IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Nuchatlaht v. British Columbia,
	2018 BCSC 796

Date: 20180514

Docket: S170606

Registry: Vancouver

Between:

The Nuchatlaht and Chief Walter Michael,
on his own behalf and on behalf of all of the members of the Nuchatlaht

Plaintiffs

And

Her Majesty the Queen in Right of the Province of British Columbia
and The Attorney General of Canada and
Western Forest Products Inc.

Defendants

Before: The Honourable Mr. Justice Myers

Corrected Reasons:  These Reasons for Judgment were corrected at
para. 12 on May 17, 2018

Reasons for Judgment – Province's Demand for Particulars

Counsel for the Plaintiff:	Jack Woodward, Q.C. Mark G. Underhill
Counsel for British Columbia:	Jeffrey B. Echols Joel J. Oliphant
Counsel for Attorney General (Canada):	Ainslie M.L. Harvey
Counsel for Western Forest Products Inc.	Geoffrey Plant, Q.C. Selina Gyawali
Place and Dates of Hearing:	Vancouver, B.C. April 23–24, 2018
Place and Date of Judgment:	Vancouver, B.C. May 14, 2018

[1]      The plaintiffs claim aboriginal title to a portion of Nootka Island.  The Province applies for particulars.

[2]      The Further Amended Notice of Civil Claim is a bare-bones pleading:

· Paragraphs 1 to 5.1 set out the parties.  The plaintiffs are described as an aboriginal community "descended from and a continuation of the Nuchatlaht Aboriginal community that existed in 1846 in what is now British Columbia."  The pleading states that the Nuchatlaht is governed in accordance with Aboriginal custom, pursuant to which Walter Michael is the Chief.

· The pleading attaches a map of the claimed territory and alleges that the Nuchatlaht exclusively occupied the claimed area in 1846.

· The relief sought are declarations that the plaintiffs have aboriginal title to the claim area and that the Forest Act, R.S.B.C. 1996 c. 157 and Park Act, R.S.B.C. 1996, c. 344, no longer apply to the area.

· The legal basis for the claim is the test for aboriginal title set out in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44.

[3]      The Province served its initial demand for particulars on August 4, 2017.  The plaintiffs responded to that on August 4.  On January 31, 2018, the Province served a further demand for particulars.  The plaintiffs have not responded to that.  The Province has set out a table showing the particulars and the responses or lack thereof.  I attach it as Appendix A.

[4]      The elements to be proved for a claim of aboriginal title are set out in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010:

143      In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.

[5]      There is disagreement as to the date of sovereignty for this claim.  The Province says it is as early as 1790, the plaintiffs say it is 1846.  I do not think anything on hinges on that for the purposes of this application.

[6]      Cansulex v. Perry, [1982] B.C.J. No 369 (C.A.), is almost universally cited in cases concerning particulars.  The Court stated the purpose of particulars at para. 15:

(i) To inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(ii) To prevent the other side from being taken by surprise at the trial;

(iii) To enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(iv) To limit the generality of pleadings;

(v) To limit and decide the issues to be tried, and as to which discovery is required, and

(vi) To tie the hands of the party so that he cannot without leave go into any matters not included.

[7]      There is a distinction between material facts, particulars and evidence.  Voith J. referred to this in Sahyoun v. Ho, 2013 BCSC 1143, a case involving the sufficiency of pleadings:

iii)        The Requirement to Identify Material Facts

[24]      Though the Rules do not define what constitutes a "material fact", that concept is well defined in the case law.

[25]      A material fact is one that is essential in order to formulate a complete cause of action. If a material fact is omitted, a cause of action is not effectively pled. The foregoing definition of "material fact" was specifically approved by the Court of Appeal in Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500 at para. 9, 61 B.C.L.R. (4th) 241, and in Young v. Borzoni, 2007 BCCA 16 at para. 20, 64 B.C.L.R. (4th) 157. That same definition was also referred to and applied by judges of this court in Budgell v. British Columbia, 2007 BCSC 991 at para. 8, and in Micka v. Oliver & District Community Economic Development Society, 2008 BCSC 1623 at para. 9.

