2005 BCCA 128 Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management)

Before:	The Honourable Madam Justice Southin
	The Honourable Mr. Justice Hall
	The Honourable Mr. Justice Lowry

M. A. Morellato and J. M. Spencer	Counsel for the Appellant
L. J. Mrozinski and P. E. Yearwood	Counsel for the Respondents other than the University
J. P. Taylor, Q.C. and R. W. Sieg	Counsel for the Respondent, University of British Columbia
A. C. Pape, R. B. Salter and B. R. Zoe	Counsel for the Intervenor, First Nations Summit
Place and Date of Hearing:	Vancouver, British Columbia
21st, 22nd and 23rd September, 2004
Place and Date of Judgment:	Vancouver, British Columbia
7th March, 2005

Written Reasons concurring in allowing the appeal by:

The Honourable Madam Justice Southin

Written Reasons by:

The Honourable Mr. Justice Hall (P. 43, para. 75)

Concurring Reasons by:

The Honourable Mr. Justice Lowry (P. 60, para. 103)

Reasons for Judgment of the Honourable Madam Justice Southin:

[1] The issue in this appeal is whether Her Majesty the Queen in right of British Columbia, represented here by the respondents other than the respondent, University of British Columbia, by agreeing to convey certain lands adjacent to but not within the City of Vancouver, known as the University Golf Course, to the University, has breached the duty to consult and accommodate the appellant, and, if so, what remedy should be given for that breach.

[2] At the conclusion of the hearing in this Court, the Court said it would not deliver judgment until the Supreme Court of Canada delivered judgment in the cases known as Haida Nation v. British Columbia (Minister of Forests) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), in both of which the scope of the duty to consult and accommodate was the central issue.

[3] Judgment in those cases having been delivered (2004 SCC 73 and 2004 SCC 74), counsel have made further submissions which we have considered.

[4] Before addressing the substance of this appeal, I propose to digress into history because this year is the centenary of the birth of the Honourable Louis-Philippe Pigeon who, from 21st September, 1967, to 8th February, 1980, was a judge of the Supreme Court of Canada.

[5] Had his judgment in the celebrated case of Calder v. British Columbia (Attorney-General), [1973] S.C.R. 313 at 422, not turned on a point which apparently neither side in the Supreme Court of Canada sought to be decided, it is probable that this action and others like it would have no possibility of success.

[6] It will be remembered that seven judges sat on Calder, in which the issue was a claim of aboriginal title by the Nisga'a Tribal Council and four Indian bands to a substantial part of north-western British Columbia. Three judges, Martland, Judson and Ritchie JJ., held that aboriginal title was extinguished in British Columbia, and three judges, Hall, Spence and Laskin JJ., that it was not. Had Pigeon J. adhered to the judgment of the former, then, if after the proclamation of the Constitution Act, 1982, the Supreme Court of Canada had reversed that decision and held that aboriginal title was not extinguished, the country would have been shaken to its very foundations. If, however, Pigeon J. had adhered to the judgment of the latter, British Columbia - which from the earliest post-confederation days had asserted that aboriginal title was extinguished (see my judgment in Skeetchestn Indian Band v. British Columbia (Registrar of Land Titles) (2000), 80 B.C.L.R. (3d) 233 at 257-259, 2000 BCCA 525) - would have pressed the federal government to join with it in extinguishing such title and, if British Columbia had failed, the Legislature, in light of the adamant position of the then Ministry, which had a majority, that there were no unextinguished aboriginal rights, would not have consented to the repatriation of the Constitution if the Act contained what is now section 35.

[7] Thus did the decision of one judge – and a judge bred not in the common law but in the civil law – to follow his own star become pivotal in the history of this Province.

[8] I come now to the case at bar. As I propose to address hereafter not only the alleged breach but also the procedure for raising such a breach, I must set out at some length the proceedings below.

[9] The appeal is from the judgment of the Honourable Mr. Justice Warren pronounced the 16th April, 2004, dismissing the petition of the appellant for Judicial Review of a decision of the Minister of Sustainable Resource Management authorizing sale of the lands and for an injunction restraining sale pending the determination of the appellant's claim of aboriginal title to the lands in issue. [I have begun the words "Judicial Review" with upper case letters for the reason I alluded to in my judgment in Cimolai v. Children's and Women's Health Centre of British Columbia (2003), 228 D.L.R. (4th) 420, 14 B.C.L.R. (4th) 199, 2003 BCCA 338 ¶ 72.]

[10] In its further amended petition, the appellant sought, in part:

1. an order quashing the decision of the Respondents, Land and Water British Columbia Inc. ("LWBC"), and the Minister of Sustainable Resource Management (the "Minister"), to proceed with the sale of land described as Blocks A and B, District Lot 3900, Group 1, NWD, Plan 20266, Parcel Identifiers 006-707-289 and 006-707-483, otherwise known as the site of the University of British Columbia Golf Course (the "Golf Course Land");

2. an order quashing the Order of the Lieutenant Governor in Council, Order-in-Council No. 0131/03 dated February 14, 2003, ordering that:

(a) the Minister may survey, resurvey and subdivide any or all of the Golf Course Land into lots, blocks, streets, lanes, boulevards, recreational courts, parks and other areas;

(b) the Minister may advertise and otherwise provide for the disposition by sale or lease, and sell or lease, any or all of the Golf Course Land in the manner, at the prices and on the terms and conditions that the Minister considers proper; and

(the "Order-in-Council").

3. an order prohibiting LWBC and the Minister, and representatives of each, from authorizing the disposition of the Golf Course Land until such time as the Musqueam Indian Band ("Musqueam") has been consulted in good faith concerning Musqueam's aboriginal rights and title in respect of the Golf Course Land and workable accommodations of Musqueam's aboriginal and treaty interests in the Golf Course Land have been made;

4. a declaration that LWBC and the Minister have fiduciary and constitutional duties to consult with Musqueam in good faith concerning any disposition of the Golf Course Land, prior to any disposition of the Golf Course Land, and to make workable accommodations of the aboriginal and treaty interests of Musqueam in respect of the Golf Course Land prior to any such disposition;

5. a declaration that LWBC and the Minister have not satisfied their fiduciary and constitutional duties to consult with Musqueam in good faith concerning the disposition of the Golf Course Land or made workable accommodations of Musqueam's aboriginal and treaty interests in the Golf Course Land;

* * *

7. an injunction restraining LWBC and the Minister, by their servants, agents or otherwise, from selling, conveying, transferring or otherwise disposing of the Golf Course Land until such time as an interim measures agreement or a land protection agreement has been finalized among Musqueam, British Columbia and Canada for purposes of protecting against the further alienation of Crown-held land in the Musqueam claim area;

8. a declaration that the Musqueam are entitled to the negotiation of an interim measures agreement or a land protection agreement with British Columbia and Canada for purposes of protecting against the further alienation of Crown-held land in the Musqueam claim area;

* * *

12. an interlocutory order enjoining and restraining the LWBC and the Minister, by their servants, agents or otherwise, from selling, conveying, transferring or otherwise disposing of the Golf Course Land pending the hearing and determination of this Petition;

[11] The Order-in-Council impugned in these proceedings is in these terms:

Order in Council No. 0131, Approved and Ordered FEB 14 2003

"Administrator"

Executive Council Chambers, Victoria

On the recommendation of the undersigned, the Administrator, by and with the advice and consent of the Executive Council, orders that:

(a) the Minister of Sustainable Resource Management may survey, resurvey and subdivide into lots, blocks, streets, lanes, boulevards, recreational courts, parks and other areas any or all of the lands that are held by the government within:

Block A District Lot 3900 Plan 20266, and

Block B District Lot 3900 Plan 20266

(collectively the "Land");

(b) the Minister of Sustainable Resource Management may advertise and otherwise provide for the disposition by sale or lease, and sell or lease, any or all the Land in the manner, at the prices and on the terms and conditions the minister considers proper; and

(c) the Minister of Sustainable Resource Management may dispose of the Land by Crown grant to The University of British Columbia.

"Minister of Sustainable "Presiding Member of the

Resource Management" Executive Council"

_______________________________________________________

(This part is for administrative purposes only and is not part of the Order.)

Authority under which Order is made:

Act and section: University Endowment Land Act, section 2(1)(a) and (d); Land Act, section 51 and 106(3)

Other (specify):

[12] These are the statutory provisions noted as "Authority under which Order is made":

University Endowment Land Act, R.S.B.C. 1996, c. 469 -

2 (1) Subject to the regulations [and with the approval of the Lieutenant Governor in Council], the minister may do one or more of the following:

(a) survey, resurvey and subdivide into lots, blocks, streets, lanes, boulevards, recreational courts, parks and other areas all lands that are held by the government within the University Endowment Land;

* * *

(d) advertise and otherwise provide for the disposition by sale or lease, and sell or lease, any of the land so subdivided into lots or blocks and any of the land subdivided under the British Columbia University Loan Act, 1920, S.B.C. 1920, c. 49, in the manner, at the prices and on the terms and conditions the minister considers proper;

[The phrase in brackets was removed by SBC 2003-66-57.]

Land Act, R.S.B.C. 1996, c. 245 –

51 (1) Despite any other provision of this Act, Crown land may, with the approval of the Lieutenant Governor in Council and subject to the terms, reservations and restrictions that the Lieutenant Governor in Council considers advisable, be disposed of by Crown grant under this Act, free or otherwise, to a government corporation, municipality, regional district, hospital board, university, college, school board, francophone education authority as defined in the School Act or other government related body or to the Greater Vancouver Transportation Authority established under the Greater Vancouver Transportation Authority Act or any of its subsidiaries.

