IN THE SUPREME COURT OF BRITISH COLUMBIA
Cook v. The Minister of Aboriginal Relations and Reconciliation,
2007 BCSC 1722
In the Matter of the Judicial Review Procedure Act, R.S.B.C. 196, c. 241
Cook, Chief Councillor, Kevin Cook and Joanne Charles, Councillors, Suing
on their own behalf and on behalf of all of the Members of the Semiahmoo First
Nation, the Semiahmoo First Nation Council and the Semiahmoo First Nation
The Minister of Aboriginal Relations and Reconciliation
- and -
In the Matter of the Judicial Review Procedure Act, R.S.B.C. 196, c. 241
Chief Allan Claxton on his own behalf and on behalf of the members of
First Nation; and the Tsawout First Nation;
Chief Chris Tom on his own behalf and on behalf of the members of the
Nation; and the Tsartlip First Nation;
Bruce Underwood, on his own behalf and on behalf of the members of the
Pauquachin First Nation; and the Pauquachin First Nation
The Minister of Aboriginal Relations and Reconciliation
Before: The Honourable Madam Justice Garson
Reasons for Judgment
Counsel for the Cook Petitioners:
Counsel for the Claxton Petitioners:
Counsel for the Respondent, The Minister of Aboriginal Relations and Reconciliation:
Counsel for the Intervenor, Tsawwassen First Nation:
Counsel for the Intervenor, Attorney General of Canada:
Date and Place of Hearing:
September 17 to 20 and November 9, 2007
 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.
 These two petitions, by agreement, were set down to be heard together because they seek the same relief relating to the TFNFA.
 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.
 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.
 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.
 Neither Canada nor the TFN were named as a respondent in these petitions, but both appeared as interveners at the hearing of the petitions.
 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.
 The petitioners argue that the remedies they seek under the JRPA are not limited to specific statutory powers.
 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.
 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.
 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,  3 S.C.R. 511.
 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.
 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.
 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.
 I have concluded that the petitions should be dismissed on both the procedural and substantive grounds for reasons that follow.
 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.
 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.
Judicial Review Procedure Act
 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
 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.
 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
 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.
 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, 4th 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]
 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.
 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.”
 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.
 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]
 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.
 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
 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?
 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.
 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.
 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.
 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.
 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.
 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,  2 S.C.R. 539, 8 B.C.L.R. (2d) 273.
 The petitioners cling to this statement by Southin J.A. for the proposition that it is not necessary to identify any precise statutory power.
 Ms. Mrozinski, for the Minister, argues that Air Canada v. Attorney General of British Columbia,  2 S.C.R. 539, 8 B.C.L.R. (2d) 273 is not authority for the proposition cited by Southin J.A.
 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.
 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.
 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.).
 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.
 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.
 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.
 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. (4th) 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.
 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,  Q.B. 815,  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.
 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.
 The decision in McDonald v. Anishinabek Police Service (2006), 276 D.L.R. (4th) 460, 55 Admin. L.R. (4th) 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.
 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]
 In Martineau v. Matsqui Institution (No. 2),  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.
Conclusions on Prerogative Remedies
 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.
 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
 The powers of the Crown are derived from two sources, statutes and common law: see Hogg & Monohan, Liability of the Crown, 3rd 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.
 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.”
 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. (4th) 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.
 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.
 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,  1 S.C.R. 311, 111 D.L.R. (4th) 385.
 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.
 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.
 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.
 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.”
 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.”
 Section 27(1) of the Interpretation Act defines the “Executive Council” as “… the Executive appointed under the Constitution Act.”
 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.”
 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.
 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.
 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
 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.
 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.
 The prerogative remedies, to which the pragmatic and functional analysis (see Pushpanathan v. Canada (Minister of Employment and Immigration),  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.
 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.
 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.
 I conclude that this Court does not have jurisdiction pursuant to the JRPA to grant the remedies sought herein.
Conversion to a Declaration
 Before turning to the merits of this case, I will consider if it is appropriate to convert these JRPA petitions to actions.
 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.
 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
 The circumstances leading to the initialling of the TFNFA are not in dispute.
 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.”
 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.
 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.
 The petitioners Tsawout, Tsartlip, and Pauquachin First Nations and the petitioners SFN are not in treaty negotiations.
 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
 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.
 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.
 Under the British Columbia Treaty Process, the First Nations are allocated negotiation support funding.
 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.
 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.
 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.
 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.)
 Treaty negotiations with the TFN commenced on December 16, 1993. The parties signed a framework agreement on August 2, 1997.
 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.
 On July 25, 2007, the TFN voted in favour of ratifying the TFNFA.
 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
 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.
 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.
 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.
 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.”
 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.
 Neither government consulted with the SFN or the Sencot’en Alliance prior to the December 8, 2006, initialling of the TFNFA.
 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 potential impacts…
 A similar letter was sent to the SFN.
 On January 16, 2007, Eric Pelkey of the Sencot’en Alliance responded to the aforesaid offer as follows:
We have received a letter from Mr. Tim Koepke, Chief Federal Negotiator for the Tsawwassen Treaty suggesting that he will organize a meeting. This is not acceptable to us, since we are interested only ensuring that this treaty not be signed off by your two governments until our issues are resolved…We request a meeting with the Governments of Canada and British Columbia, Tsawwassen First Nation and Mr. Steven Point, of the BC Treaty Commission to discuss these matters...
 On January 29, 2007, Mr. Point wrote back to the Sencot’en Alliance indicating that he would convene such a meeting. The meeting was convened on March 16, 2007. Ms. Beedle deposes in her affidavit that the purpose of the meeting was to discuss overlap issues arising from the proposed TFNFA, but that Eric Pelkey declined to hear the overview presentation indicating that the Sencot’en Alliance needed funding to prepare for consultations. Canada and the Province agreed to receive and review a budget proposal to support their consultation requirements. Minutes of the March 16, 2007, meeting disclose that representatives of the SFN and the Sencot’en Alliance were in attendance as well as the TFN, Canada Treaty Negotiators, British Columbia Negotiators and British Columbia Treaty Commissioners. Mr. Pelkey, on behalf of the Sencot’en Alliance, explained the Sencot’en Alliance history and that the TFN core areas did not extend into Sencot’en Alliance territory with the possible exception of the some shared sites. He expressed concern about lack of consultation by government and infringement of the Sencot’en Douglas Treaty rights (which I will discuss below). Representatives of the SFN indicated that they did not oppose the TFNFA as long as there was no infringement of their rights. The TFN indicated that it had no intention of affecting the Sencot’en Alliance rights. Canada and British Columbia proposed to outline how the TFNFA addressed potential infringements and to give an overview presentation, but the SFN and the Sencot’en Alliance representatives declined to hear the government’s presentation, indicating that they needed time to address questions with their communities and to seek legal advice and also that they needed resources for consultation. They were invited to provide a budget for consultation to the Treaty Commission.
 On March 23, 2007, Eric Pelkey requested funding for consultation in the amount of $83,500.
 On May 9, 2007, the Treaty Negotiation Office indicated that they would fund the Sencot’en Alliance and the SFN $15,000 each to undertake consultation activities for assessing areas of potential overlap between the TFNFA and the petitioners asserted aboriginal claims.
