B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

ABORIGINAL 2000

• 2000 BCCA 42 Kitkatla Band v. British Columbia (Small Business, Tourism and Culture)
  The appellant Indian Band challenged certain provisions of the Heritage Conservation Act, R.S.B.C. 1996, c. 187, as being ultra vires the Legislature of British Columbia. The Band argued that these provisions are in pith and substance related to matters reserved exclusively to the federal government under s. 91(24) of the Constitution Act, 1867. The Band also sought an Order prohibiting the respondent Minister from issuing a site alteration permit to harvest culturally-modified trees in the Kumealon watershed. The appellant argues that s. 8 of the HCA makes it necessary for the Minister to first determine the existence of aboriginal rights in this area prior to issuing such a permit.  The majority (Braidwood and Hall J.J.A.) dismissed the appeal. The HCA is valid provincial law under s. 92(13) of the Constitution Act, 1867. Neither the purpose nor the effect of the HCA impinges upon aboriginal rights or matters reserved to Parliament under s. 91(24). The HCA does not affect matters relating to "Indianness" at the core of s. 91(24). The impugned provisions simply regulate the protection of heritage objects and sites. The provisions therefore apply ex proprio vigore and there is no need to consider s. 88 of the Indian Act.  Section 8 of the HCA does not make it necessary for the Minister to determine the existence of aboriginal rights before issuing a site alteration permit. It was not the intent of the Legislature that the Minister adjudicate on aboriginal rights in the context of the HCA. There are no guidelines elsewhere in the statute to support such an interpretation. The intent of s. 8 is to declare that the application of the HCA does not impact on the determination of aboriginal rights.  Prowse J.A. (dissenting): The impugned provisions of the Act, when read together, are laws specifically providing for the destruction of, or interference with, aboriginal heritage objects, a subject which is at the core of s. 91(24) as affecting "Indians in their Indianness", "Indians qua Indians", and "Indians in relation to the core values of their society". Although these provisions are found within a statute which is conceded to be one of general application, they cannot stand as they substantially affect an integral part of primary federal jurisdiction over Indians. This conclusion is supported by the judgment of Chief Justice Lamer in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 with particular emphasis on his discussion of interjurisdictional immunity and the applicability of s. 88 of the Indian Act. The rights at stake here are closely analogous to aboriginal rights in terms of their significance to aboriginal peoples.
• 2000 BCCA 299 Musqueam Holdings Ltd. et al. v. Assessor of Area #09 - Vancouver et al.
  Appeal by Musqueam from judgment on Stated Case concerning whether lands were set aside within the meaning of s. 36 of the Indian Act, declaring that several parcels of land are subject to taxation by the City of Vancouver, and answering in the negative questions as to whether parcels of land were properly removed from the 1995 and 1997 Assessment Rolls of the City of Vancouver. Question on appeal is whether the lands are exempt from taxation by virtue of s. 396 of the Vancouver Charter. The Vancouver Charter does not extend to reserve lands nor to lands title to which is not in Her Majesty the Queen (or Canada). Appeal dismissed. Lands are not exempt from taxation.
• 2000 BCCA 315 B.C. (Minister of Forest) v. Adams Lake Band
  Aboriginal Rights and Title - Injunctions - Chambers judge held not to have been in error in granting injunctive relief to preserve status quo pending resolution of issues at trial.