Nation’s letter to Johnny Sam’s concerns about cultural transfer or to the FWMP.  The letter simply states that “[t]he combination of agricultural and timber harvesting impacts on this already-damaged trapline would certainly be a significant deterrent to the ability of the trapper to continue his traditional pursuits” (A.R., vol. II, at p. 22).

[24]                          Nobody from the LSCFN attended the August 13, 2004 meeting.  Susan Davis, its usual representative, was unable to attend for undisclosed reasons.  The meeting went on as planned.

[25]                          The members of LARC who were present (mainly territorial government officials) considered the Paulsen application and recommended approval in principle.  The minutes of the August 13 meeting show that LARC did consider the concerns voiced by the LSCFN in its July 27, 2004 letter.  Those present at the meeting concluded that the impact of the loss of 65 hectares on Trapline #143 would be minimal as the Paulsen application covered a very small portion of the trapline’s overall area and noted that Johnny Sam could apply under Chapter 16 of the LSCFN Treaty for compensation for any diminution in its value.  LARC recommended an archaeological survey to address potential heritage and cultural sites.  (An archaeological assessment was later conducted and reported on September 2, 2004, that it was unable to identify any sites that would be impacted adversely by the grant.)

[26]                          On September 8, 2004, the First Nation representatives met with Agriculture Branch staff who were conducting an agricultural policy review.  The meeting did not focus specifically on the Paulsen application.  Nevertheless, the First Nation made the general point that its concerns were not being taken seriously.  Agriculture Branch officials replied that they consult on such matters through LARC but they were not required by the Final Agreement to consult on such issues.  Meetings and discussions with the First Nation had been conducted, they said, only as a courtesy.

[27]                          On October 18, 2004, the Director approved the Paulsen application and sent a letter to Larry Paulsen, informing him of that fact.  He did not notify the LSCFN of his decision, as he ought to have done.

[28]                          Apparently unaware that the Paulsen application had been approved, the First Nation continued to express its opposition by way of a series of letters from Chief Eddie Skookum to the Yukon government.  Johnny Sam also wrote letters expressing his opposition.  It seems the government officials failed to disclose that the Director’s decision to approve the grant had already been made.  This had the unfortunate effect of undermining appropriate communication between the parties.

[29]                          In the summer of 2005, Susan Davis, representing the First Nation, made enquiries of the Agriculture Branch and obtained confirmation that the Paulsen application had already been approved.  She was sent a copy of the October 18, 2004 approval letter.

[30]                          In response, by letter dated August 24, 2005, the First Nation launched an administrative appeal of the Paulsen grant to the Assistant Deputy Minister.

[31]                          On December 12, 2005, the request to review the decision was rejected on the basis that the First Nation had no right of appeal because it was a member of LARC, and not just an intervener under the LARC Terms of Reference.  The Terms of Reference specify that only applicants or interveners may initiate an appeal.  The Terms of Reference had no legislative or treaty basis whatsoever, but the Yukon government nevertheless treated them as binding both on the government and on the First Nation.

[32]                          Frustrated by the territorial government’s approach, which it believed broadly misconceived and undermined relations between the territorial government and the LSCFN, the First Nation initiated the present application for judicial review.

III.    Analysis

[33]                          The decision to entrench in s. 35  of the Constitution Act, 1982  the recognition and affirmation of existing Aboriginal and treaty rights, signalled a commitment by Canada’s political leaders to protect and preserve constitutional space for Aboriginal peoples to be Aboriginal.  At the same time, Aboriginal people do not, by reason of their Aboriginal heritage, cease to be citizens who fully participate with other Canadians in their collective governance.  This duality is particularly striking in the Yukon, where about 25 percent of the population identify themselves as Aboriginal.  The territorial government, elected in part by Aboriginal people, represents Aboriginal people as much as it does non-Aboriginal people, even though Aboriginal culture and tradition are and will remain distinctive.

[34]                          Underlying the present appeal is not only the need to respect the rights and reasonable expectations of Johnny Sam and other members of his community, but the rights and expectations of other Yukon residents, including both Aboriginal people and Larry Paulsen, to good government.  The Yukon treaties are intended, in part, to replace expensive and time-consuming ad hoc procedures with mutually agreed upon legal mechanisms that are efficient but fair.

[35]                          I believe the existence of Larry Paulsen’s stake in this situation is of considerable importance.  Unlike Mikisew Cree, which involved a dispute between the Federal government and the Mikisew Cree First Nation over the route of a winter road, Mr. Paulsen made his application as an ordinary citizen who was entitled to a government decision reached with procedural fairness within a reasonable time.  On the other hand, the entitlement of the trapper Johnny Sam was a derivative benefit based on the collective interest of the First Nation of which he was a member.  I agree with the Court of Appeal that he was not, as an individual, a necessary party to the consultation. 

A.     The LSCFN Treaty Reflects a Balance of Interests

[36]                          Under the treaty, the LSCFN surrendered all undefined Aboriginal rights, title, and interests in its traditional territory in return for which it received:

•      title to 2,589 square kilometres of “settlement land” [Chapters 9 and 15];

•      financial compensation of $34,179,210 [Chapter 19];

•      potential for royalty sharing [Chapter 23];

•      economic development measures [Chapter 22];

•      rights of access to Crown land (except that disposed of by agreement for sale, surface licence, or lease) [Chapter 6];

•      special management areas [Chapter 10];

•      protection of access to settlement land [s. 6.2.7];

•      rights to harvest fish and wildlife [Chapter 16];

•      rights to harvest forest resources [Chapter 17];

•      rights to representation and involvement in land use planning [Chapter 11] and resource management [Chapters 14, 16-18].

(C.A. reasons, para. 41)

These are substantial benefits, especially when compared to the sparse offerings of earlier treaties such as those provided to the Mikisew Cree in Treaty No. 8.  With the substantive benefits, however, came not only rights but duties and obligations.  It is obvious that the long-term interdependent relationship thus created will require work and good will on both sides for its success.

[37]                          The reason for the government’s tight-lipped reaction to the unfolding Paulsen situation, as explained to us at the hearing by its counsel, was the fear that if the duty of consultation applies, “these parties will be in court like parties are in areas where there are no treaties, and there will be litigation over whether the consultation applies; what is the appropriate level of the consultation?  Is accommodation required?  It is all under court supervision” (transcript, at p. 18).  The history of this appeal shows, however, that taking a hard line does not necessarily speed matters up or make litigation go away.

[38]                          The denial by the Yukon territorial government of any duty to consult except as specifically listed in the LSCFN Treaty complicated the Paulsen situation because at the time the Director dealt with the application the treaty implementation provision contemplated in Chapter 12 had itself not yet been implemented.  I do not believe the Yukon Treaty was intended to be a “complete code”.  Be that as it may, the duty to consult is derived from the honour of the Crown which applies independently of the expressed or implied intention of the parties (see below, at para. 61).  In any event, the procedural gap created by the failure to implement Chapter 12 had to be addressed, and the First Nation, in my view, was quite correct in calling in aid the duty of consultation in putting together an appropriate procedural framework.

[39]                          Nevertheless, consultation was made available and did take place through the LARC process under the 1991 Agriculture Policy, and the ultimate question is whether what happened in this case (even though it was mischaracterized by the territorial government as a courtesy rather than as the fulfilment of a legal obligation) was sufficient.  In Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, the Court held that participation in a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided. 

B.      The Relationship Between Section 35 and the Duty to Consult

[40]                          The First Nation relies in particular on the following statements in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 20:

It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests.  This, in turn, implies a duty to consult and, if appropriate, accommodate.

Further, at para. 32:

The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution.  Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982 . [Emphasis added.]

[41]                          Reference should also be made to R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 6, where the Court said:

The decision to enhance aboriginal participation in the commercial fishery may also be seen as a response to the directive of this Court in Sparrow, at p. 1119, that the government consult with aboriginal groups in the implementation of fishery regulation in order to honour its fiduciary duty to aboriginal communities.  Subsequent decisions have affirmed the duty to consult and accommodate aboriginal communities with respect to resource development and conservation; it is a constitutional duty, the fulfilment of which is consistent with the honour of the Crown: see e.g. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.  [Emphasis added.]

[42]                          The obligation of honourable dealing was recognized from the outset by the Crown itself in the Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1), in which the British Crown pledged its honour to the protection of Aboriginal peoples from exploitation by non-Aboriginal peoples.  The honour of the Crown has since become an important anchor in this area of the law:  see R. v. Taylor(1981), 62 C.C.C. (2d) 227 (Ont. C.A.), leave to appeal refused, [1981] 2 S.C.R. xi; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Nikal, [1996] 1 S.C.R. 1013; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; as well as Badger, Marshall and Mikisew Cree, previously referred to.  The honour of the Crown has thus been confirmed in its status as a constitutional principle.

[43]                          However, this is not to say that every policy and procedure of the law adopted to uphold the honour of the Crown is itself to be treated as if inscribed in s. 35.  As the Chief Justice noted in Haida Nation, “[t]he honour of the Crown gives rise to different duties in different circumstances” (para. 18).  This appeal considers its application in the modern treaty context; its application where no treaty has yet been signed was recently the subject of this Court’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650.

[44]                          The respondents’ submission, if I may put it broadly, is that because the duty to consult is “constitutional”, therefore there must be a reciprocal constitutional right of the First Nation to be consulted, and constitutional rights of Aboriginal peoples are not subject to abrogation or derogation except as can be justified under the high test set out in Sparrow.  On this view, more or less every case dealing with consultation in the interpretation and implementation of treaties becomes a constitutional case.  The trouble with this argument is that the content of the duty to consult varies with the circumstances.  In relation to what Haida Nation called a “spectrum” of consultation (para. 43), it cannot be said that consultation at the lower end of the spectrum instead of at the higher end must be justified under the Sparrow doctrine.  The minimal content of the consultation imposed in Mikisew Cree (para. 64), for example, did not have to be “justified” as a limitation on what would otherwise be a right to “deep” consultation.  The circumstances in Mikisew Cree never gave rise to anything more than minimal consultation.  The concept of the duty to consult is a valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose. 

[45]                          The LSCFN invited us to draw a bright line between the duty to consult (which it labelled constitutional) and administrative law principles such as procedural fairness (which it labelled unsuitable).  At the hearing, counsel for the LSCFN was dismissive of resort in this context to administrative law principles:

[A]dministrative law principles are not designed to address the very unique circumstance of the Crown-Aboriginal history, the Crown-Aboriginal relationship.  Administrative law principles, for all their tremendous value, are not tools toward reconciliation of Aboriginal people and other Canadians.  They are not instruments to reflect the honour of the Crown principles. [transcript, at p. 62]

However, as Lamer C.J. observed in R. v. Van der Peet, [1996] 2 S.C.R. 507, “aboriginal rights exist within the general legal system of Canada” (para. 49).  Administrative decision makers regularly have to confine their decisions within constitutional limits:  Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; and Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256.  In this case, the constitutional limits include the honour of the Crown and its supporting doctrine of the duty to consult.

[46]                          The link between constitutional doctrine and administrative law remedies was already noted in Haida Nation, at the outset of our Court’s duty to consult jurisprudence:

In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances.  In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law. [Emphasis added; para. 41.]  

The relevant “procedural safeguards” mandated by administrative law include not only natural justice but the broader notion of procedural fairness.  And the content of meaningful consultation “appropriate to the circumstances” will be shaped, and in some cases determined, by the terms of the modern land claims agreement.  Indeed, the parties themselves may decide therein to exclude consultation altogether in defined situations and the decision to do so would be upheld by the courts where this outcome would be consistent with the maintenance of the honour of the Crown.

[47]                          The parties in this case proceeded by way of an ordinary application for judicial review.  Such a procedure was perfectly capable of taking into account the constitutional dimension of the rights asserted by the First Nation.  There is no need to invent a new “constitutional remedy”.  Administrative law is flexible enough to give full weight to the constitutional interests of the First Nation.  Moreover, the impact of an administrative decision on the interest of an Aboriginal community, whether or not that interest is entrenched in a s. 35 right, would be relevant as a matter of procedural fairness, just as the impact of a decision on any other community or individual (including Larry Paulsen) may be relevant. 

C.     Standard of Review

[48]                          In exercising his discretion under the Yukon Lands Act and the Territorial Lands (Yukon) Act, the Director was required to respect legal and constitutional limits.  In establishing those limits no deference is owed to the Director.  The standard of review in that respect, including the adequacy of the consultation, is correctness.  A decision maker who proceeds on the basis of inadequate consultation errs in law.  Within the limits established by the law and the Constitution, however, the Director’s decision should be reviewed on a standard of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.  In other words, if there was adequate consultation, did the Director’s decision to approve the Paulsen grant, having regard to all the relevant considerations, fall within the range of reasonable outcomes?

D.     The Role and Function of the LSCFN Treaty

[49]                          The territorial government and the LSCFN have very different views on this point.  This difference lies at the heart of their opposing arguments on the appeal.

[50]                          The territorial government regards the role of the LSCFN Treaty as having nailed down and forever settled the rights and obligations of the First Nation community as Aboriginal people.  The treaty recognized and affirmed the Aboriginal rights surrendered in the land claim.  From 1997 onwards, the rights of the Aboriginal communities of the LSCFN, in the government’s view, were limited to the treaty.  To put the government’s position simplistically, what the First Nations negotiated as terms of the treaty is what they get.  Period.

[51]                          The LSCFN, on the other hand, considers as applicable to the Yukon what was said by the Court in Mikisew Cree, at para. 54:

Treaty making is an important stage in the long process of reconciliation, but it is only a stage.  What occurred at Fort Chipewyan in 1899 was not the complete discharge of the duty arising from the honour of the Crown, but a rededication of it.

And so it is, according to the First Nation, with the treaty-making process in the Yukon that led in 1997 to the ratification of the LSCFN Treaty. 

[52]                          I agree with the territorial government that the LSCFN Treaty is a major advance over what happened in Fort Chipewyan in 1899, both in the modern treaty’s scope and comprehensiveness, and in the fairness of the procedure that led up to it.  The eight pages of generalities in Treaty No. 8 in 1899 is not the equivalent of the 435 pages of the LSCFN Treaty almost a century later.  The LSCFN Treaty provides a solid foundation for reconciliation, and the territorial government is quite correct that the LSCFN Treaty should not simply set the stage for further negotiations from ground zero.  Nor is that the First Nation’s position.  It simply relies on the principle noted in Haida Nation that “[t]he honour of the Crown is alwaysat stake in its dealings with Aboriginal peoples” (para. 16 (emphasis added)).  Reconciliation in the Yukon, as elsewhere, is not an accomplished fact.  It is a work in progress.  The “complete code” position advocated by the territorial government is, with respect, misconceived.  As the Court noted in Mikisew Cree: “The duty to consult is grounded in the honour of the Crown . . . .  The honour of the Crown exists as a source of obligation independently of treaties as well, of course” (para. 51).

[53]                           On this point, Haida Nation represented a shift in focus from Sparrow.  Whereas the Court in Sparrow had been concerned about sorting out the consequences of infringement, Haida Nationattempted to head off such confrontations by imposing on the parties a duty to consult and (if appropriate) accommodate in circumstances where development might have a significant impact on Aboriginal rights when and if established.  In Mikisew Cree, the duty to consult was applied to the management of an 1899 treaty process to “take up” (as in the present case) ceded Crown lands for “other purposes”.  The treaty itself was silent on the process.  The Court held that on the facts of that case the content of the duty to consult was at “the lower end of the spectrum” (para. 64), but that nevertheless the Crown was wrong to act unilaterally.

[54]                          The difference between the LSCFN Treaty and Treaty No. 8 is not simply that the former is a “modern comprehensive treaty” and the latter is more than a century old.  Today’s modern treaty will become tomorrow’s historic treaty.  The distinction lies in the relative precision and sophistication of the modern document.  Where adequately resourced and professionally represented parties have sought to order their own affairs, and have given shape to the duty to consult by incorporating consultation procedures into a treaty, their efforts should be encouraged and, subject to such constitutional limitations as the honour of the Crown, the Court should strive to respect their handiwork: Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557.

[55]                          However, the territorial government presses this position too far when it asserts that unless consultation is specifically required by the Treaty it is excluded by negative inference.  Consultation in some meaningful form is the necessary foundation of a successful relationship with Aboriginal people.  As the trial judge observed, consultation works “to avoid the indifference and lack of respect that can be destructive of the process of reconciliation that the Final Agreement is meant to address” (para. 82).

[56]                          The territorial government would have been wrong to act unilaterally.  The LSCFN had existing treaty rights in relation to the land Paulsen applied for, as set out in s. 16.4.2 of the LSCFN Treaty:

Yukon Indian People shall have the right to harvest for Subsistence within their Traditional Territory . . . all species of Fish and Wildlife for themselves and their families at all seasons of the year and in any numbers on Settlement Land and on Crown Land to which they have a right of access pursuant to 6.2.0, subject only to limitations prescribed pursuant to Settlement Agreements.

The Crown land was subject to being taken up for other purposes (as in Mikisew Cree), including agriculture, but in the meantime the First Nation had a continuing treaty interest in Crown lands to which their members continued to have a treaty right of access (including but not limited to the Paulsen plot).  It was no less a treaty interest because it was defeasible.

[57]                          The decision maker was required to take into account the impact of allowing the Paulsen application on the concerns and interests of members of the First Nation.  He could not take these into account unless the First Nation was consulted as to the nature and extent of its concerns.  Added to the ordinary administrative law duties, of course, was the added legal burden on the territorial government to uphold the honour of the Crown in its dealings with the First Nation.  Nevertheless, given the existence of the treaty surrender and the legislation in place to implement it, and the decision of the parties not to incorporate a more general consultation process in the LSCFN Treaty itself, the content of the duty of consultation (as found by the Court of Appeal) was at the lower end of the spectrum.  It was not burdensome.  But nor was it a mere courtesy.

E.      The Source of the Duty to Consult Is External to the LSCFN Treaty

[58]                          The LSCFN Treaty dated July 21, 1997, is a comprehensive lawyerly document.  The territorial government argues that the document refers to the duty to consult in over 60 different places but points out that none of them is applicable here (although the implementation of Chapter 12, which was left to subsequent legislative action, did not foreclose the possibility of such a requirement).

[59]                          There was considerable discussion at the bar about whether the duty to consult, if it applies at all, should be considered an implied term of the LSCFN Treaty or a duty externally imposed as a matter of law.

[60]                          The territorial government takes the view that terms cannot be implied where the intention of the parties is plainly inconsistent with such an outcome.  In this case, it says, the implied term is negated by the parties’ treatment of consultation throughout the treaty and its significant absence in the case of land grants.  The necessary “negative inference”, argues the territorial government, is that failure to include it was intentional. 

[61]                          I think this argument is unpersuasive.  The duty to consult is treated in the jurisprudence as a means (in appropriate circumstances) of upholding the honour of the Crown.  Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable dealing with Aboriginal people.  As held in Haida Nation and affirmed in Mikisew Cree, it is a doctrine that applies independently of the expressed or implied intention of the parties.

[62]                          The argument that the LSCFN Treaty is a “complete code” is untenable. For one thing, as the territorial government acknowledges, nothing in the text of the LSCFN Treaty authorizes the making of land grants on Crown lands to which the First Nation continues to have treaty access for subsistence hunting and fishing.  The territorial government points out that authority to alienate Crown land exists in the general law.  This is true, but the general law exists outside the treaty.  The territorial government cannot select from the general law only those elements that suit its purpose.  The treaty sets out rights and obligations of the parties, but the treaty is part of a special relationship:  “In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably” (Haida Nation, at para. 17 (emphasis added)).  As the text of s. 35(3) makes clear, a modern comprehensive land claims agreement is as much a treaty in the eyes of the Constitution as are the earlier pre- and post-Confederation treaties.

[63]                          At the time the Paulsen application was pending, the implementation of the LSCFN Treaty was in transition.  It contemplates in Chapter 12 the enactment of a “development assessment process” to implement the treaty provisions.  This was ultimately carried into effect in the Yukon Environmental and Socio-economic Assessment Act, S.C. 2003, c. 7  (“YESAA ”).  The territorial government acknowledges that the YESAA  would have applied to the Paulsen application.  Part 2 of the Act (regarding the assessment process) did not come into force until after the Paulsen application was approved (s. 134 ).  The treaty required the government to introduce the law within two years of the date of the settlement legislation (s. 12.3.4 ).  This was not done. The subsequent legislative delay did not empower the territorial government to proceed without consultation.

[64]                          The purpose of the YESAA  is broadly stated to “[give] effect to the provisions of Umbrella Final Agreement respecting assessment of environmental and socio-economic effects” by way of a “comprehensive, neutrally conducted assessment process” (s. 5 ) where “an authorization or the grant of an interest in land” would be required (s. 47(2) (c)).  The neutral assessor is the Yukon Environmental and Socio-economic Assessment Board, to which (excluding the chair) the Council for Yukon Indians would nominate half the members and the territorial government the other half.  The Minister, after consultation, would appoint the chair. 

[65]                          The territorial government contends that this new arrangement is intended to satisfy the requirement of consultation on land grants in a way that is fair both to First Nations and to the other people of the Yukon.  Assuming (without deciding) this to be so, the fact remains that no such arrangement was in place at the relevant time.

[66]                          In the absence of the agreed arrangement, consultation was necessary in this case to uphold the honour of the Crown.  It was therefore imposed as a matter of law.

F.   The LSCFN Treaty Does Not Exclude the Duty to Consult and, if Appropriate, Accommodate

[67]                          When a modern treaty has been concluded, the first step is to look at its provisions and try to determine the parties’ respective obligations, and whether there is some form of consultation provided for in the treaty itself.  If a process of consultation has been established in the treaty, the scope of the duty to consult will be shaped by its provisions.

[68]                          The territorial government argues that a mutual objective of the parties to the LSCFN Treaty was to achieve certainty, as is set out in the preamble:

. . . the parties to this Agreement wish to achieve certainty with respect to the ownership and use of lands and other resources of the Little Salmon/Carmacks First Nation Traditional Territory; 

 

the parties wish to achieve certainty with respect to their relationships to each other . . . .

Moreover the treaty contains an “entire agreement” clause.  Section 2.2.15 provides that

Settlement Agreements shall be the entire agreement between the parties thereto and there shall be no representation, warranty, collateral agreement or condition affecting those Agreements except as expressed in them.

[69]                          However, as stated, the duty to consult is not a “collateral agreement or condition”.  The LSCFN Treaty is the “entire agreement”, but it does not exist in isolation.  The duty to consult is imposed as a matter of law, irrespective of the parties’ “agreement”.  It does not “affect” the agreement itself.  It is simply part of the essential legal framework within which the treaty is to be interpreted and performed.

[70]                          The First Nation points out that there is an express exception to the “entire agreement” clause in the case of “existing or future constitutional rights”, at s. 2.2.4:

Subject to 2.5.0, 5.9.0, 5.10.1 and 25.2.0, Settlement Agreements shall not affect the ability of aboriginal people of the Yukon to exercise, or benefit from, any existing or future constitutional rights for aboriginal people that may be applicable to them.

Section 2.2.4 applies, the LSCFN argues, because the duty of consultation is a new constitutional duty and should therefore be considered a “future” constitutional right within the scope of the section.

[71]                          As discussed, the applicable “existing or future constitutional right” is the right of the Aboriginal parties to have the treaty performed in a way that upholds the honour of the Crown.  That principle is readily conceded by the territorial government.  However, the honour of the Crown may not always require consultation.  The parties may, in their treaty, negotiate a different mechanism which, nevertheless, in the result, upholds the honour of the Crown.  In this case, the duty applies, the content of which will now be discussed.

G.     The Content of the Duty to Consult

[72]                          The adequacy of the consultation was the subject of the First Nation’s cross-appeal.  The adequacy of what passed (or failed to pass) between the parties must be assessed in light of the role and function to be served by consultation on the facts of the case and whether that purpose was, on the facts, satisfied.

[73]                          The Yukon Lands Act and the Territorial Lands (Yukon) Act created a discretionary authority to make grants but do not specify the basis on which the discretion is to be exercised.  It was clear that the Paulsen application might potentially have an adverse impact on the LSCFN Treaty right to have access to the 65 hectares for subsistence “harvesting” of fish and wildlife, and that such impact would include the First Nation’s beneficial use of the surrounding Crown lands to which its members have a continuing treaty right of access.  There was at least the possibility that the impact would be significant in economic and cultural terms.  The Director was then required, as a matter of both compliance with the legal duty to consult based on the honour of the Crown and procedural fairness to be informed about the nature and severity of such impacts before he made a decision to determine (amongst other things) whether accommodation was necessary or appropriate.  The purpose of consultation was not to reopen the LSCFN Treaty or to renegotiate the availability of the lands for an agricultural grant.  Such availability was already established in the Treaty.  Consultation was required to help manage the important ongoing relationship between the government and the Aboriginal community in a way that upheld the honour of the Crown.

[74]                          This “lower end of the spectrum” approach is consistent with the LSCFN Treaty itself which sets out the elements the parties themselves regarded as appropriate regarding consultation (where consultation is required) as follows:

“Consult” or “Consultation” means to provide:

(a)          to the party to be consulted, notice of a matter to be decided in sufficient form and detail to allow that party to prepare its views on the matter;

(b)         a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and

(c)          full and fair consideration by the party obliged to consult of any views presented.

(LSCFN Treaty, Chapter 1)

At the hearing of this appeal, counsel for the First Nation contended that the territorial government has “to work with the Aboriginal people to understand what the effect will be, and then they have to try and minimize it” (transcript, at p. 48 (emphasis added)).  It is true that these treaties were negotiated prior to Haida Nation and Mikisew Cree, but it must have been obvious to the negotiators that there is a substantial difference between imposing on a decision maker a duty to provide “full and fair consideration” of the First Nation’s “views” and (on the other hand) an obligation to try “to understand what the effect will be, and then . . . to try and minimize it”.  It is the former formulation which the parties considered sufficient and appropriate.  Even in the absence of treaty language, the application of Haida Nation and Mikisew Creewould have produced a similar result.

[75]                          In my view, the negotiated definition is a reasonable statement of the content of consultation “at the lower end of the spectrum”.  The treaty does not apply directly to the land grant approval process, which is not a treaty process, but it is a useful indication of what the parties themselves considered fair, and is consistent with the jurisprudence from Haida Nation to Mikisew Cree.

H.     There Was Adequate Consultation in This Case

[76]                          The First Nation acknowledges that it received appropriate notice and information. Its letter of objection dated July 27, 2004, set out its concerns about the impact on Trapline #143, a cabin belonging to Roger Rondeau (who was said in the letter to have “no concerns with the application”) as well as Johnny Sam’s cabin, and “potential areas of heritage and cultural interest” that had not however “been researched or identified”.  The letter recommended an archaeological survey for this purpose (this was subsequently performed before the Paulsen application was considered and approved by the Director).  Nothing was said in the First Nation’s letter of objection about possible inconsistency with the FWMP, or the need to preserve the 65 hectares for educational purposes.

[77]                          The concerns raised in the First Nation’s letter of objection dated July 27, 2004, were put before the August 13, 2004 meeting of LARC (which the First Nation did not attend) and, for the benefit of those not attending, were essentially reproduced in the minutes of that meeting.  The minutes noted that “[t]here will be some loss of wildlife habitat in the area, but it is not significant.”  The minutes pointed out that Johnny Sam was entitled to compensation under the LSCFN Treaty to the extent the value of Trapline #143 was diminished.  The minutes were available to the LSCFN as a member of LARC.

[78]                          The First Nation complains that its concerns were not taken seriously.  It says, for example, the fact that Johnny Sam is eligible for compensation ignores the cultural and educational importance of Trapline #143.  He wants the undiminished trapline, not compensation.  However, Larry Paulsen also had an important stake in the outcome.  The Director had a discretion to approve or not to approve and he was not obliged to decide this issue in favour of the position of the First Nation.  Nor was he obliged as a matter of law to await the outcome of the FWMP.  The Director had before him the First Nation’s concerns and the response of other members of LARC.  He was entitled to conclude that the impact of the Paulsen grant on First Nation’s interests was not significant.

[79]                          It is important to stress that the First Nation does not deny that it had full notice of the Paulsen application, and an opportunity to state its concerns through the LARC process to the ultimate decision maker in whatever scope and detail it considered appropriate.  Moreover, unlike the situation in Mikisew Cree, the First Nation here was consulted as a First Nation through LARC and not as members of the general public.  While procedural fairness is a flexible concept and takes into account the Aboriginal dimensions of the decision facing the Director, it is nevertheless a doctrine that applies as a matter of administrative law to regulate relations between the government decision makers and all residents of the Yukon, Aboriginal as well as non-Aboriginal, Mr. Paulsen as well as the First Nation.  On the record, and for the reasons already stated, the requirements of procedural fairness were met, as were the requirements of the duty to consult.

[80]                          It is impossible to read the record in this case without concluding that the Paulsen application was simply a flashpoint for the pent-up frustration of the First Nation with the territorial government bureaucracy.  However, the result of disallowing the application would simply be to let the weight of this cumulative problem fall on the head of the hapless Larry Paulsen (who still awaits the outcome of an application filed more than eight years ago).  This would be unfair.

I.       The Duty to Accommodate

[81]                          The First Nation’s argument is that in this case the legal requirement was not only procedural consultation but substantive accommodation.  Haida Nation and Mikisew Cree affirm that the duty to consult may require, in an appropriate case, accommodation.  The test is not, as sometimes seemed to be suggested in argument, a duty to accommodate to the point of undue hardship for the non-Aboriginal population.  Adequate consultation having occurred, the task of the Court is to review the exercise of the Director’s discretion taking into account all of the relevant interests and circumstances, including the First Nation entitlement and the nature and seriousness of the impact on that entitlement of the proposed measure which the First Nation opposes.

[82]                          The 65-hectare plot had already been reconfigured at government insistence to accommodate various concerns.  The First Nation did not suggest any alternative configuration that would be more acceptable (although it suggested at one point that any farming should be organic in nature).  In this case, in its view, accommodation must inevitably lead to rejection of the Paulsen application.  However, with respect, nothing in the treaty itself or in the surrounding circumstances gave rise to a requirement of accommodation.  The government was “taking up” surrendered Crown land for agricultural purposes as contemplated in the treaty.

[83]                          The concerns raised by the First Nation were important, but the question before the Director was in some measure a policy decision related to the 1991 Agricultural Policy as well as to whether, on the facts, the impact on the First Nation interests were as serious as claimed.  He then had to weigh those concerns against the interest of Larry Paulsen in light of the government’s treaty and other legal obligations to Aboriginal people.  It is likely that many, if not most, applications for grants of remote land suitable for raising livestock will raise issues of wildlife habitat, and many grants that interfere with traplines and traditional economic activities will also have a cultural and educational dimension.  The First Nation points out that the Paulsen proposed building would trigger a “no-shooting zone” that would affect Johnny Sam’s use of his cabin (as well as his trapline).  However, where development occurs, shooting is necessarily restricted, and the LSCFN Treaty is not an anti-development document.

[84]                          Somebody has to bring consultation to an end and to weigh up the respective interests, having in mind the Yukon public policy favouring agricultural development where the rigorous climate of the Yukon permits.  The Director is the person with the delegated authority to make the decision whether to approve a grant of land already surrendered by the First Nation.  The purpose of the consultation was to ensure that the Director’s decision was properly informed.

[85]                          The Director did not err in law in concluding that the consultation in this case with the First Nation was adequate.

[86]                          The advice the Director received from his officials after consultation is that the impact would not be significant.  There is no evidence that he failed to give the concerns of the First Nation “full and fair consideration”.  The material filed by the parties on the judicial review application does not demonstrate any palpable error of fact in his conclusion.

[87]                          It seems the Director was simply not content to put Mr. Paulsen’s interest on the back burner while the government and the First Nation attempted to work out some transitional rough spots in their relationship.  He was entitled to proceed as he did.

[88]                          Whether or not a court would have reached a different conclusion on the facts is not relevant.  The decision to approve or not to approve the grant was given by the Legislature to the Minister who, in the usual way, delegated the authority to the Director.  His disposition was not unreasonable. 

IV.    Conclusion

[89]                          I would dismiss the appeal and cross-appeal, with costs.

                    English version of the reasons of LeBel and Deschamps JJ. delivered by

[90]                          DESCHAMPS J. — The Court has on numerous occasions invited governments and Aboriginal peoples to negotiate the precise definitions of Aboriginal rights and the means of exercising them.  To protect the integrity of the negotiation process, the Court developed, on the basis of what was originally just one step in the test for determining whether infringements of Aboriginal rights are justifiable, a duty to consult that must be discharged before taking any action that might infringe as-yet-undefined rights.  It later expanded the minimum obligational content of a treaty that is silent regarding how the Crown might exercise those of its rights under the treaty that affect rights granted to the Aboriginal party in the same treaty.

[91]                          In Yukon, the parties sat down to negotiate.  An umbrella agreement and 11 specific agreements were reached between certain First Nations, the Yukon government and the Government of Canada.  Through these agreements, the First Nations concerned have taken control of their destiny.  The agreements, which deal in particular with land and resources, are of course not exhaustive, but they are binding on the parties with respect to the matters they cover.  The Crown’s exercise of its rights under the treaty is subject to provisions on consultation.  To add a further duty to consult to these provisions would be to defeat the very purpose of negotiating a treaty.  Such an approach would be a step backward that would undermine both the parties’ mutual undertakings and the objective of reconciliation through negotiation.  This would jeopardize the negotiation processes currently under way across the country.  Although I agree with Binnie J. that the appeal and cross-appeal should be dismissed, my reasons for doing so are very different.

[92]                          Mr. Paulsen’s application constituted a project to which the assessment process provided for in Chapter 12 of the Little Salmon/Carmacks First Nation Final Agreement (“Final Agreement”) applied.  Although that process had not yet been implemented, Chapter 12, including the transitional legal rules it contains, had been.  Under those rules, any existing development assessment process would remain applicable.  The requirements of the processes in question included not only consultation with the First Nation concerned, but also its participation in the assessment of the project.  Any such participation would involve a more extensive consultation than would be required by the common law duty in that regard.  Therefore, nothing in this case can justify resorting to a duty other than the one provided for in the Final Agreement.

[93]                          The Crown’s constitutional duty to specifically consult Aboriginal peoples was initially recognized as a factor going to the determination of whether an Aboriginal right was infringed (Guerin v. The Queen, [1984] 2 S.C.R. 335), and was later established as one component of the test for determining whether infringements of Aboriginal rights by the Crown were justified:  R. v. Sparrow, [1990] 1 S.C.R. 1075.  The Court was subsequently asked in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, whether such a duty to consult could apply even before an Aboriginal or treaty right is proven to exist.  The Court’s affirmative answer was based on a desire to encourage the Crown and Aboriginal peoples to negotiate treaties rather than resorting to litigation.

[94]                          I disagree with Binnie J.’s view that the common law constitutional duty to consult applies in every case, regardless of the terms of the treaty in question.  And I also disagree with the appellants’ assertion that an external duty to consult can never apply to parties to modern comprehensive land claims agreements and that the Final Agreement constitutes a complete code.  In my view, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, stands for the proposition that the common law constitutional duty to consult Aboriginal peoples applies to the parties to a treaty only if they have said nothing about consultation in respect of the right the Crown seeks to exercise under the treaty.  Moreover, it is essential to understand that in this context, the signature of the treaty entails a change in the nature of the consultation.  When consultation is provided for in a treaty, it ceases to be a measure to prevent the infringement of one or more rights, as in Haida Nation, and becomes a duty that applies to the Crown’s exercise of rights granted to it in the treaty by the Aboriginal party.  This means that where, as in Mikisew, the common law duty to consult applies to treaty rights despite the existence of the treaty — because the parties to the treaty included no provisions in this regard — it represents the minimum obligational content.

[95]                          Binnie J. has set out the facts.  I will return to them only to make some clarifications I consider necessary.  For now, I will simply mention that the appellants’ position is based on the fact that this case concerns a modern treaty.  The appellants argue that in a case involving a modern treaty, the duty to consult is strictly limited to the terms expressly agreed on by the parties and there is no such duty if none has been provided for.  In their view, a duty to consult can be found to exist only if the parties have expressly provided for one.  The appellants seek not a reversal of the Court of Appeal’s ultimate conclusion, but a declaration on the scope of the duty to consult.  The respondents, who are also cross-appellants, are asking us to overturn the Court of Appeal’s decision and affirm the judgment of the Supreme Court of the Yukon Territory quashing the decision to approve the grant of land to Mr. Paulsen.  The respondents submit that the source of the Crown’s duty to consult them lies outside the treaty, that is, that the duty derives exclusively from constitutional values and common law principles.  According to the respondents, the treaty does not purport to define their constitutional relationship with the Crown, nor does the constitutional duty apply in order to fill a gap in the treaty (R.F., at para. 11).  They submit that the common law duty to consult applies because Mr. Paulsen’s application would affect their interests.  They invoke three interests:  a right of access for subsistence harvesting purposes to the land in question in the application, their interest under the treaty in fish and wildlife management, and the reduced value of the trapline of the respondent Johnny Sam.

[96]                          In my view, the answers to the questions before the Court can be found first in the general principles of Aboriginal law and then in the terms of the treaty.  To explain my conclusion, I must review the origin, the nature, the function and the specific purpose of the duty being relied on, after which I will discuss what can be learned from a careful review of the treaty.

I.       General Principles

[97]                          In Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 48‑82, this Court identified four principles that underlie the whole of our constitution and of its evolution:  (1) constitutionalism and the rule of law; (2) democracy; (3) respect for minority rights; and (4) federalism.  These four organizing principles are interwoven in three basic compacts:  (1) one between the Crown and individuals with respect to the individual’s fundamental rights and freedoms; (2) one between the non-Aboriginal population and Aboriginal peoples with respect to Aboriginal rights and treaties with Aboriginal peoples; and (3) a “federal compact” between the provinces.  The compact that is of particular interest in the instant case is the second one, which, as we will see, actually incorporates a fifth principle underlying our Constitution:  the honour of the Crown.

[98]                          The Aboriginal and treaty rights of the Aboriginal peoples of Canada are recognized and affirmed in s. 35(1)  of the Constitution Act, 1982 .  The framers of the Constitution also considered it advisable to specify in s. 25 of that same Act that the guarantee of fundamental rights and freedoms to persons and citizens must not be considered to be inherently incompatible with the recognition of special rights for Aboriginal peoples.  In other words, the first and second compacts should be interpreted not in a way that brings them into conflict with one another, but rather as being complementary.  Finally, s. 35(4) provides that, notwithstanding any other provision of the Constitution Act, 1982 , the Aboriginal and treaty rights recognized and affirmed in s. 35(1)  “are guaranteed equally to male and female persons”.  The compact relating to the special rights of Aboriginal peoples is therefore in harmony with the other two basic compacts and with the four organizing principles of our constitutional system.

[99]                          In the case at bar, all the parties are, in one way or another, bound by the Final Agreement, which settles the comprehensive land claim of the Little Salmon/Carmacks First Nation.  Section 35(3)  of the Constitution Act, 1982  provides that “in subsection (1)” the expression “treaty rights” includes “rights that now exist by way of land claims agreements or may be so acquired”.  The appellants’ position is based on one such agreement.

[100]                      The respondents, intending to rely on Mikisew, invoke only the Crown’s common law duty to consult Aboriginal peoples, and not the agreement, which, as can be seen from the transcript of the hearing (at p. 46), they do not allege has been breached; they submit that the purpose of the agreement in the instant case was not to define the parties’ constitutional duties.

