Ke-Kin-Is-Ugs v. British Columbia (Minister of Forests) [2008] B.C.S.C. 1505

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

Chief Councillor suing on her own behalf and

on behalf of all members of the Hupacasath First Nation,

the Hupacasath First Nation Council,

and the Hupacasath First Nation                                                                                   Petitioners

 

v.

 

Minister of Forests of the Province of British Columbia,

The Chief Forester, and Island Timberlands LP                           Respondents

 

Indexed as:  Ke-Kin-Is-Ugs v. British Columbia (Minister of Forests)

Neutral citation:  2008 BCSC 1505.

2008:  May 28, 29, 30; 2008:  July 2, 3.

Present:  P.R.A. Grant, M.L. Ross, J. Huberman, T.F. Isaac, L. Martz

Before: The Honourable Madam Justice Lynn Smith

 

NATURE OF THE APPLICATION

[1]               The petitioners are an Aboriginal First Nation (“Hupacasath” or “HFN”) and its Chief Councillor.  They obtained an Order of this Court in 2005 requiring the provincial Crown (Minister of Forests) to consult with them regarding Crown decisions affecting their asserted traditional territory on Vancouver Island, and imposing certain conditions for a two year period on the use of some land within that asserted territory owned by Island Timberlands LP.  The petitioners ask the Court to direct that an independent mediator be appointed to assist with further consultation and accommodation between the petitioners and the respondent Minister of Forests and Range (“MOFR” or “the Minister”).  They also seek an order re-imposing conditions on the use of the Island Timberlands lands for a six month period.  The lands (which I will refer to as the “Removed Lands”) were formerly managed under Tree Farm Licence 44 (“TFL 44”) but were released from TFL 44 by decision of the Minister in 2004 (the “Removal Decision”).  Finally, the petitioners ask for costs.  Both the Minister and Island Timberlands oppose the granting of any relief.

[2]               The petitioners express concern that the Removed Lands, forming part of their asserted traditional territory and previously in TFL 44, will be developed and sold to others, or will be used for timber operations, in a way which will seriously affect their aboriginal rights.  Island Timberlands does not deny that it may at some time in the future develop the Removed Lands for “higher and better use” and cease to use them for forestry.  Nor is it disputed that forestry practices on private lands are regulated in a different and considerably more forgiving way than they are regulated under Tree Farm Licences.  Mr. Grant, counsel for the petitioners, referred on several occasions to the petitioners’ fear that much of their traditional territory will become “cottage country”, with the Hupacasath losing forever the access they have had to sacred places, to wildlife and fish, and to materials including cedar that they use as part of their traditional way of life.  As well, the petitioners express concern about forest management practices that may reduce the wildlife habitat available on the Removed Lands, and may also affect the availability of wildlife on adjacent Crown lands which form part of the HFN asserted traditional territory.

[3]               The Crown, on the other hand, says that it has complied with the previous Order, that it is involved with the petitioners in treaty negotiations and ongoing discussions about other issues, and that there is no basis for a further order directing it to consult with the petitioners or requiring the appointment of a mediator.  Both the Crown and Island Timberlands argue that, since the lands in question have long been privately owned, whatever aboriginal rights pertain to those lands are weak; accordingly, while there may be a duty to consult at a low level, there is no duty to accommodate.  Both respondents argue that the Court lacks jurisdiction to re-impose conditions on the use of the Removed Lands.  Island Timberlands submits that any further order restricting it in the use of its lands would be unprecedented and inconsistent with the system of land tenure in this province.

[4]               The petitioners also argue that the financial interest of British Columbia Investment Management Corporation (an entity controlled by the Crown) in Island Timberlands LP is a matter that should have been disclosed and that bears on the issues raised by this application.

[5]               I note one procedural matter:  by consent of all parties the style of cause in this matter has been amended to add Island Timberlands LP as a party in place of Brascan Corporation.

BACKGROUND

[6]               It is necessary to review briefly the findings made in previous decisions in this matter on December 6, 2005 (“the 2005 Decision”), and February 15, 2008 (“the Interim Decision”).

December 6, 2005 Decision

[7]               The petitioners’ original application was heard July 11, 12, 13, 14 and 15, 2005.  In it, the petitioners sought judicial review, alleging that the provincial Crown (Minister of Forests and the Chief Forester) had been in breach of its constitutional duty to consult with them regarding the Crown’s decisions (a) to permit removal of lands owned by the respondent (then Brascan, now Island Timberlands LP) from TFL 44, and (b) to amend the allowable annual cut for TFL 44.  The petitioners also alleged that the Crown had acted inconsistently with relevant statutes.  They sought orders quashing or suspending those two decisions and referring the matter for reconsideration after there had been consultation and compliance with the statutes.

[8]               The position of both respondents was that there was no duty on the Crown to consult and if there was any duty it had been met.  Further, the respondents argued that, if there had been any failure to abide by a duty to consult, the petitioners should not be granted relief in all of the circumstances.  They emphasized that the lands were not Crown lands, but were privately owned.

[9]               The outcome of the application was an order declaring that the Crown had been in breach of its constitutional duty to consult with respect to the Removal Decision, and requiring it to do so, but allowing the Removal Decision to stand.  In the Order (entered January 19, 2006) certain conditions were imposed on the use of the Removed Lands for a period of up to two years while consultations were completed.  It was unnecessary to deal with the allegations of statutory breach.  The amendment to the allowable annual cut was allowed to stand, as the Crown had fulfilled its duty to consult in that regard.

[10]           I will not review in detail the evidence, findings of fact or analysis of the law in the 2005 decision, reported at 2005 BCSC 1712(CanLII), 51 B.C.L.R. (4th) 133 (“the 2005 Decision”).  I will, however, summarize the findings of fact with respect to the petitioners’ claim.

[11]           None of the parties appealed the 2005 Decision.

Findings of Fact in the 2005 Decision

[12]           The Removed Lands are located on Vancouver Island, around Port Alberni, and comprise about 70,000 hectares.  They are largely within the area that the HFN claims as its traditional territory.  The Removed Lands have been privately owned since 1887 when the Dominion of Canada transferred a tract of land to the Esquimalt and Nanaimo Railway Company.  Canada had received the lands from the British Columbia government in 1884 under the Settlement Act (An Act relating to the Island Railway, the Graving Dock and Railway Lands of the Province), S.B.C. 1884, c. 14.  Roughly 40% of the Removed Lands are not subject to any competing claim from other First Nations.

[13]           Although Tree Farm Licences (“TFL”) usually relate to logging by private entities on Crown land, the Forest Act, R.S.B.C. 1996, c. 157, also permits a TFL to cover private land.  In some instances, private land owners have received incentives from the Crown to bring their land under a TFL.  Once private land is under a TFL the land or an interest in the land cannot be alienated to third parties without the prior written consent of the MOFR (s. 54.7 of the Forest Act) and the land cannot be used for other non-forestry purposes (s. 2.1 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159).  The permission of the MOFR must be obtained before land is removed from a TFL (s. 39.1 of the Forest Act).

[14]           The Removed Lands had been brought voluntarily into TFL 44 in about 1945 because the then owner of the Removed Lands held a TFL covering adjacent Crown land and agreed to have the Removed Lands brought under that TFL.

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

[16]           The total HFN claimed traditional territory encompasses most of the Removed Lands and adjacent Crown land, totalling about 232,000 hectares in central Vancouver Island.  There has been no surrender of aboriginal rights or title by treaty.  About 50% of the HFN claimed traditional territory is not subject to any competing claim.  With respect to the other 50%, the Tseshaht, Cape Mudge, Comox, Qualicum, Snuneymuxw, Te’mexw, Uchucklesaht and Ucluelet First Nations have advanced claims and indicated consultative boundaries that overlap with some portions of the HFN claimed territory.

[17]           The HFN are in the treaty negotiation process.  They were at Stage 4 as of July 2005 and they are still at Stage 4.  Their land selection, provided to the provincial Crown in 1998, includes the Removed Lands.

[18]           Beginning in about 1995, there were consultations between the provincial Crown, the HFN and the then owner of the land, Weyerhaeuser, regarding forestry activity within TFL 44, including both Crown lands and the Removed Lands.  It did not appear that the parties in their consultation distinguished between the Crown lands and the Removed Lands.  The evidence was that the consultation processes dealt with:  protecting and enhancing fish habitat and rebuilding salmon runs; protecting and enhancing water quality; protecting sacred sites; protecting and managing red and yellow cedar and maintaining old growth trees; protecting culturally modified trees; protecting and enhancing bird and wildlife habitat; protecting uncommon tree and plant species such as Yew which are used for cultural and medicinal purposes; and providing access to the territory for HFN members to exercise spiritual practices and aboriginal hunting and fishing rights.  Chief Sayers deposed that by 2001 the process developed by the HFN and Weyerhaeuser was such that intervention by the provincial Crown was rarely required.

[19]           On November 30, 2000, Weyerhaeuser entered into a Memorandum of Understanding with the HFN.  It included a consultation protocol regarding the Ash River lands (now part of the Removed Lands).  The Ash River lands at that time were being transferred from the Crown to Weyerhaeuser.  Although the contents of the Memorandum of Understanding (“the Ash River MOU”) were not described in the 2005 Decision, it is convenient to do so at this juncture.  In the Ash River MOU, the company agreed to allow HFN members access to the Ash River Lands for the purpose of exercising their “Interests”, with the caveat that the company could, in its sole discretion, temporarily restrict access for reasons related to active logging and safety.  The “Interests” are defined as “the cultural and spiritual activities that members of the First Nation will continue to exercise on the Ash River Lands under the terms of this Agreement, such activities to include hunting, fishing, and gathering, for cultural and spiritual purposes, and for sacred/spiritual practices.”  As well, Weyerhaeuser agreed to consult with HFN when planning logging activities within the Ash River lands, with some detailed parameters set out for the consultation.  It agreed that if its future uses of the lands changed from growing and harvesting trees on an industrial basis, it would consult with HFN and give careful consideration to the HFN concerns, advice or recommendations before implementing a change of use, and that “[a]ny change of use by the Company will not interfere with the First Nation’s exercise of its Interests as defined in this agreement”.

[20]           The petitioners filed a writ claiming aboriginal title to their traditional territory, including the Removed Lands, on December 10, 2003.

[21]           Weyerhaeuser wrote to the Minister on December 5, 2003 requesting removal of its private lands from TFL 44.  The HFN was aware that the company was pursuing removal of the lands, but there was no consultation or attempted consultation by the Crown with the HFN regarding Weyerhaeuser’s proposal to remove the lands from TFL 44.

[22]           On July 9, 2004, the Minister of Forests made the Removal Decision granting permission (pursuant to s. 39.1 of the Forest Act) for the removal of the lands from TFL 44.  The then Minister, the Honourable Michael de Jong, included a number of terms and conditions in his letter to Weyerhaeuser.  Those conditions are set out in detail in the 2005 Decision at para. 52.

[23]           The HFN gave notice on July 19, 2004, shortly after it received notice of the Removal Decision, that it considered that the decision infringed its aboriginal rights and title.

[24]           Brascan purchased all of Weyerhaeuser’s coastal forestry assets and operations in December 2004.  The fact that the privately owned lands had been removed from the regulatory regime applying to TFL 44 was an important factor in Brascan’s decision to enter into the transaction.  The petitioners were unsuccessful in an application for an order enjoining the completion of the sale pending consultation and accommodation (Hupacasath First Nation v. British Columbia (Minister of Forests)2005 BCSC 345 (CanLII), 2 C.N.L.R. 138).

[25]           After the purchase, Brascan transferred the Removed Lands to Island Timberlands GP Limited to be held beneficially for Island Timberlands LP.

Applicable Legal Principles

[26]           I will not repeat what was set out in the 2005 Decision regarding the applicable legal principles (paras. 74-138), but will summarize them briefly.

[27]           The respondents at that time argued that because the Removed Lands were privately owned, the circumstances in this case were distinguishable from those in Haida Nation v. British Columbia (Minister of Forests)2004 SCC 73, [2004] 3 S.C.R. 511 (Haida Nation), and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)2004 SCC 74 (CanLII), [2004] 3 S.C.R. 550 (Taku), the two leading Supreme Court of Canada cases on the Crown’s duty to consult with aboriginal peoples, and no duty to consult existed.  I concluded that the honour of the Crown was at stake in its decision to permit removal of the lands from the regulatory regime pertaining to TFL 44 in these unique circumstances, and that there could be a duty to consult with respect to decisions affecting privately owned lands.  I concluded that there was a duty to consult and attempt accommodation both with respect to the Crown lands in HFN asserted traditional territory and the Removed Lands, which had previously formed part of TFL 44.

[28]           I reached no conclusion regarding the continued existence of aboriginal title with respect to land held in fee simple, observing that a review of the law indicated that that question has not yet been resolved by the Supreme Court of Canada.

[29]           With respect to the analytical framework, a summary is set out in the 2005 Decision at paras. 137-138:

137     To summarize the effect of the judicial authorities, they show a three-step process for considering an alleged failure of the Crown to consult with and accommodate aboriginal people. 

138     First, in determining whether a duty to consult arises, the court must assess whether the Crown has knowledge, real or constructive, of the potential existence of the aboriginal rights. Second, the court must determine if the Crown contemplated conduct that might adversely affect those rights. If there is such knowledge and contemplated conduct, then the court must take the third step and consider the scope and content of the duty to consult and accommodate, and whether that duty has been met. Determining the scope and content of the duty necessitates a preliminary assessment of the strength of the case supporting the existence of the right, and a consideration of the seriousness of the potentially adverse effect upon the rights claimed.

[30]           I found that, as a result of the Removal Decision, the Crown had significantly reduced its ability to control activities on the Removed Lands and that the consequences would be felt by the HFN both in connection with their exercise of aboriginal rights on the Removed Lands (including access to sacred sites, food gathering, use of cedar and other plants, and hunting, which had previously been available with permission of the owners), and in connection with their exercise of aboriginal rights on the neighbouring Crown land in TFL 44.

Conclusions on the 2005 Application

[31]           I found that the Crown had knowledge of the existence of potential aboriginal rights pertaining to the Removed Lands and to the surrounding Crown lands, and had contemplated conduct that could adversely affect aboriginal rights.  Accordingly, the Crown had a duty to consult.

[32]           Making a preliminary assessment of the strength of the HFN claim, and the seriousness of the potential adverse impact, I reached the conclusions set out in the 2005 Decision at paras. 244-275.  These conclusions will be referred to later in more detail, but in summary they were:

(1)      With respect to the Crown land, the HFN had shown a strong prima facie case for aboriginal rights including title to the portion without overlapping claims, and a somewhat weaker case for aboriginal title where there were overlaps;

(2)      With respect to the Removed Lands, the HFN had shown a prima facie case for aboriginal rights and possibly aboriginal title, with a weak case for aboriginal title where there were overlapping claims;

(3)      The potential effect of the Removal Decision on the claimed aboriginal rights was modest with respect to the Crown lands;

(4)      The potential effect of the Removal Decision on the claimed aboriginal rights was serious with respect to the Removed Lands;

(5)      The duty to consult was at a moderate level with respect to the Crown lands, and at a lower level with respect to the Removed Lands.

[33]           Conclusions with respect to the Crown’s duty were set out at paras. 274-275:

274     The Crown’s duty with respect to alleged aboriginal rights on the Removed Land is at a low level and does not require “deep consultation”. It does require informed discussion between the Crown and the HFN in which the HFN have the opportunity to put forward their views and in which the Crown considers the HFN position in good faith and where possible integrates them into its plan of action. The Crown has not met that duty.

275     The duty on the Crown with respect to the effect of the removal decision on aboriginal rights asserted on Crown land is higher, and requires something closer to “deep consultation”. On the evidence, the Crown did not meet that duty.

[34]           I found that the Crown had not fulfilled its duty to consult with respect to the Removal Decision.  However, because the evidence showed potentially significant prejudice to Brascan/Island Timberlands if the Removal Decision were set aside or suspended in its effects, it was allowed to stand.  The Minister’s conditions imposed in the Removal Decision were incorporated into the court order and were effective for the earlier of two years from the date of entry of the order or until the Crown completed consultations with the HFN.

[35]           The Order was entered on January 19, 2006, after the terms were settled before a Master, as follows:

THIS COURT DECLARES that:

1.         the Respondent Minister of Forests had, prior to the removal decision on July 9, 2004 (the “Removal Decision”), and continues to have, a duty to consult with the Hupacasath First Nation (“Hupacasath”) in good faith and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage Tree Farm License 44 (“TFL 44”) in accordance with the public interest, both aboriginal and non-aboriginal;

2.         the removal decision on July 9, 2004 made without consultation with the Hupacasath was inconsistent with the honour of the Crown in Right of British Columbia in its dealings with the Hupacasath;

3.         the Chief Forester had, prior to the August 26, 2004 decision to amend the allowable annual cut for TFL 44, and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal;

4.         making the Removal Decision without consultation with the Hupacasath was inconsistent with the honour of the Crown in right of British Columbia in its dealings with the Hupacasath; and

5.         the Chief Forester had, prior to the August 26, 2004 decision to amend the allowable annual cut for TFL 44 (the “AAC Decision”), and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal and non-aboriginal.

THIS COURT ORDERS that:

6.         the Crown and the Petitioners will attempt to agree on a consultation process and if they are unable to agree on a process, they will go to mediation.  If mediation fails, the Crown and the Petitioners may seek further directions from the Court;

7.         the Crown and the Petitioners will provide to each other such information as is reasonably necessary for the consultation to be completed and the Crown and the Petitioners will attempt to agree on the document exchange and if they are unable to agree, the matter will go to mediation;

8.         the terms in this paragraph 8 apply to Brascan, Island Timberlands and their successors in interest and will be in effect for the earlier of two years from the date of entry of this Order or until the Crown has completed consultation with the Hupacasath:

(a)      Brascan will maintain the current status of “managed forest” on the privately owned lands removed from TFL 44 (the “Removed Lands”) and will keep the Removed Lands under the Private Managed Forest Land Act, S.B.C. 2003, c. 88, subject to all of its provisions and regulations governing planning, soil conservation, harvesting rate and reforestation;

(b)      Brascan will maintain variable retention and stewardship zoning on old growth areas in the Removed Lands;

(c)        Brascan will fulfill its commitments outlined in the Minister of Forest’s letter dated July 9, 2004 regarding maintenance of water quality on the Removed Lands;

(d)      Brascan will maintain all current wildlife habitat areas on the Removed Lands;

(e)      Brascan will maintain ISO or CSA certifications and will continue to subject the Removed Lands to the public advisory process as per CSA standards;

(f)         Brascan will maintain current access for aboriginal groups to the Removed Lands; and

(g)      Brascan will provide to the Hupacasath seven days notice of any intention to conduct activities on the land which may interfere with the exercise of aboriginal rights asserted by the Hupacasath;

9.         the parties will exchange positions as to what kinds of activities might interfere with the exercise of aboriginal rights on the Removed Lands and if there is a failure to agree on a framework, the matter will go to mediation;

10.      the Crown will facilitate the operation of the order in paragraph 9, including, if requested by the Petitioners and Brascan, providing the services of independent mediators at Crown expense;

11.      the Petitioners’ applications for orders to either quash, set aside or suspend the effect of the Removal Decision and the AAC Decision are dismissed; and

12.      the Respondents will pay the Petitioners’ costs of the proceedings.

