Citation:

Haida Nation v. B.C. and Weyerhaeuser

Date: 20020819

 

2002 BCCA 462

Docket:

CA027999

 

 

 

COURT OF APPEAL FOR BRITISH COLUMBIA

 

BETWEEN:

 

COUNCIL OF THE HAIDA NATION and GUUJAAW,

on their own behalf and on behalf of all

members of the Haida Nation

 

PETITIONERS

(APPELLANTS)

 

AND:

 

THE MINISTER OF FORESTS and

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

on behalf of HER MAJESTY THE QUEEN

IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA

and WEYERHAEUSER COMPANY LIMITED

 

RESPONDENTS

(RESPONDENTS)

AND:

COUNCIL OF FOREST INDUSTRIES,

BUSINESS COUNCIL OF BRITISH COLUMBIA,

BRITISH COLUMBIA CHAMBER OF COMMERCE,

BRITISH COLUMBIA CATTLEMEN'S ASSOCIATION, and

SQUAMISH INDIAN BAND

INTERVENORS

 

 

 

Before:

The Honourable Chief Justice Finch

 

The Honourable Mr. Justice Lambert

 

The Honourable Mr. Justice Low

 

 

 

L. Mandell, Q.C., M. Jackson, Q.C., T-L. Williams-Davidson and

C. Sharvit

Counsel for the Appellants

The Haida Nation

 

P. J. Pearlman, Q.C. and

K. Kickbush

 

Counsel for the Respondents

The Minister of Forests and The Attorney General of British Columbia

 

 

J.J.L. Hunter, Q.C. and

S. Pike

 

 

Counsel for the Respondent

Weyerhaeuser Company Limited

 

C. S. Willms and

K. A. O'Callaghan

 

 

 

W. Derby, Q.C. and

T. Isaac

 

G. J. McDade, Q.C. and

J. Reynolds

 

Place and Date of Hearing

 

 

Place and Date of Judgment

Counsel for the Intervenors

Council of Forest Industries,

Business Council of B.C., and

B.C. Chamber of Commerce

 

Counsel for the Intervenor

B.C. Cattlemen's Association

 

Counsel for the Intervenor

Squamish Indian Band

 

Vancouver, British Columbia

4 June, 2002

 

Vancouver, British Columbia

19 August, 2002

 

 

 

 

 

 

 

Additional Written Reasons by: (Para. 1, P. 3)

The Honourable Mr. Justice Lambert

 

 

Reasons Concurring in the Result by: (Para. 106, P. 63)

The Honourable Chief Justice Finch

 

 

Additional Dissenting Reasons by: (Para. 131, P. 72)

The Honourable Mr. Justice Low

 

 


Additional Reasons for Judgment of the Honourable Mr. Justice Lambert:

 

     I propose to divide these reasons into Divisions in order to try to improve comprehensibility.  Here are the Divisions:

Division                                   Paragraph Number

I.   These Proceedings and the Two Questions              [1]

II.  The First Question:  Jurisdiction:

     The Judicial Review Procedure Act               [23]

 

III. The First Question:  Practice and Procedure     [37]

IV.  The First Question:  Conclusion                 [46]

V.   The Second Question:  Consultation:

     The Forest Act and T.F.L. 39                    [48]

VI.  The Second Question:  Consultation: 

     The Fiduciary Duty:  The Crown and Weyerhaeuser [61]

VII. The Second Question:  Consultation:

     Infringement and Justification:

     The Crown and Weyerhaeuser                      [74]

VIII.The Second Question:  Consultation:  Conclusion [94]

IX.  The Declaration and Order                       [103]

 

 

I.   These Proceedings and the Two Questions

 

 

[1]         These proceedings were begun by petition filed on 13 January 2000.  An amended petition was filed on 22 February 2000 and a further amended petition was filed on 27 April 2000 ("the Petition").

[2]         As required by the Judicial Review Procedure Act and Rule 10 of the Rules of Court, Weyerhaeuser Company Limited ("Weyerhaeuser") was joined as a respondent to the Petition as a person whose interests might be affected by the order sought, namely:

A.   A Declaration that the 1981, 1995 and 2000 replacements of Tree Farm Licence 39, or such part of Tree Farm Licence 39 as relates to Block 6 (hereinafter referred to as "Tree Farm Licence 39"), pursuant to s.29 of the Forest Act, R.S.B.C. 1979, c. 140 (now s.36 of the Forest Act, R.S.B.C. 1996, c. 157) are invalid … .

 

B.   In the alternative, in respect of the 1995 and 2000 replacements, orders in the nature of certiorari quashing the replacements of Tree Farm Licence 39 in 1995 and 2000 pursuant to s.36 (s.29) of the Forest Act.

                        . . .

 

D.   Such further and other relief as this honourable court deems just.

 

 

 

[3]         The grounds of the petition were set out:

The petitioners rely on the Judicial Review Procedure Act R.S.B.C. 1996, c. 241 ss.35 and 36 (ss. 28 and 29) of the Forest Act R.S.B.C. 1996, c. 157, s.109 of the Constitution Act, 1867 and s.35 and s.52 of the Constitution Act, 1982, R.S.C. 1985, App. II upon the following grounds:

 

1.   The Province may not lawfully replace Tree Farm Licence 39 to the extend that it is encumbered by Aboriginal Title.

 

2.   The Province acts unlawfully and in breach of its fiduciary duty to the Haida Nation in treating Tree Farm Licence 39 as unencumbered by the Haida Nation's Aboriginal Title, and in replacing Tree Farm Licence 39 where:

 

(a)  the Province has knowledge of facts which reasonably lead to an inference that the Haida Nation has Aboriginal Title which encumbers the lands in issue;

 

(b)  the Haida Nation has reasonably asserted Aboriginal Title in and to the lands in issue, and

 

(c)  the Province has not discharged its onus to prove that aboriginal rights and title are extinguished and that the Province has an unencumbered title to the lands and trees within Tree Farm Licence 39.

 

 

 

[4]         The facts upon which the petitioners relied included these allegations:

11.  On September 1, 1999, the Province offered to replace Tree Farm Licence 39 with a new licence having a 25 year term commencing March 1, 2000.  No consent of the Haida Nation was obtained, nor did adequate consultation with the Haida Nation proceed the making of this offer.  This offer may bind the Province to obligations it cannot meet without sanctioning the infringement of the Aboriginal Title and rights of the Haida Nation.

 

12.  On October 5, 1999, the Province approved in principle the change of control of the Respondent MacMillan Bloedel to Weyerhaeuser.  The Province has refused and failed to consult with the Haida Nation with respect to this approval notwithstanding the potential of the transfer to interfere with the Haida Nation's Aboriginal Title in Haida Gwaii, and over the objection of the Haida Nation to the transfer.  Weyerhaeuser completed its acquisition of MacMillan Bloedel Limited on November 1, 1999.

 

                   . . .

 

14.  The province has acknowledged and accepted that the Haida have certain aboriginal rights, and made commitments to enter into government-to-government treaty negotiations with the Haida Nation.  Despite such acknowledgments and commitments, the Province has failed:

 

(a)  to adequately consult in the replacements of Tree Farm Licence 39;

 

(b)  to give effect to the legitimate assertion of Haida Aboriginal Title as an encumbrance over Tree Farm Licence 39 to the detriment of the Haida; and

 

(c)  to accommodate aboriginal title and reconcile the interests affected by the replacement.

                                  (my emphasis)

 

 

[5]         As can be readily seen, some of the allegations about failure of consultation refer to a failure on the part of the Province, but others refer only to a failure generally without specifying the person who failed.

[6]         On 10 July, 2000 an order was made in the Supreme Court of British Columbia, by consent:  "That any issue requiring the proof of aboriginal rights or title be referred to the trial list, said trial being at the option of the petitioners."

[7]         The Petition was heard at Masset in late July and early August, 2000.  In his reasons, Mr. Justice Halfyard set out the issues.  The third issue related to the obligation of consultation.  Mr. Justice Halfyard's statement of that issue concluded with these words of summary:

In replacing T.F.L. 39 in 1995 and 2000, without first consulting with the Haida Nation in good faith, the Minister acted unlawfully and in violation of the Crown's fiduciary obligation.

 

 

 

[8]         Mr. Justice Halfyard made a number of important findings of fact.  I set them out in para. 21, para. 22 and para. 50 of the reasons that were handed down on 27 February 2002 ("the original reasons").  But Mr. Justice Halfyard dismissed the petition and found that there was no legal or equitable duty of consultation.  He found that there was a moral duty of consultation. 

[9]         On the appeal to this Court, the Crown was the lead respondent.  Counsel for the Crown argued that there was no duty of consultation until aboriginal title had been proven in court.  Weyerhaeuser was the second respondent.  Counsel for Weyerhaeuser also argued that there was no obligation of consultation until aboriginal title had been proven.  But counsel for Weyerhaeuser's principal argument related to the question of remedy.  He said that any remedy granted by declaration was discretionary and he said that the Court should exercise its discretion against granting a declaration that Tree Farm Licence 39 ("T.F.L. 39") was invalid.  He did not suggest any other remedy.

[10]    Since Mr. Justice Halfyard had dismissed the petition there was no focus on the trial judge's remedy on the hearing of this appeal.  At trial, counsel for the Haida Nation argued that there should be a declaration that Tree Farm Licence 39 was invalid.  Counsel for the Crown and Weyerhaeuser argued that no obligation of consultation had been breached, but if such an obligation had been breached, no declaration should be made.

[11]    There was no focus in the arguments in the appeal on whether any declaratory remedy could be given, other than a declaration of invalidity or no declaration at all.

[12]    Accordingly, it was without any direct submissions from either the Haida Nation or Weyerhaeuser on the question of any duty to consult on the part of Weyerhaeuser that my reasons, concurred in by Chief Justice Finch and Mr. Justice Low, dealt with the question of whether Weyerhaeuser had a duty of consultation.  The appellant had spoken generally about a duty to consult with the Haida but had not specifically said that it fell only on the Crown and not on Weyerhaeuser.  The Crown and Weyerhaeuser had both said that there was no duty of consultation at all on any one.  Neither the Crown nor Weyerhaeuser said that if there was a duty of consultation it was a duty that fell on the Crown alone, and not on Weyerhaeuser.

