Citation: |
||||
|
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”