The Interim Decision

[36]           On January 21, 2008, after the two-year period had ended, the petitioners filed their Notice of Motion in this application, and applied for an interim order extending the terms of paragraph 8 of the December 2005 Order (imposing conditions on the use of the Removed Lands) pending the full hearing and determination of this application.  The Crown did not oppose that application.  Island Timberlands argued that the Court lacked jurisdiction to make such an order.  After the hearing and pending the ruling, I ordered that Island Timberlands continue to provide the notice described in paragraph 8(g), of activities that might interfere with the aboriginal rights asserted by the HFN.

[37]           On February 15, 2008 (the “Interim Decision”), I held that this Court did not have jurisdiction to extend the term of the Order on an interim basis, and that it would not be appropriate to impose interim restrictions on Island Timberlands pending the full hearing.  That decision may be found at 2008 BCSC 1020 (CanLII).

[38]           I concluded that the Order entered as a result of the 2005 Decision was clear in specifying that paragraph 8 applied for two years from the date of entry or until the completion of consultation, whichever came first, and that it was not inherent in the Order that extensions of the time specified in paragraph 8 could be sought.  Because the Order had been entered, the Court was functus officio and could not vary the terms of the Order except in limited circumstances that did not apply in this case.  Further, I concluded that Rule 3(2), which provides that the court “may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application or the order granting the extension is made after the period of time has expired” does not supersede the ordinary principle of functus officio after an order has been entered – rather, it is aimed at, for example, providing relief to a party who has been ordered to post security for costs but has missed a deadline for excusable reasons.

[39]           However, at the conclusion of the hearing at which the Interim Decision was delivered, because the hearing of this full application was to be held expeditiously, I directed Island Timberlands to continue to provide notice to the HFN of activities that might interfere with the aboriginal rights asserted by the HFN.  A similar direction was made at the conclusion of the hearing of this application, pending delivery of these Reasons for Judgment.

THE CONSULTATION PROCESS

Evidence Regarding the Consultation

[40]           Chief Judith Sayers and Trevor Jones, CEO of HFN, and Steve Tatoosh, Acting Director of Natural Resources for HFN, swore affidavits describing in detail the consultation process, and its overall context, from the HFN point of view.  In addition, the petitioners provided affidavits from Adam Lewis, a registered professional biologist, and Shawn Flynn, a registered professional forester, regarding activities (allegedly recent and on the Removed Lands) with potential adverse impact on wildlife and fish, and from Brandy Lauder, the Hupacasath Forestry Liaison between 1994 and March 2004 and the Natural Resource Manager after 2004, regarding interaction between the HFN and Island Timberlands about activities on the Removed Lands potentially affecting culturally modified trees, Hupacasath trails, or archaeological or sacred sites.

[41]           The Crown provided a record of what transpired between the parties from the 2005 Decision to the date of hearing, in the main through an affidavit sworn by Peter Poland, an Aboriginal Affairs Manager with MOFR in Nanaimo.  He was appointed to assist the lead negotiators (first, Cindy Stern, then Darrell Robb) in the consultation regarding the Removal Decision and was asked to maintain a record of the consultation process.

[42]           Mr. Poland referred to numerous meetings and communications over the two years beginning in December 2005, and attached a large number of documents to his affidavit in an exhibit of some 1,663 pages.  In considering that “consultation record”, I take into account that the “minutes” are sometimes in fact “draft meeting notes” and are not complete records of discussions at sometimes lengthy meetings.  Nor does it appear that they were minutes in the sense that they were formally approved by the HFN representatives although in some cases there are comments back, for example from Trevor Jones, as to the accuracy of the notes.

[43]           Some of the meetings and exchanges clearly related to explicit discussions between HFN and MOFR representatives regarding the Removal Decision, its impacts, and the HFN desire for accommodation.  Others did not have that focus, but are nevertheless relied upon by the Crown as showing its overall attempts to consult and provide accommodation.  

[44]           The Crown filed a number of affidavits from other participants and officials, including:  Darrell Robb, Director of the Aboriginal Affairs Branch of the MOFR; Mark Lofthouse, a Chief Negotiator with the Ministry of Aboriginal Relations and Reconciliation (“MARR”); Ron Diederichs, a Senior Ecosystem Biologist, Forestry with the Environmental Stewardship Division of the Ministry of the Environment; Bruce McKerricher, Timber Sales Manager with the Strait of Georgia Timber Sales Office of British Columbia Timber Sales (“BCTS”) (a stand-alone organization within the MOFR, responsible for revenues gained through harvesting timber on public lands); and Rudolf Mayser, Strategic Plan Section Head with the Integrated Land Management Bureau (“ILMB”) of the Ministry of Agriculture and Lands.

[45]           Island Timberlands provided evidence bearing indirectly on the consultation process, through affidavits from:  Darshan Sihota, the President of Island Timberlands; Diane Medves, previously employed as Corporate Forester for Island Timberlands; and Bill Waugh, General Manager, Planning and Forestry for Island Timberlands.

Background to the Consultation

[46]           As I have described, the Minister did not consult with the Hupacasath about the Removal Decision before or after making that decision in July 2004, until the court order flowing from the 2005 Decision.

[47]           At the time of the 2005 Decision, the parties were at Stage 4 of treaty negotiations.  In addition, the Ministry was already in consultation with HFN on a number of other matters.

[48]           These included the Minister’s pending decision on timber reallocation, arising from the Forestry Revitalization Act, S.B.C. 2003, c. 17, which provides for a “take-back” of 20% of provincial allowable annual cut from timber licencees, to be reallocated to BCTS then auctioned by a bid process.  The HFN and MOFR were also discussing the terms of an Interim Forestry Consultation Protocol that had been under development since August 2005, and a cultural cedar needs assessment project to be funded by the MOFR, in order to develop an Old Growth Cedar Strategy which would quantify the volume of cedar required to meet the HFN’s cultural needs.  Two other pieces of litigation between the Crown and HFN were underway, relating to a land transfer at Cherry Creek and a dispute with B.C. Hydro regarding the impact of the Elsie Dam.  Discussions as to Land Use Planning had begun with the ILMB (particularly focused on Old Growth Management Areas) regarding the Crown lands in TFL 44.

[49]           Later, during the two-year period beginning in January 2006, other issues and occasions for consultation arose, including the question of ongoing funding for a Traditional Use Study, the setting of allowable annual cut on the remaining Crown land in TFL 44, and a “Natural Resource Management Issue Resolution Process” developed with the ILMB, which worked on a number of issues at separate “Technical Team” meetings, including Old Growth Management Areas and cultural cedar, Great Central Lake float homes and other riparian issues.  Parties involved in the different meetings included not only the MOFR, but also representatives of BCTS, ILMB, MARR, the Ministry of the Environment, Cascadia Forest Products, Island Timberlands, and independent consultants.

[50]           As will be seen in the brief review that follows, five different Ministries and agencies of government became involved, in a number of different interwoven processes flowing from a wide range of legislation and regulations.  Those involved in these processes have developed their own technical, sometimes arcane terminology. To say the least, the “consultation record” did not “speak for itself”, as was suggested by counsel for the Crown at one point in oral submissions.  At the request of the Court, Crown counsel condensed and explicated the “consultation record”, and provided a list of acronyms and glossary of terms.  The hearing was adjourned in order to give the Crown the opportunity to comply with that request and to make further submissions, and to permit counsel for the petitioners to reply.

[51]           There is not much disagreement about the basic events (meetings held, documents exchanged) during the consultation process, although the Crown and the HFN take very different views as to their import, and the HFN position is that the written notes of the meeting do not capture certain matters:  for example, the number of occasions on which they raised questions about their lost opportunity to exercise aboriginal rights on the Removed Lands. 

[52]           Because a number of processes involving the Crown and HFN were already underway, or arose later, and because the court-ordered consultation was carried on in parallel with, and sometimes intersecting with, those other processes, it is not a straightforward matter to tease out those interactions between the Hupacasath and the provincial Crown that were primarily in response to the court order to consult.  The HFN position is that the Crown has tried to represent any contact about anything as being part of the consultation.  The Crown position is that the issues are inter-related and the Hupacasath understood that connection and, at times, themselves asked for the involvement of other Ministries or agencies and made linkages between the Removal Decision and other issues or forms of accommodation.

[53]           I have examined the consultation record in detail, but will only briefly summarize it here.  Further reference will be made to specific aspects of it later in these reasons.  In summary, the consultation went through four key phases.

[54]           The first phase (which I will call the “Initial Phase”) began with the release of this Court’s decision on December 5, 2005, and ended in early September 2006 after the departure of the lead representative for the MOFR, Cindy Stern.  The second phase (the “Term Sheets Phase”) extended from that point, marked by the appointment of Darrell Robb as the lead representative for the Minister, to the beginning of March, 2007.  The third phase (the “Planning and Forestry Agreement Phase”) extended from March 5, 2007, when a draft Planning and Forestry Agreement was delivered by the Crown to HFN, to early January, 2008.  The fourth phase (the “Post-Two-Years Phase”) began with a meeting of the parties on January 22, 2008, and ended with an offer from the MOFR to HFN in April, 2008, rejected by HFN on May 29, 2008.  I note that although the Order made in the 2005 Decision was effective from the date the decision was made (December 6, 2005), it was not entered until January 19, 2006 and the parties seemed to agree that the two-year period ran from that date.  Given that, and because it makes no difference to my decision on this application, I will treat the end of the two-year period as January 19, 2008.

[55]           Arguably, the key events during the process were:  the August 11, 2006 proposal (or list of settlement options) tabled by the HFN; the Minister’s proposal in a letter dated October 12, 2007; the HFN response on October 29, 2007; the Minister’s Offer to Settle on April 25, 2008; and the HFN rejection of that offer in May 2008.  Another key event was that, at HFN’s request, a second process known as the “corporate table” began, involving several other Ministries in addition to the MOFR, led by the Ministry of Aboriginal Rights and Reconciliation.

1. The Initial Phase

[56]           During the Initial Phase, between January and September 2006, meetings were held between the parties, focused on the consultation and accommodation required by the Removal Decision, on March 3, April 26 and 27, May 24, June 20, August 11 and August 24, 2006.  In addition there were contacts and discussions about other related issues, and some correspondence.

[57]           The Ministry provided financial assistance ($25,000) through a contribution agreement to assist the HFN in carrying on the consultation process.

[58]           Some themes emerged in the Initial Phase that continued throughout the process, and I will describe those themes at this juncture, returning to some of them later in more detail.

Disagreement as to the requirements imposed by the 2005 Decision

[59]           The two parties did not see the import of the 2005 Decision and the requirements it imposed in the same way.  The Crown took the position that the necessity of accommodation could not be assumed, while the HFN representatives took the position that the 2005 Decision had settled that the government should have consulted with the HFN, and must now provide accommodation.  Chief Sayers asserted that “deep consultation” was required (notes of December 9, 2005 meeting), and that the B.C. Supreme Court had upheld HFN asserted title so that it was necessary for the provincial and HFN governments to agree on how the lands and resources were to be co-managed (letter of January 24, 2006 to Cindy Stern).  On the other hand, the Crown representative said that it was necessary to establish if there is an infringement and that “there is no obligation to consult or a process on private land” (Cindy Stern, notes of April 27, 2006 meeting) and that the discussion was to address “whether the government should have consulted or not”, then to look at the “strength of claim” (Cindy Stern, notes of May 24, 2006 meeting).

Requirement to provide information

[60]           The Ministry required the HFN to describe what their interests were, how they were impacted, and what the potential accommodation might be.  The HFN, although they objected (taking the position that the 2005 Decision had dealt with the matter of the interests and the impact and that the parties should focus on negotiating an accommodation package), provided to the Ministry part of their previously prepared Traditional Use Study relating to impact on the Removed Lands, and their entire Traditional Use Inventory.  They also urged that the Hupacasath Land Use Plan (previously provided to the Ministry) should be considered with respect to their traditional territory.

[61]           In this context the HFN provided a document on May 24, 2006 (called “Articulation of Aboriginal Rights on the Removed Lands Within Hupacasath Territory”) listing a number of sites where the HFN said that their activities traditionally occurred — spiritual activities, hunting, fishing, harvesting, gathering (including the use of cedars) and transportation.  Notes from the meeting where this document was tabled indicate that Chief Sayers referred to effects of the Removal Decision on asserted Hupacasath rights at sacred sites and with respect to traditional practices.  Judith Sayers Affidavit #9 provides further detail about the HFN claims.  Chief Sayers deposed that while the HFN have claimed a large number of sacred sites within the Removed Lands, the exact number is unknown because they are kept secret, and the sites do not have the protection of the Heritage Conservation Act, R.S.B.C. 1996, c. 187.  She described elk and marmot as among the species that Hupacasath traditionally hunted, now endangered within the HFN traditional territory, and cited the need for wildlife corridors.  She deposed that the Hupacasath use the whole territory for gathering foods, medicines and other materials, and that scarcity of these materials may affect the Hupacasath’s ability to engage in traditional healing, ceremonies and artwork.  She also referred to Culturally Modified Trees (“CMTs”) and to the limited protection offered by the Heritage Conservation Act since the CMTs must pre-date 1846 (and they are protected only if they are first identified).  She stated that access for hunting and gathering and access by road to the HFN Cous and Chuckacook reserves is at risk because decommissioning of many roads is in progress.

[62]           The Crown representatives indicated that they found the information provided by the HFN insufficiently specific.  The HFN position is that in some instances it is culturally prohibited to reveal locations (sacred sites), in some cases it was impossible to be more precise (ranges for animals can be extensive) and in any event the information was understood to be partial when it was provided and that further work was to be done in mapping out the interests.

Discussion between the parties reflected divergent views as to what was required

[63]           The Ministry took the position consistently, as expressed in comments in the minutes of the first meeting attributed to Cindy Stern, that “…accommodation would be oriented on the Crown land as there is likely no jurisdiction by MOFR on private land”, and “Private land before the decision is still private land after the decision”.  

[64]           Some of the HFN requests related to accommodation on the Crown land, but a number of requests related to the Removed Lands.  Counsel for the petitioners, Mr. Grant, submitted that the record, because the notes of the meetings were only partial, understates the extent to which HFN raised issues and suggestions about ways of providing accommodation for HFN aboriginal interests on the Removed Lands.  It does appear that possible accommodation relating to the Removed Lands was raised by the HFN on a number of occasions.

[65]           With respect to the Removed Lands, the HFN asked whether the Minister could place conditions on Island Timberlands in its use of the lands, in particular with respect to access to sacred sites, old growth cedar, and the like, and asked for the Province’s position with respect to enforcing the conditions in the Minister’s letter and the court order.  HFN representatives named areas including Grassy Mountain and Thunder Mountain as major areas needing protection.  The Minister committed at the March 3, 2006, meeting to developing “a Matrix of options to address possible accommodations” in response to this request.  This matrix, attached to the minutes of the August 11, 2006, meeting, referred to existing pieces of legislation or regulations, to the terms of the Minister’s Removal Decision, and to how they applied to ongoing activities on the Removed Lands.  

[66]           HFN also raised the question of acquisition of specific areas from Island Timberlands, such as Grassy Mountain, that could be provided as accommodation.  

[67]           The HFN sought continued protection or replacement on Crown land of Old Growth Management Areas formerly protected when the Removed Lands were in TFL 44.  HFN representatives also raised issues about access to watersheds and maintenance of old growth around creeks, Ungulate Winter Ranges and certain Wildlife Habitat Areas on the Removed Lands.  They argued for 50 metre buffers around salmon bearing streams and 100 metre buffers around spiritual sites. 

[68]           From time to time Island Timberlands representatives took part in the discussions regarding fish bearing streams and buffers, wildlife protection, access to sacred sites and the possible sale of the private lands to another party.  At a meeting on June 20, 2006, the HFN representatives referred to the Ash River MOU as a desirable model, while the Island Timberlands representatives referred to the differences between the two situations (in particular, that Ash River involved a transfer of Crown land).  The HFN and the Ministry discussed what possible measures Island Timberlands was willing to take to accommodate the HFN’s interests in the Removed Lands, and what solutions the HFN preferred, including the purchase of Grassy Mountain and a “conservation covenant” registered on title with the Crown and HFN named as the monitors.  So far as the record shows, the Crown did not pursue any of the proposals that apparently had been discussed by HFN and Island Timberlands.

[69]           In a letter dated March 20, 2006, the HFN made a proposal:  that MOFR “begin the process of identifying and securing an area based tenure capable of supporting a viable commercial scale annual harvest within the Great Central Lake/Sproat Operating Area” (defined within the operating constraints of the Hupacasath Land Use Plan); that the parties negotiate a “long term consultation protocol and accommodation/ compensation package over the next 6 months which would specifically address the obligations of the Crown stemming from the court order” (referring to the “compendium of uses” provided by HFN); that “MOFR support the development of a relationship protocol between HFN and Island Timberlands”; that MOFR support the negotiations through a contribution agreement (attaching a budget and work plan); and that MOFR “work with the other line (MOE, ILMB, etc.) ministries to gain support to develop a planning protocol acknowledging the government to government implementation of the Hupacasath Land Use Plan and related standards”.  As may be seen, the HFN sought accommodation relating to both the Removed Lands and Crown lands.

[70]           On August 11, 2006, the HFN tabled a document, titled “Removal of Private Lands from TFL 44”, that I will call the “August 11 proposal”.  According to the minutes of the meeting, a HFN representative described it as providing a “price tag for removal of private land from TFL 44”.  Under the heading “What do the Hupacasath lose?” are listed:  sacred sites; lower environmental standards; reduced old growth management areas; permanent alienation of land and resources; increased land values/change of use; increased treaty costs; threatened/damaged fisheries, wildlife and water resources; reduced ungulate ranges; incremental loss of TUS; lower environmental regulatory standards; impact on remaining Crown lands including issues of fire hazards, forest health; and wildlife habitat areas and corridors.  At the foot of the list is “Compensatory Value – Priceless – 1.5 Billion”.  The second page has a list of “Settlement Options” including some items quantified in dollar amounts, involving a number of Ministries and agencies, with a “MOF Subtotal” of $12 million, in a global total of $40.5 million.  That list includes the two other unrelated litigation matters involving Cherry Creek and B.C. Hydro. 

