2007 BCSC 1722 Cook v. The Minister of Aboriginal Relations and Reconciliation

Before: The Honourable Madam Justice Garson

Reasons for Judgment

Counsel for the Cook Petitioners:	P.R. Grant J. Huberman M.L. Ross
Counsel for the Claxton Petitioners:	C.G. Devlin J.W. Gailus
Counsel for the Respondent, The Minister of Aboriginal Relations and Reconciliation:	L.J. Mrozinski P.E. Yearwood
Counsel for the Intervenor, Tsawwassen First Nation:	T. Dion J.J.M. Arvay, Q.C.
Counsel for the Intervenor, Attorney General of Canada:	J. Chow H. A. Frankson M.L.I. Lafond (on November 9, 2007)
Date and Place of Hearing:	September 17 to 20 and November 9, 2007
	Vancouver, B.C.

Introduction

[1] On July 25, 2007, after about fourteen years of negotiation, the Tsawwassen First Nation (the “TFN”), Canada and British Columbia initialled a treaty, titled “The Tsawwassen First Nation Final Agreement” (the “TFNFA”). Ratification of the TFNFA requires:

(1) a majority vote by members of the TFN;

(2) enactment of provincial settlement legislation by British Columbia and the signing of the TFNFA by the Minister authorized to do so by the Provincial Cabinet; and

(3) by Canada, the coming into force of federal settlement legislation and the signing of the TFNFA by a Minister authorized by the Federal Cabinet to do so.

[2] These two petitions, by agreement, were set down to be heard together because they seek the same relief relating to the TFNFA.

[3] In the Cook petition, members of the Semiahmoo First Nation (the “SFN”) seek, among other things, an order in the nature of prohibition to prevent the Provincial Minister from signing the TFNFA until consultations with the SFN have been completed.

[4] The Claxton petitioners, the Chiefs and members of the Tsawout First Nation, the Tsartlip First Nation and the Pauquachin First Nation seek the same remedy on behalf of the First Nations referred to in the proceeding as the Sencot’en Alliance. Below I note from the affidavit of Mr. Pelkey that the SFN is generally considered part of the Sencot’en Alliance.

[5] The petitioners argue that their First Nations have overlapping claims to aboriginal title and/or rights with the TFN and that the honour of the Crown requires the Crown to consult with the petitioners and to accommodate their interests prior to signing the TFNFA with the TFN.

[6] Neither Canada nor the TFN were named as a respondent in these petitions, but both appeared as interveners at the hearing of the petitions.

[7] The respondent Minister opposes the petitioners’ applications on both procedural and substantive grounds. According to the Minister, the procedural defect in the petitions is based on the fact that the petitioners bring these applications pursuant to the Judicial Review Procedure Act, R.S.B.C.1996, c. 241 (the “JRPA”). The Minister says that an application for judicial review, under the JRPA, must relate to the exercise or purported exercise of a statutory power. He argues that in this case, although legislation authorizing a Minister to sign the TFNFA is about to be enacted, the Crown’s duties that are impugned in this petition do not flow from the statute, but rather from the constitutional obligations of the Crown to aboriginal people. While those obligations are not immune from judicial scrutiny, according to the Minister, that scrutiny cannot be in the form of judicial review of administrative actions under the JRPA, which only applies to the exercise of delegated power exercised pursuant to a statute. The Minister argues that the impugned conduct of the Minister, in failing to consult with the petitioners prior to initialling the TFNFA, is not the exercise of any statutory power, but either the exercise of the Minister’s prerogative powers or natural person powers. It follows, the Minister argues, that the Court has no jurisdiction to grant the remedies sought and, therefore, the petition should be dismissed for want of jurisdiction.

[8] The petitioners argue that the remedies they seek under the JRPA are not limited to specific statutory powers.

[9] The petitioners contend that s. 2(2)(a) of the JRPA does not specify that the granting of relief in the nature of mandamus, prohibition, or certiorari is only available in respect to the proposed or purported exercise of a statutory power. They rely on Mohr v. CJA Vancouver, New Westminster and Fraser Valley District Council of Carpenters (1988), 32 B.C.L.R. (2d) 104, 33 Admin. L.R. 154 [Mohr cited to B.C.L.R.], where Southin J.A. stated that s. 2(2)(a) of the JRPA is not limited to statutory powers.

[10] The petitioners argue that the Court’s jurisdiction under the JRPA is not confined to conduct specifically governed by a statutory power. The petitioners argue that mandamus may be available even though one cannot point to a specific legal duty imposed on an individual persona designata.

[11] The petitioners say that in the present case, they have identified both the Crown official and a specific duty. The Crown official is, of course, the respondent Minister. The petitioners have identified the duty as a constitutional imperative, namely the duty to consult as described in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511.

[12] The petitioners are at pains to point out that they do not seek an order restraining the government from enacting the settlement legislation contemplated by the TFNFA. Rather, they seek an order prohibiting the Minister from signing the TFNFA and an order of mandamus compelling the Minister to consult with the First Nations having overlapping claims prior to the ratification of the TFNFA.

[13] The Minister also opposes the petition on substantive grounds. The Minister contends that, although the honour of the Crown requires it to consult with First Nations whose aboriginal rights and title may be infringed by the actions of the Crown, this does not mean that the Crown must consult and accommodate every potential overlapping claim before agreeing to terms of a treaty. To do so would mean the Crown could never finalize any treaty. The Minister relies on the non-derogation provisions in the TFNFA as proof that the TFNFA will not infringe the petitioners’ rights and title. The Minister acknowledges an obligation to consult and accommodate the interests of the petitioners as to any potential impact that the TFNFA may have on them, but argues that the petitioners do not, in effect, have a “veto” over the TFNFA process that has resulted in the initialling of the TFNFA.