 On May 29, 2007, another meeting was convened between the Sencot’en Alliance, the SFN and the treaty negotiators. Canada and the Province tried to make the overview presentation again, but the SFN and the Sencot’en Alliance declined to receive the presentation. Ms. Beedle is reported to have apologized for the delay in funding; indicated that there were changes at the very end of the negotiation process that would have been premature to consult about until the end and indicated “yes we should have consulted sooner.” She is reported to have said that the presentation is a consultation tool and some of their questions would be answered in the presentation “and that the non-derogation [provisions in the TFNFA] help to protect their interest in the Gulf Islands.” Mr. Pelkey of the Sencot’en Alliance indicated that they needed funding for an independent legal review of the impact of the proposed treaty and the funding and the time that were provided were insufficient. Canada and the Chief Federal Negotiator wrote Mr. Pelkey on July 9, 2007, suggesting the third consultation meeting take place in July, and acknowledging that the SFN had filed the within petition on June 29, 2007.
 On July 11, 2007, Mr. Pelkey of the Sencot’en Alliance set out their position. The following is the full text of this letter:
Dear Ms. Beedle and Mr. Koepke:
I saw your joint letter Tuesday, since it was received late on Monday afternoon.
Sencot’en C’A,I, Newel has been actively seeking discussions with the two governments around the possible infringements of Sencot’en rights by the Tsawwassen Treaty for a number of years. However in order for there to be effective discussions, Sencot’en must have access to unbiased information and advice so that Sencot’en leaders, members and communities can make a fair assessment of the impacts on Sencot’en existing rights, or the treaty proposed.
So far there have been no “consultation” meetings between either government and the Sencot’en C’A,I, Newel. If you recall, at our first meeting with yourselves, Tsawwassen and the Treaty Commission on March 16th, 2007, we specifically declined to have any discussion at all about the Tsawwassen Final Agreement, since we had no ability to review the document with any understanding of the context and detail which produced it, nor did we have any independent legal advice so that we could begin assessing the Tsawwassen Final Agreement.
In March you expressed concern that we had refused to listen to your presentation on the TFA. As we stated at the time, we needed the resources so that we could undertake our own review, before we listened to your views on the document. We still have that concern.
We attended the May 29th 2007 meeting and received at that meeting slightly less money than the small legal budget for a first review of the Tsawwassen Final Agreement which had been part of our much larger funding request in March. There are no resources for the Sencot’en C’A,I, Newel to interact with the lawyer we wanted to hire, or to hold Sencot’en C’A,I Newel meetings, or to undertake any of the fundamental background work so that we could do any assessment at all of what this Treaty might mean in relation to our interests.
We came in May, specifically to ask some questions about where our opportunity was for appropriate discussions with both governments, leading to accommodation of our interests. We had expected a response that reflected the government’s legal responsibility to engage in consultation leading to accommodation.
At that meeting both of you made it clear that one of the important options for accommodation, was not available to us. Specifically there appeared to be no ability for your two governments to change the terms of the Tsawwassen Final Agreement to accommodate our rights prior to the ratification vote.
Instead, all that you appeared to want to discuss was the “non-derogation” clause. Both governments seemed to think that using these phrases somehow protected our interests. We did ask questions about what it meant, but did not hear the answers we expected from government.
We understand that the purpose of “consultation” is to avoid infringements of all the elements in our bundle of rights; to accommodate them wherever possible, and to mitigate whatever impacts there might prove to be.
As it was described to us by you in our meeting, it appears that these “non-derogation” clauses mean we have to go to court to establish our existing Section 35 rights. We thought that recent Court rulings meant we didn’t have to do that any more. We think that is not lawful to force any First Nations to go to court to prove our Constitutionally Protected rights, BEFORE the governments are willing to identify, accommodate, and possibly mitigate that infringement.
Sencot’en C’A,I, Newel has been asking for the discussions which would lead to a consultation process to begin since 2005. Sencot’en C’A,I, Newel will meet with the Crown provided that all accommodation measures are on the table and that the meeting will be more than just an opportunity to blow off steam. Such accommodation measures must include consideration of amendments to the Final Agreement prior to ratification.
Eric Pelkey, Coordinator, Sencot’en C’A,I, Newel.
 On August 2, 2007, British Columbia wrote to the Sencot’en Alliance stating:
I want to emphasize firstly that our position is not that the Sencot’en must prove their rights and title claims in court before the Crown is obliged to consult with respect to potential infringements that might arise out of the Tsawwassen Treaty. However, it is important to bear in mind that the non-derogation clause in the Tsawwassen Treaty completely protects these rights, once proven, from any adverse impact arising from the operation of the Treaty.
 The letter also stated that:
In a preliminary review of the ethno historic evidence related to the rights and title claims of the Semiahmoo and the Sencot’en, it does not appear to us that the Tsawwassen Final Agreement will have any appreciable affect on these claims.
 No further consultation has taken place.
 Mr. Pelkey describes the Crown’s position in the following way:
· The Crown has been aware of the Sencot’en concerns for some time and decided to delay consultation;
· The Crown believed that to consult before the details were “firm” would not be useful; and
· The rights under the TFNFA are not exclusive rights that could adversely affect the rights of the Sencot’en First Nation members.
 This is a fair statement of the Crown’s position, including at this hearing.
 Mr. Pelkey expresses concerns that the TFNFA will make it more difficult for members of the Sencot’en Alliance to hunt and fish in their traditional territories.
Tsawwassen Evidence Concerning its Efforts to Negotiate Overlaps and Petitioners Response
 The TFN filed its territorial claim in the British Columbia Treaty process in 1993. Ms. Beedle deposes that:
The TFN treat negotiation completed Stage 2 (declared ready for negotiations) in October, 1995, and the parties signed a Framework Agreement (Stage 3) on August 2, 1997. On the question of overlaps, the Framework Agreement states that the TFN “will make best efforts to resolve overlaps with First Nations who claim to have an overlap.”
 The TFN contacted other aboriginal groups with whom it might have shared overlapping territorial claims.
 The TFN says in its written submissions as follows:
As early as the spring of 1995, TFN have attempted to engage with the Petitioners about the treaty. TFN first wrote to SFN in April 1995 to specifically request if TFN’s Statement of Intent boundary appeared to overlap with SFN’s asserted traditional territory. TFN invited them to provide information. SFN was unresponsive. From 1995 to 2007, TFN wrote SFN at least 13 times about the Treaty or to meet with them. The record is clear that TFN efforts to engage with SFN were generally met with silence. Moreover, what little correspondence was generated by or on behalf of SFN about the treaty was either copied to TFN or it was obtained by TFN from secondary sources. With the exception of one reply letter from SFN dated July 17, 1999, TFN has never received a written letter directly from SFN about the Treaty.
 This paragraph is based largely on the evidence of Chief Kimberly Baird.
 In written submissions, the TFN argue that there would be no irreparable harm to the petitioners were the TFNFA to be ratified by the Crown.
 Chief Cook disputes the affidavit evidence of Chief Baird about attempts to meet. However, I find the affidavit evidence of Chief Baird persuasive. Chief Cook does not specifically respond in his affidavits to the detailed assertions about the TFN’s efforts to meet with the SFN. I accept Chief Baird’s evidence about the TFN efforts to negotiate overlap or shared territory agreements with the SFN.