[71]           On August 16, 2006, a draft Forest and Range Opportunities agreement was forwarded by the Crown to the HFN, and reviewed at a meeting of the same date.  A Forest and Range Opportunities agreement is defined in the Crown’s glossary as “a negotiated interim measures agreement between the MOFR and a First Nation seeking to accommodate the economic aspect of the First Nation’s potential aboriginal title interests through the provision of economic benefits …. (providing) revenue-sharing and forest tenure opportunities based on the per capita of a First Nation and a forest tenure”.  The draft agreement makes no specific reference to the Removed Lands or to the 2005 Decision.

The consultation became bound up with other issues and processes

[72]           Both the reapportionment decision, flowing from the Forest Revitalization Act, and the determination of allowable annual cut on Crown land, involved consultation independently of the consultation required by the 2005 Decision.  Discussions about the reapportionment decision became bound up in the Removed Lands consultation because the HFN sought a delay in the reapportionment decision in order to keep more options open for possible accommodation.  In response, the Ministry did delay the reapportionment decision, until May 10, 2008.  

[73]           In addition, the parties concurred that it was necessary to incorporate more agencies of government into the process (including MARR, the Ministry of Energy, and the Ministry of Agriculture and Lands) through the Inter-Agency Management Committee.  

[74]           As I will describe later, although involving more agencies of government seemed sensible to both parties at the time, it appears that the resulting level of complexity weighed against the achievement of a resolution.

2.  The Term Sheets Phase

[75]           From about September 2006 to March 2007, the MOFR developed Term Sheets and a draft Planning and Forestry Agreement.  A Planning and Forestry Agreement is said by the Crown to be “similar to an FRO [Forest and Range Opportunities agreement]” but with “enhanced accommodations”. 

[76]           There were meetings involving HFN and the MOFR (sometimes with other Ministries or agencies represented) on September 26, 2006 (the first meeting at which Darrell Robb was the lead representative for MOFR), October 30, November 21, December 14 and December 21, 2006, and January 3 and 26, 2007.  BCTS was involved in some of the discussions, and agreed to defer operational planning in certain parcels of land for two to three years and to engage in consultation with HFN after that time, thereby ensuring that those parcels might be available for HFN treaty purposes.  The ILMB was involved in order to ensure meaningful discussion on Old Growth Management Areas and Ungulate Winter Ranges.

The Corporate Table

[77]           The consultation process was supplemented during this period by another process under the guidance of the MARR, called the “corporate table”.   The corporate table arose out of a meeting held at the request of the Hupacasath with five Ministers or their representatives in October, 2006.  Chief Sayers deposed that “[t]he need for the meeting with the Ministers was that the Minister of Forests’ representatives had told us repeatedly that they did not have much in their ‘tool box’ for accommodation” and that the HFN therefore understood that with a corporate table, there would be more resources for appropriate accommodation for the Removal Decision.  The Ministries represented were Forests and Range, Agriculture and Lands, Energy and Mines, Environment, and Aboriginal Relations and Reconciliation.

[78]           The evidence tendered by the Hupacasath (affidavit of Judith Sayers #7) is that they understood the corporate table process to be part of the reconciliation process with respect to three outstanding litigation matters, including this litigation regarding the Removal Decision, and that they were not told that the effects of the Removal Decision were to be excluded from the corporate table process.

[79]           However, the Chief Negotiator for the Crown at the corporate table, Mark Lofthouse, deposed that from the perspective of the MARR the primary purpose of the corporate table was to engage the HFN in accelerated treaty negotiations, “and through those negotiations attempt to deal with ongoing forestry and land based considerations.”  He deposed “…MARR did not consider it would assume or take over any obligations or duties that may have been owed to the Hupacasath by the MOFR … regarding such consultation and accommodation [with respect to the Removed Lands]”.  He did not consider the resolution of the outstanding court matters to be the primary purpose of the discussions.  

[80]           Mr. Lofthouse deposed that the Ministry devoted considerable resources to the negotiations and they became a highly intensive endeavour.  

[81]           Chief Sayers understood things somewhat differently, and deposed that the concept of an incremental treaty did not even come up until about July, 2007, after the signing of the Reconciliation Protocol, when Mr. Lofthouse told her that his only mandate was to do an Incremental Treaty Agreement, rather than having a specific mandate to settle the three legal cases.  She stated that the Province also “maintained that any offer in the Incremental Treaty Agreement would come off the Treaty settlement” but that the HFN view was that the “outstanding issues, including the removal of lands from TFL, are not treaty related issues and should not be included in our treaty settlement”.  

[82]           Chief Sayers deposed (affidavit of Judith Sayers #9) that the HFN had always set the timeline of the end of March 2007 to wrap up negotiations on the three court cases, and when it became obvious that they could not complete within that timeline, they signed the Reconciliation Protocol as a sign of good faith with the promise of having a concrete offer within the next month or two to address the accommodation.  She deposed that her understanding was that the MOFR table was not meant to address the complete accommodation for the Removal Decision because that Ministry “had little to offer and the larger corporate table was to do that”, with the MOFR table to deal with more on-the-ground operational issues.  

[83]           Chief Sayers further deposed:

15.       I was told on more than one occasion by Darrell Robb, that if the corporate table was able to settle the accommodation for the TFL Removal Decision, he would be willing to take any reference to the court case out of the separate agreement we were working on with MOFR. He appeared to agree with me that the MOFR negotiations were, in effect, negotiations of an FRO “plus”. As he knew, we were entitled to negotiate an FRO in any event and such an FRO was not an accommodation of the Removal Decision although if they addressed the concerns we had with respect to the Removal Decision in a document that they called an FRO, Hupacasath would not have objected to that.

16.       In response to paragraph 15, I was always concerned that the government was trying to roll our settlement of the three court cases, including this one into a treaty settlement. We repeatedly said we did not want that, and unless the Interim Treaty Agreement [“ITA”] specifically stated that what was being offered was not to be taken from the final treaty settlement, Hupacasath would not sign such an agreement. These were court cases and the settlements had to be for the court cases, not treaty. This is also consistent with the position of the Crown that treaty negotiations are not intended to address past wrongs. Based on the Affidavit filed by Mr. Lofthouse, this appears to have been the Crown’s strategy.

19.       We were told many times by Mark Lofthouse that the only way he would be able to sell a settlement to Cabinet was if there was an ITA. I said we didn’t care what it was called, but that we wanted a clear statement it would not be part of any treaty settlement with Hupacasath. …

[84]           Mr. Lofthouse replied, agreeing that MARR had indicated that any terms and items included in the Incremental Treaty Agreement would be considered part of a treaty final agreement, but adding that a final resolution of the issues arising in treaty may involve arrangements outside the treaty agreement itself.

Island Timberlands

[85]           Exchanges between HFN and Island Timberlands during this phase related to the location of logging activities during the period of the court order, Archaeological Impact Assessments and Culturally Modified Tree surveys on the Removed Lands, and a possible Memorandum of Understanding.  Island Timberlands confirmed HFN access to the private lands subject to safety restrictions and environmental concerns and confirmed its timber harvesting policies pursuant to the Private Managed Land Forest Act.  

3.  The Planning and Forestry Agreement Phase

[86]           During 2007, discussion focused on the terms of a possible Planning and Forestry Agreement and a draft of such an agreement was delivered to HFN on March 5, 2007.  Following this, meetings were held between the Hupacasath and various parties, including the MOFR, BCTS and ILMB, on March 9, April 11 and 12, May 8, June 1, July 12, October 31 and December 7, 2007.  HFN continued to seek government assistance in achieving long-term protection of deer and elk habitat and other wildlife issues with respect to the Removed Lands.  The existence of unauthorized float homes and cabins at Great Central Lake (a drinking water source for HFN) was discussed, an issue which it does not appear has yet been resolved.  

[87]           During this period, as a result of the corporate table process, the Province and HFN signed a Reconciliation Protocol (which is not relied upon by the Crown as part of the accommodation related to the Removal Decision).  Mr. Lofthouse deposed that the purpose of this protocol, signed on March 30, 2007, was to move matters forward and show good faith.  It provided $1,000,000 to the HFN with no quid pro quos ($440,000 of which had already been committed by the Ministry of Energy, Mines and Petroleum Resources for the HFN green energy project).  As well, a monumental cedar inventory mapping process was developed.

[88]           The ILMB worked on a number of issues with HFN during this period, some of which were not related to the Removal Decision and its effects, but at least one of which was:  the concept of increasing the amount of area in Old Growth Management Areas on Crown land in HFN asserted territory by an amount of area equivalent to the amount of area in Ungulate Winter Ranges identified on the Removed Lands.  Mr. Mayser deposed that HFN provided information regarding areas within their territory that they labelled “NOGO” areas because they were of cultural importance – areas that in their view would be “no harvest” areas and thus prime candidate areas for placing Old Growth Management Areas.  ILMB was said to be continuing to conduct analysis and work on this possibility but there was no evidence that any agreement has been reached.  The ILMB also worked with the HFN to develop a “Natural Resource Management Issue Resolution Process” in order to deal with issues such as the float homes on Great Central Lake, Old Growth Management Areas and cedar strategy, and other riparian and resource management issues.  A number of meetings were held in pursuit of this process (March, April, May, June, and October, 2007).  

Difficulties arising from the cumulative impact of various decisions

[89]           An early exchange in this period is illustrative of the ongoing difficulties in this process.  On January 4, 2007, Trevor Jones wrote to Jim Gowriluk, the Regional Executive Director of the MOFR, referring to a meeting the previous day about the apportionment of cutting rights within TFL 44, and to an exchange of correspondence in the preceding months between counsel and Mr. Gowriluk’s predecessor.  In part, Mr. Jones wrote:

During the meeting yesterday we provided you with a detailed GIS based map which identified Hupacasath First Nation site specific rights associated with hunting, fishing, cedar use, spiritual use, gathering and archaeological interests. As was detailed to you in the meeting, the issuance of cutting rights pending the apportionment decision will negatively impact and in some cases completely abrogate Hupacasath First Nation rights. The Hupacasath First Nation wish for you to avoid all industrial forest related activities that could result in some of these constitutionally protected rights forever being alienated. As we discussed yesterday, the accumulative impacts of the private land removal from TFL 44, the absence of consultation on the development of the goals associated with the Vancouver Island Land Use Plan (VILUP), the reduction of the TFL as a result of the Manulth Treaty settlement and the establishment of Hupacasath Protected Areas result in a number of additional net downs which have not been incorporated into the establishment of a new AAC. This leaves a fictitious accounting surplus of volume that in actuality does not exist. We strongly encourage you to complete the consultation process with the Hupacasath and identify how you will meet our concerns and accommodate those rights which will be impacted as a result of the issuance of new forest harvesting rights.

In the larger scheme, it was also discussed in the meeting how it was imperative that the Crown consider settling the outstanding forestry obligations with the Hupacasath First Nation resulting from court ordered consultation and accommodation prior to issuing new cutting rights that have already been compensated for by the Crown. The Hupacasath First Nation is more than prepared to negotiate proportional acquisition of the apportionment volume and manage it as an area based tenure in the Great Central Lake area. This volume or a portion thereof could be offered to the open market through a competitive bid process while ensuring that the tenure is managed according to Hupacasath standards. This creates a win/win for the Crown and resolves a long standing legal grievance. Truly moving us in the direction of the “New Relationship”.

[90]           In response, Mr. Gowriluk wrote, on March 5, 2007, as follows (in part):

You have stated that the above issues have not been incorporated into the establishment of a new AAC for TFL 44 and therefore there is a fictitious accounting surplus of volume that does not exist. Your letter also states that the issuance of cutting rights pending the apportionment decision will negatively impact and in some cases completely abrogate HFN rights. As a result, the HFN wants the MOFR to avoid all industrial forest related activities that could, according to HFN, result in these rights forever being alienated. In response to the issues you have raised in your January 4, 2007, letter, I wish to provide you with the following information:

Consultation meetings on the private land deletion have now involved MARR. MARR is engaged in seeking a workable accommodation on a number of key areas including protecting areas of concern to the HFN. These discussions are related to treaty interim measures and fall within the scope of MARR’s mandate. I understand these discussions are at an early stage, but I encourage you to work on the issue of protected areas with MARR directly. At the same time, ILMB and MOFR will continue to work with HFN on reviewing some of the other HFN LUP and forestry standards within their respective mandates.

Although I understand you would like all activity to cease in the territory until this issue is resolved, the MOFR also has an obligation to consider and balance other interests as well. The aboriginal interests identified in your GIS map will require considerable time for review through this process. In the interim, operational level review prior to issuance of cutting permits could continue to be the mechanism to consider and address your aboriginal interests. For this reason, I believe that the apportionment decision can move ahead with an understanding that the ILMB, MOFR and HFN continue to work out these issues over the next year without compromising the aboriginal interests you have begun to outline in your letter and map. At the end of the review, I foresee that the Chief Forester will consider the information in his upcoming AAC determination. Following the review, each ministry may have to adjust any plans or tenures accordingly.

At this point, MOFR plans to move forward with completing the reassignment and apportionment of volume decisions on TFL 44 and the Arrowsmith TSA. MOFR staff will ensure that the Minister or his designate is briefed on HFN’s aboriginal interests and concerns with the pending decisions and outline these concerns. I will highlight HFN’s desire to conclude the court ordered private land deletion consultation and accommodation prior to the Minister making his determination. However, I must point out that the conclusion of the private land discussions may take some time to achieve, and there are other parties and issues that need to be considered.

[91]           Counsel for the petitioners submitted that the exchange shows that this consultation/accommodation process was not a priority for the Crown despite the 2005 Decision, and that Mr. Gowriluk did not understand the point Mr. Jones was making.  Specifically, Mr. Grant submitted that the “fictitious accounting surplus of volume” arose from the Removal Decision, not the matters Mr. Gowriluk referred to.  Further, he argued that Mr. Gowriluk’s assertion that the HFN “would like all activities to cease in the territory until this issue is resolved” was not based on any statement made by the HFN.  Counsel for the Crown submitted, on the other hand, that the letter does show that the Crown understood the HFN concerns, but needed to consider other interests as well.

[92]           There was further correspondence, in the form of a letter from Chief Sayers to the Minister on March 23, 2007.  In it, she referred to the pending decision regarding final reapportionment of the 20% take back volume within TFL 44, ongoing consultations about that issue, and to the “New Relationship” process.  Referring to the 2005 Decision, she wrote that she had given evidence through her affidavits of the serious importance of sacred sites throughout HFN traditional territory including on the Removed Lands.  The Chief stated the opinion that the paradigm shift meant to be marked by the New Relationship had not been infused into the consultation process regarding the reapportionment decision.  As to Mr. Gowriluk’s reference to a collaborative effort by two other Ministries (ILMB and MARR), she stated, “Unfortunately, these two other Ministries will not be able to impact on decisions made by the Ministry of Forests, particularly in advance of their ‘collaborative effort’ with Hupacasath.”  She then wrote:

We pointed out to Mr. Gowriluk the conjunction of a number issues impacting Hupacasath Territory which puts Hupacasath in a unique position. These factors include:

1, Cumulative impacts of the private land removal from TFL 44, which decision occurred without consultation as found by the Court;

2. The absence of consultation on the development of the goals associated with the Vancouver Island Land Use Plan (VILUP);

3. The reduction of the TFL as a result of the Manulth Treaty settlement; and

4. The establishment of Hupacasath Protected Areas resulting in a number of additional net downs which have not been incorporated into the establishment of a new AAC.

In view of the Court-ordered consultation, the results of which may well impact on the management of the forestry resources within our Territory, it is imperative that the Crown settle the outstanding forestry obligations with the Hupacasath First Nation resulting from court ordered consultation and accommodation prior to issuing cutting rights that have already been compensated for by the Crown. This has become a very serious matter as we have been attempting to consult in good faith with officials of the Ministry of Forests. Rather than addressing the issues, he has deferred those issues to other Ministries while he proceeds to make his decision. It is for this reason that we believe that it is time for you to step in and confirm that this is not an acceptable approach for one Ministry official to offload consultation to another Ministry to bypass the duty to seek workable accommodations.

Hupacasath is willing to be creative in finding a resolution for both the Ministry and Hupacasath, thereby resolving a long standing legal grievance, implementing the “New Relationship” and enabling the Ministry of Forests to advance the Crown agenda together with the Hupacasath. I would like to suggest that I meet with you, the Deputy Premier and Graham Bruce to resolve the issue in a timely way once and for all. In the present process the court has ordered consultation over the course of two years. It appears to the Hupacasath negotiators that forestry officials are now endeavoring to delay so that there will be no successful outcome to the consultation process.

[93]           The Associate Deputy Minister, Bob Friesen, met with Chief Sayers on May 11, 2007, promising that the information he received would become part of the consultation process, and undertaking to brief the Minister as to HFN concerns when it came time to make the reapportionment decision.

[94]           The Province’s position is that it diligently pursued the consultation process, putting considerable time and energy into it, and that there was no strategy of delay.  The petitioners’ position is that the delay was systemic, that is, not necessarily deliberate or in bad faith, but caused by the fact that no-one at a high enough level took the consultation seriously enough.  

[95]           Trevor Jones deposed that he raised the idea of involving a facilitator or mediator on several occasions, but the representatives of the Crown did not consider this to be appropriate and reassured him that progress was being made by the Crown in its discussions with Island Timberlands.  

[96]           The notes of a meeting on April 30, 2007 state that at one point Chief Sayers asked, “At what point do we bring in facilitator – and when do we go back to Court for direction?”  There is no note of any response to those questions.  Neither party, however, did come back to the Court for directions.

The Proposed Planning and Forestry Agreement

[97]           The terms of the proposed Planning and Forestry Agreement evolved over time, but its March 2007 draft addressed the following:

(1)      per annum payments of $114,000 (based on a per capita schedule);

(2)      $75,000 for a Timber Use Study

(3)      $20,000 for a Forest and Range Evaluation Program pilot;

(4)      opportunity for the HFN to apply for two non-competitive timber licences;

(5)      access to ‘undercut’ timber volume of 38,000 cubic metres;

(6)      $30,000 from ILMB toward the resolution process;

(7)      development of a consultation protocol with BCTS that would include elements of the HFN Land Use Plan.