[14] The petitioners say that the honour of the Crown requires the Crown to consult with them, and if necessary, accommodate their claimed aboriginal interests before the Crown takes steps that may infringe those interests. In other words, the petitioners say the Crown may not ratify the TFNFA unless and until it has consulted with, and, where necessary, accommodated the petitioners’ aboriginal interests in the subject matter of the TFNFA. The petitioners both point to the obvious fact that they are neighbours of the TFN and that their territorial claims for both title and rights overlap with those granted to the TFN in the TFNFA.

[15] I have concluded that the petitions should be dismissed on both the procedural and substantive grounds for reasons that follow.

The Petitions

[16] The petition of the SFN was filed on June 29, 2007. It claims the following relief:

A. Relief in the nature of mandamus directing the respondent Minister to engage in meaningful consultation with the Petitioners with respect to the potential infringement of the TFNFA on the aboriginal rights and title of the Petitioners;

B. An order in the nature of mandamus ordering the respondent Minister to:

1. identify, in consultation with the Petitioners, the Petitioners aboriginal rights which have been and are currently exercised within the Semiahmoo territory which is impacted by the TFNFA;

2. identify those portions of the asserted Tsawwassen SOI Territory marked in map J-1 of the TFNFA where the Petitioners have a good case for aboriginal title;

3. assess the potential effects of the TFNFA, including the significance of these effects on the Petitioners’ aboriginal rights and title; and

4. accommodate the Petitioners’ aboriginal rights and aboriginal title prior to signing the TFNFA;

C. Relief in the nature of prohibition prohibiting the respondent Minister from signing the TFNFA until after consultation with the Petitioners; and

D. Relief in the nature of prohibition to prevent the respondent Minister from giving effect to the TFNFA under s. 11 of c. 24 until consultation with the Petitioners has been completed.

[17] The petition of the Sencot’en Alliance was filed on July 23, 2007, and later amended The pertinent claims for relief are as follows:

A. A declaration that the respondent Minister has constitutional duty to consult with the Petitioners in good faith with respect to potential infringements of the Petitioners’ aboriginal rights and title and treaty rights.

B. A declaration that the respondent Minister has breached his constitutional duty of consultation by not engaging in any consultation with the Petitioners prior to initialling the TFNFA.

C. Relief in the nature of mandamus directing the respondent Minister to engage in meaningful consultation with the Petitioners with respect to the potential infringement of the TFNFA on the aboriginal rights and title of the Petitioners;

D. An order in the nature of mandamus ordering the respondent Minister to:

1. identify, in consultation with the Petitioners, the Petitioners’ aboriginal and Douglas Treaty rights, the exercise of which is impacted by the TFNFA;

2. identify, in consultation with the Petitioners, those portions of the asserted Tsawwassen territory marked in map J-1 of the TFNFA where the Petitioners have a good cause for aboriginal title and rights;

3. asses the effect on the Petitioners’ aboriginal and Douglas Treaty rights as a result of the finalization of the TFNFA; and

4. accommodate the Petitioners’ aboriginal and Douglas Treaty rights prior to signing the TFNFA;

E. Relief in the nature of prohibition prohibiting the respondent Minister from signing the TFNFA until after the respondent Minister has engaged in meaningful consultation and accommodation with the Petitioners; and

F. Relief in the nature of prohibition to prevent the respondent Minister from giving effect to the TFNFA under s. 11 of c. 24 until meaningful consultation an accommodation with the Petitioners has been completed.

PROCEDURAL OBJECTION

Judicial Review Procedure Act

[18] The parties’ submissions as to the applicability of the JRPA centered on the definition of statutory power and the language of s. 2(2). I reproduce the relevant sections as follows:

1. In this Act: …

"statutory power of decision" means a power or right conferred by an enactment to make a decision deciding or prescribing

(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or

(b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person is legally entitled to it,

and includes the powers of the Provincial Court;

"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.

The Provincial Settlement Legislation

[19] The object of the petitioners’ claims for relief is Bill 40 – the Tsawwassen First Nation Final Agreement Act (the “TFNFA Act”). Bill 40 received third reading on November 7, 2007. It is not yet in force. Section 4 provides:

The Lieutenant Governor in Council may authorize a member of the Executive Council to sign the TFNFA.

[20] The petitioners ask this Court to exercise its jurisdiction under the JRPA to prohibit the Minister appointed under s. 4 from signing the TFNFA.

Historical View of Prerogative Remedies

[21] In order to understand the Crown’s procedural objection, I find it helpful to examine, briefly, the historical use of the prerogative writs of mandamus, prohibition and certiorari.

[22] Although the JRPA is now the standard procedure for challenging illegal government action, it does not constitute a new substantive remedy: David Jones & Anne de Villars, Principles of Administrative Law, 4^th ed. (Scarborough, ON: Thomson Canada Limited, 2004) at page 576. Jones and de Villars note at page 576 that prerogative remedies have an ancient history and have been the primary vehicle through which the Superior Courts review the legality of government actions. They continue at pages 576 to 577:

The “prerogative” nature of the remedies derives from the fact that they were issued by the Crown to control the actions of its servants taken in its name. In time, the Crown delegated these remedies to the superior courts. Royal writs were used to compel the administrators to come before the courts to justify their actions. Traditionally, the proper nomenclature for a prerogative remedy was “R. v. Delegate; Ex-parte Applicant”.

[internal citations omitted]

[23] Jones and de Villars describe the procedure of a R. v. Delegate application. In the first stage of the procedure, the applicant applied for the writ without notice. The writ was accompanied by an affidavit indicating the applicant’s knowledge, information or belief about the invalidity of the delegate’s decision. The delegate was thus required to come to court to justify his actions. A second stage of the procedure involved an application at which the Court determined the issue of illegality. If illegality was demonstrated, the Court would generally issue an order for the appropriate prerogative remedy.