[101]                      Prior consultation was used originally as a criterion to be applied in determining whether an Aboriginal right had been infringed (Guerin, at p. 389), and then as one factor in favour of finding that a limit on a constitutional right — whether an Aboriginal or a treaty right — of the Aboriginal peoples in question was justified (Sparrow, at p. 1119).  The Crown failed to consult Aboriginal peoples at its own risk, so to speak, if it took measures that, should Aboriginal title or an Aboriginal or treaty right be proven to exist, infringed that right.

[102]                      Then, in Haida Nation and Taku River, it was asked whether such a duty to consult exists even though the existence of an Aboriginal right has not been fully and definitively established in a court proceeding or the framework for exercising such a right has not been established in a treaty.  Had the answer to this question been no, this would have amounted, in particular, to denying that under s. 35  of the Constitution Act, 1982 , the rights of Aboriginal peoples are protected by the Constitution even if no court has yet declared that those rights exist and no undertaking has yet been given to exercise them only in accordance with a treaty.  A negative answer would also have had the effect of increasing the recourse to litigation rather than to negotiation, and the interlocutory injunction would have been left as the only remedy against threats to Aboriginal rights where the framework for exercising those rights has yet to be formally defined.  It was just such a scenario that the Court strove to avoid in Haida Nation and Taku River, as the Chief Justice made clear in her reasons in Haida Nation (paras. 14 and 26).

[103]                      Thus, the constitutional duty to consult Aboriginal peoples involves three objectives:  in the short term, to provide “interim” or “interlocutory” protection for the constitutional rights of those peoples; in the medium term, to favour negotiation of the framework for exercising such rights over having that framework defined by the courts; and, in the longer term, to assist in reconciling the interests of Aboriginal peoples with those of other stakeholders.  As one author recently noted, the raison d’être of the constitutional duty to consult Aboriginal peoples is to some extent, if not primarily, to contribute to attaining the ultimate objective of reconciliation through the negotiation of treaties, and in particular of comprehensive land claims agreements (D. G. Newman, The Duty to Consult:  New Relationships with Aboriginal Peoples (2009), at pp. 18 and 41).  This objective of reconciliation of course presupposes active participation by Aboriginal peoples in the negotiation of treaties, as opposed to a necessarily more passive role and an antagonistic attitude in the context of constitutional litigation (Haida Nation, at para. 14; S. Grammond, Aménager la coexistence:  Les peuples autochtones et le droit canadien (2003), at p. 247).  The duty to consult can be enforced in different ways.  However, the courts must ensure that this duty is not distorted and invoked in a way that compromises rather than fostering negotiation.  That, in my view, would be the outcome if we were to accept the respondents’ argument that the treaties, and the Final Agreement in particular, do not purport to define the parties’ constitutional duties, including what the Crown party must do to consult the Aboriginal party before exercising its rights under the treaty.

[104]                      The short-, medium- and long-term objectives of the constitutional duty to consult Aboriginal peoples are all rooted in the same fundamental principle with respect to the rights of Aboriginal peoples, namely the honour of the Crown, which is always at stake in relations between the Crown and Aboriginal peoples (R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 24).  Obviously, when these relations involve the special constitutional rights of Aboriginal peoples, the honour of the Crown becomes a source of constitutional duties and rights, such as the Crown’s duty to consult Aboriginal peoples with respect to their Aboriginal or treaty rights (R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para.  6).

[105]                      This Court has, over time, substituted the principle of the honour of the Crown for a concept — the fiduciary duty — that, in addition to being limited to certain types of relations that did not always concern the constitutional rights of Aboriginal peoples, had paternalistic overtones (St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, [1950] S.C.R. 211, at p. 219; Guerin; SparrowQuebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159, at p. 183; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Haida Nation; Taku River Tlingit First Nation; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 9, per McLachlin C.J.;  Mikisew, at para. 51).  Before being raised to the status of a constitutional principle, the honour of the Crown was originally referred to as the “sanctity” of the “word of the white man” (R. v. White (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), at p. 649, aff’d (1965), 52 D.L.R. (2d) 481 (S.C.C.); see also R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1041, and Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, at pp. 511-12, per Gwynne J. (dissenting)).  The honour of the Crown thus became a key principle for the interpretation of treaties with Aboriginal peoples (R. v. Badger, [1996] 1 S.C.R. 771, at para. 41; R. v. Sundown, [1999] 1 S.C.R. 393, at paras. 24 and 46; R. v. Marshall, [1999] 3 S.C.R. 456, at para. 78, per McLachlin J. (as she then was), dissenting, but not on this issue; Mikisew, at para. 51).

[106]                      Associating the honour of the Crown with the observance of duly negotiated treaties implies that some value is placed on the treaty negotiation process.  But for the treaty to have legal value, its force must be such that neither of the parties can disregard it.  The principle of the honour of the Crown does not exempt the Aboriginal party from honouring its own undertakings.  What is in question here is respect for the ability of Aboriginal peoples to participate actively in defining their special constitutional rights, and for their autonomy of judgment.

[107]                      To allow one party to renege unilaterally on its constitutional undertaking by superimposing further rights and obligations relating to matters already provided for in the treaty could result in a paternalistic legal contempt, compromise the national treaty negotiation process and frustrate the ultimate objective of reconciliation.  This is the danger of what seems to me to be an unfortunate attempt to take the constitutional principle of the honour of the Crown hostage together with the principle of the duty to consult Aboriginal peoples that flows from it.

[108]                      The Crown does indeed act honourably when it negotiates in good faith with an Aboriginal nation to conclude a treaty establishing how that nation is to exercise its special rights in its traditional territory.  Adhering to the principle of the honour of the Crown also requires that in the course of negotiations the Crown consult the Aboriginal party, to an extent that can vary, and in some cases find ways to “accommodate” it, before taking steps or making decisions that could infringe special constitutional rights in respect of which the Crown has already agreed to negotiate a framework for exercising them (Haida NationTaku River).  Since the honour of the Crown is more a normative legal concept than a description of the Crown’s actual conduct, it implies a duty on the part of the Crown to consult Aboriginal peoples not only with respect to the Aboriginal rights to which the negotiations actually relate, but also with respect to any Aboriginal right the potential existence of which the Crown can be found to have constructive knowledge, provided, of course, that what it plans to do might adversely affect such rights (Haida Nation, at para. 35).  As we have seen, this principle also requires that the Crown keep its word and honour its undertakings after a treaty has been signed.

[109]                      In concluding a treaty, the Crown does not act dishonourably in agreeing with an Aboriginal community on an elaborate framework involving various forms of consultation with respect to the exercise of that community’s rights:  consultation in the strict sense, participation in environmental and socio-economic assessments, co-management, etc.  Nor, in such cases — which are the norm since the signing of the James Bay and Northern Québec Agreement in 1975 — does the Crown act dishonourably in concluding a land claim agreement based on Aboriginal rights if it requires the Aboriginal party to agree that no parallel mechanism relating to a matter covered by the treaty will enable that party to renege on its undertakings.  Legal certainty is the primary objective of all parties to a comprehensive land claim agreement.

[110]                      It has sometimes been asserted, incorrectly in my opinion, that in treaty negotiations, the Crown and Aboriginal parties have deeply divergent points of view respecting this objective of legal certainty, which only the Crown is really interested in pursuing.  Excessive weight should not be given to the arguments of the parties to this case, as their positions have clearly become polarized as a result of the adversarial context of this proceeding.

[111]                      In fact, according to studies commissioned by the United Nations, (1) lack of precision with respect to their special rights continues to be the most serious problem faced by Aboriginal peoples, and (2) Aboriginal peoples attach capital importance to the conclusion of treaties with the Crown (M. Saint‑Hilaire, “La proposition d’entente de principe avec les Innus:  vers une nouvelle génération de traités?” (2003), 44 C. de D. 395, at pp. 397‑98).  It is also wrong, in my opinion, to say that Aboriginal peoples’ relational understanding of the treaty is incompatible with the pursuit of the objective of legal certainty.  On this understanding, that of “treaty making”, the primary purpose of these instruments is to establish a relationship that will have to evolve (M. L. Stevenson, “Visions of Certainty:  Challenging Assumptions”, inLaw Commission of Canada, ed., Speaking Truth to Power:  A Treaty Forum (2001), 113, at p. 121; R. A. Williams, Linking Arms Together (1997)).  The concept of an agreement that provides certainty is not synonymous with that of a “final agreement”, or even with that of an “entire agreement”.  Legal certainty cannot be attained if one of the parties to a treaty can unilaterally renege on its undertakings with respect to a matter provided for in the treaty where there is no provision for its doing so in the treaty.  This does not rule out the possibility of there being matters not covered by a treaty with respect to which the Aboriginal party has not surrendered possible Aboriginal rights.  Nor does legal certainty imply that an equitable review mechanism cannot be provided for in a treaty.

[112]                      Thus, it should be obvious that the best way for a court to contribute to ensuring that a treaty fosters, in the words of Binnie J., “a positive long-term relationship between Aboriginal and non-Aboriginal communities” (at para. 10) consists first and foremost in ensuring that the parties cannot unilaterally renege on their undertakings.  And once legal certainty has been pursued as a common objective at the negotiation stage, it cannot become a one-way proposition at the stage of implementation of the treaty.  On the contrary, certainty with respect to one party’s rights implies that the party in question must discharge its obligations and respect the other party’s rights.  Having laboured so hard, in their common interest, to substitute a well-defined legal system for an uncertain normative system, both the Aboriginal party and the Crown party have an interest in seeing their efforts bear fruit.

[113]                      Except where actions are taken that are likely to unilaterally infringe treaty rights of an Aboriginal people, it is counterproductive to assert, as the respondents do, that the common law duty to consult continues to apply in all cases, even where a treaty exists.  However, the appellants’ argument goes much too far.  As I explain more fully below, the fact that a treaty has been signed and that it is the entire agreement on some aspects of the relationship between an Aboriginal people and the non-Aboriginal population does not imply that it is a complete code that covers every aspect of that relationship.  It is in fact because the agreement in issue does provide that the Aboriginal party has a right to various forms of consultation with respect to the rights the Crown wishes to exercise in this case that rights and obligations foreign to the mechanism provided for in the treaty must not be superimposed on it, and not simply, as the appellants submit, because this is a “modern” treaty constituting a land claims agreement.

[114]                      It is true that s. 35(3)  of the Constitution Act, 1982  recognizes the existence of a category of treaties, called “land claims agreements”, which, in constitutional law, create “treaty” rights within the meaning of s. 35(1) .  Thus, although the courts will certainly take the context of the negotiation of each treaty into consideration, they will avoid, for example, developing rules specific to each category of treaty identified in the legal literature or by the government (e.g., “peace and friendship” treaties, “pre-Confederation” treaties, “numbered” treaties and “modern” treaties).

[115]                      In Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, LeBel J. and I rejected the date of signature as the criterion for determining the rules of interpretation applicable to treaties entered into with Aboriginal peoples:  “. . . the issue relates to the context in which an agreement was negotiated and signed, not to the date of its signature” (para. 114).  We arrived at that conclusion because we did not believe that distinct legal meanings flowed from the identification in the legal literature and by the government of various categories of treaties on the basis of the historical periods in which the treaties were signed.  This approach was also taken by McLachlin J., dissenting on a different issue, in Marshall, as she said that “each treaty must be considered in its unique historical and cultural context”, which “suggests” that the practice of “slot[ting] treaties into different categories, each with its own rules of interpretation . . . should be avoided” (para. 80).

[116]                      If, in a given case, a court feels freer to maintain a certain critical distance from the words of a treaty and can as a result interpret them in a manner favourable to the Aboriginal party, this will be because it has been established on the evidence, including historical and oral evidence, that the written version of the exchange of promises probably does not constitute an accurate record of all the rights of the Aboriginal party and all the duties of the Crown that were created in that exchange.  It is true that, where certain time periods are concerned, the context in which the agreements were reached will more readily suggest that the words are not faithful.  But this is a question that relates more to the facts than to the applicable law, which is, in the final analysis, concerned with the common intention of the parties.  From a legal standpoint, a comprehensive land claim agreement is still a treaty, and nothing, not even the fact that the treaty belongs to a given “category”, exempts the court from reading and interpreting the treaty in light of the context in which it was concluded in order to identify the parties’ common intention.  This Court has had occasion to mention that, even where the oldest of treaties are involved, the interpretation “must be realistic and reflect the intention of both parties, not just that of the [First Nation]” (Sioui, at p. 1069).  I would even say that it would be wrong to think that the negotiating power of Aboriginal peoples is directly related to the time period in which the treaty was concluded, as certain Aboriginal nations were very powerful in the early years of colonization, and the European newcomers had no choice but to enter into alliances with them.

[117]                      My finding with regard to the interpretation of treaties is equally applicable to the relationship between treaties and the law external to them or, in other words, to the application to treaties of the rules relating to conflicting legislation:  the mere fact that a treaty belongs to one “category” or another cannot mean that a different set of rules applies to it in this regard.  The appellants’ invitation must therefore be declined:  even when the treaty in issue is a land claims agreement, the Court must first identify the common intention of the parties and then decide whether the common law constitutional duty to consult applies to the Aboriginal party.

[118]                      Thus, the basis for distinguishing this case from Mikisew is not the mere fact that the treaty in issue belongs to the category of modern land claims agreements.  As Binnie J. mentions in the case at bar (at para. 53), the treaty in issue in Mikisew was silent on how the Crown was to exercise its right under the treaty to require or take up tracts “from time to time for settlement, mining, lumbering, trading or other purposes”.  This constituted an omission, as, without guidance, the exercise of such a right by the Crown might have the effect of nullifying the right of the Mikisew under the same treaty “to pursue their usual vocations of hunting, trapping and fishing”.  Therefore, where there is a treaty, the common law duty to consult will apply only if the parties to the treaty have failed to address the issue of consultation.

[119]                      Moreover, where, as in Mikisew, the common law duty to consult must be discharged to remedy a gap in the treaty, the duty undergoes a transformation.  Where there is a treaty, the function of the common law duty to consult is so different from that of the duty to consult in issue in Haida Nation and Taku River that it would be misleading to consider these two duties to be one and the same.  It is true that both of them are constitutional duties based on the principle of the honour of the Crown that applies to relations between the Crown and Aboriginal peoples whose constitutional — Aboriginal or treaty — rights are at stake.  However, it is important to make a clear distinction between, on the one hand, the Crown’s duty to consult before taking actions or making decisions that might infringe Aboriginal rights and, on the other hand, the minimum duty to consult the Aboriginal party that necessarily applies to the Crown with regard to its exercise of rights granted to it by the Aboriginal party in a treaty.  This, in my opinion, is the exact and real meaning of the comment in Mikisew that the “honour of the Crown exists as a source of obligation independently of treaties as well” (para. 51).  This is also the exact meaning of the comment in Haida Nation that the “jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution” (para. 32).

[120]                      Where the Crown unilaterally limits a right granted to an Aboriginal people in a treaty in taking an action that does not amount to an exercise of one of its own rights under that treaty, the infringement is necessarily a serious one, and the Crown’s duty is one of reasonable accommodation.  This principle is very similar to that of minimal impairment, with respect to which a duty to consult was held to exist in Sparrow.

[121]                      The consultation that must take place if the Crown’s exercise of its own rights under a treaty impairs a right of the Aboriginal party will consist in either:  (1) the measures provided for in the treaty in this regard; or (2) if no such measures are provided for in the treaty, the consultation required under the common law framework, which varies with the circumstances, and in particular with the seriousness of any potential effects on the Aboriginal party’s rights under the treaty (Haida Nation, at para. 39; Mikisew).

[122]                      One thing must be made clear at this point, however.  Where a treaty provides for a mechanism for consulting the Aboriginal party when the Crown exercises its rights under the treaty — one example would be the participation of the Aboriginal party in environmental and socio-economic assessments with respect to development projects — what the treaty does is to override the common law duty to consult the Aboriginal people; it does not affect the general administrative law principle of procedural fairness, which may give rise to a duty to consult rights holders individually.  The constitutional duty to consult Aboriginal peoples is rooted in the principle of the honour of the Crown, which concerns the special relationship between the Crown and Aboriginal peoples as peoples (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at paras. 59-60).  It is as a result of this special relationship, originally based on the recognition of Aboriginal institutions that existed before the Crown asserted its sovereignty, that Aboriginal peoples, as peoples, can enter into treaties with the Crown.  The general rules of administrative law do not normally form part of the matters provided for in comprehensive land claims agreements.

[123]                      When all is said and done, the fatal flaw in the appellants’ argument that the duty to consult can never apply in the case of a modern treaty is that they confuse the concept of an agreement that provides certainty with that of an “entire agreement”.  The imperative of legal certainty that is central to the negotiation of a modern treaty and that requires a court to defer to the will of the parties must not blind the courts to omissions by the parties.  That an agreement is complete cannot be presumed; it must be found to be complete.

[124]                      The Court obviously cannot bind itself in future cases by assuming that every modern treaty is free of omissions or other gaps with respect to consultation.  The possibility of so important a matter being omitted from a modern treaty may at first blush seem unlikely, but as can be seen from the instant case, it is very real.  Were it not for the transitional law provisions in Chapter 12, there would probably have been a gap in this case and, on an exceptional basis, in the legal context of the modern treaty, the common law duty to consult could duly have been applied to fill that gap.  But no such gap can be found in this case.  Yet it is in fact just such a “procedural gap” that Binnie J. finds (at para. 38) to be confirmed here, but he reaches this conclusion without considering the treaty’s transitional law provisions, which, in my view, contain the answers to the questions raised in this case.  I disagree with the argument that such a procedural gap exists in this case, and I also disagree with superimposing the common law duty to consult on the treaty.  These, therefore, are the basic differences between us.

[125]                      Yukon also submits that the existence of a duty to consult may be inferred from a treaty only in accordance with its express terms.  Once again, this is an argument that goes too far and is in no way consistent with the general principles of interpretation of treaties with Aboriginal peoples, even when those principles are applied to modern treaties.  As we will see, the treaty itself contains interpretive provisions to the effect that an interpretation should not be limited to the express terms of the treaty, and in particular that its provisions must be read together and that any ambiguities should be resolved in light of the objectives set out at the beginning of each chapter.

[126]                      These general considerations alone would form a sufficient basis for dismissing the appeal.  But the provisions of the Final Agreement also confirm this conclusion, and they must, in any event, be reviewed in order to assess the respondents’ argument.

II.      Treaty in Issue

[127]                      The analysis of the treaty that must be conducted in this case has three steps.  To begin, it will be necessary to review the general framework of the treaty and highlight its key concepts.  The next step will be to identify the substantive treaty rights that are in issue here, namely, on the one hand, the Crown’s right the exercise of which raises the issue of consultation and, on the other hand, the right or rights of the Aboriginal party, which could be limited by the exercise of the Crown’s right.  Finally, and this is the determining factor, it will be necessary to discuss the formal rights and duties that result from the consultation process provided for in the treaty.

A.     General Framework

[128]                      “Comprehensive” Aboriginal land claims agreements form part of the corpus of our constitutional law.  And the effect of the implementing legislation of such agreements is that they are usually binding on third parties.  The agreements are most often the fruit of many years of intense negotiations.  The documents in which they are set out therefore command the utmost respect.

[129]                      This Court was recently asked to interpret the James Bay and Northern Québec Agreementfor the first time, some 35 years after it was signed in 1975.  Since that year, 19 other similar agreements have been concluded across the country.  Subsequently, to take the most striking example, although only one comprehensive claim in British Columbia has resulted in a final settlement and only seven others in that province are currently at relatively advanced stages of negotiation, no fewer than 52 other claims there have been accepted for negotiation by the Treaty Commission.

[130]                      It was after 20 years of negotiations that the Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (“Umbrella Agreement”) was signed on May 29, 1993.  At that time, the Little Salmon/Carmacks First Nation was a member of the Council for Yukon Indians, and it still is today, along with nine other First Nations.  The Umbrella Agreement provided for the conclusion, in accordance with its terms, of specific agreements with the various Yukon First Nations (s. 2.1.1).

[131]                      Although the Umbrella Agreement “does not create or affect any legal rights” (s. 2.1.2), it provides that “Settlement Agreements shall be land claims agreements within the meaning of section 35 of the Constitution Act, 1982 ” (s. 2.2.1 ).  Moreover, according to the Umbrella Agreement, “[a] Yukon First Nation Final Agreement shall include the provisions of the Umbrella Final Agreement and the specific provisions applicable to that Yukon First Nation” (s. 2.1.3 ).  It can be seen from the final agreements in question that the parties have given effect to this undertaking.  Even the numbering of the Umbrella Agreement’s provisions has been reproduced in the 11 final agreements that have been concluded under it so far.  These 11 final agreements represent over half of all the “comprehensive” land claims agreements (that is, agreements resulting from claims that Aboriginal rights exist) signed across the country.  The Final Agreement in issue here was signed near Carmacks on July 21, 1997 and was subsequently ratified and implemented by enacting legislation; this last step was a condition of validity (ss. 2.2.11  and 2.2.12 ).

[132]                      The Umbrella Agreement, as a whole, is founded on a few basic concepts.  It should be noted from the outset that this agreement applies to a larger territory than the land claims settlement concluded under it actually does.  The agreement refers to “Settlement Land”, which is defined as “Category A Settlement Land, Category B Settlement Land or Fee Simple Settlement Land”, and to “Non‑Settlement Land”, which is defined as “all land and water in the Yukon other than Settlement Land” and as including “Mines and Minerals in Category B Settlement Land and Fee Simple Settlement Land, other than Specified Substances” (Chapter 1).  The nature of this distinction will be helpful in our analysis of the provisions relating to legal certainty (Division 2.5.0).  But one point that should be made here is that the framework provided for in the agreement varies considerably depending on which of these two broad categories the land in question belongs to.  It should also be pointed out that, under the agreement, “Crown land” — such as the land in issue here that was transferred to Mr. Paulsen on October 18, 2004 — is land that, as defined, is not settlement land.  Another concept used in the Umbrella Agreement is that of “traditional territory”, which transcends the distinction between settlement land and non‑settlement land (Chapter 1 and Division 2.9.0).  This concept of “traditional territory” is relevant not only to the possibility of overlapping claims of various Yukon First Nations, but also to the extension of claims beyond the limits of Yukon and to the negotiation of transboundary agreements (Division 2.9.0).  As we will see, it is also central to the fish and wildlife co-management system established in Chapter 16 of the Final Agreement.  The land that was in question in the decision of the Director of Agriculture dated October 18, 2004 in respect of Mr. Paulsen’s application is located within the traditional territory of the Little Salmon/Carmacks First Nation, and more specifically in the northern part of that territory, in a portion that overlaps with the traditional territory of the Selkirk First Nation.

[133]                      The appellants’ argument is based entirely on the principle that the agreement provides certainty.  More precisely, it is based on an interpretation according to which that principle is indistinguishable from the principle of the “entire agreement”.  As a result, they have detached a key general provision of the Final Agreement from its context and interpreted it in a way that I do not find convincing.  The “entire agreement” clause (s. 2.2.15), the actual source of which is the Umbrella Agreement and on which the appellants rely, provides that “Settlement Agreements shall be the entire agreement between the parties thereto and [that] there shall be no representation, warranty, collateral agreement or condition affecting those Agreements except as expressed in them.”  This clause is consistent with the “out-of-court settlement” aspect of comprehensive land claims agreements.  But it is not the only one, which means that such clauses must be considered in the broader context of the Final Agreement, and in particular of the provisions respecting legal certainty, which are set out under the heading “Certainty” (Division 2.5.0).

[134]                      On this key issue of legal certainty, the Umbrella Agreement and, later, all the final agreements negotiated under it were entered into in accordance with the 1986 federal policy on comprehensive claims (Saint-Hilaire, at pp. 407‑8, note 45).  It is actually possible to refer to the 1993 policy, as the 1986 policy was not modified on this point.  Since 1986, the official federal policy has stated in this respect that rights with respect to land that are consistent with the agreement and “Aboriginal rights which are not related to land and resources or to other subjects under negotiation will not be affected by the exchange” (Indian and Northern Affairs Canada, Federal Policy for the Settlement of Native Claims (1993), at p. 9).  In short, in the 1986 policy, the government announced that its conduct would be honourable in that it would aim for equitable, or [TRANSLATION] “orthodox”, exchanges (Saint-Hilaire, at p. 407).  In other words, the principle endorsed in the federal policy since 1986 has involved a distinction between the agreement that provides certainty and the “entire agreement”.  So much for the general principle behind the division of the agreement in issue entitled “Certainty”.  Let us now consider in greater detail the specific provisions applicable to the exchange of rights established in the Final Agreement.

[135]                      The Umbrella Agreement provides (in s. 2.5.1) that, in consideration of the promises, terms, conditions and provisos in a Yukon First Nation’s final agreement, 

2.5.1.1      subject to 5.14.0 [which sets out a procedure for designating “Site Specific Settlement Land” to which s. 2.5.0 will not apply], that Yukon First Nation and all persons who are eligible to be Yukon Indian People it represents, as of the Effective Date of that Yukon First Nation’s Final Agreement, cede, release and surrender to Her Majesty the Queen in Right of Canada, all their aboriginal claims, rights, titles, and interests, in and to,

(a)        Non-Settlement Land and all other land and water including the Mines and Minerals within the sovereignty or jurisdiction of Canada, except the Northwest Territories, British Columbia and Settlement Land,

(b)        the Mines and Minerals within all Settlement Land, and 

(c)        Fee Simple Settlement Land; [and]

2.5.1.2      that Yukon First Nation and all persons eligible to be Yukon Indian People it represents, as of the Effective Date of that Yukon First Nation’s Final Agreement, cede, release and surrender to Her Majesty the Queen in Right of Canada all their aboriginal claims, rights, titles and interests in and to Category A and Category B Settlement Land and waters therein, to the extent that those claims, rights, titles and interests are inconsistent or in conflict with any provision of a Settlement Agreement . . .

According to the agreement settling its comprehensive land claim, the Little Salmon/Carmacks First Nation therefore “surrender[ed]” any Aboriginal rights it might have in respect of land, water, mines and minerals, (1) subject to the procedure for designating “site specific settlement land” (of which two parcels were located near the land in question in Mr. Paulsen’s application), (2) except insofar as those rights extended into the Northwest Territories or British Columbia, and (3) except for those relating to settlement land and waters therein, but only to the extent that the rights in question were not inconsistent with the settlement and provided that they extended neither to land held in fee simple nor to mines and minerals — as is specified in the definition of non-settlement lands.  For greater certainty, the Final Agreement accordingly adds that

2.5.1.4      neither that Yukon First Nation nor any person eligible to be a Yukon Indian Person it represents, their heirs, descendants and successors, shall, after the Effective Date of that Yukon First Nation’s Final Agreement, assert any cause of action, action for declaration, claim or demand of whatever kind or nature, which they ever had, now have, or may hereafter have against Her Majesty the Queen in Right of Canada, the Government of any Territory or Province, or any person based on,

(a)        any aboriginal claim, right, title or interest ceded, released or surrendered pursuant to 2.5.1.1 and 2.5.1.2; [or]

(b)        any aboriginal claim, right, title or interest in and to Settlement Land, lost or surrendered in the past, present or future . . .

[136]                      It is also important to consider general provision 2.2.4, which reflects the new orthodox exchange principle introduced by the 1986 federal policy that applied to the negotiation of the Umbrella Agreement:

Subject to 2.5.0, 5.9.0 [effects of the registration, granting, declaration or expropriation of any interest in a Parcel of Settlement Land less than the entire interest], 5.10.1 [effects of the registration, granting or expropriation of the fee simple title in a Parcel of Settlement Land] and 25.2.0 [negotiation of the transboundary aspect of claims], Settlement Agreements shall not affect the ability of aboriginal people of the Yukon to exercise, or benefit from, any existing or future constitutional rights for aboriginal people that may be applicable to them.

[137]                      The spirit of the Final Agreement is apparent on the very face of these provisions respecting legal certainty:  except where otherwise provided in the agreement itself, the agreement replaces the common law Aboriginal rights framework with the one it establishes for the matters it covers.  But that is not all.

[138]                      The Final Agreement also includes general and interpretive provisions, such as general provision 2.2.5, which, like so many others, is reproduced from the Umbrella Agreement.  This provision states that “Settlement Agreements shall not affect the rights of Yukon Indian People as Canadian citizens and their entitlement to all of the rights, benefits and protection of other citizens applicable from time to time.”  There are also relevant provisions in Division 2.6.0 of the Umbrella Agreement: 

2.6.1 The provisions of the Umbrella Final Agreement, the specific provisions of the Yukon First Nation Final Agreement and Transboundary Agreement applicable to each Yukon First Nation shall be read together.

2.6.2   Settlement Legislation shall provide that:

2.6.2.1    subject to 2.6.2.2 to 2.6.2.5, all federal, territorial and municipal Law shall apply to Yukon Indian People, Yukon First Nations and Settlement Land; 

2.6.2.2    where there is any inconsistency or conflict between any federal, territorial or municipal Law and a Settlement Agreement, the Settlement Agreement shall prevail to the extent of the inconsistency or conflict; 

2.6.2.3    where there is any inconsistency or conflict between the provisions of the Umbrella Final Agreement and the specific provisions applicable to a Yukon First Nation, the provisions of the Umbrella Final Agreement shall prevail to the extent of the inconsistency or conflict; [and]

2.6.2.4    where there is any inconsistency or conflict between Settlement Legislation and any other Legislation, the Settlement Legislation shall prevail to the extent of the inconsistency or conflict;

. . .

2.6.3   There shall not be any presumption that doubtful expressions in a Settlement Agreement be resolved in favour of any party to a Settlement Agreement or any beneficiary of a Settlement Agreement.

. . .

2.6.5   Nothing in a Settlement Agreement shall be construed to preclude any party from advocating before the courts any position on the existence, nature or scope of any fiduciary or other relationship between the Crown and the Yukon First Nations. 

2.6.6   Settlement Agreements shall be interpreted according to the Interpretation Act, R.S.C. 1985, c. I-21 , with such modifications as the circumstances require. 

2.6.7 Objectives in Settlement Agreements are statements of the intentions of the parties to a Settlement Agreement and shall be used to assist in the interpretation of doubtful or ambiguous expressions. 

2.6.8   Capitalized words or phrases shall have the meaning assigned in the Umbrella Final Agreement.

These interpretive provisions establish, inter alia, a principle of equality between the parties (s. 2.6.3) and a principle of contextual interpretation based on the general scheme of the provisions, divisions and chapters and of the treaty as a whole in accordance with its systematic nature (s. 2.6.1).  The latter principle is confirmed by the rule that in the event of ambiguity, the provisions of the treaty are to be interpreted in light of the objectives stated at the beginning of certain chapters of the treaty (s. 2.6.7).  The systematic nature of the treaty is also confirmed by the rule that when defined words and phrases are used, they have the meanings assigned to them in the definitions (s. 2.6.8).  In other cases, the rules set out in the federal Interpretation Act  apply (s. 2.6.6 ).  This, then, is the framework for interpretation agreed on by the parties to the treaty.  More precisely, this framework was first developed by the parties to the Umbrella Agreement, and was then incorporated by the parties into the various final agreements concluded under the Umbrella Agreement.  Where there is any inconsistency or conflict, the rules of this framework prevail over the common law principles on the interpretation of treaties between governments and Aboriginal peoples.

[139]                      These general and interpretive provisions also establish certain rules with respect to the relationships of the Umbrella Agreement and any final agreement concluded under it, not only the relationship between them, but also that with the law in general.  One of these rules is that in the event of inconsistency or conflict, the Umbrella Agreement prevails over the agreements concluded under it (s. 2.6.2.3).  At first glance, this rule is surprising, since the parties to the Umbrella Agreement were very careful to specify that, on its own, that agreement “does not create or affect any legal rights” (s. 2.1.2).  Section 2.6.2.3 is therefore somewhat imprecise.  It can only refer to the provisions of the final agreement whose substance (and not form) derives from the Umbrella Agreement, and which prevail over the “specific” provisions.  The implementing legislation, the Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34 , provides that “[i]n the event of a conflict or inconsistency between provisions of the Umbrella Final Agreement incorporated in a final agreement that is in effect and provisions of the final agreement that are specific to the first nation, the provisions of the Umbrella Final Agreement prevail to the extent of the conflict or inconsistency” (s. 13(4) ).  The other provisions of the treaty that relate to this issue of conflicting legislation have also been drawn from the federal implementing legislation (s. 13 ) and from its territorial equivalent (s. 5 ).  The rules can therefore be summarized in the principle that the Final Agreement prevails over any other non‑constitutional legal rule, subject to the requirement that its provisions not be so construed as to affect the rights of “Yukon Indian people” as Canadian citizens and their entitlement to all the rights, benefits and protections of other citizens (s. 2.2.5 ).  In short, therefore, with certain exceptions, the treaty overrides Aboriginal rights related to the matters to which it applies, and in cases of conflict or inconsistency, it prevails over all other non‑constitutional law.

[140]                      It should be noted that in certain circumstances, the principle applied in the treaty with respect to particular non‑constitutional legislation — the Indian Act, R.S.C. 1985, c. I‑5 , where reserves are concerned — is that the treaty replaces that legislation rather than prevailing over it (s. 4.1.2 ).

[141]                      Regarding the relationship between the treaty in issue and the rest of our constitutional law other than the case law on Aboriginal rights, such a treaty clearly cannot on its own amend the “Constitution of Canada” within the meaning of s. 52  and Part V of the Constitution Act, 1982 .  Thus, to give one example, it cannot on its own alter either the protections of rights and freedoms provided for in Part I of that Act, the Canadian Charter of Rights and Freedoms  (support for this can be found in s. 2.2.5 of the Final Agreement, which was discussed above), or the constitutional division of powers established in Part VI of the Constitution Act, 1867 .  Next, on the specific issue before us in the instant case, since the right to be consulted that corresponds to the common law duty to consult (1) transcends the distinction between Aboriginal rights and treaty rights, (2) is therefore not an Aboriginal right and even less so an Aboriginal right related to land and resources, and (3) accordingly cannot be surrendered under Division 2.5.0, it must be asked whether there is anything explicit in the treaty in issue about how the parties intended to deal with this duty.  In other words, does the Final Agreement contain provisions that affect the general principle discussed above that the common law duty to consult will apply only where the parties have failed to address this issue?  I see none.

[142]                      It should be borne in mind that an Aboriginal people cannot, by treaty, surrender its constitutional right to be consulted before the Crown takes measures in a manner not provided for in the treaty that might violate, infringe or limit a right that Aboriginal people is recognized as having in the same treaty.  By analogy, in contract law, such a surrender would constitute an unconscionable term.  But it is not this rule that is in issue here so much as the minimum required content of the duty in the context of treaties with Aboriginal peoples.  As set out above, s. 2.6.5 of the Final Agreement, which was reproduced from the Umbrella Agreement, provides that “[n]othing in a Settlement Agreement shall be construed to preclude any party from advocating before the courts any position on the existence, nature or scope of any fiduciary or other relationship between the Crown and the Yukon First Nations”.  However, the fiduciary duty is not always constitutional in nature.  Nor is it equivalent to the duty to consult implied by the principle of the honour of the Crown that the Crown must maintain in its relations with Aboriginal peoples as holders of special constitutional rights.  The fiduciary duty may arise, for example, from relations the Crown maintains with Indians in managing reserve lands and, more generally, in administering the Indian Act  (Guerin;Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746).

[143]                      In actual fact, two points are made in s. 2.6.5.  First, the settlement of an Aboriginal nation’s comprehensive claim does not automatically entail the settlement of any specific claim — based not on Aboriginal rights but rather on the Indian Act  — that this nation might have, generally on the strength of the Crown’s fiduciary duty.  A specific claim could also be based on a “historical” treaty.  In the instant case, however, the Little Salmon/Carmacks First Nation expressly ceded, released and surrendered, in the agreement to settle its comprehensive land claim, namely the Final Agreement, any “claims, rights or causes of action which they may ever have had, may now have or may have hereafter” as a result of Treaty 11 (ss. 2.5.1.3 2.5.1.4 (c) and 2.5.2 ).  Finally, unlike a comprehensive claim, a specific claim is not necessarily limited to land or resources.  It was therefore quite natural to specify that the mere existence of a settlement of a Yukon First Nation’s comprehensive land claim did not, without further verification, support a conclusion that any specific claim the First Nation might have had been settled.

[144]                      Second, s. 2.6.5 also evokes a more general principle.  It provides that a final agreement does not preclude any party from advocating before the courts the existence of not only fiduciary, but also “other”, relationships between the Crown and the Yukon First Nations.  This, in reality, is but one manifestation of the equitable principle involving a higher standard for exchanges of rights between Aboriginal peoples and the Crown — which the Crown aimed to make more orthodox — that was first mentioned in the federal policy of 1986.

[145]                      Thus, s. 2.6.5 of the Final Agreement is not at all inconsistent with the general principle discussed above that the common law duty to consult, in its minimum required obligational form, will apply — despite the existence of a treaty — only if the parties to the treaty have clearly failed to provide for it.  This will depend on whether the parties have come to an agreement on the issue, and if they have, the treaty will — unless, of course, the treaty itself provides otherwise — override the application to the parties of any parallel framework, including the common law framework.

[146]                      In short, in providing in s. 2.2.4 that, subject to certain restrictions, “Settlement Agreements shall not affect the ability of aboriginal people of the Yukon to exercise, or benefit from, any existing or future constitutional rights for aboriginal people that may be applicable to them”, the parties could only have had an orthodox exchange of rights in mind.  They most certainly did not intend that a consultation framework would apply in parallel with the one they were in the process of establishing in the treaty.  If the treaty in issue establishes how the Crown is to exercise its rights under the treaty by providing for a given form of consultation with the Aboriginal party, then the effect of the entire agreement clause in s. 2.2.15 will be to override any parallel framework, including the one developed by this Court.

B.      Substantive Rights in Issue

(1)      Right to Transfer and Right of Access to Crown Land

[147]                      In the case at bar, it is Chapter 6 on rights of access that must be considered first in respect of the right of the Crown the exercise of which could affect the exercise of rights of the Aboriginal party.  As I mentioned above, the agreement in issue establishes two broad categories of land:  settlement land and non-settlement land.  The category of non-settlement land includes Crown land, and the land in question in Mr. Paulsen’s application was Crown land.  Chapter 6 is structured on the basis of the principle that the Aboriginal party and third parties have rights of access to unoccupied Crown land, on the one hand, and that the Crown and third parties have rights of access to undeveloped settlement land, on the other.  This is a general principle to which there may, of course, be exceptions.

[148]                      It is in Division 6.2.0 that the parties to the Umbrella Agreement — Canada, Yukon and the Council for Yukon Indians — provided for the right of access to Crown land — to be confirmed in the final agreements — of every Yukon Indian person and Yukon First Nation.  The effect of the reproduction of that provision in the various final agreements was to grant every Yukon Indian person and Yukon First Nation to which those agreements applied a right of access for non-commercial purposes (s. 6.2.1), which is the right being relied on in this case.  However, a review of that right leads to the right of the Crown the exercise of which is in issue here and which constitutes an exception to the right of access.

