Citation:

Kitkatla Band v British

 

 

Columbia (Small Business,

 

 

Tourism and Culture)

 

2000 BCCA 42

Date: 20000119

Docket:

V03364

V03385

Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

CHIEF COUNCILLOR MATHEW HILL, also known as Tha-lathatk, on his own behalf and on behalf of all other members of the Kitkatla Band and KITKATLA BAND

PETITIONERS

(APPELLANTS)

AND:

THE MINISTER OF SMALL BUSINESS, TOURISM AND CULTURE, THE ATTORNEY GENERAL FOR THE PROVINCE OF BRITISH COLUMBIA and INTERNATIONAL FOREST PRODUCTS LIMITED

RESPONDENTS

(RESPONDENTS)

AND:

COUNCIL OF FOREST INDUSTRIES

ALLIED TSIMSHIAN TRIBES ASSOCIATION,

LAX KW'ALAAMS INDIAN BAND and

TRUCK LOGGERS ASSOCIATION

INTERVENORS

Before:

The Honourable Madam Justice Prowse

 

The Honourable Mr. Justice Braidwood

 

The Honourable Mr. Justice Hall

 

J. Woodward, R.J.M. Janes and P. Hutchings

Counsel for the Appellants

C. Devlin

Counsel for the Appellants

(for CA V03364 only)

 

 

 

P.J. Pearlman, Q.C.

and C. Kickbush

Counsel for the Respondent

The Attorney General for the Province of British Columbia

P.G. Foy, Q.C.

and W.K. McNaughton

 

Counsel for the Respondent

International Forest

Products Limited

C.F. Willms

 

H.A. Slade, Q.C.

and H.M. Ellison

 

 

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

and M. Stephens

Counsel for the Intervenor

Council of Forest Industries

Counsel for the Intervenor

Lax Kw'Alaams Indian Band and

the Allied Tsimshian Tribes Association

Counsel for the Intervenor

Truck Loggers Association

Place and Date of Hearing:

Vancouver, British Columbia

 

July 12 & 13, 1999

Place and Date of Judgment:

Vancouver, British Columbia

January 19, 2000

Written Reasons by:

The Honourable Mr. Justice Braidwood

Concurring Reasons by:

The Honourable Mr. Hall (Page 51, Para. 94)

Dissenting Reasons by:

The Honourable Madam Justice Prowse (Page 66, Para. 110)

Reasons for Judgment of the Honourable Mr. Justice Braidwood:

 

[1] This is an appeal from two judgments of the Supreme Court of British Columbia, the first pronounced 21 October 1998, with supplemental reasons filed 12 November 1998 (collectively the "First Judgment"), and the second pronounced 15 December 1998 (the "Second Judgment").

[2] The First Judgment held sections 12(2)(a), 13(2)(c) and 13(2)(d) of the Heritage Conservation Act, R.S.B.C. 1996, c. 187 (the "HCA") to be intra vires the Legislature of the province of British Columbia. Section 13 of the HCA proscribes any manner of interference with a prescribed inventory of heritage property except as authorized by permit. In particular, ss. 12(2)(a), 13(2)(c) and (d) allow the Minister of Small Business, Tourism and Culture (the "Minister") to issue a permit allowing a person to:

damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value; or
damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846.

[3] The appellants unsuccessfully argued that those sections of the HCA were unlawful because they are provincial legislation in the matter of "Indians" or "Lands reserved for the Indians", a matter reserved exclusively for Parliament under section 91(24) of the Constitution Act, 1867. The respondents relied on provincial authority pertaining to "Property and Civil Rights" conferred by s. 92(13) of the Constitution Act, 1867.

[4] The Second Judgment dismissed the appellant's petition for an order prohibiting the Minister from granting a site alteration permit, pursuant to the HCA, to International Forest Products Limited ("Interfor") to allow it to cut a number of culturally modified trees ("CMTs"). The appellants claimed an interest in those CMTs. It was their position that an authorization to harvest the CMTs would derogate from their aboriginal rights and, accordingly, be outside the limitation imposed on the Minister's jurisdiction by s. 8 of the HCA. The appellants were of the view that the Minister must hear and determine the question of aboriginal right prior to deciding to issue or refuse to issue a permit under s. 12(2) of the HCA. The Chambers Judge agreed with the respondents and held that the Legislature did not intend to confer upon the Minister the power to decide the question of aboriginal rights in the permit process.