[13]    This Court was concerned by Weyerhaeuser's principal submission that there should be no declaration of invalidity of T.F.L. 39.  In the end the Court decided to exercise its discretion to refuse, at least for the time being, any declaration of invalidity.  But the Haida Nation had established, in the court's opinion, that consultation was necessary and required by law before the renewal of T.F.L. 39 in 1999 and 2000 and before its transfer from MacMillan Bloedel Limited to Weyerhaeuser in 2000, and also earlier and later.  It seemed reasonable to think that once it had been established that the duty of consultation arose, in the circumstances of this case, before aboriginal title had been proven in court, a declaration to that effect, on an interim basis, would be sufficient to require the establishment of a procedure for future consultation and would serve to produce a framework for dealing with and protecting the Haida claim to aboriginal title and aboriginal rights over the period until the title and rights had been established by treaty or by a court of competent jurisdiction, while at the same time protecting Weyerhaeuser's interests in T.F.L. 39 and the Crown's interest in safeguarding the public forests.

[14]    Accordingly, in reasons for judgment handed down on 27 February 2002, (the original reasons) this division of the Court granted a declaration and made an order in these terms:

[60] However, I would grant a declaration to the petitioners that the Crown Provincial and Weyerhaeuser have now, and had in 1999 and 2000, and earlier, a legally enforceable duty to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short term and long term objectives of the Crown and Weyerhaeuser to manage T.F.L. 39 and Block 6 in accordance with the public interest, both aboriginal and non-aboriginal, on the other hand.

 

[62] The extent to which any further remedies may be required or may properly be claimed at a later but still interim stage in these proceedings cannot now be predicted.  Much may depend on the quality of the consultation and accommodation processes.  So, to the extent it may be thought necessary, I would order that the parties have liberty to apply to a judge of the Supreme Court of British Columbia for whatever orders they may be instructed to seek, pending the conclusion of the proceedings with respect to the determination of aboriginal title and aboriginal rights, infringement and justification.

 

 

 

[15]    That declaration seemed to be the most minimal remedy that ought to be granted following a conclusion that the obligation of consultation owed to the Haida Nation had been breached.  The accompanying order was desirable in order to establish that the remedy stated in the declaration was an interim remedy only, and that if consultation in good faith and appropriate accommodation did not occur, then this very matter and Petition could be brought back to the Supreme Court of British Columbia in these very proceedings to renew the request for a declaration that T.F.L. 39 be declared invalid and at an end.

[16]    In the course of the original reasons, opinions and conclusions were expressed about the obligations of both the Crown and Weyerhaeuser to consult with the Haida people and to seek accommodations with them with respect to the reconciliation of Haida aboriginal title and aboriginal rights, on the one hand, and the public interest, both aboriginal and non-aboriginal, on the other hand.

[17]    On 1 March, counsel for Weyerhaeuser, by letter, requested an opportunity to make submissions at an oral hearing on two issues set out in the letter of request.  Those two issues have since been stated in this way:

1)   It was said, first, that the question of whether Weyerhaeuser had an obligation to consult the Haida people and seek accommodations with them in relation to any aspect of Tree Farm Licence 39 and Block 6 was not in issue before the Court in the appeal or, indeed, in the proceedings, and should not have formed a part of the declaration by the Court.

 

2)   It was said, second, that if that question was properly before the Court and open for decision, the answer to the question should have been that in the circumstances of this case there was not now, would not be in the future, at least until the aboriginal title and rights of the Haida people had been decided by treaty or by a court of competent jurisdiction, and had not been in the past, any obligation on the part of Weyerhaeuser, or its predecessor, MacMillan Bloedel Limited, to consult with the Haida people or to seek accommodations with them in relation to any aspect of Tree Farm Licence 39 or Block 6.

 

[18]    A post-hearing conference was held on 28 March.  On 5 April, the Court directed that a hearing on those two issues take place on 4 June, 2002.  The parties were asked to file responsive factums and they have done so.

[19]    On 18 April, 2002, the Court extended the time for applying for leave to appeal to the Supreme Court of Canada to sixty days after the making of a consolidated order based on the reasons of 27 February and the additional reasons of the Court, which should together be regarded as one set of consolidated reasons on this appeal.

[20]    On 16 May, 2002, applications by five parties for intervener status were heard and granted on terms.  The five added interveners were the Council of Forest Industries, the Business Council of British Columbia, the British Columbia Chamber of Commerce, the B.C. Cattlemen's Association, and the Squamish Nation.  All have filed factums to which are attached the affidavits filed with the applications to intervene.  The admissibility of the affidavits was deferred to the hearing of the additional submissions on 4 June.  At the 4 June hearing judgments was reserved on the admissibility of the affidavits.

[21]    At the oral hearing on 28 March, counsel for Weyerhaeuser asked for an opportunity to address an issue of whether, if Weyerhaeuser had an obligation to consult and to seek accommodations with the Haida people, it had breached that obligation.  (A conclusion that such a breach had occurred was expressed in para.52 of the original reasons and perhaps elsewhere in those reasons.)  Counsel for Weyerhaeuser asked for leave to introduce fresh evidence on that question.  That request raised the spectre of exchanges of affidavits and the potentiality for cross-examination on affidavits with all the consequent delay.  In those circumstances, counsel for the Haida Nation agreed that any finding of a breach by Weyerhaeuser of any obligation owed to the Haida Nation to consult and accommodate should be regarded as expunged from the reasons and deferred to the trial of the issue on aboriginal title and aboriginal rights, infringement and justification, or to a further interim application in these proceedings supported by an opportunity to lead further evidence.  It should be noted that neither the declaration nor the order made by this Court mentioned or dealt with any breach of duty of consultation and accommodation on the part of either the Crown or Weyerhaeuser.  Mention of such a breach is confined to the reasons.

[22]    In Weyerhaeuser's supplementary factum a remedy was requested in terms that words should be deleted from the original reasons and other words substituted.  That form of textual amendment is appropriate for statutes and for formal orders but, in my opinion, inappropriate for reasons for judgment.  The force of reasons for judgment lies in the orders that are made.  An appeal is from those orders.  Before textual amendments became standard for statutes, statutory amendments were framed as new legislative statements of the law as amended.  The text of the former provision disappeared into history.  The new provision might have made a small amendment or a large amendment but the new provision was the new law.  I will return to this question at the conclusion of these reasons.

 

 

II.  The First Question:  Jurisdiction:  The Judicial Review   Procedure Act

 

[23]    Weyerhaeuser divided its argument on the first question into two aspects.  The first aspect was that this Court and, of course, the Supreme Court of British Columbia, lacked jurisdiction to make an order, any order, under the Judicial Review Procedure Act, about the obligations of Weyerhaeuser.

[24]    I will set out the relevant sections of the Judicial Review Procedure Act:

Definitions

  1 In this Act:

                   . . .

 

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

                   . . .

 

     (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,

 

                   . . .

 

Application for judicial review

  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.

                   . . .

 

Interim order

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

                                  (my emphasis)

 

[25]    There have never been any disputes about the fact that Weyerhaeuser was a proper party to these proceedings under the Judicial Review Procedure Act.

[26]    During the course of argument, Weyerhaeuser and the Crown both conceded that an order could be made under s.10 against an entity other than the Crown or a person holding an office who was appointed by the Crown, even where that entity is not amenable to proceedings for relief in the nature of mandamus, for prohibition or certiorari or to proceedings for a declaration or injunction in relation to the exercise of a statutory power, that is, in other words, even where that person could not be the subject of an order for relief under s.2.

[27]    In view of that concession, I do not propose to review the authorities on the question.  I consider that the concession was properly made and is supported by the authorities.  The making of that concession limited the arguments of Weyerhaeuser and the Crown to the single question of whether the orders made by this Court in the original reasons were "interim" orders within the meaning of s.10 of the Judicial Review Procedure Act

[28]    Mr. Justice Halfyard dismissed all aspects of the petition except the aspect dealing with aboriginal title and aboriginal rights which had been deferred to the trial court, by consent.  The Haida Nation appealed Mr. Justice Halfyard's dismissal.  In its notice of appeal it sought an order:

a)   setting aside the order of the Honourable Mr. Justice Halfyard;

 

b)   declaring that the 1981, 1995 and 2000 replacements of Tree Farm Licence 39, or such part of Tree Farm Licence 39 as relates to Block 6 (hereinafter referred to as "Tree Farm Licence 39"), pursuant to s.29 of the Forest Act, R.S.B.C. 1979, c. 140 (now s.36 of the Forest Act, R.S.B.C. 1996, c. 157) are invalid …

 

c)   of certiorari quashing the replacements of Tree Farm Licences 39 in 1995 and 2000 pursuant to section 36 (s.29) of the Forest Act;

 

d)   that the appellants be awarded their costs in this court; and

 

e)   such further and other relief as this honourable court deems just.

 

[29]    I have already set out the declaration and order made by this Court.  The declaration stated that the Crown provincial and Weyerhaeuser have now, and had in the past, a legally enforceable duty to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations.  In the order, it was stated that the extent to which any further remedies may be required, or may properly be claimed, at a later but still interim stage of the proceedings could not be predicted, and leave was granted to the parties to apply to the Supreme Court of British Columbia for further orders.  Room was being given to the parties to work out any unresolved questions about the scope of consultation, the ambit of accommodation, and, in the event of failure on the part of the Crown or Weyerhaeuser to consult and accommodate, room remained for the Haida Nation to apply again for a declaration of invalidity of T.F.L. 39 and for an order quashing the replacement of T.F.L. 39 in the year 2000. 