(2) A disposition under subsection (1) may be limited to a specific public purpose.

* * *

[106] (3) A power under any Act, other than the Ministry of Lands, Parks and Housing Act, to dispose of the fee simple in Crown land as defined in this Act, must be exercised in compliance with this Act.

[13] As required by the Rules, the petitioner asserted that it relied on:

1. Judicial Review Procedure Act, R.S.B.C. 1996, c. 241;

2. Sections 24(1) and 35 of the Constitution Act, 1982;

3. Rules 10, 44, 45 and 46 of the Rules of Court;

4. Rule 57 of the Rules of Court.

[14] I shall not quote the whole of the enactments there referred to but only sufficient to elucidate the points in issue:

1. Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 -

1 In this Act:

* * *

"statutory power" means a power or right conferred by an enactment

(a) to make a regulation, rule, bylaw or order,

(b) to exercise a statutory power of decision,

(c) to require a person to do or to refrain from doing an act or thing that, but for that requirement, the person would not be required by law to do or to refrain from doing,

(d) to do an act or thing that would, but for that power or right, be a breach of a legal right of any person, or

(e) to make an investigation or inquiry into a person's legal right, power, privilege, immunity, duty or liability;

* * *

2 (1) An application for judicial review is an originating application and must be brought by petition.

(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for:

(a) relief in the nature of mandamus, prohibition or certiorari;

(b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise, of a statutory power.

* * *

10 On an application for judicial review, the court may make an interim order it considers appropriate until the final determination of the application.

2. Constitution Act, 1982 -

PART I, CANADIAN CHARTER OF RIGHTS AND FREEDOMS:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

PART II, RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA:

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

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

3. Rules of Court, Rules 10, 44, 45 and 46 (in part) -

RULE 10 – ORIGINATING APPLICATION

(1) An application, other than an interlocutory application or an application in the nature of an appeal, may be made by originating application where

(a) an application is authorized to be made to the court,

(b) the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract, or other document,

* * *

RULE 44 – INTERLOCUTORY APPLICATION

(1) If an application in a proceeding is authorized to be made to the court, it must be made by interlocutory application.

* * *

RULE 45 – INJUNCTIONS

(1) An application for an interlocutory injunction may be made by a party whether or not a claim for an injunction is included in the relief claimed.

* * *

RULE 46 – DETENTION, PRESERVATION AND RECOVERY OF PROPERTY

(1) The court may make an order for the detention, custody or preservation of any property that is the subject matter of a proceeding or as to which a question may arise and, for the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.

4. Rules of Court, Rule 57 -

As this rule relates only to costs, there is no need to quote it.

[15] As required by the Rules, the petitioner set forth the facts upon which its petition was based, thus:

1. The Petitioner Musqueam Indian Band ("Musqueam") is an Indian Band within the meaning of the Indian Act, R.S.C. 1985, c. I-5 and its members are Indians within the meaning of the Indian Act and Section 91(2) of the Constitution Act, 1867, and are aboriginal peoples within the meaning of the Constitution Act, 1982.

* * *

3. The Respondent Land and Water British Columbia Inc. ("LWBC"), formerly called British Columbia Assets and Land Corporation, is a corporation incorporated under the laws of the province of British Columbia and having its registered office at 900 Waterfront Centre, 200 Burrard Street, Vancouver, British Columbia. LWCB exercises delegated authority pursuant to the Land Act, RSBC 1996, c. 245 and the Ministry of Lands, Parks and Housing Act, RSBC 1996, c. 307. LWBC provides lands and assets marketing and land management services for the provincial government.

4. The Respondent Minister of Sustainable Resource Management is the Minister responsible for LWBC.

* * *

7. LWBC proposes to sell the Golf Course Land to the University of British Columbia....

8. The Golf Course Land is located within the traditional territory of the Musqueam.

9. The Golf Course Land is currently unalienated Crown land registered to Her Majesty the Queen in Right of the Province of British Columbia c/o Ministry of Lands, Parks and Housing.

10. The present members of Musqueam are descendants of people who lived along English Bay, Burrard Inlet, Point Grey, and the lower reaches of the Fraser River, including the area known as the University Endowment Lands, where the Golf Course Land is located. Much of what is now known as Vancouver and Richmond is in Musqueam traditional territory.

11. Musqueam's reserve land base is small. Musqueam's reserve allotment on a per capita basis is the smallest of all British Columbia bands.

12. Musqueam's reserves are not adequate for Musqueam's present or future needs in providing housing to its members, nor do these reserve lands provide a sustainable land base for the Musqueam people. The Musqueam are suffering from a serious land shortage.

13. A larger land base, beyond Musqueam's present reserves, is essential for the survival of the Musqueam people as a people. Without more land, Musqueam cannot provide proper housing to its members, prosper or be self-supporting or self-determining as a people. Today the community is poor and many Musqueam people are unemployed. Obtaining a greater land base is the Musqueam's greatest priority at the treaty table for these reasons.

14. The Golf Course Land is one of the very few remaining parcels of Crown held land in the Musqueam traditional territory that could be available for treaty settlement purposes. Since Musqueam first filed its comprehensive land claim in 1977, other significant parcels of Crown held land within Musqueam territory have been disposed of without any consultation with Musqueam or any accommodation of Musqueam's aboriginal title interests. The precious few available Crown held lands remaining within Musqueam territory continue to be sold.

15. The federal and provincial governments have taken the position that they will not offer First Nations any monetary compensation for land previously alienated to third parties. The Crown has specifically advised Musqueam during treaty negotiations that it will not provide compensation to Musqueam for its lost reserve lands or for other infringements of their land based rights.

16. The policy of the federal and provincial governments in negotiating treaties with First Nations is that third party interests in land will not be involuntarily affected. Accordingly, only unalienated Crown lands can be potentially restored through treaty settlements.

* * *

21. For many years, Musqueam has asserted and articulated the nature and scope of their claim to their traditional territory, including the Golf Course Land, to the provincial government through correspondence, court proceedings against the provincial government and treaty discussions.

22. As part of its treaty discussions, Musqueam has repeatedly asked both the federal and provincial governments to preserve Crown-held lands for treaty settlement purposes. However, both governments have a policy of not holding land for treaty settlement until the affected First Nation has signed a Framework Agreement. The federal government will only sign a Framework Agreement on the basis of its policy that it will not include compensation as a negotiable item. In other words, the federal Crown will not negotiate compensation for loss of land or infringement of any other aboriginal right. This has also been the policy of the provincial Crown.

23. In combination, the result of these two policies is that neither the federal nor the provincial governments have implemented any interim measures to preserve Crown-held lands in Musqueam traditional territory. In the meantime, the amount of land which the federal and provincial governments can bring to a treaty settlement has been seriously diminished as various parcels of Crown-held land are alienated to third parties.

* * *

25. LWBC and the Minister have fiduciary and constitutional obligations to consult with Musqueam prior to taking any action that may infringe Musqueam's aboriginal rights or title interests, and to accommodate Musqueam's aboriginal rights and title interests.

26. None of the Respondents, or any other representative of the provincial government, has consulted with Musqueam in good faith concerning a possible accommodation of Musqueam's aboriginal interests in the Golf Course Land. No tangible efforts have been made by the Crown to protect these lands for treaty settlement purposes or to reach any other workable solution with Musqueam. The failure to consult is also a breach of natural justice.

27. On or about January 23, 2003, Musqueam was advised by LWBC that it had decided there was no information that would indicate aboriginal rights or title on the Golf Course Land, and further that LWBC had decided to proceed with the sale of the Golf Course Land to UBC. Musqueam was advised on March 20, 2003 by LWBC that this sale would take place on April 1, 2003.

28. Musqueam says that the decision of LWBC that there is no information that would indicate aboriginal rights or title on the Golf Course Land is unreasonable or patently unreasonable and an error on the face of the record.

29. Musqueam can see no prejudice from any attempts by the Crown to accommodate Musqueam's interests, yet, such accommodation has not yet occurred.

30. Once the government divests itself of lands, those lands are no longer available for treaty settlement. In addition, the government refuses to compensate Musqueam for the loss of any land. If the Crown disposes of the Golf Course Land, Musqueam will be unable to obtain either the land or any monetary compensation therefore [sic] at the treaty table. Musqueam is facing the very real prospect of a land-less treaty.

31. On or about October 9, 2003, Musqueam learned for the first time that the Order-in-Council had been issued purporting to approve the disposition of the Golf Course Land to the University of British Columbia. The Order-in-Council was issued on or about February 14, 2003.

32. At the time that the Order-in-Council was issued, no representative of the provincial government had consulted with Musqueam in good faith concerning a possible accommodation of Musqueam's aboriginal interests in the Golf Course Land.

33. While the disposition of the Golf Course Land is imminent, Musqueam know of no reason why the sale must necessarily proceed on April 1, 2003.

How Should Such a Claim be Raised?

[16] The Judicial Review Procedure Act, invoked below, is inapt to the claims asserted here because the appellant does not assert that the transaction in issue is not authorized by statute. To put it another way, no administrative grounds are asserted. I addressed this point of the scope of the Judicial Review Procedure Act in my judgment in Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (2002), 98 B.C.L.R. (3d) 16, 2002 BCCA 59, rev'd. 2004 SCC 74, at pages 28-30 (B.C.L.R.), and I shall not repeat what I there said.

[17] These cases arising from aboriginal land claims address themselves, in substance, not to whether powers conferred by an enactment are lawfully exercised, but to an overarching constitutional imperative.