[26]      More recently, in Jones v. Donaghey, 2011 BCCA 6, 96 C.P.C. (6th) 10, the court explained that a material fact is one that, when resolved, will have legal consequences as between the parties to the dispute. At para. 18, the court provided that "a material fact is the ultimate fact, sometimes called 'ultimate issue', to the proof of which evidence is directed. It is the last in a series or progression of facts. It is the fact put 'in issue' by the pleadings. Facts that tend to prove the fact in issue, or to prove another fact that tends to prove the fact in issue, are evidentiary or 'relevant' facts". See also British Columbia Teachers' Federation v. British Columbia, 2012 BCSC 1722 at paras. 15-17 [BCTF].

iv)        Particulars

[27]    At the same time, though the distinction can be difficult to apply, material facts are not particulars. In McLachlin and Taylor at 3-6, the authors state:

There is a distinction between material facts and particulars. A material fact is one that is essential in order to formulate a complete cause of action. If a material fact is omitted, a cause of action is not effectively pleaded. Particulars, on the other hand, are intended to provide the defendant with sufficient detail to inform him or her of the case he or she has to meet. Particulars are provided to disclose what the pleader intends to prove.

[28]      Rule 3-7(18), which is also relevant in this case, states:

If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading.

v)         No Evidence

[29]    Rule 3-7(1) confirms that "[a] pleading must not contain the evidence by which the facts alleged in it are to be proved".

[8]      In Hoy v. Medtronic, 2004 BCSC 40, D. Smith J. (as she then was) discussed the distinction between material facts and evidence, beginning at para. 43.  After quoting extensively from Premakumaran v. Canada (2003), 28 Imm. L.R. (3d) 98, 2003 F.C.T. 635 (T.D.), she stated:

45        The important distinction to be noted from this passage is that particulars are provided to disclose what one party intends to prove against the other; how the party intends to prove his case is a matter of evidence.

[9]      I agree with Voith J. (at para. 27) that the distinction between particulars and material facts can in some instances be difficult to apply.  One may say the same for the difference between particulars and evidence.  This is particularly so in the context of aboriginal title claims, which involve extensive historic facts that are often proved by expert evidence.

[10]    However, the court has required particulars in several aboriginal title and aboriginal rights cases.  In Cowichan Tribes v. Canada (Attorney General), 2016 BCSC 420, Power J. noted the applicability of the Court's comments in Cansulex to aboriginal title cases.  She referred, at para. 16, to Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, at para. 43, where the Court said:

Pleadings not only serve to define the issues but give the opposing parties fair notice of the case to meet, provide the boundaries and context for effective pre-trial case management, define the extent of disclosure required, and set the parameters of expert opinion. Clear pleadings minimize wasted time and may enhance prospects for settlement.

Power J. added:

[17]      The court emphasized the fairness available in civil actions due to civil litigation's procedural safeguards, including pleadings, which are meant to bring about a "full hearing that is fair to all stakeholders" (para. 12).

[11]    Power J. ordered the plaintiffs to furnish particulars with respect to their collective identity including facts on which the plaintiffs intended to rely in order identify the representative plaintiffs as descendants of the Cowichan Nation.  In reaching her conclusion, she noted:

[54]      Overall, it is my view that Lax Kw'alaams SCC is a reminder that aboriginal rights litigation should occur within a procedure that is "fair to all the stakeholders," aboriginal and non-aboriginal alike (para. 12). Other First Nations may well see need to defend the claim, in addition to both Crowns and the City of Richmond. I also note that we can expect this trial to be relatively long and complex, given the issues and evidence required.

[12]    Most recently, Choi J. ordered the plaintiffs to deliver extensive particulars in advance of an injunction application in a treaty violation case with respect to the Site C dam: West Moberly First Nations v. British Columbia, 2018 BCSC 730.  She noted:

[49]      In cases such as this one where an application for particulars is made in the context of an Aboriginal rights claim or treaty rights claim, special considerations arise. I am cognizant of the guidance from the Supreme Court of Canada that achieving reconciliation requires taking a functional approach, and giving weight to the perspectives of Aboriginal peoples: see Tsilhqot'in First Nations at para. 20; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at paras. 81-82. In short, because of the profound importance of reconciliation to all the peoples of Canada, it is wrong for this Court to take a picayune and overly technical approach to Aboriginal rights pleadings.