ISSUES ON APPEAL

[5] The issues on appeal can be stated in the following terms:

I. APPEAL NO. V03364
1. Are sections 12(2)(a) and 13(2) of the Heritage Conservation Act in pith and substance laws in relation to Indians or Lands reserved for the Indians, or alternatively, are the laws in relation to property, and, therefore, within the exclusive legislative competence of the Province under section 92(13) of the Constitution Act, 1867?

[2] If the impugned provisions of the Heritage Conservation Act are within provincial jurisdiction under s. 92(13) of the Constitution Act, 1867 do they apply to the appellants ex proprio vigore?

[3] If the impugned provisions do not apply to the appellants ex proprio vigore do they nonetheless apply by virtue of s. 88 of the Indian Act?

 

II. APPEAL NO. V03385

1. Is the Minister required to decide whether the appellants have aboriginal rights concerning CMTs before the issuance of a permit under section 12(2) of the Heritage Conservation Act?

BACKGROUND

The Parties

[6] The appellant Kitkatla Band is an aboriginal group, recognized by designation as a Band, pursuant to the Indian Act. The Kitkatla are the successors to the Kitkatla group, also known as the Gitkxaala. They claim aboriginal rights in the Kumealon watershed, an area covered by the respondent Interfor's forest licence. The Kumealon is also the subject of overlapping claims of aboriginal rights and/or title advanced by the Lax Kw'alaams Indian Band.

[7] The Kitkatla are members of the Tsimshian Tribal Council. The Tsimshian Tribal Council, with the participation of the Allied Tsimshian Tribes Association, is engaged in treaty negotiations with the province of British Columbia.

[8] Mathew Hill is the Chief Councillor of the Kitkatla.

[9] The respondent Minister is responsible for the administration of the HCA.

[10] The respondent Interfor carries on the business of logging, harvesting and processing timber. It is the holder of a forest licence over a tract of land on the central coast of British Columbia, which includes the Kumealon. Since 1985 Interfor has been logging in the Kumealon pursuant to a forest licence originally issued 1 September 1982.

[11] The Intervenor Council of Forest Industries is a province wide forest industry trade association comprised of more than 100 forest product companies and six independent product or regional associations.

[12] The Intervenor Lax Kw'alaams Indian Band is one of the bands that were constituted under the Indian Act, along with the Kitkatla Band, from the Tsimshian peoples. For the purposes of the Indian Act, the Lax Kw'alaams Indian Band was formed as a result of the grouping of nine tribes. The nine tribes are members of the respondent Allied Tsimshian Tribes Association. This association represents the nine tribes in treaty negotiations with the Federal and Provincial Crown.

[13] The Intervenor Truck Loggers Association is an umbrella organization representing small to medium sized independent companies doing business in the forest industry in coastal British Columbia. Truck Loggers Association members harvest over fifty per cent of the allowable cut in coastal British Columbia.

Chronology

[14] In early 1998, Interfor engaged the services of an archaeological firm to investigate and report on the archaeological impact of timber harvesting within an area which included the Kumealon.

[15] The Kitkatla had, since early 1994, been directly informed of Interfor's sequential forest development programs as a consequence of Interfor's disclosure obligations under forestry regulations. However, these notifications throughout the years did not identify, specifically, the Kumealon.

[16] In February 1998 the Kitkatla expressed interest in the Kumealon. Thereafter, Interfor and the Kitkatla met for discussions on the plans for the Kumealon. This continued until the Kitkatla requested of the Ministry of Forests that Interfor not participate in consultations between themselves and the Ministry of Forests.

[17] On 9 February 1998 the archaeological firm hired by Interfor wrote to the Kitkatla and invited them to participate in their investigation. In response, the Kitkatla supplied two individuals. On this same date, Interfor applied to the Minister for a permit under s. 12 of the HCA to carry out a site alteration. This site alteration concerned CMTs and anticipated the cutting, felling, yarding, moving, milling and disturbance of CMTs during operational activities.

[18] On 17 February 1998 the Minister wrote to the Kitkatla, enclosing a copy of Interfor's application for the permit, inviting written submissions from them by 19 March 1998. The Kitkatla did not respond.

[19] On 23 March 1998 one of the Minister's staff advised the Minister that no comments were received and it was recommended that the permit be issued. Approximately one week later, on 31 March 1998, the Minister issued an alteration permit authorizing the cutting, felling, yarding, moving, milling, and other alterations, of CMTs in the Kumealon, and requiring that all work conform with the application for permit dated 9 February 1998. There were no archaeological reports before the Minister when this decision on 31 March 1998 was made.