[18] During argument in Skeetchestn Indian Band v. British Columbia (Registrar of Land Titles), supra, Mackenzie J.A. felicitously described a claim of an aboriginal right as "upstream" of the certificate of indefeasible title.

[19] I consider these claims of failure to consult and accommodate also to be upstream not only of the certificate of indefeasible title but also of the statutes under which the ministerial power has been exercised.

[20] The correct way, in my opinion, for an aboriginal band to invoke the rights conferred upon it by the judgment of the Supreme Court of Canada in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, as elucidated by the judgment of the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests) (2004), 245 D.L.R. (4th) 33, 2004 SCC 73, is by action against the Attorney General in which the plaintiffs plead along these lines:

1. The plaintiffs assert an aboriginal title to [here give the legal descriptions] and have done so heretofore.

Particulars of Prior Assertion

[Here insert particulars.]

2. Pursuant to an Act of the Legislature of British Columbia [giving particulars], the Minister of this or that has done or proposes to do this or that, e.g. to grant to X lands within the purview of the claim.

3. The plaintiffs are engaging with the Province of British Columbia and the Government of Canada in treaty negotiations pursuant to: _____________________________.

4. The Minister of X has failed in his duty on behalf of the Crown to consult with the plaintiffs concerning such proposed grant and has failed to accommodate the particulars of the concerns expressed by the plaintiffs. [Here insert those concerns.]

WHEREFORE THE PLAINTIFFS CLAIM:

1. An injunction restraining the defendants and any other Ministry of the Crown from granting to X [here insert whatever it is which is in issue] unless and until the concerns of the plaintiffs are duly accommodated or a treaty has been made between Her Majesty the Queen in right of British Columbia and the plaintiffs.

[21] I do not overlook what was said in Haida about the inutility in land claims cases of injunctions. But, as I understand the reasons of the Chief Justice of Canada, she is addressing interlocutory injunctions in a proceeding to establish aboriginal title, whereas I am addressing injunctions both interlocutory and permanent in aid of a right to be consulted and accommodated, a related but different right unknown either to law or to equity before the judgment in Delgamuukw.

[22] It is convenient at this point to note that section 24(1) of the Constitution Act, 1982, has nothing to do with claims under section 35 of the Constitution Act, 1982. Section 24 is part of Part I and, on its face, applies only to infringements of rights under the Charter. Section 35 is not part of the Charter.

[23] Although I consider a petition is not apt to this claim, I think it right to proceed as if this were an action commenced by writ for two reasons:

1. The judgment of the Supreme Court of Canada in Haida has overtaken or elucidated much of what has gone before.

2. While I consider it generally erroneous for the court to treat proceedings which appear to be ill conceived as if the proper proceedings had been brought, to send this case back to the court below, by requiring an action to be brought, will only lead to a further appeal to this Court and further unacceptable delay in the resolution of issues which have been pending for decades, as well as adding to the already substantial, if not mountainous, expense to which the parties have been put.

Has There Been a Breach of the Duty to Consult and Accommodate?

[24] The learned judge's reasons are now reported at (2004), 27 B.C.L.R. (4th) 254, [2004] 3 C.N.L.R. 224, 2004 BCSC 506. In those reasons the learned judge recounted the dealings between the respondents, other than the University, and the appellant in connection with these lands and I shall not repeat what he said. As will appear, I do not find it necessary to answer the question of whether there was adequate consultation. Whether there was or was not, there has been, in my opinion, a failure to accommodate.

[25] The relief sought in this Court is somewhat different from the relief sought below.

[26] The relief sought here is this:

1. an order that the appeal be allowed and the order of the Honourable Mr. Justice Warren be set aside [Amended Notice of Appeal ("ANA"), para. (a)];

2. an order quashing the decision of Land and Water British Columbia Inc., and the Minister of Sustainable Resource Management, (the "Crown Respondents") to proceed with the sale of the Golf Course Land (legally described as Blocks A and B, District Lot 3900, Group 1, NWD, Plan 20266, Parcel Identifiers 006-707-289 and 006-707-483) [Further Amended Petition ("FAP"), para. 1; ANA, para. (b)(i)];

3. an order quashing the Order of the Lieutenant Governor in Council, No. 0131/03 dated February 14, 2003 [FAP, para. 2; ANA, para. (b)(ii)];

4. an order that the agreement between the Crown Respondents and the University of British Columbia ("UBC") for the purchase and sale of the Golf Course Land be declared void [FAP, para. 8.1; ANA, para. (b)(iii)];

5. a declaration that the conveyance of the Golf Course Land by the Crown Respondents to UBC is ultra vires and void; such further additional orders or declarations as are required to give effect to the re-conveyance of the Golf Course Land to Her Majesty the Queen in Right of the Province of British Columbia [ANA, paras. (c) and (e)];

6. an injunction restraining the Crown Respondents from selling, conveying, transferring or otherwise disposing of the Golf Course Land; in the alternative, an injunction restraining the Crown Respondents from selling, conveying, transferring or otherwise disposing of the Golf Course Land pending the development of an interim land protection measure [FAP, paras. 7, 12; ANA, para. (b)(viii)];

7. in the alternative, an order compelling the Respondents to consult with Musqueam in good faith concerning the use and disposition of the Golf Course Land and to make meaningful accommodations of Musqueam's aboriginal and treaty interests [FAP, para. 6; ANA, para. (vii)];

8. any other orders, including declaratory relief, that this Honourable Court considers just [FAP, para. 14; ANA, para. (f)]; and

9. costs in this Court and in the Court below [FAP, para. 13; ANA, para. (g)].

[27] The facts which the appellant alleges in the petition are essentially true, but it may be useful to expand upon them somewhat to put this dispute into context.

[28] The lands in issue fall within a part of Point Grey which has been known for a very long time as the University Endowment Lands.

[29] The name, I have always understood, owes its origin to Chapter 45 of the Statutes of 1907:

1. This Act may be cited as the "University Endowment Act, 1907."

2. It shall be lawful for the Lieutenant-Governor in Council to set apart by way of endowment to the University of British Columbia lands in the Province of British Columbia, not exceeding two million acres, in aid of higher education in this Province.

3. The said reservation of land shall not include any lands held by grant, lease, agreement for sale, pre-emption or other alienation by the Crown, nor shall it include Indian reserves or settlements nor military or naval reserves, nor lakes or lands in which any person other than the Crown shall have a vested interest.

* * *

6. All revenue derived from the sale or other disposition of said lands, not including, however, any taxes or royalties, shall be devoted to the maintenance by said University of the following Faculties:-

(a.) A Faculty of Arts and Science, which shall embrace all branches of a liberal education necessary for the degrees of Bachelor of Arts and Master of Arts, and such other degrees as may be determined by the said University:

(b.) A Faculty of Medicine, which shall embrace all branches of medical and surgical training necessary for the degrees of Bachelor of Medicine, Doctor of Medicine, Master of Surgery, and such other degrees as may be determined by the said University:

(c.) A Faculty of Law, which shall embrace all branches of the knowledge and practice of law necessary for the degree of Bachelor of Laws, and such other degrees as may be determined by the said University:

(d.) A Faculty of Applied Science, including manual training and engineering, leading to the degree of Bachelor of Applied Science, and such other degrees or diplomas as may be determined by the said University.

[30] No useful purpose would be served by my recounting the chequered history of the Endowment Lands. Suffice it to say that, despite the name, the lands in issue and the revenue from them were not devoted to the maintenance of the University which did not grant its first degrees until shortly after the First World War. Indeed, it was not until after the Second World War that the University embarked on granting degrees in medicine and law. Since that time, the University has become an extremely large institution with a substantial need for financing. Nonetheless, it was, in its inception, and remains, a public institution governed by the University Act, R.S.B.C. 1996, c. 468. As such, there is no reason at all for the Legislature to hold its hand if the University does not do what it decently ought to do.

[31] In 2002, Land and Water British Columbia Inc. obtained from Deloitte & Touche an appraisal of the Golf Course Land.

[32] Their report describes the lands in question:

Neighbourhood Description

The subject is located in the University Endowment Lands, which lie west of the City of Vancouver and are generally bound by Camosun and Blanca Streets and Drummond Drive to the east and Marine Drive to the south, west and north. More specifically, the subject property is situated on the west side of Blanca Street and is bisected by University Boulevard. Marine Drive is the major traffic corridor, which surrounds the University Endowment Lands to the south, west and north. Other major traffic arterials leading into the University Endowment Lands (UEL) from Vancouver include West 10th Avenue, which becomes University Boulevard west of Blanca Street, and West 4th, West 16th and West 41st Avenues. The University of British Columbia is located approximately one-half kilometre west of the subject property.

The University Endowment Lands are located within an unincorporated area, and, as such, do not have municipal status. The UEL are located within Electoral Area A of the GVRD and have a form of government, servicing and taxation that is quite different from municipal systems. For example, UEL residents presently lack control over services and taxes that are administered on a Provincial level. Also, the GVRD locally administers development services through the UEL administration office, for such things as the administration of community sewers, water lines, building permits, street lights, garbage collection, etc.

As at October 2002, the UEL comprises a population of approximately 6,833 residents located within approximately 440 detached dwellings and approximately 600 rental apartment units. A significant recent development is the University Marketplace, a joint venture between Cressey Developments and Trilogy Properties. It comprises a mixed use commercial/residential apartment rental building with a total of 108 residential rental units.