 Chief Cook appears to take the position that he will not meet with the TFN unless they commit to the possibility of changing the TFNFA.
 I have reached the conclusion that the TFN made numerous efforts to engage the SFN in discussion about potential overlaps between their traditional territories, but the SFN declined to enter into any dialogue on the question directly with the TFN.
 Chief Baird deposes that the Sencot’en Alliance did not respond to the TFN efforts to address overlapping claims. Her first indication of an expressed overlap issue with the SFN was when she received (from, as she says, “secondary sources”) a copy of the Sencot’en Alliance “Territorial Declaration” in 2006. I infer from her affidavits that prior thereto she was not aware of potentially overlapping claims of the Sencot’en Alliance.
 The Sencot’en Alliance and the TFN began directly communicating about overlap issues in January 2007. The first meeting, which involved representatives from the Sencot’en Alliance, the TFN, the Province, Canada and the BC Treaty Commission, was held on March 16, 2007. The minutes of the meeting show that the Sencot’en representatives indicated that they thought they should work out shared territory arrangements amongst the First Nations, as they would have traditionally. A second meeting, the “Cultural Event”, was held on June 28, 2007.
 Chief Baird described the June 28, 2007, meeting (the “Cultural Event”) with the SFN, the Sencot’en Alliance, and The Honourable Steven Point, Chief Treaty Commissioner. The meeting primarily addressed harvesting and resource sharing, which she thought was the primary concern of the Sencot’en Alliance. Chief Baird said the meeting closed with a commitment to further meetings concerning overlap and shared territory issues. But on June 29, 2007, this petition was filed. The petitioners say that they were informed by Canada and British Columbia on May 29, 2007, that there would not be substantive changes to the TFNFA unless all three parties to the TFNFA agreed to a change.
 The explanation for the petitioners’ reticence is that it is the Crown’s responsibility to negotiate with them, and that responsibility cannot be delegated. Chief Cook explains his position in his affidavit (paras. 9 to 13 and 16):
In further response to paragraph 23 the Minister has refused to confirm that he will not complete the ratification by the Province or sign the Final Agreement until the consultation process with Semiahmoo has been completed. That is the reason it has been necessary for us to come to the courts to protect our rights for proper consultation and accommodation.
In answer to paragraph 29 of the Beedle Affidavit, Semiahmoo and Sencot’en were aware of what the “Overview Presentation” was intended to be, as a result of discussions with other First Nations with whom Canada and British Columbia had met. The “Overview Presentation” is a standard Powerpoint presentation given by Canada and the Province to explain the non-derogation clause.
Because this was a standard presentation which would be given to any First Nation interested in the Tsawwassen agreement, we were concerned that it was neither intended to nor did it address the specific impacts on Semiahmoo. Furthermore, prior to meaningful consultation, we had to have the resources to conduct an independent review of the Final Agreement.
In answer to paragraph 36 of the Beedle Affidavit and Exhibit ‘Z” to the Beedle Affidavit, the very problem raised by the Minister in his response is that the non-derogation provisions in the Tsawwassen treaty will only protect those rights that have been proven in a court of law. The refusal of the Crown representatives to recognize that accommodation may require changes to the final agreement prior to ratification has necessitated the Semiahmoo to bring this action to protect our rights to proper consultation in accordance with the mandate of the Supreme Court of Canada in the Haida decision.
Furthermore, as of June 28, 2007 when the Tsawwassen were directly asked if they would agree to changes to the Final Agreement in order to address the consultation issue, they refused to reply.
In further answer to the Beedle Affidavit and in particular Exhibit “Z”, the author of the letter is the Chief Negotiator for the Province who has been immersed in Tsawwassen negotiations and therefore has a vested interest in ensuring finalization and ratification of the Tsawwassen treaty. The Minister has not appointed a neutral representative who could objectively assess the strength of claim of Semiahmoo and the potential impact of this treaty on Semiahmoo. Furthermore, the Minister through his representative Ms. Beedle has pre-judged the Provincial and Federal Crown “will always be able to meet their obligations and consult and accommodate any adverse impacts on the asserted rights of the Semiahmoo and Sencot’en” which effectively precludes any meaningful consultation as the Crown’s representatives have effectively decided that there will be no necessity for any modification or change to the Tsawwassen Final Agreement as the impacts will be minimal and all impacts can be addressed.
 From this background it is clear that the Crown relied on the policy articulated in the British Columbia Claims Task Force that overlapping claims of aboriginal groups should first be negotiated between these groups. It is equally clear that the petitioners, unlike most other aboriginal groups with potentially overlapping claims with the TFN, chose not to enter into any discussions with the TFN. The petitioners do not recognize any obligation on their part to negotiate with the TFN. They say the Crown’s honour obliges the Crown to negotiate with the petitioners.
 The pertinent provisions of the TFNFA, for the purposes of these reasons for judgment, are the non-derogation provisions, the ratification provisions, the minor changes before signing provision, and the implementation provisions. These provisions are set out in the Appendix to this judgment.
 The non-derogation provision provides that nothing in the agreement affects the aboriginal rights of aboriginal groups who are not a party to the TFNFA.
 The ratification provisions require ratification by the TFN, British Columbia, and Canada. The Province and Canada must enact settlement legislation in order to ratify the TFNFA.
 The minor changes before signing clause permits the parties to make only minor changes to the TFNFA before it is signed.
 The implementation provisions provide for a ten-year implementation period. The effective date of the TFNFA, from which date the implementation provisions begins to run is, according to Ms. Beedle, left open for negotiation. She expects the effective date to be no sooner than January 1, 2009.
 The issue raised by these petitions, assuming there is no procedural impediment, is whether ratification of the TFNFA by the designated Minister fetters the Crown’s ability to honour its constitutional obligations to the petitioners. The petitioners argue that the Minister ought to have consulted with them with respect to their overlapping claims prior to concluding negotiations over the TFNFA. They argue that the Minister is committed to implementing the TFNFA without any significant change and thus will have no ability to consult and accommodate their aboriginal interests after the ratification of the TFNFA.
 British Columbia acknowledges its duty to consult with other aboriginal groups that have overlapping claims and, where infringement is demonstrated, to accommodate the infringed interest. British Columbia says that the Non-Derogation provision in the TFNFA preserves the aboriginal interests of the petitioners. The provision acknowledges the Province’s obligation to consult about any potential infringement.
 The TFN argues that it repeatedly invited the petitioners to discuss resolution of any overlapping claim issues as the TFN progressed through the treaty negotiation process, but the petitioners were unresponsive. The TFN argues that the TFNFA does not infringe the aboriginal interest of the petitioners.
 Canada supports the position of British Columbia and the TFN.
The Nature of the Alleged Infringement on the Aboriginal Claims of the Semiahmoo Petitioners
 The SFN claims in its petition that its traditional territories have been demarcated through extensive archaeological and ethnographic studies. The SFN claims that its traditional territory includes much of Boundary Bay. So does the TFN.