[24] At page 582-4, Jones and de Villars note the following relevant points:

(a) “it is now quite clear that both certiorari and prohibition are available to control purely administrative actions [as opposed to quasi judicial act conduct].”

(b) “certiorari and prohibition are now used exclusively to control the exercise of statutory authority and are confined to the public law field.”;

(c) “judicial and administrative decisions are fully within the sphere of certiorari and prohibition, legislative decisions are still not.”;

(d) “certiorari and prohibition lie only against public bodies whose authority is derived from statute.”;

(e) “certiorari and prohibition do not lie to enforce contractual or other private law rights, perhaps even where there is a “public law” “back-drop to these rights.”

[emphasis added]

[25] At pages 585-588, Jones and de Villars explain the prerogative writ of mandamus. An order of mandamus compels the performance of a statutory duty owed to an applicant. Mandamus is used where the statutory delegate refuses to exercise power he is compelled to use. In legal theory, an order of mandamus is a royal command to perform a public duty; failure to obey is contempt of court. Like certiorari and prohibition, mandamus is a discretionary remedy that may be refused by the Court even though the applicant has otherwise made out his case.

[26] At page 587, Jones and de Villars write:

mandamus does not lie against the Crown or its agents. This reflects the general rule that none of the prerogative remedies is available against the Crown, because in theory the court cannot treat the monarch as both applicant and respondent in the same action at the same time, nor could it commit itself in contempt for disobedience. On the other hand, the number of people entitled to this immunity is quite restricted. In particular, it does not apply to the Queen, the Lieutenant Governor, cabinet ministers or public servants when they are exercising a power conferred by statute, for then they are persona designata.

[internal citations omitted]

[27] At footnote 68, the authors say:

but the Crown must be distinguished from the Governor (alone or in Council), the Cabinet, a Minister, or any other public servant to whom the legislature has delegated a statutory duty. In the later case, mandamus will lie.

[28] The Crown’s position on this application is rooted in the historical analysis of the availability of the prerogative writs. That is, a prerogative writ is only available where there is a specific statutorily delegated authority to a persona designata that such a remedy will lie. The petitioners, on the other hand, say that the traditional use of prerogative writs has been expanded to confer jurisdiction on the courts under the JRPA to supervise constitutional duties that, as alleged in this case, a Minister has refused to perform.

Analysis of Recent Case Law

[29] Are the petitioners correct in contending that the historical use of prerogative writs has been expanded to allow the courts to force by mandamus a Minister to perform his constitutional duties?

[30] I turn to the case law relied upon by the petitioners for the proposition that s. 2(2)(a) of the JRPA has been interpreted to permit a court to grant orders of mandamus or prohibition even where the act complained of does not rest on a statutory power.

[31] In Culhane v. British Columbia (Attorney General) (1980), 18 B.C.L.R. 239, 108 D.L.R. (3d) 648 (B.C.C.A.) [Culhane cited to D.L.R.], the plaintiff, Ms. Culhane, sought to compel the warden of a prison to permit her to visit prisoners. She was said by the Court to be a member of a prisoners’ rights group and the warden opined that her visits created unrest and disobedience among the inmates of the prison. Her appeal from the lower court refusal to grant a writ of mandamus or certiorari was dismissed. There were three sets of reasons: Taggart J.A. and Craig J.A. wrote concurring reasons and Lambert J.A. wrote dissenting reasons. Taggart J.A. and Craig J.A. agreed that the prison warden was exercising a statutory power of decision when he refused her entry into the prison because he was acting under the authority of the Lieutenant Governor in Council. Since the warden was exercising a statutory power of decision, Taggart J.A. agreed with Craig J.A. that the case could be disposed of under s. 2(2)(b) of the JRPA. Taggart J.A. expressed the following view at 651:

Being of that view it is unnecessary for me to deal with the argument of the appellant that relief in the nature of mandamus or certiorari to quash could also be granted under the provisions of s. 2(2)(a) of the Act. On this aspect of the matter it is my opinion that even if relief of that nature could be granted under s. 2(2)(a), as to which I express no opinion, it is preferable having regard to the considerable modifications made in the prayer for relief to deal with the matter by way of s. 2(2)(b). The only other comment I have on the Judicial Review Procedure Act is that I think relief may in appropriate circumstances be granted under s. 2(2)(a) even where the action complained of does not rest on a statutory power of decision. I think s. 2(2) is so drawn that subparagraph (a) is quite independent of subparagraph (b) and vice versa; nor in my view do other provisions of the Act militate against that conclusion.

[32] The petitioners rely on these reasons of Taggart J.A. to argue that the language of s. 2(2)(a) of the JRPA, which does not include the words, “in the exercise of a statutory power,” must be given its ordinary meaning.

[33] In his reasons in dissent Lambert J.A. explained why the words “in relation to the exercise ….or purposed or purported exercise, of a statutory power” were left out of s. 2(2)(a). He explained that the JRPA is a procedural act only, one which does not, at least on its enactment, change the law of mandamus, prohibition or certiorari. The common law of those prerogative writs included the requirement that they be granted in respect to a statutory power and it was therefore unnecessary to repeat language such as “in the exercise of a statutory power” in s. 2(2)(a). On the contrary, proceedings for a declaration or injunction were not restricted to prerogative writs and are remedies available in private law as well as public law. Because the JRPA is a procedural statute granting remedies in the public law context, it was necessary to include the qualifying language in s. 2(2)(b). He adds, however, at 664:

That does not mean, of course, that the substantive law either does or does not require that the remedy of setting aside the decision of a public officer should only be granted where the decision is made under a power derived specifically or generally from a statute. It means only that the substantive law must govern that question and not the definitions in the Judicial Review Procedure Act which were inserted for other purposes.