[30]    In allowing the appeal, the Court had the power under s-s.9(1) of the Court of Appeal Act to make any order that the trial judge could have made and any additional order it considered just.  Under s.10 of the Judicial Review Procedure Act, Mr. Justice Halfyard could have made the order that this Court made.  Had he done so, expressly deciding that the declaration was an interim order, and expressly granting liberty for further applications, the petition would not have been finally disposed of.  At the present stage of the proceedings, the points referred to the trial list remain undecided, and the points not referred to the trial list involving the validity of Tree Farm Licence 39 and the obligations of consultation still remain open for further applications in the very same proceedings on the very same petition.

[31]    Weyerhaeuser and the Crown say that the order made by this Court is described by this Court as "interim" but, in spite of that, and in spite of the fact that the petition is not being finally disposed of, even in relation only to the rights and obligations of consultation and accommodation, Weyerhaeuser and the Crown say that the declaration is not an interim order within the meaning of s.10. 

[32]    The principal authority relied on by Weyerhaeuser and the Crown was a passage from Peter Hogg and Patrick Monahan:  "Liability of the Crown" 3rd. Ed, (Carswell:  Scarborough), at p.28, under the heading "(e) Interlocutory declaration":

     Does the Court have the power to make a temporary declaration, before giving a final judgment, in order to hold the defendant to the status quo?  Such a declaration can be described as "interlocutory", because it is granted at an interlocutory stage of the proceedings, or "interim", because it is granted only for a temporary period of time.  The conventional answer is that there is no power to grant an interlocutory (or interim) injunction [sic].  A declaration is by its nature final.  It is "absurd" for a Court "to declare one day in interlocutory proceedings that an applicant has certain rights and upon a later day that he has not".  For this reason, Courts have nearly always refused to grant a temporary declaration before there has been a final determination of the applicable law.  In other words, interlocutory (or interim) relief, which is available in the form of an injunction, is not available in the form of a declaration.

 

 

I accept, for present purposes, that generally speaking a declaration will not be granted on an interim basis in the same terms that a declaration is sought on a final basis.  But that is not what happened here.  The declaration sought on a final basis was a declaration that T.F.L. 39 is invalid.  The declaration granted on an interim basis related only to past and continuing obligations of consultation and accommodation of Weyerhaeuser and the Crown.  The accompanying order maintained the rights of the Haida Nation to seek a final order of invalidity if continuing consultation failed.  It was not a final declaration, it was described in the reasons as being interim only and it did not make a final declaration of invalidity.

[33]    It follows that I conclude that this Court had jurisdiction to make the declaration and order that it made as they were set out in the original reasons.

[34]    That conclusion makes it unnecessary to consider whether Weyerhaeuser is exercising a statutory power under the Forest Act when it manages the forest and engages in forestry activities and operations, including the exclusive right to harvest timber in accordance with T.F.L. 39 granted under the Forest Act, and particularly whether acts that are done in the exercise of the exclusive right to harvest timber are "acts or things that would, but for that power or right, be a breach of a legal right of any person", specifically, of course, the members of the Haida Nation.  (See Judicial Review Procedure Act; definition of "statutory power".)  A finding that Weyerhaeuser was exercising such a statutory power would make it amenable to a final declaration under the Judicial Review Procedure Act in relation to its exercise of that statutory power and, I expect, to other relief under the Act.

[35]    I add that the Judicial Review Procedure Act does not say that its remedies are only available against government bodies or officers.  If private bodies or persons are exercising statutory powers or statutory powers of decision then the Act, in its terms, would apply to them with respect, at least, to the remedies of declaration and injunction.  Indeed, as the interface between government functions and private functions is eroded by the concept of privatization, I would not place arbitrary limits on the nature of the persons or bodies amenable to orders in the nature of the former prerogative writs.

[36]    In short, I would give a fair large and liberal construction to the definition of "statutory power" in the Judicial Review Procedure Act in order to carry out the objects of the Act, as required by s.8 of the Interpretation Act.  But I need not pursue that question further in this appeal.

 

III. The First Question:  Practice and Procedure

 

[37]    Both Weyerhaeuser and the Crown also argued, in relation to the first question, that whether Weyerhaeuser had an obligation to consult the Haida people had not been raised in the petition, had not been dealt with by Mr. Justice Halfyard, and was not argued in the original hearing of the appeal, and, that, in those circumstances, it was not open to this Court to make a declaration which included a statement that Weyerhaeuser had an obligation to consult and seek accommodations with the Haida people.  This argument was not, as I understand it, advanced as a challenge to the court's jurisdiction, a question which I have already addressed in the previous Division of these reasons, but rather as a matter of fair practice and procedure.

[38]    I have referred in the previous Division of these reasons to s.10 of the Judicial Review Procedure Act which empowers the Court to make any interim order "it considers appropriate" and I have referred to s-s.9(1) of the Court of Appeal Act to like effect.  And, of course, the petition included a prayer for "such further and other relief as this Honourable Court deems just."  So the respondents to the petition must always have been aware that the Court was not confined to the precise remedies sought by the petitioners.

[39]    I turn now to the petition itself, the significant parts of which I have set out in the first Division of these reasons.  It is important to note that the petitioners relied not only on the Judicial Review Procedure Act and the Constitution Act, 1982, but that they relied specifically on s.35 and s.36 of the Forest Act.  It is s. 35 of the Forest Act which expressly founds the statutory obligation of Weyerhaeuser to consult other persons who use the Tree Farm area for purposes other than timber harvest.  And paras. 8, 10, 11, and 12a of the petition refer to the fact that the Haida people were not consulted, without specifying by whom they were not consulted, though other paragraphs of the petition refer to the Crown provincial's failure to consult.

[40]    When the original reasons were handed down containing the interim declaration and order, this Court was responding to the arguments made by both Weyerhaeuser and the Crown that even if the Court found that the proper consultation processes had not preceded the replacement of T.F.L. 39 in 1999 and 2000 and its transfer to Weyerhaeuser in 2000, nonetheless the court should exercise its remedial discretion by declining to declare T.F.L. 39 invalid.  Instead, this Court made what amounts to the least disruptive order that could still take account of the fact that the Haida people had not been consulted as they should have been consulted.  Two days after our judgment was handed down, counsel for Weyerhaeuser wrote to the Registrar making the submissions that have resulted in this Court ordering a further hearing and stating the two questions to be addressed on the further hearing.  It is important to note that counsel for Weyerhaeuser requested the further hearing and took no exception to the way the questions were stated when the further hearing was ordered.  The second question was stated in this way:

It was said, second, that if that question was properly before the Court and open for decision, the answer to the question should have been that in the circumstances of this case there was not now, would not be in the future, at least until the aboriginal title and rights of the Haida people had been decided by treaty or by a court of competent jurisdiction, and had not been in the past, any obligation on the part of Weyerhaeuser, or its predecessor, MacMillan Bloedel Limited, to consult with the Haida people or to seek accommodations with them in relation to any aspect of Tree Farm Licence 39 or Block 6.

 

 

 

[41]    Counsel for Weyerhaeuser also objected to the finding of breach of the obligation of consultation and requested an opportunity to lead fresh evidence on the question of breach.  Counsel for the Haida Nation consented to any reference to breach of an obligation of consultation by Weyerhaeuser being expunged from the reasons and so, with the concurrence of all parties, that was provisionally ordered, subject to the consent of my colleagues.  No similar need for further evidence was raised by counsel for Weyerhaeuser or the Crown when they accepted the statement of the second question.

[42]    Since the time when the second question was framed on 28 March, counsel for all parties have had more than two months to prepare for argument on the second question and they have been granted the right to file full responsive factums, including factums in reply.  And five intervenors have been given the right to file factums and make oral submissions on the second question and have done so.

[43]    In my opinion, any prejudice that might be said to have been suffered by Weyerhaeuser through want of notice that any issue with respect to its obligations of consultation with the Haida people could, and might be, made the subject of a declaration and order of the Court, has been entirely dissipated by the Court's recognition that Weyerhaeuser and the Crown ought to have an opportunity to argue against the making of such a declaration and order, and by the Court's granting of a further full day of hearing and a full right to file factums on that issue.  The point cannot be made that, as between Weyerhaeuser and the Haida Nation, evidence could have been led that was not before the Court on that question since such a point was made and accepted with respect to breach of an obligation to consult, but was not made, though there was ample opportunity to make it, when the obligation to consult was itself made the subject matter of the second question.

[44]    In view of the fact that Weyerhaeuser has been granted full opportunity to make submissions on the second question, and in view of the clear statutory obligation of Weyerhaeuser to consult the Haida people, as detailed in T.F.L. 39 itself, I consider that any prejudice that might be said to have been suffered by Weyerhaeuser, through alleged want of notice in relation to the declaration and order made in the judgment recorded in the original reasons, has been dissipated.

[45]    In my opinion the practice and procedure that has ultimately been adopted by the Court through the granting of the second hearing is a practice and procedure which is in accordance with the correct standards of fairness to all parties, and permits the Court to reconsider the substance of the issue of consultation and accommodation and to reconsider the Court's right to make any order that it deems appropriate, as an interim order, following the reconsideration in the second hearing.

 

IV.  The First Question:  Conclusion

 

[46]    The first question was framed in these terms:

It was said, first, that the question of whether Weyerhaeuser had an obligation to consult the Haida people and seek accommodations with them in relation to any aspect of Tree Farm Licence 39 and Block 6 was not in issue before the Court in the appeal or, indeed, in the proceedings, and should not have formed a part of the declaration by the Court.

 

 

 

[47]    In my opinion the question of whether Weyerhaeuser had an obligation to consult the Haida people and seek to accommodate them in relation to any aspect of T.F.L. 39 and Block 6 was and is properly in issue before the Court in this appeal and in these proceedings, and can properly form the subject matter of a declaration and order of the Court, subject only to any reconsideration to be given to the original declaration and order following this additional hearing of submissions by the parties and the intervenors.

