COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

William v. British Columbia (HMTQ),

 

2009 BCCA 83

Date: 20090226

Dockets: CA035617, CA035618, CA035620

Docket:  CA035617

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

Respondent

(Plaintiff)

And

Her Majesty the Queen in Right of the Province of British Columbia

Appellant

(Defendant)

And

The Attorney General of Canada

Respondent

(Defendant)

-  and  -

Docket: CA035618

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

Respondent

(Plaintiff)

And

The Attorney General of Canada

Appellant

(Defendant)

And

Her Majesty the Queen in Right of the Province of British Columbia and the

Regional Manager of the Cariboo Forest Region

Respondents

(Defendants)

-  and  -

Docket: CA035620

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

Appellant

(Plaintiff)

And

Her Majesty the Queen in Right of the Province of British Columbia and the

Regional Manager of the Cariboo Forest Region

Respondents

(Defendants)

And

The Attorney General of Canada

Respondent

(Defendant)

Before:

The Honourable Madam Justice Newbury

(In Chambers)

 

B. McLaughlin

J. Chow

Counsel for The Attorney General of Canada

D. Rosenberg

Counsel for the Respondent

Roger William

P.G. Foy, Q.C.

Counsel for the Respondents

Her Majesty the Queen in Right of British Columbia and the Regional Manager of the Cariboo Forest Region

Place and Date of Hearing:

Vancouver, British Columbia

February 20, 2009

Place and Date of Judgment:

Vancouver, British Columbia

February 26, 2009

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1]                The Attorney General of Canada, joined by Her Majesty the Queen in Right of the Province, seeks an order lifting the stay of proceedings pronounced by a judge in chambers in this court on December 8, 2008.  The two governments wish to “get on” with the appeal of the order of Mr. Justice Vickers dated November 20, 2007.  By that order, the trial judge dismissed the plaintiff’s claim for a declaration that the Tsilhqot’in have existing aboriginal title to areas of land known as the “Brittany Triangle” and the “Trapline Territory” (collectively known as the “Claim Area”); dismissed the plaintiff’s claims for damages from British Columbia; declared that the Tsilhqot’in people have an aboriginal right to hunt and trap birds and animals in the Claim Area for specified purposes and have an aboriginal right to trade in skins and pelts taken from that area; and declared that forestry activities, including logging, had unjustifiably infringed the aboriginal rights in the Claim Area.  The order was made after a trial of 339 days.  According to counsel for Canada, this action is the first significant civil action relating to aboriginal title since the Supreme Court of Canada’s decision in Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010.

[2]                All three parties filed notices of appeal on December 14, 2007, but beginning in late 2007, they began to discuss the possibility of alternatives to litigation.  In January 2008, they executed a “down tools” agreement to be in effect until April 30, 2008, promising to take no further litigation steps in order to permit “exploratory discussions” to take place.  This agreement was terminated by the plaintiff effective March 20, 2008, following which the parties settled Vickers J.’s order.  As well, the plaintiff moved to amend his statement of claim, but that application was unsuccessful.

[3]                Between June and October 2008, British Columbia and the plaintiff continued to discuss alternatives to litigation, with Canada taking a very limited role in such discussions.  On August 14, 2008, the parties entered into an “Abeyance Agreement”, again suspending all litigation steps, including the appeals, to permit further discussions to take place between the parties.  Meanwhile, the plaintiff had commenced a second action in the Supreme Court of British Columbia based on the trial judgment.  On October 31, 2008, he notified the other parties that he intended to treat the Abeyance Agreement as terminated and on November 10, he reactivated the new action in the Supreme Court.

[4]                Canada became concerned that the appeal would go on the inactive list, but the plaintiff responded that he would likely oppose the reactivation of the appeal.  All parties consented to the granting of a stay on December 8, 2008.  Canada and British Columbia now wish to have it lifted and seek either directions or a 60-day extension of time under s. 10 of the Court of Appeal Act for the taking of the next steps in the appeal.

[5]                The plaintiff opposes these motions.  He still wishes to pursue a settlement of the claim outside of court, even though Canada has, counsel says, refused to negotiate with the other parties.  Evidently, the plaintiff cannot afford an appeal and launched the second action in the Supreme Court at least in part because he hopes to invoke the mandatory mediation rule as a means of compelling Canada to participate in settlement discussions.  Although an entire year has now gone by since the trial judge’s order, the plaintiff submits that it is premature to lift the stay, that Vickers J. himself exhorted the parties to settle the plaintiff’s claims and reconcile their interests, and that more time is needed for the plaintiff to seek funding that will be required for any appeal.  Finally, it is said, neither of the governments will suffer any prejudice if the stay is continued.

[6]                I fully appreciate the plaintiff’s wish to avoid the expense of the appeal and to make further efforts at settling this highly expensive and contentious matter.  However, a year has gone by since the order below and settlement discussions have not been successful.  It seems unlikely that things will change in this regard —although a fixed date for the hearing of the appeal may well sharpen the parties’ concentration in settlement discussions.  Such discussions can continue at the same time as counsel work towards an appeal.  The order of Vickers J. is unusual and I expect that it has spawned legal arguments that are of importance not only to the parties but also to the public and the aboriginal law bar.

[7]                In all the circumstances, I conclude that the stay should be lifted and that the date for the filing of the Appeal Record should be extended to a date 60 days from the date of this order.  Counsel may wish to seek further directions at a later time regarding the filing of further documents electronically.

“The Honourable Madam Justice Newbury”