[34] The petitioners rely also on the decision of Mohr. Mohr was a union member who was charged with breaching the constitution of his union. He was found guilty of that breach by members of the union who formed a tribunal. The tribunal was not a statutory body. He, nevertheless, applied under the JRPA for an order in the nature of certiorari or declaratory relief. The Court of Appeal confirmed the lower court decision that the remedies granted under the JRPA were limited to those situations where the complaint concerned a statutory power, and there was nothing statutory about the respondent union’s constitution. He could not therefore get relief in the nature of a prerogative remedy. Southin J.A., without any difficulty, dismissed the appeal (at 107) because:

It is clear that on the second branch of s. 2, declaratory relief is limited to those situations where the complaint concerns a statutory power. There is certainly nothing statutory about the constitution of the respondent union. As to the first branch of s. 2, it simply is inapplicable to the appellant’s claim.

[35] However, in obiter, Southin J.A. referred to the historical use of the prerogative writs (at 108):

Paragraph (a) [s. 2(2)(a) of the JRPA] refers to some of the writs that were commonly known as prerogative writs. Those writs were an exercise by the court on behalf of the Sovereign of the Sovereign’s right and duty to compel public officers to do their duty and obey the law.

Paragraph (a) is not limited to statutory powers. There is at least one public officer, the Attorney General, who has a public duty, albeit not founded in statute, which can be enforced under the Act: see Air Canada v. Attorney General of British Columbia, [1986] 2 S.C.R. 539, 8 B.C.L.R. (2d) 273.

[36] The petitioners cling to this statement by Southin J.A. for the proposition that it is not necessary to identify any precise statutory power.

[37] Ms. Mrozinski, for the Minister, argues that Air Canada v. Attorney General of British Columbia, [1986] 2 S.C.R. 539, 8 B.C.L.R. (2d) 273 is not authority for the proposition cited by Southin J.A.

[38] In Air Canada, Air Canada had issued a writ against Her Majesty the Queen in the Right of the Province of British Columbia and the Attorney General of British Columbia seeking a declaration that the Gasoline Tax Act, R.S.B.C. 1979, c. 152, did not and does not apply to Air Canada, and for other relief.

[39] The action was brought by Air Canada pursuant to the provisions of the Crown Proceeding Act, R.S.B.C. 1979, c. 86. Air Canada sought a fiat from the Crown, permitting it to sue the Crown. The Executive Council, on the advice of the Attorney General, recommended to the Lieutenant Governor that the grant of fiat be refused. Pursuant to that advice, the grant of fiat was refused. Air Canada then applied to the Supreme Court of British Columbia, pursuant to the JRPA, for an order in the nature of mandamus compelling the Attorney General to consider the petition of right and then advise the Lieutenant Governor whether to grant his fiat.

[40] In Air Canada, La Forest J. of the Supreme Court of Canada allowed the appeal for the reasons of the British Columbia Court of Appeal in the judgment of Anderson J.A. (see 47 B.C.L.R. 341, 150 D.L.R. (3d) 653, cited to D.L.R., for reasons of the B.C.C.A.).

[41] I do not think that the Air Canada case can be cited for the petitioners’ proposition that it is not necessary to identify any precise statutory power. Anderson J.A. decided that the case involved a constitutional issue which was not frivolous and that it was open to the Court to direct the Attorney General to advise the Lieutenant Governor to issue his fiat to enable Air Canada to bring its action to declare the particular tax at issue unconstitutional. At 685, Anderson J.A. stated:

I conclude that s. 2(e) of the Attorney General Act entrusts the Attorney-General with the sole power and duty of advising the Lieutenant-Governor whether or not to issue his fiat. There is no scope for the involvement of the Executive Council and no substance to the procedural argument cited earlier…for the above reasons I would allow the appeal and direct the Attorney-General to grant his fiat.

[42] I do not understand Air Canada to be authority for the proposition that s. 2(2)(a) of the JRPA operates independently of a statutory enactment, because Anderson J.A. was specifically referring to a statutory enactment at issue.

[43] In my view, Southin J.A. cannot be taken to have intended to say, based on the authority of Air Canada, that s. 2(2)(a) of the JRPA is disconnected from any statutory enactment.

[44] The petitioners also rely on Vander Zalm v. British Columbia (Acting Commissioner of Conflict of Interest) (1991), 56 B.C.L.R. (2d) 37, 80 D.L.R. (4^th) 291 [Vander Zalm cited to D.L.R.]. The petitioner was the Premier of British Columbia. He participated in certain land transactions which became the subject of much public comment and controversy. Mr. Hughes was the conflict of interest commissioner, but the Members’ Conflict of Interest Act, R.S.B.C. 1990, c. 54, was not yet in force when the events that were being investigated occurred. Accordingly, no investigation could proceed under the statutory authority. However, Mr. Vander Zalm and the leader of the opposition agreed that Mr. Hughes would conduct an investigation. The results of the investigation were not favourable to Mr. Vander Zalm who applied under the JRPA for various orders setting aside the findings of the Hughes report. It was common ground between the parties that Mr. Hughes was not exercising a statutory authority. Esson C.J. (as he then was) concluded at 297, “that Mr. Hughes exercised no jurisdiction which would make his findings subject to judicial review. Such power as he had was conferred upon him by the agreement between him and Mr. Vander Zalm.” Consequently, the petition was dismissed.

[45] The petitioners, however, rely on some of the dicta in the Vander Zalm case. In particular, at 297, Esson C.J. cited R. v. Panel on Take Overs and Mergers’; ex-parte Datafin PLC & another, [1987] Q.B. 815, [1987] 1 All E.R. 564 at 583 (C.A.) as follows:

I do not agree that the source of the power is the sole test whether a body is subject to judicial review, […] Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: …

But in between these extremes there is an area in which it is helpful to look not just at the source of power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may […] be sufficient to bring the body within the reach of judicial review.

[46] This dicta would seem to support the proposition that there are certain functions of government not specifically authorized by statute that are within the reach of judicial review. The petitioners say that the Crown’s constitutional imperative to consult with aboriginal peoples is one such example.