[149]                      The right of access of First Nations to Crown land for non-commercial purposes is subject to strict limits, and also to conditions and exceptions.  It is limited in that the access in question is only “casual and insignificant” (s. 6.2.1.1), or “is for the purpose of Harvesting Fish and Wildlife in accordance with Chapter 16 — Fish and Wildlife” (s. 6.2.1.2), which is a chapter I will discuss below.  The applicable conditions are set out in s. 6.2.4 — one example is a prohibition against significant interference with the use and peaceful enjoyment of the land by other persons.  Finally, regarding the exceptions that are relevant here, the right of access in issue does not apply to Crown land “where access or use by the public is limited or prohibited” (s. 6.2.3.2), or “which is subject to an agreement for sale or a surface licence or lease”, except “to the extent the surface licence or lease permits public access” or “where the holder of the interest allows access” (s. 6.2.3.1 (emphasis added)).

[150]                      This last provision is the very one on which the decision on Mr. Paulsen’s application was based.  It must therefore be determined whether the treaty requires the Crown to consult the Aboriginal party before exercising its right to transfer land belonging to it in a way that could limit one or more rights granted to the Aboriginal party in the treaty.  As I explain below, there are provisions in the treaty in question that govern this very issue.

[151]                      The Crown’s right is clear, however.  This exception to the right of access of First Nations to Crown land obviously implies that the Crown’s general right to transfer land belonging to it continues to exist.  Crown land, in respect of which Yukon’s Aboriginal peoples have surrendered all Aboriginal rights and all rights arising out of Treaty No. 11, and which is not included in the land covered by the settlement of their comprehensive land claims, is defined in the agreement itself as land “vested from time to time in Her Majesty in Right of Canada, whether the administration and control thereof is appropriated to the Commissioner of the Yukon or not” (Chapter 1).  Ownership of property implies, with some exceptions, the right to dispose of the property.  The Crown’s right to transfer land belonging to it is confirmed not only by s. 6.2.3.1 of the treaty, but also by s. 6.2.7, which limits that right by indicating that “Government shall not alienate Crown Land abutting any block of Settlement Land so as to deprive that block of Settlement Land of access from adjacent Crown Land or from a highway or public road.”  The treaty right being specifically invoked by the Little Salmon/Carmacks First Nation in respect of access to Crown land clearly ends where the Crown’s right to transfer such land begins.

[152]                      Moreover, in invoking the right granted in s. 6.2.1.2 to every Yukon Indian person and Yukon First Nation, that of access to Crown land for the purpose of “Harvesting Fish and Wildlife in accordance with Chapter 16”, the respondents are also engaging that chapter on fish and wildlife management.  They further submit that the transfer of the land in question would reduce the value of the trapline held by one of them, Johnny Sam, under the Wildlife Act, R.S.Y. 2002, c. 229, and — in a more direct, but certainly no less significant, manner — under the same Chapter 16 of the Final Agreement.  Chapter 16 is accordingly in issue in this case and will have to be considered in greater detail.

(2)     Fish and Wildlife Management

[153]                      Chapter 16 of the Final Agreement establishes a co-management framework with respect to fish and wildlife.  It generally confirms the right of Yukon Indian people 

to harvest for Subsistence within their Traditional Territory, and with the consent of another Yukon First Nation in that Yukon First Nation’s Traditional Territory, all species of Fish and Wildlife for themselves and their families at all seasons of the year and in any numbers on Settlement Land and on Crown Land to which they have a right of access pursuant to 6.2.0 . . . . [s. 16.4.2]

However, the actual scope of this general principle is limited in that the same provision concludes with the following words:  “. . . subject only to limitations prescribed pursuant to Settlement Agreements” (s. 16.4.2).  Those limitations are significant and they go beyond the exception to the right of access granted in Division 6.2.0, namely the Crown’s exercise of its right to transfer land belonging to it.  The exercise of the rights granted to the Aboriginal party in Chapter 16 is subject to limitations provided for not only in the final agreements, but also in “Legislation enacted for purposes of Conservation, public health or public safety” (s. 16.3.3); limitations provided for in legislation “must be consistent with this chapter, reasonably required to achieve those purposes and may only limit those rights to the extent necessary to achieve those purposes” (s. 16.3.3.1).

[154]                      There are other provisions in Chapter 16 of the Final Agreement, aside from s. 16.3.3, that regulate, in various ways, the right of Yukon Indian people to harvest fish and wildlife by, in particular, authorizing the fixing of quotas — referred to as “total allowable harvest[s]” — “[w]hen opportunities to harvest Freshwater Fish or Wildlife are limited for Conservation, public health or public safety” (s. 16.9.1.1).  Chapter 16 also establishes principles for sharing such harvests “between Yukon Indian People and other harvesters” (s. 16.9.1).  Overall, the logic behind the principles used to allocate quotas is to “give priority to the Subsistence needs of Yukon Indian People while providing for the reasonable needs of other harvesters” (s. 16.9.1.1).

[155]                      Another goal of Chapter 16 of each of the final agreements, in addition to the simple fixing and allocation of quotas, is to regulate the exercise by Yukon Indian people of their rights to harvest fish and wildlife by setting up a multi-level management framework that combines the principle of participation of the First Nations in question and that of decentralization.  Those with responsibilities in the context of that framework are, in each case, the First Nation in question, the renewable resources council (“council”), which has jurisdiction in respect of that First Nation’s traditional territory, the Fish and Wildlife Management Board (“Board”) (and its Salmon Sub-Committee), which has jurisdiction throughout the Yukon Territory, and, finally, the Minister responsible for the matter in issue.  There is equal representation on the councils and the Board:  thus, “[s]ubject to Transboundary Agreements and Yukon First Nation Final Agreements, each Council shall be comprised of six members consisting of three nominees of the Yukon First Nation and three nominees of the Minister” (s. 16.6.2), and “[t]he Board shall be comprised of six nominees of Yukon First Nations and six nominees of Government” (s. 16.7.2).  Regarding the composition of the councils, the specific provisions of the final agreements add only that the First Nation and the Minister may each nominate one additional member as an alternate member (ss. 16.6.2.1 to 16.6.2.3).  The chairperson of each council, and of the Board, is selected from the membership of the body in question in accordance with procedures it has established for itself (ss. 16.6.3 and 16.7.3).  If no chairperson is selected within 30 days in the case of a council, or 60 days in the case of the Board, the Minister must, after consulting the council or the Board, as the case may be, appoint one from its membership (ss. 16.6.3.1 and 16.7.3.1).

[156]                      There are very few instances in which the organs referred to in Chapter 16, other than the Minister, are given decision-making powers.  In one of the rare cases, the First Nation is given, “for Category 1 Traplines, the final allocation authority” (ss. 16.11.10.6 and 16.5.1.2) — I should mention that this is not the category to which Johnny Sam’s trapline belongs.  The First Nation also has sole authority to “align, realign or group Category 1 Traplines where such alignments, realignments or groupings do not affect Category 2 Traplines” (s. 16.5.1.3).

[157]                      More generally, the First Nation also has the following decision-making powers: 

. . . [to] manage, administer, allocate or otherwise regulate the exercise of the rights of Yukon Indian People under 16.4.0 [concerning the harvesting of fish and wildlife] within the geographical jurisdiction of the Council established for that Yukon First Nation’s Traditional Territory by,

(a) Yukon Indian People enrolled pursuant to that Yukon First Nation Final Agreement,

(b) other Yukon Indian People who are exercising rights pursuant to 16.4.2, and

(c) except as otherwise provided in a Transboundary Agreement, members of a transboundary claimant group who are Harvesting pursuant to that Transboundary Agreement in that Yukon First Nation’s Traditional Territory . . . [s. 16.5.1.1]

However, the final paragraph of this provision contains the following clarification:  “. . . where not inconsistent with the regulation of those rights by Government in accordance with 16.3.3 and other provisions of this chapter” (s. 16.5.1.1, final portion).  The reality is that, aside from the allocation of individual rights from a group harvesting allocation, Chapter 16 mainly concerns management activities that ultimately fall under the Minister’s authority.  The organs mentioned in Chapter 16 other than the Minister have in most cases — with some exceptions where they are given a form of decision-making authority — a power limited to holding consultations before a decision is made.

[158]                      It is in this context that the respondents’ argument regarding the Community-based Fish and Wildlife Management Plan: Little Salmon/Carmacks First Nation Traditional Territory, 2004-2009 (2004) must be considered.  Management plans such as this one are referred to in Chapter 16 of the various final agreements and more specifically, for our purposes, in ss. 16.6.10 and 16.6.10.1, which read as follows:

Subject to Yukon First Nation Final Agreements, and without restricting 16.6.9 [on the Councils’ general powers], each Council:

16.6.10.1  may make recommendations to the Minister on the need for and the content and timing of Freshwater Fish and Wildlife management plans, including Harvesting plans, Total Allowable Harvests and the allocation of the remaining Total Allowable Harvest [under 16.9.4], for species other than the species referred to in 16.7.12.2 [species included in international agreements, threatened species declared by the Minister as being of territorial, national or international interest, and Transplanted Populations and Exotic Species] . . .

[159]                      A management plan such as the one relied on by the respondents is a policy statement regarding proposed legal acts, in particular decision making and the making of regulations under statutory authority.  As its title indicates, therefore, this plan only sets out an administrative agreement on how the partners plan to exercise their legal powers.

[160]                      The passage from the management plan to which the respondents refer reads as follows:

Concern:  There is a need to protect the Yukon River from Tatchun Creek to Minto as important habitat for moose, salmon, and other wildlife.  

This section of the Yukon River contains a number of sloughs and islands, and was identified as important habitat for moose during calving, summer and winter.  Moose were commonly seen in this area back in the 1960s, but fewer have been seen in recent years.  “Dog Salmon Slough” was one area noted in particular as an important habitat area.  Bears use Dog Salmon Slough for fishing.  Moose might be staying away from river corridors now with the increased river travel traffic during summer.  The review process for land applications in this area needs to consider the importance of these habitat areas to fish and wildlife.

Solution:  Conserve the important moose and salmon habitat along the Yukon River from Tatchun Creek to Minto.  

Pursue designating the area between Tatchun Creek and Minto along the Yukon River as a Habitat Protection Area under the Wildlife Act.  

The community and governments need to get together to decide what kind of activities should happen in this important wildlife habitat.  This is an overlap area with Selkirk First Nation, and the CRRC [Carmacks Renewable Resource Council] needs to consult with them.  A [Little Salmon/Carmacks First Nation] Game Guardian could also assist in evaluating the area for designation and providing management guidelines.  [pp. 32‑33]

[161]                      Two concerns can therefore be identified:  the protection of fish and wildlife and the designation of areas.  As I will explain below, the protection of fish and wildlife could be, and in fact was, taken into consideration in the process leading to the transfer of land.  As for the designation of a protected area, which could have prevented any transfer of the land in question in Mr. Paulsen’s application from occurring, it was a complex process.  Such a designation would have required that three steps be completed successfully:  (1) the Little Salmon/Carmacks First Nation would have to recommend the designation after consulting the Selkirk First Nation and the renewable resources council, in accordance with the relevant provisions of the management plan; (2) the Commissioner in Executive Council would have to designate the area by making a regulation under s. 187 of the Wildlife Act, the effect of which would simply be to make it possible to withdraw the lands in question from disposition; and (3) the Commissioner in Executive Council would have to actually withdraw the lands from disposition by making an order under s. 7(1)(a) of the Yukon Lands Act, R.S.Y. 2002, c. 132, which would be done if the Commissioner in Executive Council considered it advisable to do so in the public interest.  These steps had not yet been taken, and in the meantime no provisional suspension of the processing of applications for land in the area in question had been agreed upon, despite the fact that such a suspension had been suggested in September 2004, a few weeks before the decision on Mr. Paulsen’s application, at a meeting concerning an agricultural policy review that was attended by representatives from the First Nation and the Agriculture Branch.

[162]                      In sum, the provisions of Chapter 16 on fish and wildlife management establish a framework under which the First Nations are generally invited to participate in fish and wildlife management at the pre-decision stage.  In particular, the invitation they receive to propose fish and wildlife management plans can be regarded as consultation.

(3)     Trapline

[163]                      The respondents submit that the land transfer in issue will reduce the value of the trapline held by Johnny Sam under the Wildlife Act, to which Division 16.11.0 of the Final Agreement on trapline management and use applies.  In addition to the principles on the allocation of possible quotas between the First Nations and other harvesters, Chapter 16 of the Yukon final agreements includes specific rules for the trapping of furbearers.  Division 16.11.0 incorporates, with necessary changes, the framework for granting individual traplines, or “concessions”, established in the Wildlife Act.  The changes made to that general framework in the final agreements relate primarily to the allocation of traplines in the First Nations’ traditional territory.

[164]                      Section 16.11.2 of the final agreements concluded with the Yukon First Nations under the Umbrella Agreement reads as follows:

In establishing local criteria for the management and Use of Furbearers in accordance with 16.6.10.6 [which delegates the authority to adopt bylaws under the Wildlife Act] and 16.6.10.7 [which grants the authority to make recommendations to the Minister and the First Nation], the Councils shall provide for:

16.11.2.1      the maintenance and enhancement of the Yukon’s wild fur industry and the Conservation of the fur resource; and

16.11.2.2      the maintenance of the integrity of the management system based upon individual trapline identity, including individual traplines within group trapping areas.

[165]                      The Final Agreement contains a specific provision concerning the allocation of traplines between Aboriginal and non-Aboriginal people in the traditional territory of the Little Salmon/Carmacks First Nation, namely s. 16.11.4.1, which provides that “[t]he overall allocation of traplines which have more than 50 percent of their area in that portion of the Traditional Territory of the Little Salmon/Carmacks First Nation which is not overlapped by another Yukon First Nation’s Traditional Territory is 11 traplines held by Yukon Indian People and three traplines held by other Yukon residents.”  This allocation does not apply to Johnny Sam’s trapline, since it is located entirely within the portion of the traditional territory of the Little Salmon/Carmacks First Nation that overlaps the traditional territory of the Selkirk First Nation.

[166]                      Furthermore, as I mentioned above, the Final Agreement establishes two categories of traplines.  After being granted to an individual, a trapline located in the traditional territory of a First Nation may, with the written consent of its registered holder, be designated a Category 1 trapline (s. 16.11.8).  Otherwise, it will be a Category 2 trapline.  Such a designation gives the First Nation the authority — particularly if the trapline is vacant or underused — to reallocate it (ss. 16.5.1.2 and 16.11.10.6), or to align it, realign it or group it with another line “where such alignments, realignments or groupings do not affect Category 2 Traplines” (s. 16.5.1.3).  Authority over Category 2 lines rests not with the First Nation, but with the Minister (ss. 16.3.1 and 16.11.10.7 and Division 16.8.0).  In their decisions, the courts below indicated that Johnny Sam’s trapline is a Category 2 trapline.

[167]                      Section 16.11.13 establishes the right of “Yukon Indian People holding traplines whose Furbearer Harvesting opportunities will be diminished due to other resource development activities [to] be compensated”.  This right is broader than the right to compensation the holder of a trapline has under s. 82 of the Wildlife Act, which is limited to situations in which a concession is revoked or the re‑issuance of a concession is refused for purposes related to the conservation of wildlife or to protection of the public interest, but without giving two years’ notice.  Regarding the consequences the transfer of land to one person might have on another person’s right to trap, I would point out that the Wildlife Act (s. 13(1)) provides that “[a] person shall not hunt or trap wildlife within one kilometre of a building which is a residence, whether or not the occupants are present in the building at the time, unless the person has the permission of the occupants to do so.”

[168]                      Having discussed the granting of rights and establishment of duties in Chapter 16 of the Final Agreement, on which the respondents are relying, I must now ask whether this chapter establishes a specific procedure to be followed by the Yukon government to consult the signatory First Nation before exercising its right to transfer Crown land under the (Yukon) territory’s jurisdiction.  The answer is no.  The consultation provided for in ss. 16.3.3.2, 16.5.4 and 16.7.16 relates to the management of fish and wildlife, not to the impact an action might have in relation to fish and wildlife.  However, ss. 16.5.3, 16.6.11 and 16.7.13 provide that the First Nation, the renewable resources council and the Fish and Wildlife Management Board, respectively, have standing as interested parties to participate in the public proceedings of any agency, board or commission on matters that affect the management and conservation of fish and wildlife and their habitats in the particular traditional territory.  But the terms “agency”, “board” or “commission” refer, in particular, to the bodies in question in Chapter 12 of the Final Agreement, which establishes a procedure for consulting the First Nations signatories by ensuring their participation in the environmental and socio-economic assessment of development activities such as the one that resulted from the approval of Mr. Paulsen’s application.

[169]                      I would nevertheless like to point out that Johnny Sam had rights as the holder of the trapline.  He had the same rights as anyone else where procedural fairness is concerned.  He also had the right to be compensated in accordance with s. 16.11.13.  But the respondents are neither arguing that there has been a breach of procedural fairness nor asserting their right to compensation.  What they are seeking is to have the decision on Mr. Paulsen’s application quashed on the ground that the Crown had a common law duty to consult them (R.F. on cross-appeal, at para. 86).  It is my view, therefore, that a review of the rights granted in the Final Agreement with respect to consultation prior to a decision such as the one in issue in this case is indispensable.

C.     Formal Rights and Duties in Issue

[170]                      The appellants argue that Chapter 12 is not applicable on the ground that it had not yet been implemented at the relevant time.  According to the respondents, the process provided for in Chapter 12 would have been applicable had it been implemented, but it is only one form of consultation among all those that would be applicable — in their view, the common law duty is not excluded.  Binnie J. also proposes that the common law duty to consult should apply where the Crown exercises a right granted to it in the treaty, even if the treaty provides for consultation in relation to that right.  I disagree with him on this point.  As I mentioned above, respect for the autonomy of the parties implies that effect must be given to the provisions they have agreed on in finalizing the relationship between them on a given matter.  I cannot therefore agree with disregarding provisions adopted by the parties with respect to the transitional law.

[171]                      The Umbrella Agreement and the Final Agreement in issue here state that the settlement legislation must provide that a settlement agreement is binding on third parties (s. 2.4.2.3), and the Yukon First Nations Land Claims Settlement Act  provides that “[a final agreement or transboundary agreement that is in effect] is binding on all persons and bodies that are not parties to it” (s. 6(2) ).  Both these agreements are binding not only on the parties, but also on third parties.  Therefore, in my opinion, it is necessary for this Court to review the provisions of Chapter 12.

[172]                      Chapter 12 of the Umbrella Agreement, which can also be found in the final agreements, did not simply lay the foundations for an environmental and socio‑economic assessment process that was to be implemented by means of a statute other than the general implementing legislation for those agreements — which was done by enacting the Yukon Environmental and Socio-economic Assessment Act, S.C. 2003, c. 7  (“YESAA ”) — it also contains transitional law provisions regarding the duties of the parties to the Umbrella Agreement and the final agreements that would apply even before the enactment of that statute implementing the process in question.

[173]                      In reality, the Yukon final agreements provided that they would be implemented and would come into effect by way of legislation or of an order‑in‑council, as the case may be, and that their coming into effect was a condition precedent to their validity (ss. 2.2.11 and 2.2.12).  This could be understood to mean that, since Chapter 12 required the enactment of specific implementing legislation, it constituted an exception to the general implementation of a final agreement and created no legal rights or duties until that legislation was enacted.  But that is not what the Final Agreement says.

[174]                      In Division 12.2.0 of the Final Agreement, the expression “Development Assessment Legislation” is defined as “Legislation enacted to implement the development assessment process set out in this chapter” (emphasis added).  This definition therefore does not concern special implementing legislation for Chapter 12 as a whole, but legislation to implement the process provided for in that chapter.  This is confirmed by s. 12.3.1, which provides that “Government shall implement a development assessment process consistent with this chapter by Legislation”.  Logically, therefore, when a final agreement concluded under the Umbrella Agreement with the Yukon First Nations comes into effect, the result, even if the assessment process has not yet been implemented, is to give effect to several provisions of Chapter 12 that are common to all the final agreements, including those that establish the applicable transitional law.

[175]                      Section 12.19.5 provides that “[n]othing in [Chapter 12] shall be construed to affect any existing development assessment process in the Yukon prior to the Development Assessment Legislation coming into effect.”  This provision sets out the transitional law that would apply until the YESAA  came into force, establishing that until then, existing statutes and regulations with respect to development assessment would constitute the minimum to which Yukon First Nations were entitled, which meant that those statutes and regulations could not be amended so as to reduce the level of protection enjoyed by the First Nations.  Chapter 12 does not require that any amendments be made to that existing law in the meantime.

[176]                      In addition, s. 12.3.4 provides that “Government shall recommend to Parliament or the Legislative Assembly, as the case may be, the Development Assessment Legislation consistent with this chapter as soon as practicable and in any event no later than two years after the effective date of Settlement Legislation.”  The “settlement legislation” referred to here is clearly not the implementing legislation for the process contemplated in Chapter 12, but the “settlement legislation” provided for in Division 2.4.0 — the legislation to implement the particular final agreement.  Both the territorial settlement legislation and the corresponding federal legislation came into force in 1995.  As for the specific process contemplated in Chapter 12, it was ultimately implemented by Parliament by means of the YESAA .

[177]                      The transitional law, that is, the law that applied before the YESAA  came into force, included, in addition to s. 12.19.5 , which was discussed above, s. 12.3.6 of the Final Agreement, which read as follows:

Prior to the enactment of Development Assessment Legislation, the parties to the Umbrella Final Agreement shall make best efforts to develop and incorporate in the implementation plan provided for in 12.19.1, interim measures for assessing a Project which shall be consistent with the spirit of this chapter and within the existing framework of Law and regulatory agencies.  [Emphasis added.]

No implementation plan of the type provided for in s. 12.19.1 was produced in this case.  Moreover, s. 12.19.4 provided that Chapter 12 was not to “be construed to prevent Government, in Consultation with Yukon First Nations, from acting to improve or enhance socio-economic or environmental procedures in the Yukon in the absence of any approved detailed design of the development assessment process”.  No evidence of any such action was adduced in the case at bar.  By virtue of s. 12.19.5, therefore, the applicable interim framework corresponded to the “existing development assessment process in the Yukon prior to the Development Assessment Legislation coming into effect”.

[178]                      However, it should be mentioned that the interim framework, which was intended to apply for only a relatively short period, was ultimately in effect longer than planned.  This is because the bill that became the implementing legislation for the process contemplated in Chapter 12 was not introduced until October 3, 2002, that is, over five and a half years after the February 14, 1997 deadline provided for in s. 12.3.4 of the Final Agreement.  In fact, that deadline had already passed when the Final Agreement was signed in 1997.  Since it is clear from the provisions of Chapter 12 that before the YESAA  came into force, the parties to the Umbrella Agreement were required to make best efforts to ensure that the Yukon First Nations received the benefit of the spirit of that chapter as soon as was practicable, it is important to begin — not in order to apply the letter of the YESAA , but in order to clearly understand the spirit of Chapter 12, of which certain other provisions that were applicable expressly stated that, in the interim, best efforts were to be made to honour that spirit — by determining what the Little Salmon/Carmacks First Nation would have been entitled to under the YESAA  if the process implemented in that Act had applied to Mr. Paulsen’s application.

(1)        Permanent Process:  YESAA 

[179]                      One objective of Chapter 12 of the final agreements concluded with the Yukon First Nations is to ensure the implementation of a development assessment process that “provides for guaranteed participation by Yukon Indian People and utilizes the knowledge and experience of Yukon Indian People in the development assessment process” (s. 12.1.1.2).  This framework was designed to incorporate both the participation of the First Nations and a certain degree, if not of decentralization, at least of administrative deconcentration.  These objectives are achieved through the membership of the bodies established in Chapter 12 of the final agreements and the YESAA , and through the oversight by those bodies of development activities planned for the territory in question.  This integrated mechanism was intended, with some exceptions, to become Yukon’s default assessment procedure.  The relationship between the process established in Chapter 12 and the Canadian Environmental Assessment Act, S.C. 1992, c. 37 , is made clear in s. 63  of the YESAA .  In addition to the principle of a single assessment, Chapter 12 (ss. 12.14.1.2  and 12.14.3.2 ) and its implementing legislation (ss. 82(1) 83(1)  and 84(1) ) confirm the principle of prior assessment (prior to the authorization of any project).

[180]                      The process for which Chapter 12 lays the foundations involves two main organs:  the Yukon Development Assessment Board and all the “designated offices” at the local level.  The YESAA also refers to them as the “Board” and the “designated offices”.  The membership of the Board is established in s. 8  of the YESAA .  The basis for its membership is equal representation.  The Board’s Executive Committee consists of one member nominated by the Council for Yukon Indians, one member nominated by the government and a chairperson appointed by the Minister after consultation with the first two members.  The Minister then appoints additional members such that, excluding the chairperson, half the members are nominees of the Council for Yukon Indians and the other half are nominees of the government.  As for the designated offices, they are, pursuant to the YESAA , outposts of the Board.  Their staff “shall be composed of employees of the Board assigned to that office by the Board” (s. 23(1) ).

[181]                      Chapter 12 establishes two broad categories of assessments — mandatory assessments and optional assessments — which are conducted upon request by the government or by a First Nation, but when the request is made by a First Nation, the government’s consent is required, with some exceptions that are subject to specific conditions (ss. 12.8.1.4, 12.8.1.5, 12.8.1.8, 12.8.1.9 and 12.8.1.10 of the Final Agreement, and s. 60  of the YESAA ).  The Board is responsible for optional assessments.  It is possible to simply except a project from assessment (s. 47(2)  YESAA ).  As for mandatory assessments, they are the responsibility of the designated office for the assessment district in which the project is to be undertaken, or of the Board if the assessment district office refers the assessment to it (s. 50(1)  YESAA ) or if such projects have been classified by way of regulations as requiring submission to the Board (s. 122(cYESAA ).  In short, if a project (1) is not excepted from assessment, (2) is not the subject of an accepted optional assessment, or (3) is not one that is required by regulations to be assessed by the Board or that has been referred to the Board by the office for the project’s assessment district, it will be assessed by the assessment district office.

[182]                      If the environmental and socio-economic assessment process provided for in Chapter 12 — and in fact in the YESAA , which implements the process — had applied at the time of the events in this case, Mr. Paulsen’s application would have had to be assessed by the designated office for the Mayo assessment district, which was established along with five others (for a total of six) by order of the Minister under s. 20(1)  of the YESAA .  Projects like the one in question in Mr. Paulsen’s application were neither excepted by regulations nor required to be assessed by the Board.  Section 2 of the Assessable Activities, Exceptions and Executive Committee Projects Regulations, SOR/2005-379, refers to Schedule 1 to those regulations concerning “activities that may . . . be made subject to assessment” within the meaning of s. 47  of the YESAA .  The following activity is listed as Item 27 of Part 13 — entitled “Miscellaneous” — of Schedule 1:

On land under the administration and control of the Commissioner of Yukon or on settlement land, the construction, establishment, modification, decommissioning or abandonment of a structure, facility or installation for the purpose of agriculture, commercial recreation, public recreation, tourist accommodation, telecommunications, trapping or guiding persons hunting members of a species prescribed as a species of big game animal by a regulation made under the Wildlife Act, R.S.Y. 2002, c. 229.

[183]                      Finally, s. 5 of the Assessable Activities, Exceptions and Executive Committee Projects Regulations provides that “[p]rojects for which proposals are to be submitted to the executive committee under paragraph 50(1)(a) of the [YESAA ]  are specified in Schedule 3.”  Since nothing in that schedule corresponds to Mr. Paulsen’s application, it must be concluded that the assessment would have been the responsibility of the Mayo designated office, although that office could have referred the project to the Board.

[184]                      Since Mr. Paulsen’s project falls into the category of projects for which an assessment by an assessment district office is mandatory, it is possible to give a precise answer to the question of what measures the respondents would have been entitled to had the letter of the process provided for in Chapter 12 of the Final Agreement applied in the case of Mr. Paulsen’s application.

[185]                      It should first be observed that neither the Final Agreement nor the YESAA  provides for direct participation by the First Nation in the assessment itself.  It is only through the Council for Yukon Indians, or more precisely through those of the Board’s members assigned to the Mayo office who were appointed after being nominated by the Council, that the First Nation would have participated in the assessment of Mr. Paulsen’s application.  Furthermore, no provisions regarding the proportion of Aboriginal assessors required for assessments by the designated offices can be found either in the final agreements or in the YESAA .  All that we know in this respect is that the Final Agreement and the YESAA  require equal representation in the Board’s overall membership.

[186]                      Regarding the right of interested parties, not to actively take part in the assessment itself, but to be heard, the Final Agreement provides that “[i]n accordance with the Development Assessment Legislation, a Designated Office . . . shall ensure that interested parties have the opportunity to participate in the assessment process” (s. 12.6.1.3).  Moreover, as I mentioned above, the organs — the First Nations, the renewable resources council and the Fish and Wildlife Management Board — that make up the co‑management framework for fish and wildlife established in Chapter 16 of the Final Agreement have standing as interested parties to participate in public proceedings of any agency, board or commission on matters that affect the management and conservation of fish and wildlife and their habitats in the traditional territory in question (ss. 16.5.3, 16.6.11 and 16.7.13).  Also, s. 55(1)(b) of the YESAA  provides that “[w]here a proposal for a project is submitted to a designated office under paragraph 50(1) (b), the designated office shall . . . determine whether the project will be located, or might have significant environmental or socio-economic effects, in the territory of a first nation.”  The word “territory” is defined as follows in s. 2(1)  of the YESAA :  “in relation to a first nation for which a final agreement is in effect, that first nation’s traditional territory and any of its settlement lands within Yukon that are not part of that traditional territory”.  After it has been determined under s. 55(1) (b) that the project will be so located or that it might have such effects, s. 55(4)  of the YESAA  applies.  It reads as follows:  

Before making a recommendation . . . a designated office shall seek views about the project, and information that it believes relevant to the evaluation, from any first nation identified under paragraph (1)(b) and from any government agency, independent regulatory agency or first nation that has notified the designated office of its interest in the project or in projects of that kind.

Therefore, under the process provided for in Chapter 12 of the Final Agreement and in the YESAA , the Little Salmon/Carmacks First Nation would have had the right only to be heard in the assessment of Mr. Paulsen’s application, and not to actively take part in it by delegating assessors.

[187]                      This, therefore, is the collective consultation measure to which the respondents would have been entitled in the case of Mr. Paulsen’s application had the process provided for in Chapter 12 of the Final Agreement and implemented by the YESAA  applied to it.  This should enable us now to answer the ultimate question in the case at bar:  whether, given that the letter of that process does not apply, the respondents could receive the benefit of the spirit of the process, as was their right under the transitional provisions of Chapter 12 of the Final Agreement.  For this purpose, we must reiterate that although those transitional provisions did impose a particular responsibility on the Crown party, they were nevertheless not silent with respect to the participation of the Aboriginal party.  Thus, s. 12.3.6 refers in this regard to efforts on the part not only of “government”, but of the parties to the Umbrella Agreement.

(2)  Transitional Law:  Any “Existing Process” Before the Coming Into Force of the YESAA 

[188]                      As far as Mr. Paulsen’s application is concerned, the “existing process” within the meaning of the transitional law provisions, that is, of ss. 12.3.6 and 12.19.5 of the Final Agreement, was the process provided for in the Environmental Assessment Act, S.Y. 2003, c. 2, and Yukon’s 1991 agriculture policy, which, moreover, also referred to the environmental legislation (Agriculture for the 90s:   A Yukon Policy (1991) (the “agriculture policy”), Section II, at para. 6(1)).  Since the parties did not rely on that Act, I will merely mention that the assessment provided for in it was completed, but more than five months after the date of the decision on Mr. Paulsen’s application, despite the fact that it was a mandatory prior assessment.

[189]                      Under the 1991 agriculture policy, Mr. Paulsen’s application first had to undergo a “prescreening” by the Land Claims and Implementation Secretariat, the Lands Branch and the Agriculture Branch.  The prescreening process involved determining whether the application was eligible for consideration, and in particular whether the application was complete, whether the land in question was available, whether that land was under territorial jurisdiction, whether there was a possibility that the land would be subject to Aboriginal land claims, whether the land had agronomic capability and, more specifically, whether the application was, at first glance, consistent with the policy then in effect.

[190]                      Mr. Paulsen’s application then had to undergo a more technical review by the Agriculture Land Application Review Committee (“ALARC”).  ALARC is a cross‑sector, interdepartmental committee that, among other things, reviews the farm development plan that every applicant for agricultural land must submit (agriculture policy, Section II, at subpara. 9(1)(c)).  ALARC’s review of Mr. Paulsen’s application was originally scheduled for June 26, 2002, but it could not proceed on that date because the applicant had not yet submitted a farm development plan.

[191]                      On June 10, 2002, an analysis by the Agriculture Branch showed that if Mr. Paulsen’s application were accepted as configured, it would not represent the most efficient use of the land.  On October 20, 2003, Mr. Paulsen reconfigured the parcel in question in his application.  On February 24, 2004, ALARC recommended that his application proceed to an assessment by the Land Application Review Committee (“LARC”).

[192]                      LARC is a body whose membership consists of representatives of the Yukon government and, depending on the case, of Yukon First Nations, Yukon municipalities and/or the federal Department of Fisheries and Oceans (Land Application Review Committee (LARC):  Terms of Reference, Section 4.0:  Membership/Public Participation, A.R., vol. II, at p. 29).  It is chaired by a territorial government official.  A First Nation will be represented on LARC if, as was the case here, the application to be reviewed has potential consequences for the management of its “traditional territory”.

[193]                      LARC’s mandate is, in particular, to “review matters concerning land applications from a technical land-management perspective, in accordance with legislation, First Nation Final & Self Government Agreements and criteria in specific land application policies” (Land Application Review Committee (LARC):  Terms of Reference, Section 6.0:  Land Application & Policy Development Procedures — Mandate, A.R., vol. II, at p. 32).

[194]                      A notice concerning Mr. Paulsen’s application was published on March 26, 2004, and the public were invited to submit written comments within 20 days.  On April 28, 2004, the Agriculture Branch sent a summarized version of the application to the Little Salmon/Carmacks First Nation (A.R., vol. II, at p. 6) together with a letter notifying the First Nation that the application was to be reviewed by LARC and asking it to submit its written comments within 30 days.  The First Nation was also sent an information package, which included notice that the LARC meeting was scheduled for August 13, 2004.

[195]                      On July 27, 2004, Susan Davis, the Director of Land and Resources of the Little Salmon/Carmacks First Nation, sent Yukon’s Lands Branch a letter in which she expressed the First Nations’ concerns about Mr. Paulsen’s application (A.R., vol. II, at p. 22).  Those concerns were threefold.  First of all, the First Nation was concerned about the impact of the application on the trapline.  It was also concerned about the anticipated impact on settlement land under its comprehensive land claim agreement, and in particular on two parcels of site specific settlement land (a concept referred to above) as well as on the cabin of the holder of the trapline concession, which was located on one of those parcels.  Finally, the First Nation asked the Yukon government to take into consideration the fact that there might be sites of heritage or archaeological interest, including a historical trail, on the land in question in the agriculture land application.

[196]                      LARC met to review Mr. Paulsen’s application on August 13, 2004.  For reasons that are not explained in the record of this case, the Little Salmon/Carmacks First Nation, without notifying the other members in advance, did not attend the meeting and did not request an adjournment of the August 13, 2004 review, to which it had been invited as a member of LARC.  However, it can be seen from the minutes of that meeting that even though no representatives of the First Nation attended, its concerns had been taken into account even before the meeting.  The following passages are relevant:

The original rectangular parcel was reconfigured in October, 2003.  The NRO [Natural Resources Officer] inspection report in April this year recommended it be reconfigured again to remove a portion, which is a potential timber allocation area for point source premits [sic].  Opposition from the First Nation has caused the abandonment of that plan.

. . .

Little Salmon Carmacks First Nation [LSCFN] express concern that the application is within Trapline Concession Number 143, held by an elder [Johnny Sam].  Forestfire burns have impacted this trapline, and the only area left is a small strip of land between the Klondike Highway and the Yukon River, which is considered to be suitable land for farming.  As a result of the report, there have been several agriculture land applications requesting land in the area for raising livestock and building houses.  The combination of agriculture and timber harvesting impacts on this already damaged trapline would be a significant deterrent to the ability of the trapper to continue his traditional pursuits.  There are two site specifics, personal/traditional use areas considered to be LSCFN settlement lands in the area in question, S‑4B and S‑127B.  Both of these locations are in close proximity to the point source timber permit application.  The impact on these sites and users would be the loss of animals to hunt in the area.  S-4B is also the site of Concession 143’s base camp and trapper cabin.

. . .

Other LSCFN concerns relatied [sic] to cultural sites:  There are potential areas of heritage and cultural interests which may be impacted by point source timber harvesting.  An historic First Nation trail follows the ridge in the area.  [A]t present these sites have not been researched or identified, and there would need to be an archaeological survey carried out in order to confirm the prescence [sic] or lack thereof of any such sites.

Environment advised they walked the site and discovered an old trap on top of the bluff, facing the Yukon River.  The owner of Trapline #143 will have the right to seek compensation.  An appropriate 30-metre setback is recommended from the bluff.  There was evidence of bears and moose.  There will be some loss of wildlife habitat in the area, but it is not significant.

. . .

Recommendation:  Approval in principle.  Setback from the bluff 30 meters . . . .  Subdivision approval will be required.  Trapper, based on reduced trapping opportunities, has opportunity to seek compensation.

[197]                      On September 2, 2004, the territorial government’s archaeologist reported that no evidence of prehistoric artifacts had been found on the land in question in the agriculture land application, but as a precaution he also recommended a 30‑metre buffer between the bluff and the land that was to be transferred.

[198]                      The territorial government’s conduct raises questions in some respects.  In particular, there is the fact that the appellant David Beckman, in his capacity as Director of Agriculture, did not notify the respondent First Nation of his decision of October 18, 2004 until July 27, 2005.  Under s. 81(1) of the YESAA , the designated office and, if applicable, the executive committee of the Board would have been entitled to receive copies of that decision and, one can only assume, to receive them within a reasonable time.  Here, the functional equivalent of the designated office is LARC.  Even if representatives of the respondent First Nation did not attend the August 13 meeting, it would be expected that the Director of Agriculture would inform that First Nation of his decision within a reasonable time.  Nonetheless, the time elapsed after the decision did not affect the quality of the prior consultation.

[199]                      The territorial government’s decision to proceed with Mr. Paulsen’s application at the prescreening stage despite the requirement of consultation in the context of the respondent First Nation’s fish and wildlife management plan was not an exemplary practice either.  In that respect, Yukon’s 1991 agriculture policy provided that “[a]pplications to acquire land for agriculture will be reviewed by the Fish and Wildlife Branch to safeguard wildlife interests”, that “[m]easures will be taken to avoid overlap between allocation of lands for agriculture and key wildlife habitat” and that, in particular, all “key wildlife habitat will be excluded from agricultural disposition except where the Fish and Wildlife Branch determines that adverse effects upon wildlife interests can be successfully mitigated” (Section II, subpara. 6(3)(b)).  As we have seen, however, Susan Davis did not express concern about this in her letter of July 27, 2004 to Yukon’s Lands Branch.  And as can be seen from the minutes of the August 13, 2004 meeting, the concerns of the Little Salmon/Carmacks First Nation with respect to resource conservation were taken into consideration.  Also, the required consultation in the context of the fish and wildlife management plan was far more limited than the consultation to which the First Nation was entitled in participating in LARC, which was responsible for assessing the specific project in issue in this appeal.  Finally, the First Nation, the renewable resources council and the Minister had not agreed on a provisional suspension of the processing of applications for land in the area in question.