[20] On 20 July 1998 Interfor submitted a proposed management plan to the Minister and sought approval under the permit of 31 March 1998 to harvest CMTs, located in seven cut blocks, within the Kumealon. This management plan was approved on 24 August 1998.

[21] As previously noted, on 21 October 1998 the Kitkatla's application for judicial review to set aside on the grounds of interjurisdictional immunity the Minister's decision to grant the permit was dismissed. However, the learned Chambers judge did grant an order setting aside the site alteration permit as it applied to seven cutblocks in the Kumealon after finding the Crown's notification to the appellants and the opportunity to consult with respect to the site alteration permit were inadequate. By supplemental reasons dated 12 November 1998, the Minister was directed to reconsider that part of his decision dated 31 March 1998, affecting CMTs, after providing the Kitkatla with the opportunity to consult (collectively the First Judgment).

[22] As a step in that reconsideration, the Kitkatla asserted the existence of aboriginal title, or alternatively aboriginal rights in the Kumealon. The Minister responded stating that he was not in a position, in a permit granting procedure, to determine conclusively whether the Kitkatla had aboriginal rights. "Only a Court, after a full hearing, can do so", stated the Minister, whereupon the appellants initiated the second proceeding.

[23] On 15 December 1998 the learned Chambers Judge dismissed the Kitkatla's petition (the Second Judgment) for an order prohibiting the Minister from granting a site alteration permit, pursuant to the HCA, to Interfor.

[24] On 18 December 1998, the Minister's delegate issued the site alteration permit after carrying out the directed reconsideration. This permit authorized the alteration of 40, out of approximately 180, CMTs within the seven Kumealon cutblocks. Counsel for the Minister, the Attorney General, and Interfor all submitted that before Interfor could harvest any of the CMTs, it required, in addition to the site alteration permit, approvals under the Forest Act and Forest Practices Code of British Columbia, from the District Manager of Forests for its Forest Development Plan, and cutting permits. Counsel for the appellants were of the view that the site alteration permit issued under the HCA authorized the immediate harvesting of the identified CMTs without further approval or permit. I will have more to say about this later.

[25] In the area proposed to be cut, Interfor planned to log on 22 cutblocks in the Kumealon watershed. Of these 22 cutblocks, seven cutblocks contained a total of 40 standing CMTs which Interfor proposed to harvest. The Archaeological Impact Assessment submitted by Arcas Consulting Archeologists Ltd.("Arcas") identified a total of 116 standing CMTs and 61 fallen CMTs either within or immediately adjacent to the seven Kumealon cutblocks at issue in these proceedings. All of the fallen CMTs and 76 of the standing CMTs were to be preserved.

[26] Paragraph 10 of the factum of the Minister of Small Business, Tourism, and Culture and the Attorney General for the Province of British Columbia contains the following statement of fact:

On December 18, 1998, the Minister's delegate, Mr. Ray Kenny, issued Site Alteration Permit 1998 - 354 after carrying out the reconsideration directed by the Court. Site Alteration Permit 1998 - 354 authorized the alteration of 40 out of a total of 178 CMTs located by Arcas within the seven Kumealon cutblocks, and incorporated Interfor's amended CMT Management Plan, dated October 23, 1998, under which a majority of the CMTs identified by Arcas, and almost all of the aboriginal logging features found by Arcas in the seven cutblocks, are to be preserved. No heritage sites or objects, other than CMTs, have been located in the seven Kumealon cutblocks.

Culturally Modified Trees (CMTs)

[27] In the First Judgment the learned Chambers judge described a culturally modified tree as:

A tree that has been altered by native people as part of their traditional use of the forest.

And:

A tree which has been intentionally altered by native people participating in the traditional utilization of the forest.

[28] The learned Chambers judge also stated that "two cardinal aspects of culturally modified trees are their ethnic significance and scientific significance." An archaeologist described those two aspects in the following words:

Ethnic significance represents the traditional, social, or spiritual importance of an archeological site to a particular group or community. The archeological sites identified during this assessment are located in the traditional territories of the Kitkatla and Lax-Kw'alaams First Nations, who consider all archaeological sites in their traditional territories to have high ethnic significance.
Scientific significance is based on the potential that a site has for providing information which will increase our understanding of past human activity in British Columbia. The significance of a forest utilization site can range from high to low, depending on the number, variety, antiquity, uniqueness, suitability for dating, and condition of the culturally modified trees present.