[50]      The Supreme Court of Canada has also made clear that Aboriginal rights litigation in Canada by now requires precision on the part of all litigants. As stated by Binnie J. in Lax Kw'alaams at para. 12:

[12]      At this point in the evolution of Aboriginal rights litigation, the contending parties are generally well resourced and represented by experienced counsel. Litigation is invariably preceded by extensive historical research, disclosure, and negotiation. If negotiations fail, the rules of pleading and trial practice are well understood. Tactical decisions are made on all sides. It is true, of course, that Aboriginal law has as its fundamental objective the reconciliation of Canada's Aboriginal and non-Aboriginal communities, and that the special relationship that exists between the Crown and Aboriginal peoples has no equivalent to the usual courtroom antagonism of warring commercial entities. Nevertheless, Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic well-being of both. The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders.

[51]      I find this statement to be apposite to the applications before me. The plaintiffs in this case are well represented and, especially in light of the upcoming interim injunction application, the issues are weighty.

[52]      For the reasons that follow, I accept that the deficiencies identified by the defendants are not merely "technical", but rather go to the defendants' ability to know the case they need to meet. I also accept that, because of the fast approaching injunction application, it is not sufficient to order particulars at a later stage in the proceedings. It is critical to the defendants and the court to know with more precision, the plaintiffs' claim because of the magnitude of what is at stake on either side. The interim injunction may dispose of the notice of civil claim; indeed, counsel for BC Hydro argued that the case may not actually proceed to trial.

[13]    The particulars Choi J. ordered to be provided concerned:

· the plaintiffs' traditional territory

· the species hunted and fished by the plaintiffs

· reciprocal rights and obligations alleged by the plaintiffs to have been created by the treaty

· the solemn promises, guarantees and obligations alleged by the plaintiffs

· the resources and places alleged to have unique and central significance to the plaintiffs

· traditional practices with respect to the consumption of fish

· who the plaintiffs meant by reference to particular ancestors

· the Peace River area's unique and central significance to the plaintiffs

· the intended purpose of the treaty

· the defendants' constitutional obligations to the plaintiffs

· the cumulative impacts of the treaty breaches alleged by the plaintiffs

[14]    However, at para. 95, Choi J. declined to order some of the requested particulars on the basis that they concerned broad historical context, following the judgment of Bracken J. in Sam v. British Columbia, 2014 BCSC 591, in which he stated:

[21]      The words "context" and "historical context" are very broad and general terms.  To properly reply to the demand for particulars is a difficult if not impossible task at this stage of the proceedings.  All of the pleadings in this case obviously deal with historical matters and para. 23 might more appropriately be referred to as legal argument rather than a pleading of material facts or conclusion of law.  While "context" and "historical context" are very likely going to be relevant issues for examination in the course of this trial, I do not consider those terms to be an appropriate subject of a demand for particulars.  British Columbia is not required to answer that demand.

[15]    The authorities I have reviewed show that, as in other cases, proper particulars must be provided in an aboriginal title case.  Obviously, this means particulars of the facts intended to be relied on by the plaintiff to establish title.  Evidence and facts regarding context do not have to be supplied.  Given the historical nature of an aboriginal title claim, the distinction between facts and evidence may be difficult to be applied but that does not mean that no particulars need be given.

[16]    Turning back to the case at bar, as I noted above, the Notice of Civil Claim is a bare-bones pleading.  It is essentially what would have been an endorsement on the now defunct writ of summons.  Using the terminology of some of the cases cited above, it asserts the ultimate facts required to establish a native title claim.  It provides no facts upon which the plaintiffs propose to rely; it essentially states the legal requirements for aboriginal title as conclusions.