[47] The decision in McDonald v. Anishinabek Police Service (2006), 276 D.L.R. (4^th) 460, 55 Admin. L.R. (4^th) 47 (O.N. S.C.J. D.C.), includes a helpful review of the necessity or otherwise of the statutory power as a prerequisite to relief in the nature of mandamus, prohibition or certiorari in the Ontario equivalent of s. 2(2)(a) of our JRPA.

[48] In McDonald, the justices conclude that where the order sought is in the nature of mandamus, prohibition or certiorari, the exercise of a statutory power was not required. Starting at para. 53, the Court held:

While early interpretations of s. 2(1)1 of the JRPA may have read in the requirement of a "statutory power" as a prerequisite to relief in the nature of mandamus, prohibition or certiorari, subsequent cases have rejected this interpretation. Rather, the prerogative writs are available where a public decision-maker owes a duty of fairness.

Further, to read the requirement of a "statutory power" into s. 2(1)1 of the JRPA would have the absurd result of either abolishing the common law right to judicial review of decisions not made pursuant to a statutory power or requiring applicants to commence such proceedings in the Superior Court contrary to the scheme in the JRPA of allocating applications for Judicial Review to the Divisional Court.

Thus, in our view, the availability of the prerogative writs is not circumscribed by the JRPA and the Divisional Court's jurisdiction to issue such relief is determined by the scope of the prerogative writs at common law.

…

The seminal decision on the court's supervisory jurisdiction over a board or body not constituted under statute is R. v. Criminal Injuries Compensation Board, Ex p. Lain. In this case, review was sought of a decision of a board established, not by statute, but pursuant to the prerogative powers of the executive branch of government. Lord Parker C.J. was of the view that certiorari applies to every body of a public, as opposed to private, character that has a duty to act judicially. Diplock L.J. held that the court's supervisory jurisdiction was not dependent on the source of the tribunal's authority, except where the source was a private agreement of the parties. Where novel tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory jurisdiction of the High Court is based.

Ashworth J. was of the view that the board had sufficient public or official character to negate the notion that the board was a private or domestic tribunal, as the board was established by the executive after debates in Parliament and the board was funded by the government. Ashworth J. continued to state that:

[i]t is a truism to say that the law has to adjust itself to meet changing circumstances and although a tribunal, constituted as the board, has not been the subject of consideration or decision by this court in relation to an order of certiorari, I do not think that this court should shrink from entertaining this application merely because the board had no statutory origin. It cannot be suggested that the board had unlawfully usurped jurisdiction: it acts with lawful authority, albeit such authority is derived from the executive and not from an Act of Parliament.

The panel concluded that the scope of judicial review was not limited to boards or bodies constituted under statute and extends to bodies established by the exercise of prerogative power.

Crown prerogative is "the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown". It consists of "the powers and privileges accorded by the common law to the Crown".

The court's jurisdiction to review decisions made pursuant to prerogative powers was affirmed by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, where the House emphasized that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter, not its source, and the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals.

Similarly, in Black v. Canada (Prime Minister), Laskin J.A. stated that the expanding scope of judicial review made it no longer tenable to insulate the exercise of a prerogative power from judicial review merely because the power was not a statutory power. Laskin J.A. affirmed the test set out by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, supra, and held that:

the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual. Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative.

Thus, the prerogative writs are not limited in their application to boards or tribunals constituted under statute and may be applied to bodies constituted pursuant to prerogative powers, if the decision in question affects the rights or legitimate expectations of an individual.

[internal citations omitted]

[49] In Martineau v. Matsqui Institution (No. 2), [1980] 1 S.C.R. 602, 106 D.L.R. (3d) 385 [Martineau cited to S.C.R.], Dickson J. held at 622, “In my opinion, certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges, or liberties of any person.” He determined that the prerogative writs were available to permit the Court to intervene regardless of whether the function of the tribunal or government power in question was judicial or quasi-judicial. He held at 622 that “Even though the function is analytically administrative, courts may intervene in a suitable case.” At 628 he wrote:

Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.

[emphasis added]

Conclusions on Prerogative Remedies

[50] From this review of the authorities, I conclude the following:

· The JRPA is procedural not substantive legislation. Thus the availability of the remedies of prohibition, certiorari, and mandamus are made available not pursuant to the statute, but only where they are otherwise available at common law;

· Prohibition and mandamus are not available to enforce private law rights even where the Crown is exercising these rights;

· Historically, prerogative remedies were only available to force a government delegate to conduct himself within the confines of a statutorily conferred power; and

· There is some authority for the proposition that the scope of prerogative writs has been expanded somewhat to enable their use to restrain government power exercised by bodies created pursuant to its prerogative power, where the public decision maker owes a duty of fairness to, and the decision affects, the rights of individuals.

[51] Applying these principles to this case, it may be helpful to first consider the source of the government’s power in negotiating and reaching the stage of initialling the TFNFA.

Powers of the Crown

[52] The powers of the Crown are derived from two sources, statutes and common law: see Hogg & Monohan, Liability of the Crown, 3^rd ed. (Toronto: Carswell 2000). Statutory powers of the Crown are those defined or created by an Act of Parliament. Crown prerogative is described as “the residue of discretionary or arbitrary authority which at any given time is left in the hands of the Crown.” At page 16, Hogg and Monohan write that “the traditional view is that the term ‘prerogative’ should be confined to powers or privileges that are unique to the Crown.” In this view, powers and privileges enjoyed equally with private persons are not, strictly speaking, part of the prerogative. For example, the Crown has the power to acquire and dispose of property and to enter into contracts. These powers have traditionally not been regarded as true prerogative powers because they are possessed by everyone.