[200]                      Despite these aspects of the handling of Mr. Paulsen’s application that are open to criticism, it can be seen from the facts as a whole that the respondents received what they were entitled to receive from the appellants where consultation as a First Nation is concerned.  In fact, in some respects they were consulted to an even greater extent than they would have been under the YESAA .  As we saw above, the only right the First Nation would have had under the YESAA  was to be heard by the assessment district office as a stakeholder (s. 55(4) ).  That consultation would have been minimal, whereas in the context of the 1991 agriculture policy, the First Nation was invited to participate directly in the assessment of Mr. Paulsen’s application as a member of LARC.

[201]                      It is true that the First Nation’s representatives did not attend the August 13, 2004 meeting.  They did not notify the other members of LARC that they would be absent and did not request that the meeting be adjourned, but they had nonetheless already submitted comments in a letter.

[202]                      Thus, the process that led to the October 18, 2004 decision on Mr. Paulsen’s application was consistent with the transitional law provisions of Chapter 12 of the Final Agreement.  There is no legal basis for finding that the Crown breached its duty to consult.

III.    Conclusion

[203]                      Whereas past cases have concerned unilateral actions by the Crown that triggered a duty to consult for which the terms had not been negotiated, in the case at bar, as in the Court’s recent decision regarding the James Bay and Northern Québec Agreement, the parties have moved on to another stage.  Formal consultation processes are now a permanent feature of treaty law, and the Final Agreement affords just one example of this.  To give full effect to the provisions of a treaty such as the Final Agreement is to renounce a paternalistic approach to relations with Aboriginal peoples.  It is a way to recognize that Aboriginal peoples have full legal capacity.  To disregard the provisions of such a treaty can only encourage litigation, hinder future negotiations and threaten the ultimate objective of reconciliation. 

[204]                      The appellants seek a declaration that the Crown did not have a duty to consult under the Final Agreement with respect to Mr. Paulsen’s application.  Their interpretation of the Final Agreement is supported neither by the applicable principles of interpretation nor by either the context or the provisions of the Final Agreement.  The cross-appellants argue that the common law duty to consult continued to apply despite the coming into effect of the Final Agreement.  As I explained above, it is my view that there is no gap in the Final Agreement as regards the duty to consult.  Its provisions on consultation in relation to the management of fish and wildlife were in effect.  And the Little Salmon/Carmacks First Nation had in fact submitted comments in the process provided for in that respect.  Moreover, the administrative law rights of Johnny Sam are governed neither by the common law duty to consult nor by the Final Agreement.  Although the Little Salmon/Carmacks First Nation’s argument that it had a right to be consulted with respect to Mr. Paulsen’s application is valid, the source of that right is not the common law framework.  The fact is that the transfer to Mr. Paulsen constituted an agricultural development project that was subject to Chapter 12 of the Final Agreement and that that chapter’s transitional provisions established the applicable framework.

[205]                      In this case, given that Mr. Paulsen’s application would have been subject to a mandatory assessment by the local assessment district office, the fact that recourse was had to the existing process to assess the application supports a conclusion that the actual consultation with the respondents was more extensive than the consultation to which they would have been entitled under the YESAA .

[206]                      For these reasons, I would dismiss the appeal and the cross-appeal, both with costs.

Appeal and cross‑appeal dismissed with costs.

Solicitors for the appellants/respondents on cross‑appeal:  Lawson Lundell, Vancouver.
Solicitors for the respondents/appellants on cross‑appeal:  Pape Salter Teillet, Vancouver.
Solicitor for the intervener the Attorney General of Canada:  Attorney General of Canada, Vancouver.
Solicitor for the intervener the Attorney General of Quebec:  Attorney General of Quebec, Québec.
Solicitor for the intervener the Attorney General of Newfoundland and Labrador:  Attorney General of Newfoundland and Labrador, St. John’s.
Solicitors for the interveners the Gwich’in Tribal Council and Sahtu Secretariat Inc.:  Gowling Lafleur Henderson, Ottawa.
Solicitors for the intervener the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority:  Gowling Lafleur Henderson, Montréal.
Solicitors for the intervener the Council of Yukon First Nations:  Boughton Law Corporation, Vancouver.
Solicitors for the intervener the Kwanlin Dün First Nation:  Arvay Finlay, Vancouver.
Solicitors for the intervener Nunavut Tunngavik Inc.:  Rosenbloom Aldridge Bartley & Rosling, Vancouver.
Solicitor for the intervener the Tlicho Government:  John Donihee, Calgary.
Solicitors for the intervener the Te’Mexw Nations:  Janes Freedman Kyle Law Corporation, Victoria.
Solicitors for the intervener the Assembly of First Nations:  Hutchins Caron & Associés, Montréal.

 

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Ke-Kin-Is-Ugs v. British Columbia (Minister of Forests) [2008] B.C.S.C. 1505

Date Issued: 

Ke-Kin-Is-Uqs, also known as Judith Sayers,

Chief Councillor suing on her own behalf and

on behalf of all members of the Hupacasath First Nation,

the Hupacasath First Nation Council,

and the Hupacasath First Nation                                                                                   Petitioners

 

v.

 

Minister of Forests of the Province of British Columbia,

The Chief Forester, and Island Timberlands LP                           Respondents

 

Indexed as:  Ke-Kin-Is-Ugs v. British Columbia (Minister of Forests)

Neutral citation:  2008 BCSC 1505.

2008:  May 28, 29, 30; 2008:  July 2, 3.

Present:  P.R.A. Grant, M.L. Ross, J. Huberman, T.F. Isaac, L. Martz

Before: The Honourable Madam Justice Lynn Smith

 

NATURE OF THE APPLICATION

[1]               The petitioners are an Aboriginal First Nation (“Hupacasath” or “HFN”) and its Chief Councillor.  They obtained an Order of this Court in 2005 requiring the provincial Crown (Minister of Forests) to consult with them regarding Crown decisions affecting their asserted traditional territory on Vancouver Island, and imposing certain conditions for a two year period on the use of some land within that asserted territory owned by Island Timberlands LP.  The petitioners ask the Court to direct that an independent mediator be appointed to assist with further consultation and accommodation between the petitioners and the respondent Minister of Forests and Range (“MOFR” or “the Minister”).  They also seek an order re-imposing conditions on the use of the Island Timberlands lands for a six month period.  The lands (which I will refer to as the “Removed Lands”) were formerly managed under Tree Farm Licence 44 (“TFL 44”) but were released from TFL 44 by decision of the Minister in 2004 (the “Removal Decision”).  Finally, the petitioners ask for costs.  Both the Minister and Island Timberlands oppose the granting of any relief.

[2]               The petitioners express concern that the Removed Lands, forming part of their asserted traditional territory and previously in TFL 44, will be developed and sold to others, or will be used for timber operations, in a way which will seriously affect their aboriginal rights.  Island Timberlands does not deny that it may at some time in the future develop the Removed Lands for “higher and better use” and cease to use them for forestry.  Nor is it disputed that forestry practices on private lands are regulated in a different and considerably more forgiving way than they are regulated under Tree Farm Licences.  Mr. Grant, counsel for the petitioners, referred on several occasions to the petitioners’ fear that much of their traditional territory will become “cottage country”, with the Hupacasath losing forever the access they have had to sacred places, to wildlife and fish, and to materials including cedar that they use as part of their traditional way of life.  As well, the petitioners express concern about forest management practices that may reduce the wildlife habitat available on the Removed Lands, and may also affect the availability of wildlife on adjacent Crown lands which form part of the HFN asserted traditional territory.

[3]               The Crown, on the other hand, says that it has complied with the previous Order, that it is involved with the petitioners in treaty negotiations and ongoing discussions about other issues, and that there is no basis for a further order directing it to consult with the petitioners or requiring the appointment of a mediator.  Both the Crown and Island Timberlands argue that, since the lands in question have long been privately owned, whatever aboriginal rights pertain to those lands are weak; accordingly, while there may be a duty to consult at a low level, there is no duty to accommodate.  Both respondents argue that the Court lacks jurisdiction to re-impose conditions on the use of the Removed Lands.  Island Timberlands submits that any further order restricting it in the use of its lands would be unprecedented and inconsistent with the system of land tenure in this province.

[4]               The petitioners also argue that the financial interest of British Columbia Investment Management Corporation (an entity controlled by the Crown) in Island Timberlands LP is a matter that should have been disclosed and that bears on the issues raised by this application.

[5]               I note one procedural matter:  by consent of all parties the style of cause in this matter has been amended to add Island Timberlands LP as a party in place of Brascan Corporation.

BACKGROUND

[6]               It is necessary to review briefly the findings made in previous decisions in this matter on December 6, 2005 (“the 2005 Decision”), and February 15, 2008 (“the Interim Decision”).

December 6, 2005 Decision

[7]               The petitioners’ original application was heard July 11, 12, 13, 14 and 15, 2005.  In it, the petitioners sought judicial review, alleging that the provincial Crown (Minister of Forests and the Chief Forester) had been in breach of its constitutional duty to consult with them regarding the Crown’s decisions (a) to permit removal of lands owned by the respondent (then Brascan, now Island Timberlands LP) from TFL 44, and (b) to amend the allowable annual cut for TFL 44.  The petitioners also alleged that the Crown had acted inconsistently with relevant statutes.  They sought orders quashing or suspending those two decisions and referring the matter for reconsideration after there had been consultation and compliance with the statutes.

[8]               The position of both respondents was that there was no duty on the Crown to consult and if there was any duty it had been met.  Further, the respondents argued that, if there had been any failure to abide by a duty to consult, the petitioners should not be granted relief in all of the circumstances.  They emphasized that the lands were not Crown lands, but were privately owned.

[9]               The outcome of the application was an order declaring that the Crown had been in breach of its constitutional duty to consult with respect to the Removal Decision, and requiring it to do so, but allowing the Removal Decision to stand.  In the Order (entered January 19, 2006) certain conditions were imposed on the use of the Removed Lands for a period of up to two years while consultations were completed.  It was unnecessary to deal with the allegations of statutory breach.  The amendment to the allowable annual cut was allowed to stand, as the Crown had fulfilled its duty to consult in that regard.

[10]           I will not review in detail the evidence, findings of fact or analysis of the law in the 2005 decision, reported at 2005 BCSC 1712(CanLII), 51 B.C.L.R. (4th) 133 (“the 2005 Decision”).  I will, however, summarize the findings of fact with respect to the petitioners’ claim.

[11]           None of the parties appealed the 2005 Decision.

Findings of Fact in the 2005 Decision

[12]           The Removed Lands are located on Vancouver Island, around Port Alberni, and comprise about 70,000 hectares.  They are largely within the area that the HFN claims as its traditional territory.  The Removed Lands have been privately owned since 1887 when the Dominion of Canada transferred a tract of land to the Esquimalt and Nanaimo Railway Company.  Canada had received the lands from the British Columbia government in 1884 under the Settlement Act (An Act relating to the Island Railway, the Graving Dock and Railway Lands of the Province), S.B.C. 1884, c. 14.  Roughly 40% of the Removed Lands are not subject to any competing claim from other First Nations.

[13]           Although Tree Farm Licences (“TFL”) usually relate to logging by private entities on Crown land, the Forest Act, R.S.B.C. 1996, c. 157, also permits a TFL to cover private land.  In some instances, private land owners have received incentives from the Crown to bring their land under a TFL.  Once private land is under a TFL the land or an interest in the land cannot be alienated to third parties without the prior written consent of the MOFR (s. 54.7 of the Forest Act) and the land cannot be used for other non-forestry purposes (s. 2.1 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159).  The permission of the MOFR must be obtained before land is removed from a TFL (s. 39.1 of the Forest Act).

[14]           The Removed Lands had been brought voluntarily into TFL 44 in about 1945 because the then owner of the Removed Lands held a TFL covering adjacent Crown land and agreed to have the Removed Lands brought under that TFL.

[15]           Members of the HFN have used the land since prior to European contact for hunting wildlife (including deer and marmot), gathering food and medicinal plants, fishing for trout and salmon (a mainstay of their diet), and harvesting red and yellow cedar for numerous uses, including the building of houses and canoes.  The Hupacasath traditionally visited sacred sites throughout their asserted traditional territory for spiritual purposes, and continue to do so.  The petitioners’ evidence is that their sacred sites are secret, specific to families, and must be secluded from, and untouched by, other human beings.  One particularly important sacred site is Grassy Mountain, which is in the Removed Lands and has never been logged.

[16]           The total HFN claimed traditional territory encompasses most of the Removed Lands and adjacent Crown land, totalling about 232,000 hectares in central Vancouver Island.  There has been no surrender of aboriginal rights or title by treaty.  About 50% of the HFN claimed traditional territory is not subject to any competing claim.  With respect to the other 50%, the Tseshaht, Cape Mudge, Comox, Qualicum, Snuneymuxw, Te’mexw, Uchucklesaht and Ucluelet First Nations have advanced claims and indicated consultative boundaries that overlap with some portions of the HFN claimed territory.

[17]           The HFN are in the treaty negotiation process.  They were at Stage 4 as of July 2005 and they are still at Stage 4.  Their land selection, provided to the provincial Crown in 1998, includes the Removed Lands.

[18]           Beginning in about 1995, there were consultations between the provincial Crown, the HFN and the then owner of the land, Weyerhaeuser, regarding forestry activity within TFL 44, including both Crown lands and the Removed Lands.  It did not appear that the parties in their consultation distinguished between the Crown lands and the Removed Lands.  The evidence was that the consultation processes dealt with:  protecting and enhancing fish habitat and rebuilding salmon runs; protecting and enhancing water quality; protecting sacred sites; protecting and managing red and yellow cedar and maintaining old growth trees; protecting culturally modified trees; protecting and enhancing bird and wildlife habitat; protecting uncommon tree and plant species such as Yew which are used for cultural and medicinal purposes; and providing access to the territory for HFN members to exercise spiritual practices and aboriginal hunting and fishing rights.  Chief Sayers deposed that by 2001 the process developed by the HFN and Weyerhaeuser was such that intervention by the provincial Crown was rarely required.

[19]           On November 30, 2000, Weyerhaeuser entered into a Memorandum of Understanding with the HFN.  It included a consultation protocol regarding the Ash River lands (now part of the Removed Lands).  The Ash River lands at that time were being transferred from the Crown to Weyerhaeuser.  Although the contents of the Memorandum of Understanding (“the Ash River MOU”) were not described in the 2005 Decision, it is convenient to do so at this juncture.  In the Ash River MOU, the company agreed to allow HFN members access to the Ash River Lands for the purpose of exercising their “Interests”, with the caveat that the company could, in its sole discretion, temporarily restrict access for reasons related to active logging and safety.  The “Interests” are defined as “the cultural and spiritual activities that members of the First Nation will continue to exercise on the Ash River Lands under the terms of this Agreement, such activities to include hunting, fishing, and gathering, for cultural and spiritual purposes, and for sacred/spiritual practices.”  As well, Weyerhaeuser agreed to consult with HFN when planning logging activities within the Ash River lands, with some detailed parameters set out for the consultation.  It agreed that if its future uses of the lands changed from growing and harvesting trees on an industrial basis, it would consult with HFN and give careful consideration to the HFN concerns, advice or recommendations before implementing a change of use, and that “[a]ny change of use by the Company will not interfere with the First Nation’s exercise of its Interests as defined in this agreement”.

[20]           The petitioners filed a writ claiming aboriginal title to their traditional territory, including the Removed Lands, on December 10, 2003.

[21]           Weyerhaeuser wrote to the Minister on December 5, 2003 requesting removal of its private lands from TFL 44.  The HFN was aware that the company was pursuing removal of the lands, but there was no consultation or attempted consultation by the Crown with the HFN regarding Weyerhaeuser’s proposal to remove the lands from TFL 44.

[22]           On July 9, 2004, the Minister of Forests made the Removal Decision granting permission (pursuant to s. 39.1 of the Forest Act) for the removal of the lands from TFL 44.  The then Minister, the Honourable Michael de Jong, included a number of terms and conditions in his letter to Weyerhaeuser.  Those conditions are set out in detail in the 2005 Decision at para. 52.

[23]           The HFN gave notice on July 19, 2004, shortly after it received notice of the Removal Decision, that it considered that the decision infringed its aboriginal rights and title.

[24]           Brascan purchased all of Weyerhaeuser’s coastal forestry assets and operations in December 2004.  The fact that the privately owned lands had been removed from the regulatory regime applying to TFL 44 was an important factor in Brascan’s decision to enter into the transaction.  The petitioners were unsuccessful in an application for an order enjoining the completion of the sale pending consultation and accommodation (Hupacasath First Nation v. British Columbia (Minister of Forests)2005 BCSC 345 (CanLII), 2 C.N.L.R. 138).

[25]           After the purchase, Brascan transferred the Removed Lands to Island Timberlands GP Limited to be held beneficially for Island Timberlands LP.

Applicable Legal Principles

[26]           I will not repeat what was set out in the 2005 Decision regarding the applicable legal principles (paras. 74-138), but will summarize them briefly.

[27]           The respondents at that time argued that because the Removed Lands were privately owned, the circumstances in this case were distinguishable from those in Haida Nation v. British Columbia (Minister of Forests)2004 SCC 73, [2004] 3 S.C.R. 511 (Haida Nation), and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)2004 SCC 74 (CanLII), [2004] 3 S.C.R. 550 (Taku), the two leading Supreme Court of Canada cases on the Crown’s duty to consult with aboriginal peoples, and no duty to consult existed.  I concluded that the honour of the Crown was at stake in its decision to permit removal of the lands from the regulatory regime pertaining to TFL 44 in these unique circumstances, and that there could be a duty to consult with respect to decisions affecting privately owned lands.  I concluded that there was a duty to consult and attempt accommodation both with respect to the Crown lands in HFN asserted traditional territory and the Removed Lands, which had previously formed part of TFL 44.

[28]           I reached no conclusion regarding the continued existence of aboriginal title with respect to land held in fee simple, observing that a review of the law indicated that that question has not yet been resolved by the Supreme Court of Canada.

[29]           With respect to the analytical framework, a summary is set out in the 2005 Decision at paras. 137-138:

137     To summarize the effect of the judicial authorities, they show a three-step process for considering an alleged failure of the Crown to consult with and accommodate aboriginal people. 

138     First, in determining whether a duty to consult arises, the court must assess whether the Crown has knowledge, real or constructive, of the potential existence of the aboriginal rights. Second, the court must determine if the Crown contemplated conduct that might adversely affect those rights. If there is such knowledge and contemplated conduct, then the court must take the third step and consider the scope and content of the duty to consult and accommodate, and whether that duty has been met. Determining the scope and content of the duty necessitates a preliminary assessment of the strength of the case supporting the existence of the right, and a consideration of the seriousness of the potentially adverse effect upon the rights claimed.

[30]           I found that, as a result of the Removal Decision, the Crown had significantly reduced its ability to control activities on the Removed Lands and that the consequences would be felt by the HFN both in connection with their exercise of aboriginal rights on the Removed Lands (including access to sacred sites, food gathering, use of cedar and other plants, and hunting, which had previously been available with permission of the owners), and in connection with their exercise of aboriginal rights on the neighbouring Crown land in TFL 44.

Conclusions on the 2005 Application

[31]           I found that the Crown had knowledge of the existence of potential aboriginal rights pertaining to the Removed Lands and to the surrounding Crown lands, and had contemplated conduct that could adversely affect aboriginal rights.  Accordingly, the Crown had a duty to consult.

[32]           Making a preliminary assessment of the strength of the HFN claim, and the seriousness of the potential adverse impact, I reached the conclusions set out in the 2005 Decision at paras. 244-275.  These conclusions will be referred to later in more detail, but in summary they were:

(1)      With respect to the Crown land, the HFN had shown a strong prima facie case for aboriginal rights including title to the portion without overlapping claims, and a somewhat weaker case for aboriginal title where there were overlaps;

(2)      With respect to the Removed Lands, the HFN had shown a prima facie case for aboriginal rights and possibly aboriginal title, with a weak case for aboriginal title where there were overlapping claims;

(3)      The potential effect of the Removal Decision on the claimed aboriginal rights was modest with respect to the Crown lands;

(4)      The potential effect of the Removal Decision on the claimed aboriginal rights was serious with respect to the Removed Lands;

(5)      The duty to consult was at a moderate level with respect to the Crown lands, and at a lower level with respect to the Removed Lands.

[33]           Conclusions with respect to the Crown’s duty were set out at paras. 274-275:

274     The Crown’s duty with respect to alleged aboriginal rights on the Removed Land is at a low level and does not require “deep consultation”. It does require informed discussion between the Crown and the HFN in which the HFN have the opportunity to put forward their views and in which the Crown considers the HFN position in good faith and where possible integrates them into its plan of action. The Crown has not met that duty.

275     The duty on the Crown with respect to the effect of the removal decision on aboriginal rights asserted on Crown land is higher, and requires something closer to “deep consultation”. On the evidence, the Crown did not meet that duty.

[34]           I found that the Crown had not fulfilled its duty to consult with respect to the Removal Decision.  However, because the evidence showed potentially significant prejudice to Brascan/Island Timberlands if the Removal Decision were set aside or suspended in its effects, it was allowed to stand.  The Minister’s conditions imposed in the Removal Decision were incorporated into the court order and were effective for the earlier of two years from the date of entry of the order or until the Crown completed consultations with the HFN.

[35]           The Order was entered on January 19, 2006, after the terms were settled before a Master, as follows:

THIS COURT DECLARES that:

1.         the Respondent Minister of Forests had, prior to the removal decision on July 9, 2004 (the “Removal Decision”), and continues to have, a duty to consult with the Hupacasath First Nation (“Hupacasath”) in good faith and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage Tree Farm License 44 (“TFL 44”) in accordance with the public interest, both aboriginal and non-aboriginal;

2.         the removal decision on July 9, 2004 made without consultation with the Hupacasath was inconsistent with the honour of the Crown in Right of British Columbia in its dealings with the Hupacasath;

3.         the Chief Forester had, prior to the August 26, 2004 decision to amend the allowable annual cut for TFL 44, and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal;

4.         making the Removal Decision without consultation with the Hupacasath was inconsistent with the honour of the Crown in right of British Columbia in its dealings with the Hupacasath; and

5.         the Chief Forester had, prior to the August 26, 2004 decision to amend the allowable annual cut for TFL 44 (the “AAC Decision”), and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal and non-aboriginal.

THIS COURT ORDERS that:

6.         the Crown and the Petitioners will attempt to agree on a consultation process and if they are unable to agree on a process, they will go to mediation.  If mediation fails, the Crown and the Petitioners may seek further directions from the Court;

7.         the Crown and the Petitioners will provide to each other such information as is reasonably necessary for the consultation to be completed and the Crown and the Petitioners will attempt to agree on the document exchange and if they are unable to agree, the matter will go to mediation;

8.         the terms in this paragraph 8 apply to Brascan, Island Timberlands and their successors in interest and will be in effect for the earlier of two years from the date of entry of this Order or until the Crown has completed consultation with the Hupacasath:

(a)      Brascan will maintain the current status of “managed forest” on the privately owned lands removed from TFL 44 (the “Removed Lands”) and will keep the Removed Lands under the Private Managed Forest Land Act, S.B.C. 2003, c. 88, subject to all of its provisions and regulations governing planning, soil conservation, harvesting rate and reforestation;

(b)      Brascan will maintain variable retention and stewardship zoning on old growth areas in the Removed Lands;

(c)        Brascan will fulfill its commitments outlined in the Minister of Forest’s letter dated July 9, 2004 regarding maintenance of water quality on the Removed Lands;

(d)      Brascan will maintain all current wildlife habitat areas on the Removed Lands;

(e)      Brascan will maintain ISO or CSA certifications and will continue to subject the Removed Lands to the public advisory process as per CSA standards;

(f)         Brascan will maintain current access for aboriginal groups to the Removed Lands; and

(g)      Brascan will provide to the Hupacasath seven days notice of any intention to conduct activities on the land which may interfere with the exercise of aboriginal rights asserted by the Hupacasath;

9.         the parties will exchange positions as to what kinds of activities might interfere with the exercise of aboriginal rights on the Removed Lands and if there is a failure to agree on a framework, the matter will go to mediation;

10.      the Crown will facilitate the operation of the order in paragraph 9, including, if requested by the Petitioners and Brascan, providing the services of independent mediators at Crown expense;

11.      the Petitioners’ applications for orders to either quash, set aside or suspend the effect of the Removal Decision and the AAC Decision are dismissed; and

12.      the Respondents will pay the Petitioners’ costs of the proceedings.

The Interim Decision

[36]           On January 21, 2008, after the two-year period had ended, the petitioners filed their Notice of Motion in this application, and applied for an interim order extending the terms of paragraph 8 of the December 2005 Order (imposing conditions on the use of the Removed Lands) pending the full hearing and determination of this application.  The Crown did not oppose that application.  Island Timberlands argued that the Court lacked jurisdiction to make such an order.  After the hearing and pending the ruling, I ordered that Island Timberlands continue to provide the notice described in paragraph 8(g), of activities that might interfere with the aboriginal rights asserted by the HFN.

[37]           On February 15, 2008 (the “Interim Decision”), I held that this Court did not have jurisdiction to extend the term of the Order on an interim basis, and that it would not be appropriate to impose interim restrictions on Island Timberlands pending the full hearing.  That decision may be found at 2008 BCSC 1020 (CanLII).

[38]           I concluded that the Order entered as a result of the 2005 Decision was clear in specifying that paragraph 8 applied for two years from the date of entry or until the completion of consultation, whichever came first, and that it was not inherent in the Order that extensions of the time specified in paragraph 8 could be sought.  Because the Order had been entered, the Court was functus officio and could not vary the terms of the Order except in limited circumstances that did not apply in this case.  Further, I concluded that Rule 3(2), which provides that the court “may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application or the order granting the extension is made after the period of time has expired” does not supersede the ordinary principle of functus officio after an order has been entered – rather, it is aimed at, for example, providing relief to a party who has been ordered to post security for costs but has missed a deadline for excusable reasons.

[39]           However, at the conclusion of the hearing at which the Interim Decision was delivered, because the hearing of this full application was to be held expeditiously, I directed Island Timberlands to continue to provide notice to the HFN of activities that might interfere with the aboriginal rights asserted by the HFN.  A similar direction was made at the conclusion of the hearing of this application, pending delivery of these Reasons for Judgment.

THE CONSULTATION PROCESS

Evidence Regarding the Consultation

[40]           Chief Judith Sayers and Trevor Jones, CEO of HFN, and Steve Tatoosh, Acting Director of Natural Resources for HFN, swore affidavits describing in detail the consultation process, and its overall context, from the HFN point of view.  In addition, the petitioners provided affidavits from Adam Lewis, a registered professional biologist, and Shawn Flynn, a registered professional forester, regarding activities (allegedly recent and on the Removed Lands) with potential adverse impact on wildlife and fish, and from Brandy Lauder, the Hupacasath Forestry Liaison between 1994 and March 2004 and the Natural Resource Manager after 2004, regarding interaction between the HFN and Island Timberlands about activities on the Removed Lands potentially affecting culturally modified trees, Hupacasath trails, or archaeological or sacred sites.

[41]           The Crown provided a record of what transpired between the parties from the 2005 Decision to the date of hearing, in the main through an affidavit sworn by Peter Poland, an Aboriginal Affairs Manager with MOFR in Nanaimo.  He was appointed to assist the lead negotiators (first, Cindy Stern, then Darrell Robb) in the consultation regarding the Removal Decision and was asked to maintain a record of the consultation process.

[42]           Mr. Poland referred to numerous meetings and communications over the two years beginning in December 2005, and attached a large number of documents to his affidavit in an exhibit of some 1,663 pages.  In considering that “consultation record”, I take into account that the “minutes” are sometimes in fact “draft meeting notes” and are not complete records of discussions at sometimes lengthy meetings.  Nor does it appear that they were minutes in the sense that they were formally approved by the HFN representatives although in some cases there are comments back, for example from Trevor Jones, as to the accuracy of the notes.

[43]           Some of the meetings and exchanges clearly related to explicit discussions between HFN and MOFR representatives regarding the Removal Decision, its impacts, and the HFN desire for accommodation.  Others did not have that focus, but are nevertheless relied upon by the Crown as showing its overall attempts to consult and provide accommodation.  

[44]           The Crown filed a number of affidavits from other participants and officials, including:  Darrell Robb, Director of the Aboriginal Affairs Branch of the MOFR; Mark Lofthouse, a Chief Negotiator with the Ministry of Aboriginal Relations and Reconciliation (“MARR”); Ron Diederichs, a Senior Ecosystem Biologist, Forestry with the Environmental Stewardship Division of the Ministry of the Environment; Bruce McKerricher, Timber Sales Manager with the Strait of Georgia Timber Sales Office of British Columbia Timber Sales (“BCTS”) (a stand-alone organization within the MOFR, responsible for revenues gained through harvesting timber on public lands); and Rudolf Mayser, Strategic Plan Section Head with the Integrated Land Management Bureau (“ILMB”) of the Ministry of Agriculture and Lands.

[45]           Island Timberlands provided evidence bearing indirectly on the consultation process, through affidavits from:  Darshan Sihota, the President of Island Timberlands; Diane Medves, previously employed as Corporate Forester for Island Timberlands; and Bill Waugh, General Manager, Planning and Forestry for Island Timberlands.

Background to the Consultation

[46]           As I have described, the Minister did not consult with the Hupacasath about the Removal Decision before or after making that decision in July 2004, until the court order flowing from the 2005 Decision.

[47]           At the time of the 2005 Decision, the parties were at Stage 4 of treaty negotiations.  In addition, the Ministry was already in consultation with HFN on a number of other matters.

[48]           These included the Minister’s pending decision on timber reallocation, arising from the Forestry Revitalization Act, S.B.C. 2003, c. 17, which provides for a “take-back” of 20% of provincial allowable annual cut from timber licencees, to be reallocated to BCTS then auctioned by a bid process.  The HFN and MOFR were also discussing the terms of an Interim Forestry Consultation Protocol that had been under development since August 2005, and a cultural cedar needs assessment project to be funded by the MOFR, in order to develop an Old Growth Cedar Strategy which would quantify the volume of cedar required to meet the HFN’s cultural needs.  Two other pieces of litigation between the Crown and HFN were underway, relating to a land transfer at Cherry Creek and a dispute with B.C. Hydro regarding the impact of the Elsie Dam.  Discussions as to Land Use Planning had begun with the ILMB (particularly focused on Old Growth Management Areas) regarding the Crown lands in TFL 44.

[49]           Later, during the two-year period beginning in January 2006, other issues and occasions for consultation arose, including the question of ongoing funding for a Traditional Use Study, the setting of allowable annual cut on the remaining Crown land in TFL 44, and a “Natural Resource Management Issue Resolution Process” developed with the ILMB, which worked on a number of issues at separate “Technical Team” meetings, including Old Growth Management Areas and cultural cedar, Great Central Lake float homes and other riparian issues.  Parties involved in the different meetings included not only the MOFR, but also representatives of BCTS, ILMB, MARR, the Ministry of the Environment, Cascadia Forest Products, Island Timberlands, and independent consultants.

[50]           As will be seen in the brief review that follows, five different Ministries and agencies of government became involved, in a number of different interwoven processes flowing from a wide range of legislation and regulations.  Those involved in these processes have developed their own technical, sometimes arcane terminology. To say the least, the “consultation record” did not “speak for itself”, as was suggested by counsel for the Crown at one point in oral submissions.  At the request of the Court, Crown counsel condensed and explicated the “consultation record”, and provided a list of acronyms and glossary of terms.  The hearing was adjourned in order to give the Crown the opportunity to comply with that request and to make further submissions, and to permit counsel for the petitioners to reply.

[51]           There is not much disagreement about the basic events (meetings held, documents exchanged) during the consultation process, although the Crown and the HFN take very different views as to their import, and the HFN position is that the written notes of the meeting do not capture certain matters:  for example, the number of occasions on which they raised questions about their lost opportunity to exercise aboriginal rights on the Removed Lands. 

[52]           Because a number of processes involving the Crown and HFN were already underway, or arose later, and because the court-ordered consultation was carried on in parallel with, and sometimes intersecting with, those other processes, it is not a straightforward matter to tease out those interactions between the Hupacasath and the provincial Crown that were primarily in response to the court order to consult.  The HFN position is that the Crown has tried to represent any contact about anything as being part of the consultation.  The Crown position is that the issues are inter-related and the Hupacasath understood that connection and, at times, themselves asked for the involvement of other Ministries or agencies and made linkages between the Removal Decision and other issues or forms of accommodation.

[53]           I have examined the consultation record in detail, but will only briefly summarize it here.  Further reference will be made to specific aspects of it later in these reasons.  In summary, the consultation went through four key phases.

[54]           The first phase (which I will call the “Initial Phase”) began with the release of this Court’s decision on December 5, 2005, and ended in early September 2006 after the departure of the lead representative for the MOFR, Cindy Stern.  The second phase (the “Term Sheets Phase”) extended from that point, marked by the appointment of Darrell Robb as the lead representative for the Minister, to the beginning of March, 2007.  The third phase (the “Planning and Forestry Agreement Phase”) extended from March 5, 2007, when a draft Planning and Forestry Agreement was delivered by the Crown to HFN, to early January, 2008.  The fourth phase (the “Post-Two-Years Phase”) began with a meeting of the parties on January 22, 2008, and ended with an offer from the MOFR to HFN in April, 2008, rejected by HFN on May 29, 2008.  I note that although the Order made in the 2005 Decision was effective from the date the decision was made (December 6, 2005), it was not entered until January 19, 2006 and the parties seemed to agree that the two-year period ran from that date.  Given that, and because it makes no difference to my decision on this application, I will treat the end of the two-year period as January 19, 2008.

[55]           Arguably, the key events during the process were:  the August 11, 2006 proposal (or list of settlement options) tabled by the HFN; the Minister’s proposal in a letter dated October 12, 2007; the HFN response on October 29, 2007; the Minister’s Offer to Settle on April 25, 2008; and the HFN rejection of that offer in May 2008.  Another key event was that, at HFN’s request, a second process known as the “corporate table” began, involving several other Ministries in addition to the MOFR, led by the Ministry of Aboriginal Rights and Reconciliation.

1. The Initial Phase

[56]           During the Initial Phase, between January and September 2006, meetings were held between the parties, focused on the consultation and accommodation required by the Removal Decision, on March 3, April 26 and 27, May 24, June 20, August 11 and August 24, 2006.  In addition there were contacts and discussions about other related issues, and some correspondence.

[57]           The Ministry provided financial assistance ($25,000) through a contribution agreement to assist the HFN in carrying on the consultation process.

[58]           Some themes emerged in the Initial Phase that continued throughout the process, and I will describe those themes at this juncture, returning to some of them later in more detail.

Disagreement as to the requirements imposed by the 2005 Decision

[59]           The two parties did not see the import of the 2005 Decision and the requirements it imposed in the same way.  The Crown took the position that the necessity of accommodation could not be assumed, while the HFN representatives took the position that the 2005 Decision had settled that the government should have consulted with the HFN, and must now provide accommodation.  Chief Sayers asserted that “deep consultation” was required (notes of December 9, 2005 meeting), and that the B.C. Supreme Court had upheld HFN asserted title so that it was necessary for the provincial and HFN governments to agree on how the lands and resources were to be co-managed (letter of January 24, 2006 to Cindy Stern).  On the other hand, the Crown representative said that it was necessary to establish if there is an infringement and that “there is no obligation to consult or a process on private land” (Cindy Stern, notes of April 27, 2006 meeting) and that the discussion was to address “whether the government should have consulted or not”, then to look at the “strength of claim” (Cindy Stern, notes of May 24, 2006 meeting).

Requirement to provide information

[60]           The Ministry required the HFN to describe what their interests were, how they were impacted, and what the potential accommodation might be.  The HFN, although they objected (taking the position that the 2005 Decision had dealt with the matter of the interests and the impact and that the parties should focus on negotiating an accommodation package), provided to the Ministry part of their previously prepared Traditional Use Study relating to impact on the Removed Lands, and their entire Traditional Use Inventory.  They also urged that the Hupacasath Land Use Plan (previously provided to the Ministry) should be considered with respect to their traditional territory.

[61]           In this context the HFN provided a document on May 24, 2006 (called “Articulation of Aboriginal Rights on the Removed Lands Within Hupacasath Territory”) listing a number of sites where the HFN said that their activities traditionally occurred — spiritual activities, hunting, fishing, harvesting, gathering (including the use of cedars) and transportation.  Notes from the meeting where this document was tabled indicate that Chief Sayers referred to effects of the Removal Decision on asserted Hupacasath rights at sacred sites and with respect to traditional practices.  Judith Sayers Affidavit #9 provides further detail about the HFN claims.  Chief Sayers deposed that while the HFN have claimed a large number of sacred sites within the Removed Lands, the exact number is unknown because they are kept secret, and the sites do not have the protection of the Heritage Conservation Act, R.S.B.C. 1996, c. 187.  She described elk and marmot as among the species that Hupacasath traditionally hunted, now endangered within the HFN traditional territory, and cited the need for wildlife corridors.  She deposed that the Hupacasath use the whole territory for gathering foods, medicines and other materials, and that scarcity of these materials may affect the Hupacasath’s ability to engage in traditional healing, ceremonies and artwork.  She also referred to Culturally Modified Trees (“CMTs”) and to the limited protection offered by the Heritage Conservation Act since the CMTs must pre-date 1846 (and they are protected only if they are first identified).  She stated that access for hunting and gathering and access by road to the HFN Cous and Chuckacook reserves is at risk because decommissioning of many roads is in progress.

[62]           The Crown representatives indicated that they found the information provided by the HFN insufficiently specific.  The HFN position is that in some instances it is culturally prohibited to reveal locations (sacred sites), in some cases it was impossible to be more precise (ranges for animals can be extensive) and in any event the information was understood to be partial when it was provided and that further work was to be done in mapping out the interests.

Discussion between the parties reflected divergent views as to what was required

[63]           The Ministry took the position consistently, as expressed in comments in the minutes of the first meeting attributed to Cindy Stern, that “…accommodation would be oriented on the Crown land as there is likely no jurisdiction by MOFR on private land”, and “Private land before the decision is still private land after the decision”.  

[64]           Some of the HFN requests related to accommodation on the Crown land, but a number of requests related to the Removed Lands.  Counsel for the petitioners, Mr. Grant, submitted that the record, because the notes of the meetings were only partial, understates the extent to which HFN raised issues and suggestions about ways of providing accommodation for HFN aboriginal interests on the Removed Lands.  It does appear that possible accommodation relating to the Removed Lands was raised by the HFN on a number of occasions.

[65]           With respect to the Removed Lands, the HFN asked whether the Minister could place conditions on Island Timberlands in its use of the lands, in particular with respect to access to sacred sites, old growth cedar, and the like, and asked for the Province’s position with respect to enforcing the conditions in the Minister’s letter and the court order.  HFN representatives named areas including Grassy Mountain and Thunder Mountain as major areas needing protection.  The Minister committed at the March 3, 2006, meeting to developing “a Matrix of options to address possible accommodations” in response to this request.  This matrix, attached to the minutes of the August 11, 2006, meeting, referred to existing pieces of legislation or regulations, to the terms of the Minister’s Removal Decision, and to how they applied to ongoing activities on the Removed Lands.  