The University of British Columbia is not part of the University Endowment Lands however the developments within the University campus are relevant for this report because of the proximity of the campus to the subject property. One of the most significant residential developments is Hampton Place which is a multiple family neighbourhood incorporating townhouses and low-rise and high-rise apartment buildings. Hampton Place comprises eleven sites which were developed in phases between 1990 and 1998. Three of the sites are student rental housing. The remaining eight parcels have a 99-year prepaid leasehold interest in place and were developed with market oriented housing. There are 947 units in total in Hampton Place which house a total of over 2,000 people. In addition, as of September 20, 2002 the tender for the development of three lots on the University of British Columbia campus closed. The development plans for the lots include a 100-unit residential high-rise, a 32-unit townhouse development and a 55-unit apartment/ townhouse development. All of these developments will be a mix[ed] use of rental housing for faculty and staff and market oriented housing.

Directly south and north of the subject property are portions of the Pacific Spirit Park which is predominantly in its natural state consisting of a second growth forest. Also, north of the subject is a small enclave of detached dwellings known as 'Little Australia' that was developed in the 1950's. In proximity to the west of the subject property are a number of institutional developments, the largest being the University Hill Secondary School. East of the subject property, and within the City of Vancouver, is a mix of single-family dwellings with some mid-rise and low-rise apartment buildings plus ancillary retail commercial development along West 10th Avenue.

In summary, the subject is located in the University Endowment Lands and just west of the City of Vancouver. The area is generally characterized by the presence of the University of British Columbia campus to the west of the subject with residential dwellings in the immediate area as well as the Pacific Spirit Park. The property is located on a major arterial and good access into the subject neighbourhood is provided. Therefore, it is our opinion that the subject property is well located for its golf course use, and specifically for the operation of a public golf course as stipulated under the lease.

[33] On the 17th May, 1985, Her Majesty granted the lands, which had not previously been brought into the land title system, to UGCC Holdings Inc. for a term of 20 years commencing the 23rd May, 1985:

4.01 YIELDING AND PAYING THEREFORE [sic] during the Term, rental calculated as follows:

(a) a minimum monthly rental

(i) of $3,600.00 during the first fourteen months of the Term, AND

(ii) for each succeeding year of the Term thereafter, an amount calculated annually, on each anniversary of the Rental Adjustment Date to be 1/12th of the Percentage Rental and Minimum Rental payable in respect of the immediately preceding Financial Year, and

(b) a percentage rental of 8% of the Gross Revenue calculated in respect of each Financial Year, less the Minimum Rental paid in respect of such financial year.

[34] By Article X, the lessee was entitled to apply for a further 20 year lease, but the granting of the lease was to be in the sole discretion of the lessor. The lease was modified by instruments dated the 21st June, 1988, 10th September, 1990, and 11th March, 2003. For present purposes, the important modification is that of 10th September, 1990, under which the term of the lease was extended to 30 years. Thus, the lease will expire in 2015.

[35] The offer to purchase by the University, which was made in 2002, was in part this:

ARTICLE 2 - OFFER

2.01 The Purchaser offers to purchase the Land from the Province in fee simple, subject to the Permitted Encumbrances, for the Purchase Price and on the terms and conditions set out in this Agreement.

ARTICLE 3 – PURCHASE PRICE, CROWN GRANT FEE, ADJUSTMENTS AND TAXES

3.01 The Purchaser will deliver the Purchase Price and the Crown Grant Fee to the Province as follows:

(a) the sum of $1,000.00 on account of the Deposit will be delivered to the Province with this offer;

(b) the further sum of $999,000.00 on account of the Deposit will be paid to the Province on the second business day following the removal of the last of the conditions set out in sections 5.01 and 5.03 of this Agreement;

(c) the sum of $7,900,000.00 and the Crown Grant Fee, together with the GST payable on the Crown Grant Fee, plus or minus the adjustments provided for in section 4.01, will be delivered to the Province in accordance with Article 7, and

(d) the balance of the Purchase Price, being $2,100,000.00, and interest on the balance of the Purchase Price accruing from and after the Closing Date at the rate of approximately 4% per annum compounded annually, will be paid to the Province in 3 equal annual instalments of $750,000.00 each, commencing on the 1st anniversary of the Closing Date and ending on the 3rd anniversary of the Closing Date.

* * *

ARTICLE 5 – CONDITIONS PRECEDENT

5.01 The obligation of the Province to complete the sale of the Land is subject to the satisfaction or waiver of the following conditions by the Province on or before February 28, 2003:

(a) in accordance with the guidelines established by the Province concerning consultation on aboriginal rights and title (and all revisions or replacements of such guidelines), the Province has determined that it may complete the transactions contemplated by this Agreement;

(b) the Lieutenant Governor in Council has, by order, approved the survey and sale of the Land in accordance with section 2(1) of the University Endowment Land Act and section 51 of the Land Act;

(c) the Purchaser, acting reasonably, has agreed as to the form of an agreement under which the Province will assign its interest in the Lease to the Purchaser and under which the Purchaser will assume the Province's obligations under the Lease;

(d) the Purchaser, acting reasonably, has agreed to the form of the covenant registrable under section 219 of the Land Title Act which will restrict the use of the Land to a public golf course and which will prohibit any subdivision of the Land;

(e) approval by the Board of Directors of LWBC of this Agreement and the transactions contemplated by it.

5.02 The conditions set out in section 5.01 are for the sole benefit of the Province and may be waived by written notice to the Purchaser prior to the date set out above. If the conditions are not satisfied or waived on or before the date set out above, this Agreement will terminate, the Deposit will be returned to the Purchaser and neither party will have any further obligations to the other under this Agreement.

[36] The restrictive covenant is in part this:

2. The Transferor covenants with the Transferee that it will not subdivide the Land by any means for any purpose other than a purpose directly related to the operation of a public golf course, including without limitation, to accommodate a driving range concession. The Transferor acknowledges that, without limiting the generality of the foregoing, the Transferor must not subdivide the Land for residential purposes.

3. The Transferor covenants with the Transferee that it will use the Land only for the purpose of operating an 18 hole public golf course and facilities ancillary to the golf course on the Land. The ancillary facilities, including without limitation, any driving range and other practice facilities, restaurant, coffee shop, bar, pro shop, washrooms and other clubhouse facilities, when open, must be generally available to the public and the golf course, when open, must be generally available to the public such that at least 70% of the annual rounds of golf are available for booking and play by the public, with access to the public for booking and playing rounds being evenly distributed throughout the calendar year, with at least proportionate public access during daily and weekly periods of peak demand.

4. The Transferor may use the Land for

(a) educational purposes connected with the operation of a golf academy,

(b) physical and health education, and research and athletic activities, all of which must be directly related to golf,

which golf academy and activities, when open, must be generally available to the public and provided that such golf academy and other activities do not limit the operation of the public golf course on the Land in accordance with section 3.

[37] The appellant wants, in settlement of its claim of aboriginal title, not money but land. It says it does not have a sufficient land base for its members. I have no difficulty in accepting the assertion that there is little land contiguous to or even reasonably near the main reserve still within public control. To the west is the Fraser River; to the east, the affluent and generally expensive residential neighbourhoods of Dunbar, Kerrisdale and Shaughnessy; to the south, the bucolic residential neighbourhood of Southlands familiarly known as the Flats.

[38] As to why it has insufficient land, it asserts that its "reserve allotment on a per capita basis is the smallest of all British Columbia bands."

[39] The implication of that paragraph, perhaps unintended, is that somehow, when the reserve question was settled, the Musqueam people were ill treated. But the reason is that, in 1916 and in the years leading up to the Report of the Royal Commission on Indian Affairs for the Province of British Columbia, published in 1916 by Acme Press, Limited, the population of the Musqueam Band was very small. Thus, under the heading "New Westminster Agency" at page 626 of the Report, we find:

Comparatively little change has been made by the Commission in the matter of Reserves of the New Westminster Agency, in which tours of visitation were made for inspections of Indian lands and meetings with the occupants thereof during the field seasons of 1913, 1915 and 1916; Mr. Agent Byrne also being examined at length as to Indian affairs of his district, from the 25th January to the 16th February and again on the 7th March, 1916.

The Commission at its organization found allotted for the Indians of the New Westminster Agency 157 Reserves, of an aggregate area of 42,310.99 acres, giving a per capita allowance of 16.45 acres for the Agency. There have been sold and surrendered by the Indians for railway and other public purposes, six Reserves in their entirety. The Commission has cut off one Reserve, in the City of New Westminster, originally established to meet camping requirements, no longer existent, of all Coast tribes, in common; and has reduced one other in more legitimate proportion to the Indian utilization and need, the total area of reduction for the Agency being 152.48 acres. At the same time there have been created to meet determined reasonable requirements of the Indians 18 new Reserves, of 1,168.45 acres in all – giving a net added area for the Agency of 1,015.93 acres, and a new total (including 40,923.37 acres in confirmed Reserves) of 41,939.30 acres, or 16.30 acres per capita.

* * *

and then, at 685-686:

New Westminster Agency – Musqueam Tribe

ORDERED: That the Indian Reserves of the Musqueam Tribe or Band, New Westminster Agency, described in the Official Schedule of Indian Reserves, 1913, at Page 98 thereof, and numbered from One (1) to Three (3), both inclusive, BE CONFIRMED as now fixed and determined and shewn on the Official Plans of Survey, viz.:

"No. 1 - 5.16 acres;

No. 2 – Musqueam 416.82 acres, and

No. 3 – Sea Island, 60.75 acres."

Victoria, B.C., April 11th, 1916.