[53] The power of the Crown to negotiate treaties with aboriginal groups is closer to the prerogative powers of the Crown than that of a private person because, in negotiating and concluding treaties, the Crown is fulfilling its constitutional duties to aboriginal peoples pursuant to s. 35 of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. On this point, the Minister contends that by exercising only the powers of a private person, the Crown is contracting with another legal entity. I disagree. The power of the Crown to enter into treaties may be its natural person power to contract, but the basis for doing so is its constitutional imperative to take steps to “[reconcile] … the pre-existence of aboriginal societies with the sovereignty of the Crown”: Haida at para. 17. As MacLachlin C.J.C. wrote at para. 20 of Haida, “Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of aboriginal claims.”

[54] However, the prerogative remedies are designed to supervise the exercise of authority affecting an individual, particularly where the exercise of that authority has been done unfairly. The authority is generally construed to be that exercised by a tribunal or body acting in a decision making capacity. This is the view expressed by Southin J.A. in Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2005 BCCA 128, 251 D.L.R. (4^th) 717. In Musqueam, the petitioner, the Musqueam First Nation, brought a petition for judicial review of the Minister’s decision to proceed with the sale of land to the University of British Columbia pending determination of the Musqueam’s claim of aboriginal title to the lands in issue. Southin J.A. granted the injunction and ancillary relief but, in doing so, explained that judicial review was not the appropriate remedy. At paras. 16 to 19, after posing the question “How should such a claim be raised?”, she stated:

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. British Columbia (Project Assessment Director) (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.

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.

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.

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.

[55] And at para. 21 she said:

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.

[56] In this case, counsel for the Minister argues that this case ought to be brought in the context of a declaratory action seeking a declaration that the Crown has a duty to consult and, if necessary, accommodate, and that in such an action, an injunction would be an effective remedy. Mr. Grant, counsel for the Cook petitioners, says that he doubts injunctive relief would be granted largely because of the irreparable harm and balance of convenience test for an interlocutory injunction: see RJR-MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311, 111 D.L.R. (4^th) 385.

[57] Mr. Devlin, counsel for Sencot’en Alliance, and Mr. Grant rely also on the fact that Haida, and many other “consultation” cases, were brought under the JRPA. Counsel for the petitioners say that I should be persuaded by the fact that, in those cases, no procedural objection was made to the use of prerogative writs.

[58] These cases are discussed in Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697, 33 Admin. L.R. (4th) 123. Dillon J. responding to a similar argument at paras. 93 through 104, noted that most cases involved a delegated decision-making process under a specific statutory enactment, usually a forestry act. She wrote at paras. 98 and 104:

Most of the cases on this subject have been commenced by petition (Haida, Squamish Nation, Musqueam, and Gitanyow First Nation v. British Columbia (Minister of Forests), 2004 BCSC 1734 (B.C. S.C.). In most of these cases, the 'decision' that led to the duty to consult was the original breach of Crown duty in issuance of the forestry licence in the first place.

…

In conclusion, declaratory relief has been granted by this court in several cases involving First Nations disputes concerning the duty to consult. In regards to forestry decisions, declaratory relief stems from the initial decisions to issue timber licences. In this case, the FRA initiative is a creature of statute, the Forestry Revitalization Act and the Forest Act, which enable the province to make specific agreements with First Nations regarding forest tenure. The FRA is the vehicle that the Ministry chose to deliver those specific agreements. The concept of 'decision' should not be strictly applied when there is legislative enablement for a government initiative that directly affects the constitutional rights of First Nations. This approach has been approved by the Supreme Court of Canada in Haida when it spoke of review of governmental action affecting the duty to consult. The petitioners are entitled to seek the declaratory relief under the JRPA that the FRA policy does not meet the Crown's constitutional obligation to consult the HFN.

[59] The cases noted by Dillon J. involved the performance of a specific statutory power, which makes them distinguishable from the case before me. For example, the Haida case turned on decisions by the Minister of Forests to grant Tree Farm Licenses under the Forest Act, R.S.B.C. 1996, c. 157. In Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, 245 D.L.R. (4th) 193, the judicial review was grounded in decisions to allow a mine to re-open under the Environmental Assessment Act, R.S.B.C. 1996, c. 119.

[60] I have, so far, primarily addressed the question of whether the Crown’s conduct in negotiating and signing a treaty is reviewable under the JRPA. But the petitioners also argue that s. 4 of the TFNFA Act is a statutory enactment that would engage the Court’s judicial review jurisdiction. Upon receiving Royal Assent, s. 4 of the TFNFA Act comes into force. Section 4 states that, “the Lieutenant Governor in Council may authorize a member of the Executive Council to sign the TFNFA.”

[61] Section 27(1) of the Interpretation Act, R.S.B.C. 1996, c. 238, defines the “Lieutenant Governor in Council” as “… the Lieutenant Governor acting by and with the advice of, or by and with the advice and consent of, or in conjunction with, the Executive Council.”

[62] Section 27(1) of the Interpretation Act defines the “Executive Council” as “… the Executive appointed under the Constitution Act.”

[63] Section 9(1) of the Constitution Act, R.S.B.C. 1996, c. 66, states that “The Executive Council is composed of the persons the Lieutenant Governor appoints, including the Premier of British Columbia, who is president of the Executive Counsel.”

[64] The statutory power at issue under s. 4 is simply the power to appoint a person to do that which the legislature has already directed he do – sign the TFNFA Act. This is not a statutory power of decision making. As observed by counsel for the Minister, this case is not about the way in which the statutory power to appoint a Minister to sign the TFNFA Act may or may not be exercised. I agree with this submission.

[65] The petitioners also rely on certain Orders in Council to ground their argument that the respondent Minister, and not the Crown, is not only the proper respondent, but that his authority to negotiate treaties is conferred by a statutory enactment. The petitioners say at paras. 11 to 13 in their written submissions:

The jurisdiction and legal authority of the Minister to negotiate the TFNFA derives from two enactments:

(a) Schedule A to the Order in Council No. 565, dated June 5, 2001, which transferred “the duties, powers and functions of the Minister of Aboriginal Affairs and the Minister of Aboriginal Affairs respecting negotiations…and treated settlements…to the Attorney General and Minister Responsible for Treaty Negotiations.”