[98]           At the March 9 meeting, the HFN and MOFR expressed different views about whether the proposed Planning and Forestry Agreement offered anything new to the HFN.  This disagreement has persisted, and I will address the issue later in these Reasons.  

[99]           On October 12, 2007, after a hiatus of about five months, Mr. Robb wrote to Chief Sayers, as follows:

I would like to take this opportunity to thank-you again for your on-going participation with respect to the TFL 44 private land consultation process. This letter is to update you on my understanding of the current status of this process, and a plan for concluding the consultation process.

You may recall from earlier conversations last spring that we agreed to not meet further to discuss the draft “Planning and Forestry Agreement” until after the Ministry of Aboriginal Relations and Reconciliation (MARR) completed internal mandate work related to an incremental treaty with the Hupacasath First Nation, and further direction from Cabinet was received. Besides the work being completed by MARR, it was also agreed that we should continue on with the technical working group meetings over the summer, to discuss the land use issues. Given that summer season has now ended, and that MARR is discussing an Incremental Treaty Agreement (ITA) with Hupacasath that dovetails with our proposed “Planning and Forestry Agreement”, I suggest we resume our face to face meetings once again.

As you know, since receiving the decision of Madam Justice Smith in late December 2005, the Ministry of Forests and Range (MFR) and Hupacasath First Nation (HFN) have worked together on several key tasks during the consultation process to:

1) understand the relative strength of the HFN aboriginal interests that may be impacted by the TFL 44 private land withdrawal decision;

2) review the impacts of the Minister’s decision (if any) on the HFN aboriginal interests;

3) review the existing legislation, regulation and the Minister’s decision letter, and Island Timberlands proposed actions (if any) that could possibly mitigate the concerns identified by HFN; and

4) review the proposed “settlement options” tabled by HFN.

Although the consultation process has taken many months to complete, I believe that gaining a better understanding of HFN historical information on the land base, and potential impacts to aboriginal interests as a result of the Minister’s decision have been imperative to the process. Over this time period, it was important for the MFR to try to clearly understand the basis for conclusions about prima facie claims of HFN by the trial judge and detailed historical information about those interests and the locations where those claims may be stronger or weaker. In addition, we have worked together to undertake a review of the current legislation, regulations and other important documents that influence use of the private land.

As you know, since receiving the August 11, 2006 settlement option table from HFN, the ministry has not yet made a definitive proposal for accommodation along the lines you have requested, since at this time we are unsure what, if any, accommodation is in fact required in these circumstances. Many of the mitigation measures you have tabled go beyond the scope of the MFR mandate and are not, in our view, warranted in terms of “accommodation” for the kinds of impacts that the private land deletion may have on HFN interests. Nevertheless, we have engaged other ministries including MARR to advance aspects of a settlement outside the consultation process, and have brought in the Integrated Land Management Bureau (ILMB) to work with you on key land use aspects of the consultation process.

In response to your concerns, the MFR has worked with both ILMB and HFN on a draft “Planning and Forestry Agreement” which was tabled at various meetings between January and April 2007 (see attached). In this agreement, ILMB and the MFR proposed to offer in the “Planning and Forestry Agreement” the following benefits to HFN:

1)         An 800 Ha Woodlot at Great Central Lake;

2)         At the request of HFN, an additional 362 Ha top-up woodlot in Beaver Creek. This was substituted in lieu of a 37,858 m3 of non-replaceable undercut volume in TFL 44 which was offered previously;

3)         Payments of $114,000 cash per year for the term of the agreement with the possibility of an upfront component of one year in advance;

4)         A TUS study for up to $75,000 which was initiated as a show of good faith in fiscal year 2006/2007;

5)         After conducting a gap analysis of available resource information, MFR would seek funding of an unknown amount to address gaps identified during the resource inventory analysis;

6)         ILMB has provided $30,000 in the 2006/07 fiscal year to support development and implementation of an issues resolution process. This process includes a further scoping of the Hupacasath Land Use Plan (LUP), ILMBs proposed Old Growth Management Areas (OGMAs) as well as review of the HFN proposed cedar strategy outlined in a report entitled “Identifying Hupacasath Cultural Cedar Needs” (March 31, 2006);

7)         Consultation protocol agreements with BCTS and MFR;

8)         A payment of $20,000 to assist with a Forest Resource Evaluation Program (FREP) pilot;

9)         BCTS would provide documentation of BCTS road acquisition from licencees within the traditional territory and would discuss identification of future road access;

10)      BCTS would defer further operational planning within three specific areas near Beaver Creek in the Arrowsmith Timber Supply Area for three years.

In addition, the draft agreement also includes “markers” of those items for future consideration. They include the possibility of:

1)         an increased revenue sharing amount (now being explored in the context of incremental treaty); and

2)         exploring HFN ownership of carbon credits when provincial policy has been developed.

Also, related to the efforts to the private land consultation process, additional measures have been provided since December 2005, including:

1)         A $25,000 contribution agreement signed in late March 2006 to assist with the initiation of the consultation process;

2)         An additional $50,000 to HFN in the 2006/07 fiscal year to support development and implementation of the issues resolution process. The process includes an assessment of the HFN LUP and OGMAs as well as MFR’s cedar strategy;

3)         The MFR delayed seeking the minister’s decision on apportionment of the TFL 44 Allowable Annual Cut to allow additional time to resolve the private land consultation process and to allow for ITA discussions;

4)         The LUP technical working group continues to scope out a cedar strategy, deal with riparian management issues and resolution of float home issues on Great Central Lake;

5)         The technical support by BCTS consultants and $12,000 of ILMB funding for pilot work to identify cedar from satellite imagery to refine the extent of monumental cedar in the Nahmint; and

6)         The signing of the reconciliation protocol by Minister’s de Jong and Mr Neufeld with HFN on March 30, 2007 totalling nearly $1 million.

I understand that our technical working group is continuing to work on the technical issues described above. I also understand that MARR has proposed a number of measures to address the litigation issues between government and the HFN as part of the incremental treaty process. MFR will continue to assist you where possible in your progress in reaching an incremental treaty agreement with MARR, and my view is that completing the “Planning and Forestry Agreement” will assist this process and also resolve the private land deletion consultation process.

To conclude, the MFR has been engaged in the consultation process since December, 2005 and since that time, I believe many positive discussions and meetings have occurred to resolve this issue. As far as the MFR is concerned, the progress to date demonstrates that adequate consultation with respect to the private land decision is occurring. As we conclude the Planning and Forestry Agreement, MFR’s view, is that fair and reasonable accommodation is occurring for whatever impacts the deletion decision has had (if any), or may have on HFN aboriginal interests.

Since we have not had a face to face meeting for a while, I am looking forward to our October 31, 2007 meeting at 10:00 AM at the Coast Forest Region Office to discuss this letter and the Planning and Forestry Agreement further, with the goal to conclude the agreement and the consultation process.

If you wish to discuss this further, please feel free to contact me at (250) _______.

[100]       The HFN response was negative.  In a letter dated October 29, 2007, to the Minister, Chief Sayers noted that the HFN had not intended to still be in a preliminary consultations phase two years after beginning.  She stated that the dismissal of Cindy Stern one year into the consultation, and the Crown insistence that the HFN would have to re-prove each element of the aboriginal interests that would potentially be infringed, had caused a significant delay.  She observed that the Ministry appeared to be of the view that, notwithstanding the decision of this Court, no accommodation is required.  Chief Sayers wrote:

Mr. Robb’s proposals being brought forward by your Ministry are, in effect, proposals that were available prior to us being compelled to go to court and really fit within the Ministry’s one-size-fits-all Forests and Range Opportunities [“FRO”].  In fact the offer provided by the Ministry is of the same scope as previously offered to Hupacasath prior to the removal of the private lands and the subsequent Court Order for consultation.

Notwithstanding the assertions of Mr. Robb, we believe that Justice Smith has made it clear in her decision that there is a strong prima facie case for aboriginal rights to sacred areas, old growth forests, wildlife, fisheries and water resources within the removed private lands.  The new land owner has been unwilling to negotiate any long term commitments with Hupacasath to ensure our access to these resources which are critical for the exercise of our rights including our spiritual practices.

The letter concluded with the statement that if the Ministry “maintains a position of intransigence and effective denial that any accommodation ‘is in fact required in these circumstances’, we shall have no alternative but to seek directions from the Court.”

Preservation of critical wildlife habitat areas and Ungulate Winter Ranges in the Removed Lands – discussions between the Ministry of Forests and Range and Island Timberlands 

[101]      Ron Diederichs in his affidavit described discussions regarding certain critical wildlife habitats and Ungulate Winter Ranges within the Removed Lands, totalling about 2,100 hectares of the approximately 70,000 hectares in the Removed Lands.  These discussions involved the MOFR and the private land owners (Weyerhaeuser, then Brascan, then Island Timberlands) and began prior to the Removal Decision in July 2004.  He deposed that in the discussions leading up to the Removal Decision, the Province and the owner of the land (then Weyerhaeuser) “contemplated the development of a long term strategy for management and preservation of wildlife habitats and Ungulate Winter Ranges located within the Removed Lands”.  He deposed that Weyerhaeuser and the Province entered into an agreement on July 14, 2004, that the critical wildlife habitats would be maintained for two years while the parties devised that strategy, and that agreement was part of the Minister’s Removal Decision.   Mr. Diederichs deposed that studies and negotiations took place, delayed somewhat when ownership of the land changed from Weyerhaeuser to Island Timberlands.  The time limit under the agreement was extended twice.

[102]       On June 21, 2007, MOFR representatives (including Darrell Robb) met with Island Timberlands (Bill Waugh) regarding the retention of 1800 – 2100 hectares of Ungulate Winter Range, and although the notes of the meeting suggest that the Ministry pressed the issue, they do not show a clear commitment from Island Timberlands, whose representatives said at the meeting that 1800 – 2100 hectares would stay, but not in the grandfathered areas, and that the location remained to be resolved with the Ministry of the Environment.

[103]       As of the date of Mr. Diederichs’s affidavit, March 12, 2008, no long-term strategy to manage and protect the critical wildlife habitats or Ungulate Winter Ranges in the Removed Lands had been agreed to. 

[104]       Counsel at the hearing in June, 2008, advised the Court that no agreement had yet been reached.

[105]       After the 2005 Decision, the Hupacasath asked to be included in the discussions about ongoing protection of wildlife habitat, but the Crown refused.  The Crown position is that it was dealing with HFN concerns by carrying on these discussions with Island Timblerlands.  The HFN position is that the Crown’s exclusion of HFN from the discussions shows high-handedness, and a failure to understand the 2005 Decision and the Crown’s duty.

Allegation of logging contrary to the 2005 Order and the Minister’s letter

[106]       The Hupacasath have alleged that Island Timberlands has conducted logging in critical wildlife habitat areas, contrary to the Court Order and the Minister’s letter.  However, there is conflicting evidence as to whether this has occurred.

[107]       At the March 9, 2007 meeting, the HFN raised concerns about logging by Island Timberlands in a grandparented Ungulate Winter Range area.  The Ministry agreed to check into that matter.  

[108]       In October 2007, HFN again claimed that logging had occurred in areas that formed part of the grandparented Ungulate Winter Range, and the MOFR agreed to contact Island Timberlands.  Island Timberlands responded that it had GIS mapping proving that Weyerhaeuser had logged the areas prior to the 2004 Removal Decision.  Subsequently, in January 2008, HFN alleged that its forestry personnel had photographed Ungulate Winter Range areas logged in the summer of 2007.  Conflicting affidavits were filed by HFN and Island Timberlands as to whether this logging occurred before or after the Removal Decision.  Without cross-examination on the affidavits or further evidence, I am unable to reach a conclusion as to whether Island Timberlands carried out logging in areas where the 2005 Order or the Minister’s letter would have prohibited it. 

Termination of the corporate table process

[109]      The corporate table process went on for several more months, but discussions reached an impasse by October, 2007, and are not continuing.  As well, so far as I was made aware, it appears that the treaty process is still at Stage 4.  

Attempt to develop a consultation protocol

[110]       The meeting between the parties on October 31 that followed the tabling of the proposed Planning and Forestry Agreement and its rejection by the HFN resulted in a plan to press forward with a consultation protocol as a priority item, given the impending end of the two-year court-ordered consultation.  A consultation protocol had been under discussion between the parties since at least November, 2005.  The Ministry agreed to fund a consultant suggested by HFN to assist in the development of the consultation protocol.  Drafts were circulated and meetings were held to discuss its terms.

[111]       On December 7, 2007, the parties met again.  At the meeting, the draft “Interim Forestry Consultation Protocol” was produced by the Crown.   The HFN made reference to the recently-issued decision in Tsilhqot’in Nation v. British Columbia2007 BCSC 1700 (CanLII), [2008] C.N.L.R. 112 in which the court stated that the province has no jurisdiction to extinguish aboriginal title.  Island Timberlands took part in a portion of the meeting. 

Attempt to reach MOU with Island Timberlands

[112]       The petitioners produced evidence that they had hoped to develop the same kind of working relationship with Island Timberlands that had existed with Weyerhaeuser.  Weyerhaeuser, when it owned the lands (which were still within TFL 44), had signed a Memorandum of Understanding with HFN addressing economic opportunities, communication and consultation requirements, and the use of Hupacasath crews with technical expertise in fisheries and archaeology.  The parties had also negotiated a Cultural Heritage Resource and Fisheries Assessment Consulting Contract.  

[113]       After the sale of the lands to Brascan, although there were some initial discussions, Brascan did not pursue a MOU with the HFN.  

[114]       Following the 2005 Decision, there were discussions between Island Timberlands and HFN regarding a possible agreement. The HFN sought (among other matters) 30 meter buffers around fish bearing creeks, a change to Island Timberlands’s archaeological matrix which would take into account historical upland activities by the Hupacasath, and participation by HFN in the discussions between Island Timberlands and the Ministry of the Environment regarding the revision of the Ungulate Winter Range areas.  No agreement was reached on those matters.  

[115]       The HFN also suggested that the Ash River MOU should be considered as a model.  There were discussions aimed at developing a Memorandum of Understanding or a brief Letter of Understanding (that would govern the relationship during the term of paragraph 8 of the 2005 Order), but no agreement was reached.  

[116]       HFN provided a document called the “Framework for Island Timberlands Activities that Impact Hupacasath Rights”, dated June 10, 2006.  Island Timberlands sent a letter in response dated October 17, 2006, stating its “willingness to work with the Hupacasath beyond that which is required by the law”, adding that Island Timberlands “must retain its ability and rights to conduct its business operations in the manner it feels best represents its shareholder’s interests, all within the parameters of the law”.  It referred to a number of matters, including:  the provision of a confidential overview map outlining where activities may occur during the next 18 months, and a commitment to review this map with the HFN; a “steady dialogue” on potential business opportunities; its provision of 14 days’ notice of activities which may affect HFN asserted interests; HFN involvement with Archaeological Impact Assessments and Culturally Modified Tree surveys; its willingness to share the China Creek Watershed Assessment Procedure final reports; its maintenance of a “good neighbour” policy of “providing reasonable access to all First Nations, including Hupacasath, subject to restrictions based on safety, environmental concerns and vandalism”; and its welcoming HFN participation in the West Island Woodlands Advisory Group.  

[117]       With respect to specific issues raised by the HFN in the Framework document, the Island Timberlands letter responded with statements that it abides by applicable legislation, sometimes with further elaboration.  For example, with respect to the issue of cutting timber to the edges of streams, the response was:

Island Timberlands abides by all applicable legislation, including the Private Managed Forest Land Act and regulations and the federal Fisheries Act to determine its parameters of operations along water courses.  In addition to this, Island Timberlands does watershed assessment procedures in key watershed which utilize multi-stakeholder input and takes a site specific approach to managing for fish habitat, water quality and other values.  Retention is anchored to other values such as riparian areas.  Through certification, Island Timberlands is developing a stream decision planning that will have buffers and assessment procedures documented.

On the question of consultation, the letter states:

Consultation is the duty of the Crown not a private company operating on private lands.  However, Island Timberlands is committed to an ongoing relationship with the Hupacasath to share information for mutual benefit.  

[118]       That letter captures well the gist of the position taken by Island Timberlands throughout the discussions:  it would abide by applicable legislation, and conduct itself as a good neighbour.  This would include providing access to the Removed Lands for the Hupacasath, as would be provided to other First Nations, subject to safety and other concerns.  

[119]       The final meeting was on December 6, 2007.  At that meeting, Island Timberlands confirmed that it did not want to sign an MOU with HFN.  

[120]       The evidence tendered by the HFN was that they found it very difficult to deal with Island Timberlands, in contrast with their relationship with the previous landowner, and that although they tried to respond to notices from Island Timberlands regarding intention to carry on logging activities in various areas within the Removed Lands, the timelines were too tight (seven days) and the process was ineffective from their point of view.  They also deposed that they had difficulty in achieving access to the Removed Lands for spiritual practices and other activities.  Trevor Jones deposed that most of the access to the Removed Lands is gated and locked and that until December 2007, the HFN did not have copies of any keys.  Mr. Jones deposed that meetings with Diane Medves, then the Island Timberlands representative, were postponed or cancelled on a number of occasions.  He also stated that there was little feedback from Island Timberlands regarding HFN responses to notices.  

[121]       The evidence presented by Island Timberlands, however, was that it provided notices 14 days in advance, going beyond the requirement of the 2005 Order, and that it almost always found the HFN responses to their notices insufficiently specific.  (The HFN response to this was that in some cases specificity is not possible because of the nature of the activity, such as plant gathering, or because of the need to keep information about the specific location of sacred sites confidential.)  As to access issues, Island Timberlands said that its position consistently was that Hupacasath members could come onto the Removed Lands to do site reviews, so long as they checked first to ensure against safety issues, and that keys would be provided to locked gates where needed.

[122]       Diane Medves deposed that in an early meeting (September 2005) Island Timberlands “explained to the HFN that, as a private company operating on private lands, the approach to be followed by Island Timberlands in relation to its dealings with the HFN might be different from policies followed by Weyerhaeuser in regard to lands administered within TFL 44” and that in Island Timberlands’s view the Ash River MOU was not an appropriate model since it arose from the transfer of Crown lands to Weyerhaeuser in exchange for Weyerhaeuser’s transfer of some of its private lands to the Crown.  