 At paras 37 to 38 of the SFN petition, it is alleged that the TFNFA grants rights to what is defined as “Other Tsawwassen Lands”. It is alleged that these Other Tsawwassen Lands fall within the SFN traditional territory. The aerial photo map annexed to the Liesch affidavit filed by British Columbia identifies and locates these lands within the SFN traditional territory. It is a very, very small fraction of the total claimed traditional territory. Chief Baird’s response to this asserted infringement is that these lands will be under the jurisdiction of the Corporation of Delta, and that it is not clear how the TFNFA will impact the SFN’s claimed aboriginal rights in respect to this parcel of land.
 At paras. 39 to 40 of their petition, the SFN alleges that the TFNFA will transfer to the TFN, in fee simple, several parcels of land that are within the SFN traditional territory. Chief Baird deposes at para. 143 of her first affidavit:
The Sencot’en refer to their “absolute” aboriginal title and their rights to their core territory in the June 21, 2006, Sencot’en Territorial Declaration. Otherwise, neither the SFN nor the Sencot’en petitioners make clear whether they claim rights and title to their asserted territory.
 At paras. 41 to 45 of the petition, the SFN complains that the TFNFA grants the TFN extensive fishing rights in Boundary Bay. The SFN claims that Boundary Bay is within its traditional territory. Chief Baird responds to these paragraphs of the petition at paras. 163 to 176 of her first affidavit and para. 7 of her second affidavit. She points out that the TFNFA includes both a commercial fishery and an aboriginal food, social and ceremonial fishery. She highlights some key components of the complex fishery regime, some of which will not operate under the TFNFA, but rather under a non-treaty side agreement. She highlights the fact that the commercial fishery is an abundance based fishery and that it will be governed by a Joint Fisheries Committee. She says that the TFN does not gain a priority over other users, including the SFN, under the TFNFA.
 At paras. 46 to 48 of the petition, the SFN complains that the TFNFA purports to grant to the TFN the right to harvest wildlife in an area that is within the SFN’s traditional territory. Chief Baird says the wildlife harvesting rights granted are limited because the TFN reserve is within a heavily urbanized area. Chief Baird notes that the TFN agreed that its hunting in Burns Bog would be in compliance with the Burns Bog Management Agreement, which prohibits hunting in Burns Bog except in accordance with laws of general application. Chief Baird also notes that the TFN right to harvest wildlife under the TFNFA is non-exclusive and therefore does not limit or preclude other First Nations from also harvesting wildlife.
 At paras. 49 to 50 of the petition, the SFN complains that the TFNFA grants to the TFN the right to harvest migratory birds in an area that is in part of the SFN traditional territory. Chief Baird says that the rights granted under the TFNFA are subject to conservation, public health and public safety measures and are non-exclusive and therefore do not limit or preclude other First Nations from also harvesting migratory birds.
 At paras. 51 to 53 of the petition, the SFN complains that the TFNFA grants to the TFN the right to gather plants in an area that is within the SFN traditional territory. The SFN also complains that the TFNFA grants to the TFN rights of ownership of trees and other forest resources that lie within the SFN’s traditional territory. Chief Baird notes the geographic limitations to this right given the urban nature of the TFN claimed territory. She also notes that the right is non-exclusive, thus not limiting the same rights of other First Nations.
 At paras. 54 to 55 of the petition, the SFN complains that the TFNFA grants to the TFN the right to harvest renewable resources in National Parks and National Marine Conservation Areas that are located in the SFN traditional territory. Chief Baird again notes that the right is non-exclusive and does not limit other First Nations from harvesting renewable resources.
 At para. 56 of the petition, the SFN complains that the TFNFA grants to the TFN the right to make agreements related to preserving cultural resources in territory that the SFN says falls within its own traditional territory, and is on Crown land. The SFN alleges that these provisions give priority to the TFN over these cultural sites. Chief Baird notes that the TFNFA does not grant a priority to the TFN but rather it simply provides for the TFN’s participation. She notes that the cultural resource rights are permissive and non-exclusive. She also notes that:
Pursuant to the TFNFA (Chapter 14, clause 27), where there are competing claims to archaeological human or associated burial objects, the TFN must provide Canada or British Columbia with written confirmation that the claim has been resolved before the transfer proceeds.
The Nature of the Alleged Infringement on the Aboriginal Claims of the Sencot’en Alliance
 The Sencot’en Alliance asserts claims to aboriginal title and rights over a territory including, but not limited to, the islands in the Strait of Georgia. They assert that they have exclusively used and occupied the Saanich Peninsula, all of the Southern Gulf Islands, Point Roberts, Boundary Bay, and the Lower Fraser River, in the Strait of Georgia, since time immemorial.
 The affidavit of Eric Pelkey, Coordinator of the Sencot’en Alliance Steering Committee, notes that the TFN Statement of Intent, was filed in 1993, giving notice of the TFN’s intent to negotiate a treaty, including a description of the territory. The Statement of Intent was posted on a public website associated with the Treaty Commission, and thus was entered into the public domain.
 The Sencot’en Alliance point out that the TFN has no reserves on the Southern Gulf Islands, whereas six reserves were set aside for the Sencot’en Alliance on the Southern Gulf Islands by the Joint Reserve Commission in 1877. Linda Vander Berg indicates in her affidavit that the Joint Reserve Committee did not encounter overlapping land use issues in allotting the Saanich reserves. This, the Sencot’en Alliance says, is evidence of the superior strength of the Sencot’en Alliance’s claim to those islands, compared to the assertion of the TFN to the same territory.
 The Sencot’en Alliance objects to the TFNFA grant of aboriginal rights to the asserted Sencot’en Alliance territory. They say that the TFN have been granted rights in territory that from time immemorial has been recognized as core undisputed territory belonging to the Sencot’en Alliance. They say that the TFN should not have been granted aboriginal rights under the TFNFA on the Southern Gulf Islands.
 The Sencot’en Alliance also rely on their Douglas Treaty rights. The North Saanich First Nations (part of the Sencot’en Alliance) signed the Douglas Treaty in 1852. It provides, “…it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.”
 Counsel for the Sencot’en Alliance petitioners was candid in telling me that he had no evidence and indeed no idea how the TFNFA would adversely affect his client’s aboriginal or Douglas Treaty rights.
 Mr. Grant, for the SFN petitioners, when asked to identify specific areas of infringement, described broad general concerns that impacted almost every substantive area of the TFNFA.
 I have concluded it would be inappropriate, at this time, for me to make findings of fact as to the strength of the petitioners’ aboriginal claims. There is conflicting evidence concerning the historical record of the TFN use of Boundary Bay. Historical use of Boundary Bay is just one example of an issue of a dispute that I cannot resolve on the affidavit evidence before me. The best I could conclude is that the petitioners have demonstrated credible claims about their asserted traditional territories.
 Unlike the chambers judge in Haida, I am not able to determine that the petitioners have strong prima facie claims or otherwise. I have not had the benefit of appropriate testing of the conflicting affidavits tendered by the parties.
 It is not, therefore, possible on the basis of the affidavit evidence to reach more specific conclusions as to potential infringement of the petitioners’ aboriginal rights or title by the TFNFA. There is no obvious case of immediate or irreparable harm to those rights. The petitioners argue that they cannot be more specific about the potential infringement until they have had an opportunity to consult with the Crown and understand the implications of the TFNFA.