(b) Appendix A (p.4) of the Order in Council No. 450, dated June 16, 2005, which transferred “the duties, powers and functions of the Attorney General and Minister Responsible for Treaty Negotiations respecting negotiations…treaty settlement…to the Minister of Aboriginal Relations and Reconciliation.

Being charged with public duty of treaty negotiations, the Minister had the responsibility to ensure that such negotiations and settlements proceeded in a constitutional fashion. In other words, the Minister must perform his duties in a constitutional manner.

Such public duties, pursuant to valid enactments are reviewable by this Court pursuant to the Judicial Review Procedure Act.

[66] These enactments must be considered in the context of the general structure of the executive of government. These Orders in Council are like many others – they describe the portfolios of a Minister. The Constitution Act requires a government on taking office to appoint an executive and define their portfolios. It does not follow that everything every Minister does in the performance of his ministerial duties is an exercise of a statutory power and reviewable under the JRPA.

Conclusions as to Applicability of Prerogative Writs

[67] What is at issue here is not the specific power of appointment of the Lieutenant Governor in Council, but rather the duty of the Crown acting honourably to consult and accommodate the petitioners’ asserted aboriginal rights and title interests. As Southin J.A. said this duty is “upstream” of the act of ratification and signing of the TFNFA.

[68] I conclude that when the Minister engaged in negotiations leading finally to the signing of the TFNFA Act, he was exercising either his prerogative powers or his natural person powers. These powers precede the enactment of the TFNFA Act and are not dependent on the statutory power to sign the TFNFA delegated under the TFNFA Act.

[69] The prerogative remedies, to which the pragmatic and functional analysis (see Pushpanathan v. Canada (Minister of Employment and Immigration), [1998] 1 S.C.R. 1222, 11 Admin. L.R. (3d) 130) would apply, do not easily lend themselves to a judicial review under the JRPA of the Minister’s conduct in negotiating a treaty with an aboriginal group.

[70] The statutory enactment circumscribes the JRPA analysis. Did the delegated person comply with the statute when he exercised his decision making power? Such an analytical paradigm does not apply here.

[71] The petitioners’ appropriate remedy is to commence an action to seek a declaration concerning the Crown’s responsibility to consult and accommodate, and, if necessary, interim relief. Such a remedy affords all interested parties the opportunity to participate fully in the action. Although Canada and the TFN participated as interveners at the hearing of this action and even though their interests are vitally affected, they did not have the full spectrum of participatory rights in the litigation.

[72] I conclude that this Court does not have jurisdiction pursuant to the JRPA to grant the remedies sought herein.

Conversion to a Declaration

[73] Before turning to the merits of this case, I will consider if it is appropriate to convert these JRPA petitions to actions.

[74] There is authority for the proposition that in the course of a chambers application under R. 52(11)(d) of the Supreme Court Rules, B.C. Reg. 221/90, the Court can convert a petition to an action and treat the matter as an interlocutory injunction in the context of an application for a declaration (see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2001 BCCA 647, 208 D.L.R. (4th) 301; Sherar v. Samson’s Poultry Farm (1973) Ltd. (1979), 15 B.C.L.R. 283, 12 C.P.C. 315 (B.C.S.C.)). Although at first blush this seems an attractive resolution to the procedural defect in these proceedings, I am not prepared to hear this matter as if it were now converted, because the Attorney General for Canada and the TFN are not parties in the existing action. If they were full parties, they would have been in a position to tender affidavit evidence. Although the TFN did tender affidavit evidence, Canada did not, perceiving that its role as an intervener precluded it from doing so. In particular, Canada says it would have filed affidavits or called evidence dealing with the question of the non-derogation clause in the TFNFA. The TFN says it would have sought orders permitting it to cross-examine on the affidavits. Consequently, although the parties may apply to convert this petition to an action in the future, it would not be in the interest of justice for me to treat it as such at this stage.

[75] As indicated above, I would also dismiss the petition on the substantive ground. I therefore turn now to the question of whether the Minister breached his constitutional duties and if so, what remedy would be appropriate to redress that harm.

DUTY TO CONSULT AND ACCOMODATE

Negotiation of TFNFA

[76] The circumstances leading to the initialling of the TFNFA are not in dispute.

[77] In September, 1992, Canada, British Columbia, and the First Nations Summit agreed to a treaty process for resolving disputes over aboriginal rights and title in British Columbia. The process was based upon recommendations made by the British Columbia Claims Task Force (composed of representatives from British Columbia First Nations peoples, Canada, and the Province). That task force recommended at point no. 8 that “First Nations resolve issues related to overlapping traditional territories among themselves.”

[78] The treaty process is voluntary and open to all First Nations in the Province. A “First Nation” for the purpose of treaty negotiations under this process may be a band established under the Indian Act, R.S.C. 1985, c. I-5, a traditional tribal organization according to a hereditary system, or a tribal council which may be a political alliance of bands or tribes.

[79] There are 195 Indian Act “bands” eligible for enrolment in the BC Treaty process. As of May 22, 2007, 108 bands were participating in treaty negotiations in the Province, representing approximately 55% of the eligible bands in the Province.

[80] The petitioners Tsawout, Tsartlip, and Pauquachin First Nations and the petitioners SFN are not in treaty negotiations.