[123]       Island Timberlands’s position was that it wished to develop an ongoing “good neighbour” relationship with the HFN, but that it retained ultimate decision-making authority over its private lands.  Ms. Medves deposed that insofar as the discussions with HFN were concerned, any references made by Island Timberlands to variable retention and stewardship zoning of old growth were not references to Ungulate Winter Ranges, since the Removed Lands were no longer subject to the regulations establishing Ungulate Winter Ranges although there were discussions between Island Timberlands and the Ministry of the Environment regarding the possible identification of new Ungulate Winter Ranges on the Removed Lands.  

[124]       Bill Waugh of Island Timberlands, in his affidavit sworn March 5, 2008, stated that discussions about the creation of new Ungulate Winter Ranges on the Removed Lands are ongoing, but that “in the meantime, Island Timberlands has maintained the Wildlife Habitat Areas applicable to the Removed Lands”.  As to the notices to the HFN, Mr. Waugh deposed that the company began including digital maps delineating boundaries of proposed cut blocks, and that “although the degree of specificity provided by the HFN has improved somewhat … it has rarely approached the degree of detail that Island Timberlands requires if it is to consider modifying its harvest plans to avoid the disturbance of sacred or traditional use sites of the HFN.”

[125]       Mr. Waugh deposed that in the end, the company declined to conclude a Memorandum of Understanding with HFN because of “the expectations of the HFN for a degree of control over, and curtailment of, Island Timberlands activities on its privately held land that are not acceptable to Island Timberlands”.   

[126]       However, he stated that the company intends “to consider information about sacred sites provided by the HFN in planning its harvest activities on the Removed Lands, where this is provided in a useful form, notwithstanding the expiry of Island Timberlands’ obligations under paragraph 8 of the Order.”  He deposed that Island Timberlands will continue to comply with the requirements of the Heritage Conservation Act and to have Archaeological Impact Assessments conducted by third party consultants prior to harvesting.  He deposed that,  “In addition to participating in formal AIA’s, it has always been open to the HFN to access the Removed Lands in order to conduct their own reviews of sacred sites, or to carry out their traditional practices.  Island Timberlands follows the same rules regarding public and First Nations access to the Removed Lands as were used by Weyerhaeuser when the Removed Lands were administered within TFL 44.”  He stated that he has advised HFN representatives that “if their ability to access the Removed Lands is impeded by a locked gate, Island Timberlands will issue them a key once they sign the required form.”

[127]       In summary, he deposed:

Notwithstanding the absence of a regulatory regime requiring Island Timberlands to communicate with neighbouring First Nations in regard to its activities, and the expiry of paragraph 8 of the Order, it has been and continues to be Island Timberlands’ intention to work at developing a positive relationship with the HFN, and to provide them an opportunity to raise concerns regarding Island Timberlands’ activities.

[128]       No resolution of the issues was reached and the previous arrangements with Weyerhaeuser have not been continued.  

4.  The Post-Two-Years Phase

[129]       Discussions continued even as court proceedings went forward, and the parties met on January 9, 22, 30, and February 8, 2008.  The province delivered an offer to settle on April 25, 2008, which was not accepted by the Hupacasath.

[130]       At the January 9, 2008 meeting, a further version of the Planning and Forestry Agreement was put forward, along with a draft consultation protocol.  However, the HFN referred to the decision in Tsilhqot’in.  They stated that they were no longer interested in signing a consultation protocol but, instead, wished to explore an alternative approach of shared decision-making through a Joint Forestry Council.

[131]       The HFN also told the MOFR representatives that there had been logging on the Removed Lands on a grand-parented Ungulate Winter Range, and stated their position that it was up to the Ministry to take steps to enforce the court order.  The Ministry asked for more detail as to the location of the logging but indicated that it did not believe it had the ability to enforce conditions on the Removed Lands.

[132]       Although the MOFR representatives argued against the change in direction, they tabled another version of a Planning and Forestry Agreement, with a provision referring to a Planning and Forestry Working Group, at the meeting on January 22, 2008.  HFN representatives, according to the draft minutes of that meeting, said that they were changing their approach consistent with a post-treaty environment, and they would meet face to face at a Joint Forest Council.  They thanked the Ministry for its work on the consultation protocol but declined to pursue it.  As well, it appears that HFN representatives reminded the Ministry of the proposal to move the Ungulate Winter Range to Grassy Mountain.

[133]       The meeting of January 30, 2008, continued to discuss the draft Planning and Forestry Agreement, including the BCTS Forest Stewardship Plan, which rolled in a Working Group concept.  As well, there was further discussion about the HFN belief that Island Timberlands had been recently logging on portions of a grandparented Ungulate Winter Range.  The Ministry representatives said again that they had no enforcement authority on private lands.  

[134]       A final meeting on February 8, 2008, failed to reach agreement.

[135]       However, the Ministry delivered an offer to the Hupacasath on April 25, 2008, through counsel.  The offer was not said to be “without prejudice” and there was no claim of privilege advanced.  The Crown offered to settle all outstanding matters with respect to the removal of private lands from TFL 44.  The letter set out a number of terms, including:  the establishment of a joint Natural Resource Working Group with $50,000 funding over an initial five-year term; a Forest and Range Evaluation Program monitoring pilot project with $70,000 funding to cover development and implementation of the pilot and undertaking necessary cultural heritage and archaeological resource inventories;  possible future sharing in carbon management on the traditional territory; continued development of a Natural Resource Management Issues Resolution process; an up to 800 hectare Woodlot Licence within TFL 44 in the Great Central Lake area; a second Woodlot Licence of up to 362 hectares in the Beaver Creek area; interim payments of $114,000 per year for five years; BCTS to (wherever feasible) incorporate elements of the HFN Land Use Plan into planned operations and to work with HFN to develop a forest management plan for certification purposes in HFN territory; exploration of methods for incorporating the sustainable forest management plan; and HFN to be at liberty to apply for a salvage licence in BCTS operating areas.

[136]       The letter refers to revenue sharing, to be addressed in incremental treaty talks.  It also refers to past funding provided for the HFN Traditional Use Study ($75,000) and for the development of the Natural Resource Management Issues Resolution process ($80,000).

[137]       The letter states:

With respect to the private lands, they will remain bound by the protections to aboriginal cultural heritage objects and sites provided by the Heritage Conservation Act.  We have had success in developing reporting protocols for violations or potential violations of the Actand would be most pleased to develop one with HFN.  HFN, of course, would also have the protections of any agreements or arrangements it has made with Island Timberlands.

[138]       The Ministry’s offer to settle was not accepted.  Chief Sayers, in an affidavit sworn May 28, 2008, reviewed the offer’s proposed terms.  She stated her opinion that:  the proposed joint Natural Resource Working Group, lacking in shared decision making power, would likely be ineffective and would require considerably more funding; monitoring work was already underway in connection with Forest and Range Evaluation Program proposal and was not “aimed at addressing the adverse effects of the Minister’s Removal Decision on our rights and title”; the offer was only to talk about carbon management; the offered Woodlot Licence in the Great Central Lake area was no more than what had been offered previously under an “FRA/FRO”, and it envisioned location of the Woodlot Licence at the base of Thunder Mountain, one of Hupacasath’s most sacred sites; the other Woodlot Licence offered roughly the same volume already available to the HFN through an FRA/FRO; and the interim annual payments of $114,000 for five years were the amount (per capita) that was already available to the HFN through an FRA/FRO independent of the Removal Decision.  Similarly, Chief Sayers deposed, consultations with BCTS and resulting accommodations existed independently of the Removal Decision as did possible incorporation of the sustainable forest management plan in the timber supply analyses; and HFN was already free to apply on a professional basis for a salvage licence.

[139]       With respect to the development of a Natural Resource Management Issues Resolution process, the Sayers affidavit states that each of the ‘priority issues” identified in the offer (location of float homes, cultural cedar management, location of Old Growth Management Areas, and management of riparian areas) involves its own consultation process.  She deposed that the $80,000 provided by ILMB had “produced a study at their insistence, identifying both environmental and physical constraints to keeping illegally moored float homes on Great Central Lake”, and that the “cedar needs study was completed in 2004/2005 and awaits implementation”, and dealt with the issue of retaining enough cedar on Crown lands to meet HFN needs – a matter the Province was required to deal with independent of the Removal Decision.   In summary on this point, Chief Sayers’s affidavit states that “the Minister is attempting to utilize his consultation obligations on other issues to address the Removal Decision”.  

[140]       The petitioners’ position is that in some respects the April offer is worse than the October 12, 2007 proposal.  They say that, for example:  it does not contemplate continued technical working group meetings to discuss land use issues; it requires application for the two wood lots; the offer for funding for “gap analysis” is gone; $20,000 for Forest Resource Evaluation Program assistance is gone; a deferral of three specific areas for operational planning near Beaver Creek for three years is gone; and the reapportionment decision is no longer delayed but has been made.  

[141]       Chief Sayers also deposed that on May 27, 2008 she was called and advised by Bob Friesen, Assistant Deputy Minister, MOFR, that the Minister had made his decision on reallocation, including the 8,000 cubic metres offered to the HFN in the April 25, 2008 offer of settlement letter.

Findings on disputed issues

Responsibility for delay in discussions

[142]       First, the parties disagree as to the impact of the Province changing its lead representative in September 2006 (from Cindy Stern to Darrell Robb) after almost nine months of consultation had passed.  The HFN position is that this caused considerable delay, particularly because they had invested a good deal of time in taking Ms. Stern through the evidence regarding their use of their claimed traditional territory.  (My view is that some review of that evidence may have been appropriate in the context, though perhaps not in the detail required by the Crown, given the existence of the findings in the 2005 Decision.)  The Crown’s position is that the change did not cause appreciable delay, because Peter Poland provided continuity and was able to brief Darrell Robb as to all that had transpired.  

[143]       Having looked at the consultation record, I conclude that the change of lead representative by the Province did cause some delay.  The record suggests that if Mr. Robb had been involved from the outset it is likely that the parties would have exchanged concrete positions sooner, achieving more clarity, and possibly more progress, within the two-year period set by the 2005 Decision.

[144]       I also find that the pace of the Crown’s responses was slow, with, for example, a seven month delay between the March 2007 draft of the Planning and Forestry Agreement and Mr. Robb’s October 2007 letter.  I do not see evidence of deliberate attempts to slow down or delay the process.

Confusion as to mandates

[145]       Second, the Hupacasath take the position that the number of different processes, Ministries and agencies involved made the court-ordered consultation confusing.  The HFN representatives say that it was unclear to them for some time (till July, 2007) that the corporate table process was meant to be part of the treaty process, rather than settlement discussions about three pieces of litigation (including this one).  They say that it was unclear to them prior to July, 2007 that the accommodation to which they believed they were entitled as a result of the Removal Decision would not be available in the corporate table process.  On the other hand, the Crown’s position is that it was at the HFN request, or at a minimum with their agreement, that the corporate table process was begun, and that it was made clear that the court-ordered consultations with the MOFR had to continue separately.  

[146]       I find that both parties believed that involving other Ministries and agencies in the discussions would be helpful — and if the corporate table process had resulted in an Incremental Treaty Agreement they would have been proved correct in that belief.  However, that is not what happened.  The exercise was indeed confusing not only for the Hupacasath but probably for all concerned, and when it failed to result in a resolution there was little time left to continue on a more straightforward route.  

[147]       I note that there is no record of the Province clarifying, when the corporate table venture began, that the corporate table process was not meant to replace the court-ordered consultation and accommodation.  Since it is the Province that (by necessity) divides its mandate among Ministries and agencies, it is incumbent on the Province to do its best to ensure that the mandate of the specific Ministry or agency with which a First Nation is interacting is made clear, and to ensure that responsibility for consultation and accommodation is not lost in the complexity of (sometimes shifting) governmental structures.  The Crown’s duty is to carry on a process that is as transparent as possible.

[148]       It is also relevant to note that, although HFN representatives raised the possibility of involving a facilitator on at least two occasions, the Crown did not agree to do so.  It seems likely that a facilitator would have been able at least to improve the clarity of the process.

Extent of the accommodation offered

[149]       Third, the Crown says that it consulted in good faith and in compliance with the court order and with the dictates of the honour of the Crown in that it offered significant accommodation to the HFN and was always prepared to address their concerns.  The Hupacasath position is that the final offer was really no better than what they could have accomplished without the court-ordered process, and that the consultation was not consistent with what was required, which was to focus on the impacts of the Removal Decision.  

[150]       It is not at all a straightforward matter to compare what the Crown offered HFN with what HFN could have had in any event as a First Nation, flowing from general provincial policies.  Further, as I will discuss below, the focus is to be on the process, not the outcome, and (to the extent that the Crown’s substantive offers are to be considered) it is not to be assumed that what would be available as a result of existing provincial policies is necessarily inadequate.  However, the following appears to be the case (referring to the October 12, 2007 offer):

(1)      the per capita payment offered to the HFN ($114,000 per annum) was in the standard amount for Forest and Range Opportunity agreements;

(2)      other items, such as the opportunity to apply for non-competitive timber licences, the development of a consultation protocol and access to undercut timber volume, are part of standard FRO’s;

(3)      an 800 acre woodlot and a 360 acre woodlot were consistent with the pre-consultation proposal for a Forest and Range Opportunity Agreement; 

(4)      the offer included items not in a standard FRO:

a.         $75,000 for a Traditional Use Study;

b.         $20,000 for a Forest Resource Evaluation Program pilot project;

c.         $80,000 for development and implementation of an issues resolution process;

d.         funding in an undetermined amount for “gap analysis” work;

(5)      the offer also promised exploration of the possibility of sharing access to carbon credit ownership and alternative calculation and delivery methods for revenue sharing; and

(6)      the reapportionment decision was delayed in order to recognize the consultation underway. 

[151]       Representatives of the Crown at the consultation meetings described the October 2007 offer as an “FRO ++”, and Crown counsel submitted that it does go well beyond what would otherwise have been available to the Hupacasath.  

[152]       Counsel for the petitioners conceded that the agreement was not wholly an FRO within the policy guidelines and that it did have a few additional features (the commitment for the Traditional Use Study and the funding for the “issues resolution process”).  

[153]       However, Mr. Grant submitted that the additional features did not constitute accommodation for the Removal Decision since the funding for a Traditional Use Study had been under discussion prior to the Removal Decision and was never intended as accommodation for the Removal Decision, and the need for the “issues resolution process” arose from the Crown’s failure to enforce its own legislation with respect to unauthorized float homes and cabins at Great Central Lake – thus, the funding for that process, he argued, is wholly unrelated to the consultation regarding the Removal Decision.   

[154]       Counsel for the petitioners also emphasized that none of the accommodations offered by the Crown did anything to address the impact of the Removal Decision on the ability of the HFN to exercise their aboriginal rights on the Removed Lands.  Counsel for the Crown responded that there were in fact some aspects that did:  the assessment of HFN cedar needs and possible access to cedar on Crown lands to meet those needs; and the discussions between the Crown and Island Timberlands regarding maintenance of Ungulate Winter Ranges.

[155]       I find that the October 12, 2007 offer did somewhat exceed what would otherwise have been available to HFN in a FRO, as did the subsequent offer on April 8, 2008 (which added to the previous offer in some respects, for example, increasing the funding for the FREP and the issues resolution process, but also removed some other items from the table).  

[156]       I find that there was little in the Crown’s offer specifically relating to the HFN concerns regarding their possible future exercise of aboriginal rights over the Removed Lands, except for the expression of willingness to consider possible increased access to cedar on Crown lands as compensation.  The discussions between the Crown and Island Timberlands (required by the Minister as part of the Removal Decision, and not referred to in the October 12, 2007 offer) regarding maintenance or creation of Ungulate Winter Ranges and other critical wildlife habitat areas, also related to HFN concerns but unfortunately those discussions did not include the Hupacasath, did not bear fruit and from the evidence available do not appear likely to do so in the future.  

[157]       Reviewing the consultation record, one sees a number of occasions when HFN representatives suggested possible accommodations relating to the Removed Lands that went beyond financial compensation – such as legislative change, or purchase of Grassy Mountain to preserve it as a sacred site.  The record shows that the Crown declined to engage with respect to those suggestions, instead agreeing only to review the ways in which current legislation applies to the Removed Lands.

Reasonableness of the Hupacasath expectations

[158]       Fourth, the Crown’s position is that the HFN “had their eyes on a bigger prize” and were unrealistic in their expectations.  There was some suggestion that, in the Crown’s view, the HFN were not really as interested in the sacred sites and ongoing maintenance of cultural practices as they were in economic compensation.  Counsel for the Crown referred to the August 11, 2006 letter in which the phrase “Compensatory Value – Priceless – 1.5 Billion” was used, and a $40,000,000 figure quoted.  Counsel for the HFN submitted that the August 11 document, in context, expresses the position that the impact of the Removal Decision was enormous – what was lost in terms of sacred sites, access to resources needed for maintenance of HFN cultural and spiritual practices was “priceless” — but that the Hupacasath were being realistic and addressing the kind of compensation they might have to accept in lieu of what they had lost.  Further, Mr. Grant pointed out that the figure related to the Removal Decision was $25,000,000, not $40,000,000.

[159]       I find that the consultation record shows the HFN consistently raising the issue of access to sacred sites and resources important to the preservation of their culture.  The fact that, in the face of the Crown’s consistent refusal to discuss ways of dealing with those issues on the Removed Lands, they considered other options that would draw on the remaining Crown lands or on economic compensation, in my view shows realism rather than the opposite.  

[160]       As to the reasonableness of the level of the accommodation measures the HFN sought, it is again difficult to assess and I refrain from drawing a conclusion because it is unnecessary for me to do so.  The record does show that after December 2007 (following the release of the Tsilhqot’in Nation decision), the HFN position hardened and they sought shared decision-making rather than a consultation protocol.  However, I do not find evidence in the record to support a conclusion that the HFN approached the consultation discussions in bad faith or that they were unwilling to “give and take” in the discussions.

ISSUES

[161]       The issues to be determined on this application are:

I.         Does the Crown’s interest (through British Columbia Investment Management Corporation) in Island Timberlands LP affect the issues in this case?

II.         What standard applies to the assessment of the Crown’s consultation and accommodation efforts?

III.         Has the Crown met its duty to consult and, if necessary, accommodate the HFN?

A.        Did the Crown correctly understand what was required?

B.        Were the steps the Crown took to consult with and accommodate the Hupacasath reasonable?

IV.        What remedy should be granted, if any?

I.         DOES THE CROWN’S INTEREST (THROUGH BRITISH COLUMBIA INVESTMENT MANAGEMENT CORPORATION) IN ISLAND TIMBERLANDS LP AFFECT THE ISSUES IN THIS CASE?