[29] CMTs are common in British Columbia. Thousands are reported and registered each year in the register of archaeological sites maintained by the Archaeology Branch.

[30] For the most part, the CMTs in question have been altered through the removal of bark strips. It has been assumed that these cultural modifications were done by first nations people. However, it is not possible to tell which aboriginal group culturally modified the trees.

[31] The appellants submit that the CMTs have profound value as cultural heritage, being the sole existing record of skills and knowledge of the ancestors of the Kitkatla and the Tsimshian. Furthermore, they argue, the CMTs have spiritual significance which will be lost or compromised should they be removed from their cultural context through logging.

Heritage Conservation Act

[32] As previously mentioned, this appeal concerns ss. 12(2)(a), 13(2)(c) and 13(2)(d) of the HCA whose purpose, as stated in s. 2, is to "encourage and facilitate the protection and conservation of heritage property in British Columbia." The relevant portions of the HCA are reproduced below:

[1] In this Act:

"heritage object" means, whether designated or not, personal property that has heritage value to British Columbia, a community or an aboriginal people;
"heritage site" means, whether designated or not, land, including land covered by water, that has heritage value to British Columbia, a community or an aboriginal people;
"heritage value" means the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object;
6 If, with respect to any matter affecting the conservation of a heritage site or heritage object referred to in section 13(2), there is a conflict between this Act and any other Act, this Act prevails.
8 For greater certainty, no provision of this Act and no provision in an agreement entered into under section 4 abrogates or derogates from the aboriginal and treaty rights of a first nation or of any aboriginal peoples.
12(2) The Minister may
(a) issue a permit authorizing an action referred to in section 13, or
(b) refuse to issue a permit for an action that, in the opinion of the minister, would be inconsistent with the purpose of the heritage protection of the property.
12(7) A permit does not authorize the holder of the permit to enter property, or to make any alteration to property, without the permission of the owner or occupier.
13(2) Except as authorized by a permit issued under section 12 or 14, or an order issued under section 14, a person must not do any of the following:
(a) damage, desecrate or alter a Provincial heritage site or a Provincial heritage object or remove from a Provincial heritage site or Provincial heritage object any heritage object or material that constitutes part of the site or object;
(b) damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains or any heritage object from a burial place that has historical or archaeological value;
(c) damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value;
(d) damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846;
(e) damage or alter a heritage wreck or remove any heritage object from a heritage wreck;
(f) damage, excavate, dig in or alter, or remove any heritage object from, an archaeological site not otherwise protected under this section for which identification standards have been established by regulation;
(g) damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of unknown origin if the site may be protected under paragraphs (b) to (f);
(h) damage, desecrate or alter a site or object that is identified in a schedule under section 4(4)(a);
(i) damage, excavate or alter, or remove any heritage object from, a property that is subject to an order under section 14(4) or 16.
 

DISCUSSION

First Appeal

[33] To summarize, there was no argument made before us that the HCA, generally, was not valid provincial legislation. What the appellants submit is that s. 12(2)(a) and s. 13(2)(c) and (d) of the HCA are provincial laws which intrude on federal jurisdiction because in pith and substance they are legislation in the matter of "Indians" or "Lands reserved for the Indians" and are therefore ultra vires. If this submission is correct, s. 88 of the Indian Act is inapplicable as s. 88 does not give validity to provincial laws which are invalid because they are legislation in relation to Indians and Indian lands (see: Delgamuukw at 1122 and P.W. Hogg, Constitutional Law of Canada, looseleaf (Scarborough: Carswell, 1997) at 27-13, para. 27.3(b)). Section 88 cannot save legislation that is not valid by enacted provincial legislation.

[34] Alternatively, the appellants argue that if the legislation is not invalid because of the division of powers analysis, the impugned sections touch upon the core of Indianness and therefore do not apply to aboriginal people of their own force, or "ex proprio vigore". Therefore, the legislation could only be valid if it can be saved by the application of s. 88 of the Indian Act. The appellants then submit that the impugned sections cannot be saved by s. 88 of the Indian Act because they are not provincial laws of general application.

[35] This argument is based on the analysis set out in R. v. Alphonse (1993), 80 B.C.L.R. (2d) 17 (C.A.), where at 31-2 Macfarlane J.A. for the majority of this Court stated two propositions describing the application of provincial laws of general application to Indians:

1. Provincial laws of general application which apply throughout the province to all residents, and which do not affect "Indians in their Indianness", "Indians qua Indians", or "Indians in relation to the core values of their society" or "the status and capacities of Indians" apply to Indians by their own force as valid provincial laws. They do not rely on s. 88 of the Indian Act for their application to Indians.