 The burden of the evidence relied upon by the TFN is that there is no infringement and that the petitioners cannot demonstrate any irreparable harm or indeed any harm at all.
 The burden of the evidence and submissions of the petitioners is that it is obvious certain rights have been granted to the TFN in traditional territory of both petitioners. They say that if the TFNFA is ratified the “ship will have left the dock” and they will have no ability to seek accommodation from the Crown if a fuller analysis of the TFNFA demonstrates a strong prima facie case that their rights have been infringed.
The Haida Decision
 I now turn to a consideration of the Haida decision, the Supreme Court of Canada authority relied on by all parties. The Haida case explains the duty to consult.
 The facts in Haida presented a far less complicated scenario than is before me. As noted by MacLachlin C.J.C. and as found by the chambers judge, the Haida Nation had a strong prima facie claim to the Haida Gwaii islands. There was no competing claim by another First Nation. The Crown held legal title to the lands claimed by Haida Gwaii and had granted Weyerhaeuser the right to harvest the forests in certain parts of those lands. The Haida people asserted a claim to title to the land on which the right to harvest the forest had been granted by the Crown to Weyerhaeuser.
 At para. 7, MacLachlin C.J.C. noted:
The stakes are huge. The Haida argue that absent consultation and accommodation, they will win their title but find themselves deprived of forests that are vital to their economy and their culture. Forests take generations to mature, they point out, and old-growth forests can never be replaced. The Haida's claim to title to Haida Gwaii is strong, as found by the chambers judge. But it is also complex and will take many years to prove. In the meantime, the Haida argue, their heritage will be irretrievably despoiled.
 The Court held that the Crown, not Weyerhaeuser, had a duty to consult with and accommodate the interests of the Haida people before transferring the license.
 The judgment in Haida holds that the honour of the Crown may require the Crown to consult and accommodate where its actions may infringe aboriginal rights and title claimed but not yet proven: see Haida at para. 27.
 Also Haida holds that all or nothing injunctive relief is not necessarily the appropriate remedy because the balancing of convenience tests may work against petitioners unfairly. Haida is not authority for the proposition that the Crown is relieved of its duty to consult and accommodate when the object of the alleged infringement is a treaty with another aboriginal group.
 I agree with the petitioners that the Crown cannot run roughshod over one group’s potential and claimed aboriginal rights in favour of reaching a treaty with another (see Haida at para. 27).
 As to when the duty to consult arises, MacLachlin C.J.C. said at para. 35:
But, when precisely does a duty to consult arise? The foundation of the duty is the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it: see Halfway River First Nation v. British Columbia (Ministry of Forests),  4 C.N.L.R. 45 (B.C.S.C.), at p. 71, per Dorgan J.
 At para. 20, MacLachlin C.J.C. described the obligations of the Crown to attempt to negotiate treaties:
Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow,  1 S.C.R. 1075, at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition, and "[i]t is always assumed that the Crown intends to fulfil its promises" (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.
 And at paras. 26 and 27, she explained the obligations of the Crown to consult and accommodate even before aboriginal claims were legally proven:
Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants' inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?
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.
 Although the honour of the Crown cannot be delegated (see Haida at para 53), it is not dishonourable for the Crown to encourage aboriginal groups to consult and reach agreement in respect to overlapping claims. The Crown may set up regulatory schemes to address procedural requirements of consultation (see Haida at para. 51), and may delegate procedural aspects to third parties.
Other Overlap Cases
 It may be helpful to review other judgments of this Court concerning overlap claims.
 In Chief Allan Apsassin et al v. Attorney General (Canada) et al, 2007 BCSC 492,  B.C.J. No. 726 (QL), the petitioner sought an interlocutory injunction to prevent the Lheidli T’enneh Final Agreement from coming into force as a treaty. R.D. Wilson J. held at paras. 27, 32 and 35 as follows:
Substantively, the nugget of the plaintiffs' assertion of irreparable harm, is that if the ratification process is not stopped now, accommodation opportunities available, prior to ratification, will disappear, after ratification. The plaintiffs will lose the opportunity to be consulted about the potential effect of the Lheidli T'enneh final agreement on existing Treaty No. 8 rights, while accommodation measures such as changes to that final agreement are still possible. Once the ratification process starts, say the plaintiffs, all such measures are precluded.
The present case is not a case of the permanent alteration of geography by road construction; or the clear cutting of a forest, as in Haida. I am not persuaded that refusal of an interlocutory injunction at this stage, in this case, will deny the plaintiffs their remedy.
Accordingly, I do not accept the plaintiffs' propositions referred to above. In my view, the plaintiffs' negotiating position does not change. If the plaintiffs are successful at the trial of their action, then the defendants will find that they have accomplished a nullity. The overlap issue will be open, without any predetermined notions impeding a consultative process, and, if appropriate or indicated, accommodation.
 R.D. Wilson J. held as follows at paras. 36-38:
Comparative harm is the factor which I find tips the balance of convenience in favour of refusing the relief sought by the plaintiffs. In my view, neither party will suffer irreparable harm by any decision I may make. I find the plaintiffs' arguments on this aspect of the application compelling, but I do not find them to be dispositive.
Given the recommendations in the report of the British Columbia Claims Task Force of 28 June 1991, and the policies and procedures of the B.C. Treaty Commission of 11 April 1997, addressing the problem of overlapping claims, it is astonishing that this matter has been allowed to come this far without resolution. But it has. And considerable resources have been expended along the way.
I acknowledge that the relief sought by the plaintiffs is limited only to those provisions of the final agreement which touch and concern Treaty No. 8 territory, but I think that any interference with the process at this stage, may attract an undesirable, adverse, result of unduly complicating the Lheidli T'enneh ratification process. Accordingly, the Lheidli T'enneh would be harmed more if the injunction were granted than the plaintiffs will if the injunction is refused.
 In Tseshaht First Nation v. Huu-ay-aht First Nation, 2007 BCSC 1141,  B.C.J. No. 1691 (QL), Meiklem J. declined an application for an interlocutory quia timet injunction to restrain the defendant from carrying out a ratification vote in respect of a Final Agreement reached under the BC Treaty Process. The petition was brought on the grounds that the Final Agreement was alleged to be inconsistent with a previous agreement between the plaintiff, the defendants and a third party regarding overlapping claims. The injunction was sought until the Final Agreement could be amended to be consistent with the overlap agreement. This case is somewhat distinguishable from the case before me because Meiklem J. was able to determine on the evidence before him that the petitioners had a very weak case. However, he did consider a non-derogation clause with identical language to that contained in the TFNFA. He held at para. 25:
In my assessment of the Final Agreement, the defendant is correct in arguing that the non-derogation provisions of the Final Agreement are a complete answer to the suggestion that the Tseshaht’s aboriginal title and rights to the western half of Tzartus Island will be severely infringed. In any event, the Tseshaht’s claim to aboriginal right and title to the western half of the Island does not arise from the WOA but rather from traditional use; the Huu-ay-aht’s overlapping claim to aboriginal right and title to the whole of the Island arises in the same manner. The Final Agreement does not materially alter the status quo in respect of the resource management rights and opportunities of the Huu-ay-aht on the western half of the Island. The Final Agreement does not confer authority over resources to the Huu-ay-aht and they are provided only with an opportunity to make recommendations and offer input to federal and provincial decision-making bodies. If anything, this is less empowering over resource management vis a vis the plaintiff than the provisions of the WOA.