 

V.   The Second Question:  Consultation:  The Forest Act and   T.F.L. 39

 

[48]    Weyerhaeuser's rights and obligations in relation to T.F.L. 39 start with the Forest Act.  Section 35 was specifically referred to by the petitioners as one of the grounds of the petition.  It contains these provisions:

Content of tree farm licence

35 (1) A tree farm licence entered into under this Act must

                    . . .

(d)  require its holder to submit for the approval of the chief forester, once every 5 years, or more often if the chief forester considers that special circumstances require, a management plan that meets all the following requirements:

                   . . .

(iv) it proposes management objectives regarding

                   . . .

(B)  protection and conservation of the non-timber values and resources in the tree farm licence area, including visual quality, biological diversity, soils, water, recreation resources, cultural heritage resources, range land and wildlife and fish habitats,

                   . . .

(vi) it specifies measures to be taken by the holder of the tree farm licence to identify and consult with persons using the tree farm licence area for purposes other than timber production,

                   . . .

(e)  subject to the provisions of this Act, grant to its holder the exclusive right to harvest from the tree farm licence area during the term of the tree farm licence one or both of the following:

 

(i)  Crown timber of one or more types specified in the tree farm licence,

 

(ii) Crown timber from one or more types of terrain specified in the tree farm licence,

                                  (my emphasis)

 

 

[49]    Section 35.1 also provides means for conserving cultural heritage resources. 

[50]    Section 36 of the Forest Act was also specifically referred to by the petitioners as one of the grounds of the petition.  It provides that the Minister must offer the holder of an existing Tree Farm Licence a replacement for the licence in the first six months of the year preceding the fifth anniversary of the Tree Farm Licence. 

[51]    This T.F.L. 39 was first granted to MacMillan Bloedel Limited in 1961.  Under s.36, and its predecessors, the licence has been renewed from time to time and it was under these provisions that it came up for renewal again in 1995 and in 2000.

[52]    It is important to note that s.35(1)(d)(vi) imposes on the holder of a licence a statutory obligation to identify and consult with persons using the Tree Farm Licence area for purposes other than timber production.  Clearly, for T.F.L. 39, the Haida people were such persons.

[53]    I move on now to the greater specificity of the Tree Farm Licence itself.  It contemplates, first, the submission of a draft management plan for consideration by the Chief Forester, and, second, the submission of a proposed management plan.  Both of those management plans set out the terms of the management plan to be in effect under the Tree Farm Licence.  Both the draft management plan and the proposed management plan, and ultimately the management plan itself, in effect under the licence, must contain these terms and conditions attached to the licence itself:

2.09 A draft management plan referred to in paragraph 2.08 or subparagraph 2.41(a) must

                   . . .

     (e)  propose management objectives regarding

                   . . .

(iii)integration of harvesting activities in the Licence Area with use of the Licence Area for purposes other than timber production, including use of the Licence Area by

               . . .

(B)  aboriginal people claiming an aboriginal interest in or to the area

          . . .

     (g)  specify measures to be taken by the Licensee to identify and consult with persons using the Licence Area for purposes other than timber production, including

                   . . .

          (ii) aboriginal people claiming an aboriginal interest in or to the area,

 

                                      (my emphasis)

 

 

 

[54]    The Licensee must arrange for the draft management plan submitted by the Licensee to the Chief Forester to be available in convenient locations for review by members of the public interested in the operations affected by the licence.  So it is reasonable to suppose that the Haida Nation and others would be expected to rely on the terms of the draft management plan.  Para. 2.12 of the draft management plan provides for an opportunity for comment by, specifically, aboriginal people, among others. 

[55]    While the Licensee must consult with aboriginal people, the Chief Forester may also do so.  See para. 2.33 and para. 2.38.

[56]    When the Licensee is operating under a management plan, powers are given to the District Manager to approve applications by the Licensee for harvesting the allowable annual cut, by the issuance of cutting permits.  The powers given to the District Manager include these:

8.07 The District Manager may consult aboriginal people who claim to have an aboriginal interest that may be affected by activities or operations under or associated with a cutting permit.

 

8.08 The District Manager may impose conditions in a cutting permit to address an aboriginal interest.

 

8.09 The District Manager may refuse to issue a cutting permit if, in the opinion of the district Manager, issuance of the cutting permit would result in an unjustifiable infringement of an aboriginal interest.

 

                                  (my emphasis)

 

 

 

[57]    I will return to para.8.09 which deals with unjustifiable infringements by the issuance of a cutting permit in Division VII of these reasons under the heading "Consultation: Infringement and Justification: The Crown and Weyerhaeuser".

[58]    Para. 10 of the Tree Farm Licence is headed "Aboriginal Rights and/or Title".  It contains this provision:

    10.01 Notwithstanding any other provision of this Licence,      if a court of competent jurisdiction

 

(a)  determines that activities or operations under or associated with this Licence will unjustifiably infringe an aboriginal right and/or title,

 

(b)  grants an injunction further to a determination referred to in subparagraph (a), or

 

(c)  grants an injunction pending a determination of whether activities or operations under or associated with this Licence will unjustifiably infringe an aboriginal right and/or title,

 

the Regional Manager or District Manager, in a notice given to the Licensee, may vary or suspend, in whole or in part, or refuse to issue a cutting permit, road permit or special use permit, or a free use permit issued to the Licensee so as to be consistent with the court determination.

 

                                  (my emphasis)

 

 

 

[59]    I will return to sub-para.(a) of para.10.01, (which again deals with unjustifiable infringement, this time when carried out by the Licencee or someone associated with the Licencee and with respect to their activities or operations), in Division VII of these reasons under the heading "Consultation: Infringement and Justification:  The Crown and Weyerhaeuser".

[60]    In conclusion, with respect to the terms of the Forest Act and T.F.L. 39, I regard it as of great significance to the issues on this additional hearing that the Forest Act requires the Licencee to identify and consult with other users of the forest and, when the provisions of the Forest Act are incorporated in the licence itself, the requirement is for the Licencee to identify and consult, specifically, with "aboriginal people claiming an aboriginal interest in or to the area".  In short, there is an obligation on Weyerhaeuser as holder of T.F.L. 39, which gives it exclusive harvesting rights in the T.F.L. 39 area, to consult with the Haida people.  And every obligation of consultation must carry with it an obligation to seek accommodation.  Those obligations must be regarded as owed by Weyerhaeuser to the Haida people. They are at least as broad in scope as the harvesting rights under the Tree Farm Licence to which they are inextricably linked.

 

 

 

VI.  The Second Question:  Consultation: The Fiduciary Duty:   The Crown and Weyerhaeuser

 

[61]    The nature of the fiduciary duty owed by the federal Crown to the Indian peoples of Canada was confirmed in Guerin v. The Queen, [1984] 2 S.C.R. 335 and it has been applied in many cases since that decision.  In Halfway River First Nation v. British Columbia (Minister of Forests) (1999), 178 D.L.R. (4th) 666 (B.C.C.A.) this Court confirmed that the fiduciary duty is owed to the Indian people equally by the provincial Crown as by the federal Crown. 

[62]    The fiduciary duty of the Crown, federal or provincial, is a duty to behave towards the Indian people with utmost good faith and to put the interests of the Indian people under the protection of the Crown so that, in cases of conflicting rights, the interests of the Indian people, to whom the fiduciary duty is owed, must not be subordinated by the Crown to competing interests of other persons to whom the Crown owes no fiduciary duty.  All the principles which must inform the tests for justification of a prima facie infringement, such as consultation, accommodation, and minimal impairment, represent examples of the Crown's fiduciary duty to the Indian peoples.

[63]    So, in this case, the Crown provincial owed a fiduciary duty to the Haida Nation to consult the leaders of the Haida Nation before the renewal of T.F.L. 39 in 1999 and 2000 and before the transfer of T.F.L. 39 to Weyerhaeuser from MacMillan Bloedel in 2000.  The Crown provincial did not comply with its fiduciary duty though it was well aware of the claims of the Haida people to aboriginal title and aboriginal rights and was well aware of the strong grounds supporting those claims.

[64]    The breach by the Crown provincial of its fiduciary obligation to consult the Haida people represents the basis in law and equity for the making of a declaration that T.F.L. 39 is invalid, the declaration that this Court declined to make, at least for the time being, in the exercise of its discretion as recorded in the original reasons.  But it must be noted that the breach by the Crown of its fiduciary duty does not put the fiduciary duty at an end.  The fiduciary duty of the Crown provincial continues unimpaired to the next time it must be observed, and the next time, and so on.  The Crown's fiduciary duty is a continuing and ever present duty to the Haida people and to the other Indian nations.

[65]    But, what is even more important, the breach by the Crown of its fiduciary duty, which was known to MacMillan Bloedel and to Weyerhaeuser or which should have been known to MacMillan Bloedel and Weyerhaeuser, (or with respect to which Weyerhaeuser should have made an inquiry about whether the Crown had complied with the Crown's fiduciary duty, though no inquiry can have been made by Weyerhaeuser), places this case within the category of "knowing receipt" cases where the title, if any, that is passed to the third party, in breach of the fiduciary duty, is clogged by the fiduciary's breach of duty, so that the third party is itself a constructive trustee and, in that capacity, owes a trust or fiduciary duty to the original beneficiary of the original fiduciary obligation.

[66]    In Hunter Engineering Ltd. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426 (S.C.C.) Chief Justice Dickson, for the majority, said this, at p.471:

The constructive trust has existed for over 200 years as an equitable remedy for certain forms of unjust enrichment – Equity would not countenance the abuse of the trust and confidence inherent in a fiduciary relationship and imposed trust obligations on those who profited from abusing their positions of loyalty.  The doctrine was gradually extended to apply to situations where other persons who were not in a fiduciary relationship with the claimant acted in concert with the fiduciary or knew of the fiduciary obligations.

                                  (my emphasis)

 

[67]    In Air Canada v. M & L Travel Ltd., [1993] 3 S.C.R. 787; (1993), 108 D.L.R. (4th) 592 (S.C.C.), Mr. Justice Iacobucci, for the majority, said this, at p.607-8 (D.L.R.), under the heading "General Principles":

     Second, strangers to the trust can also be personally liable for breach of trust if they knowingly participate in a breach of trust.