[162]       In 2005, Reid Carter, a representative of Island Timberlands, swore an affidavit referred to at the hearing leading to the 2005 Decision.  His affidavit set out how Island Timberlands came to hold an interest in lands that include the Removed Lands and described the advantages for the investors flowing from the Removal Decision.  Mr. Carter deposed that Island Timberlands LP is a limited partnership involving “two Canadian institutional pension funds”.  He did not state the names of the pension funds.

[163]       Chief Judith Sayers swore an affidavit on May 1, 2008, stating that she had instructed legal counsel to inquire into the ownership of Island Timberlands LP.  She deposed that as of about June 22, 2005, the limited partners of Island Timberlands changed to include 4246276 Canada Inc. and 4246268 Canada Inc., and that on or about August 12, 2005, 4246276 Canada Inc. and 4246268 Canada Inc. changed their names to British Columbia Investment Management Corporation (“BCIMC”).  According to the capital contributions shown on the Island Timberlands limited partnership registration filed on June 22, 2005, which Chief Sayers attached as an exhibit to her affidavit, BCIMC owns approximately 25% of Island Timberlands.  

[164]       BCIMC is established under s. 16 of the Public Sector Pension Plans Act, S.B.C. 1999, c. 44 (“PSPPA”).  Subsection 16(5) states that BCIMC is an agent of the government.  Under s. 17, the capital of BCIMC is one share, issued and registered in the name of the Minister of Finance on behalf of the government of British Columbia.  BCIMC provides fund management services for public bodies and publicly administered trust funds, including the pension plan for the Members of the Legislative Assembly of this province.  According to material that Chief Sayers downloaded from the BCIMC website, BCIMC also manages British Columbia government operating funds, and as of March 31, 2007, about 0.7% of the funds that BCIMC managed were British Columbia government operating funds.

[165]       According to its 2006 – 2007 Annual Report, as of March 31, 2007, BCIMC had a further interest in Island Timberlands through ownership stakes in two other corporate limited partners of Island Timberlands, Brookfield Asset Management (3,761,477 common shares) and Brookfield Property Corp. (777,938 common shares).

[166]       According to a public document from the Minister of Forests, Economics and Trade Branch, which Chief Sayers attached to her affidavit, BCIMC also has an indirect interest in the company holding the licence for TFL 44, that is, Western Forest Products Inc.  The document shows that as of March 2007, BCIMC’s interest in Western Forest Products Inc. is through its stake in Brookfield Asset Management, which has 100% (and thus control) of Tricap Asset Management Ltd., which in turn owns 70% of Western Forest Products Inc.

[167]       This evidence was not disputed, except for one matter of detail set out below.

[168]       Chief Sayers deposed that she did not learn that BCIMC had a significant investment in Brookfield and Island Timberlands LP until the middle of January 2008, and that she did not know about these investments when this matter was before the court in 2005.  She stated that BCIMC’s interest in Brookfield and Island Timberlands LP was never disclosed by either Brascan or the respondent Minister.

[169]       Douglas Pearce, the Chief Executive Officer and Chief Investment Officer of BCIMC, deposed in an affidavit that since its establishment, BCIMC has operated at arms-length from the government and makes all investment decisions independently, without interference or input from the government.

[170]       Mr. Pearce stated that the arms-length nature of the relationship is reflected in the structure of BCIMC’s Board of Directors.  Four of the seven directors are appointed by trustees of public pension plans, two Board members are appointed by the Minister of Finance to represent BCIMC’s other clients, and the Chair of the Board is appointed by the Minister of Finance.  Mr. Pearce also stated that the Board of BCIMC is legislatively prohibited from any involvement in the day-to-day investment decisions of BCIMC.  He said that although the clients of BCIMC provide “Statements of Investment Policy and Procedures”, which indicate what percentages of their funds should be placed in certain types of investment (e.g., real property, foreign securities, etc.) and the Board ensures that BCIMC acts in accordance with these Statements, BCIMC is not directed by either its clients or the Board to make particular investments.  Mr. Pearce deposed that investment decisions are made by the Chief Investment Officer, who is charged under s. 21(3) of the PSPPA with supervising the day-to-day operations of BCIMC, “including a determination of which assets to buy and sell”.

[171]       Mr. Pearce’s affidavit also corrects the affidavit of Chief Sayers in its description of the changes of name of 4246276 Canada Inc. and 4246268 Canada Inc.  Mr. Pearce deposed that 4246276 Canada Inc. changed its name to bcIMC (REYKN) Investment Corporation and 4246268 Canada Inc. changed its name to bcIMC (WCBAF REYKN) Investment Corporation.  The affidavit confirms that both of these companies are limited partners in Island Timberlands.  Mr. Pearce deposed that as limited partners, these companies do not take an active part in the business of the partnership or exercise any control over the operations of the partnership that holds the lands at issue in this matter.

[172]       The petitioners’ position is that the Crown is in conflict of interest since BCIMC, an agent of the government, is a substantial investor in both Island Timberlands LP, the owner of the Removed Lands, and in Western Forest Products Inc., the licencee over the Crown lands covered by TFL 44.   Mr. Grant submitted that these interests should have been disclosed and were not.  Mr. Grant suggested that the conflict is evident when one considers that the Supreme Court of Canada said in Haida Nation (at para. 55) that regulatory measures could be taken if necessary to protect aboriginal rights with respect to private land, but that if the provincial government were, for example, to use legislation to protect Grassy Mountain for the benefit of the petitioners in this case, such a step could lower the value of provincial employees’ pension plans.  Mr. Grant submitted that, in considering whether to grant the orders sought in this case, the financial interest of the Crown (through BCMIC) in Island Timberlands should be borne in mind, though he did not suggest bad motives or wilful deception on the part of the Crown.  

[173]       With respect to the suggested conflict of interest, Mr. Phillips submitted that  BCIMC is an arm’s-length entity and that its investment decisions are made without involvement of the government.  Responding to Mr. Grant’s question as to why the Crown did not reveal that it held an interest in Island Timberlands through BCIMC, Mr. Phillips advised the Court that he was not aware that BCIMC held an interest in Island Timberlands prior to the petitioners raising the issue in these proceedings.

[174]      Mr. Isaac for Island Timberlands similarly advised that he had not been aware of the Crown’s indirect interest in Island Timberlands. 

[175]       While there was no suggestion, and I do not find, that the Crown wilfully withheld information from the court, the financial interest of the Province and provincial employees through BCIMC in Island Timberlands, and thus in the Removed Lands, and in Western Forest Products Inc. through Brookfield Asset Management, are matters that should have been disclosed to the petitioners and to the court, along with the other information as to the structure of BCIMC and its arms-length investment decision-making.  The information is relevant because it may bear on the extent to which Island Timberlands is actually a “third party” private landowner whose interests should remain unaffected by the relationship between the Crown and First Nations.  That position of Island Timberlands as a third party was suggested in the submissions of both Island Timberlands and the Crown at the hearing leading to the 2005 Decision, and in the hearing of the present application.  The information as to the BCIMC stake in Western Forest Products Inc. is possibly relevant for similar reasons.

[176]       Having said that, considering the evidence as a whole, I do not find that the existence of BCIMC stakes in Island Timberlands and Brookfield Asset Management has significant bearing on the issues before me.  There is no evidence of direct involvement by the Province in BCIMC investment decisions; in fact, the structure of BCIMC is designed to avoid that.  The existence of the province’s financial stake in the private landowner may add a nuance to the characterization of Island Timberlands as a third party but does not alter that characterization.

II.         WHAT STANDARD APPLIES TO THE ASSESSMENT OF THE CROWN’S CONSULTATION AND ACCOMMODATION EFFORTS?

Positions of the Parties

[177]       The Crown submits that the court’s 2005 Decision forecloses the risk that the government might have misconceived the strength of the HFN’s claim or the seriousness of the impact of potential effects of the Removal Decision, and the Crown relies on the authorities (to which I will refer) holding that the Crown’s duty, absent such misconception, is to be assessed on a standard of reasonableness.

[178]       The petitioners’ position is that although it related to claims advanced but not yet proved, the consultation in this case was in some respects a remedial consultation framed by the Court’s findings in the 2005 Decision.   In other words, this was not a “from scratch” consultation.  Thus, the test to be applied to the Crown’s conduct, Mr. Grant argued, is not necessarily just reasonableness – instead, the test must be informed by the context of the 2005 decision.  

[179]       As I will describe below, the petitioners’ position is that the Crown misconceived its duty, did not meet what was required by the 2005 Decision, and did not meet the test of basic reasonableness.  The Crown’s position is that it properly understood its constitutional duty, and more than fulfilled it.

Authorities

[180]       The authorities are clear that the Crown’s efforts at consultation and accommodation are to be measured against a standard of reasonableness, unless the Crown has misconceived the seriousness of the claim or the impact of the infringement.  In that event, it would likely be a question of law assessed by the standard of correctness.  The focus is on the process of consultation and accommodation, not the outcome.  

[181]       The Supreme Court of Canada stated in Haida Nation at paras. 62-63:

62        The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right in question”: Gladstonesupra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikalsupra, at para. 110, “in … information and consultation the concept of reasonableness must come into play… . So long as every reasonable effort is made to inform and to consult, such efforts would suffice.” The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty. 

63        Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government’s process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation. 

[182]       Gitanyow First Nation v. British Columbia (Minister of Forests)2004 BCSC 1734 (CanLII), 38 B.C.L.R. (4th) 57, dealt with an application in circumstances somewhat similar to those before me.  In a previous decision involving the parties Tysoe J. (as he then was) had found that the Minister of Forests had not fulfilled his duty of consultation and accommodation when he consented to the change in control of Skeena Cellulose Inc. (one of whose owners was the Province) to new owners, but did not quash the Minister’s decision, instead giving the Minister further opportunity to fulfil his duty.  The First Nation then applied for further relief because it was dissatisfied with the level of consultation and accommodation afforded.  In discussing the approach to be taken, Tysoe J. stated at para. 50:

50        The honour of the Crown requires it to conduct such negotiations in good faith and with a willingness to accommodate Aboriginal interests where necessary. The standard by which the court will assess the efforts of the Crown must, of necessity, depend on the reasonableness of the Crown’s position. While the Crown may bargain hard and has no duty to reach an agreement, it must be willing to make reasonable concessions based on the strength of the Aboriginal claim and the potentially adverse effect of the infringement in question. If the Crown does not make reasonable concessions, it is open to the court to conclude that the Crown is not negotiating in good faith with a willingness to accommodate Aboriginal interests. 

And at para. 63 Tysoe J. wrote:

63        In assessing the adequacy of the Crown’s efforts to fulfil its duty to consult and accommodate, the court will usually look at the overall offer of accommodation made by the Crown and weigh it against the potential impact of the infringement on the asserted Aboriginal interests having regard to the strength of those asserted interests. The court will not normally focus on one aspect of the negotiations because the process of give and take requires giving in some areas and taking in other areas. It is the overall result which must be assessed. … 

[183]       In a recent decision of this Court (Wii’litswx v. British Columbia (Minister of Forests)2008 BCSC 1139 (CanLII), [2008] B.C.J. No. 1159, Neilson J. (as she then was) referred with approval to that decision and adopted a similar approach. 

[184]       The Court of Appeal for British Columbia has stated that, while there is a constitutional duty on the Crown, it does not necessarily follow that there is a constitutional right to be consulted or accommodated (Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and Resources), 2008 YKCA 13 (CanLII), 71 R.P.R. (4th) 162 at para. 88.  The Court also held in that case that the duty continues to apply in the implementation of treaties (at para. 91), supporting the proposition that the duty is ongoing and must be understood in its overall context in each case.

[185]       In Ahousaht Indian Band v. Canada (Minister of Fisheries and Oceans)2008 FCA 212 (CanLII), 37 C.E.L.R. (3d) 89, the Federal Court of Appeal summarized its conclusions about the applicable standard of review, stating its view that the standard of review as described in Haida Nation remains unaffected by Dunsmuir v. New Brunswick2008 SCC 9 (CanLII), 64 C.C.E.L. (3d) 1, at para. 34:

34        Thus, in my view, the determination of the existence and extent of the duty to consult or accommodate is a question of law and, hence, reviewable on a standard of correctness. However, when the Crown has correctly determined that question, its decision will be set aside only if the process of consultation and accommodation is unreasonable. In my view, the Supreme Court’s recent decision in Dunsmuir v. New Brunswick2008 SCC 9 (CanLII), does not change the standard of review applicable in this case.

[186]       In Tzeachten v. Attorney General of Canada 2008 FC 928 (CanLII) at para. 24, Tremblay-Lamer J., taking an alternative approach, described the proper standard of review as incorporating the holding in Dunsmuir:

24        … [W]hen it falls to determine whether the duty to consult is owed and the content of that duty, no deference will be afforded. However, where a determination as to whether that duty was discharged is required, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] […] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at para. 47).

[187]       I conclude that the standard of review for whether the Crown understood the existence and extent of its duty is correctness.  In my view, deference is not warranted on the question of the existence and nature of the constitutional duty, or, if any deference is warranted since the nature of the duty is to be determined in the context of the circumstances as a whole, that deference should be minimal.  I also conclude that the standard of review for whether the Crown complied with its duty is reasonableness.  The Crown should be afforded deference regarding its choice of consultation and accommodation process, so long as it falls within a range of possible, acceptable choices.

[188]       Because of the conclusions I have reached regarding whether the Crown understood the existence and extent of its duty, it is unnecessary for me to comment on the issue raised by the submissions of the parties and some of the recent jurisprudence, that is, on whether the courts should go beyond an examination of the process of consultation and accommodation and into an assessment of the substance of the accommodations offered by the Crown.  

III.        HAS THE CROWN MET ITS DUTY TO CONSULT AND, IF NECESSARY, ACCOMMODATE THE HUPACASATH?

[189]       Mr. Grant for the petitioners argued that the Crown misconstrued the Court’s 2005 Decision, and failed to understand the nature and extent of its duty.  He submitted that despite the lengthy process and the number of meetings, the significant fact is that the Crown basically conducted itself throughout the process as if the earlier decision had not been made.  He submitted that the Crown has done little or nothing to alleviate the impact of the Removal Decision on the HFN’s claimed aboriginal rights with respect to the Removed Lands themselves or with respect to HFN’s claimed aboriginal rights over the adjacent Crown land, and that the Crown seemed to believe that it was not required to do so.  The petitioners’ position is that the Crown offered little or nothing that would not otherwise have been available to the HFN as a result of general policies or the treaty process.  (I have already addressed that question, and have concluded that the Crown’s offer probably went somewhat beyond what would have been available as a result of general policies.  I make no finding as to what would otherwise have been available through the treaty process, or as to the adequacy of the Crown’s offer.) 

[190]       The petitioners say that the Crown was required to do more than talk to them or to include them in general programs available to all First Nations.  Instead, they say, reasonable steps to accommodate their specific interests, in effect compensating them for the Removal Decision, were necessary.

[191]       Mr. Grant argued that when the MOFR tendered proposals for the HFN’s consideration, these proposals failed to acknowledge what the 2005 Decision had said with respect to consultation and accommodation.  He argued that it was particularly significant that the proposal delivered on October 12, 2007, near the end of the process, was prefaced with the comment, “[a]t this time we are unsure what, if any, accommodation is in fact required in these circumstances”.  The proposals related solely to Crown lands and not to the Removed Lands, and, the petitioners say, never addressed the effects of the decision on issues raised by the HFN both in court and in consultations, including the impact of the decision on sacred sites, the protection of village sites, the protection of wildlife habitat, the provision of access for gathering of foods, medicines and other materials, protection of culturally modified trees, or land-based access to two HFN reserves which are only accessible by water if the Removed Lands are closed off to the HFN.  Mr. Grant submitted that there was no adjustment of the Minister’s policies, even minimally, in order to attempt to preserve the HFN’s ongoing connection to the Removed Lands pending resolution of their claims through treaty negotiations.  This, he urged, reflects the Crown’s “high-handed” and “unilateral” approach to consultation and accommodation.  

[192]       The petitioners’ position is that the Crown, if it had properly understood its duty and had consulted with them prior to the Removal Decision, could have imposed conditions on granting the Removal Decision such as those embodied in the Ash River MOU of November 30, 2000, when lands were transferred from the Crown to Weyerhaeuser in exchange for other lands.  Counsel for the petitioners argued that because the consultation at issue was ordered by the court as a remedial measure following the Crown’s failure to consult prior to a decision, some of the guidance provided by Haida Nation does not apply.  For instance, he argued, because the Court’s findings in 2005 provided the Minister with the necessary preliminary assessment of the strength of the Petitioner’s rights and title claims, it was not necessary for the Ministry to undertake its own assessment.  Similarly, the petitioners say that their evidence in support of their rights and title claims was accepted by the court and reflected in its findings, and this relieved the HFN of its reciprocal duty to “outline” their claims to the Minister (although the petitioners in fact did so in the event).

[193]      Mr. Grant pointed out that while the B.C. Court of Appeal in Haida Nation v. B.C. and Weyerhaeuser2002 BCCA 147 (CanLII), 99 B.C.L.R. (3d) 209 (Haida BCCA) spoke of the Crown’s obligation to “seek an accommodation”, in Haida Nation and Taku the Supreme Court of Canada stated that the Crown’s duty is to “consult and, if necessary, accommodate”.

[194]       He submitted that the Crown was wrong to fetter its authority to consult and accommodate the HFN by giving priority to the rights of a fee simple title holder and accepting those rights as constraining its consideration of the HFN’s concerns.  He argued that the Crown must balance competing societal interests (including Crown and Crown-sanctioned third party interests), and is not justified in assuming the subordination of aboriginal interests.  Mr. Grant suggested that the Crown could provide accommodation through legislation (as was done through the Forest Revitalization Act), by changing government policy, or through an agreement with Island Timberlands.

[195]       Counsel for the Crown, Mr. Phillips, submitted that this Court found in the 2005 Decision that only a moderate to low level of consultation was required.  The Crown’s position is that the consultation process and the accommodations offered to the HFN were more than reasonable and adequate, and that the consultation record amply supports that conclusion.  Mr. Phillips argued that the duty to consult is just that:  it is not a duty to agree.  

[196]       It is the Crown’s position that the HFN’s expectations were too high.  According to the Crown, the HFN presumed that accommodation was necessary when it was not; they initially and continually sought economic compensation out of proportion to the Court’s findings; and they viewed the situation as if lands and resources had been transferred away from them when that was not the case, since those lands and resources had been privately held well before the Removal Decision.  