Application of the Law to this Case
 The authorities to which I have referred suggest that the following questions must be asked and answered in this case, in order to determine if the Minister should be prohibited from signing and thus implementing the TFNFA assuming the remedy was available:
· Does or did the Crown have knowledge of the potential infringement sufficient to trigger its constitutional obligation to consult with the petitioners prior to finalizing the terms of the TFNFA?
· If the answer is yes, when did that duty to consult arise?
· If the duty to consult arose before the TFNFA was initialled, are there any factors present in this case that would justify the Crown’s failure to consult prior to initialling the TFNFA? Or, put another way, does the fact that the terms of the proposed TFNFA, and thus any potential infringement, are uncertain through the years of its negotiation suggest that no duty to consult arises until the TFNFA is initialled?
· If there is a duty to consult prior to initialling the TFNFA, what is the content of that duty?
· If the Crown has breached its duty to consult, what is the appropriate remedy? Specifically should implementation of the TFNFA be suspended? How can the court determine the strength of the claim and the seriousness of the infringement before the petitioners have identified the infringement which they cannot do until consultation has occurred?
 As I have already said, it is not possible at this time to make a preliminary assessment of the strength of the petitioners’ claims to aboriginal title and rights, and therefore to identify the infringement. In Haida, by comparison, the Haida people had a strong title and rights claim to all of Haida Gwaii. In Haida, the scope of the alleged infringement, the logging of the cedar, was easily defined.
 Similarly in Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354,  1 C.N.L.R. 1, Phelan J. found that the course of the proposed MacKenzie Valley Pipeline ran right through territory of the Dene Tha’ as defined by Treaty 8, although not through a reserve, and thus the potential infringement was easily defined.
 The Crown’s constitutional obligation to consult is tied not only to knowledge of the asserted aboriginal claims of the petitioners, but also to knowledge that the Crown’s activities may infringe those claims.
 The petitioners seem to argue that the duty to consult arises as soon as the Crown has knowledge of potentially overlapping territory between an aboriginal group with whom it is negotiating a treaty and another aboriginal group.
 I agree with the petitioners that the Crown has for many years had notice of the petitioners’ asserted aboriginal territorial claims.
 But I do not agree this means that the honour of the Crown requires the Crown to suspend its treaty negotiations at every point that a proposed term of the treaty may impact another aboriginal group. While negotiations are ongoing, the Crown is uncertain about infringement. If there is a duty to consult during negotiations, what would be the content of the Crown’s duty to consult with the aboriginal group claiming overlapping territory during the course of treaty negotiations?
 In Haida, MacLachlin C.J.C. did address the problem of consulting when the actual rights were unknown, although in a different context. However she suggested that the duty to consult varies with the strength of the claim. At paras. 36 to 38 she stated:
This leaves the practical argument. It is said that before claims are resolved, the Crown cannot know that the rights exist, and hence can have no duty to consult or accommodate. This difficulty should not be denied or minimized. As I stated (dissenting) in Marshall, supra, at para. 112, one cannot "meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope". However, it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate, short of final judicial determination or settlement. To facilitate this determination, claimants should outline their claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements. This is what happened here, where the chambers judge made a preliminary evidence-based assessment of the strength of the Haida claims to the lands and resources of Haida Gwaii, particularly Block 6.
There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case. 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 [page 531] pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation: see S. Lawrence and P. Macklem, "From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult" (2000), 79 Can. Bar Rev. 252, at p. 262. 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.
 Adapting these principles to this case, I conclude that the Crown at least had the obligation to notify the petitioners of a potential infringement when the Agreement-in-Principle was concluded. At the Agreement-in-Principle stage, the Crown’s duty to consult, in the absence of any obvious infringement, must be considered to be at the low end of the spectrum. In this case, the Crown’s duty to consult was satisfied by mere notice to the petitioners of the Agreement-in-Principle provisions. The SFN were sent notice of the draft Agreement in-Principle on September 8, 2003, in a letter from the TFN. That letter, copied to the Treaty Commission, invited the SFN to engage in discussions about “shared territory.” The letter enclosed the draft Agreement-in-Principle. On October 7, 2003, the Minister of Indian Affairs and Northern Development sent a letter to the SFN indicating that the SFN could view the draft Agreement-in-Principle on the BC Treaty Commission’s website. Although I have not found evidence that the finalized Agreement-in-Principle was actually sent to the SFN, I conclude that there was sufficient information given to the SFN to satisfy the Crown’s duty to give notice of the Agreement-in-Principle.
 I infer the Sencot’en Alliance received similar notice of the Agreement-in-Principle. I have two reasons for this assumption. First, the Sencot’en Alliance are associated with the SFN. In Mr. Pelkey’s affidavit, he indicated that the “Sencot’en Alliance is composed of the Petitioner First Nations [the Tsawout, the Tsartlip and the Pauquachin] and the Semiahmoo First Nation.” Mr. Pelkey is the Coordinator of the Sencot’en Alliance Steering Committee, which is composed of two political representatives from each member First Nation. Second, as mentioned earlier, the treaty process was public and documented for all to see on the Internet.
 I conclude the Sencot’en Alliance, through its association with the SFN, and because of the public nature of the treaty process, would have similarly received notice of the Agreement-in-Principle. I conclude that this was sufficient notice at the Agreement-in-Principle stage. This notice, combined with the Crown’s reliance on the TFN to try and negotiate any problems arising from the overlapping claims directly with the petitioners, is sufficient consultation at this stage.
 The next question concerns the duty to consult now that the TFNFA has been initialled.
 The petitioners contend that meaningful consultation is impossible if the TFNFA is ratified and signed before the consultation has taken place. The petitioners cite Dene Tha’, for this proposition. The Dene Tha’ were not included in the regulatory and environmental review process for approval of the MacKenzie Valley pipeline, even though the planned route of the pipeline travelled through their traditional territory. On an application for judicial review to halt the hearings, the Federal Court agreed that the Crown had breached its duty to consult and allowed the application, with a remedies hearing to follow.
 At para. 130, Phelan J. discussed the inutility of consultations occurring after the alleged infringement had taken place.
The difficulty posed by this case is that to some extent "the ship has left the dock". How does one consult with respect to a process which is already operating? The prospect of starting afresh is daunting and could be ordered if necessary. The necessity of doing so in order to fashion a just remedy is not immediately obvious. However, it is also not immediately obvious how consultation could lead to a meaningful result.
 In this case the Crown adhered to the policy decision recommended in the British Columbia Claims Task Force report, which recommended that First Nation’s resolve overlapping territorial claims among themselves. The Crown’s refusal to consult before the TFNFA was initialled was a source of intense and understandable frustration to the petitioners, as is demonstrated by the correspondence and affidavits referred to above. However, I have concluded below, that Crown had no constitutional duty to suspend negotiations with the TFN in favour of consultation with the petitioners before the TFNFA was initialled. Ms. Mrozinski urged me to consider the impossibility of ever concluding a treaty if every overlap had to be concluded before the TFNFA was finalized. She described the spectre of an endless ping pong of negotiations between, in this case, the TFN, British Columbia, and Canada, with side negotiations with every other aboriginal group with potentially overlapping claims (of whom there were over 50) at every point at which the main negotiations might impact their interests. I agree with this submission.