CERTIFIED CORRECT,

C. H. GIBBONS, Secretary.

* * *

New Westminster Agency – Pemberton Tribe

ORDERED: That the Indian Reserves of the Pemberton Tribe or Band, New Westminster Agency, described in the Official Schedule of Indian Reserves, 1913, at Pages 98 and 99 thereof, and numbered from One (1) to Eight (8), both inclusive, BE CONFIRMED as now fixed and determined and shewn on the Official Plans of Survey, viz.:

"No. 1 – Pemberton, 188.50 acres;

No. 2 – 105.00 acres;

No. 3 – Ne-such, 909.50 acres;

No. 4 – Lokla, *16.30 acres;

No. 5 – Graveyard, 1.40 acres;

No. 6 – 4,000.00 acres;

No. 7 – 320.00 acres, and

No. 8 – 813.00 acres."

*Less allowed right-of-way of Pacific Great Eastern Railway Co., 3.20 acres-13.10.

Victoria, B.C., April 11th, 1916.

CERTIFIED CORRECT,

C. H. GIBBONS, Secretary.

[40] I have included the passage on the Pemberton Tribe which was the subject of the decision of this Court in British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 156, [1991] 4 C.N.L.R. 3 (B.C.C.A.) because it is clear that the population of the Pemberton Tribe was substantially greater in 1916 than that of the Musqueam.

[41] Although Mr. Ernest Campbell, who was the Chief of the appellant at the time these proceedings were commenced, does not speak to the size of the Band in 1916, he does remark, at paragraph 6 of his affidavit sworn 25th March, 2003:

6. ... In 1958 there were 235 Musqueam Band members. Our population has increased at an average rate of 3.5% per year since then to its present level of 1100. If our population continues to increase at that rate (and given the youthful character of our population, and the fact that our current rate of population increase is about 4%, the 3.5% growth rate estimate is conservative), in 50 years our population will increase six fold to 6,600 members.

[42] As to the assertion in paragraph 13 of the petition, "Today the community is poor and many Musqueam people are unemployed", I doubt whether, in comparison with many other Indian bands, the appellant is poor. I say that because the appellant owns lands in the City of Vancouver (not within a reserve) – see Musqueam Holdings Ltd. v. British Columbia (Assessor Area No. 9 – Vancouver) (2000), 76 B.C.L.R. (3d) 323, 2000 BCCA 299 – and is also the beneficial owner of certain lands which have been leased on long term leases to non-aboriginals. See Musqueam Indian Band v. Glass, [2000] 2 S.C.R. 633, 2000 SCC 52, and see, also, Guerin v. Canada, [1984] 2 S.C.R. 335.

[43] As to paragraph 21 of the petition, there is no doubt of its truth.

[44] The question of the rights of the appellant first came before me on the 2nd July, 1987, in an action, Vancouver Registry C873062, [1987] B.C.J. No. 2788 (QL) (B.C.S.C.), between the plaintiffs, The Chiefs and Other Members of the Musqueam Indian Band, and the defendants, Her Majesty the Queen in the right of the Province of British Columbia, the Minister of Forests and Lands, the Honourable Dave Parker, the Greater Vancouver Regional District, and John Doe and Jane Doe, in which the writ of summons asserted:

1. A declaration that the Plaintiffs have a valid and existing aboriginal title to certain lands in the Lower Mainland of British Columbia including the University Endowment Lands, and comprising some 770 hectares, which are the subject matter of a proposal to be considered by the defendant, the Greater Vancouver Regional District, at a meeting on June 24, 1987.

2. Damages against the Defendants for trespass and for interference with and threatened interference with the Plaintiffs' rights to use the said lands.

3. An injunction preventing the Defendants, Dave Parker and the Greater Vancouver Regional District, and other persons unknown having notice of the order from trespassing on the said lands or interfering with the plaintiffs' rights in the said land, or altering the present physical condition of the said lands.

4. Costs.

[45] The plaintiffs sought an interlocutory injunction restraining the defendants until the trial or disposition of the action from:

(a) Conveying, transferring, disposing of or receiving or accepting those certain lands referred to in the writ of summons in this action; and

(b) Conducting or engaging in activities intending to have the effect of divesting the plaintiffs of their entitlement to the said lands.

[46] In refusing that injunction, I weighed in the scale the delay by the Musqueam in proving their rights, saying in part:

But although for these reasons the delay in asserting the claim of title from the establishing of the University Endowment Lands in 1925 until 1977 cannot be fairly considered to deprive them of any rights, I consider the delay of this decade at least, that is from say 1978 or '9 to now in commencing this action must weigh heavily in the balance of convenience between themselves and the Regional District.

I am mindful that other Indian Bands brought actions concerning their titles sometime ago. The Ghitskan case, I understand, was commenced in 1984 and I know of no reason why the Musqueam could not have sued the Crown for a declaration of title at least at that time.

[47] What I did not then appreciate, and I doubt anyone else would have appreciated it, is that for an Indian band to establish its "aboriginal rights", whatever they may be, has become an enormously expensive undertaking.

[48] This point is illustrated by the action which began in 1998, between Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet'in First Nations Government and on behalf of all other members of the Tsilhqot'in Nation, as plaintiff, and Her Majesty the Queen in right of the Province of British Columbia, the Regional Manager of the Cariboo Forest Region, and the Attorney General of Canada, as defendants, in which the issue is aboriginal title or right to a part of the interior of British Columbia thus described in the Amended Statement of Claim filed 16th June, 2003 (Victoria Registry, No. 90 0913):

11. The Brittany is an area located in the Cariboo Forest Region of British Columbia. The boundaries of the Brittany may be described as follows. The point of commencement is marked by the confluence of the Chilko and Taseko Rivers. The eastern boundary follows the Taseko River to the Davidson Bridge. The southern boundary follows the Nemiah Valley Road in a westerly direction until it reaches Konni Lake, and then follows the southern shores of Konni Lake to its confluence with Nemiah Creek, and then follows Nemiah Creek to the western shore of Chilko Lake. The western boundary follows the western shore of Chilko Lake in a northerly direction to the Chilko River, then continues along the Chilko River until the confluence of the Chilko and Taseko River (point of commencement). The Brittany includes the inside banks of the rivers, creeks, lakes and other water bodies, which mark its boundaries. The Brittany is outlined in green on the map attached as Schedule A. For the purposes of this litigation, the Brittany does not include the lands within the following Indian Reserves: Chilco Lake 1; Chilco Lake 1A; Garden 2; Garden 2A; LEZBYE NO. 6; Lohbiee 3; Tanakut 4; and Tsunnia Lake 5.

[49] There is also asserted a claim to lands known as the "Trapline Territory".

[50] The prayer for relief is, in part, for:

a) A declaration that the Tsilhqot'in has existing aboriginal title to the Brittany;

b) A declaration that the Tsilhqot'in has existing aboriginal title to the Trapline Territory;

c) A declaration that aboriginal title lands in the Brittany and Trapline Territory are not Crown lands as defined in the Forest Act and Forest Practices Code of British Columbia (as amended) and that this legislation does not authorize the inclusion of the Brittany and Trapline Territory in the Williams Lake Timber Supply Area or the issuance of Forest Licences or Authorizations and the granting of interests in forest resources on aboriginal title land in the Brittany and Trapline Territory; ....

[51] The trial of that action began in November 2002. As of 6th December, 2004, it had proceeded at trial before the Honourable Mr. Justice Vickers for 163 days and it may well last another 163 days.

[52] The plaintiffs in that action obtained an order for advanced costs.

[53] As of the 31st January, 2004, counsel for the plaintiff had been paid over $5,000,000.00, much of which I infer was for expert witnesses and other out-of-pocket expenses.

[54] Thus, if the appellant has been reluctant to embark on an action of unpredictable length and of unknown cost, I do not fault it.

[55] Had I appreciated in 1987 that a trial of an action to establish aboriginal right is potentially of such dimensions and devastating expense, I might not have given the weight I then did to the delay of the Musqueam in pursuing the claim to the then unoccupied and unconveyed Endowment Lands.

The Position of the Parties

[56] At the hearing before us, the appellant asserted that the learned judge below erred by:

(a) declining to grant a declaration that the Contract of Sale was unenforceable and to quash the Order in Council in circumstances where he found that the Contract of Sale and the Order in Council were entered into in breach of the Province's legal and equitable duty to consult with Musqueam to seek accommodation of Musqueam's interests;

(b) concluding that the Province had, after the filing of these proceedings, satisfied its duty of consultation and accommodation in respect of the sale of the Golf Course Land, even though:

(i) LWBC was contractually bound to complete its agreement with UBC and as such was in no position to enter into bona fide consultation and negotiations with Musqueam toward the accommodation of Musqueam's aboriginal title concerns and interests; and

(ii) the proposal made by LWBC did not meaningfully or substantially address the accommodation of Musqueam's aboriginal title concerns and interests.

(c) finding that UBC fulfilled its duties to Musqueam by requiring the inclusion of a contractual term in the Contract of Sale that the Province would satisfy its obligations to Musqueam, in circumstances, inter alia, where UBC had acknowledged Musqueam's aboriginal entitlement and its duty to consult with Musqueam; and

(d) failing to restrain the disposition of the Golf Course Land until either a treaty settlement is reached with Musqueam or, alternatively, the Province agrees to consult with and endeavour in good faith to accommodate Musqueam with respect to the development of a land protection measure (which may or may not contemplate the disposition of the UBC Golf Course Land).

[57] For its part, the Crown said that the appeal raises the following issues:

a) Whether the Crown's legal and equitable obligation to accommodate aboriginal rights and title requires it to engage in interim protection measures with respect to matters of interest to aboriginal peoples generally, or in treaty negotiations; and

b) If not, whether the Chambers Judge erred in finding the Crown met its enforceable legal and equitable duty to consult with and seek to accommodate Musqueam's claimed aboriginal rights and title interests in this case.