[197]       The Crown’s position on the adequacy of the consultation that occurred in this case reflects its view that the purpose of consultation is to ensure that the Crown understands the extent of impacts of a proposed decision.  The Crown’s submission stresses that accommodation is not an automatic imperative, and that, according to Haida Nation, the duty to accommodate arises only where accommodation is necessary.  The Crown’s view of the 2005 Decision is that it does not contain a finding that accommodation of the HFN in respect of the Removal Decision is required.  Counsel for the Crown submitted that, even if accommodation was necessary, the Crown did propose measures that were reasonable.

[198]      The primary position of Island Timberlands is that the court lacks jurisdiction to make an order restricting its use of the Removed Lands.  However, Island Timberlands also took the position that it has no role to play in the consultation process at this point, or in regard to any accommodation to be offered or provided to the petitioners in relation to the Removed Lands decision.  Island Timberlands conveyed through its counsel, Mr. Isaac, that although it remains committed to communicating in good faith with the petitioners, facilitating their access to the Removed Lands and listening to their concerns, its position is that there is no basis in law for including it in any order for further consultation. 

[199]       Island Timberlands argued that even if this Court has jurisdiction to make the order requested, it should decline to do so.  Mr. Isaac argued that the record produced by the Crown shows a high level of consultation, that Island Timberlands as a private landowner has a legitimate expectation that it will have quiet enjoyment of its lands, and that to extend the restrictions on Island Timberlands’s quiet enjoyment in paragraph 8 of the Order would set an “extraordinary precedent for private landowners in this province”.

[200]       Mr. Isaac submitted that what is at issue is private land, for a time voluntarily subject to a Tree Farm Licence, then removed.  He argued that the voluntary inclusion of the Removed Lands under TFL 44 did not somehow re-invigorate the HFN’s aboriginal interests in the lands and said that the petitioners attribute an effect unsupported by the law to the temporary inclusion of the lands in the TFL.  The exercise of any aboriginal rights or interests, he argued, has always been subject to the rights of the private property owner.

A.        Did the Crown correctly understand what was required?

[201]       The initial question, then, is whether the Crown correctly understood the existence and extent of its duty. 

[202]       For ease of reference, I will set out here the language from the 2005 Decision describing the Crown’s duty in this case and the conclusions as to the appropriate declaratory relief: 

244     Because of the private ownership of the land, and the position taken by the province in treaty negotiations, the prospect that the HFN will in the end obtain exclusive possession of any of the Removed Lands or ownership of the resources on them seems remote.

245     However, the Removed Lands are contiguous with Crown land, and the removal decision affects the Crown land claimed by the HFN as part of its traditional territory.  The prospect exists that the HFN will obtain exclusive possession of some of that Crown land or its resources through treaty.

246     Based on the evidence before me, including the uncontradicted evidence of the Hupacasath elders regarding traditional use of the territory they describe, for the purposes of this application my preliminary assessment of the strength of the case is as follows.

247     I will first address the case regarding Crown land. I find that the HFN has shown a strong prima facie case for aboriginal rights including title with respect to the portion of their asserted traditional territory on the Crown land which is not subject to any overlapping claims. I reach no conclusions on the strength of the competing claims by other First Nations, but take those claims into account in concluding that the HFN prima facie case for aboriginal title to the portion of Crown land subject to overlap is weaker than for the other portion. Regarding the portion of their asserted traditional territory on Crown land subject to overlapping claims, the petitioners have shown a good prima facie case for aboriginal rights to hunt, fish, gather food, harvest trees and visit sacred sites. Since those rights do not require exclusivity, the existence of the overlapping claims does not in general weaken the petitioners’ case.

248     Second, with respect to the Removed Lands, I find that the petitioners have shown a prima facie case for aboriginal rights to hunt, fish, gather food, harvest trees and visit sacred sites on their asserted traditional territory, subject to the rights of the fee simple owner of that land to prohibit their access. Again, because the exercise of these aboriginal rights does not require exclusivity, I do not find that the existence of overlapping claims in general weakens the HFN case. I find that the petitioners have also shown a prima facie case for aboriginal title (if such title has not been extinguished and continues to exist with respect to the Removed Lands), with respect to the portion of their traditional territory not subject to overlapping claims. As for the portion of the traditional territory on the Removed Lands subject to overlapping claims, given the requirement of exclusivity, I find they have shown a weak prima facie case.

249     On the existing state of the law, the petitioners’ aboriginal rights with respect to the Removed Lands are at best highly attenuated. Prior to the removal decision, the owners of the lands could have decided to exclude the Hupacasath from access to the lands at any time, subject to possible intervention by the Crown through its power to control activities on the land under the TFL. Their claimed aboriginal title, if it has not been extinguished, seems very unlikely to result in the Hupacasath obtaining exclusive possession of the Removed Lands in the future. The authorities indicate that the possible availability of the land to satisfy future land claims or treaty settlements is an important consideration in determining the extent of the Crown’s duty.

250     The extent of the Crown’s duty is also proportionate to the seriousness of the potential adverse effect on the claimed aboriginal rights.

251     I have described in the preceding part of these Reasons the potential adverse effects of the removal decision on HFN aboriginal rights.

252     As a consequence of changes in activities on the Removed Lands, there might be some impact on fishing or hunting on the HFN claimed traditional territory outside the Removed Lands (and on Crown lands). I would say that the potential effect of the removal decision on the claimed aboriginal rights pertaining to the Crown land is modest.

253     With respect to the Removed Lands themselves, the previous level of regulation of logging, wildlife protection and other activities on the land has been replaced by a different and much more forgiving regime. As well, the use of some of the lands could change altogether, for example through development for housing. The potential effect of the removal decision on the claimed traditional territory in the Removed Lands is serious.

254     Taking both the strength of the HFN claim and the seriousness of the potential adverse effects into account, I find that the duty to consult was at a moderate level with respect to the Crown lands, and at a lower level with respect to the Removed Lands.

273     In summary, the Crown had a duty to consult with the HFN regarding the removal of the land from TFL 44, and regarding the consequences of the removal of that land on the remaining (Crown land) portion of TFL 44.

274     The Crown’s duty with respect to alleged aboriginal rights on the Removed Land is at a low level and does not require “deep consultation”. It does require informed discussion between the Crown and the HFN in which the HFN have the opportunity to put forward their views and in which the Crown considers the HFN position in good faith and where possible integrates them into its plan of action. The Crown has not met that duty.

275     The duty on the Crown with respect to the effect of the removal decision on aboriginal rights asserted on Crown land is higher, and requires something closer to “deep consultation”. On the evidence, the Crown did not meet that duty.

292     There will be a declaration that the Minister of Forests had, prior to the removal decision on July 9, 2004, and continues to have, a duty to consult with the Hupacasath in good faith and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.

293     There will be a declaration that making the removal decision on July 9, 2004 without consultation with the Hupacasath was inconsistent with the honour of the Crown in right of British Columbia in its dealings with the Hupacasath.

294     There will be a declaration that the Chief Forester had, prior to the August 26, 2004 decision to amend the allowable annual cut for TFL 44, and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.

[203]       In considering whether the Crown properly understood its duty in this case, it is important to keep sight of the reason for the existence of the duty to consult.  The Crown is honour-bound to consult and attempt reconciliation with aboriginal peoples when it makes decisions potentially affecting their unproven rights with respect to the occupation and use of land, because otherwise those rights may be devoid of content by the time they are recognized by courts or through treaty.  The Supreme Court of Canada wrote in Haida Nation at para. 25:

25        Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

And at para. 33:

33        To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic goal, devoid of the “meaningful content” mandated by the “solemn commitment” made by the Crown in recognizing and affirming Aboriginal rights and title:  Sparrowsupra, at p. 1108.  It also risks unfortunate consequences.  When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded.  This is not reconciliation.  Nor is it honourable.

[204]       In Haida Nation, the Supreme Court acknowledged that the level of consultation and accommodation required varies with the circumstances and may change as the process goes on and new information comes to light.  It set out some principles as it described the spectrum of what the honour of the Crown may require (at paras. 43-49):  

43        Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61. 

44        At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases. 

45        Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary. 

46        Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations….

47        When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation, as this Court recognized in R. v. Marshall1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533, at para. 22: “… the process of accommodation of the treaty right may best be resolved by consultation and negotiation”. 

48        This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.

49        This flows from the meaning of “accommodate”. The terms “accommodate” and “accommodation” have been defined as to “adapt, harmonize, reconcile” … “an adjustment or adaptation to suit a special or different purpose … a convenient arrangement; a settlement or compromise”: Concise Oxford Dictionary of Current English (9th ed. 1995), at p. 9. The accommodation that may result from pre-proof consultation is just this — seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree. But it does require good faith efforts to understand each other’s concerns and move to address them. 

[205]       With respect to third parties, the Court held that parties other than the Crown are not subject to a duty, in part because the Crown is able to achieve meaningful consultation and accommodation through its legislative powers and its ability to negotiate terms.  At para. 55 the Court stated:

55        Finally, it is suggested (per Finch C.J.B.C.) that third parties should be held to the duty in order to provide an effective remedy. The first difficulty with this suggestion is that remedies do not dictate liability. Once liability is found, the question of remedy arises. But the remedy tail cannot wag the liability dog. We cannot sue a rich person, simply because the person has deep pockets or can provide a desired result. The second problem is that it is not clear that the government lacks sufficient remedies to achieve meaningful consultation and accommodation. In this case, Part 10 of T.F.L. 39 provided that the Ministry of Forests could vary any permit granted to Weyerhaeuser to be consistent with a court’s determination of Aboriginal rights or title. The government may also require Weyerhaeuser to amend its management plan if the Chief Forester considers that interference with an Aboriginal right has rendered the management plan inadequate (para. 2.38(d)). Finally, the government can control by legislation, as it did when it introduced the Forestry Revitalization Act, S.B.C. 2003, c. 17, which claws back 20 percent of all licensees’ harvesting rights, in part to make land available for Aboriginal peoples. The government’s legislative authority over provincial natural resources gives it a powerful tool with which to respond to its legal obligations. This, with respect, renders questionable the statement by Finch C.J.B.C. that the government “has no capacity to allocate any part of that timber to the Haida without Weyerhaeuser’s consent or co-operation” ((2002), 2002 BCCA 462 (CanLII), 5 B.C.L.R. (4th) 33, at para. 119). Failure to hold Weyerhaeuser to a duty to consult and accommodate does not make the remedy “hollow or illusory”.

[206]       The point was reiterated in Taku at para. 42, where the Court said that “…the process of consultation may lead to a duty to accommodate Aboriginal concerns by adopting policies or decisions in response.”  

[207]       It is important to note, however, that both Haida Nation and Taku were decided in the context of the Crown’s policies and decision-making with respect to Crown lands, and the examples given by McLachlin C.J. in Haida Nation of possible measures available to the Crown were drawn from that context.  The measures available to the Crown with respect to privately owned lands are much more restricted.   

[208]       In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)2005 SCC 69 (CanLII), [2005] 3 S.C.R. 388, the Supreme Court of Canada applied those principles, emphasizing (at para. 63) that the determination of the duty must governed by the context.  The contextual factors to be considered are:  the specificity of promises made (for example under treaty); the seriousness of the impact of the proposed action; the strength of the aboriginal claim; the history of the dealings between the parties; and the existence of an ongoing framework within which to manage changes in land use.  The Court stated at para. 64:

64        The duty here has both informational and response components. In this case, given that the Crown is proposing to build a fairly minor winter road on surrendered lands where the Mikisew hunting, fishing and trapping rights are expressly subject to the “taking up” limitation, I believe the Crown’s duty lies at the lower end of the spectrum. The Crown was required to provide notice to the Mikisew and to engage directly with them (and not, as seems to have been the case here, as an afterthought to a general public consultation with Park users). This engagement ought to have included the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights. The Crown did not discharge this obligation when it unilaterally declared the road realignment would be shifted from the reserve itself to a track along its boundary. I agree on this point with what Finch J.A. (now C.J.B.C.) said in Halfway River First Nation at paras. 159-160. 

The fact that adequate notice of an intended decision may have been given does not mean that the requirement for adequate consultation has also been met.

The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action. [Emphasis added.]

[209]       In Mikisew, although the Court found the duty to lie at the lower end of the spectrum, it held that the Crown was required not only to listen to the Mikisew First Nation’s concerns, but also to “attempt to minimize adverse impacts” on their aboriginal rights.

[210]       In the instant case, the parameters of the Crown’s duty were set out, at least in general terms, in the 2005 Decision.  In that decision, taking into account both the strength of the HFN claim over the Removed Lands and the adjacent Crown lands, and the severity of the possible impact of the Removal Decision on the HFN asserted aboriginal rights with respect to the Removed Lands and the adjacent Crown lands, I concluded that the Crown’s duty to consult with respect to the Crown lands was at a “moderate” level, and that the Crown’s duty was at a “lower” level with respect to the Removed Lands.  The Crown was ordered to carry on informed discussion with HFN in which HFN would have the opportunity to put forward their views, and to consider the HFN position in good faith, where possible integrating that position into the Crown’s plan of action.  It was ordered to carry on something close to “deep consultation” with respect to the Crown lands.  The declaration stated that the Crown had a duty “to consult with the Hupacasath in good faith and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.”

[211]       Haida Nation and Taku were decided by the Supreme Court of Canada in 2004.  I do not believe that anyone would argue that, in the four years since those decisions were released, the calibration of the Crown’s duty to consult and accommodate has become an exact science – or a science at all.  The courts continue to work out the implications of the Crown’s duty and it is not surprising that there is disagreement between the parties in this case as to what was meant by “moderate” or “lower” level consultation.  

[212]       In other words, the law is still very much under development, as was noted by Hall J.A. in Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management)2005 BCCA 128 (CanLII), 251 D.L.R. (4th) 717 at para. 100:

100     … As I noted, we are dealing here with an area of law, aboriginal title, which Lamer C.J. referred to [in Delgamuukw] as not particularly developed. Courts will seek to fashion fair and appropriate remedies for individual cases conscious that as yet we do not have much guidance by way of precedent but, as in other fields, the common law will simply have to develop to meet new circumstances. 

[213]       However, it is clear that the calibration of the duty to consult involves two variables – the strength of the claim and the severity of the impact – with the deepest level of consultation required where the claim and the possible impact are both strong, and the shallowest level of consultation required where the claim and the possible impact are both weak (Haida Nation, at paras. 39, 43-44.)

[214]       The Supreme Court put it in different ways in Haida Nation.  At para. 37, the Court distinguished between a “dubious or peripheral claim” that may attract a mere duty of notice, and a “stronger claim” that may attract more stringent duties.  The spectrum was said to run from “cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor”, where the only duty may be to give notice, disclose information and discuss the issues (at para. 43), to “cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high”, where “deep consultation, aimed at finding a satisfactory interim solution”, may be required (at para. 44).  The goal in all cases is reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake (para. 45), and the effect of good faith consultation may be to reveal a duty to accommodate (para. 47).  Accommodation requires good faith efforts to understand each other’s concerns and move to address them, “seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation” (para. 49).  The Court stated at para. 50:

50        … Balance and compromise are inherent in the notion of reconciliation.  Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

[215]       The Aboriginal peoples do not have a veto, and there is no ultimate duty to reach agreement:  Halfway River First Nation v. British Columbia (Ministry of Forests)1999 BCCA 470 (CanLII), 178 D.L.R. (4th) 666 at para. 61.  Rather, the Supreme Court stated in Taku at para. 2, “[A]ccommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns”.  

[216]       The Crown argued forcefully that its duty with respect to the Removed Lands did not extend to accommodation, and it was supported in that position by Island Timberlands.  Both respondents suggested that the private ownership of the Removed Lands means that the claimed aboriginal rights over the Removed Lands have so little weight that only consultation in the sense of meeting and listening to concerns was required, and argue that what the Crown did between December 2005 and January 2008 greatly exceeded that minimal requirement. 

[217]       They point to certain language in the 2005 Decision at para. 249, which I repeat for convenience:

249     On the existing state of the law, the petitioners’ aboriginal rights with respect to the Removed Lands are at best highly attenuated. Prior to the removal decision, the owners of the lands could have decided to exclude the Hupacasath from access to the lands at any time, subject to possible intervention by the Crown through its power to control activities on the land under the TFL. Their claimed aboriginal title, if it has not been extinguished, seems very unlikely to result in the Hupacasath obtaining exclusive possession of the Removed Lands in the future. The authorities indicate that the possible availability of the land to satisfy future land claims or treaty settlements is an important consideration in determining the extent of the Crown’s duty.

[218]       The reference to “the existing state of the law” in the 2005 Decision was deliberate.  As described in that decision (paras. 170-200), the law has not yet yielded any definitive answer to the question of what remains of aboriginal rights, including aboriginal title, after lands have become privately owned through conveyance of fee simple.  

[219]       In Tsilhqot’in Nation, at para. 997, Mr. Justice Vickers of this Court stated that the Province has no jurisdiction to extinguish aboriginal title and such title was not extinguished by a conveyance of fee simple title.  He added at paras. 998 – 1000:

998     Thus, regardless of the private interests in the Claim Area (whether they are fee simple title, range agreements, water licences, or any other interests derived from the Province), those interests have not extinguished and cannot extinguish Tsilhqot’in rights, including Tsilhqot’in Aboriginal title.

999     What is not clear from the jurisprudence are the consequences of underlying Aboriginal rights, including Aboriginal title, on the various private interests that exist in the Claim Area.  While they have not extinguished the rights of the Tsilhqot’in people, their existence may have some impact on the application or exercise of those Aboriginal rights.  This conclusion is consistent with the view of the Ontario Court of Appeal in Chippewas of Sarnia Band v. Canada (Attorney General)2000 CanLII 16991 (ON CA), [2001] 1 C.N.L.R. 56 (Ont. C.A.).

1000   Reconciliation of competing interests will be dependant on a variety of factors, including the nature of the interests, the circumstances surrounding the transfer of the interests, the length of the tenure, and the existing land use.  Such a task has not been assigned to this Court by the issues raised in the pleadings.  

[220]       Counsel at the hearing advised that all parties have appealed the Tsilhqot’in Nation decision, and it may be that the Supreme Court of Canada, in an appeal from that case or in some other context, will clarify the law within the foreseeable future.  However, this decision cannot await that event and, as with the 2005 Decision, it must be made in a manner that takes into account the uncertainty in the law. 

[221]       I do not overlook the history of the Removed Lands at issue in this case.  The Dominion of Canada received the lands from the British Columbia Government in 1884 under the Settlement Act and the lands were part of the “Railway Lands” transferred from the Dominion of Canada to the Esquimalt and Nanaimo Railway Company in 1887.  Thus, the chain of title is not straightforwardly a matter of provincial transfer of fee simple and, possibly, the circumstances in this case are distinguishable from those upon which Vickers J. commented.  I have not been asked to reach a conclusion on the issue and refrain from doing so.