[66]           HFN also raised the question of acquisition of specific areas from Island Timberlands, such as Grassy Mountain, that could be provided as accommodation.  

[67]           The HFN sought continued protection or replacement on Crown land of Old Growth Management Areas formerly protected when the Removed Lands were in TFL 44.  HFN representatives also raised issues about access to watersheds and maintenance of old growth around creeks, Ungulate Winter Ranges and certain Wildlife Habitat Areas on the Removed Lands.  They argued for 50 metre buffers around salmon bearing streams and 100 metre buffers around spiritual sites. 

[68]           From time to time Island Timberlands representatives took part in the discussions regarding fish bearing streams and buffers, wildlife protection, access to sacred sites and the possible sale of the private lands to another party.  At a meeting on June 20, 2006, the HFN representatives referred to the Ash River MOU as a desirable model, while the Island Timberlands representatives referred to the differences between the two situations (in particular, that Ash River involved a transfer of Crown land).  The HFN and the Ministry discussed what possible measures Island Timberlands was willing to take to accommodate the HFN’s interests in the Removed Lands, and what solutions the HFN preferred, including the purchase of Grassy Mountain and a “conservation covenant” registered on title with the Crown and HFN named as the monitors.  So far as the record shows, the Crown did not pursue any of the proposals that apparently had been discussed by HFN and Island Timberlands.

[69]           In a letter dated March 20, 2006, the HFN made a proposal:  that MOFR “begin the process of identifying and securing an area based tenure capable of supporting a viable commercial scale annual harvest within the Great Central Lake/Sproat Operating Area” (defined within the operating constraints of the Hupacasath Land Use Plan); that the parties negotiate a “long term consultation protocol and accommodation/ compensation package over the next 6 months which would specifically address the obligations of the Crown stemming from the court order” (referring to the “compendium of uses” provided by HFN); that “MOFR support the development of a relationship protocol between HFN and Island Timberlands”; that MOFR support the negotiations through a contribution agreement (attaching a budget and work plan); and that MOFR “work with the other line (MOE, ILMB, etc.) ministries to gain support to develop a planning protocol acknowledging the government to government implementation of the Hupacasath Land Use Plan and related standards”.  As may be seen, the HFN sought accommodation relating to both the Removed Lands and Crown lands.

[70]           On August 11, 2006, the HFN tabled a document, titled “Removal of Private Lands from TFL 44”, that I will call the “August 11 proposal”.  According to the minutes of the meeting, a HFN representative described it as providing a “price tag for removal of private land from TFL 44”.  Under the heading “What do the Hupacasath lose?” are listed:  sacred sites; lower environmental standards; reduced old growth management areas; permanent alienation of land and resources; increased land values/change of use; increased treaty costs; threatened/damaged fisheries, wildlife and water resources; reduced ungulate ranges; incremental loss of TUS; lower environmental regulatory standards; impact on remaining Crown lands including issues of fire hazards, forest health; and wildlife habitat areas and corridors.  At the foot of the list is “Compensatory Value – Priceless – 1.5 Billion”.  The second page has a list of “Settlement Options” including some items quantified in dollar amounts, involving a number of Ministries and agencies, with a “MOF Subtotal” of $12 million, in a global total of $40.5 million.  That list includes the two other unrelated litigation matters involving Cherry Creek and B.C. Hydro. 

[71]           On August 16, 2006, a draft Forest and Range Opportunities agreement was forwarded by the Crown to the HFN, and reviewed at a meeting of the same date.  A Forest and Range Opportunities agreement is defined in the Crown’s glossary as “a negotiated interim measures agreement between the MOFR and a First Nation seeking to accommodate the economic aspect of the First Nation’s potential aboriginal title interests through the provision of economic benefits …. (providing) revenue-sharing and forest tenure opportunities based on the per capita of a First Nation and a forest tenure”.  The draft agreement makes no specific reference to the Removed Lands or to the 2005 Decision.

The consultation became bound up with other issues and processes

[72]           Both the reapportionment decision, flowing from the Forest Revitalization Act, and the determination of allowable annual cut on Crown land, involved consultation independently of the consultation required by the 2005 Decision.  Discussions about the reapportionment decision became bound up in the Removed Lands consultation because the HFN sought a delay in the reapportionment decision in order to keep more options open for possible accommodation.  In response, the Ministry did delay the reapportionment decision, until May 10, 2008.  

[73]           In addition, the parties concurred that it was necessary to incorporate more agencies of government into the process (including MARR, the Ministry of Energy, and the Ministry of Agriculture and Lands) through the Inter-Agency Management Committee.  

[74]           As I will describe later, although involving more agencies of government seemed sensible to both parties at the time, it appears that the resulting level of complexity weighed against the achievement of a resolution.

2.  The Term Sheets Phase

[75]           From about September 2006 to March 2007, the MOFR developed Term Sheets and a draft Planning and Forestry Agreement.  A Planning and Forestry Agreement is said by the Crown to be “similar to an FRO [Forest and Range Opportunities agreement]” but with “enhanced accommodations”. 

[76]           There were meetings involving HFN and the MOFR (sometimes with other Ministries or agencies represented) on September 26, 2006 (the first meeting at which Darrell Robb was the lead representative for MOFR), October 30, November 21, December 14 and December 21, 2006, and January 3 and 26, 2007.  BCTS was involved in some of the discussions, and agreed to defer operational planning in certain parcels of land for two to three years and to engage in consultation with HFN after that time, thereby ensuring that those parcels might be available for HFN treaty purposes.  The ILMB was involved in order to ensure meaningful discussion on Old Growth Management Areas and Ungulate Winter Ranges.

The Corporate Table

[77]           The consultation process was supplemented during this period by another process under the guidance of the MARR, called the “corporate table”.   The corporate table arose out of a meeting held at the request of the Hupacasath with five Ministers or their representatives in October, 2006.  Chief Sayers deposed that “[t]he need for the meeting with the Ministers was that the Minister of Forests’ representatives had told us repeatedly that they did not have much in their ‘tool box’ for accommodation” and that the HFN therefore understood that with a corporate table, there would be more resources for appropriate accommodation for the Removal Decision.  The Ministries represented were Forests and Range, Agriculture and Lands, Energy and Mines, Environment, and Aboriginal Relations and Reconciliation.

[78]           The evidence tendered by the Hupacasath (affidavit of Judith Sayers #7) is that they understood the corporate table process to be part of the reconciliation process with respect to three outstanding litigation matters, including this litigation regarding the Removal Decision, and that they were not told that the effects of the Removal Decision were to be excluded from the corporate table process.

[79]           However, the Chief Negotiator for the Crown at the corporate table, Mark Lofthouse, deposed that from the perspective of the MARR the primary purpose of the corporate table was to engage the HFN in accelerated treaty negotiations, “and through those negotiations attempt to deal with ongoing forestry and land based considerations.”  He deposed “…MARR did not consider it would assume or take over any obligations or duties that may have been owed to the Hupacasath by the MOFR … regarding such consultation and accommodation [with respect to the Removed Lands]”.  He did not consider the resolution of the outstanding court matters to be the primary purpose of the discussions.  

[80]           Mr. Lofthouse deposed that the Ministry devoted considerable resources to the negotiations and they became a highly intensive endeavour.  

[81]           Chief Sayers understood things somewhat differently, and deposed that the concept of an incremental treaty did not even come up until about July, 2007, after the signing of the Reconciliation Protocol, when Mr. Lofthouse told her that his only mandate was to do an Incremental Treaty Agreement, rather than having a specific mandate to settle the three legal cases.  She stated that the Province also “maintained that any offer in the Incremental Treaty Agreement would come off the Treaty settlement” but that the HFN view was that the “outstanding issues, including the removal of lands from TFL, are not treaty related issues and should not be included in our treaty settlement”.  

[82]           Chief Sayers deposed (affidavit of Judith Sayers #9) that the HFN had always set the timeline of the end of March 2007 to wrap up negotiations on the three court cases, and when it became obvious that they could not complete within that timeline, they signed the Reconciliation Protocol as a sign of good faith with the promise of having a concrete offer within the next month or two to address the accommodation.  She deposed that her understanding was that the MOFR table was not meant to address the complete accommodation for the Removal Decision because that Ministry “had little to offer and the larger corporate table was to do that”, with the MOFR table to deal with more on-the-ground operational issues.  

[83]           Chief Sayers further deposed:

15.       I was told on more than one occasion by Darrell Robb, that if the corporate table was able to settle the accommodation for the TFL Removal Decision, he would be willing to take any reference to the court case out of the separate agreement we were working on with MOFR. He appeared to agree with me that the MOFR negotiations were, in effect, negotiations of an FRO “plus”. As he knew, we were entitled to negotiate an FRO in any event and such an FRO was not an accommodation of the Removal Decision although if they addressed the concerns we had with respect to the Removal Decision in a document that they called an FRO, Hupacasath would not have objected to that.

16.       In response to paragraph 15, I was always concerned that the government was trying to roll our settlement of the three court cases, including this one into a treaty settlement. We repeatedly said we did not want that, and unless the Interim Treaty Agreement [“ITA”] specifically stated that what was being offered was not to be taken from the final treaty settlement, Hupacasath would not sign such an agreement. These were court cases and the settlements had to be for the court cases, not treaty. This is also consistent with the position of the Crown that treaty negotiations are not intended to address past wrongs. Based on the Affidavit filed by Mr. Lofthouse, this appears to have been the Crown’s strategy.

19.       We were told many times by Mark Lofthouse that the only way he would be able to sell a settlement to Cabinet was if there was an ITA. I said we didn’t care what it was called, but that we wanted a clear statement it would not be part of any treaty settlement with Hupacasath. …

[84]           Mr. Lofthouse replied, agreeing that MARR had indicated that any terms and items included in the Incremental Treaty Agreement would be considered part of a treaty final agreement, but adding that a final resolution of the issues arising in treaty may involve arrangements outside the treaty agreement itself.

Island Timberlands

[85]           Exchanges between HFN and Island Timberlands during this phase related to the location of logging activities during the period of the court order, Archaeological Impact Assessments and Culturally Modified Tree surveys on the Removed Lands, and a possible Memorandum of Understanding.  Island Timberlands confirmed HFN access to the private lands subject to safety restrictions and environmental concerns and confirmed its timber harvesting policies pursuant to the Private Managed Land Forest Act.  

3.  The Planning and Forestry Agreement Phase

[86]           During 2007, discussion focused on the terms of a possible Planning and Forestry Agreement and a draft of such an agreement was delivered to HFN on March 5, 2007.  Following this, meetings were held between the Hupacasath and various parties, including the MOFR, BCTS and ILMB, on March 9, April 11 and 12, May 8, June 1, July 12, October 31 and December 7, 2007.  HFN continued to seek government assistance in achieving long-term protection of deer and elk habitat and other wildlife issues with respect to the Removed Lands.  The existence of unauthorized float homes and cabins at Great Central Lake (a drinking water source for HFN) was discussed, an issue which it does not appear has yet been resolved.  

[87]           During this period, as a result of the corporate table process, the Province and HFN signed a Reconciliation Protocol (which is not relied upon by the Crown as part of the accommodation related to the Removal Decision).  Mr. Lofthouse deposed that the purpose of this protocol, signed on March 30, 2007, was to move matters forward and show good faith.  It provided $1,000,000 to the HFN with no quid pro quos ($440,000 of which had already been committed by the Ministry of Energy, Mines and Petroleum Resources for the HFN green energy project).  As well, a monumental cedar inventory mapping process was developed.

[88]           The ILMB worked on a number of issues with HFN during this period, some of which were not related to the Removal Decision and its effects, but at least one of which was:  the concept of increasing the amount of area in Old Growth Management Areas on Crown land in HFN asserted territory by an amount of area equivalent to the amount of area in Ungulate Winter Ranges identified on the Removed Lands.  Mr. Mayser deposed that HFN provided information regarding areas within their territory that they labelled “NOGO” areas because they were of cultural importance – areas that in their view would be “no harvest” areas and thus prime candidate areas for placing Old Growth Management Areas.  ILMB was said to be continuing to conduct analysis and work on this possibility but there was no evidence that any agreement has been reached.  The ILMB also worked with the HFN to develop a “Natural Resource Management Issue Resolution Process” in order to deal with issues such as the float homes on Great Central Lake, Old Growth Management Areas and cedar strategy, and other riparian and resource management issues.  A number of meetings were held in pursuit of this process (March, April, May, June, and October, 2007).  

Difficulties arising from the cumulative impact of various decisions

[89]           An early exchange in this period is illustrative of the ongoing difficulties in this process.  On January 4, 2007, Trevor Jones wrote to Jim Gowriluk, the Regional Executive Director of the MOFR, referring to a meeting the previous day about the apportionment of cutting rights within TFL 44, and to an exchange of correspondence in the preceding months between counsel and Mr. Gowriluk’s predecessor.  In part, Mr. Jones wrote:

During the meeting yesterday we provided you with a detailed GIS based map which identified Hupacasath First Nation site specific rights associated with hunting, fishing, cedar use, spiritual use, gathering and archaeological interests. As was detailed to you in the meeting, the issuance of cutting rights pending the apportionment decision will negatively impact and in some cases completely abrogate Hupacasath First Nation rights. The Hupacasath First Nation wish for you to avoid all industrial forest related activities that could result in some of these constitutionally protected rights forever being alienated. As we discussed yesterday, the accumulative impacts of the private land removal from TFL 44, the absence of consultation on the development of the goals associated with the Vancouver Island Land Use Plan (VILUP), the reduction of the TFL as a result of the Manulth Treaty settlement and the establishment of Hupacasath Protected Areas result in a number of additional net downs which have not been incorporated into the establishment of a new AAC. This leaves a fictitious accounting surplus of volume that in actuality does not exist. We strongly encourage you to complete the consultation process with the Hupacasath and identify how you will meet our concerns and accommodate those rights which will be impacted as a result of the issuance of new forest harvesting rights.

In the larger scheme, it was also discussed in the meeting how it was imperative that the Crown consider settling the outstanding forestry obligations with the Hupacasath First Nation resulting from court ordered consultation and accommodation prior to issuing new cutting rights that have already been compensated for by the Crown. The Hupacasath First Nation is more than prepared to negotiate proportional acquisition of the apportionment volume and manage it as an area based tenure in the Great Central Lake area. This volume or a portion thereof could be offered to the open market through a competitive bid process while ensuring that the tenure is managed according to Hupacasath standards. This creates a win/win for the Crown and resolves a long standing legal grievance. Truly moving us in the direction of the “New Relationship”.

[90]           In response, Mr. Gowriluk wrote, on March 5, 2007, as follows (in part):

You have stated that the above issues have not been incorporated into the establishment of a new AAC for TFL 44 and therefore there is a fictitious accounting surplus of volume that does not exist. Your letter also states that the issuance of cutting rights pending the apportionment decision will negatively impact and in some cases completely abrogate HFN rights. As a result, the HFN wants the MOFR to avoid all industrial forest related activities that could, according to HFN, result in these rights forever being alienated. In response to the issues you have raised in your January 4, 2007, letter, I wish to provide you with the following information:

Consultation meetings on the private land deletion have now involved MARR. MARR is engaged in seeking a workable accommodation on a number of key areas including protecting areas of concern to the HFN. These discussions are related to treaty interim measures and fall within the scope of MARR’s mandate. I understand these discussions are at an early stage, but I encourage you to work on the issue of protected areas with MARR directly. At the same time, ILMB and MOFR will continue to work with HFN on reviewing some of the other HFN LUP and forestry standards within their respective mandates.

Although I understand you would like all activity to cease in the territory until this issue is resolved, the MOFR also has an obligation to consider and balance other interests as well. The aboriginal interests identified in your GIS map will require considerable time for review through this process. In the interim, operational level review prior to issuance of cutting permits could continue to be the mechanism to consider and address your aboriginal interests. For this reason, I believe that the apportionment decision can move ahead with an understanding that the ILMB, MOFR and HFN continue to work out these issues over the next year without compromising the aboriginal interests you have begun to outline in your letter and map. At the end of the review, I foresee that the Chief Forester will consider the information in his upcoming AAC determination. Following the review, each ministry may have to adjust any plans or tenures accordingly.

At this point, MOFR plans to move forward with completing the reassignment and apportionment of volume decisions on TFL 44 and the Arrowsmith TSA. MOFR staff will ensure that the Minister or his designate is briefed on HFN’s aboriginal interests and concerns with the pending decisions and outline these concerns. I will highlight HFN’s desire to conclude the court ordered private land deletion consultation and accommodation prior to the Minister making his determination. However, I must point out that the conclusion of the private land discussions may take some time to achieve, and there are other parties and issues that need to be considered.

[91]           Counsel for the petitioners submitted that the exchange shows that this consultation/accommodation process was not a priority for the Crown despite the 2005 Decision, and that Mr. Gowriluk did not understand the point Mr. Jones was making.  Specifically, Mr. Grant submitted that the “fictitious accounting surplus of volume” arose from the Removal Decision, not the matters Mr. Gowriluk referred to.  Further, he argued that Mr. Gowriluk’s assertion that the HFN “would like all activities to cease in the territory until this issue is resolved” was not based on any statement made by the HFN.  Counsel for the Crown submitted, on the other hand, that the letter does show that the Crown understood the HFN concerns, but needed to consider other interests as well.

[92]           There was further correspondence, in the form of a letter from Chief Sayers to the Minister on March 23, 2007.  In it, she referred to the pending decision regarding final reapportionment of the 20% take back volume within TFL 44, ongoing consultations about that issue, and to the “New Relationship” process.  Referring to the 2005 Decision, she wrote that she had given evidence through her affidavits of the serious importance of sacred sites throughout HFN traditional territory including on the Removed Lands.  The Chief stated the opinion that the paradigm shift meant to be marked by the New Relationship had not been infused into the consultation process regarding the reapportionment decision.  As to Mr. Gowriluk’s reference to a collaborative effort by two other Ministries (ILMB and MARR), she stated, “Unfortunately, these two other Ministries will not be able to impact on decisions made by the Ministry of Forests, particularly in advance of their ‘collaborative effort’ with Hupacasath.”  She then wrote:

We pointed out to Mr. Gowriluk the conjunction of a number issues impacting Hupacasath Territory which puts Hupacasath in a unique position. These factors include:

1, Cumulative impacts of the private land removal from TFL 44, which decision occurred without consultation as found by the Court;

2. The absence of consultation on the development of the goals associated with the Vancouver Island Land Use Plan (VILUP);

3. The reduction of the TFL as a result of the Manulth Treaty settlement; and

4. The establishment of Hupacasath Protected Areas resulting in a number of additional net downs which have not been incorporated into the establishment of a new AAC.

In view of the Court-ordered consultation, the results of which may well impact on the management of the forestry resources within our Territory, it is imperative that the Crown settle the outstanding forestry obligations with the Hupacasath First Nation resulting from court ordered consultation and accommodation prior to issuing cutting rights that have already been compensated for by the Crown. This has become a very serious matter as we have been attempting to consult in good faith with officials of the Ministry of Forests. Rather than addressing the issues, he has deferred those issues to other Ministries while he proceeds to make his decision. It is for this reason that we believe that it is time for you to step in and confirm that this is not an acceptable approach for one Ministry official to offload consultation to another Ministry to bypass the duty to seek workable accommodations.

Hupacasath is willing to be creative in finding a resolution for both the Ministry and Hupacasath, thereby resolving a long standing legal grievance, implementing the “New Relationship” and enabling the Ministry of Forests to advance the Crown agenda together with the Hupacasath. I would like to suggest that I meet with you, the Deputy Premier and Graham Bruce to resolve the issue in a timely way once and for all. In the present process the court has ordered consultation over the course of two years. It appears to the Hupacasath negotiators that forestry officials are now endeavoring to delay so that there will be no successful outcome to the consultation process.

[93]           The Associate Deputy Minister, Bob Friesen, met with Chief Sayers on May 11, 2007, promising that the information he received would become part of the consultation process, and undertaking to brief the Minister as to HFN concerns when it came time to make the reapportionment decision.

[94]           The Province’s position is that it diligently pursued the consultation process, putting considerable time and energy into it, and that there was no strategy of delay.  The petitioners’ position is that the delay was systemic, that is, not necessarily deliberate or in bad faith, but caused by the fact that no-one at a high enough level took the consultation seriously enough.  

[95]           Trevor Jones deposed that he raised the idea of involving a facilitator or mediator on several occasions, but the representatives of the Crown did not consider this to be appropriate and reassured him that progress was being made by the Crown in its discussions with Island Timberlands.  

[96]           The notes of a meeting on April 30, 2007 state that at one point Chief Sayers asked, “At what point do we bring in facilitator – and when do we go back to Court for direction?”  There is no note of any response to those questions.  Neither party, however, did come back to the Court for directions.

The Proposed Planning and Forestry Agreement

[97]           The terms of the proposed Planning and Forestry Agreement evolved over time, but its March 2007 draft addressed the following:

(1)      per annum payments of $114,000 (based on a per capita schedule);

(2)      $75,000 for a Timber Use Study

(3)      $20,000 for a Forest and Range Evaluation Program pilot;

(4)      opportunity for the HFN to apply for two non-competitive timber licences;

(5)      access to ‘undercut’ timber volume of 38,000 cubic metres;

(6)      $30,000 from ILMB toward the resolution process;

(7)      development of a consultation protocol with BCTS that would include elements of the HFN Land Use Plan.

[98]           At the March 9 meeting, the HFN and MOFR expressed different views about whether the proposed Planning and Forestry Agreement offered anything new to the HFN.  This disagreement has persisted, and I will address the issue later in these Reasons.  

[99]           On October 12, 2007, after a hiatus of about five months, Mr. Robb wrote to Chief Sayers, as follows:

I would like to take this opportunity to thank-you again for your on-going participation with respect to the TFL 44 private land consultation process. This letter is to update you on my understanding of the current status of this process, and a plan for concluding the consultation process.

You may recall from earlier conversations last spring that we agreed to not meet further to discuss the draft “Planning and Forestry Agreement” until after the Ministry of Aboriginal Relations and Reconciliation (MARR) completed internal mandate work related to an incremental treaty with the Hupacasath First Nation, and further direction from Cabinet was received. Besides the work being completed by MARR, it was also agreed that we should continue on with the technical working group meetings over the summer, to discuss the land use issues. Given that summer season has now ended, and that MARR is discussing an Incremental Treaty Agreement (ITA) with Hupacasath that dovetails with our proposed “Planning and Forestry Agreement”, I suggest we resume our face to face meetings once again.

As you know, since receiving the decision of Madam Justice Smith in late December 2005, the Ministry of Forests and Range (MFR) and Hupacasath First Nation (HFN) have worked together on several key tasks during the consultation process to:

1) understand the relative strength of the HFN aboriginal interests that may be impacted by the TFL 44 private land withdrawal decision;

2) review the impacts of the Minister’s decision (if any) on the HFN aboriginal interests;

3) review the existing legislation, regulation and the Minister’s decision letter, and Island Timberlands proposed actions (if any) that could possibly mitigate the concerns identified by HFN; and

4) review the proposed “settlement options” tabled by HFN.

Although the consultation process has taken many months to complete, I believe that gaining a better understanding of HFN historical information on the land base, and potential impacts to aboriginal interests as a result of the Minister’s decision have been imperative to the process. Over this time period, it was important for the MFR to try to clearly understand the basis for conclusions about prima facie claims of HFN by the trial judge and detailed historical information about those interests and the locations where those claims may be stronger or weaker. In addition, we have worked together to undertake a review of the current legislation, regulations and other important documents that influence use of the private land.

As you know, since receiving the August 11, 2006 settlement option table from HFN, the ministry has not yet made a definitive proposal for accommodation along the lines you have requested, since at this time we are unsure what, if any, accommodation is in fact required in these circumstances. Many of the mitigation measures you have tabled go beyond the scope of the MFR mandate and are not, in our view, warranted in terms of “accommodation” for the kinds of impacts that the private land deletion may have on HFN interests. Nevertheless, we have engaged other ministries including MARR to advance aspects of a settlement outside the consultation process, and have brought in the Integrated Land Management Bureau (ILMB) to work with you on key land use aspects of the consultation process.

In response to your concerns, the MFR has worked with both ILMB and HFN on a draft “Planning and Forestry Agreement” which was tabled at various meetings between January and April 2007 (see attached). In this agreement, ILMB and the MFR proposed to offer in the “Planning and Forestry Agreement” the following benefits to HFN:

1)         An 800 Ha Woodlot at Great Central Lake;

2)         At the request of HFN, an additional 362 Ha top-up woodlot in Beaver Creek. This was substituted in lieu of a 37,858 m3 of non-replaceable undercut volume in TFL 44 which was offered previously;

3)         Payments of $114,000 cash per year for the term of the agreement with the possibility of an upfront component of one year in advance;

4)         A TUS study for up to $75,000 which was initiated as a show of good faith in fiscal year 2006/2007;

5)         After conducting a gap analysis of available resource information, MFR would seek funding of an unknown amount to address gaps identified during the resource inventory analysis;

6)         ILMB has provided $30,000 in the 2006/07 fiscal year to support development and implementation of an issues resolution process. This process includes a further scoping of the Hupacasath Land Use Plan (LUP), ILMBs proposed Old Growth Management Areas (OGMAs) as well as review of the HFN proposed cedar strategy outlined in a report entitled “Identifying Hupacasath Cultural Cedar Needs” (March 31, 2006);

7)         Consultation protocol agreements with BCTS and MFR;

8)         A payment of $20,000 to assist with a Forest Resource Evaluation Program (FREP) pilot;

9)         BCTS would provide documentation of BCTS road acquisition from licencees within the traditional territory and would discuss identification of future road access;

10)      BCTS would defer further operational planning within three specific areas near Beaver Creek in the Arrowsmith Timber Supply Area for three years.

In addition, the draft agreement also includes “markers” of those items for future consideration. They include the possibility of:

1)         an increased revenue sharing amount (now being explored in the context of incremental treaty); and

2)         exploring HFN ownership of carbon credits when provincial policy has been developed.

Also, related to the efforts to the private land consultation process, additional measures have been provided since December 2005, including:

1)         A $25,000 contribution agreement signed in late March 2006 to assist with the initiation of the consultation process;

2)         An additional $50,000 to HFN in the 2006/07 fiscal year to support development and implementation of the issues resolution process. The process includes an assessment of the HFN LUP and OGMAs as well as MFR’s cedar strategy;

3)         The MFR delayed seeking the minister’s decision on apportionment of the TFL 44 Allowable Annual Cut to allow additional time to resolve the private land consultation process and to allow for ITA discussions;

4)         The LUP technical working group continues to scope out a cedar strategy, deal with riparian management issues and resolution of float home issues on Great Central Lake;

5)         The technical support by BCTS consultants and $12,000 of ILMB funding for pilot work to identify cedar from satellite imagery to refine the extent of monumental cedar in the Nahmint; and

6)         The signing of the reconciliation protocol by Minister’s de Jong and Mr Neufeld with HFN on March 30, 2007 totalling nearly $1 million.

I understand that our technical working group is continuing to work on the technical issues described above. I also understand that MARR has proposed a number of measures to address the litigation issues between government and the HFN as part of the incremental treaty process. MFR will continue to assist you where possible in your progress in reaching an incremental treaty agreement with MARR, and my view is that completing the “Planning and Forestry Agreement” will assist this process and also resolve the private land deletion consultation process.

To conclude, the MFR has been engaged in the consultation process since December, 2005 and since that time, I believe many positive discussions and meetings have occurred to resolve this issue. As far as the MFR is concerned, the progress to date demonstrates that adequate consultation with respect to the private land decision is occurring. As we conclude the Planning and Forestry Agreement, MFR’s view, is that fair and reasonable accommodation is occurring for whatever impacts the deletion decision has had (if any), or may have on HFN aboriginal interests.

Since we have not had a face to face meeting for a while, I am looking forward to our October 31, 2007 meeting at 10:00 AM at the Coast Forest Region Office to discuss this letter and the Planning and Forestry Agreement further, with the goal to conclude the agreement and the consultation process.

If you wish to discuss this further, please feel free to contact me at (250) _______.

[100]       The HFN response was negative.  In a letter dated October 29, 2007, to the Minister, Chief Sayers noted that the HFN had not intended to still be in a preliminary consultations phase two years after beginning.  She stated that the dismissal of Cindy Stern one year into the consultation, and the Crown insistence that the HFN would have to re-prove each element of the aboriginal interests that would potentially be infringed, had caused a significant delay.  She observed that the Ministry appeared to be of the view that, notwithstanding the decision of this Court, no accommodation is required.  Chief Sayers wrote:

Mr. Robb’s proposals being brought forward by your Ministry are, in effect, proposals that were available prior to us being compelled to go to court and really fit within the Ministry’s one-size-fits-all Forests and Range Opportunities [“FRO”].  In fact the offer provided by the Ministry is of the same scope as previously offered to Hupacasath prior to the removal of the private lands and the subsequent Court Order for consultation.

Notwithstanding the assertions of Mr. Robb, we believe that Justice Smith has made it clear in her decision that there is a strong prima facie case for aboriginal rights to sacred areas, old growth forests, wildlife, fisheries and water resources within the removed private lands.  The new land owner has been unwilling to negotiate any long term commitments with Hupacasath to ensure our access to these resources which are critical for the exercise of our rights including our spiritual practices.

The letter concluded with the statement that if the Ministry “maintains a position of intransigence and effective denial that any accommodation ‘is in fact required in these circumstances’, we shall have no alternative but to seek directions from the Court.”

Preservation of critical wildlife habitat areas and Ungulate Winter Ranges in the Removed Lands – discussions between the Ministry of Forests and Range and Island Timberlands 

[101]      Ron Diederichs in his affidavit described discussions regarding certain critical wildlife habitats and Ungulate Winter Ranges within the Removed Lands, totalling about 2,100 hectares of the approximately 70,000 hectares in the Removed Lands.  These discussions involved the MOFR and the private land owners (Weyerhaeuser, then Brascan, then Island Timberlands) and began prior to the Removal Decision in July 2004.  He deposed that in the discussions leading up to the Removal Decision, the Province and the owner of the land (then Weyerhaeuser) “contemplated the development of a long term strategy for management and preservation of wildlife habitats and Ungulate Winter Ranges located within the Removed Lands”.  He deposed that Weyerhaeuser and the Province entered into an agreement on July 14, 2004, that the critical wildlife habitats would be maintained for two years while the parties devised that strategy, and that agreement was part of the Minister’s Removal Decision.   Mr. Diederichs deposed that studies and negotiations took place, delayed somewhat when ownership of the land changed from Weyerhaeuser to Island Timberlands.  The time limit under the agreement was extended twice.

[102]       On June 21, 2007, MOFR representatives (including Darrell Robb) met with Island Timberlands (Bill Waugh) regarding the retention of 1800 – 2100 hectares of Ungulate Winter Range, and although the notes of the meeting suggest that the Ministry pressed the issue, they do not show a clear commitment from Island Timberlands, whose representatives said at the meeting that 1800 – 2100 hectares would stay, but not in the grandfathered areas, and that the location remained to be resolved with the Ministry of the Environment.

[103]       As of the date of Mr. Diederichs’s affidavit, March 12, 2008, no long-term strategy to manage and protect the critical wildlife habitats or Ungulate Winter Ranges in the Removed Lands had been agreed to. 

[104]       Counsel at the hearing in June, 2008, advised the Court that no agreement had yet been reached.

[105]       After the 2005 Decision, the Hupacasath asked to be included in the discussions about ongoing protection of wildlife habitat, but the Crown refused.  The Crown position is that it was dealing with HFN concerns by carrying on these discussions with Island Timblerlands.  The HFN position is that the Crown’s exclusion of HFN from the discussions shows high-handedness, and a failure to understand the 2005 Decision and the Crown’s duty.

Allegation of logging contrary to the 2005 Order and the Minister’s letter

[106]       The Hupacasath have alleged that Island Timberlands has conducted logging in critical wildlife habitat areas, contrary to the Court Order and the Minister’s letter.  However, there is conflicting evidence as to whether this has occurred.

[107]       At the March 9, 2007 meeting, the HFN raised concerns about logging by Island Timberlands in a grandparented Ungulate Winter Range area.  The Ministry agreed to check into that matter.  

[108]       In October 2007, HFN again claimed that logging had occurred in areas that formed part of the grandparented Ungulate Winter Range, and the MOFR agreed to contact Island Timberlands.  Island Timberlands responded that it had GIS mapping proving that Weyerhaeuser had logged the areas prior to the 2004 Removal Decision.  Subsequently, in January 2008, HFN alleged that its forestry personnel had photographed Ungulate Winter Range areas logged in the summer of 2007.  Conflicting affidavits were filed by HFN and Island Timberlands as to whether this logging occurred before or after the Removal Decision.  Without cross-examination on the affidavits or further evidence, I am unable to reach a conclusion as to whether Island Timberlands carried out logging in areas where the 2005 Order or the Minister’s letter would have prohibited it. 

Termination of the corporate table process

[109]      The corporate table process went on for several more months, but discussions reached an impasse by October, 2007, and are not continuing.  As well, so far as I was made aware, it appears that the treaty process is still at Stage 4.  

Attempt to develop a consultation protocol

[110]       The meeting between the parties on October 31 that followed the tabling of the proposed Planning and Forestry Agreement and its rejection by the HFN resulted in a plan to press forward with a consultation protocol as a priority item, given the impending end of the two-year court-ordered consultation.  A consultation protocol had been under discussion between the parties since at least November, 2005.  The Ministry agreed to fund a consultant suggested by HFN to assist in the development of the consultation protocol.  Drafts were circulated and meetings were held to discuss its terms.

[111]       On December 7, 2007, the parties met again.  At the meeting, the draft “Interim Forestry Consultation Protocol” was produced by the Crown.   The HFN made reference to the recently-issued decision in Tsilhqot’in Nation v. British Columbia2007 BCSC 1700 (CanLII), [2008] C.N.L.R. 112 in which the court stated that the province has no jurisdiction to extinguish aboriginal title.  Island Timberlands took part in a portion of the meeting. 

Attempt to reach MOU with Island Timberlands

[112]       The petitioners produced evidence that they had hoped to develop the same kind of working relationship with Island Timberlands that had existed with Weyerhaeuser.  Weyerhaeuser, when it owned the lands (which were still within TFL 44), had signed a Memorandum of Understanding with HFN addressing economic opportunities, communication and consultation requirements, and the use of Hupacasath crews with technical expertise in fisheries and archaeology.  The parties had also negotiated a Cultural Heritage Resource and Fisheries Assessment Consulting Contract.  

[113]       After the sale of the lands to Brascan, although there were some initial discussions, Brascan did not pursue a MOU with the HFN.  

[114]       Following the 2005 Decision, there were discussions between Island Timberlands and HFN regarding a possible agreement. The HFN sought (among other matters) 30 meter buffers around fish bearing creeks, a change to Island Timberlands’s archaeological matrix which would take into account historical upland activities by the Hupacasath, and participation by HFN in the discussions between Island Timberlands and the Ministry of the Environment regarding the revision of the Ungulate Winter Range areas.  No agreement was reached on those matters.  

[115]       The HFN also suggested that the Ash River MOU should be considered as a model.  There were discussions aimed at developing a Memorandum of Understanding or a brief Letter of Understanding (that would govern the relationship during the term of paragraph 8 of the 2005 Order), but no agreement was reached.  

[116]       HFN provided a document called the “Framework for Island Timberlands Activities that Impact Hupacasath Rights”, dated June 10, 2006.  Island Timberlands sent a letter in response dated October 17, 2006, stating its “willingness to work with the Hupacasath beyond that which is required by the law”, adding that Island Timberlands “must retain its ability and rights to conduct its business operations in the manner it feels best represents its shareholder’s interests, all within the parameters of the law”.  It referred to a number of matters, including:  the provision of a confidential overview map outlining where activities may occur during the next 18 months, and a commitment to review this map with the HFN; a “steady dialogue” on potential business opportunities; its provision of 14 days’ notice of activities which may affect HFN asserted interests; HFN involvement with Archaeological Impact Assessments and Culturally Modified Tree surveys; its willingness to share the China Creek Watershed Assessment Procedure final reports; its maintenance of a “good neighbour” policy of “providing reasonable access to all First Nations, including Hupacasath, subject to restrictions based on safety, environmental concerns and vandalism”; and its welcoming HFN participation in the West Island Woodlands Advisory Group.  

[117]       With respect to specific issues raised by the HFN in the Framework document, the Island Timberlands letter responded with statements that it abides by applicable legislation, sometimes with further elaboration.  For example, with respect to the issue of cutting timber to the edges of streams, the response was:

Island Timberlands abides by all applicable legislation, including the Private Managed Forest Land Act and regulations and the federal Fisheries Act to determine its parameters of operations along water courses.  In addition to this, Island Timberlands does watershed assessment procedures in key watershed which utilize multi-stakeholder input and takes a site specific approach to managing for fish habitat, water quality and other values.  Retention is anchored to other values such as riparian areas.  Through certification, Island Timberlands is developing a stream decision planning that will have buffers and assessment procedures documented.

On the question of consultation, the letter states:

Consultation is the duty of the Crown not a private company operating on private lands.  However, Island Timberlands is committed to an ongoing relationship with the Hupacasath to share information for mutual benefit.  

[118]       That letter captures well the gist of the position taken by Island Timberlands throughout the discussions:  it would abide by applicable legislation, and conduct itself as a good neighbour.  This would include providing access to the Removed Lands for the Hupacasath, as would be provided to other First Nations, subject to safety and other concerns.  

[119]       The final meeting was on December 6, 2007.  At that meeting, Island Timberlands confirmed that it did not want to sign an MOU with HFN.  

[120]       The evidence tendered by the HFN was that they found it very difficult to deal with Island Timberlands, in contrast with their relationship with the previous landowner, and that although they tried to respond to notices from Island Timberlands regarding intention to carry on logging activities in various areas within the Removed Lands, the timelines were too tight (seven days) and the process was ineffective from their point of view.  They also deposed that they had difficulty in achieving access to the Removed Lands for spiritual practices and other activities.  Trevor Jones deposed that most of the access to the Removed Lands is gated and locked and that until December 2007, the HFN did not have copies of any keys.  Mr. Jones deposed that meetings with Diane Medves, then the Island Timberlands representative, were postponed or cancelled on a number of occasions.  He also stated that there was little feedback from Island Timberlands regarding HFN responses to notices.  

[121]       The evidence presented by Island Timberlands, however, was that it provided notices 14 days in advance, going beyond the requirement of the 2005 Order, and that it almost always found the HFN responses to their notices insufficiently specific.  (The HFN response to this was that in some cases specificity is not possible because of the nature of the activity, such as plant gathering, or because of the need to keep information about the specific location of sacred sites confidential.)  As to access issues, Island Timberlands said that its position consistently was that Hupacasath members could come onto the Removed Lands to do site reviews, so long as they checked first to ensure against safety issues, and that keys would be provided to locked gates where needed.