[58] For its part, the University adopted those issues and, in addition, submitted that the following issues are raised in relation to the University:

a. Can Musqueam seek a declaration or any other order that the University owes Musqueam an independent fiduciary duty to consult without pleading the allegation in the Petition?

b. If the answer to question #1 is yes, then did the University owe an independent fiduciary duty to consult with the Petitioner;

c. If the answer to question #2 is yes, then did the University comply with that obligation?

[59] Now, the Crown says that the issue is:

Whether the recent decision of the SCC in Haida and to a lesser extent Taku is relevant to the matters raised in this appeal and therefore ought to be considered by this Court.

[60] The Crown puts its position thus in its supplemental factum:

9. The reasons given by the SCC in Haida confirm the correctness of the decision of the Chambers Judge below. As the reasons in Haida attest, the Crown's duty to accommodate requires it to balance prima facie Aboriginal rights and title claims against the short and long term objectives of the Crown in disposing of Crown-held lands in accordance with the public interest and compelling legislative objective. As the Chambers Judge notes at paragraph 71 of his reasons, the duty of consultation and accommodation amounts to a duty to formulate a practical interim compromise. In this particular case, the Chambers Judge was satisfied on the evidence that the Crown had met its duty in this interim stage.

10. A significant aspect of the Appellant's appeal from the decision of Warren J., supported by the Intervener, was with respect to the notion that the duty to consult was based on the Crown's fiduciary duty to Aboriginal peoples. The Appellant and particularly the Intervener submitted that, as a fiduciary, the Crown was obligated to put the interests of Aboriginal peoples first, before competing public interests. In this regard, the Chambers Judge is said to have erred in accepting the argument below that the Crown's duty to consult amounted to a duty to balance Aboriginal and other interests in the interim, until rights and title were either proven in court or settled in treaty.

11. The SCC has confirmed that unproven Aboriginal interests are insufficiently specific for the duty to consult to amount to a fiduciary duty. To the contrary, the SCC has confirmed that the duty is a duty to strike a reasonable interim compromise among competing interests. The Chambers Judge has therefore clearly been proven to have correctly interpreted the law regarding the Crown's duty of consultation.

12. As the Appellant argues at paragraph 75 of its factum, the alleged error of the Chambers Judge was not in relation to the strength or weakness of Musqueam's prima facie case, but rather on the basis that in his view, the duty to consult is interim in nature. Again, the SCC decision in Haida has shown the Chambers Judge to have been correct in this regard. The duty to consult is clearly an interim remedy pending proof of title or rights or settlement of those claims in a negotiated process.

[61] For its part, the University says, in part:

9. To grant Musqueam a remedy which, in effect, enjoins, aborts, sets aside or otherwise interferes with the transfer to the University and to require the Crown to hold the Golf Course Land in inventory pending possible resolution of Musqueam's disputed claims, at some future date, by virtue of treaty negotiations, which resolution may or may not involve the Golf Course Land is, in effect, to give Musqueam a veto; a veto which the Supreme Court of Canada reiterates in Haida Nation that Musqueam does not enjoy (Haida, supra, para. 48).

[62] For purposes of this case, I consider that the central passages in the judgment of the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), supra, are these:

A. Does the Law of Injunctions Govern this Situation?

* * *

13 It is open to plaintiffs like the Haida to seek an interlocutory injunction. However, it does not follow that they are confined to that remedy. If plaintiffs can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue these remedies. Here the Haida rely on the obligation flowing from the honour of the Crown toward Aboriginal peoples.

* * *

B. The Source of a Duty to Consult and Accommodate

16 The government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples: see for example R. v. Badger, [1996] 1 S.C.R. 771, at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

* * *

19 The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of "sharp dealing" (Badger, at para. 41). Thus in Marshall, supra, at para. 4, the majority of this Court supported its interpretation of a treaty by stating that "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship ...".

* * *

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.

* * *

C. When the Duty to Consult and Accommodate Arises

* * *

27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

* * *

D. The Scope and Content of the Duty to Consult and Accommodate

39 The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

* * *

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. Marshall, [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": The 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.

[63] In 1991, in British Columbia (Attorney General) v. Mount Currie Indian Band, supra, I wrote, at 185 (B.C.L.R.):

THE ISSUE OF ABORIGINAL TITLE

[62] In my opinion, it is quite impossible to decide, at this stage of these proceedings, whether the Band or its predecessors had aboriginal title, whatever that may be, to these lands.

[63] As to what it may be, the chain of authority begins with St. Catherine's Milling & Lumber Co. v. R. (1888), 14 App. Cas. 46 (P.C.), and comes, up to now, to R. v. Sparrow, [1990] 1 S.C.R. 1075, 46 B.C.L.R. (2d) 1, [1990] 4 W.W.R. 410, 56 C.C.C. (3d) 263, 70 D.L.R. (4th) 385, [1990] 3 C.N.L.R. 160, 111 N.R. 241.

[64] But none of the authorities to which we were referred holds that the aboriginal "right of the aboriginal people" is ipso facto the equivalent of a fee simple. Only something akin thereto or akin to an estate derived therefrom could give a right of exclusive possession at common law.

[65] From the mists of the past, there came to be recognized in English law many rights of use, such as piscary, turbary, common and way, all over land or inland waters and of navigation over tidal waters, which gave the Sovereign's subjects the ability to maintain themselves. Some were public rights, others were given by grant or acquired by prescription. I need not attempt to do what I am not qualified to do, namely trace how these rights came about. But they illustrate that English law has long recognized rights either as a private personal or heritable right or as a right in common with others to go upon land the fee simple of which is in another. Those rights are not equivalent to a fee simple, a right which must have its origin at common law in a Crown grant. It seems to me reasonable that there may well be as a matter of aboriginal right, some sort of interest - perhaps equivalent to a copyhold - in a village and a much lesser interest - perhaps equivalent to a profit à prendre - in lands over which the denizens of the village, for their maintenance, hunted and fished and from which they obtained fuel, building materials and foods such as berries. Although Indian interests are sui generis, it ought to be possible to describe them by analogy to common law interests and, therefore, make them understandable to common law lawyers. Whether it is possible to describe them by analogy to interests known to the civil law, I am, through ignorance of the civil law, unable to say.

[64] The reason why no definition of those rights exists is that no case has yet reached the Supreme Court of Canada with a record sufficient to determine the particular "right" claimed.

[65] Delgamuukw v. British Columbia, supra, did not determine the rights of the First Nation represented by the plaintiff because, in the end, a new trial was ordered and no new trial has ever taken place.

[66] With some hesitation I pose the issue here thus: Does the honour of the Crown require that the powers of sale exercised in the impugned Order-in-Council not be exercised to dispose of lands claimed by an aboriginal band when, if the power is exercised, there may be little, if any, public land left available to be granted to the aboriginal band as part of a treaty settlement? To put it another way, is it a breach of the duty to "accommodate" to do what the Crown proposes to do in this case?

[67] My answer to that question is "yes" in the absence of any pressing countervailing public necessity for the disposition in issue.

[68] That the University of British Columbia, of whose convocation I am a member, is generally accepted to be an institution of great public importance, I accept. But I do not accept that the evidence establishes any pressing present need for the University to obtain title to these lands. The lands are leased to a third party until 2015. Thus, the University cannot develop those lands now, for instance, by constructing a new library. If the purpose of the disposition is to enable the University to make use of the revenue due by the present lessee to the lessor, the Government of British Columbia can easily enough pay that revenue to the University. Thus, this case bears no resemblance on its facts to the Taku case in which a private business had invested years of time and millions of dollars in seeking to develop a mine. It is well known that such developments not only bring employment to many, but also put revenue into the provincial coffers.

[69] I do not overlook that there is a body of opinion that new mines should not be permitted in British Columbia because they damage the land. But it is not for judges to decide between those holding that opinion and those in favour of turning natural resources to account. Such a dispute falls within the purview of the Legislature.

[70] For these reasons, I would allow the appeal.

[71] The appellant being entitled to a remedy, the question is, how should it be framed? My tentative view (and had I not been differing from my colleagues I should have wished further argument on the proper remedy) is that the University should be ordered, if the lands have been conveyed to it, to re-convey the lands to the Crown and if the purchase price has been paid, the purchase price should be repaid, and the Minister should be restrained during the pendency of treaty negotiations or until further order from exercising the powers conferred upon him by Order-in-Council No. 0131/03.

[72] By saying "or further order", I have in mind that if some pressing public necessity does arise, the Minister may apply to vary or discharge the injunction, which I decline to describe either as interlocutory or permanent. By making this order, I am not giving the appellant a veto, something which by its nature would prevent, absent the consent of the appellant, any development, no matter what the public necessity might be.

[73] I also have in mind that if either the appellant or the Crown were to announce that under no circumstances will it negotiate for a treaty, the appellant will be forced to commence an action to establish its aboriginal title, whatever that may be. It will then have the right in common with everyone who claims title to lands to apply for an interlocutory injunction in aid of the pending action. If that should happen, then there would be the irony that the appellant is right back to 1987 when the issue of Musqueam title first arose in the Supreme Court of British Columbia.

[74] As I have said, I would allow the appeal. Costs to the appellant against the Minister of Sustainable Resource Management only.