[81] There are six stages to treaty negotiations under the BC Treaty process, they are as follows:

STAGE 1: Submission of Statement of Intent to Negotiate a Treaty

STAGE 2: Preparation for Negotiations

STAGE 3: Negotiation of Framework Agreement

STAGE 4: Negotiation of Agreement-in-Principle

STAGE 5: Negotiation to Finalize a Treaty

STAGE 6: Implementation of the Treaty

[82] The treaty negotiation process does not require a First Nation to prove, in the legal sense, its aboriginal rights and title. The process is based on the assertion of the existence of aboriginal rights and title by the negotiating First Nation. This assertion is used by the Province for the purpose of identifying the interest or areas which the First Nation wishes to negotiate. There is no evaluation or assessment of whether the asserted claims are sufficient to meet the legal criteria for the proof of aboriginal rights and title.

[83] For the purpose of the treaty negotiation process, neither Canada nor British Columbia accepts or denies any First Nation’s assertion of aboriginal rights or title.

[84] Under the British Columbia Treaty Process, the First Nations are allocated negotiation support funding.

[85] According to the affidavit of Bronwen Beedle, Chief Negotiator employed by the Ministry of Aboriginal Relations and Reconciliation and responsible for the TFN Treaty Table, at the outset of the treaty process, the parties determined that the most respectful way to address the resolution of overlap issues between First Nations was to ensure these issues were addressed internally between the First Nations first.

[86] Ms. Beedle acknowledges, and at the hearing counsel acknowledged that, where overlap concerns are not resolved between First Nations, the Province has a duty to consult with First Nations whose asserted aboriginal rights and/or title claims might be adversely impacted by the implementation or the operation of a treaty agreement.

[87] Ms. Beedle deposed that, during the course of negotiations under the British Columbia Treaty Process,:

The Province has taken the view that the time to engage in these consultations is after the First Nations themselves have had an opportunity to try to resolve these disputes internally, and after a Final Agreement has been initiated thereby ensuring that the consultations have utility.

[88] Ms. Beedle also deposed that there are 53 Indian Bands and one other aboriginal group whose claimed traditional territory overlaps with that of the TFN. (Since the commencement of these petitions, a third similar petition was filed by Chief (Richard) Harvey Alphonse on behalf of the Cowichan Tribes in Action Vancouver S076136. The petition was not heard because the overlap issues were settled through negotiations between the Cowichan and the TFN.)

[89] Treaty negotiations with the TFN commenced on December 16, 1993. The parties signed a framework agreement on August 2, 1997.

[90] On March 15, 2004, the TFN, British Columbia and Canada signed an Agreement-in-Principle (stage 4). The Final Agreement (stage 5) was initialled on December 8, 2006.

[91] On July 25, 2007, the TFN voted in favour of ratifying the TFNFA.

[92] Ms. Beedle describes the process for ratification of the TFNFA:

The process for ratification of the Final Agreement is governed by Chapter 24 of the TFA. Now that the TFN has voted in favour of ratifying the TFA, the Province will take steps to introduce a settlement bill into the Legislature for the purpose of giving effect to the TFA. Assuming the settlement bill is passed as an Act of the Legislature, the federal government would then seek Cabinet approval of the TFA. Assuming the federal Cabinet approves the TFA, and all other obligations have been met, all three parties to the agreement, the Province, Canada and the TFN, would then sign the TFA. Assuming the TFA is signed by all three parties, the federal government would then introduce a settlement bill in Parliament for the purpose of giving effect to the TFA. Assuming the federal bill is introduced and passed as an Act of Parliament, the parties will then negotiate the effective date of the Treaty. At present, I estimate that the effective date for the TFA will be no sooner than January 1, 2009.

The SFN and the Sencot’en Alliance Consultation Efforts over the TFNFA

[93] I will now chronicle the efforts made by the SFN and the Sencot’en Alliance to consult with the Crown concerning the possible overlap of claims as between the traditional territories asserted by these petitioners, and those asserted by the TFN.

[94] On May 23, 2003, the SFN wrote to British Columbia and Canada stating that it was concerned about treaty negotiations with the TFN that affected the SFN rights and traditional territory and specifically requested British Columbia and Canada to directly engage with the SFN to resolve these issues.

[95] On August 6, 2003, the SFN’s legal counsel wrote to British Columbia and Canada expressing concern about the progress of the Tsawwassen treaty negotiations. The SFN was concerned that treaty negotiations had reached the Agreement-in-Principle stage and would adversely impact the SFN claimed traditional territory. In response to the August 6, 2003, letter, the Treaty Negotiation Office responded by advising the SFN that the Province did not require that shared territory (“overlap”) issues be resolved at the time a non-binding Agreement-in-Principle is signed. The Treaty Negotiation Office indicated it hoped that direct discussions between the TFN and its neighbours would be productive and satisfactory, but acknowledged the serious nature of the issues raised.

[96] By letter dated October 7, 2003, the federal Minister of Indian Affairs and Northern Development also responded to the August 6, 2003, letter. The Minister advised the SFN that “Canada continues to support the recommendation of the British Columbia Task Force that First Nations resolve shared territory issues among themselves.”

[97] In 2006 and 2007, the SFN and the Sencot’en Alliance requested meetings with Canada, British Columbia and the BC Treaty Commission to discuss their concerns about how their rights were being ignored and adversely impacted by the Tsawwassen Treaty Negotiations and Agreements. They also requested funding to effectively engage in consultations.

[98] Neither government consulted with the SFN or the Sencot’en Alliance prior to the December 8, 2006, initialling of the TFNFA.

[99] On January 2, 2007, Canada and British Columbia jointly wrote to the Sencot’en Alliance stating, among other things,:

The purpose of this letter is to begin a process of consultation with you with respect to the initialled TFNFA. In particular, the governments of Canada and British Columbia seek your views on how the TFNFA may adversely affect Sencot’en Alliance First Nation claims to aboriginal rights or title…As a next step, we would like to arrange a meeting in early 2007…We propose that the Chief Negotiators for Canada and British Columbia would provide an overview of key provisions in the final agreement and invite your views on any potent

Citation:	*Cook v. The Minister of Aboriginal Relations and Reconciliation,*
	2007 BCSC 1722