[122]       Diane Medves deposed that in an early meeting (September 2005) Island Timberlands “explained to the HFN that, as a private company operating on private lands, the approach to be followed by Island Timberlands in relation to its dealings with the HFN might be different from policies followed by Weyerhaeuser in regard to lands administered within TFL 44” and that in Island Timberlands’s view the Ash River MOU was not an appropriate model since it arose from the transfer of Crown lands to Weyerhaeuser in exchange for Weyerhaeuser’s transfer of some of its private lands to the Crown.  

[123]       Island Timberlands’s position was that it wished to develop an ongoing “good neighbour” relationship with the HFN, but that it retained ultimate decision-making authority over its private lands.  Ms. Medves deposed that insofar as the discussions with HFN were concerned, any references made by Island Timberlands to variable retention and stewardship zoning of old growth were not references to Ungulate Winter Ranges, since the Removed Lands were no longer subject to the regulations establishing Ungulate Winter Ranges although there were discussions between Island Timberlands and the Ministry of the Environment regarding the possible identification of new Ungulate Winter Ranges on the Removed Lands.  

[124]       Bill Waugh of Island Timberlands, in his affidavit sworn March 5, 2008, stated that discussions about the creation of new Ungulate Winter Ranges on the Removed Lands are ongoing, but that “in the meantime, Island Timberlands has maintained the Wildlife Habitat Areas applicable to the Removed Lands”.  As to the notices to the HFN, Mr. Waugh deposed that the company began including digital maps delineating boundaries of proposed cut blocks, and that “although the degree of specificity provided by the HFN has improved somewhat … it has rarely approached the degree of detail that Island Timberlands requires if it is to consider modifying its harvest plans to avoid the disturbance of sacred or traditional use sites of the HFN.”

[125]       Mr. Waugh deposed that in the end, the company declined to conclude a Memorandum of Understanding with HFN because of “the expectations of the HFN for a degree of control over, and curtailment of, Island Timberlands activities on its privately held land that are not acceptable to Island Timberlands”.   

[126]       However, he stated that the company intends “to consider information about sacred sites provided by the HFN in planning its harvest activities on the Removed Lands, where this is provided in a useful form, notwithstanding the expiry of Island Timberlands’ obligations under paragraph 8 of the Order.”  He deposed that Island Timberlands will continue to comply with the requirements of the Heritage Conservation Act and to have Archaeological Impact Assessments conducted by third party consultants prior to harvesting.  He deposed that,  “In addition to participating in formal AIA’s, it has always been open to the HFN to access the Removed Lands in order to conduct their own reviews of sacred sites, or to carry out their traditional practices.  Island Timberlands follows the same rules regarding public and First Nations access to the Removed Lands as were used by Weyerhaeuser when the Removed Lands were administered within TFL 44.”  He stated that he has advised HFN representatives that “if their ability to access the Removed Lands is impeded by a locked gate, Island Timberlands will issue them a key once they sign the required form.”

[127]       In summary, he deposed:

Notwithstanding the absence of a regulatory regime requiring Island Timberlands to communicate with neighbouring First Nations in regard to its activities, and the expiry of paragraph 8 of the Order, it has been and continues to be Island Timberlands’ intention to work at developing a positive relationship with the HFN, and to provide them an opportunity to raise concerns regarding Island Timberlands’ activities.

[128]       No resolution of the issues was reached and the previous arrangements with Weyerhaeuser have not been continued.  

4.  The Post-Two-Years Phase

[129]       Discussions continued even as court proceedings went forward, and the parties met on January 9, 22, 30, and February 8, 2008.  The province delivered an offer to settle on April 25, 2008, which was not accepted by the Hupacasath.

[130]       At the January 9, 2008 meeting, a further version of the Planning and Forestry Agreement was put forward, along with a draft consultation protocol.  However, the HFN referred to the decision in Tsilhqot’in.  They stated that they were no longer interested in signing a consultation protocol but, instead, wished to explore an alternative approach of shared decision-making through a Joint Forestry Council.

[131]       The HFN also told the MOFR representatives that there had been logging on the Removed Lands on a grand-parented Ungulate Winter Range, and stated their position that it was up to the Ministry to take steps to enforce the court order.  The Ministry asked for more detail as to the location of the logging but indicated that it did not believe it had the ability to enforce conditions on the Removed Lands.

[132]       Although the MOFR representatives argued against the change in direction, they tabled another version of a Planning and Forestry Agreement, with a provision referring to a Planning and Forestry Working Group, at the meeting on January 22, 2008.  HFN representatives, according to the draft minutes of that meeting, said that they were changing their approach consistent with a post-treaty environment, and they would meet face to face at a Joint Forest Council.  They thanked the Ministry for its work on the consultation protocol but declined to pursue it.  As well, it appears that HFN representatives reminded the Ministry of the proposal to move the Ungulate Winter Range to Grassy Mountain.

[133]       The meeting of January 30, 2008, continued to discuss the draft Planning and Forestry Agreement, including the BCTS Forest Stewardship Plan, which rolled in a Working Group concept.  As well, there was further discussion about the HFN belief that Island Timberlands had been recently logging on portions of a grandparented Ungulate Winter Range.  The Ministry representatives said again that they had no enforcement authority on private lands.  

[134]       A final meeting on February 8, 2008, failed to reach agreement.

[135]       However, the Ministry delivered an offer to the Hupacasath on April 25, 2008, through counsel.  The offer was not said to be “without prejudice” and there was no claim of privilege advanced.  The Crown offered to settle all outstanding matters with respect to the removal of private lands from TFL 44.  The letter set out a number of terms, including:  the establishment of a joint Natural Resource Working Group with $50,000 funding over an initial five-year term; a Forest and Range Evaluation Program monitoring pilot project with $70,000 funding to cover development and implementation of the pilot and undertaking necessary cultural heritage and archaeological resource inventories;  possible future sharing in carbon management on the traditional territory; continued development of a Natural Resource Management Issues Resolution process; an up to 800 hectare Woodlot Licence within TFL 44 in the Great Central Lake area; a second Woodlot Licence of up to 362 hectares in the Beaver Creek area; interim payments of $114,000 per year for five years; BCTS to (wherever feasible) incorporate elements of the HFN Land Use Plan into planned operations and to work with HFN to develop a forest management plan for certification purposes in HFN territory; exploration of methods for incorporating the sustainable forest management plan; and HFN to be at liberty to apply for a salvage licence in BCTS operating areas.

[136]       The letter refers to revenue sharing, to be addressed in incremental treaty talks.  It also refers to past funding provided for the HFN Traditional Use Study ($75,000) and for the development of the Natural Resource Management Issues Resolution process ($80,000).

[137]       The letter states:

With respect to the private lands, they will remain bound by the protections to aboriginal cultural heritage objects and sites provided by the Heritage Conservation Act.  We have had success in developing reporting protocols for violations or potential violations of the Actand would be most pleased to develop one with HFN.  HFN, of course, would also have the protections of any agreements or arrangements it has made with Island Timberlands.

[138]       The Ministry’s offer to settle was not accepted.  Chief Sayers, in an affidavit sworn May 28, 2008, reviewed the offer’s proposed terms.  She stated her opinion that:  the proposed joint Natural Resource Working Group, lacking in shared decision making power, would likely be ineffective and would require considerably more funding; monitoring work was already underway in connection with Forest and Range Evaluation Program proposal and was not “aimed at addressing the adverse effects of the Minister’s Removal Decision on our rights and title”; the offer was only to talk about carbon management; the offered Woodlot Licence in the Great Central Lake area was no more than what had been offered previously under an “FRA/FRO”, and it envisioned location of the Woodlot Licence at the base of Thunder Mountain, one of Hupacasath’s most sacred sites; the other Woodlot Licence offered roughly the same volume already available to the HFN through an FRA/FRO; and the interim annual payments of $114,000 for five years were the amount (per capita) that was already available to the HFN through an FRA/FRO independent of the Removal Decision.  Similarly, Chief Sayers deposed, consultations with BCTS and resulting accommodations existed independently of the Removal Decision as did possible incorporation of the sustainable forest management plan in the timber supply analyses; and HFN was already free to apply on a professional basis for a salvage licence.

[139]       With respect to the development of a Natural Resource Management Issues Resolution process, the Sayers affidavit states that each of the ‘priority issues” identified in the offer (location of float homes, cultural cedar management, location of Old Growth Management Areas, and management of riparian areas) involves its own consultation process.  She deposed that the $80,000 provided by ILMB had “produced a study at their insistence, identifying both environmental and physical constraints to keeping illegally moored float homes on Great Central Lake”, and that the “cedar needs study was completed in 2004/2005 and awaits implementation”, and dealt with the issue of retaining enough cedar on Crown lands to meet HFN needs – a matter the Province was required to deal with independent of the Removal Decision.   In summary on this point, Chief Sayers’s affidavit states that “the Minister is attempting to utilize his consultation obligations on other issues to address the Removal Decision”.  

[140]       The petitioners’ position is that in some respects the April offer is worse than the October 12, 2007 proposal.  They say that, for example:  it does not contemplate continued technical working group meetings to discuss land use issues; it requires application for the two wood lots; the offer for funding for “gap analysis” is gone; $20,000 for Forest Resource Evaluation Program assistance is gone; a deferral of three specific areas for operational planning near Beaver Creek for three years is gone; and the reapportionment decision is no longer delayed but has been made.  

[141]       Chief Sayers also deposed that on May 27, 2008 she was called and advised by Bob Friesen, Assistant Deputy Minister, MOFR, that the Minister had made his decision on reallocation, including the 8,000 cubic metres offered to the HFN in the April 25, 2008 offer of settlement letter.

Findings on disputed issues

Responsibility for delay in discussions

[142]       First, the parties disagree as to the impact of the Province changing its lead representative in September 2006 (from Cindy Stern to Darrell Robb) after almost nine months of consultation had passed.  The HFN position is that this caused considerable delay, particularly because they had invested a good deal of time in taking Ms. Stern through the evidence regarding their use of their claimed traditional territory.  (My view is that some review of that evidence may have been appropriate in the context, though perhaps not in the detail required by the Crown, given the existence of the findings in the 2005 Decision.)  The Crown’s position is that the change did not cause appreciable delay, because Peter Poland provided continuity and was able to brief Darrell Robb as to all that had transpired.  

[143]       Having looked at the consultation record, I conclude that the change of lead representative by the Province did cause some delay.  The record suggests that if Mr. Robb had been involved from the outset it is likely that the parties would have exchanged concrete positions sooner, achieving more clarity, and possibly more progress, within the two-year period set by the 2005 Decision.

[144]       I also find that the pace of the Crown’s responses was slow, with, for example, a seven month delay between the March 2007 draft of the Planning and Forestry Agreement and Mr. Robb’s October 2007 letter.  I do not see evidence of deliberate attempts to slow down or delay the process.

Confusion as to mandates

[145]       Second, the Hupacasath take the position that the number of different processes, Ministries and agencies involved made the court-ordered consultation confusing.  The HFN representatives say that it was unclear to them for some time (till July, 2007) that the corporate table process was meant to be part of the treaty process, rather than settlement discussions about three pieces of litigation (including this one).  They say that it was unclear to them prior to July, 2007 that the accommodation to which they believed they were entitled as a result of the Removal Decision would not be available in the corporate table process.  On the other hand, the Crown’s position is that it was at the HFN request, or at a minimum with their agreement, that the corporate table process was begun, and that it was made clear that the court-ordered consultations with the MOFR had to continue separately.  

[146]       I find that both parties believed that involving other Ministries and agencies in the discussions would be helpful — and if the corporate table process had resulted in an Incremental Treaty Agreement they would have been proved correct in that belief.  However, that is not what happened.  The exercise was indeed confusing not only for the Hupacasath but probably for all concerned, and when it failed to result in a resolution there was little time left to continue on a more straightforward route.  

[147]       I note that there is no record of the Province clarifying, when the corporate table venture began, that the corporate table process was not meant to replace the court-ordered consultation and accommodation.  Since it is the Province that (by necessity) divides its mandate among Ministries and agencies, it is incumbent on the Province to do its best to ensure that the mandate of the specific Ministry or agency with which a First Nation is interacting is made clear, and to ensure that responsibility for consultation and accommodation is not lost in the complexity of (sometimes shifting) governmental structures.  The Crown’s duty is to carry on a process that is as transparent as possible.

[148]       It is also relevant to note that, although HFN representatives raised the possibility of involving a facilitator on at least two occasions, the Crown did not agree to do so.  It seems likely that a facilitator would have been able at least to improve the clarity of the process.

Extent of the accommodation offered

[149]       Third, the Crown says that it consulted in good faith and in compliance with the court order and with the dictates of the honour of the Crown in that it offered significant accommodation to the HFN and was always prepared to address their concerns.  The Hupacasath position is that the final offer was really no better than what they could have accomplished without the court-ordered process, and that the consultation was not consistent with what was required, which was to focus on the impacts of the Removal Decision.  

[150]       It is not at all a straightforward matter to compare what the Crown offered HFN with what HFN could have had in any event as a First Nation, flowing from general provincial policies.  Further, as I will discuss below, the focus is to be on the process, not the outcome, and (to the extent that the Crown’s substantive offers are to be considered) it is not to be assumed that what would be available as a result of existing provincial policies is necessarily inadequate.  However, the following appears to be the case (referring to the October 12, 2007 offer):

(1)      the per capita payment offered to the HFN ($114,000 per annum) was in the standard amount for Forest and Range Opportunity agreements;

(2)      other items, such as the opportunity to apply for non-competitive timber licences, the development of a consultation protocol and access to undercut timber volume, are part of standard FRO’s;

(3)      an 800 acre woodlot and a 360 acre woodlot were consistent with the pre-consultation proposal for a Forest and Range Opportunity Agreement; 

(4)      the offer included items not in a standard FRO:

a.         $75,000 for a Traditional Use Study;

b.         $20,000 for a Forest Resource Evaluation Program pilot project;

c.         $80,000 for development and implementation of an issues resolution process;

d.         funding in an undetermined amount for “gap analysis” work;

(5)      the offer also promised exploration of the possibility of sharing access to carbon credit ownership and alternative calculation and delivery methods for revenue sharing; and

(6)      the reapportionment decision was delayed in order to recognize the consultation underway. 

[151]       Representatives of the Crown at the consultation meetings described the October 2007 offer as an “FRO ++”, and Crown counsel submitted that it does go well beyond what would otherwise have been available to the Hupacasath.  

[152]       Counsel for the petitioners conceded that the agreement was not wholly an FRO within the policy guidelines and that it did have a few additional features (the commitment for the Traditional Use Study and the funding for the “issues resolution process”).  

[153]       However, Mr. Grant submitted that the additional features did not constitute accommodation for the Removal Decision since the funding for a Traditional Use Study had been under discussion prior to the Removal Decision and was never intended as accommodation for the Removal Decision, and the need for the “issues resolution process” arose from the Crown’s failure to enforce its own legislation with respect to unauthorized float homes and cabins at Great Central Lake – thus, the funding for that process, he argued, is wholly unrelated to the consultation regarding the Removal Decision.   

[154]       Counsel for the petitioners also emphasized that none of the accommodations offered by the Crown did anything to address the impact of the Removal Decision on the ability of the HFN to exercise their aboriginal rights on the Removed Lands.  Counsel for the Crown responded that there were in fact some aspects that did:  the assessment of HFN cedar needs and possible access to cedar on Crown lands to meet those needs; and the discussions between the Crown and Island Timberlands regarding maintenance of Ungulate Winter Ranges.

[155]       I find that the October 12, 2007 offer did somewhat exceed what would otherwise have been available to HFN in a FRO, as did the subsequent offer on April 8, 2008 (which added to the previous offer in some respects, for example, increasing the funding for the FREP and the issues resolution process, but also removed some other items from the table).  

[156]       I find that there was little in the Crown’s offer specifically relating to the HFN concerns regarding their possible future exercise of aboriginal rights over the Removed Lands, except for the expression of willingness to consider possible increased access to cedar on Crown lands as compensation.  The discussions between the Crown and Island Timberlands (required by the Minister as part of the Removal Decision, and not referred to in the October 12, 2007 offer) regarding maintenance or creation of Ungulate Winter Ranges and other critical wildlife habitat areas, also related to HFN concerns but unfortunately those discussions did not include the Hupacasath, did not bear fruit and from the evidence available do not appear likely to do so in the future.  

[157]       Reviewing the consultation record, one sees a number of occasions when HFN representatives suggested possible accommodations relating to the Removed Lands that went beyond financial compensation – such as legislative change, or purchase of Grassy Mountain to preserve it as a sacred site.  The record shows that the Crown declined to engage with respect to those suggestions, instead agreeing only to review the ways in which current legislation applies to the Removed Lands.

Reasonableness of the Hupacasath expectations

[158]       Fourth, the Crown’s position is that the HFN “had their eyes on a bigger prize” and were unrealistic in their expectations.  There was some suggestion that, in the Crown’s view, the HFN were not really as interested in the sacred sites and ongoing maintenance of cultural practices as they were in economic compensation.  Counsel for the Crown referred to the August 11, 2006 letter in which the phrase “Compensatory Value – Priceless – 1.5 Billion” was used, and a $40,000,000 figure quoted.  Counsel for the HFN submitted that the August 11 document, in context, expresses the position that the impact of the Removal Decision was enormous – what was lost in terms of sacred sites, access to resources needed for maintenance of HFN cultural and spiritual practices was “priceless” — but that the Hupacasath were being realistic and addressing the kind of compensation they might have to accept in lieu of what they had lost.  Further, Mr. Grant pointed out that the figure related to the Removal Decision was $25,000,000, not $40,000,000.

[159]       I find that the consultation record shows the HFN consistently raising the issue of access to sacred sites and resources important to the preservation of their culture.  The fact that, in the face of the Crown’s consistent refusal to discuss ways of dealing with those issues on the Removed Lands, they considered other options that would draw on the remaining Crown lands or on economic compensation, in my view shows realism rather than the opposite.  

[160]       As to the reasonableness of the level of the accommodation measures the HFN sought, it is again difficult to assess and I refrain from drawing a conclusion because it is unnecessary for me to do so.  The record does show that after December 2007 (following the release of the Tsilhqot’in Nation decision), the HFN position hardened and they sought shared decision-making rather than a consultation protocol.  However, I do not find evidence in the record to support a conclusion that the HFN approached the consultation discussions in bad faith or that they were unwilling to “give and take” in the discussions.

ISSUES

[161]       The issues to be determined on this application are:

I.         Does the Crown’s interest (through British Columbia Investment Management Corporation) in Island Timberlands LP affect the issues in this case?

II.         What standard applies to the assessment of the Crown’s consultation and accommodation efforts?

III.         Has the Crown met its duty to consult and, if necessary, accommodate the HFN?

A.        Did the Crown correctly understand what was required?

B.        Were the steps the Crown took to consult with and accommodate the Hupacasath reasonable?

IV.        What remedy should be granted, if any?

I.         DOES THE CROWN’S INTEREST (THROUGH BRITISH COLUMBIA INVESTMENT MANAGEMENT CORPORATION) IN ISLAND TIMBERLANDS LP AFFECT THE ISSUES IN THIS CASE?

[162]       In 2005, Reid Carter, a representative of Island Timberlands, swore an affidavit referred to at the hearing leading to the 2005 Decision.  His affidavit set out how Island Timberlands came to hold an interest in lands that include the Removed Lands and described the advantages for the investors flowing from the Removal Decision.  Mr. Carter deposed that Island Timberlands LP is a limited partnership involving “two Canadian institutional pension funds”.  He did not state the names of the pension funds.

[163]       Chief Judith Sayers swore an affidavit on May 1, 2008, stating that she had instructed legal counsel to inquire into the ownership of Island Timberlands LP.  She deposed that as of about June 22, 2005, the limited partners of Island Timberlands changed to include 4246276 Canada Inc. and 4246268 Canada Inc., and that on or about August 12, 2005, 4246276 Canada Inc. and 4246268 Canada Inc. changed their names to British Columbia Investment Management Corporation (“BCIMC”).  According to the capital contributions shown on the Island Timberlands limited partnership registration filed on June 22, 2005, which Chief Sayers attached as an exhibit to her affidavit, BCIMC owns approximately 25% of Island Timberlands.  

[164]       BCIMC is established under s. 16 of the Public Sector Pension Plans Act, S.B.C. 1999, c. 44 (“PSPPA”).  Subsection 16(5) states that BCIMC is an agent of the government.  Under s. 17, the capital of BCIMC is one share, issued and registered in the name of the Minister of Finance on behalf of the government of British Columbia.  BCIMC provides fund management services for public bodies and publicly administered trust funds, including the pension plan for the Members of the Legislative Assembly of this province.  According to material that Chief Sayers downloaded from the BCIMC website, BCIMC also manages British Columbia government operating funds, and as of March 31, 2007, about 0.7% of the funds that BCIMC managed were British Columbia government operating funds.

[165]       According to its 2006 – 2007 Annual Report, as of March 31, 2007, BCIMC had a further interest in Island Timberlands through ownership stakes in two other corporate limited partners of Island Timberlands, Brookfield Asset Management (3,761,477 common shares) and Brookfield Property Corp. (777,938 common shares).

[166]       According to a public document from the Minister of Forests, Economics and Trade Branch, which Chief Sayers attached to her affidavit, BCIMC also has an indirect interest in the company holding the licence for TFL 44, that is, Western Forest Products Inc.  The document shows that as of March 2007, BCIMC’s interest in Western Forest Products Inc. is through its stake in Brookfield Asset Management, which has 100% (and thus control) of Tricap Asset Management Ltd., which in turn owns 70% of Western Forest Products Inc.

[167]       This evidence was not disputed, except for one matter of detail set out below.

[168]       Chief Sayers deposed that she did not learn that BCIMC had a significant investment in Brookfield and Island Timberlands LP until the middle of January 2008, and that she did not know about these investments when this matter was before the court in 2005.  She stated that BCIMC’s interest in Brookfield and Island Timberlands LP was never disclosed by either Brascan or the respondent Minister.

[169]       Douglas Pearce, the Chief Executive Officer and Chief Investment Officer of BCIMC, deposed in an affidavit that since its establishment, BCIMC has operated at arms-length from the government and makes all investment decisions independently, without interference or input from the government.

[170]       Mr. Pearce stated that the arms-length nature of the relationship is reflected in the structure of BCIMC’s Board of Directors.  Four of the seven directors are appointed by trustees of public pension plans, two Board members are appointed by the Minister of Finance to represent BCIMC’s other clients, and the Chair of the Board is appointed by the Minister of Finance.  Mr. Pearce also stated that the Board of BCIMC is legislatively prohibited from any involvement in the day-to-day investment decisions of BCIMC.  He said that although the clients of BCIMC provide “Statements of Investment Policy and Procedures”, which indicate what percentages of their funds should be placed in certain types of investment (e.g., real property, foreign securities, etc.) and the Board ensures that BCIMC acts in accordance with these Statements, BCIMC is not directed by either its clients or the Board to make particular investments.  Mr. Pearce deposed that investment decisions are made by the Chief Investment Officer, who is charged under s. 21(3) of the PSPPA with supervising the day-to-day operations of BCIMC, “including a determination of which assets to buy and sell”.

[171]       Mr. Pearce’s affidavit also corrects the affidavit of Chief Sayers in its description of the changes of name of 4246276 Canada Inc. and 4246268 Canada Inc.  Mr. Pearce deposed that 4246276 Canada Inc. changed its name to bcIMC (REYKN) Investment Corporation and 4246268 Canada Inc. changed its name to bcIMC (WCBAF REYKN) Investment Corporation.  The affidavit confirms that both of these companies are limited partners in Island Timberlands.  Mr. Pearce deposed that as limited partners, these companies do not take an active part in the business of the partnership or exercise any control over the operations of the partnership that holds the lands at issue in this matter.

[172]       The petitioners’ position is that the Crown is in conflict of interest since BCIMC, an agent of the government, is a substantial investor in both Island Timberlands LP, the owner of the Removed Lands, and in Western Forest Products Inc., the licencee over the Crown lands covered by TFL 44.   Mr. Grant submitted that these interests should have been disclosed and were not.  Mr. Grant suggested that the conflict is evident when one considers that the Supreme Court of Canada said in Haida Nation (at para. 55) that regulatory measures could be taken if necessary to protect aboriginal rights with respect to private land, but that if the provincial government were, for example, to use legislation to protect Grassy Mountain for the benefit of the petitioners in this case, such a step could lower the value of provincial employees’ pension plans.  Mr. Grant submitted that, in considering whether to grant the orders sought in this case, the financial interest of the Crown (through BCMIC) in Island Timberlands should be borne in mind, though he did not suggest bad motives or wilful deception on the part of the Crown.  

[173]       With respect to the suggested conflict of interest, Mr. Phillips submitted that  BCIMC is an arm’s-length entity and that its investment decisions are made without involvement of the government.  Responding to Mr. Grant’s question as to why the Crown did not reveal that it held an interest in Island Timberlands through BCIMC, Mr. Phillips advised the Court that he was not aware that BCIMC held an interest in Island Timberlands prior to the petitioners raising the issue in these proceedings.

[174]      Mr. Isaac for Island Timberlands similarly advised that he had not been aware of the Crown’s indirect interest in Island Timberlands. 

[175]       While there was no suggestion, and I do not find, that the Crown wilfully withheld information from the court, the financial interest of the Province and provincial employees through BCIMC in Island Timberlands, and thus in the Removed Lands, and in Western Forest Products Inc. through Brookfield Asset Management, are matters that should have been disclosed to the petitioners and to the court, along with the other information as to the structure of BCIMC and its arms-length investment decision-making.  The information is relevant because it may bear on the extent to which Island Timberlands is actually a “third party” private landowner whose interests should remain unaffected by the relationship between the Crown and First Nations.  That position of Island Timberlands as a third party was suggested in the submissions of both Island Timberlands and the Crown at the hearing leading to the 2005 Decision, and in the hearing of the present application.  The information as to the BCIMC stake in Western Forest Products Inc. is possibly relevant for similar reasons.

[176]       Having said that, considering the evidence as a whole, I do not find that the existence of BCIMC stakes in Island Timberlands and Brookfield Asset Management has significant bearing on the issues before me.  There is no evidence of direct involvement by the Province in BCIMC investment decisions; in fact, the structure of BCIMC is designed to avoid that.  The existence of the province’s financial stake in the private landowner may add a nuance to the characterization of Island Timberlands as a third party but does not alter that characterization.

II.         WHAT STANDARD APPLIES TO THE ASSESSMENT OF THE CROWN’S CONSULTATION AND ACCOMMODATION EFFORTS?

Positions of the Parties

[177]       The Crown submits that the court’s 2005 Decision forecloses the risk that the government might have misconceived the strength of the HFN’s claim or the seriousness of the impact of potential effects of the Removal Decision, and the Crown relies on the authorities (to which I will refer) holding that the Crown’s duty, absent such misconception, is to be assessed on a standard of reasonableness.

[178]       The petitioners’ position is that although it related to claims advanced but not yet proved, the consultation in this case was in some respects a remedial consultation framed by the Court’s findings in the 2005 Decision.   In other words, this was not a “from scratch” consultation.  Thus, the test to be applied to the Crown’s conduct, Mr. Grant argued, is not necessarily just reasonableness – instead, the test must be informed by the context of the 2005 decision.  

[179]       As I will describe below, the petitioners’ position is that the Crown misconceived its duty, did not meet what was required by the 2005 Decision, and did not meet the test of basic reasonableness.  The Crown’s position is that it properly understood its constitutional duty, and more than fulfilled it.

Authorities

[180]       The authorities are clear that the Crown’s efforts at consultation and accommodation are to be measured against a standard of reasonableness, unless the Crown has misconceived the seriousness of the claim or the impact of the infringement.  In that event, it would likely be a question of law assessed by the standard of correctness.  The focus is on the process of consultation and accommodation, not the outcome.  

[181]       The Supreme Court of Canada stated in Haida Nation at paras. 62-63:

62        The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right in question”: Gladstonesupra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikalsupra, at para. 110, “in … information and consultation the concept of reasonableness must come into play… . So long as every reasonable effort is made to inform and to consult, such efforts would suffice.” The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty. 

63        Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government’s process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation. 

[182]       Gitanyow First Nation v. British Columbia (Minister of Forests)2004 BCSC 1734 (CanLII), 38 B.C.L.R. (4th) 57, dealt with an application in circumstances somewhat similar to those before me.  In a previous decision involving the parties Tysoe J. (as he then was) had found that the Minister of Forests had not fulfilled his duty of consultation and accommodation when he consented to the change in control of Skeena Cellulose Inc. (one of whose owners was the Province) to new owners, but did not quash the Minister’s decision, instead giving the Minister further opportunity to fulfil his duty.  The First Nation then applied for further relief because it was dissatisfied with the level of consultation and accommodation afforded.  In discussing the approach to be taken, Tysoe J. stated at para. 50:

50        The honour of the Crown requires it to conduct such negotiations in good faith and with a willingness to accommodate Aboriginal interests where necessary. The standard by which the court will assess the efforts of the Crown must, of necessity, depend on the reasonableness of the Crown’s position. While the Crown may bargain hard and has no duty to reach an agreement, it must be willing to make reasonable concessions based on the strength of the Aboriginal claim and the potentially adverse effect of the infringement in question. If the Crown does not make reasonable concessions, it is open to the court to conclude that the Crown is not negotiating in good faith with a willingness to accommodate Aboriginal interests. 

And at para. 63 Tysoe J. wrote:

63        In assessing the adequacy of the Crown’s efforts to fulfil its duty to consult and accommodate, the court will usually look at the overall offer of accommodation made by the Crown and weigh it against the potential impact of the infringement on the asserted Aboriginal interests having regard to the strength of those asserted interests. The court will not normally focus on one aspect of the negotiations because the process of give and take requires giving in some areas and taking in other areas. It is the overall result which must be assessed. … 

[183]       In a recent decision of this Court (Wii’litswx v. British Columbia (Minister of Forests)2008 BCSC 1139 (CanLII), [2008] B.C.J. No. 1159, Neilson J. (as she then was) referred with approval to that decision and adopted a similar approach. 

[184]       The Court of Appeal for British Columbia has stated that, while there is a constitutional duty on the Crown, it does not necessarily follow that there is a constitutional right to be consulted or accommodated (Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and Resources), 2008 YKCA 13 (CanLII), 71 R.P.R. (4th) 162 at para. 88.  The Court also held in that case that the duty continues to apply in the implementation of treaties (at para. 91), supporting the proposition that the duty is ongoing and must be understood in its overall context in each case.

[185]       In Ahousaht Indian Band v. Canada (Minister of Fisheries and Oceans)2008 FCA 212 (CanLII), 37 C.E.L.R. (3d) 89, the Federal Court of Appeal summarized its conclusions about the applicable standard of review, stating its view that the standard of review as described in Haida Nation remains unaffected by Dunsmuir v. New Brunswick2008 SCC 9 (CanLII), 64 C.C.E.L. (3d) 1, at para. 34:

34        Thus, in my view, the determination of the existence and extent of the duty to consult or accommodate is a question of law and, hence, reviewable on a standard of correctness. However, when the Crown has correctly determined that question, its decision will be set aside only if the process of consultation and accommodation is unreasonable. In my view, the Supreme Court’s recent decision in Dunsmuir v. New Brunswick2008 SCC 9 (CanLII), does not change the standard of review applicable in this case.

[186]       In Tzeachten v. Attorney General of Canada 2008 FC 928 (CanLII) at para. 24, Tremblay-Lamer J., taking an alternative approach, described the proper standard of review as incorporating the holding in Dunsmuir:

24        … [W]hen it falls to determine whether the duty to consult is owed and the content of that duty, no deference will be afforded. However, where a determination as to whether that duty was discharged is required, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] […] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at para. 47).

[187]       I conclude that the standard of review for whether the Crown understood the existence and extent of its duty is correctness.  In my view, deference is not warranted on the question of the existence and nature of the constitutional duty, or, if any deference is warranted since the nature of the duty is to be determined in the context of the circumstances as a whole, that deference should be minimal.  I also conclude that the standard of review for whether the Crown complied with its duty is reasonableness.  The Crown should be afforded deference regarding its choice of consultation and accommodation process, so long as it falls within a range of possible, acceptable choices.

[188]       Because of the conclusions I have reached regarding whether the Crown understood the existence and extent of its duty, it is unnecessary for me to comment on the issue raised by the submissions of the parties and some of the recent jurisprudence, that is, on whether the courts should go beyond an examination of the process of consultation and accommodation and into an assessment of the substance of the accommodations offered by the Crown.  

III.        HAS THE CROWN MET ITS DUTY TO CONSULT AND, IF NECESSARY, ACCOMMODATE THE HUPACASATH?

[189]       Mr. Grant for the petitioners argued that the Crown misconstrued the Court’s 2005 Decision, and failed to understand the nature and extent of its duty.  He submitted that despite the lengthy process and the number of meetings, the significant fact is that the Crown basically conducted itself throughout the process as if the earlier decision had not been made.  He submitted that the Crown has done little or nothing to alleviate the impact of the Removal Decision on the HFN’s claimed aboriginal rights with respect to the Removed Lands themselves or with respect to HFN’s claimed aboriginal rights over the adjacent Crown land, and that the Crown seemed to believe that it was not required to do so.  The petitioners’ position is that the Crown offered little or nothing that would not otherwise have been available to the HFN as a result of general policies or the treaty process.  (I have already addressed that question, and have concluded that the Crown’s offer probably went somewhat beyond what would have been available as a result of general policies.  I make no finding as to what would otherwise have been available through the treaty process, or as to the adequacy of the Crown’s offer.) 

[190]       The petitioners say that the Crown was required to do more than talk to them or to include them in general programs available to all First Nations.  Instead, they say, reasonable steps to accommodate their specific interests, in effect compensating them for the Removal Decision, were necessary.

[191]       Mr. Grant argued that when the MOFR tendered proposals for the HFN’s consideration, these proposals failed to acknowledge what the 2005 Decision had said with respect to consultation and accommodation.  He argued that it was particularly significant that the proposal delivered on October 12, 2007, near the end of the process, was prefaced with the comment, “[a]t this time we are unsure what, if any, accommodation is in fact required in these circumstances”.  The proposals related solely to Crown lands and not to the Removed Lands, and, the petitioners say, never addressed the effects of the decision on issues raised by the HFN both in court and in consultations, including the impact of the decision on sacred sites, the protection of village sites, the protection of wildlife habitat, the provision of access for gathering of foods, medicines and other materials, protection of culturally modified trees, or land-based access to two HFN reserves which are only accessible by water if the Removed Lands are closed off to the HFN.  Mr. Grant submitted that there was no adjustment of the Minister’s policies, even minimally, in order to attempt to preserve the HFN’s ongoing connection to the Removed Lands pending resolution of their claims through treaty negotiations.  This, he urged, reflects the Crown’s “high-handed” and “unilateral” approach to consultation and accommodation.  

[192]       The petitioners’ position is that the Crown, if it had properly understood its duty and had consulted with them prior to the Removal Decision, could have imposed conditions on granting the Removal Decision such as those embodied in the Ash River MOU of November 30, 2000, when lands were transferred from the Crown to Weyerhaeuser in exchange for other lands.  Counsel for the petitioners argued that because the consultation at issue was ordered by the court as a remedial measure following the Crown’s failure to consult prior to a decision, some of the guidance provided by Haida Nation does not apply.  For instance, he argued, because the Court’s findings in 2005 provided the Minister with the necessary preliminary assessment of the strength of the Petitioner’s rights and title claims, it was not necessary for the Ministry to undertake its own assessment.  Similarly, the petitioners say that their evidence in support of their rights and title claims was accepted by the court and reflected in its findings, and this relieved the HFN of its reciprocal duty to “outline” their claims to the Minister (although the petitioners in fact did so in the event).

[193]      Mr. Grant pointed out that while the B.C. Court of Appeal in Haida Nation v. B.C. and Weyerhaeuser2002 BCCA 147 (CanLII), 99 B.C.L.R. (3d) 209 (Haida BCCA) spoke of the Crown’s obligation to “seek an accommodation”, in Haida Nation and Taku the Supreme Court of Canada stated that the Crown’s duty is to “consult and, if necessary, accommodate”.

[194]       He submitted that the Crown was wrong to fetter its authority to consult and accommodate the HFN by giving priority to the rights of a fee simple title holder and accepting those rights as constraining its consideration of the HFN’s concerns.  He argued that the Crown must balance competing societal interests (including Crown and Crown-sanctioned third party interests), and is not justified in assuming the subordination of aboriginal interests.  Mr. Grant suggested that the Crown could provide accommodation through legislation (as was done through the Forest Revitalization Act), by changing government policy, or through an agreement with Island Timberlands.

[195]       Counsel for the Crown, Mr. Phillips, submitted that this Court found in the 2005 Decision that only a moderate to low level of consultation was required.  The Crown’s position is that the consultation process and the accommodations offered to the HFN were more than reasonable and adequate, and that the consultation record amply supports that conclusion.  Mr. Phillips argued that the duty to consult is just that:  it is not a duty to agree.  

[196]       It is the Crown’s position that the HFN’s expectations were too high.  According to the Crown, the HFN presumed that accommodation was necessary when it was not; they initially and continually sought economic compensation out of proportion to the Court’s findings; and they viewed the situation as if lands and resources had been transferred away from them when that was not the case, since those lands and resources had been privately held well before the Removal Decision.  

[197]       The Crown’s position on the adequacy of the consultation that occurred in this case reflects its view that the purpose of consultation is to ensure that the Crown understands the extent of impacts of a proposed decision.  The Crown’s submission stresses that accommodation is not an automatic imperative, and that, according to Haida Nation, the duty to accommodate arises only where accommodation is necessary.  The Crown’s view of the 2005 Decision is that it does not contain a finding that accommodation of the HFN in respect of the Removal Decision is required.  Counsel for the Crown submitted that, even if accommodation was necessary, the Crown did propose measures that were reasonable.

[198]      The primary position of Island Timberlands is that the court lacks jurisdiction to make an order restricting its use of the Removed Lands.  However, Island Timberlands also took the position that it has no role to play in the consultation process at this point, or in regard to any accommodation to be offered or provided to the petitioners in relation to the Removed Lands decision.  Island Timberlands conveyed through its counsel, Mr. Isaac, that although it remains committed to communicating in good faith with the petitioners, facilitating their access to the Removed Lands and listening to their concerns, its position is that there is no basis in law for including it in any order for further consultation. 

[199]       Island Timberlands argued that even if this Court has jurisdiction to make the order requested, it should decline to do so.  Mr. Isaac argued that the record produced by the Crown shows a high level of consultation, that Island Timberlands as a private landowner has a legitimate expectation that it will have quiet enjoyment of its lands, and that to extend the restrictions on Island Timberlands’s quiet enjoyment in paragraph 8 of the Order would set an “extraordinary precedent for private landowners in this province”.

[200]       Mr. Isaac submitted that what is at issue is private land, for a time voluntarily subject to a Tree Farm Licence, then removed.  He argued that the voluntary inclusion of the Removed Lands under TFL 44 did not somehow re-invigorate the HFN’s aboriginal interests in the lands and said that the petitioners attribute an effect unsupported by the law to the temporary inclusion of the lands in the TFL.  The exercise of any aboriginal rights or interests, he argued, has always been subject to the rights of the private property owner.

A.        Did the Crown correctly understand what was required?

[201]       The initial question, then, is whether the Crown correctly understood the existence and extent of its duty. 