“The Honourable Madam Justice Southin”

Reasons for Judgment of the Honourable Mr. Justice Hall:

[75] In March 2003, the appellant Musqueam Indian Band brought a petition in the Supreme Court of British Columbia under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. The Band sought an order quashing a decision by the respondents Land and Water British Columbia Inc. ("LWBC") and the Minister of Sustainable Resource Management to sell the University of British Columbia Golf Course (the "Golf Course Land") to the respondent the University of British Columbia (“UBC”). The petitioner also sought an order quashing an Order in Council dated 14 February 2003 of the Lieutenant Governor in Council authorizing the sale. Essentially, the relief sought was an order prohibiting LWBC and the Minister from proceeding with the disposition of the Golf Course Land until the appellant had been consulted in good faith concerning Musqueam's aboriginal rights and title in respect of the Golf Course Land and some workable accommodation of the title or rights claimed by the Musqueam in the Golf Course Land had been made. The appellant also sought to restrain any disposition of the land pending the finalization of interim measures of land protection to ensure lands are available for purposes of treaty settlement. The Musqueam argued the respondents had not consulted in good faith concerning a possible accommodation of any infringement of the appellant's asserted aboriginal interests in the Golf Course Land. The case was heard over six days in November and December 2003, and on 16 April 2004 Warren J. dismissed the petition.

[76] The appellant submits that the chambers judge erred in:

(b) concluding that the Province had, after the filing of these proceedings, satisfied its duty of consultation and accommodation in respect of the sale of the Golf Course Land, even though:

(ii) the proposal made by LWBC did not meaningfully or substantially address the accommodation of Musqueam's aboriginal title concerns and interests.

[77] The learned chambers judge at para. 2 of his reasons said this:

In essence, Musqueam says that the interim sale agreement between UBC and LWBC and the Order in Council were made in violation of the Province’s fiduciary and Constitutional duties to consult and seek accommodation of Musqueam’s interests. It also says that the Province is precluded from disposing of lands that are subject to treaty negotiations. It extends these obligations to UBC as a party who is cooperating or dealing with the Province.

[78] At the time this appeal was argued in September 2004, the Supreme Court of Canada had not yet released its decisions in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida] and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 [Taku], both of which were subsequently delivered on 18 November 2004. Following the release of these decisions, counsel for the appellant, respondents and intervener made further submissions to this Court. It seems clear that as a result of the decision of the Supreme Court of Canada in Haida, it cannot be successfully asserted by the appellant that the respondent UBC owed it any duties of consultation and accommodation, although the extent of the Province’s duty to consult with and accommodate the interests of the appellant remains a contested issue.

[79] When the Musqueam filed their petition in Supreme Court, UBC and LWBC had already entered into an agreement of purchase and sale, and subsequently the Golf Course Land was conveyed to UBC. UBC has undertaken to abide by any court order made concerning the disposition of the Golf Course Land. The lands in question are the site of an 18-hole golf course, and are adjacent to UBC. These lands have been used as a golf course for upwards of 75 years. A private operator has held a lease over the Golf Course Land since 1985. I understand this lease arrangement runs until 2015 and may thereafter be renewed by the operator for a further term of years. In its factum, UBC states that it wishes to ensure that the land is maintained as a golf course in perpetuity as a recreational facility for the public including members of the university community. The agreement of purchase and sale between LWBC and UBC includes a restrictive covenant on the lands restricting the use of the property to a public golf course.

[80] When it began to consider selling the lands, LWBC obtained a First Nations heritage overview report from an archaeology research firm that detailed evidence of aboriginal use of the Golf Course Land. This report indicated there had been general historical use by First Nations of the University Endowment Lands, of which the Golf Course Land is a part. There are overlapping claims to this area in the treaty process by other bands, although the appellant was found to have the most significant interest in the area because of the proximity of its villages and evidence of its traditional use of lands in the area for travel, hunting and fishing.

[81] Aside from considerations relating to the treaty process, it seems to me that what is at issue here is a question of aboriginal title to these lands. Although in its petition, the appellant claimed both aboriginal right and title, in effect the Musqueam are here claiming a right relating to the land itself and not merely a right to practice customary uses of the land.

[82] As Lamer C.J. observed in Delgamuukw v. British Columbia (Attorney General), [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193, Canadian jurisprudence on aboriginal title is not greatly developed. The roots of the concept in North America can be found in decisions of the Supreme Court of the United States given by Marshall C.J. in the early years of the nineteenth century. Two of the leading cases are Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823) and Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515 (1832). Marshall C.J. said this in Johnson at 570-71:

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.

[83] In Delgamuukw, Lamer C.J. noted that Canadian jurisprudence on the subject originated in the case of St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.). That case had its origins in Ontario, where it first came before the Ontario Chancery Division. The case, which was heard by Chancellor Boyd, involved an issue of which level of government, federal or provincial, had the right to regulate and receive revenue from logging on the lands in north-western Ontario. By a treaty signed in 1873, the federal government had quieted the Indian title to the lands in question. The Province argued that under the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5, title to this land resided in the Province. The defendant lumber company argued that it had a valid licence to cut timber from the Dominion Government. It submitted that because the district in question had been at the time of Confederation in Indian occupation and because the aboriginal title had not been dealt with until the 1873 treaty when the Dominion had acquired the Indian title, which title was asserted to be paramount to the provincial title, the federal title should prevail. Accordingly, it was argued the Province had no ownership of the land nor could it regulate activities on the land. Chancellor Boyd found in favour of the Province, holding that when the aboriginal title to the lands was extinguished by the terms of the Dominion treaty of 1873, thereafter full title to the land was held by the Province. He held that the lands, being relieved of the burden of the aboriginal title, were then in full ownership of the Province and the Province therefore had the right to regulate the lands in question. This conclusion was upheld by the Ontario Court of Appeal, the majority of the Supreme Court of Canada and the Privy Council. See (1885), 10 O.R. 196 (Ch.D.); (1886), 13 Ont. App. R. 148; (1887), 13 S.C.R. 577; and (1888), 14 App. Cas. 46.

[84] In R. v. Van der Peet, [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289, Lamer C.J. giving the majority judgment said this at para. 33:

…Aboriginal title is the aspect of aboriginal rights related specifically to aboriginal claims to land; it is the way in which the common law recognizes aboriginal land rights. As such, the explanation of the basis of aboriginal title in Calder [Calder v. British Columbia (Attorney General), [1973] S.C.R. 313] can be applied equally to the aboriginal rights recognized and affirmed by s. 35(1). Both aboriginal title and aboriginal rights arise from the existence of distinctive aboriginal communities occupying "the land as their forefathers had done for centuries" (p. 328).

[85] As recognized in Delgamuukw, aboriginal title is a sui generis interest in land that is inalienable except to the federal government. Only the federal government has the capacity to affect this title. In British Columbia, for historical reasons, there was not much done by the Crown after 1846 to quiet aboriginal title and the issue remains open today in many parts of the province. The situation is otherwise in most of the other provinces of Canada and in the United States where the aboriginal interest was usually dealt with by treaty in earlier times. For instance, after the transfer of the lands comprising the prairie provinces from the Hudson's Bay Company, a series of treaties quieted the aboriginal title concerning these lands.

[86] In Delgamuukw, Lamer C.J. recognized that actions taken by a provincial government could justifiably infringe upon aboriginal title. He said this at para. 165:

The general principles governing justification laid down in Sparrow [R. v. Sparrow, [1990] 1 S.C.R. 1075], and embellished by Gladstone [R. v. Gladstone, [1996] 2 S.C.R. 723], operate with respect to infringements of aboriginal title. In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that "distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community" (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis.

[Emphasis in original.]

[87] Thus, provincial governments can justifiably infringe aboriginal title, but as the Supreme Court of Canada recently stated in Haida, if there is infringement or potential infringement of an aboriginal right – which of course includes aboriginal title – consultation is required with those affected with a view to reaching some accommodation pending final resolution of the validity of the rights claimed.

[88] I understand that the appellant has outstanding a claim filed many years ago asserting aboriginal title to the lands in question. This action has not proceeded with any dispatch and there may be difficulties associated with establishing such rights; the issue of whether the appellant enjoyed exclusive occupation of the area may be especially challenging. This difficulty was discussed by Lamer C.J. at paras. 155-58 in his judgment in Delgamuukw. He noted, referring to United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941), that the issue of exclusive possession might be susceptible of a recognition of joint title that could arise from shared exclusivity by different aboriginal groups.

[89] In the court below, LWBC conceded that the appellant had established a prima facie case for aboriginal title to the lands in question. Because of the existence of that prima facie case, there was no issue in the court below regarding whether the Province had a duty to consult with the appellant and seek to reach some accommodation of the appellant's interest. The learned chambers judge found that the Province had failed in its duty to consult and seek accommodation prior to entering into the agreement of purchase and sale with UBC, and indeed, in its factum, the Crown does not take issue with the finding that it failed to consult prior to entering the sale negotiation, although the Crown notes that the decision of this Court that recognized such a duty, Haida Nation v. British Columbia (Minister of Forests) (2002), 99 B.C.L.R. (3d) 209, 2002 BCCA 147, was decided late in the sale process.

[90] Ultimately, the chambers judge went on to find that after the appellant commenced the petition proceedings, consultations did occur in a bona fide manner. In his reasons, the chambers judge wrote that between April 2003 and the time of the hearing in chambers, LWBC and the Musqueam had discussions further to those they had had prior to the filing of the petition. On 25 August 2003, LWBC tabled a proposal that provided, inter alia, for the sale to the land to UBC; for Musqueam to receive $550,000; for Musqueam to receive five per cent of any revenue received by LWBC for any modification of the covenant that required the land be used as a golf course; and for one truckload of timber per year for two years for use as longhouse firewood. Musqueam’s counter-proposal of 22 September 2003 provided that the Musqueam would buy the golf course for $10 million, which it would pay on the earlier of ten years or the conclusion of the treaty; Musqueam would agree to maintain the covenant restricting the use of the land to a golf course for a long-term period; Musqueam would receive a logging truckload of timber for longhouse firewood; and LWBC would assist Musqueam access a forest tenure licence. LWBC’s counter-proposal of 30 October 2003 again had as its core the sale of the Golf Course Land to UBC but, inter alia, slightly increased the amount of wood available to Musqueam.