[17]    This has created an unfortunate dynamic.  Because the Notice of Civil Claim is so devoid of facts, the Province's demand effectively asks for particulars of what the Province says the plaintiffs will have to assert in order to establish their claim; the plaintiffs say many of the requests are irrelevant to their claim.  This situation skews the function of particulars.  A plaintiff is entitled to present its case in the manner it sees fit and succeed or fail on that basis.  If a defendant wants to obtain facts that are not part of what a plaintiff intends to rely on, it has other mechanisms available to it.  What is occurring in this application is shadow-boxing.  I am not casting blame on the Province because this is, at least in part, the inevitable result of the Notice of Civil Claim.

[18]    Plaintiffs' counsel has reiterated several times that the plaintiffs are anxious to bring this matter to trial.  The delivery of the particulars will assist in that goal being met; the bare-bones pleading does not.  I am cognizant of the fact that a schedule has been set for delivery of the plaintiffs' expert reports within six months, and delivery of the defendants' reports six months after that.  It therefore may be that the particulars will be supplemented by the plaintiffs' reports.  Nevertheless, the plaintiffs should provide particulars that are available now.

[19]    That said, it is not up to the court to construct a proper demand for particulars in this context.  My order will therefore be broad: within 60 days, the plaintiffs are to provide particulars of the material facts on which they intend to rely to prove their claim.  More specifically, but without limiting the scope of the particulars, if they intend to rely on any of the subject areas canvassed in the Province's demand, they are to provide the facts related to that.

[20]    To provide some further guidance, I will say that many of the plaintiffs' objections based on the distinction between facts and evidence represent too narrow a view of material facts.  Further, the Province's potential knowledge of facts do not mean they ought not to be particularised.

[21]    This far I have been dealing with the Notice of Civil Claim.  The Province also asks for particulars of the plaintiffs' Reply (demands 4 and 5).  These stand in a different light.  I do not think these demands are well-founded because they do ask for evidence and not facts.

[22]    Finally, I do not accede to the Province's request that I make an order prohibiting the plaintiffs from relying at the trial on non-particularised facts.  It would be imprudent and unreasonable to make such an order in a complex and historical case of this nature.

"E.M. MYERS, J."