[202]       For ease of reference, I will set out here the language from the 2005 Decision describing the Crown’s duty in this case and the conclusions as to the appropriate declaratory relief: 

244     Because of the private ownership of the land, and the position taken by the province in treaty negotiations, the prospect that the HFN will in the end obtain exclusive possession of any of the Removed Lands or ownership of the resources on them seems remote.

245     However, the Removed Lands are contiguous with Crown land, and the removal decision affects the Crown land claimed by the HFN as part of its traditional territory.  The prospect exists that the HFN will obtain exclusive possession of some of that Crown land or its resources through treaty.

246     Based on the evidence before me, including the uncontradicted evidence of the Hupacasath elders regarding traditional use of the territory they describe, for the purposes of this application my preliminary assessment of the strength of the case is as follows.

247     I will first address the case regarding Crown land. I find that the HFN has shown a strong prima facie case for aboriginal rights including title with respect to the portion of their asserted traditional territory on the Crown land which is not subject to any overlapping claims. I reach no conclusions on the strength of the competing claims by other First Nations, but take those claims into account in concluding that the HFN prima facie case for aboriginal title to the portion of Crown land subject to overlap is weaker than for the other portion. Regarding the portion of their asserted traditional territory on Crown land subject to overlapping claims, the petitioners have shown a good prima facie case for aboriginal rights to hunt, fish, gather food, harvest trees and visit sacred sites. Since those rights do not require exclusivity, the existence of the overlapping claims does not in general weaken the petitioners’ case.

248     Second, with respect to the Removed Lands, I find that the petitioners have shown a prima facie case for aboriginal rights to hunt, fish, gather food, harvest trees and visit sacred sites on their asserted traditional territory, subject to the rights of the fee simple owner of that land to prohibit their access. Again, because the exercise of these aboriginal rights does not require exclusivity, I do not find that the existence of overlapping claims in general weakens the HFN case. I find that the petitioners have also shown a prima facie case for aboriginal title (if such title has not been extinguished and continues to exist with respect to the Removed Lands), with respect to the portion of their traditional territory not subject to overlapping claims. As for the portion of the traditional territory on the Removed Lands subject to overlapping claims, given the requirement of exclusivity, I find they have shown a weak prima facie case.

249     On the existing state of the law, the petitioners’ aboriginal rights with respect to the Removed Lands are at best highly attenuated. Prior to the removal decision, the owners of the lands could have decided to exclude the Hupacasath from access to the lands at any time, subject to possible intervention by the Crown through its power to control activities on the land under the TFL. Their claimed aboriginal title, if it has not been extinguished, seems very unlikely to result in the Hupacasath obtaining exclusive possession of the Removed Lands in the future. The authorities indicate that the possible availability of the land to satisfy future land claims or treaty settlements is an important consideration in determining the extent of the Crown’s duty.

250     The extent of the Crown’s duty is also proportionate to the seriousness of the potential adverse effect on the claimed aboriginal rights.

251     I have described in the preceding part of these Reasons the potential adverse effects of the removal decision on HFN aboriginal rights.

252     As a consequence of changes in activities on the Removed Lands, there might be some impact on fishing or hunting on the HFN claimed traditional territory outside the Removed Lands (and on Crown lands). I would say that the potential effect of the removal decision on the claimed aboriginal rights pertaining to the Crown land is modest.

253     With respect to the Removed Lands themselves, the previous level of regulation of logging, wildlife protection and other activities on the land has been replaced by a different and much more forgiving regime. As well, the use of some of the lands could change altogether, for example through development for housing. The potential effect of the removal decision on the claimed traditional territory in the Removed Lands is serious.

254     Taking both the strength of the HFN claim and the seriousness of the potential adverse effects into account, I find that the duty to consult was at a moderate level with respect to the Crown lands, and at a lower level with respect to the Removed Lands.

273     In summary, the Crown had a duty to consult with the HFN regarding the removal of the land from TFL 44, and regarding the consequences of the removal of that land on the remaining (Crown land) portion of TFL 44.

274     The Crown’s duty with respect to alleged aboriginal rights on the Removed Land is at a low level and does not require “deep consultation”. It does require informed discussion between the Crown and the HFN in which the HFN have the opportunity to put forward their views and in which the Crown considers the HFN position in good faith and where possible integrates them into its plan of action. The Crown has not met that duty.

275     The duty on the Crown with respect to the effect of the removal decision on aboriginal rights asserted on Crown land is higher, and requires something closer to “deep consultation”. On the evidence, the Crown did not meet that duty.

292     There will be a declaration that the Minister of Forests had, prior to the removal decision on July 9, 2004, and continues to have, a duty to consult with the Hupacasath in good faith and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.

293     There will be a declaration that making the removal decision on July 9, 2004 without consultation with the Hupacasath was inconsistent with the honour of the Crown in right of British Columbia in its dealings with the Hupacasath.

294     There will be a declaration that the Chief Forester had, prior to the August 26, 2004 decision to amend the allowable annual cut for TFL 44, and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.

[203]       In considering whether the Crown properly understood its duty in this case, it is important to keep sight of the reason for the existence of the duty to consult.  The Crown is honour-bound to consult and attempt reconciliation with aboriginal peoples when it makes decisions potentially affecting their unproven rights with respect to the occupation and use of land, because otherwise those rights may be devoid of content by the time they are recognized by courts or through treaty.  The Supreme Court of Canada wrote in Haida Nation at para. 25:

25        Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

And at para. 33:

33        To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic goal, devoid of the “meaningful content” mandated by the “solemn commitment” made by the Crown in recognizing and affirming Aboriginal rights and title:  Sparrowsupra, at p. 1108.  It also risks unfortunate consequences.  When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded.  This is not reconciliation.  Nor is it honourable.

[204]       In Haida Nation, the Supreme Court acknowledged that the level of consultation and accommodation required varies with the circumstances and may change as the process goes on and new information comes to light.  It set out some principles as it described the spectrum of what the honour of the Crown may require (at paras. 43-49):  

43        Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61. 

44        At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases. 

45        Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary. 

46        Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations….

47        When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation, as this Court recognized in R. v. Marshall1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533, at para. 22: “… the process of accommodation of the treaty right may best be resolved by consultation and negotiation”. 

48        This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.

49        This flows from the meaning of “accommodate”. The terms “accommodate” and “accommodation” have been defined as to “adapt, harmonize, reconcile” … “an adjustment or adaptation to suit a special or different purpose … a convenient arrangement; a settlement or compromise”: Concise Oxford Dictionary of Current English (9th ed. 1995), at p. 9. The accommodation that may result from pre-proof consultation is just this — seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree. But it does require good faith efforts to understand each other’s concerns and move to address them. 

[205]       With respect to third parties, the Court held that parties other than the Crown are not subject to a duty, in part because the Crown is able to achieve meaningful consultation and accommodation through its legislative powers and its ability to negotiate terms.  At para. 55 the Court stated:

55        Finally, it is suggested (per Finch C.J.B.C.) that third parties should be held to the duty in order to provide an effective remedy. The first difficulty with this suggestion is that remedies do not dictate liability. Once liability is found, the question of remedy arises. But the remedy tail cannot wag the liability dog. We cannot sue a rich person, simply because the person has deep pockets or can provide a desired result. The second problem is that it is not clear that the government lacks sufficient remedies to achieve meaningful consultation and accommodation. In this case, Part 10 of T.F.L. 39 provided that the Ministry of Forests could vary any permit granted to Weyerhaeuser to be consistent with a court’s determination of Aboriginal rights or title. The government may also require Weyerhaeuser to amend its management plan if the Chief Forester considers that interference with an Aboriginal right has rendered the management plan inadequate (para. 2.38(d)). Finally, the government can control by legislation, as it did when it introduced the Forestry Revitalization Act, S.B.C. 2003, c. 17, which claws back 20 percent of all licensees’ harvesting rights, in part to make land available for Aboriginal peoples. The government’s legislative authority over provincial natural resources gives it a powerful tool with which to respond to its legal obligations. This, with respect, renders questionable the statement by Finch C.J.B.C. that the government “has no capacity to allocate any part of that timber to the Haida without Weyerhaeuser’s consent or co-operation” ((2002), 2002 BCCA 462 (CanLII), 5 B.C.L.R. (4th) 33, at para. 119). Failure to hold Weyerhaeuser to a duty to consult and accommodate does not make the remedy “hollow or illusory”.

[206]       The point was reiterated in Taku at para. 42, where the Court said that “…the process of consultation may lead to a duty to accommodate Aboriginal concerns by adopting policies or decisions in response.”  

[207]       It is important to note, however, that both Haida Nation and Taku were decided in the context of the Crown’s policies and decision-making with respect to Crown lands, and the examples given by McLachlin C.J. in Haida Nation of possible measures available to the Crown were drawn from that context.  The measures available to the Crown with respect to privately owned lands are much more restricted.   

[208]       In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)2005 SCC 69 (CanLII), [2005] 3 S.C.R. 388, the Supreme Court of Canada applied those principles, emphasizing (at para. 63) that the determination of the duty must governed by the context.  The contextual factors to be considered are:  the specificity of promises made (for example under treaty); the seriousness of the impact of the proposed action; the strength of the aboriginal claim; the history of the dealings between the parties; and the existence of an ongoing framework within which to manage changes in land use.  The Court stated at para. 64:

64        The duty here has both informational and response components. In this case, given that the Crown is proposing to build a fairly minor winter road on surrendered lands where the Mikisew hunting, fishing and trapping rights are expressly subject to the “taking up” limitation, I believe the Crown’s duty lies at the lower end of the spectrum. The Crown was required to provide notice to the Mikisew and to engage directly with them (and not, as seems to have been the case here, as an afterthought to a general public consultation with Park users). This engagement ought to have included the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights. The Crown did not discharge this obligation when it unilaterally declared the road realignment would be shifted from the reserve itself to a track along its boundary. I agree on this point with what Finch J.A. (now C.J.B.C.) said in Halfway River First Nation at paras. 159-160. 

The fact that adequate notice of an intended decision may have been given does not mean that the requirement for adequate consultation has also been met.

The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action. [Emphasis added.]

[209]       In Mikisew, although the Court found the duty to lie at the lower end of the spectrum, it held that the Crown was required not only to listen to the Mikisew First Nation’s concerns, but also to “attempt to minimize adverse impacts” on their aboriginal rights.

[210]       In the instant case, the parameters of the Crown’s duty were set out, at least in general terms, in the 2005 Decision.  In that decision, taking into account both the strength of the HFN claim over the Removed Lands and the adjacent Crown lands, and the severity of the possible impact of the Removal Decision on the HFN asserted aboriginal rights with respect to the Removed Lands and the adjacent Crown lands, I concluded that the Crown’s duty to consult with respect to the Crown lands was at a “moderate” level, and that the Crown’s duty was at a “lower” level with respect to the Removed Lands.  The Crown was ordered to carry on informed discussion with HFN in which HFN would have the opportunity to put forward their views, and to consider the HFN position in good faith, where possible integrating that position into the Crown’s plan of action.  It was ordered to carry on something close to “deep consultation” with respect to the Crown lands.  The declaration stated that the Crown had a duty “to consult with the Hupacasath in good faith and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.”

[211]       Haida Nation and Taku were decided by the Supreme Court of Canada in 2004.  I do not believe that anyone would argue that, in the four years since those decisions were released, the calibration of the Crown’s duty to consult and accommodate has become an exact science – or a science at all.  The courts continue to work out the implications of the Crown’s duty and it is not surprising that there is disagreement between the parties in this case as to what was meant by “moderate” or “lower” level consultation.  

[212]       In other words, the law is still very much under development, as was noted by Hall J.A. in Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management)2005 BCCA 128 (CanLII), 251 D.L.R. (4th) 717 at para. 100:

100     … As I noted, we are dealing here with an area of law, aboriginal title, which Lamer C.J. referred to [in Delgamuukw] as not particularly developed. Courts will seek to fashion fair and appropriate remedies for individual cases conscious that as yet we do not have much guidance by way of precedent but, as in other fields, the common law will simply have to develop to meet new circumstances. 

[213]       However, it is clear that the calibration of the duty to consult involves two variables – the strength of the claim and the severity of the impact – with the deepest level of consultation required where the claim and the possible impact are both strong, and the shallowest level of consultation required where the claim and the possible impact are both weak (Haida Nation, at paras. 39, 43-44.)

[214]       The Supreme Court put it in different ways in Haida Nation.  At para. 37, the Court distinguished between a “dubious or peripheral claim” that may attract a mere duty of notice, and a “stronger claim” that may attract more stringent duties.  The spectrum was said to run from “cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor”, where the only duty may be to give notice, disclose information and discuss the issues (at para. 43), to “cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high”, where “deep consultation, aimed at finding a satisfactory interim solution”, may be required (at para. 44).  The goal in all cases is reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake (para. 45), and the effect of good faith consultation may be to reveal a duty to accommodate (para. 47).  Accommodation requires good faith efforts to understand each other’s concerns and move to address them, “seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation” (para. 49).  The Court stated at para. 50:

50        … Balance and compromise are inherent in the notion of reconciliation.  Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

[215]       The Aboriginal peoples do not have a veto, and there is no ultimate duty to reach agreement:  Halfway River First Nation v. British Columbia (Ministry of Forests)1999 BCCA 470 (CanLII), 178 D.L.R. (4th) 666 at para. 61.  Rather, the Supreme Court stated in Taku at para. 2, “[A]ccommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns”.  

[216]       The Crown argued forcefully that its duty with respect to the Removed Lands did not extend to accommodation, and it was supported in that position by Island Timberlands.  Both respondents suggested that the private ownership of the Removed Lands means that the claimed aboriginal rights over the Removed Lands have so little weight that only consultation in the sense of meeting and listening to concerns was required, and argue that what the Crown did between December 2005 and January 2008 greatly exceeded that minimal requirement. 

[217]       They point to certain language in the 2005 Decision at para. 249, which I repeat for convenience:

249     On the existing state of the law, the petitioners’ aboriginal rights with respect to the Removed Lands are at best highly attenuated. Prior to the removal decision, the owners of the lands could have decided to exclude the Hupacasath from access to the lands at any time, subject to possible intervention by the Crown through its power to control activities on the land under the TFL. Their claimed aboriginal title, if it has not been extinguished, seems very unlikely to result in the Hupacasath obtaining exclusive possession of the Removed Lands in the future. The authorities indicate that the possible availability of the land to satisfy future land claims or treaty settlements is an important consideration in determining the extent of the Crown’s duty.

[218]       The reference to “the existing state of the law” in the 2005 Decision was deliberate.  As described in that decision (paras. 170-200), the law has not yet yielded any definitive answer to the question of what remains of aboriginal rights, including aboriginal title, after lands have become privately owned through conveyance of fee simple.  

[219]       In Tsilhqot’in Nation, at para. 997, Mr. Justice Vickers of this Court stated that the Province has no jurisdiction to extinguish aboriginal title and such title was not extinguished by a conveyance of fee simple title.  He added at paras. 998 – 1000:

998     Thus, regardless of the private interests in the Claim Area (whether they are fee simple title, range agreements, water licences, or any other interests derived from the Province), those interests have not extinguished and cannot extinguish Tsilhqot’in rights, including Tsilhqot’in Aboriginal title.

999     What is not clear from the jurisprudence are the consequences of underlying Aboriginal rights, including Aboriginal title, on the various private interests that exist in the Claim Area.  While they have not extinguished the rights of the Tsilhqot’in people, their existence may have some impact on the application or exercise of those Aboriginal rights.  This conclusion is consistent with the view of the Ontario Court of Appeal in Chippewas of Sarnia Band v. Canada (Attorney General)2000 CanLII 16991 (ON CA), [2001] 1 C.N.L.R. 56 (Ont. C.A.).

1000   Reconciliation of competing interests will be dependant on a variety of factors, including the nature of the interests, the circumstances surrounding the transfer of the interests, the length of the tenure, and the existing land use.  Such a task has not been assigned to this Court by the issues raised in the pleadings.  

[220]       Counsel at the hearing advised that all parties have appealed the Tsilhqot’in Nation decision, and it may be that the Supreme Court of Canada, in an appeal from that case or in some other context, will clarify the law within the foreseeable future.  However, this decision cannot await that event and, as with the 2005 Decision, it must be made in a manner that takes into account the uncertainty in the law. 

[221]       I do not overlook the history of the Removed Lands at issue in this case.  The Dominion of Canada received the lands from the British Columbia Government in 1884 under the Settlement Act and the lands were part of the “Railway Lands” transferred from the Dominion of Canada to the Esquimalt and Nanaimo Railway Company in 1887.  Thus, the chain of title is not straightforwardly a matter of provincial transfer of fee simple and, possibly, the circumstances in this case are distinguishable from those upon which Vickers J. commented.  I have not been asked to reach a conclusion on the issue and refrain from doing so.

[222]       The point remains that the law has not yet been clarified as to the inter-relationship, in the absence of treaties, between aboriginal rights and title on the one hand and fee simple title on the other.

[223]       Referring again to para. 249 in the 2005 Decision, the assessment that the Hupacasath’s “claimed aboriginal title, if it has not been extinguished, seems very unlikely to result in the Hupacasath obtaining exclusive possession of the Removed Lands in the future” was based on two factors:  the existing uncertain state of the law; and the Province’s position in treaty negotiations — that privately-held lands are not available for settlement of claims except on a willing seller/willing buyer basis.  I have not been advised of any change in that position, which was described at para. 164 of the 2005 Decision:

164     Under the terms of the British Columbia Treaty Process, the petitioners will not be able to obtain title to any private lands, except on a willing seller/willing buyer basis, and the Crown relies on that fact as further support for its position that there is a fundamental incompatibility between aboriginal title and fee simple title. The Crown’s position is that it does not recognize aboriginal title to lands that are privately held and that it does not have jurisdiction to provide privately held land if it is claimed.

[224]       Thus far in this section I have been referring to the legal aspect of the Hupacasath’s claim.  Indeed, the submissions of both respondents emphasized that side of the equation.  However, in making a preliminary assessment of the strength of an Aboriginal people’s claim, the Court must take account of both the law and the facts.  Here, it is important to note that the factual side of the HFN claim seems strong.  The Crown did not dispute that the Hupacasath had used the Removed Lands prior to the arrival of Europeans in the intensive and varied ways described by the HFN elders in their affidavits.  Thus, the alleged strong connection of the HFN with the Removed Lands basically went unchallenged by the Crown, except for the evidence it led as to the existence of overlapping claims by other First Nations.  In that regard, the findings of fact in the 2005 Decision included the finding that about 40% of the area of the Removed Lands is not subject to any competing claim from other First Nations.  

[225]       Putting together the legal and the factual aspects of the HFN asserted claim to aboriginal rights pertaining to the Removed Lands, the claim is neither at the strongest nor the weakest end of the spectrum.  It cannot fairly be described as “dubious or peripheral” (in the language used by the Supreme Court of Canada in Haida Nation for claims at the lowest level on the spectrum).  With respect to the portion of the Removed Lands where there are no overlapping claims, the weakness of the claim derives mainly from uncertainty as to the future development of the law and from the province’s position in treaty negotiations, rather than from the evidentiary record. 

[226]       As for the adjacent Crown lands that form part of the HFN asserted traditional territory, the claim is in general strong on both the law and the facts, though weaker where there are overlapping claims. 

[227]       As I have said, the two major variables in calibrating the duty to consult are the strength of the Aboriginal people’s claim, and the severity of the possible impact.  The Court of Appeal in Little Salmon/Carmacks referred (at para. 95) with approval to the statement by Lambert J.A. in Haida BCCA at para. 46, that a duty to consult logically arises “as a prelude to a potential infringement and should be assessed in relation to the severity of the proposed Crown action [emphasis in original].”

[228]       The potential impact of the Removal Decision on HFN aboriginal rights (if the HFN do prove to have aboriginal rights with respect to that privately-owned land) is very significant.  With respect to the adjacent Crown lands, the potential impact is less significant.

[229]       The conclusion in the 2005 Decision was that the consultation required with respect to the Crown lands was at a moderate level, closer to deep consultation than with respect to the Removed Lands, where it was at a “lower” (not “low”) level.  Island Timberlands’s submissions emphasized the use of the phrase “at best highly attenuated” to describe the HFN aboriginal rights with respect to the Removed Lands.  It does not follow, however, that those rights are non-existent – on the contrary, I found that a credible factual claim had been advanced.

[230]       Was the Crown required to seek accommodation, or just to consult (in the sense of listening to the HFN concerns) with respect to the Removed Lands?

[231]       In the context of this case, there would have been no point in directing the Crown to consult in the sense of simply giving notice and listening to the HFN concerns.  While those directions might have been appropriate if the matter had come to court prior to the making of the Removal Decision, it did not.  Instead, it came when the removal was a fait accompli.  Because third parties provided evidence that they had relied on the Minister’s decision in their transactions and would be harmed if it was set aside, the Removal Decision was allowed to stand.  

[232]       In the circumstances, the only possible purpose of after-the-fact consultation was to provide a process in which the Crown and the Hupacasath First Nation would attempt to agree on accommodation for the possible impacts of the Removal Decision, given the Minister’s failure to consult with the First Nation before the fact.

[233]       Since the Removal Decision, Island Timberlands has taken the position, as it is entitled to do, that it is not required to enter into a Memorandum of Understanding with the HFN or to do more than the general laws require.  As a private landowner, it does not acknowledge any obligation to do more, but it says that as a good neighbour, it will permit access to the lands as its operations and safety permit.  Island Timberlands does agree that it continues to be bound by the conditions in the Minister’s letter, insofar as those conditions have not expired due to the passage of time.  Mr. Isaac was careful, however, to state his client’s position that the enforceability of those conditions by the Minister of Forests is not a question before this Court.

[234]       If the Crown had carried out the consultation in 2004 when it should have, before it made the Removal Decision, it is likely that the HFN would have requested that the Crown impose terms on Weyerhaeuser relating to Hupacasath access to sacred sites, hunting, food gathering, cedar, and so on, and that the Crown provide enhanced access to resources on Crown lands to make up for potential loss of access to such resources on the Removed Lands.  The Crown could have taken such steps with respect to Crown lands, and it was at that time in a position where it might have been able to negotiate some terms with the private landowner with respect to the Removed Lands.  The Removal Decision means that it is no longer in such a position with respect to the Removed Lands.  

[235]       Having said that, the placement of the (now) Removed Lands under TFL 44 sixty years ago did not create new aboriginal rights or re-kindle aboriginal rights already extinguished.  There may in the end be no legal basis for a claim to aboriginal rights with respect to the Removed Lands; that is still unknown.  Further, it is of course possible that consultation and negotiation with the landowner prior to the Removal Decision would have resulted in no different outcome than the terms set out in the Minister’s letter.  In the end, the Crown’s ability to impose conditions on private landowners is very limited.  

[236]       However, the Minister should have, before the fact (that is, before making the Removal Decision), provided notice to the Hupacasath and engaged directly with them, providing information about the proposed decision addressing what the Crown knew to be Hupacasath interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown should have solicited and listened carefully to the Hupacasath concerns, and attempted to minimize adverse impacts on the Hupacasath’s aboriginal rights.  This much was required even for a lower level of consultation in Mikisew.  

[237]       The Minister did not take those steps before the fact.  Because the Removal Decision was allowed to stand, during the after-the-fact discussions, the Crown was required to work with the HFN in an attempt to achieve accommodation regarding the overall effects of the Removal Decision, including its possible impact on HFN aboriginal rights pertaining to the Removed Lands, and its possible impact on the HFN aboriginal rights on the adjacent Crown lands.  

[238]       It is relevant to note that the Crown did not appeal the 2005 Decision.  It was required, in its approach to the consultation and accommodation discussions, to accept the conclusions reached in that decision.  Those conclusions included findings that the HFN could suffer adverse impacts on their aboriginal rights, both with respect to the Removed Lands and the Crown lands within their asserted traditional territory, as a result of the Removal Decision.  The Crown’s position in the consultation, however, seemed at times inconsistent with acceptance of those conclusions.

[239]       I find that the position taken by the Crown is inconsistent with a balancing process aimed at eventual reconciliation, and is inconsistent with the context of this dispute (in particular, with the conclusions reached in the 2005 Decision).

[240]       I find that the Crown did not correctly understand what was required, and misapprehended its duty to consult and accommodate in the circumstances.

B.        Were the steps the Crown took to consult with and accommodate the Hupacasath reasonable?

[241]       The Crown’s position is that, even if it was required not only to consult with but also to accommodate the Hupacasath, the steps it took were reasonable.  The petitioners’ position is that the Crown’s efforts fell far short of being reasonable.  

[242]       I have concluded, for the reasons that follow, that the Crown did not take reasonable steps.  This conclusion is not based upon a comparison between the Crown’s offers of accommodation and what might have been available to the HFN in any event, or what I might consider to have been appropriate or fair.  Nor is it based upon a finding of bad faith on the part of the Crown.  Instead, it is based upon the fact that the Crown’s misconception about what was required in the circumstances led it to conduct the process in a way that was not reasonable.  

[243]        If the Crown’s duty was only to meet with the Hupacasath and to listen to their concerns, it clearly took reasonable steps to do so.  The MOFR allocated a considerable amount of its officials’ time, devoted resources, and provided some financial assistance to the HFN to enable it to carry out its end of the consultation.

[244]       Further, the MOFR did more than meet and listen; it brought forward proposals and attempted to reach an agreed accommodation in the form of a Planning and Forestry Agreement.  

[245]       In addition, the Crown supported the corporate table process and continued with a number of other processes and topics of consultation involving the HFN, as it was required to do.  The Crown should not be faulted for carrying on discussions with the Hupacasath on a number of fronts.  (Unfortunately, however, the Crown did not clarify the mandates of the various Ministries and agencies until fairly late in the day, and the Crown did not take up the HFN suggestions that a mediator or facilitator be brought in to assist with the negotiations.)  

[246]       I have found that the Crown’s duty was to work toward accommodation for the Removal Decision’s potential impact on HFN aboriginal rights.  In the 2005 Decision I described what that potential impact was.  However, the record shows that in its discussions with the HFN, the Crown continued to question whether accommodation was necessary regarding possible impacts of the Removal Decision, particularly with respect to the Removed Lands.  

[247]       It is an important indicator of the consequences of the Crown’s misconception of its duty that the Crown refused to permit the Hupacasath to participate in discussions with Island Timberlands regarding the possible continuation or reinstatement of ungulate winter ranges and wildlife habitat areas within the Removed Lands.  Those discussions had obvious implications for HFN asserted aboriginal rights on both the remaining Crown lands and the Removed Lands.   

[248]       In short, the Crown’s duty required a process focused on the possible impacts of the Removal Decision.  Because the consultation process was delayed for various reasons, and because it became enmeshed in other complex processes, that focus was lost.  

[249]       The Crown’s position essentially was that the Removal Decision did not significantly change the Hupacasath’s position, and that the Crown was not required to consider steps which would accommodate for what the HFN stood possibly to lose as a result of the Removal Decision.  As examples of what could have been considered:  could the Crown find a way to assist the HFN in retaining access to at least the most important of their sacred sites?  was it possible for the Crown to provide improved access to resources on the Crown lands in replacement of the former access to such resources on the Removed Lands?  could wildlife corridors be protected so that the animals hunted by the HFN would still be available on the Crown lands?  Those are not the questions upon which the parties focused, although the evidence shows that the Hupacasath did try to raise them.  

[250]       There is no duty to reach agreement, but there is a duty to focus on the relevant issues in the discussions.

[251]       Consultation and accommodation with the goal of reconciliation is a two-way street; the HFN were required to conduct themselves reasonably in the process.  If a First Nation is intransigent and unresponsive to government attempts to consult, those government efforts may be found reasonable even if they do not bear fruit:  R. v. Douglas2007 BCCA 265 (CanLII), B.C.J. No. 891; R. v. Tommy2008 BCSC 1095 (CanLII)R. v. Aleck2008 BCSC 1096 (CanLII).  As stated earlier in these Reasons, I find that the HFN did, overall, conduct themselves reasonably in this process.  They participated willingly, and showed readiness to compromise in that they were open to forms of accommodation that did not involve the Removed Lands, while continuing to insist that they had lost something significant when the Removal Decision was made.  The fact that they continued to press their claims does not mean that they were being unreasonable.  They were by and large consistent in their position, though the delivery of the judgment in Tsilhqot’in Nation led to a hardening of their views, with a new insistence on co-management.  

[252]       Reasonableness, not perfection, is required, of the Crown in its efforts to consult with and accommodate aboriginal peoples when it makes decisions potentially affecting their claimed aboriginal rights.  Here, I find that the Crown’s efforts did not fall within a range of reasonably defensible approaches in the context of the 2005 Decision and the history and relationship between the parties.

[253]       I conclude that the Crown has not yet fulfilled its duty with respect to the Removal Decision.  

IV.      WHAT REMEDY SHOULD BE GRANTED?

[254]       The petitioners initially sought an order that a Settlement Conference Judge or independent mediator be appointed to guide the parties with respect to completion of the consultation and accommodation regarding the Removal Decision.  Mr. Grant modified that position during submissions, and advised the Court that the petitioners seek the appointment of an independent mediator who would be empowered to set timelines, direct the exchange of information and report to the court if there are problems.  The petitioners sought an order directing the parties to a number of issues they say have not yet been addressed [Sayers Affidavit #9] and setting a deadline of six months for completion of consultation, but permitting the parties to return to court if necessary to seek an extension of that time.

[255]       I find that an order is warranted.  A mediator will be appointed by agreement of the parties or, failing agreement, the parties may apply to the Court with respect to the naming of the mediator.  The fees and expenses of the mediatior will be borne by the Crown.  The mediator will be empowered to set timelines, direct the exchange of information and report to the court if there are difficulties.  

[256]       The mediation will address appropriate accommodation for the effects of the Removal Decision on HFN asserted aboriginal rights on their claimed territory, both with respect to Crown land and the Removed Lands.  The parties will specifically consider ways of including the Hupacasath in discussions with Island Timberlands regarding ongoing environmental, watershed and wildlife protection on the Removed Lands.  They will address possible measures to assist the HFN in obtaining the co-operation of the landowner to enable the HFN to exercise ongoing access to their sacred sites and areas where they have traditionally gathered medicinal plants on the Removed Lands, and possible measures that will enable such access on the Crown lands within the asserted traditional territory.  In that regard, they will address ways of respecting HFN cultural practices while providing information sufficiently specific for the landowner’s and the Crown’s needs.  They will consider possible accommodation from resources on the Crown lands for the access to cedar, other plants and wildlife previously available to the HFN on the Removed Lands.  They will consider possible measures to provide ongoing HFN access by land to their reserves.  They will consider possible accommodation from resources on the Crown lands for the overall impact of the Removal Decision on the HFN asserted traditional territory, including both the Removed Lands and Crown land.

[257]       If it would be of assistance to the parties, they may return to court to address the definition of the issues they are required to address in the mediation, or for further clarification as to the Crown’s duty of consultation.  If consultation and accommodation have not been accomplished through mediation after six months from the date of entry of this Order, the parties may return to Court.  I will remain seized of this matter.

[258]       The petitioners also sought an order that the conditions in paragraph 8 of the 2005 Order, that made certain terms of the Minister’s Removal Decision enforceable as a Court Order, should be left in place for a further six months (or, more accurately, re-imposed for a further six month period).

[259]       There is a serious question whether this Court has jurisdiction to make such an order because the nature and length of court-imposed restrictions on Island Timberlands was decided in 2005 between the same parties and in the same proceeding.  The order was entered and no party appealed.  Island Timberlands and the Crown argued that the matter is res judicata.  Further, there are strong policy considerations in favour of respecting the finality of such determinations.

[260]       However, I have concluded that it is unnecessary to address the question of jurisdiction because, even if I have jurisdiction to make an order continuing or re-imposing the conditions in paragraph 8 of the 2005 Order, I would not exercise my discretion to do so in these circumstances.

[261]       It is true that another six months is not a lengthy period of time, and that significant changes could come to the Removed Lands during such a period.  On the other hand, restrictions on private landowners flowing from the Crown’s duty to seek reconciliation with aboriginal peoples have very rarely been imposed.  As stated in the 2005 Decision, the unique circumstances of this case then warranted a time-limited order affecting the privately-owned lands.  

[262]       The Supreme Court of Canada has held that a duty to seek reconciliation with aboriginal peoples falls on the Crown, and does not fall on parties other than the Crown. To re-impose the conditions in paragraph 8 would be inconsistent with that principle.  

[263]       However, both Island Timberlands and the Crown take the position that the Minister’s conditions in the Removal Decision remain in effect.  Further, Island Timberlands through its counsel, Mr. Isaac, has stated to this Court that it will continue to permit HFN members access to the Removed Lands so long as their operations and safety considerations permit.  

[264]       I note as well, and rely upon, the statements made by Bill Waugh of Island Timberlands in his affidavit of March 10, 2008, regarding the company’s intentions, including the company’s commitments :  “…to consider information about sacred sites provided by the HFN in planning its harvest activities on the Removed Lands, where this is provided in a useful form…”; to continue to comply with the requirements of the Heritage Conservation Act and to have Archaeological Impact Assessments conducted by third party consultants prior to harvesting; to permit HFN to access the Removed Lands in order to conduct their own reviews of sacred sites, or to carry out their traditional practices; to follow “the same rules regarding public and First Nations access to the Removed Lands as were used by Weyerhaeuser when the Removed Lands were administered within TFL 44”; and to abide by the assurance that “if [HFN] ability to access the Removed Lands is impeded by a locked gate, Island Timberlands will issue them a key once they sign the required form.”

[265]       In these circumstances, I decline to re-impose the conditions set out in paragraph 8 of the 2005 Order.  However, I do order that, during the period of the further consultation between the Crown and HFN (whether it is six months or longer), if there is any change in Island Timberlands’s position (from the position described by counsel to the Court or by Mr. Waugh in his affidavit) as to the ongoing effectiveness of the conditions in the Minister’s letter, as to HFN access to the Removed Lands or as to other matters, Island Timberlands will so advise the petitioners and the Crown, and the parties will be at liberty to return to court. 

[266]       Mr. Grant on behalf of the petitioners submitted that costs should be awarded to the petitioners at Scale 5 (I assume that he intended Scale C) in any event of the cause because the petitioners were required to return for two further days of hearing and to prepare a complete new response to the more detailed argument that the Court requested the Crown to provide.  

[267]       The Crown made no submissions as to costs.  Island Timberlands asked for costs in its written argument but counsel did not address the matter in his oral submissions.  

[268]       This matter, I find, was of more than ordinary difficulty, and the petitioners were substantially successful.  I find that an appropriate order in these circumstances is that the petitioners will have their costs against the Crown at Scale C.  

[269]       If Island Timberlands wishes to address the matter of costs, it may do so through written submissions, and the other parties will have two weeks from receipt of those submissions to file their reply.

“The Honourable Madam Justice Lynn Smith”

 

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Tsilhqot’in Nation v. British Columbia [2014] S.C.C. 44

Date Issued: 

Roger William, on his own behalf, on behalf of all other

members of the Xeni Gwet’in First Nations Government

and on behalf of all other members of the Tsilhqot’in Nation                    Appellant

v.

Her Majesty The Queen in Right of the Province of

British Columbia, Regional Manager of the Cariboo Forest

Region and Attorney General of Canada                                                Respondents

and

Attorney General of Quebec, Attorney General of Manitoba,

Attorney General for Saskatchewan, Attorney General of

Alberta, Te’mexw Treaty Association, Business Council of

British Columbia, Council of Forest Industries, Coast Forest

Products Association, Mining Association of British Columbia,

Association for Mineral Exploration British Columbia,

Assembly of First Nations, Gitanyow Hereditary Chiefs of

Gwass Hlaam, Gamlaxyeltxw, Malii, Gwinuu, Haizimsque,

Watakhayetsxw, Luuxhon and Wii’litswx, on their own behalf

and on behalf of all Gitanyow, Hul’qumi’num Treaty Group,

Council of the Haida Nation, Office of the Wet’suwet’en Chiefs,

Indigenous Bar Association in Canada, First Nations Summit,

Tsawout First Nation, Tsartlip First Nation, Snuneymuxw

First Nation, Kwakiutl First Nation, Coalition of Union of

British Columbia Indian Chiefs, Okanagan Nation Alliance, Shuswap

Nation Tribal Council and their member communities,

Okanagan, Adams Lake, Neskonlith and Splatsin Indian Bands,

Amnesty International, Canadian Friends Service Committee,

Gitxaala Nation, Chilko Resorts and Community Association

and Council of Canadians                                                                           Interveners

Indexed as:  Tsilhqot’in Nation v. British Columbia

2014 SCC 44

File No.:  34986.

2013:  November 7; 2014:  June 26.

Present:  McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

on appeal from the court of appeal for british columbia

                    Aboriginal law — Aboriginal title — Land claims — Elements of test for establishing Aboriginal title to land — Rights and limitations conferred by Aboriginal title — Duties owed by Crown before and after Aboriginal title to land established — Province issuing commercial logging licence in area regarded by semi-nomadic First Nation as traditional territory — First Nation claiming Aboriginal title to land — Whether test for Aboriginal title requiring proof of regular and exclusive occupation  or evidence of intensive and site-specific occupation — Whether trial judge erred in finding Aboriginal title established — Whether Crown breached procedural duties to consult and accommodate  before issuing logging licences — Whether Crown incursions on Aboriginal interest justified under s. 35 Constitution Act, 1982 framework — Forest Act, R.S.B.C. 1995, c. 157 — Constitution Act, 1982 , s. 35 .

                    Aboriginal law — Aboriginal title — Land claims — Provincial laws of general application — Constitutional constraints on provincial regulation of Aboriginal title land — Division of powers — Doctrine of interjurisdictional immunity — Infringement and justification framework under s. 35 Constitution Act, 1982 — Province issuing commercial logging licence in area  regarded by semi-nomadic First Nation as traditional territory — First Nation claiming Aboriginal title to land — Whether provincial laws of general application apply to Aboriginal title land — Whether Forest Act on its face applies to Aboriginal title lands — Whether the application of the Forest Act ousted by operation of Constitution — Whether doctrine of interjurisdictional immunity should be applied to lands held under Aboriginal title — Forest Act, R.S.B.C. 1995, c. 157 — Constitution Act, 1982 , s. 35 .

                    For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, have lived in a remote valley bounded by rivers and mountains in central British Columbia.  It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected and sought a declaration prohibiting commercial logging on the land.  Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people.  The federal and provincial governments opposed the title claim.

                    The Supreme Court of British Columbia held that occupation was established for the purpose of proving title by showing regular and exclusive use of sites or territory within the claim area, as well as to a small area outside that area.  Applying a narrower test based on site-specific occupation requiring proof that the Aboriginal group’s ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty, the British Columbia Court of Appeal held that the Tsilhqot’in claim to title had not been established. 

                    Held:  The appeal should be allowed and a declaration of Aboriginal title over the area requested should be granted. A declaration that British Columbia breached its duty to consult owed to the Tsilhqot’in Nation should also be granted.

                    The trial judge was correct in finding that the Tsilhqot’in had established Aboriginal title to the claim area at issue.  The claimant group, here the Tsilhqot’in, bears the onus of establishing Aboriginal title.  The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  Aboriginal title flows from occupation in the sense of regular and exclusive use of land.  To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation is relied on) and exclusive.  In determining what constitutes sufficient occupation, which lies at the heart of this appeal, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.