[2] Provincial laws of general application which do affect Indians in the ways listed above will not apply to Indians by their own force. Such laws depend on s. 88 of the Indian Act, which gives them the force of federal law for their effectiveness in relation to Indians. Such federal incorporation is required because of the exclusive federal power over Indians which I have described in Delgamuukw [[1993] 5 W.W.R. 97].

[36] The respondents submit that the impugned sections of the HCA are valid provincial law passed under s. 92(13) of the Constitution Act, 1867, as they concern property and civil rights. They further submit that the impugned provisions apply to the appellants ex proprio vigore, or alternatively, the legislation is saved by s. 88 of the Indian Act which operates as a federal adoption, or incorporation by reference, of a provincial law of general application.

[37] Accordingly, if it is determined that the impugned sections of the HCA are valid provincial law which do not affect "Indians in their Indianness", "Indians qua Indians", "Indians in relation to the core values of their society" or the "status and capacities of Indians" the inquiry is at an end as ss. 12(2), 13(2)(c) and (d) apply ex proprio vigore. It is only if the impugned sections are held to be within the provincial sphere, but inapplicable to Indians of their own force, that it is necessary to embark upon the s. 88 inquiry.

Preliminary Matters

[38] The appellants assert that it is s. 12(2)(a) of the HCA that is unconstitutional, for it authorizes the "destruction" of items referred to in s. 13(2)(c) & (d). In their submission s. 13, on its own, is not beyond the purview of the provincial legislature as it "protects" rather that "destroys". I find this proposition difficult to accept. The legislation is either valid provincial law or it is not. If it is a matter falling under s. 92(13) then the province has the authority to both preserve and destroy. If it is beyond provincial authority the province can do neither.

[39] As I noted earlier, the appellants take the position that the site alteration permit gives Interfor the authorization to immediately cut down the 40 CMTs in question. I do not feel that this sub-issue has any bearing on this decision. Without deciding the point, given the lack of argument, I would comment that this position seems on its face to be in error. The permit seems to be simply an immunity from prosecution under the HCA. Interfor, it would appear, would still require the appropriate permits under the applicable acts and codes. I also note s. 12(7) of the HCA which states that a "permit does not authorize the holder of the permit to enter property, or to make any alteration to property, without the permission of the owner or occupier". I will come to this again later.

Division of Powers

[40] The constitutional analysis must involve determining the true character or "pith and substance" of the sections in question. To put it another way, are the sections unlawful because they are legislation in the matter of Indians or lands reserved for Indians?

[41] In R. v. Morgentaler, (No. 3), [1993] 3 S.C.R. 463, it was said at 481-2 that:

A law's "matter" is its leading feature or true character, often described as its pith and substance: Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580 (P.C.), at p. 587; see also Whitbread v. Walley, [1990] 3 S.C.R. 1273, at p. 1286. There is no single test for a law's pith and substance. The approach must be flexible and a technical, formalistic approach is to be avoided. See Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 1, at p. 15-13. While both the purpose and effect of the law are relevant considerations in the process of characterization (see, e.g., Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117 (P.C.) (the Alberta Bank Taxation Reference), at p. 130; Starr v. Houlden, [1990] 1 S.C.R. 1366, at pp. 1389, 1392), it is often the case that the legislation's dominant purpose or aim is the key to constitutional validity.
 

[42] Professor Hogg in Constitutional Law of Canada, at 15-7 to 15-8, para 15.5(a), describes the process of constitutional characterization of legislation in the following terms:

Characterization of laws
(a) "Matter"
. . .
As emphasized earlier, the sole purpose of identifying the "matter" of a law is to determine whether the law is constitutional or not. . . .
The difficulty in identifying the "matter" of a statute is that many statutes have one feature (or aspect) which comes within a provincial head of power and another which comes within a federal head of power. Clearly, the selection of one or the other feature as the "matter" of the statute will dispose of the case; equally clearly, the court in making its selection will be conscious of the ultimate result which is thereby dictated. . . . What the courts do in cases of this kind is to make a judgment as to which is the most important feature of the law and to characterize the law by that feature: that dominant feature is the "pith and substance" or "matter" of the law; the other feature is merely incidental, irrelevant for constitutional purposes. . . .
It is important to recognize that this "pith and substance" doctrine enables one level of government to enact laws with substantial impact on matters outside its jurisdiction.