Schedule A

Updated Demand for Particulars #1
With respect to Part 1, paragraph 1, provide particulars of the statement that the Nuchatlaht is an "Aboriginal community", including: (a) the Plaintiffs' definition of "Aboriginal community"; (b) the material facts relied upon by the Plaintiffs to identify the Nuchatlaht as an " Aboriginal community"; (c) the date on which the Nuchatlaht became an "Aboriginal community" and whether and how the community's membership, number of members, and membership criteria have changed since its inception; and (d) the location of the Nuchatlaht Aboriginal community today and since the inception of the community.	· No response to updated demand · Responses to July 28, 2017 Demand: In response to paragraph 1 of British Columbia's Demand for Particulars, the Plaintiff uses the words "community of Aboriginal people" as those words are used by the late Vickers, J. of the British Columbia Supreme Court in Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 at paragraphs 437 and following. (a) The Plaintiff does not have a definition, but relies on the words used by Vickers, J. (above). (b) The Plaintiff says that this is a "demand for the evidentiary basis of the plaintiffs' case" which is not a proper function of Particulars. David et al. v. Her Majesty the Queen in Right of Canada et al., 2004 BCSC 1306 at paragraph 40. (c) The Plaintiff says that this is not a proper demand for particulars because it is a request for evidence, not a request for clarification of the pleadings. Further, the request is for information that is not material to the pleadings. Notwithstanding the Plaintiff's position that this information is not material to the case, such information is within the knowledge of the Defendant British Columbia and can be found on British Columbia's web site: http://www2.gov.bc.ca/gov/content/environment/natural-resourcestewardship/ consulting-with-first-nations/first-nationsnegotiations/ first-nations-a-z-listing/nuchatlaht-first-nation (d)        The Plaintiff says that this is not a proper demand for particulars because the request is for information that is not material to the pleadings. (e) The Plaintiff says that this is not a proper demand for particulars because the residence of the Nuchatlaht members is not material to the pleadings.
Updated Demand for Particulars #2
With respect to Part 1, paragraph 5.1, provide particulars of the statement that Nuchatlaht is descended from and a continuation of  the Nuchatlaht Aboriginal Community that existed in 1846, including: (a) the manner by which the Nuchatlaht in is a continuation of the Nuchatlaht Aboriginal community that existed in 1846; (b) the manner by which the present-day Nuchatlaht is descended from the Nuchatlaht in 1846; (c) any distinctions between the Nuchatlaht in 1846 and the present-day Nuchatlaht; (d) the identity and location of any groups or sub-communities comprising the Nuchatlaht in 1846; and (e) the identity and location of any groups or sub-communities that joined the Nuchatlaht post-1846 and when those additions occurred.	· No response to updated demand · Responses to July 28, 2017 Demand: In response to the whole of Paragraph 2 of British Columbia's Demand for Particulars, the Plaintiff says that this is a "demand for the evidentiary basis of the plaintiffs' case" which is not a proper function of Particulars. David et al. v. Her Majesty the Queen in Right of Canada et al., 2004 BCSC 1306 at paragraph 40. In response to paragraph 2(a), the Plaintiff says that this is not a proper demand for particulars because the request is for information that is not material to the pleadings.
Updated Demand for Particulars #3
With respect to Part 1, paragraph 2, provide particulars of the Aboriginal custom by which the Nuchatlaht is governed, including: (a) the material facts relied on by the Plaintiffs to say that the Nuchatlaht is governed in accordance with Aboriginal custom; (b) the inception of the Nuchatlaht governance custom and any changes in the custom since its inception; (c) the relationship between the Nuchatlaht governance custom and the Indian Act, RSC 1985, c 1-5; and (d) the historical and present-day relationship between the Nuchatlaht governance custom and the governance of other members of the Nuu-Chah-Nulth-Tribal Council.	· No response to updated demand · Responses to July 28, 2017 Demand: In response to the whole of Paragraph 3 of British Columbia's Demand for Particulars, the Plaintiff says that this is a "demand for the evidentiary basis of the plaintiffs' case" which is not a proper function of Particulars. David et al. v. Her Majesty the Queen in Right of Canada et al., 2004 BCSC 1306 at paragraph 40. (a) In response to paragraph 3(a), the Plaintiff says that this is a request for evidence. (b) In response to paragraph 3(b), the Plaintiff says that this is not relevant or material to the case. (c) In response to paragraph 3(c), the Plaintiff says that the relevant provision of the Indian Act is s. 2 (1) "council of the band". (d) In response to paragraph 3(d), the Plaintiff says that this is not relevant or material to the case.
Updated Demand for Particulars #4