                    In finding that Aboriginal title had been established in this case, the trial judge identified the correct legal test and applied it appropriately to the evidence. While the population was small, he found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation.  The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supports an inference of continuous occupation.  And from the evidence that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, he concluded that the Tsilhqot’in treated the land as exclusively theirs.   The Province’s criticisms of the trial judge’s findings on the facts are primarily rooted in the erroneous thesis that only specific, intensively occupied areas can support Aboriginal title.  Moreover, it was the trial judge’s task to sort out conflicting evidence and make findings of fact.  The presence of conflicting evidence does not demonstrate palpable and overriding error.  The Province has not established that the conclusions of the trial judge are unsupported by the evidence or otherwise in error.  Nor has it established his conclusions were arbitrary or insufficiently precise.  Absent demonstrated error, his findings should not be disturbed.  

                    The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.  Prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

                    Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35  of the Constitution Act, 1982 . This requires demonstrating both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group.  This means the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty infuses an obligation of proportionality into the justification process: the incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.  This s. 35  framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.   

                    The alleged breach in this case arises from the issuance by the Province of licences affecting the land in 1983 and onwards, before title was declared.  The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests.  The Province did neither and therefore breached its duty owed to the Tsilhqot’in. 

                    While unnecessary for the disposition of the appeal, the issue of whether the Forest Act applies to Aboriginal title land is of pressing importance and is therefore addressed.  As a starting point, subject to the constitutional constraints of s. 35  Constitution Act, 1982  and the division of powers in the Constitution Act, 1867 , provincial laws of general application apply to land held under Aboriginal title.  As a matter of statutory construction, the Forest Act on its face applied to the land in question at the time the licences were issued.  The British Columbia legislature clearly intended and proceeded on the basis that lands under claim remain “Crown land” for the purposes of the Forest Act at least until Aboriginal title is recognized.  Now that title has been established, however, the timber on it no longer falls within the definition of “Crown timber” and the Forest Act no longer applies.  It remains open to the legislature to amend the Act to cover lands over which Aboriginal title has been established, provided it observes applicable constitutional restraints.

                    This raises the question of whether provincial forestry legislation that on its face purports to apply to Aboriginal title lands, such as the Forest Act, is ousted by the s. 35  framework or by the limits on provincial power under the Constitution Act, 1867 .  Under s. 35 , a right will be infringed by legislation if the limitation is unreasonable, imposes undue hardship, or denies the holders of the right their preferred means of exercising the right.  General regulatory legislation, such as legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires, will often pass this test and no infringement will result.  However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent. 

                    Finally, for purposes of determining the validity of provincial legislative incursions on lands held under Aboriginal title, the framework under s. 35  displaces the doctrine of interjurisdictional immunity.  There is no role left for the application of the doctrine of interjurisdictional immunity and the idea that Aboriginal rights are at the core of the federal power over “Indians” under s. 91(24)  of the Constitution Act, 1867 .  The doctrine of interjurisdictional immunity is directed to ensuring that the two levels of government are able to operate without interference in their core areas of exclusive jurisdiction.  This goal is not implicated in cases such as this.  Aboriginal rights are a limit on both federal and provincial jurisdiction.  The problem in cases such as this is not competing provincial and federal power, but rather tension between the right of the Aboriginal title holders to use their land as they choose and the province which seeks to regulate it, like all other land in the province.  Interjurisdictional immunity — premised on a notion that regulatory environments can be divided into watertight jurisdictional compartments — is often at odds with modern reality.  Increasingly, as our society becomes more complex, effective regulation requires cooperation between interlocking federal and provincial schemes.  Interjurisdictional immunity may thwart such productive cooperation. 

                    In the result, provincial regulation of general application, including the Forest Act, will apply to exercises of Aboriginal rights such as Aboriginal title land, subject to the s. 35  infringement and justification framework.  This carefully calibrated test attempts to reconcile general legislation with Aboriginal rights in a sensitive way as required by s. 35  of the Constitution Act, 1982  and is fairer and more practical from a policy perspective than the blanket inapplicability imposed by the doctrine of interjurisdictional immunity.  The result is a balance that preserves the Aboriginal right while permitting effective regulation of forests by the province.  In this case, however, the Province’s land use planning and forestry authorizations under the Forest Act were inconsistent with its duties owed to the Tsilhqot’in people.

Cases Cited

                    Applied:  R. v. Sparrow, [1990] 1 S.C.R. 1075; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; distinguished:  R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915; referred to:  Calder v. Attorney General of British Columbia, [1973] S.C.R. 313; Guerin v. The Queen, [1984] 2 S.C.R. 335; R. v. Gladstone, [1996] 2 S.C.R. 723; Western Australia v. Ward (2002), 213 C.L.R. 1; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Marshall, 2003 NSCA 105, 218 N.S.R. (2d) 78; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; R. v. Marshall, [1999] 3 S.C.R. 533; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 11 .

Constitution Act, 1867 , ss. 91 , 92 , 109 .

Constitution Act, 1982 , Part I, Part II, s. 35 .

Forest Act, R.S.B.C. 1996, c. 157, s. 1 “Crown land”, “Crown timber”, “private land”.

Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.

Authors Cited

Black’s Law Dictionary, 9th ed.  St. Paul, Minn.:  West, 2009, “vested”.

Hogg, Peter W.  “The Constitutional Basis of Aboriginal Rights”, in Maria Morellato, ed., Aboriginal Law Since Delgamuukw.  Aurora, Ont.:  Canada Law Book, 2009, 3.

McNeil, Kent.  “Aboriginal Title and the Supreme Court:  What’s Happening?” (2006), 69 Sask. L. Rev. 281.

McNeil, Kent.  Common Law Aboriginal Title.  Oxford:  Clarendon Press, 1989.

Slattery, Brian.  “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727.

Sullivan, Ruth.  Sullivan on the Construction of Statutes, 5th ed.  Markham, Ont.:  LexisNexis, 2008.

Ziff, Bruce.  Principles of Property Law, 5th ed.  Toronto:  Carswell, 2010.

                    APPEAL from a judgment of the British Columbia Court of Appeal (Levine, Tysoe and Groberman JJ.A.), 2012 BCCA 285, 33 B.C.L.R. (5th) 260, 324 B.C.A.C. 214, 551 W.A.C. 214, [2012] 3 C.N.L.R. 333, [2012] 10 W.W.R. 639, 26 R.P.R. (5th) 67, [2012] B.C.J. No. 1302 (QL), 2012 CarswellBC 1860, upholding the order of Vickers J., 2007 BCSC 1700, [2008] 1 C.N.L.R. 112, 65 R.P.R. (4th) 1, [2007] B.C.J. No. 2465 (QL), 2007 CarswellBC 2741.  Appeal allowed.

 

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Grassy Narrows First Nation v. Ontario (Natural Resources) [2014] S.C.C. 48

Date Issued: 

Andrew Keewatin Jr. and Joseph William Fobister,

on their own behalf and on behalf of all other

members of Grassy Narrows First Nation                                                  Appellants

v.

Minister of Natural Resources, Resolute FP

Canada Inc. (formerly Abitibi‑Consolidated Inc.),

Attorney General of Canada and Goldcorp Inc.                                    Respondents

‑ and ‑

Leslie Cameron, on his own behalf and on behalf

of all other members of Wabauskang First Nation                                     Appellant

v.

Minister of Natural Resources, Resolute FP

Canada Inc. (formerly Abitibi‑Consolidated Inc.),

Attorney General of Canada and Goldcorp Inc.                                    Respondents

and

Attorney General of Manitoba, Attorney General of British

Columbia, Attorney General for Saskatchewan, Attorney

General of Alberta, Grand Council of Treaty # 3, Blood Tribe,

Beaver Lake Cree Nation, Ermineskin Cree Nation, Siksika

Nation, Whitefish Lake First Nation # 128, Fort McKay First

Nation, Te’mexw Treaty Association, Ochiichagwe’Babigo’Ining

First Nation, Ojibways of Onigaming First Nation, Big Grassy

First Nation, Naotkamegwanning First Nation, Métis Nation of

Ontario, Cowichan Tribes, represented by Chief William Charles

Seymour, on his own behalf and on behalf of the members of

Cowichan Tribes, Lac Seul First Nation, Sandy Lake First Nation

and Assembly of First Nations/National Indian Brotherhood                 Interveners

Indexed as:  Grassy Narrows First Nation v. Ontario (Natural Resources)

2014 SCC 48

File No.:  35379.

2014:  May 15; 2014:  July 11.

Present:  McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner JJ.

on appeal from the court of appeal for ontario

                    Aboriginal law — Treaty rights — Harvesting rights — Interpretation of taking‑up clause — Certain lands subject to treaty annexed to Ontario after signature of treaty between Ojibway and Canada — Whether province has authority to take up tracts of that land so as to limit harvesting rights under treaty or whether it requires federal approval to do so — Constitution Act, 1867 , ss. 91(24) , 92(5) , 92A , 109 Constitution Act, 1982 , s. 35  — Treaty No. 3.

                    In 1873, Treaty 3 was signed by treaty commissioners acting on behalf of the Dominion of Canada and Ojibway Chiefs from what is now Northwestern Ontario and Eastern Manitoba. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. Among other things, they received in return the right to harvest the non‑reserve lands surrendered by them until such time as they were “taken up” for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. At the time that Treaty 3 was signed, a portion of land known as the Keewatin area was under the exclusive control of Canada. It was annexed to Ontario in 1912 and since that time, Ontario has issued licences for the development of those lands.

                    In 2005, the Grassy Narrows First Nation, descendents of the Ojibway signatories of Treaty 3, commenced an action challenging a forestry licence issued by Ontario to a large pulp and paper manufacturer and which authorized clear‑cut forestry operations within the Keewatin area.

                    The trial judge held that Ontario could not take up lands within the Keewatin area so as to limit treaty harvesting rights without first obtaining Canada’s approval. According to her, the taking‑up clause in the treaty imposed a two‑step process involving federal approval for the taking up of Treaty 3 lands added to Ontario in 1912.

                    The Ontario Court of Appeal allowed the appeals brought before it. That court held that s. 109  of the Constitution Act, 1867  gives Ontario beneficial ownership of Crown lands within Ontario. That provision, combined with provincial jurisdiction over the management and sale of provincial public lands and the exclusive provincial power to make laws in relation to natural resources gives Ontario exclusive legislative authority to manage and sell lands within the Keewatin area in accordance with Treaty 3 and s. 35  of the Constitution Act, 1982 .

                    Held: The appeal should be dismissed.

                    The central question on this appeal is whether Ontario has the power to take up lands in the Keewatin area under Treaty 3 so as to limit the harvesting rights under the treaty, or whether this is subject to Canada’s approval.

                    Ontario and only Ontario has the power to take up lands under Treaty 3. This is confirmed by constitutional provisions, the interpretation of the treaty, and legislation dealing with Treaty 3 lands.

                    First, although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. Both levels of government are responsible for fulfilling the treaty promises when acting within the division of powers under the Constitution. Sections 109 , 92(5)  and 92A  of the Constitution Act, 1867  establish conclusively that Ontario holds the beneficial interest in the Keewatin lands and has exclusive power to manage and sell those lands as well as to make laws in relation to the resources on or under those lands. Together, these provisions give Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially regulated purposes such as forestry. Further; s. 91(24) of that same Act does not give Canada the authority to take up provincial land for exclusively provincial purposes.

                    Second, nothing in the text or history of the negotiation of Treaty 3 suggests that a two‑step process requiring federal supervision or approval was intended. The text of the taking‑up clause supports the view that the right to take up land rests with the level of government that has jurisdiction under the Constitution. The reference in the treaty to Canada merely reflects the fact that the lands at the time were in Canada, not Ontario.

                    Lastly, legislation subsequent to the signature of the treaty and which dealt with Treaty 3 lands confirmed Ontario’s right to take up that land by virtue of its control and beneficial ownership of the territory. It did not amend the terms of Treaty 3.

                    Ontario’s power to take up lands under Treaty 3 is not unconditional.  When a government — be it the federal or a provincial government — exercises Crown power, the exercise of that power is burdened by the Crown obligations toward the Aboriginal people in question. Here, Ontario must exercise its powers in conformity with the honour of the Crown, and the exercise of those powers is subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. For Treaty 3 land to be taken up, the harvesting rights of the Ojibway over the land must be respected. Any taking up of land in the Keewatin area for forestry or other purposes must meet the conditions set out by this Court in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69. If the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped, a potential action for treaty infringement will arise.

Cases Cited

                    Referred to:  Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Horseman, [1990] 1 S.C.R. 901; St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Dominion of Canada v. Province of Ontario, [1910] A.C. 637; Smith v. The Queen, [1983] 1 S.C.R. 554; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Badger, [1996] 1 S.C.R. 771; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

Statutes and Regulations Cited

Act for the settlement of certain questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (U.K.), 54 & 55 Vict., c. 5, Sch., s. 1.

Act for the settlement of questions between the Governments of Canada and Ontario respecting Indian Lands (1891) (Ont.), 54 Vict., c. 3, Sch., s. 1.

Constitution Act, 1867 , ss. 91(24) , 92A , 92(5) , 109 .

Constitution Act, 1982 , s. 35 .

Ontario Boundaries Extension Act, S.C. 1912, c. 40, s. 2.

Treaty No. 3 (1873).

                    APPEAL from a judgment of the Ontario Court of Appeal (Sharpe, Gillese and Juriansz JJ.A.), 2013 ONCA 158, 114 O.R. (3d) 401, 304 O.A.C. 250, [2013] 3 C.N.L.R. 281, [2013] O.J. No. 1138 (QL), 2013 CarswellOnt 2910, setting aside a decision of Sanderson J., 2011 ONSC 4801, [2012] 1 C.N.L.R. 13, [2011] O.J. No. 3907 (QL), 2011 CarswellOnt 8900.  Appeal dismissed.

 

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Goodswimmer v. Canada (Minister of Indian Affairs and Northern Development) [1997] 1 S.C.R. 309

Date Issued: 

Alfred Goodswimmer, Keith Goodswimmer,

Jerry Goodswimmer and Ron Sunshine

on their own behalf and on behalf of other

members of the Sturgeon Lake Indian Band,

the Council of the Sturgeon Lake Indian Band,

Mary Kappo, Mary Delphine Goodswimmer,

Lucy Sunshine, Louise Redhead, Cecile Kiyawasew,

Marina Plante, Florestine Chowace,

Florence Standingribbon, Wilfred Goodswimmer

and the Lesser Slave Lake Indian Regional Council                      Appellants

 

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R. v. Gladstone [1996] 2 S.C.R. 723

Date Issued: 

Donald Gladstone and William Gladstone                                       Appellants

v.

Her Majesty The Queen                                                                   Respondent

and

The Attorney General of British Columbia,
the Attorney General for Alberta,
the Fisheries Council of British Columbia,
the British Columbia Fisheries Survival Coalition
and the British Columbia Wildlife Federation,
The First Nations Summit,
Delgamuukw et al.,
Howard Pamajewon, Roger Jones,
Arnold Gardner, Jack Pitchenese and Allan Gardner                     Interveners

Indexed as:  R. v. Gladstone

 File No.:  23801. 

1995:  November 27, 28, 29; 1996:  August 21.  

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 on appeal from the court of appeal for british columbia

                   Constitutional law ‑‑ Aboriginal rights ‑‑ Natives approaching  buyer with sample of fish product to determine if “interested”in buying  ‑‑ Regulations requiring specific licence for harvesting and sale of fish product ‑‑ Natives not having proper licence to sell fish product ‑‑ Evidence indicating large scale trade in fish product prior to contact with Europeans ‑‑ Whether an aboriginal right to harvest and trade in fish product ‑‑ Whether the aboriginal right extinguished ‑‑ Whether aboriginal right infringed by regulations ‑‑ Whether any infringement justified ‑‑ Constitution Act, 1982 , ss. 35(1) , 52  ‑‑ Fisheries Act, R.S.C. 1970, c. F‑14, s. 61(1) ‑‑ Pacific Herring Fishery Regulations, SOR/84-324, s. (3).

                   Commercial law ‑‑ Attempt to sell ‑‑ Natives approaching buyer with sample of fish product to determine if “interested” in buying ‑‑ Whether conduct amounting to attempt to sell.

                   The accused were charged under s. 61(1) of the Fisheries Act with attempting to sell herring spawn on kelp caught without the proper licence contrary to s. 20(3) of the Pacific Herring Fishery Regulations.  They had shipped a large quantity to the Vancouver area and approached a fish dealer with a sample to see if he was “interested”.  One of the accused, on arrest, produced an Indian food fish licence permitting him to harvest 500 pounds.  The Supreme Court of British Columbia and the Court of Appeal upheld the convictions.  The constitutional question before this Court questioned whether s. 20(3) of the Pacific Herring Fishery Regulations was of no force or effect in the circumstances, in virtue of s. 52  of the Constitution Act, 1982 , by reason of the aboriginal rights within the meaning of s. 35(1)  of the Constitution Act, 1982 . Also raised was the sufficiency of their actions to constitute an attempt to sell in law.

                   Held (La Forest J. dissenting):  The appeal should be allowed.

Whether an Attempt to Sell

                   Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.:  The accused attempted to sell herring spawn on kelp.  Shipping it to the Vancouver area, taking a sample to the fish merchant and specifically asking him if he was “interested” had sufficient proximity to the acts necessary to complete the offence of selling herring spawn on kelp to move those actions beyond mere preparation to an actual attempt.

The Aboriginal Right

                   Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.:  To be recognized as an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming that right.  The first step is the determination of the precise nature of the claim being made, taking into account such factors as the nature of the action allegedly taken pursuant to an aboriginal right, the government regulation allegedly infringing the right, and the practice, custom or  tradition allegedly establishing the right.

                   The regulations under which the accused were charged prohibited all sale or trade in herring spawn on kelp without a particular licence.  The exchange of herring spawn on kelp for money or other goods was to an extent a central,  significant and defining feature of the culture of the Heiltsuk prior to contact and best characterized as commercial.  This exchange and trade was an integral part of the distinctive culture of the Heiltsuk prior to contact.

                    To merit constitutional protection, a practice, custom or tradition which is integral to the aboriginal community must be shown to have continuity with the practices, customs or traditions which existed prior to contact.  The evidence satisfied this requirement.  The commercial trade in herring spawn on kelp was an integral part of the distinctive culture of the Heiltsuk prior to contact and was not incidental to social or ceremonial activities.  An aboriginal right to trade herring spawn on kelp on a commercial basis was established.

                    Per L’Heureux‑Dubé J.:  Section 35(1)  must be given a generous, large and liberal interpretation and uncertainties, ambiguities or doubts should be resolved in favour of the natives.  Further, aboriginal rights must be construed in light of the special trust relationship and the responsibility of the Crown vis‑à‑vis aboriginal people.  Finally, but most significantly, aboriginal rights protected under s. 35(1)  have to be viewed in the context of the specific history and culture of the native society and with regard to native perspective on the meaning of the rights asserted.

                   The “frozen right” approach focusing on aboriginal practices should not be adopted.  Instead, the definition of aboriginal rights should refer to the notion of “integral part of distinctive aboriginal culture” and should “permit the evolution of aboriginal rights over time”.   Case law on treaty and aboriginal rights relating to trade supports the making of a distinction between the sale, trade and barter of fish for, on the one hand, livelihood, support and sustenance purposes and for, on the other, purely commercial purposes.  The delineation of aboriginal rights must be viewed on a continuum.

                   The aboriginal right at issue falls on the part of the spectrum relating to the sale, trade and barter of fish for commercial purposes, not on the part dealing with livelihood, support and sustenance purposes. The legislative provision under constitutional challenge was aimed at both commercial and non‑commercial sale, trade and barter of herring spawn on kelp.  The sale, trade and barter of fish for commercial purposes was sufficiently significant and fundamental to the culture and social organization of the Heiltsuk for a substantial continuous period of time to have formed an integral part of their culture.  Consequently, the criteria regarding the characterization of aboriginal rights protected under s. 35(1)  of the Constitution Act, 1982  are met in this case.

                   Per McLachlin J.:  Evidence of an established trading network was clear in this case.  The Heiltsuk derived their sustenance from trade derived from herring spawn on kelp; they relied on trade to supply them with the necessaries of life, principally other food products.  An aboriginal right therefore existed.

                   Per La Forest J. (dissenting):  The trial judge’s findings of fact are to the effect that the Heiltsuk had been engaged in the bartering and trading of herring spawn on kelp prior to contact and that these activities, at times, involved very large quantities of fish.  These activities  had special significance to the Heiltsuk in that the Heiltsuk engaged in such trading activities on the basis that they valued sharing resources with other bands who did not have access to that  resource.  That special significance made bartering and trading in herring spawn on kelp a part of their distinctive culture.  Therefore, the Heiltsuk did have an aboriginal right to barter and trade herring spawn on kelp to a certain degree.   Without that special significance to the Heiltsuk, it cannot be said, based on the trial judge’s findings of fact, that such activity constitutes an integral part of their distinctive culture and thus any trading and bartering not done in that context cannot in any way be said to form an integral part of the distinctive culture of the Heiltsuk society.  The appellants’ activities, which, the trial judge found, were done in a completely different context, accordingly did not form an integral part of the distinctive culture of the Heiltsuk and the aboriginal rights of the Heiltsuk were therefore not infringed.

Extinguishment

                   Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.:  The intention to extinguish an aboriginal right must be clear and plain.  The varying regulatory schemes affecting the herring spawn on kelp harvest did not express a clear and plain intention to eliminate the aboriginal right. The regulations may have failed to recognize the aboriginal right and to give it special protection but they never prohibited aboriginal people from obtaining licences to fish commercially.  More importantly, the government has, at various times, given preferences to aboriginal commercial fishing.  Finally, the Regulation relied upon in arguing for extinguishment was of an entirely different nature than the document relied on for a finding of extinguishment in R. v. Horseman.

                   Per L’Heureux‑Dubé J.:  As regards the issues of extinguishment and prima facie infringement, the reasons and conclusions of Lamer C.J. were agreed with for the most part.  The Heiltsuk’s aboriginal right to sale, trade and barter herring spawn on kelp for commercial purposes has not been extinguished by a “clear and plain intention” of the Sovereign.  The approach where the aboriginal right is considered extinguished when it and the activities contemplated by the legislation cannot co‑exist is irreconcilable with the “clear and plain intention” test favoured in Canada.  The legislation was not sufficient to extinguish the aboriginal right to sell, trade and barter fish for commercial purposes.  It merely regulates aboriginal activities and does not amount to extinguishment.

                   Per McLachlin J.: Order in Council P.C. 2539 did not extinguish the aboriginal right of the Heiltsuk people to use herring spawn on kelp as a source of sustenance.  It did not manifest the necessary “clear and plain” intention.  Their most likely purpose was to conserve.  A measure aimed at conservation of a resource is not inconsistent with a recognition of an aboriginal right to make use of that resource.  Indeed, there was no evidence that the measure was intended to relate to the aboriginal right at all.

                   Per La Forest J. (dissenting):  The Sparrow decision only stands for the proposition that the Crown had not expressed a clear and plain intention to extinguish aboriginal rights regarding fishing for food, including social and ceremonial purposes.  Order‑in‑Council P.C. 2539, which put in place restrictions on the native exploitation of this fishery, evinced a clear and plain intention on the part of the Crown to extinguish aboriginal rights relating to commercial fisheries in British Columbia ‑‑ should they ever have existed.  The Crown specifically chose to translate  aboriginal practices into statutory rights and expressly decided to limit the scope of these rights.  Aboriginal rights relating to practices that were specifically excluded were thereby extinguished.

Prima Facie Infringement

                   Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.:   The Sparrow test for determining whether the government has infringed aboriginal rights involves (1) asking whether the legislation has the effect of interfering with an existing aboriginal right and (2) determining whether the limitation (i) was unreasonable, (ii) imposed undue hardship, (iii) denied the right holders their preferred means of exercising that right.  The test is partly determined by the factual context; in this case, the test must be applied not simply to s. 20(3) of the Pacific Herring Fishery Regulations but also to the other aspects of the regulatory scheme.    Simply because one of those questions is answered in the negative will not prohibit a finding by a court that a prima facie infringement has taken place; it will just be one factor for a court to consider in its determination of whether there has been a prima facie infringement.

                   The government’s scheme for regulating the herring spawn on kelp fishery can be divided into four constituent parts:  (1) the government determines the amount of the herring stock that will be harvested in a given year; (2) the government allots the herring stock to the different herring fisheries (herring roe, herring spawn on kelp and other herring fisheries); (3) the government allots the herring spawn on kelp fishery to various user groups (commercial users and the Indian food fishery); and (4) the government allots the commercial herring spawn on kelp licences.  The appellants demonstrated a prima facie interference with their aboriginal rights.  Prior to contact, the Heiltsuk could harvest herring spawn on kelp to the extent they themselves desired.  Under the regulatory scheme they can harvest for commercial purposes only to the limited extent allowed by the government.

                   Per L’Heureux‑Dubé J.:  Section 20(3) of the Pacific Herring Fishery Regulations directly conflicts, both by its object and by its effects, with native sale, trade and barter of herring spawn on kelp on a commercial basis and so violates the aboriginal right.  This right has never been extinguished by a clear and plain intention of the Sovereign.  Although in agreement with Lamer C.J. on the issue, the relatively low burden on the claimant of the right to demonstrate infringement on the face of the legislation was emphasized.   Here, the appellants overwhelmingly discharged their burden in that regard.

                   Per McLachlin J.:   An aboriginal person must establish a prima facie right to engage in the prohibited conduct at issue.  The Crown may rebut the inference of infringement if it can demonstrate that the regulatory scheme, viewed as a whole, accommodates the collective aboriginal right in question.   The Heiltsuk have a right to harvest and sell herring spawn on kelp for the purpose of sustenance and this right was evidently denied by the regulation under which the appellants stand charged.  Thus, the first requirement of the test is met.

                   The evidence did not disclose whether the licence issued to the Heiltsuk was sufficient to satisfy their aboriginal right to sell herring spawn on kelp for sustenance.  The case should be referred for a new trial so that this case can be resolved.

Justification

                   Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.:   Justification of infringements of aboriginal rights involves a two‑part test.  The government must demonstrate that: (1) it was acting pursuant to a valid legislative objective; and (2) its actions were consistent with its fiduciary duty towards aboriginal peoples.

                   Where the aboriginal right is internally limited, so that it is clear when that right has been satisfied and other users can be allowed to participate in the fishery, the notion of priority, as articulated in Sparrow, makes sense.  Sparrow did not contemplate situations other than that where the aboriginal right was internally limited.  Where the aboriginal right has no internal limitation, however, the notion of priority, as articulated in Sparrow, would mean that an aboriginal right would become an exclusive one. Where the aboriginal right has no internal limitation, the doctrine of priority requires that the government demonstrate that it has taken the existence of aboriginal rights into account in allocating the resource and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users.  This right is at once both procedural and substantive; at the stage of justification the government must demonstrate both that the process by which it allocated the resource, and the actual allocation of the resource which results from that process, reflect the prior interest of aboriginal rights holders in the fishery.  The content of this priority ‑‑ something less than exclusivity but which nonetheless gives priority to the aboriginal right ‑‑ must remain somewhat vague pending consideration of the government’s actions in specific cases.

                   Unlike Sparrow, which considered only the justifiability of  conservation objectives, this case raises the question of whether other government objectives will justify limitations on aboriginal rights.  The regulatory scheme at issue in this case — the allocation of herring spawn on kelp — does not involve conservation concerns: it makes no difference in terms of conservation who is allowed to catch the fish.

                   The purposes underlying aboriginal rights must inform not only the definition of the rights but also the identification of those limits on the rights which are justifiable.  Because distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable.  Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.  With regards to the distribution of the fisheries resource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non‑aboriginal groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard.  In the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.

                   The evidence and testimony presented in this case was insufficient for the Court to determine whether the government’s regulatory scheme was justified.

                   Per L’Heureux‑Dubé J.:  There was insufficient evidence to rule on the question of justification.  Lamer C.J.’s comments on this issue, and  particularly as regards the doctrine of priority and the decision in Jack v. The Queen were agreed with.

                   Per McLachlin J.:  It was not necessary to reach the issue of justification.  The question of whether such an infringement were justified should  be decided at a new trial.

Cases Cited

By Lamer C.J.

                   Applied:  R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Deutsch, [1986] 2 S.C.R. 2;  R. v. Van der Peet, [1996] 2 S.C.R. 507; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; considered:  R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; distinguished:  R. v. Horseman, [1990] 1 S.C.R. 901; R. v. Badger, [1996] 1 S.C.R. 771; referred to:  R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Van der Peet (1993), 80 B.C.L.R. (2d) 75; R. v. N.T.C. Smokehouse Ltd. (1993), 80 B.C.L.R. (2d) 158;  Jack v. The Queen, [1980] 1 S.C.R. 294; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Oakes, [1986] 1 S.C.R. 103; Attorney‑General of British Columbia v. Attorney‑General of Canada, [1914] A.C. 153.

By L’Heureux‑Dubé J.

                   Applied:  R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Sparrow, [1990] 1 S.C.R. 1075;  referred to:  R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Horseman, [1990] 1 S.C.R. 901; R. v. Jones (1993), 14 O.R. (3d) 421; United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941); Jack v. The Queen, [1980] 1 S.C.R. 294.

By McLachlin J.

                   Applied:  R. v. Van der Peet, [1996] 2 S.C.R. 507; referred toR. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672.

By La Forest J.  (dissenting)

                   R. v. Van der Peet, [1996] 2 S.C.R. 507;  R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313; R. v. Sparrow, [1990] 1 S.C.R. 1075; Heiltsuk Indian Band v. Canada (1993), 59 F.T.R. 308;  Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; Jack v. The Queen, [1980] 1 S.C.R. 294; R. v. Horseman, [1990] 1 S.C.R. 901; R. v. Badger, [1996] 1 S.C.R. 771.

Statutes and Regulations Cited 

British Columbia Fishery Regulations, SOR/54-659,  s. 21A [ad. SOR/55-260, s. 3] (1) [repl. SOR/74-50, s. 9], (2) [repl.  SOR/72-417, s. 7], s. 32.

 British Columbia Fishery (General) Regulations, SOR/77-716, s. 29.

 British Columbia Fishery (General) Regulations, SOR/84-248, s. 27(5) [ad. SOR/85‑290, s. 5].

 Canadian Charter of Rights and Freedoms , s. 1 .

 Constitution Act, 1982 , ss. 35(1) , 52 .

 Fisheries Act, R.S.C. 1970, c. F‑14, ss. 34, 61(1).

 Fisheries Act, S.C. 1868, c. 60, s. 13(9). 

 Fisheries Act, R.S.C. 1927, c. 73, s. 39.

Fisheries Act, 1932, S.C. 1932, c. 42, s. 30.

Fisheries Act, S.C. 1952, c. 119, s. 30.

 Fishery Regulations for the Province of British Columbia, March 8, 1894, P.C.  650, s. 1 .

Natural Resources Transfer Agreement, s. 12 (confirmed by the Constitution Act, 1930, R.S.C., 1985, App. II, No. 26, Schedule 2).

Order in Council, P.C. 2539, September 11, 1917.

Pacific Fishery Registration and Licensing Regulations.

Pacific Herring Fishery Regulations, C.R.C., c. 825, s. 17 (rep. & sub. SOR/80-876, s. 8).

Pacific Herring Fishery Regulations, SOR/84-324, ss. 17(1)(a), (b), 20(2), (3).

Special Fisheries Regulations for the Province of British Columbia, 1915, P.C. 297, s. 8(2).

Special Fishery Regulations for the Province of British Columbia, 1922, P.C. 1918, s. 13(2).

Special Fishery Regulations for the Province of British Columbia, 1925, P.C. 483, s. 15.

Special Fishery Regulations for the Province of British Columbia, 1930, P.C. 512, s. 11(2).

Special Fishery Regulations for the Province of British Columbia, 1938, P.C. 899,  s. 10(2).

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Ontario (Attorney General) v. Bear Island Foundation [1991] 2 S.C.R. 570

Date Issued: 

The Bear Island Foundation and Gary Potts,

William Twain and Maurice McKenzie, Jr.

on behalf of themselves and on behalf of all

other members of the Teme-Augama Anishnabay

and Temagami Band of Indians                                                        Appellants

 

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Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344

Date Issued: 

Joseph Apsassin, Chief of the

Blueberry River Indian Band,

and Jerry Attachie, Chief of the Doig

River Indian Band, on behalf of themselves

and all other members of the Doig

River Indian Band, the Blueberry River

Indian Band and all present descendants

of the Beaver Band of Indians                                                          Appellants

 

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Williams v. Canada [1992] 1 S.C.R. 877

Date Issued: 

Glenn Williams                                                      Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  Williams v. Canada

File No.:  22116.

1991:  October 10; 1992:  April 16.

Present:  La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.

on appeal from the federal court of appeal

                   Income tax ‑‑ Exemptions ‑‑ Regular and enhanced unemployment insurance benefits received by Indian residing on reserve ‑‑ Indian qualifying for benefits for work done on reserve ‑‑ Test for situs of unemployment insurance benefits ‑‑ Whether benefits exempt from tax under Indian Act ‑‑ Indian Act, R.S.C. 1970, c. I‑6, s. 87 ‑‑ Income Tax Act, S.C. 1970‑71‑72, c. 63, s. 56(1)(a)(iv).

                   Indians ‑‑ Taxation ‑‑ Exemptions ‑‑ Regular and enhanced unemployment insurance benefits received by Indian residing on reserve ‑‑ Indian qualifying for benefits for work done on reserve ‑‑ Test for situs of unemployment insurance benefits ‑‑ Whether benefits exempt from tax under Indian Act ‑‑ Indian Act, R.S.C. 1970, c. I‑6, s. 87 ‑‑ Income Tax Act, S.C. 1970‑71‑72, c. 63, s. 56(1)(a)(iv).

                   The appellant, a member of an Indian Band, received regular unemployment insurance benefits in 1984 for which he qualified because of his former employment with a logging company, and his employment by the Band in a “NEED” project.  In both cases, the work was performed on the reserve, the employer was located on the reserve, and the appellant was paid on the reserve.  In addition to regular benefits, the appellant also received “enhanced” unemployment insurance benefits paid in respect of a job creation project administered on the reserve by the Band, pursuant to a written agreement between the Band and the Canada Employment and Immigration Commission.  The regular and enhanced benefits were paid by the Commission’s regional computer centre in Vancouver.

                   The appellant received a notice of assessment by the Minister of National Revenue which included in his income for 1984 the regular and enhanced unemployment insurance benefits.  The appellant contested the assessment but his objection was overruled by the Minister.  The appellant then appealed to the Federal Court, Trial Division which concluded that, under the Indian Act , both the regular and enhanced  unemployment insurance benefits were exempt from taxation.  The Federal Court of Appeal set aside the judgment holding that only the enhanced portion of those benefits was exempt.  The issue in this case is the situs of unemployment insurance benefits received by an Indian for the purpose of the exemption from taxation provided by s. 87  of the Indian Act .

                   Held:  The appeal should be allowed and the cross‑appeal should be dismissed.

                   The situs of the receipt of unemployment insurance benefits cannot be determined in the same way the conflict of laws determines the situs of a debt.  To simply adopt general conflicts of law principles and to apply the “residence of the debtor” test in the present context would be entirely out of keeping with the scheme and purposes of the Indian Act  and Income Tax Act.  While the residence of the debtor may remain an important factor, or even the exclusive one, this conclusion cannot be directly drawn from an analysis of how the conflict of laws deals with such an issue.

                   The proper approach to determining the situs of intangible personal property is for a court to evaluate the various connecting factors which tie the property to one location or another.  In the context of the exemption from taxation in the Indian Act , the connecting factors which are potentially relevant should be weighed in light of three important considerations:  the purpose of the exemption; the type of property in question; and the incidence of taxation upon that property.  Given the purpose of the exemption, the ultimate question is to what extent each connecting factor is relevant in determining whether taxing the particular kind of property in a particular manner would erode the entitlement of an Indian qua Indian to personal property on the reserve.

                   The location of the employment which gave rise to the qualification for the unemployment insurance benefits is a particularly relevant factor in identifying the situs of the benefits.  The connection between the previous employment and the benefits is a strong one.  The benefits are based on premiums arising out of previous employment, not general tax revenue, and the duration and extent of the benefits are tied to the terms of employment during a specified period.  The manner in which unemployment insurance benefits are treated for the purposes of taxation further strengthens this connection, as there is a symmetry of treatment in the taxation of premiums and benefits, since premiums are tax‑deductible and benefits are taxed.  For an Indian whose qualifying employment income was on the reserve, however, the symmetry in the tax implications of premiums and benefits breaks down.  The original employment income was tax‑exempt and the taxation paid on the subsequent benefits does more than merely offset the tax saved by virtue of the premiums.  It is an erosion of the entitlements created by the Indian’s employment on the reserve.

                   In this case, since the location of the qualifying employment was on the reserve, the benefits received by the appellant were also located on the reserve.  This conclusion also applies to the enhanced benefits.  The appellant only qualified for participation in the job‑creation program because he had been receiving regular unemployment insurance benefits, that is, because of his prior employment that had ceased.  It follows that both the regular and enhanced benefits were exempt from taxation pursuant to s. 87  of the Indian Act .

                   The question of the relevance of the residence of the recipient of the benefits at the time of receipt does not arise in this case since it was also on the reserve.  The residence of the debtor and the place where the benefits are paid are connecting factors of limited weight in the context of unemployment insurance benefits.

Cases Cited

                   Referred to:  Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; The Queen v. National Indian Brotherhood, [1979] 1 F.C. 103; New York Life Insurance Co. v. Public Trustee, [1924] 2 Ch. 101; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; YMHA Jewish Community Centre of Winnipeg Inc. v. Brown, [1989] 1 S.C.R. 1532.

Statutes and Regulations Cited

Employment and Immigration Department and Commission Act, S.C. 1976‑77, c. 54, s. 11.

Income Tax Act, S.C. 1970‑71‑72, c. 63, s. 56(1)(a)(iv) [am. 1980‑81‑82‑83, c. 140, s. 26].

Indian Act, R.S.C. 1970, c. I‑6, ss. 87  [am. 1980‑81‑82‑83, c. 47, s. 25], 89, 90.

Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, s. 38(3) [ad. 1976‑77, c. 54, s. 41].

Authors Cited

Castel, J.‑G. Canadian Conflict of Laws, 2nd ed. Toronto:  Butterworths, 1986.

Cheshire, G. C. and P. M. North. Private International Law, 11th ed. By P. M. North and J. J. Fawcett. London:  Butterworths, 1987.

Dicey, A. V. and J. H. C. Morris.  The Conflict of Laws, vol. 2, 11th ed. By Lawrence Collins and Others. London:  Stevens & Sons, 1987.

                   APPEAL and CROSS‑APPEAL from a judgment of the Federal Court of Appeal, [1990] 3 F.C. 169, 72 D.L.R. (4th) 336, 109 N.R. 223, 32 C.C.E.L. 1, 90 D.T.C. 6399, [1990] 2 C.T.C. 124, [1991] 2 C.N.L.R. 172, setting aside a judgment of the Trial Division, [1989] 2 F.C. 318, 24 F.T.R. 169, 24 C.C.E.L. 119, 89 D.T.C. 5032, [1989] 1 C.T.C. 117, [1989] 1 C.N.L.R. 184.  Appeal allowed and cross‑appeal dismissed.

 

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