[91] The judge held that at the stage at which matters stood relating to the claim of aboriginal title, the duty of consultation and accommodation would amount to a duty to formulate a “practical interim compromise”. He found that an offer of economic compensation, which was the core of the LWBC offer, met the duty imposed upon the agents of the Province and, accordingly, he dismissed the petition. In my view, if the chambers judge had had the benefit of the judgments in the cases of Haida and Taku, he would not have reached the conclusion he did.

[92] We now have the benefit of these judgments of the Supreme Court of Canada. I have found helpful the analysis set forth in these cases. What I take from these judgments is the principle that the duty of government to consult and in appropriate cases to accommodate "is part of a process of fair dealing and reconciliation" with an affected First Nation where aboriginal rights or title are in play. The honour of the Crown mandates such an approach. There is a legal duty cast on government to consult prior to an aboriginal group proving its claim, which duty is conditioned and informed by the nature and strength of any claims of the First Nation advancing such claims. McLachlin C.J. said this at paras. 37-38 of Haida, supra:

Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. Parties can assess these matters, and if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.

I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands. It preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation…. Precisely what is required of the government may vary with the strength of the claim and the circumstances. But at a minimum, it must be consistent with the honour of the Crown.

[93] McLachlin C.J. continued to elaborate at paras. 43-44 on what consultation would be required with aboriginal groups. At one end of the spectrum, where the aboriginal group’s title claim is weak, the aboriginal right limited, or the potential for infringement minor, all that is required is that the Crown give notice to the band of its plans, disclose information and discuss issues raised in the notice. At the other end of the spectrum, where a strong prima facie case for the claim is established, “deep consultation” aimed at finding a satisfactory interim solution may be required. Such consultation may entail the opportunity for the aboriginal group to make submissions, formally participate in the decision-making process and receive written reasons to show Aboriginal concerns were considered and what impact these concerns had on the decision (at paras. 43-44). According to McLachlin C.J. “[e]very case must be approached individually and ‘flexibly’”.

[94] In my view, the duty owed to the Musqueam by LWBC in this case tended to the more expansive end of the spectrum. The Crown conceded the Musqueam had a prima facie case for title over the Golf Course Land, and the report of the archaeological firm noted that the Musqueam had the strongest case of the bands in the area. Potential infringement is of significance to the Musqueam in light of their concerns about their land base. If the land is sold to a third party, there will likely be no opportunity for the Musqueam to prove their connection to this land again. The Musqueam were therefore entitled to a meaningful consultation process in order that avenues of accommodation could be explored.

[95] In light of my view of the consultation required in this situation, I consider that the consultation process was flawed. If this was only a case where notice was required, the consultation may have been sufficient. However, in the present case, I consider the consultation was left until a too advanced stage in the proposed sale transaction. As McLachlin C.J. observed in Haida, there is ultimately no obligation on parties to agree after due consultation but in my view a decent regard must be had for transparent and informed discussion. Of course, legitimate time constraints may exist in some cases where the luxury of stately progress towards a business decision does not exist, but such urgency was not readily apparent in the present case. These lands have been used as a public golf course for a long time, and the status quo is not about to change having regard to the extant lease arrangements. The Musqueam should have had the benefit of an earlier consultation process as opposed to a series of counter-offers following the decision by LWBC to proceed with the sale.

[96] I note that McLachlin C.J. suggested there should be some measure of deference when a court considers the adequacy of the government’s efforts to consult with an aboriginal group, and that administrative law principles suggest a standard of reasonableness would be used by the court when the question is not a purely legal question. She also observed that what is required is not perfection, but reasonableness in any consultation process followed by the Crown. However, even providing an appropriate measure of deference, for the reasons set out above, the Province in my view did not adequately consult with the Musqueam regarding the sale of the Golf Course Land.

[97] McLachlin C.J. also elaborated in Haida on the accommodation that may be required if the consultation process suggests Crown policy should be amended. The core of accommodation is the balancing of interests and the reaching of a compromise until such time as claimed rights to property are finally resolved. In relatively undeveloped areas of the province, I should think accommodation might take a multiplicity of forms such as a sharing of mineral or timber resources. One could also envisage employment agreements or land transfers and the like. This is a developing area of the law and it is too early to be at all categorical about the ambit of appropriate accommodative solutions that have to work not only for First Nations people but for all of the populace having a broad regard to the public interest.

[98] I should think there is a fair probability that some species of economic compensation would be likely found to be appropriate for a claim involving infringement of aboriginal title relating to land of the type of this long-established public golf course located in the built up area of a large metropolis. However, with that said, it is only fair that the consultation process seeking to find proper accommodation should be open, transparent and timely. As I have said, that could not be said to have occurred here because the consultation came too late and was to a degree time constrained because the sale was virtually concluded before any real consultation occurred.

[99] The appellant argues that the Province, presumably through LWBC, should have been required to seek to accommodate the appellant by developing land protection measures so that a bank of land could be made available for treaty purposes. I am not at present persuaded that the courts ought to become involved in such considerations. The treaty process, a process involving not only the Province but as well the federal government, appears to me to be an area discrete from litigation involving questions of aboriginal rights and title. I note that in Taku, the Supreme Court of Canada found that appropriate consultation and accommodation had occurred notwithstanding the position of the First Nation that any accommodation ought to be part of a treaty or a land claim agreement. I would not foreclose the possibility that some arrangements could be made relating to land being set aside to be dealt with in a treaty process as an interim accommodative measure in a controversy like the instant one, but I consider that any such arrangement should be left to a negotiating process between the consulting parties. The courts, required now to attempt to enunciate principles and pass judgment on disputes concerning aboriginal rights and title have sufficient to do without injecting themselves into treaty processes and negotiations.

[100] While I have observed that having regard to the nature and location of these lands, this may well be a situation where financial compensation could be found to be an appropriate measure of accommodation, I would not wish to limit the parties from engaging in the broadest consideration of appropriate arrangements. I would note that this is not the only tract of land in the Lower Mainland that is Provincial property or property over which the Province has a measure of dominion. Having regard to the wish of the appellant to obtain in the future an enhanced land base and as well its desire to pursue a land settlement related to the treaty process it is engaged in, the parties should be afforded a wide field for consideration of appropriate accommodative solutions. To remedy what I view as the general deficiency in the original consultation process and to provide a full opportunity for meaningful discussion between the parties, I believe an order should be made that will be as efficacious as presently possible. As I noted, we are dealing here with an area of law, aboriginal title, which Lamer C.J. referred to 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.

[101] In order to afford LWBC and the appellant proper opportunity for consultation with a view to reaching some modus vivendi on appropriate accommodation, I would order the suspension of the operation of the Order in Council authorizing the sale for two years. That time frame should provide ample opportunity for the parties to seek to reach some agreement. I would direct that at the expiration of such period any party to the negotiations should be at liberty to bring on appropriate proceedings in the Supreme Court of British Columbia to address any issues that may be felt to require decision by the court. Based on what was said by the Supreme Court of Canada in Haida, UBC has no role to play in the process of consultation or accommodation between the Province and the appellant. I would therefore allow the appeal of the appellant concerning the respondent representatives of the Province of British Columbia in the terms I have indicated and I would dismiss the appeal of the appellant concerning the respondent UBC. I am in agreement with the disposition of costs proposed by Madam Justice Southin.

[102] Before closing I should perhaps observe, out of an abundance of caution, that UBC has previously agreed to hold the lands subject to future directions of a court of competent jurisdiction. If agreement eludes the negotiating parties, it is clearly possible that some order could be made affecting title to the lands and UBC could be called upon to honour its undertaking. Of course, because these lands are under a long term lease to a golf course operator, I would not expect any alteration in the status quo over the near term.

“The Honourable Mr. Justice Hall”

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[103] I have had the opportunity of reading in draft the judgments of Madam Justice Southin and Mr. Justice Hall. I agree that the appeal of the order dismissing the petition against the Crown (but not University of British Columbia) should be allowed for the reasons given by Mr. Justice Hall. Shortly put, I agree that the consultation on which the parties ultimately embarked was not conducted sufficiently free of unnecessary time constraints to afford a meaningful process of accommodation consistent with what the honour of the Crown requires in the Crown’s dealings with First Nations people as most recently mandated by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73. I also agree with the form of order Mr. Justice Hall proposes for the disposition of the appeal.

[104] However, I do not wish to be taken to endorse what my colleague suggests may be appropriate forms of interim accommodation in this case. The disposition of the appeal does not require that any comment be made in that regard and, in my respectful view, what my colleague says in paragraphs 98–100 of his judgment might better be put to one side for now.

[105] There is little in the decided cases from which assistance can be drawn with respect to the measure of interim accommodation that may be required in the circumstances that prevail in this case. Where, as here, no aboriginal title has been finally established, there my well be questions about whether and to what extent economic compensation or other forms of what might be said to be non-reversible accommodation are necessary or appropriate. Given the disposition of the appeal, I consider these and other related questions that were not directly addressed in argument before us are now best left entirely to the parties unfettered by judicial commentary.

“The Honourable Mr. Justice Lowry”

Citation:	*Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management),*
	2005 BCCA 128