With respect to paragraphs 1, 2, 3, 4 and 5 of the Plaintiffs' reply to the response to civil claim of the Province and Canada, provide particulars of the assertion that there are no other aboriginal groups claiming aboriginal rights or title to the Claim Area, including the assertion that the geographical coordinates of the Claim Area and its boundaries do not overlap in any way with areas that are the subject of claims to aboriginal title, aboriginal rights, or traditional territory of other First Nations.	· Amended Reply February 27, 2018 · Responses to July 28, 2017 Demand: In response to the whole of paragraph 4 of British Columbia's Demand for Particulars, the Plaintiff says that this is a "demand for the evidentiary basis of the plaintiffs' case" which is not a proper function of Particulars. David et al. v. Her Majesty the Queen in Right of Canada et al., 2004 BCSC 1306 at paragraph 40.
Updated Demand for Particulars #5
With respect to paragraph 1 of the Plaintiffs' reply to the response to civil claim of the Province and of Canada, provide particulars of the notice of this proceeding given to the Ehattesaht and the Mowachaht/Muchalaht First Nations.	· Amended Reply filed February 27, 2018: o the Plaintiffs deleted paragraph 1 of their original reply · Responses to July 28, 2017 Demand: In response to the whole of Paragraph 5 of British Columbia's Demand for Particulars, the Plaintiff says that this is not a material fact and is not relevant to the case, and furthermore, if the Plaintiff is not correct about that, this is a "demand for the evidentiary basis of the plaintiffs' case" which is not a proper function of Particulars. David et al. v. Her Majesty the Queen in Right of Canada et al., 2004 BCSC 1306 at paragraph 40.
Updated Demand for Particulars #6
With respect to Part 1, paragraph 6, and Appendix C of the Claim, and paragraph 3 of the Plaintiffs' reply filed on May 19, 2017, provide particulars of the Claim Area described in the Claim, including: (a) the "methodology to revise Claim Area boundary, 2017-12-15.doxc" as referenced in Appendix C as given to the defendants by e-mail dated January 23, 2018 from Plaintiffs' counsel Mark Underhill, and specifically; i. the material facts relied on by the Plaintiffs to assert that no other First Nations currently have or assert rights in the Claim Area, and that no other First Nations had rights in the Claim Area in 1846; ii. what the Plaintiffs' mean by the phrase "initial Claim Area";	· Partial responses in: Amended Notice of Civil Claim, Appendix C; and "Methodology to Develop Nuchatlaht Claim Area from Various Sources" attached to e-mail from Plaintiffs' counsel dated January 23, 2018 (Affidavit #5 of Diane Hill, Exhibit "A") · No response to updated demand · Response to July 28, 2017 Demand In response to the whole of Paragraph 6 of British Columbia's Demand for Particulars, the Plaintiff says that pleadings are clear, and already particularized in the Notice of Civil Claim. With respect to paragraph 6(a) the boundary of the Claim Area on Nootka Island was chosen specifically to avoid any overlap with the Mowachaht/Mutchalaht claim. Paragraph 6(b) contains a demand for matters that are not material to the case at bar.
Updated Demand for Particulars #7
With respect to Part 1, paragraph 7, provide particulars of the claim that the Nuchatlaht exclusively occupied the Claim Area in 1846, including: (a) the material facts relied upon for the statement that Nuchatlaht exclusively occupied the Claim Area; (b) the Nuchatlaht's intention and capacity to exclude all others from the Claim Area; (c) the methods used and actions taken by the Nuchatlaht to exclude all others from the Claim Area; (d) whether the Nuchatlaht relies upon present occupation of the Claim Area to prove its claim to aboriginal title and, if so, the particulars of such occupation; (e) whether the Nuchatlaht historically used or occupied the Claim Area, or any portions thereof, in a nomadic or semi-nomadic fashion or by way of seasonal rounds and, if so, the particulars of such use or occupation; (f) the location and description of any Nuchatlaht village sites and dwellings in the Claim Area in or around 1846; and (g) whether there are any historical customary laws or traditions regarding Nuchatlaht use and occupation of land and the particulars of those laws or traditions; and (h) the material facts that are relevant to the year 1846, and specifically to the references to this date in the Claim.	· No response to updated demand · Responses to July 28, 2017 Demand In response to the whole of Paragraph 7 of British Columbia's Demand for Particulars, the Plaintiff says that this is a "demand for the evidentiary basis of the plaintiffs' case" which is not a proper function of Particulars. David et al. v. Her Majesty the Queen in Right of Canada et al., 2004 BCSC 1306 at paragraph 40. Furthermore, paragraph 7 of the Notice of Civil Claim conforms with the direction of the Supreme Court of Canada in Tsilhqot'in Nation v. British Columbia, (2014) 2 SCR 257, 2014 SCC 44, paragraphs 19 through 26.
Updated Demand for Particulars #8
With respect to Part 2, paragraph 1, provide particulars of the basis upon which Chief Walter Michael, as a separate and individual plaintiff, claims Aboriginal title.	· No response
Updated Demand for Particulars #9
With respect to Part 2, paragraphs 1, 2 and 3, and Part 3, paragraphs 2 and 3, provide particulars of the relief sought as against the defendant Western Forest Products Inc. and any other private parties with legal interests in the Claim Area whether pursuant to statute or otherwise.	· No response