                   . . .

 

[T]here were traditionally therefore two ways in which a stranger to the trust could be held personally liable to the beneficiaries as a participant in a breach of trust:  as one in receipt and chargeable with trust property and as one who knowingly assisted in a dishonest and fraudulent design on the part of the trustees.  The former category of constructive trusteeship has been termed "knowing receipt" or "knowing receipt and dealing", while the latter category has been termed "knowing assistance".

                                 (my emphasis)

 

 

[68]    In Royal Bank v. Fogler, Rubinoff (1991), 84 D.L.R. (4th) 724 (O.C.A.) Chief Justice Dubin for the Ontario Court of Appeal adopted the following quotation from Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984):

It is what he actually knows or ought as an honest, reasonable man to have known.  Though he does not have actual or imputed knowledge (and such knowledge would, of course, bind him), an honest, reasonable man would make enquiries if there are suspicious circumstances surrounding property which is proffered to him, whether or not in the course of trade.  Before he becomes the title holder, he wants to know that he is entitled both to take title and to deal with the property as he thinks fit.  Each of these types of person is liable as a constructive trustee, whether or not he himself benefited by administering property as a trustee de son tort or on joining in a trustee's fraudulent and dishonest design.  However, if the person challenged as having done either of these things has benefited personally, the courts are likely to examine his state of mind even more scrupulously than when he has not.  And, whether or not he has benefited personally, the burden of proof is upon the person challenged to show that, given the circumstances, enquiries by him were not called for or would not have revealed the true state of affairs.  This is because the law imposes an objective test of knowledge upon the stranger who has intermeddled, and he must show that he did not fail that test.

                   (Chief Justice Dubin's emphasis)

 

[69]    For a discussion of "knowing receipt" principles see Gold v. Rosenberg (1997), 152 D.L.R. (4th) 385 (S.C.C.) in which the court agreed on the principles but divided on whether the trust property had passed to the third party and on whether sufficient inquiry had been made by the third party.  And for an application of "knowing receipt" principles leading to the decision of the court see Citadel General Assurance Co. v. Lloyds Bank (1997), 152 D.L.R. (4th) 411 (S.C.C.).  In an article in the Law Quarterly Review, Charles Harpum said this with respect to the nature of the liability and the remedy:

     A person who receives for his own benefit trust property, with notice that it has been transferred to him in breach of trust, will be liable as a constructive trustee.  The nature of this liability has been described as "a case rather of an existing trust continued and kept on foot than a new trust arising by operation of law."  This analysis, which is supported by judicial statements of high authority, suggests that the precise nature of the recipient's liability in a given case is determined by having regard to that of the fiduciary transferor.

                                  (my emphasis)

 

 

See Charles Harpum "The Stranger as Constructive Trustee" (1986), 102 L.Q.R. 114 at p. 267.

[70]    See also Simon Gardner, "Knowing Assistance and Knowing Receipt:  Taking Stock" (1996), 112 L.Q.R. 56.

[71]    In my opinion, MacMillan Bloedel and Weyerhaeuser must have been aware of the provincial Crown's fiduciary duty to the Haida people, including a duty to consult the Haida people before renewing or transferring T.F.L. 39, and must have been aware of the strong prima facie case of the Haida people to aboriginal title and aboriginal rights in at least a significant part of the land area of T.F.L. 39, and must have been aware, or at least, could have become aware on reasonable and necessary inquiry, of the Crown breach of its fiduciary duty to the Haida people, particularly in the Crown's failure to consult the Haida people and to seek reasonable accommodations with them in the renewal and transfer of T.F.L. 39.

[72]    In those circumstances, the principles of "knowing receipt" apply and Weyerhaeuser, in taking title to T.F.L. 39, must be regarded as a constructive trustee, owing a third party fiduciary duty to the Haida people, a duty which was breached immediately, as it was acquired, at the time of the renewal and transfer of T.F.L. 39, and a fiduciary duty which continues throughout the period that Weyerhaeuser is a licencee of T.F.L. 39 and which applies to Weyerhaeuser's management, administration, and operation of T.F.L. 39.

[73]    In the submissions of counsel for the Haida Nation and of counsel for the Squamish Nation, as intervenor, reliance was also placed on the related principle of unjust enrichment, giving rise to a remedial constructive trust, and on the principle that no one can give a better title to an acquirer who is not bona fide, and who knows the circumstances, than the title giver has.  Without disputing the relevance of those arguments it is not necessary, in my opinion, to rely on them.  The principles of "knowing receipt" giving rise to a constructive trust with fiduciary obligations on the third party that are similar to the obligations of the fiduciary who transfers the title, including obligations of consultation and accommodation in dealing with T.F.L. 39, meet this case exactly.

 

VII. The Second Question:  Consultation: Infringement and      Justification:  The Crown and Weyerhaeuser

 

[74]    Section 35 of the Constitution Act, 1982 provides that the existing aboriginal and treaty rights of the aboriginal peoples of Canada are recognized and affirmed.  Section 52 provides that the constitution of Canada is the supreme law of Canada and any law that is inconsistent with it is, to the extent of the inconsistency, of no force or effect.

[75]    The nature of aboriginal title and aboriginal rights, whether site-specific or non-site-specific, was explained in Delgamuukw.  Aboriginal title allows the aboriginal people who collectively hold the title to exclude everyone else.  If the aboriginal people decide to exclude others then anyone who enters, exploits, or damages the land subject to aboriginal title will be violating that title and will be liable to pay compensatory damages, and possibly aggravated and punitive damages, depending on how purposeful was the violation. 

[76]    In order to sustain a claim for trespass, it is not necessary for the landowner to have gone to court before the trespass occurred and to have established title.  There is no reason why that should not also be true for the people holding aboriginal title.  If the claim to aboriginal title is supported by a good prima facie case, then anyone who violates the title will be liable when title is either conceded or proved.  Again, the aboriginal people collectively holding the title would be entitled to compensatory damages and, depending perhaps on the strength of the prima facie case or the purposefulness of the violation, to aggravated and punitive damages.

[77]    The only exception to the principle of paying fully compensatory and possibly aggravated and punitive damages lies in the law with respect to justification for an infringement.  See R. v. Sparrow, [1990] 1 S.C.R. 1075 and R. v. Gladstone, [1996] 2 S.C.R. 723.  I propose to assume that the law in relation to justification for infringement applies to the provincial Crown as well as to the federal Crown.  In doing so I rely on this passage from the reasons of Chief Justice Lamer in Delgamuukw, at para. 160:

The aboriginal rights recognized and affirmed by s.35(1), including aboriginal title, are not absolute.  Those rights may be infringed both by the federal (e.g., Sparrow) and provincial (e.g. Côté) governments.  However, s.35(1) requires that those infringements satisfy the test of justification.

 

 

 

That passage was relied on by both the Crown provincial and Weyerhaeuser in this appeal as support for the constitutionality of justification for an infringement under provincial legislation.  So I propose to adopt that statement as representing the law for the purposes of this appeal.

[78]    However, the statement is obiter dicta in Delgamuukw and the support for the principle of justification for provincial infringement is also obiter dicta in Côté, where, on the facts, there was found to be no provincial infringement.  And, as a matter of constitutional analysis, aboriginal title must lie at the core of Indianness, so provincial laws of general application do not apply to aboriginal title of their own force and, arguably, can not be constitutionally invigorated by s.88 of the Indian Act because s.88 applies to Indians but not to Indian lands, a distinction drawn from the wording of s.91(24) of the Constitution Act, 1867.

[79]    This seeming inconsistency will be resolved in due course, but, as I say, for the purposes of this appeal I propose to rely on the constitutionality of justification for provincial infringements as argued by the provincial Crown and by Weyerhaeuser.

[80]    There is a further question of whether the law in relation to justification for an infringement can be invoked by a party other than the provincial Crown.  No doubt such a third party would wish the law of justification for an infringement to be available to safeguard the activities of that third party since, if that law were not available, the third party would be guilty of violating the aboriginal title or rights in question and would be liable for compensatory damages and perhaps aggravated and punitive damages as well.

[81]    In straightforward, but not necessarily complete summary, the principles for justification of an infringement are these:

1.   The first question to ask is whether the aboriginal title or aboriginal right has been prima facie infringed.  I consider that the only real question at this stage is whether the aboriginal people have been constrained in the use of the land subject to the aboriginal title, or, in the case of an aboriginal right, whether the holders of the right have been prevented from exercising it by their preferred means.

2.   The remaining questions relate to justification.  They include:

a)   are there compelling and substantial objectives for the infringement;

b)   is the infringement reasonable;

c)   does the infringement impose undue hardship;

d)   is the infringement consistent with the fiduciary duty owed to the holders of the title or right;

e)   is the infringement as small as is consistent with bringing about the desired objective;

f)   if the infringement causes destruction or damage to the land values, has fair compensation been made available;

g)   whether the holders of the title or right in question have been consulted with respect to the infringement before it occurs and have been consulted about the alternatives in relation to the infringement and about the accommodations which might be available to minimize the infringement;

h)   the extent to which the economic interests of the First Nations and of the public at large are affected by the objectives of the infringement.

[82]    I do not think it desirable to try to refine specific obligations of consultation in relation to the present issue in this appeal.  Mr. Justice Finch dealt with particulars of consultation in Halfway River First Nation v. British Columbia, [1999] 4 C.N.L.R. 1 (B.C.C.A.) at para. 160.  I would also like to mention the helpful analysis undertaken by Madam Justice Hansen in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2001] F.C.J. No. 1877 (F.C.G.D.) whose conclusions on questions of law I respectfully agree with.

