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

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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