 Where the aboriginal claim of the other aboriginal group is a strong prima facie case and the government’s proposed decision may irretrievably affect the claim, the government may be required to take steps to avoid that harm and to minimize the infringement. That was the case in Dene Tha’. But here, at the moment, I do not find there is persuasive evidence that the TFNFA causes irreparable harm to the petitioners, and, more importantly, I am satisfied that there is time for the petitioners, British Columbia and Canada to engage in consultation before the TFNFA is implemented (see implementation clauses in Chapter 25 of the TFNFA). In that consultation process, the petitioners will be able identify, with the clarity that they have so far been unable to articulate, any infringement on their title and rights claims. It is not for this Court, on the type of conflicting evidence tendered here, to draw those conclusions for them. The other factor of importance is that the non-derogation clause confirms that the TFNFA does not affect the aboriginal rights or title of any other aboriginal group.
 The petitioners say that there is no point to such consultation because of two clauses in the TFNFA. First, the Minister is bound by the agreement to implement the TFNFA without change (see clause 10 of Chapter 24). Second, the non-derogation provision, in clause 48 of Chapter 2, only assists the petitioners if a court has finally determined that the petitioners’ rights under s. 35 are adversely affected by a provision of the TFNFA. In other words, the petitioners say that while their title and rights claim may take years to proceed through the complex process of litigating aboriginal rights and title in the courts, the subject matter of their aboriginal rights may be lost owing to the exercise by the TFN of conflicting rights granted to TFN in the meantime.
 The Minister’s position is that it can and will consult with the petitioners, and if the result of that consultation is that the petitioners do identify an infringement, then their claims can be accommodated.
 If, as a result of the consultation, the petitioners develop a strong prima facie case that their interests are infringed, what can the Minister do to accommodate them? The petitioners say it will be too late. The Crown says that there are many forms of accommodation and that the Crown can and will accommodate the petitioners if consultation reveals infringement.
 Examples of accommodation agreements the TFN has reached with other First Nations with potentially overlapping claims is described by Chief Baird at para. 62 of her first affidavit:
TFN has reached resolution of overlap or shared territory issues with all but three of the STFN’s [“Shared Territory First Nations”], including SFN and Sencot’en (“Un-resolved STFN”). Where TFN has achieved resolution, it has been accomplished either in-principle, or conclusively by way of letter or agreement. Where we have resolved overlap or shared territory issues, we have not been asked, nor have we determined, that an amendment to the TFNFA was required.
 These types of overlap agreements demonstrate that it is possible to accommodate conflicting interests without jeopardizing the treaty. I recognize that it is the Crown who holds the obligation to consult and accommodate, but these directly negotiated accommodation agreements do demonstrate there are broad options available to the Crown to accommodate potential or actual infringement.
 I would not want these reasons for judgment to be taken as suggesting that the Crown need not examine overlapping claims of other aboriginal groups during the treaty negotiation process. Indeed, there may be some situations where the alleged infringement and the contemplated terms of a treaty are such that the claims of the overlapping group cannot be put off until the treaty is initialled. That is not the case here.
 As R.D. Wilson J. said in Chief Allan Apsassin at para. 35
If the plaintiffs are successful at the trial of their action, then the defendants will find that they have accomplished a nullity. The overlap issue will be open, without any predetermined notions impeding a consultative process, and, if appropriate or indicated, accommodation.
 I conclude that the petitioners are not in a disadvantaged position now compared to before the TFNFA was initialled. The TFNFA is not yet implemented. The Minister agrees that now that the final terms are known, the Crown must consult with the petitioners. The content of that consultation is the responsibility of the Crown, but I would expect it to at least take the form of providing assistance, financial and otherwise, to enable the petitioners to understand this complex agreement and then to compare it to their own asserted claims to aboriginal rights and title.
 If the results of that consultation identify infringement that requires accommodation, the Crown will have to seek acceptable forms of accommodation. Failing all this, and assuming the petitioners can identify infringement of their rights or title, they will still be able to seek the appropriate remedy from this Court.
 Moreover, given that implementation will be phased in over a ten year period, expected to run from January 2009, and unlike the situation in Dene Tha’, the petitioners will have adequate time to take whatever steps they consider appropriate if parts of the TFNFA infringe their claims. I am not persuaded that there is an immediate impact on the asserted rights or title that would require this Court to step in and suspend the TFNFA.
 To answer the questions posed above, even if the duty to consult arose before the initialling of the TFNFA, the Crown is justified in postponing consultation, other than mere notice, until the final terms of the agreement were known. In other words, I conclude that the Crown obligations in this case could be discharged in different degrees at different stages of the treaty process. At the Agreement-in-Principle stage or earlier, the Crown’s responsibilities were not as onerous as the responsibilities became at the final treaty stage. The final treaty stage having been reached, the Crown now has a responsibility to engage in deeper consultation, particularly given the complexity of the TFNFA. That consultation also requires co-operation from the petitioners. I do not think that the petitioners can unilaterally impose conditions on the Crown, such as a commitment to amend the TFNFA, before consultation begins.
 Even if I had concluded that the Crown ought to have engaged in a greater level of consultation prior to the initialling of the agreement, I would still not suspend the implementation of the TFNFA, or any portion of it, at this time.
 As already noted the implementation of the TFNFA will be phased in over a period of ten years from the effective date, which according to Ms. Beedle is not expected to be earlier than January 1, 2009. There is no obvious infringement that would require a court to issue an immediate order of prohibition, prohibiting the Minister, designated by the TFNFA Act, from signing the TFNFA in order to protect the asserted claims of the petitioners. At the moment I am not persuaded that there is evidence that the subject matter of their claims will be irretrievably harmed unless an immediate order of prohibition is made, particularly having regard to the non-derogation clauses contained in the TFNFA.
 I therefore conclude that the Minister has not breached his constitutional duties to the petitioners. It is therefore, unnecessary for me to further consider application of the JRPA.
 The preferable result would be for the petitioners to fully engage in negotiations directly with the TFN, and, if necessary, to set up a mechanism for resolving any overlapping claims, as was done by the Cowichan.
 The petitions are dismissed, although such order is not to be construed as limiting the petitioners, or any of them, from seeking other remedies in the future, if they consider it advisable, as they proceed through the consultation process.
 There shall be no order as to costs.
The Honourable Madam Justice Garson
EXCERPTS OF THE TSAWWASSEN FIRST NATIONS FINAL AGREEMENT
 In Chapter 2 titled “General Provisions” paras 47 to 49 deal with “OTHER ABORIGINAL PEOPLE” those provisions provide as follows:
Nothing in this Agreement affects, recognizes or provides any rights under section 35 of the Constitution Act, 1982 for any aboriginal people other than Tsawwassen First Nation.
48. If a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada finally determines that any aboriginal people, other than Tsawwassen First Nation, have rights under section 35 of the Constitution Act, 1982 that are adversely affected by a provision of this Agreement:
a. the provision will operate and have effect to the extent that it does not adversely affect those rights; and
b. if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.