[83]    In the circumstances of this case the Crown, through the Forest Act, (and perhaps also the Forest Practices Code) has created and authorized the granting of T.F.L. 39, an exclusive licence to harvest a large area of the public forest in the Queen Charlotte Islands (Haida Gwaii), to Weyerhaeuser.  Acting under the licence, Weyerhaeuser may well have violated the aboriginal title and aboriginal rights of the Haida Nation.  If the violation is proven, then Weyerhaeuser and, perhaps also the Crown, would be liable to the Haida people to pay compensatory and perhaps aggravated damages and, in the case of Weyerhaeuser, perhaps also punitive damages, all subject to the defences provided by the principles of justification for any infringement.

[84]    In the case of the provincial Crown, the infringing actions may be expected to lie in passing the Forest Act, issuing the Tree Farm Licence, approving the Management Plans, granting the Cutting Permits, and overseeing Weyerhaeuser's compliance with the scheme embodied in those legislative and exclusive licence provisions.  I am only giving an outline of potential infringements.  The only question relevant to the Crown's position in this appeal is whether the prima facie infringement raises the necessity of establishing justification and, if so, whether the Crown had a duty to consult the Haida people before re-issuing T.F.L. 39 and before approving management plans and issuing cutting permits.  In the original reasons and in the declaration and order that were made at the conclusion of the original reasons, this Court has already decided that the provincial Crown owed a duty of consultation to the Haida people and that it did not comply with that duty; in fact, it breached the duty.

[85]    The Crown's infringement action and justification activities are reflected in para.8.09 of T.F.L. 39 which comes in the segment dealing with cutting permits.

 

8.09 The district Manager may refuse to issue a cutting permit if, in the opinion of the District Manager, issuance of the cutting permit would result in an unjustifiable infringement of an aboriginal interest.

 

                                  (my emphasis)

 

[86]    Para. 8.09 indicates that the tests for justification would be applied to a Crown function in the wrongful issuance of a cutting permit.

[87]    What then is the position of Weyerhaeuser?  It is unquestionably a party to every one of the Crown's infringements except the passing of the Forest Act.  It accepted the Tree Farm Licence, put forward the Management Plans, and applied for the cutting permits.  In relation to those infringements, Weyerhaeuser must surely have had to satisfy itself by reasonable inquiry that the infringements in which it was participating with the Crown, were justified.  If justification requires consultation or the payment of compensation, then Weyerhaeuser would have been obliged to ensure that consultation took place and that compensation would be a binding commitment.  But, in my opinion, there was an additional level to any claim by Weyerhaeuser that there was justification for its infringement.  When Weyerhaeuser took the initiative in relation to its harvesting functions and engaged in an activity or operation that was within its management discretion, Weyerhaeuser itself must surely have to have met the justification tests, particularly the tests of necessity, minimal impairment, and consultation.  At that level, that is, the level of activities and operations, the justification action must fall on Weyerhaeuser alone and cannot be expected to be shared by the Crown.

[88]    In this connection I refer to para. 10:01 of the Tree Farm Licence under the heading 10:00 "Aboriginal Rights and/or Title".  Para. 10:01 reads:

10.01     Notwithstanding any other provision of this Licence, if a court of competent jurisdiction

 

     (a) determines that activities or operations under or associated with this Licence will unjustifiably infringe an aboriginal right and/or title,

                   . . .

     the Regional Manager or District Manager, in a notice given to the Licensee, may vary or suspend, in whole or in part, or refuse to issue a cutting permit, road permit or special use permit, or a free use permit issued to the Licensee so as to be consistent with the court determination.

                                  (my emphasis)

 

 

 

As between the Crown and Weyerhaeuser, it was clearly contemplated by each of them that at the level of activities and operations it was the Licencee who would be infringing and who would have to meet the justification standards.  Para. 10.01 contemplates a failure by the Licencee to do so.

[89]    And to go back to para. 8.09, it is not simply the issuance of the cutting permit that would infringe, it is the combination of the issuance of the cutting permit and the actual cutting itself that would cause the infringement.  In those circumstances, I would think that both the Crown and Weyerhaeuser, as Licencee, would each have to meet the justification standards appropriate to their share of the activity.

[90]    I will summarize.

[91]    The provincial Crown may infringe on the aboriginal title and aboriginal rights of the Haida people if it can justify the infringement.  The infringement would consist in establishing a legislative and administrative scheme under the Forest Act, granting Weyerhaeuser an exclusive right to harvest timber in the area covered by T.F.L. 39, renewing the issuance of T.F.L. 39, transferring T.F.L. 39 to Weyerhaeuser, approving management plans, and issuing cutting permits, all in furtherance of the same legislative scheme, and all in violation of the aboriginal title and aboriginal rights of the Haida people.  The provincial Crown may justify its actions by meeting the tests for justification.  Among the tests is a requirement that the Haida people be consulted before the infringement actions are taken.  In this case, the Crown provincial did not consult the Haida people in any effective way at any stage of the furtherance of the legislative and administrative scheme, and so is in breach of its obligation of consultation at every stage where a justification test would require effective consultation.  That conclusion responds to the provincial Crown's obligations with respect to consultation as dealt with in the original reasons.

[92]    I now turn to Weyerhaeuser.  Weyerhaeuser acquired an exclusive licence to harvest timber.  That licence under the Forest Act and under the legislative and administrative scheme I have described carried with it certain obligations.  Among them was a fiduciary obligation to the Haida people based on the principle of "knowing receipt" which I have described in Division VI of these reasons.  That fiduciary obligation carried with it a duty to consult the Haida contemporaneously with taking on the licence and to seek accommodation with the Haida about the management of the licensed harvesting operation.  The obligation of consultation, derived from Weyerhaeuser's "knowing receipt", continued through the stages of management of the licence, including the preparation of management plans and the applications for cutting permits.  Weyerhaeuser's obligations of consultation are not necessarily co-extensive with those of the Crown provincial but because of Weyerhaeuser's "knowing receipt" of the licence, and because of the fiduciary duty it thereby became fixed with, there are, in this case, close correspondences between Weyerhaeuser's duty of consultation and the Crown provincial's duty of consultation. 

[93]    But there is also another level at which Weyerhaeuser owes obligations of consultation to the Haida people.  Even if Weyerhaeuser had not acquired a fiduciary duty to the Haida through its "knowing receipt" of its licence in breach of the Crown's fiduciary duty, when it comes to management decisions in relation to activities and operations in the forests, the Crown provincial no longer has day to day control of activities which may be carried out in such a way as to increase or to lessen the impact of the acts of infringement.  The choice of how to carry out those activities and operations is Weyerhaeuser's alone.  That choice, under a legislative scheme which gives Weyerhaeuser an exclusive licence, imposes on Weyerhaeuser, in my opinion, an obligation of consultation when decisions are being made and when alternatives are being chosen which impact on the Haida's aboriginal title or aboriginal rights.

 

 

 

 

VIII The Second Question:  Consultation:  Conclusion

 

[94]    In the original reasons, this Court declared that the Crown provincial has now and had in 1999 and 2000, and earlier, a legally enforceable duty to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short-term and long-term objectives of the Crown to manage T.F.L. 39 in accordance with the public interest, both aboriginal and non-aboriginal, on the other hand.

[95]    The legal duty of the Crown provincial was said in the original reasons to rest on the fiduciary duty of the Crown provincial to the Haida people and also, more specifically, on the principles requiring consultation in advance before what appeared to be a prima facie infringement of Haida aboriginal title and aboriginal rights could be said to be justified.  In addition, this Court recorded in the original reasons that the Crown was in breach of its duty of consultation to the Haida people though we did not specify the exact nature of the breaches other than the failure to consult when T.F.L. 39 was re-issued and transferred in 1999 and 2000.  The Crown provincial has applied for and been granted an extension of time to appeal to the Supreme Court of Canada from the declaration and order that we made but has otherwise not sought clarification of the declaration recorded in the original reasons on its own behalf, but only on behalf of Weyerhaeuser.  Accordingly, I do not propose to say anything more about the obligations of consultation of the provincial Crown as they affect this case.

[96]    At Weyerhaeuser's instigation, as I have said, further submissions were received on two questions.  This is how the second question was framed (the second question is not comprehensible without the first question, so I will set them both out):

1)   It was said, first, that the question of whether Weyerhaeuser had an obligation to consult the Haida people and seek accommodations with them in relation to any aspect of Tree Farm Licence 39 and Block 6 was not in issue before the Court in the appeal or, indeed, in the proceedings, and should not have formed a part of the declaration by the Court.

 

2)   It was said, second, that if that question was properly before the Court and open for decision, the answer to the question should have been that in the circumstances of this case there was not now, would not be in the future, at least until the aboriginal title and rights of the Haida people had been decided by treaty or by a court of competent jurisdiction, and had not been in the past, any obligation on the part of Weyerhaeuser, or its predecessor, MacMillan Bloedel Limited, to consult with the Haida people or to seek accommodations with them in relation to any aspect of Tree Farm Licence 39 or Block 6.

                                  (my emphasis)

 

 

Again, the terms of the second question were drawn from the terms of the declaration made by the Court in its original reasons.

[97]    For the reasons I have given in Divisions  V, VI, and VII of these additional reasons, it is my opinion that Weyerhaeuser had and has legally enforceable duties to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short-term and long-term objectives of the Crown and Weyerhaeuser to manage T.F.L. 39 in accordance with the public interest, both aboriginal and non-aboriginal, and in accordance with Weyerhaeuser's interests, on the other hand.

[98]    As I have said, Weyerhaeuser's duties of consultation come from three sources. 

[99]    Weyerhaeuser's duties come, first, from the provisions of the Forest Act and T.F.L. 39 under which Weyerhaeuser obtained its exclusive licence to harvest the forest in the area covered by T.F.L. 39 upon express conditions that it consult with the Haida people.  The scope of the statutory duty of consultation must be derived from a careful contextual consideration of the written provisions of the Forest Act and T.F.L. 39 against the factual matrix of the place of timber harvesting rights in the social history and background of the Queen Charlotte Islands (Haida Gwaii).