[222]       The point remains that the law has not yet been clarified as to the inter-relationship, in the absence of treaties, between aboriginal rights and title on the one hand and fee simple title on the other.

[223]       Referring again to para. 249 in the 2005 Decision, the assessment that the Hupacasath’s “claimed aboriginal title, if it has not been extinguished, seems very unlikely to result in the Hupacasath obtaining exclusive possession of the Removed Lands in the future” was based on two factors:  the existing uncertain state of the law; and the Province’s position in treaty negotiations — that privately-held lands are not available for settlement of claims except on a willing seller/willing buyer basis.  I have not been advised of any change in that position, which was described at para. 164 of the 2005 Decision:

164     Under the terms of the British Columbia Treaty Process, the petitioners will not be able to obtain title to any private lands, except on a willing seller/willing buyer basis, and the Crown relies on that fact as further support for its position that there is a fundamental incompatibility between aboriginal title and fee simple title. The Crown’s position is that it does not recognize aboriginal title to lands that are privately held and that it does not have jurisdiction to provide privately held land if it is claimed.

[224]       Thus far in this section I have been referring to the legal aspect of the Hupacasath’s claim.  Indeed, the submissions of both respondents emphasized that side of the equation.  However, in making a preliminary assessment of the strength of an Aboriginal people’s claim, the Court must take account of both the law and the facts.  Here, it is important to note that the factual side of the HFN claim seems strong.  The Crown did not dispute that the Hupacasath had used the Removed Lands prior to the arrival of Europeans in the intensive and varied ways described by the HFN elders in their affidavits.  Thus, the alleged strong connection of the HFN with the Removed Lands basically went unchallenged by the Crown, except for the evidence it led as to the existence of overlapping claims by other First Nations.  In that regard, the findings of fact in the 2005 Decision included the finding that about 40% of the area of the Removed Lands is not subject to any competing claim from other First Nations.  

[225]       Putting together the legal and the factual aspects of the HFN asserted claim to aboriginal rights pertaining to the Removed Lands, the claim is neither at the strongest nor the weakest end of the spectrum.  It cannot fairly be described as “dubious or peripheral” (in the language used by the Supreme Court of Canada in Haida Nation for claims at the lowest level on the spectrum).  With respect to the portion of the Removed Lands where there are no overlapping claims, the weakness of the claim derives mainly from uncertainty as to the future development of the law and from the province’s position in treaty negotiations, rather than from the evidentiary record. 

[226]       As for the adjacent Crown lands that form part of the HFN asserted traditional territory, the claim is in general strong on both the law and the facts, though weaker where there are overlapping claims. 

[227]       As I have said, the two major variables in calibrating the duty to consult are the strength of the Aboriginal people’s claim, and the severity of the possible impact.  The Court of Appeal in Little Salmon/Carmacks referred (at para. 95) with approval to the statement by Lambert J.A. in Haida BCCA at para. 46, that a duty to consult logically arises “as a prelude to a potential infringement and should be assessed in relation to the severity of the proposed Crown action [emphasis in original].”

[228]       The potential impact of the Removal Decision on HFN aboriginal rights (if the HFN do prove to have aboriginal rights with respect to that privately-owned land) is very significant.  With respect to the adjacent Crown lands, the potential impact is less significant.

[229]       The conclusion in the 2005 Decision was that the consultation required with respect to the Crown lands was at a moderate level, closer to deep consultation than with respect to the Removed Lands, where it was at a “lower” (not “low”) level.  Island Timberlands’s submissions emphasized the use of the phrase “at best highly attenuated” to describe the HFN aboriginal rights with respect to the Removed Lands.  It does not follow, however, that those rights are non-existent – on the contrary, I found that a credible factual claim had been advanced.

[230]       Was the Crown required to seek accommodation, or just to consult (in the sense of listening to the HFN concerns) with respect to the Removed Lands?

[231]       In the context of this case, there would have been no point in directing the Crown to consult in the sense of simply giving notice and listening to the HFN concerns.  While those directions might have been appropriate if the matter had come to court prior to the making of the Removal Decision, it did not.  Instead, it came when the removal was a fait accompli.  Because third parties provided evidence that they had relied on the Minister’s decision in their transactions and would be harmed if it was set aside, the Removal Decision was allowed to stand.  

[232]       In the circumstances, the only possible purpose of after-the-fact consultation was to provide a process in which the Crown and the Hupacasath First Nation would attempt to agree on accommodation for the possible impacts of the Removal Decision, given the Minister’s failure to consult with the First Nation before the fact.

[233]       Since the Removal Decision, Island Timberlands has taken the position, as it is entitled to do, that it is not required to enter into a Memorandum of Understanding with the HFN or to do more than the general laws require.  As a private landowner, it does not acknowledge any obligation to do more, but it says that as a good neighbour, it will permit access to the lands as its operations and safety permit.  Island Timberlands does agree that it continues to be bound by the conditions in the Minister’s letter, insofar as those conditions have not expired due to the passage of time.  Mr. Isaac was careful, however, to state his client’s position that the enforceability of those conditions by the Minister of Forests is not a question before this Court.

[234]       If the Crown had carried out the consultation in 2004 when it should have, before it made the Removal Decision, it is likely that the HFN would have requested that the Crown impose terms on Weyerhaeuser relating to Hupacasath access to sacred sites, hunting, food gathering, cedar, and so on, and that the Crown provide enhanced access to resources on Crown lands to make up for potential loss of access to such resources on the Removed Lands.  The Crown could have taken such steps with respect to Crown lands, and it was at that time in a position where it might have been able to negotiate some terms with the private landowner with respect to the Removed Lands.  The Removal Decision means that it is no longer in such a position with respect to the Removed Lands.  

[235]       Having said that, the placement of the (now) Removed Lands under TFL 44 sixty years ago did not create new aboriginal rights or re-kindle aboriginal rights already extinguished.  There may in the end be no legal basis for a claim to aboriginal rights with respect to the Removed Lands; that is still unknown.  Further, it is of course possible that consultation and negotiation with the landowner prior to the Removal Decision would have resulted in no different outcome than the terms set out in the Minister’s letter.  In the end, the Crown’s ability to impose conditions on private landowners is very limited.  

[236]       However, the Minister should have, before the fact (that is, before making the Removal Decision), provided notice to the Hupacasath and engaged directly with them, providing information about the proposed decision addressing what the Crown knew to be Hupacasath interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown should have solicited and listened carefully to the Hupacasath concerns, and attempted to minimize adverse impacts on the Hupacasath’s aboriginal rights.  This much was required even for a lower level of consultation in Mikisew.  

[237]       The Minister did not take those steps before the fact.  Because the Removal Decision was allowed to stand, during the after-the-fact discussions, the Crown was required to work with the HFN in an attempt to achieve accommodation regarding the overall effects of the Removal Decision, including its possible impact on HFN aboriginal rights pertaining to the Removed Lands, and its possible impact on the HFN aboriginal rights on the adjacent Crown lands.  

[238]       It is relevant to note that the Crown did not appeal the 2005 Decision.  It was required, in its approach to the consultation and accommodation discussions, to accept the conclusions reached in that decision.  Those conclusions included findings that the HFN could suffer adverse impacts on their aboriginal rights, both with respect to the Removed Lands and the Crown lands within their asserted traditional territory, as a result of the Removal Decision.  The Crown’s position in the consultation, however, seemed at times inconsistent with acceptance of those conclusions.

[239]       I find that the position taken by the Crown is inconsistent with a balancing process aimed at eventual reconciliation, and is inconsistent with the context of this dispute (in particular, with the conclusions reached in the 2005 Decision).

[240]       I find that the Crown did not correctly understand what was required, and misapprehended its duty to consult and accommodate in the circumstances.

B.        Were the steps the Crown took to consult with and accommodate the Hupacasath reasonable?

[241]       The Crown’s position is that, even if it was required not only to consult with but also to accommodate the Hupacasath, the steps it took were reasonable.  The petitioners’ position is that the Crown’s efforts fell far short of being reasonable.  

[242]       I have concluded, for the reasons that follow, that the Crown did not take reasonable steps.  This conclusion is not based upon a comparison between the Crown’s offers of accommodation and what might have been available to the HFN in any event, or what I might consider to have been appropriate or fair.  Nor is it based upon a finding of bad faith on the part of the Crown.  Instead, it is based upon the fact that the Crown’s misconception about what was required in the circumstances led it to conduct the process in a way that was not reasonable.  

[243]        If the Crown’s duty was only to meet with the Hupacasath and to listen to their concerns, it clearly took reasonable steps to do so.  The MOFR allocated a considerable amount of its officials’ time, devoted resources, and provided some financial assistance to the HFN to enable it to carry out its end of the consultation.

[244]       Further, the MOFR did more than meet and listen; it brought forward proposals and attempted to reach an agreed accommodation in the form of a Planning and Forestry Agreement.  

[245]       In addition, the Crown supported the corporate table process and continued with a number of other processes and topics of consultation involving the HFN, as it was required to do.  The Crown should not be faulted for carrying on discussions with the Hupacasath on a number of fronts.  (Unfortunately, however, the Crown did not clarify the mandates of the various Ministries and agencies until fairly late in the day, and the Crown did not take up the HFN suggestions that a mediator or facilitator be brought in to assist with the negotiations.)  

[246]       I have found that the Crown’s duty was to work toward accommodation for the Removal Decision’s potential impact on HFN aboriginal rights.  In the 2005 Decision I described what that potential impact was.  However, the record shows that in its discussions with the HFN, the Crown continued to question whether accommodation was necessary regarding possible impacts of the Removal Decision, particularly with respect to the Removed Lands.  

[247]       It is an important indicator of the consequences of the Crown’s misconception of its duty that the Crown refused to permit the Hupacasath to participate in discussions with Island Timberlands regarding the possible continuation or reinstatement of ungulate winter ranges and wildlife habitat areas within the Removed Lands.  Those discussions had obvious implications for HFN asserted aboriginal rights on both the remaining Crown lands and the Removed Lands.   

[248]       In short, the Crown’s duty required a process focused on the possible impacts of the Removal Decision.  Because the consultation process was delayed for various reasons, and because it became enmeshed in other complex processes, that focus was lost.  

[249]       The Crown’s position essentially was that the Removal Decision did not significantly change the Hupacasath’s position, and that the Crown was not required to consider steps which would accommodate for what the HFN stood possibly to lose as a result of the Removal Decision.  As examples of what could have been considered:  could the Crown find a way to assist the HFN in retaining access to at least the most important of their sacred sites?  was it possible for the Crown to provide improved access to resources on the Crown lands in replacement of the former access to such resources on the Removed Lands?  could wildlife corridors be protected so that the animals hunted by the HFN would still be available on the Crown lands?  Those are not the questions upon which the parties focused, although the evidence shows that the Hupacasath did try to raise them.  

[250]       There is no duty to reach agreement, but there is a duty to focus on the relevant issues in the discussions.

[251]       Consultation and accommodation with the goal of reconciliation is a two-way street; the HFN were required to conduct themselves reasonably in the process.  If a First Nation is intransigent and unresponsive to government attempts to consult, those government efforts may be found reasonable even if they do not bear fruit:  R. v. Douglas2007 BCCA 265 (CanLII), B.C.J. No. 891; R. v. Tommy2008 BCSC 1095 (CanLII)R. v. Aleck2008 BCSC 1096 (CanLII).  As stated earlier in these Reasons, I find that the HFN did, overall, conduct themselves reasonably in this process.  They participated willingly, and showed readiness to compromise in that they were open to forms of accommodation that did not involve the Removed Lands, while continuing to insist that they had lost something significant when the Removal Decision was made.  The fact that they continued to press their claims does not mean that they were being unreasonable.  They were by and large consistent in their position, though the delivery of the judgment in Tsilhqot’in Nation led to a hardening of their views, with a new insistence on co-management.  

[252]       Reasonableness, not perfection, is required, of the Crown in its efforts to consult with and accommodate aboriginal peoples when it makes decisions potentially affecting their claimed aboriginal rights.  Here, I find that the Crown’s efforts did not fall within a range of reasonably defensible approaches in the context of the 2005 Decision and the history and relationship between the parties.

[253]       I conclude that the Crown has not yet fulfilled its duty with respect to the Removal Decision.  

IV.      WHAT REMEDY SHOULD BE GRANTED?

[254]       The petitioners initially sought an order that a Settlement Conference Judge or independent mediator be appointed to guide the parties with respect to completion of the consultation and accommodation regarding the Removal Decision.  Mr. Grant modified that position during submissions, and advised the Court that the petitioners seek the appointment of an independent mediator who would be empowered to set timelines, direct the exchange of information and report to the court if there are problems.  The petitioners sought an order directing the parties to a number of issues they say have not yet been addressed [Sayers Affidavit #9] and setting a deadline of six months for completion of consultation, but permitting the parties to return to court if necessary to seek an extension of that time.

[255]       I find that an order is warranted.  A mediator will be appointed by agreement of the parties or, failing agreement, the parties may apply to the Court with respect to the naming of the mediator.  The fees and expenses of the mediatior will be borne by the Crown.  The mediator will be empowered to set timelines, direct the exchange of information and report to the court if there are difficulties.  

[256]       The mediation will address appropriate accommodation for the effects of the Removal Decision on HFN asserted aboriginal rights on their claimed territory, both with respect to Crown land and the Removed Lands.  The parties will specifically consider ways of including the Hupacasath in discussions with Island Timberlands regarding ongoing environmental, watershed and wildlife protection on the Removed Lands.  They will address possible measures to assist the HFN in obtaining the co-operation of the landowner to enable the HFN to exercise ongoing access to their sacred sites and areas where they have traditionally gathered medicinal plants on the Removed Lands, and possible measures that will enable such access on the Crown lands within the asserted traditional territory.  In that regard, they will address ways of respecting HFN cultural practices while providing information sufficiently specific for the landowner’s and the Crown’s needs.  They will consider possible accommodation from resources on the Crown lands for the access to cedar, other plants and wildlife previously available to the HFN on the Removed Lands.  They will consider possible measures to provide ongoing HFN access by land to their reserves.  They will consider possible accommodation from resources on the Crown lands for the overall impact of the Removal Decision on the HFN asserted traditional territory, including both the Removed Lands and Crown land.

[257]       If it would be of assistance to the parties, they may return to court to address the definition of the issues they are required to address in the mediation, or for further clarification as to the Crown’s duty of consultation.  If consultation and accommodation have not been accomplished through mediation after six months from the date of entry of this Order, the parties may return to Court.  I will remain seized of this matter.

[258]       The petitioners also sought an order that the conditions in paragraph 8 of the 2005 Order, that made certain terms of the Minister’s Removal Decision enforceable as a Court Order, should be left in place for a further six months (or, more accurately, re-imposed for a further six month period).

[259]       There is a serious question whether this Court has jurisdiction to make such an order because the nature and length of court-imposed restrictions on Island Timberlands was decided in 2005 between the same parties and in the same proceeding.  The order was entered and no party appealed.  Island Timberlands and the Crown argued that the matter is res judicata.  Further, there are strong policy considerations in favour of respecting the finality of such determinations.

[260]       However, I have concluded that it is unnecessary to address the question of jurisdiction because, even if I have jurisdiction to make an order continuing or re-imposing the conditions in paragraph 8 of the 2005 Order, I would not exercise my discretion to do so in these circumstances.

[261]       It is true that another six months is not a lengthy period of time, and that significant changes could come to the Removed Lands during such a period.  On the other hand, restrictions on private landowners flowing from the Crown’s duty to seek reconciliation with aboriginal peoples have very rarely been imposed.  As stated in the 2005 Decision, the unique circumstances of this case then warranted a time-limited order affecting the privately-owned lands.  

[262]       The Supreme Court of Canada has held that a duty to seek reconciliation with aboriginal peoples falls on the Crown, and does not fall on parties other than the Crown. To re-impose the conditions in paragraph 8 would be inconsistent with that principle.  

[263]       However, both Island Timberlands and the Crown take the position that the Minister’s conditions in the Removal Decision remain in effect.  Further, Island Timberlands through its counsel, Mr. Isaac, has stated to this Court that it will continue to permit HFN members access to the Removed Lands so long as their operations and safety considerations permit.  

[264]       I note as well, and rely upon, the statements made by Bill Waugh of Island Timberlands in his affidavit of March 10, 2008, regarding the company’s intentions, including the company’s commitments :  “…to consider information about sacred sites provided by the HFN in planning its harvest activities on the Removed Lands, where this is provided in a useful form…”; to continue to comply with the requirements of the Heritage Conservation Act and to have Archaeological Impact Assessments conducted by third party consultants prior to harvesting; to permit HFN to access the Removed Lands in order to conduct their own reviews of sacred sites, or to carry out their traditional practices; to follow “the same rules regarding public and First Nations access to the Removed Lands as were used by Weyerhaeuser when the Removed Lands were administered within TFL 44”; and to abide by the assurance that “if [HFN] ability to access the Removed Lands is impeded by a locked gate, Island Timberlands will issue them a key once they sign the required form.”

[265]       In these circumstances, I decline to re-impose the conditions set out in paragraph 8 of the 2005 Order.  However, I do order that, during the period of the further consultation between the Crown and HFN (whether it is six months or longer), if there is any change in Island Timberlands’s position (from the position described by counsel to the Court or by Mr. Waugh in his affidavit) as to the ongoing effectiveness of the conditions in the Minister’s letter, as to HFN access to the Removed Lands or as to other matters, Island Timberlands will so advise the petitioners and the Crown, and the parties will be at liberty to return to court. 

[266]       Mr. Grant on behalf of the petitioners submitted that costs should be awarded to the petitioners at Scale 5 (I assume that he intended Scale C) in any event of the cause because the petitioners were required to return for two further days of hearing and to prepare a complete new response to the more detailed argument that the Court requested the Crown to provide.  

[267]       The Crown made no submissions as to costs.  Island Timberlands asked for costs in its written argument but counsel did not address the matter in his oral submissions.  

[268]       This matter, I find, was of more than ordinary difficulty, and the petitioners were substantially successful.  I find that an appropriate order in these circumstances is that the petitioners will have their costs against the Crown at Scale C.  

[269]       If Island Timberlands wishes to address the matter of costs, it may do so through written submissions, and the other parties will have two weeks from receipt of those submissions to file their reply.

“The Honourable Madam Justice Lynn Smith”

 

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