49. If Canada or British Columbia enters into a treaty or a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982 with any other aboriginal people and that treaty or land claims agreement adversely affects the Section 35 Rights of Tsawwassen First Nation as set out in this Agreement:
a. Canada or British Columbia, as the case may be, will provide Tsawwassen First Nation with additional or replacement rights or other appropriate remedies;
b. at the request of Tsawwassen First Nation, the Parties will negotiate and attempt to reach agreement on the provision of those additional or replacement rights or other appropriate remedies; and
c. if the Parties are unable to reach agreement on the provision of the additional or replacement rights or other appropriate remedies, the provision of those additional or replacement rights or remedies will be resolved in accordance with the Dispute Resolution chapter.
 Chapter 24 governs ratification of the Tsawwassen First Nations Final Agreement, those provisions are as follows:
RATIFICATION OF THE FINAL AGREEMENT
1. This Agreement will be submitted to the Parties for ratification after it has been initialled by the chief negotiators for the Parties.
RATIFICATION BY TSAWWASSEN FIRST NATION
2. Ratification of this Agreement by Tsawwassen First Nation requires:
a. that Tsawwassen Individuals have a reasonable opportunity to review this Agreement;
b. a vote, by way of a secret ballot, conducted by the ratification committee as set out in clauses 3, 4, 5 and 9;
c. that a majority of those individuals who are eligible to vote under clauses 4 and 5 vote in favour of this Agreement;
d. ratification of the Tsawwassen Constitution through the process set out in clause 3; and
e. that this Agreement be signed by the authorized representative of Tsawwassen First Nation.
RATIFICATION OF THE TSAWWASSEN CONSTITUTION
3. Ratification of the Tsawwassen Constitution by Tsawwassen First Nation requires:
a. that Tsawwassen Individuals have a reasonable opportunity to review the Tsawwassen Constitution;
b. a vote, by way of a secret ballot; and
c. that a majority of those individuals who are eligible to vote under clauses 4 and 5 vote in favour of the Tsawwassen Constitution.
4. An individual is eligible to vote if the individual is:
a. a Tsawwassen Member; and
b. at least 18 years of age on the last scheduled day of voting in the vote referred to in clause 2.
5. A Tsawwassen Individual, who is not yet a Tsawwassen Member and whose name is therefore not included on the official voters list, is eligible to vote if that individual:
a. provides the voting officer with a completed enrolment application form or evidence satisfactory to the voting officer that the individual has submitted an enrolment application form to the enrolment committee;
b. provides evidence satisfactory to the voting officer that the individual meets the requirement set out in subclause 4.b; and
c. declares in writing that they meet the eligibility criteria set out in the Eligibility and Enrolment chapter.
6. The ballot of an individual described in clause 5 counts in determining the outcome of the ratification vote only if the ratification committee determines that the individual is a Tsawwassen Individual and was at least 18 years of age on the last scheduled day of voting.
7. The Parties will establish a ratification committee, consisting of one representative appointed by each Party, to be responsible for the ratification process set out in this chapter.
8. Canada and British Columbia will provide to Tsawwassen First Nation an agreed amount of funding for the ratification committee to carry out the functions referred to in clause 9.
9. Conduct of the ratification vote requires that the ratification committee:
a. establish and publish its procedures;
b. set its time limits;
c. take reasonable steps to provide Tsawwassen Individuals the opportunity to review this Agreement;
d. prepare and post a preliminary list, at least 60 days before the first day of voting, of individuals who are eligible to vote, based upon the information provided by the enrolment committee;
e. at least 21 days before the first day of voting, prepare and post an official voters list, consisting of the names of individuals whose names were provided by the enrolment committee and who are determined by the ratification committee as eligible to vote;
f. approve the form and content of the ballot;
g. authorize and provide general direction to voting officers;
h. conduct the vote on the day or days determined by the ratification committee;
i. update the official voters list by:
i. at any time before the end of voting, adding to the official voters list the names of individuals who are eligible to vote under this chapter;
ii. adding to the official voters list the name of each individual who votes in accordance with clause 5 and whose vote counts in accordance with clause 6;
iii. removing from the official voters list the name of each individual who died on or before the last day of voting without having voted; and
iv. removing from the official voters list the name of each individual who did not vote and for whom is provided, within seven days of the last scheduled day of voting, certification by a qualified medical practitioner that the individual was physically or mentally incapacitated to the point that they could not have voted on the dates set for voting;
j. after updating the official voters list in accordance with subclause 9.1, establish a final voters list;
k. count the vote; and
I. report the final results to the Parties.
MINOR CHANGES BEFORE SIGNING
10. Before the Parties sign this Agreement, the chief negotiators for the Parties may agree to make minor changes to this Agreement.
RATIFICATION BY BRITISH COLUMBIA
11. Ratification of this Agreement by British Columbia requires:
a. that this Agreement be signed by a Minister authorized by the provincial Cabinet to do so; and
b. the coming into force of Provincial Settlement Legislation.
12. British Columbia will Consult with Tsawwassen First Nation in respect of the development of the Provincial Settlement Legislation.
RATIFICATION BY CANADA
13. Ratification of this Agreement by Canada requires:
a. that this Agreement be signed by a Minister authorized by the federal Cabinet to do so; and
b. the coming into force of Federal Settlement Legislation.
14. Canada will Consult with Tsawwassen First Nation in respect of the development of the Federal Settlement Legislation.
 Chapter 25 concerns implementation of the Tsawwassen First Nations Final Agreement, those provisions are as follows:
1. The implementation plan for this Agreement takes effect on the Effective Date and has a term of 10 years, unless renewed or extended by the Parties on the recommendation of the implementation committee.
2. The implementation plan:
a. identifies its purposes;
b. identifies the obligations of the Parties;
c. identifies the activities to be undertaken to fulfill those obligations and the responsible Party;
d. identifies the timelines, including when activities will be completed;
e. specifies how the implementation plan may be amended;
f. specifies how the implementation plan may be renewed or extended; and
g. addresses other matters as the Parties may agree.
3. Without limiting clause 58 of the General Provisions chapter, the implementation plan:
a. does not create legal obligations;
b. does not alter any rights or obligations set out in this Agreement;
c. does not preclude any Party from asserting that rights or obligations exist under this Agreement even though they are not referred to in the implementation plan; and
d. is not to be used to interpret this Agreement.
4. On the Effective Date, the Parties will establish an implementation committee for a 10 year term that may be renewed or extended if the Parties agree.
5. The implementation committee consists of one member appointed by each Party, and additional representatives may participate in meetings to support or assist a member. The Parties will each appoint their first member of the implementation committee on the Effective Date.
6. The implementation committee will:
a. provide a forum for the Parties to discuss the implementation of this Agreement;
b. establish its own procedures and operating guidelines;
c. monitor and oversee the operation of the implementation plan;
d. review implementation progress;
e. assist in resolution of any implementation problems;
f. recommend revisions to the implementation plan;
g. develop a communications strategy in respect of the implementation and content of this Agreement;
h. provide for the preparation of annual reports on the implementation of this Agreement;
i. before the expiry of the implementation plan, advise the Parties on further implementation measures required and recommend whether the implementation plan should be renewed or extended; and
j. undertake other activities as the Parties may agree.