[100]                       The second source of Weyerhaeuser's duties of consultation comes from the trial judge's findings that there is a reasonable probability that the Haida people will be able to establish aboriginal title to at least some parts of Haida Gwaii, and from Weyerhaeuser's "knowing receipt" of the trust property constituted within T.F.L. 39 held by the Crown as fiduciary and granted to Weyerhaeuser in circumstances where the Crown and Weyerhaeuser both knew, or, on reasonable and necessary inquiry, could, and should have known, that the Crown was in breach of its fiduciary duty to the Haida people in granting, renewing and transferring T.F.L 39 in 1999 and 2000 without consulting the Haida people.  The scope of Weyerhaeuser's "knowing receipt" fiduciary duty of consultation must mirror itself on the Crown's fiduciary duty.  It stems from breach by the Crown of its original duty to consult and seek accommodation before issuing the licence, but it is not limited to an obligation on Weyerhaeuser to consult and seek accommodations at the time it received the licence.  The "knowing receipt" fiduciary duty of Weyerhaeuser must go on through the term of the licence, mirroring but not necessarily precisely co-extensive with the fiduciary duty of the Crown.  (Not co-extensive because Weyerhaeuser's rights and powers are not the same as the Crown's rights and powers.)

[101]                       The third source of Weyerhaeuser's duty of consultation comes from its opportunity to put up a defence of justification to any claim against it for violation of aboriginal title or aboriginal rights.  The scope of the "justification" duty of consultation which falls on Weyerhaeuser follows from a representation that its conduct in relation to T.F.L. 39 is not in violation of the constitutional title and rights of the Haida people as recognized and affirmed in s.35 and s.52 of the Constitution Act, 1982, because its conduct is "justified".  The primary obligation to conduct itself in such a way as to make a defence of "justification" falls on the Crown. But Weyerhaeuser cannot obtain the protection of "justification" unless it cooperates with both the Crown and the Haida people in ensuring that the justification standards are met towards the Haida people.  The work must be carried out with minimum infringement of the preferred way of the Haida people to exercise their aboriginal title and aboriginal rights.  Compensation for damage to Haida title or rights should become a subject of negotiation.  There are other justification standards but, above all, there must be effective consultation and bona fide efforts to seek accommodation.  The burden of carrying out consultations or seeing that consultations are carried out never leaves the Crown.  But Weyerhaeuser has an obligation to make all appropriate inquiries of the Crown to satisfy itself that the Crown's obligations of consultation are being discharged.  In addition, there are some areas, such as employing Haida people in its operations, or the sharing of economic opportunities, where no consultation with the Haida people could be effective without the participation of Weyerhaeuser.  I assume that is what is being referred to in para. 10.01 of T.F.L. 39 where it contemplates that the "activities or operations" of the Licencee, associated with the licence, may unjustifiably infringe aboriginal rights or title.

[102]                       I don't think that any attempt at describing Weyerhaeuser's obligations in greater detail would benefit any of the parties.  Accordingly, I would leave any further examination of Weyerhaeuser's duties of consultation to be explored in their factual context.

 

IX.  The Declaration and Order

 

[103]                       Since writing these reasons, I have had the advantage of reading the reasons of Chief Justice Finch and the reasons of Mr. Justice Low, in draft form.  It is important that, whenever possible, a majority judgment should emerge from the opinions of the judges who comprise the division which hears an appeal.  To that end, I would exercise the discretion that I hold with respect to the remedy that should flow from my reasons and, in the exercise of that discretion, I would concur with the more restrictive order contemplated by Chief Justice Finch in relation to the renewal of T.F.L. 39 in 1999 and 2000.  I do so without resiling in any way from the conclusions of law set out in my reasons.  In addition, I would make it clear that the Crown and Weyerhaeuser do not share a single duty but that they have separate duties.

[104]                       In the result, I would give judgment in this appeal, as consolidated in the sets of reasons following the two hearings, in these terms:

1.   A declaration is made that the Crown provincial had in 2000, and the Crown and Weyerhaeuser have now, legally enforceable duties to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short-term and the long-term objectives of the Crown and Weyerhaeuser to manage T.F.L. 39 and Block 6 in accordance with the public interest, both aboriginal and non-aboriginal, on the other hand.

2.   An order is made that the parties have liberty to apply to a judge of the Supreme Court of British Columbia for whatever orders they may be instructed to seek, pending the conclusion of the proceedings with respect to a determination of aboriginal title and aboriginal rights, infringement and justification.

3.   An order is made that the affidavits filed by the five intervenors in support of their applications to intervene be admitted in evidence in this appeal.

4.   An order is made that any reference in the original reasons to any breach by Weyerhaeuser of its duty to consult the Haida Nation is expunged from the reasons, by consent of the parties.

 

[105]                       Finally, I wish to say that in the original reasons I followed the decision of this Court in Taku River Tlingit First Nation v. Ringstead (2002), 98 B.C.L.R. (3d) 16, but for the grounds that I stated in those original reasons and the further grounds that I have stated in these additional reasons I would have reached the same result even if I had not had the benefit of Madam Justice Rowles' reasons in Taku River.

 

 

 

 

 

“The Honourable Mr. Justice Lambert”

 

 


Reasons for Judgment of the Honourable Chief Justice Finch:

 

 

[106]                       I have had the advantage of reading in draft form the reasons of Mr. Justice Lambert and Mr. Justice Low.  I agree in all respects with the disposition of this appeal set out in paragraph 104 of the reasons of Mr. Justice Lambert.  My reasons for the more restrictive form of declaration are set out below.

[107]                       Weyerhaeuser requested the rehearing of this appeal so that the Court might reconsider the remedy it granted for the Crown's failure to consult with the Haida before replacing TFL 39 in 2000.  That remedy included a declaration that Weyerhaeuser had a duty to consult with the Haida, expressed in this way in the Court's reasons of 27 February 2002:

[60] However, I would grant a declaration to the petitioners that the Crown Provincial and Weyerhaeuser have now, and had in 1999 and 2000, and earlier, a legally enforceable duty to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short term and long term objectives of the Crown and Weyerhaeuser to manage T.F.L. 39 and Block 6 in accordance with the public interest, both aboriginal and non-aboriginal, on the other hand.

 

 

[108]                       We have now had the benefit of further written and oral submissions by all parties, and several intervenors.  I remain of the view that a declaration of Weyerhaeuser's duty to consult is a lawful, necessary and appropriate part of the remedy in this case, although I would now express it more narrowly, and support it with these reasons which were not expressed in those pronounced on 27 February 2002.

[109]                       The history of this case, and the facts which led to the Haida's petition for judicial review of the Minister of Forests' decision to replace TFL 39 in 2000 are fully set out in the reasons of Mr. Justice Lambert.  I need only refer to them in brief outline.

[110]                       In their petition for judicial review, the Haida sought a declaration that the replacement of TFL 39 in 1981, 1995 and 2000 was invalid, and an order in the nature of prohibition preventing the Minister of Forests from replacing TFL 39.  As submissions developed before this Court in February, the plaintiffs sought relief only in relation to the replacement of TFL 39 in 2000.  The Haida claimed no remedy against Weyerhaeuser, although it was named as a respondent from the outset.

[111]                       By consent, an order was made in B.C. Supreme Court on 10 July 2000 in these terms:

This Court Orders that any issues requiring proof of aboriginal rights or title be referred to the trial list, such trial being at the option of the plaintiffs.

 

 

 

[112]                       The relief claimed in the petition, as heard by Mr. Justice Halfyard and by this Court in February, was therefore based on the premise that the Crown's constitutional and fiduciary duty to consult arose from a reasonably founded prima facie claim to aboriginal rights or title, without proof of those rights or title as a prerequisite.

[113]                       The contentious issue on the original hearing of this appeal was whether the Crown's duty to consult arose before proof of the existence or scope of aboriginal title and aboriginal rights.  The Court held that it did.  We considered ourselves bound by the judgment of the Court in Taku River Tlingit First Nation v. Ringstad, 2002 BCCA 59, 31 January 2002.  Madam Justice Rowles, for the majority, there held that establishment of aboriginal rights or title in court proceedings was not a necessary prerequisite to the Crown's duty to consult and accommodate.  She held that the Crown's constitutional responsibility to protect aboriginal rights arose from the special trust relationship created by history, treaties and legislation.  She said that to hold proof of aboriginal title and rights as a necessary foundation to the Crown's duty to consult would substantially defeat the purpose of s. 35(1) of the Constitution Act, 1982 (see Reasons in Taku especially at paragraphs 161, 162, 172, 173, 174, 183 and 194).  In my respectful opinion, Taku was correctly decided in law and in principle on all of these questions.

[114]                       The Crown tried, unsuccessfully in our view, to distinguish Taku.  We held that the judgment in Taku determined the outcome of the appeal (paragraphs 27-32).

[115]                       On reaching that conclusion the position was this: the Crown owed a constitutional and fiduciary duty to consult with the Haida before granting a replacement of TFL 39 in 2000; the Crown did not consult as required, and was therefore in breach of its duties in granting this tenure to Weyerhaeuser; Weyerhaeuser had received a licence that suffered a fundamental legal defect.

[116]                       The question was, and is, what remedy was appropriate and lawful in those circumstances.  The Haida urged us to declare the licence invalid and void.  It was clearly within the court's power to make such a declaration.  However a declaration that the 2000 replacement licence was invalid would have terminated all of Weyerhaeuser's rights under the licence, with serious economic consequences to it, its employees and others.  Weyerhaeuser said that a declaration of invalidity would be "Draconian".

[117]                       The Crown argued that the Court should, if it found a breach of the Crown's duty to consult, simply declare that the Crown had a duty to consult, without more.  In that event, the licence would have remained valid, and Weyerhaeuser would have continued to hold, unimpaired, the exclusive right to harvest timber up to the annual allowable cut ("AAC") from the area specified in the licence, which covers about one-quarter of the total area of Haida Gwaii.

[118]                       A declaration of the Crown's duty to consult, without more, would therefore have been a completely hollow or illusory remedy.  Weyerhaeuser might choose to co-operate in the consultation or not.  If it refused to co-operate, the Crown would be unable to make any effective accommodation.  The Crown's duty of consultation and accommodation would be frustrated.

[119]                       There is a broad range of issues on which the Haida might reasonably seek consultation and accommodation.  TFL 39 fully allocates all timber exclusively to Weyerhaeuser.  The Crown has no capacity to allocate any part of that timber to the Haida without Weyerhaeuser's consent or co-operation.  Within the tree farm licence, the AAC is dependant upon the management plan prepared by the licensee.  The Crown's ability to reduce unilaterally the AAC is limited by statute, and the licensee has no power to do so without the Crown's consent.  The ability to vary the AAC is therefore a power shared by the Crown and Weyerhaeuser.  Other issues of concern to the Haida would include employment opportunities for their people, as well as opportunities for sub-contracting.

[120]                       If the position of the Crown and Weyerhaeuser were accepted, and Weyerhaeuser had no duty to consult, the Crown would lack effective power to address any of the Haida's concerns, or to accommodate their legitimate economic objectives.

[121]                       I therefore considered in February, as I do now, that no effective remedy could be granted in this case, short of a declaration of invalidity, that did not impose an obligation on Weyerhaeuser to participate in the consultation and accommodation which were the Haida's due.

[122]                       I do not now consider it necessary to decide whether Weyerhaeuser's duty to consult arose before TFL 39 was replaced in 2000.  There is a strong argument in favour of that position.  Weyerhaeuser well knew of the Haida's claim to aboriginal title, and it well knew that the Crown did not consult the Haida before TFL 39 was replaced.  On the other hand, Weyerhaeuser did not know in 2000 that the Crown's duty to consult could rest simply upon the Haida's reasonably founded prima facie claim to aboriginal title, because Taku had not yet been decided in this Court.

[123]                       In my view, Weyerhaeuser's duty to consult arose from the particular circumstances of this case.  Those circumstances in essence are the issuance by the Minister of Forests of a tree farm licence in breach of the Crown's duty to consult, and receipt by Weyerhaeuser of a licence which therefore suffered a legal defect, which cannot be remedied without its participation.  In other words, Weyerhaeuser's duty to consult existed at least when it received replacement TFL 39 in 2000, and when this Court declared that the licence was issued by the Minister of Forests in breach of the Crown's duty to consult.  Upon that finding, Weyerhaeuser became possessed of a licence with a fundamental legal defect.  It is a defect that absent a declaration of invalidity, can only be remedied by the participation of both Weyerhaeuser and the Crown in consultation with the Haida.

[124]                       The question then is whether it is within the Court's jurisdiction to make a declaration of Weyerhaeuser's duty to consult in these proceedings for judicial review.

[125]                       Section 2(2) of the Judicial Review Procedure Act provides:

2(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.

 

 

 

[126]                       The petitioners' Petition was for a declaration in relation to the exercise of a statutory power.

[127]                       Section 9(1) of the Court of Appeal Act provides:

9(1) On an appeal, the court may

(a)  make or give any order that could have been made or given by the court or tribunal appealed from,

(b)  impose reasonable terms and conditions in an order, and

(c)  make or give any additional order that it considers just.

 

 

 

[128]                       It is not disputed that a declaration can properly be made against the Crown.  But as is apparent from what I have said above, a declaration against the Crown alone is no remedy at all.  Justice cannot be done in these proceedings without a declaration against Weyerhaeuser as well.  That is, in my view, an order within the discretionary powers conferred by s. 9(1)(c) of the Court of Appeal Act.

[129]                       I have therefore concluded that the declaration pronounced on 27 February 2002 quoted above at paragraph [2] of these reasons was expressed more broadly than was necessary or appropriate.  I would modify the declaration to say that:

The Crown provincial had in 2000, and the Crown and Weyerhaeuser have now, legally enforceable duties to the Haida people to consult with them in good faith and to endeavour to seek workable accommodations between the aboriginal interests of the Haida people, on the one hand, and the short term and long term objectives of the Crown and Weyerhaeuser to manage TFL 39 and Block 6 in accordance with the public interest, both aboriginal and non-aboriginal, on the other hand.

 

 

 

[130]                       I agree, as I have said, with the other orders proposed by Mr. Justice Lambert.

 

 

 

 


”The Honourable Chief Justice Finch”

 

 


Dissenting Reasons of the Honourable Mr. Justice Low:

[131]                       I have read in draft form the reasons for judgement of Mr. Justice Lambert and the separate reasons of Chief Justice Finch.  I respectfully disagree with the disposition of the issue they propose.  In my opinion, the appellant has established no basis in law for the Court to make a mandatory order directly against Weyerhaeuser in these proceedings.  In any event, if such an order could properly be made in law, the appellant in its pleadings in Supreme Court made no claim for relief against Weyerhaeuser and it is not appropriate for us to entertain a claim against the company on this appeal. 

[132]                       I do not intend to elaborate a great deal on these points. 

[133]                       The appellant commenced these proceedings by petition seeking relief under the Judicial Review Procedure Act, R.S.B.C., 1996, c. 241 against the Crown only, specifically the Minister of Forests, in the form of cancellation of the Tree Farm Licences granted by the Minister to Weyerhaeuser and its predecessor company.  Their application was governed by s. 2 of the statute:

 

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.

 

[134]                       Judicial review remedies are available against public officials and public bodies only, not against private citizens.  Weyerhaeuser exercised no statutory power.  The Minister of Forests exercised a statutory power in granting the T.F.L. to Weyerhaeuser and its predecessor.  In pursuing its rights under the T.F.L., Weyerhaeuser exercises only contractual rights.  Therefore, it seems to me, it was open to the appellant, in the form of proceedings it chose, to seek a remedy against the public official only.  Weyerhaeuser had to be added as a respondent because any remedy obtained against the Crown would affect its contractual rights.  However, if the appellant wished to seek a remedy directly against Weyerhaeuser, it would have been compelled to do so in an ordinary action.  I am persuaded by the submissions we received on the second hearing of this matter last June 4th that no direct remedy against Weyerhaeuser was available to the appellant in the form of proceedings it brought.    

[135]                       The appellant pleaded that the Province failed to consult with the Haida Nation or to otherwise make accommodation for the Haida claim to aboriginal title and rights.  It pleaded no failure on the part of Weyerhaeuser to consult or accommodate.  I expect this is so because no remedy, as I have already stated, was available to it against Weyerhaeuser under the statute on which the petition was brought.  Mr. Justice Halfyard stated the issue accordingly: “Did the Crown have a legal obligation to consult with the Haida in good faith, before replacing T.F.L 39?” (para. 30).  The parties did not litigate whether Weyerhaeuser had that duty or, if it did, whether it breached it.

[136]                       In the notice of appeal the appellant asked this court to set aside the order of Mr. Justice Halfyard and declare invalid the replacements of the T.F.L. in the years 1981, 1995 and 2000.  Alternatively, the appellant asked for an order of certiorari quashing the replacements of the T.F.L.  The appellant claimed no order against Weyerhaeuser directly.  In its initial factum the appellant repeats the same claims for relief.  The body of the factum contains no argument that Weyerhaeuser had a duty to consult or that the company had breached such a duty.

[137]                       It seems to me that upon reading the petition Weyerhaeuser’s representatives could have chosen not to appear and simply to rely on the Crown to oppose the remedies sought by the appellant against the Crown under the Judicial Review Procedure Act.  On the pleadings, the only risk to Weyerhaeuser was that the court might set aside the T.F.L. with the result that the company would have to apply to the Minister of Forests for a re-issuance of the T.F.L. under whatever new regime the court imposed on the Crown.  Weyerhaeuser had no notice of any claim being made against it. 

[138]                       A chambers judge made a consent order on 10 July 2000, following a motion brought by the Crown, sending the issues of aboriginal “rights or title” to the trial list “at the option of the [appellant]”.  Mr. Justice Halfyard heard the petition on the remaining issues discussed in the reasons we gave last February. He held that there was no enforceable duty on the Crown to consult and accommodate.  Following this court’s decision in Taku River Tlingit First Nation v. Ringstad, 2002 BCCA 59, 31 January 2002, we decided that there was an enforceable duty on the Crown to consult.  I think we erred in extending that duty to Weyerhaeuser.  I do not say the duty on Weyerhaeuser does not exist.  I simply say that the issue is not properly before the court.  I do not think this court should venture outside the pleadings to fashion a remedy not contemplated by the pleadings or by the course of the litigation.  If the appellant wishes to pursue the remedy against Weyerhaeuser, it must do so in the substantive action created by the consent order of 10 July 2000 or in another ordinary action.  I do not think that we should make a declaration imposing a duty to consult on Weyerhaeuser in the absence of appropriate pleadings and the presentation of evidence by both sides.   

[139]                       I do not agree that the declaration of the Crown’s duty to consult with, and accommodate the interests of, the appellant will be ineffective without a declaration that Weyerhaeuser has a duty to consult.  There is not a great deal of evidence before us about the practical administration of the T.F.L.  As I understand it, the licence, standing alone, does not permit Weyerhaeuser to harvest timber on Haida Gwaii.  The harvesting of timber is subject to an annual allowable cut fixed by the Ministry, and approval by the Minister or his representatives of specific logging plans from time to time.  With the declaration of a duty on the Crown to consult the appellant, I expect that those in the Ministry responsible for the administration of the T.F.L. will receive input on specific issues and logging plans from the appellant.  I have no doubt that the Ministry officials will share that input with Weyerhaeuser.  Periodically, the Ministry officials will have to make decisions pursuant to the terms of the licence, the Forestry Act and applicable regulations.  I do not see that it is necessary for the court to impose a legal duty to consult on Weyerhaeuser in order to make effective the declaration that the Crown must consult and reasonably accommodate.  If the process I foresee proves to be unworkable, it is open to the appellant to seek a declaration against Weyerhaeuser in the trial court upon proper pleadings and after the presentation of evidence directly addressing the issue.

[140]                       I would confine the order of this court to the declaration against the Crown.

 

 

 

 

“The Honourable Mr. Justice Low”