[43] Section 91(24) of the Constitution Act, 1867 confers legislative authority on the federal Parliament in relation to two matters: "Indians" and "Lands reserved for the Indians". In these proceedings only the first branch is engaged, for the site alteration permit does not apply to areas included within the Indian reserve. Although federal legislative authority under s. 91(24) in relation to "Lands reserved for the Indians" extends to the lands burdened by unextinguished aboriginal title as well as to lands held as reserves under the Indian Act, the appellants have abandoned their claim to aboriginal title over the Kumealon watershed in this appeal.

[44] In Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, Beetz J. explained that each head of federal power contains a basic, minimum, and unassailable content, which the provinces are not permitted to regulate indirectly through valid laws of general application. Beetz J. stated the following at 762:

. . . works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application . . . provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction . . .

[45] In the recent decision of Ordon Estate v. Grail, [1998] 3 S.C.R. 437, the Court stated at 437-8:

The principle that each head of federal power possesses an essential core which the provinces are not permitted to regulate indirectly was recently restated by Lamer C.J. in Delgamuukw, supra, at para. 181, in the context of the federal power over Indians and lands reserved for Indians. Speaking for the majority of the Court, Lamer C.J. stated that s. 91(24) of the Constitution Act, 1867, protects a "core of federal jurisdiction" over Indians and lands reserved for Indians even from provincial laws of general application, through the operation of the doctrine of interjurisdictional immunity.

[46] In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 Chief Justice Lamer had this to say concerning the "core" of Indianness at 1119:

It follows, at the very least, that this core falls within the scope of federal jurisdiction over Indians. That core, for reasons I will develop, encompasses aboriginal rights, including the rights that are recognized and affirmed by s. 35(1). Laws which purport to extinguish those rights therefore touch the core of Indianness which lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces to enact. The core of Indianness encompasses the whole range of aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land; that part of the core derives from s. 91(24)'s reference to "Lands reserved for the Indians". But those rights also encompass practices, customs and traditions which are not tied to land as well; that part of the core can be traced to federal jurisdiction over "Indians". Provincial governments are prevented from legislating in relation to both types of aboriginal rights.

[47] It is upon the above basis that the appellants submit that the impugned sections of the HCA are ultra vires.

[48] A main disagreement between counsel involved how the provisions of the HCA were to be analyzed for the purposes of the division of powers analysis. The appellants focused almost entirely on the impugned provisions while the respondents argued for a larger view incorporating the specific provisions into the entire scheme of the HCA.

[49] The Supreme Court of Canada, in General Motors of Canada Ltd. v. City National Leasing (1989), 58 D.L.R. (4th) 255, commented that the same test for determining constitutional validity will not be appropriate in all circumstances. In the case before it, the Supreme Court of Canada considered both the impugned provision and the act (Combines Investigation Act) as a whole in undertaking the constitutional analysis. At 274 Chief Justice Dickson, writing for the Court, stated:

In determining the proper test it should be remembered that in a federal system it is inevitable that, in pursuing valid objectives, the legislation of each level of government will impact occasionally on the sphere of power of the other level of government; overlap of legislation is to be expected and accommodated in a federal state. Thus a certain degree of judicial restraint in proposing strict tests which will result in striking down such legislation is appropriate.

[50] In the circumstances before us both the entire HCA and the impugned provisions should be considered. It would be an error to consider ss. 12(2), 13(2)(c) and (d) in a vacuum.

[51] We start then with the expressly stated purpose and intent of the legislation in s. 2 as being to encourage and facilitate the protection and conservation of heritage objects and sites in British Columbia.

[52] The appellants assert that s. 35 of the Constitution Act, 1982, which protects aboriginal and treaty rights, protects heritage objects and sites as they are matters relating to the "Indianness" of aboriginal peoples. An "Indian" is not an "Indian" because of race or place of birth but because of his or her heritage, continues the submission. Cultural objects, submit the appellants, are indicia of heritage and therefore are matters relating to the Indianness of native peoples and accordingly, are matters reserved to Parliament under s. 91(24). The appellants assert that it does not matter how minute the heritage object under consideration is. For example, an arrow head, the remains of a campfire or a CMT are all grouped under the heading of heritage, and all matters relating to heritage are within federal jurisdiction.

[53] The appellants also argue that one of the matters that makes this aboriginal society distinctive is its heavy reliance on cedar, making it in effect a "cedar society". The appellants quoted the following passage from R. v. Van Der Peet, [1996] 2 S.C.R. 507 at 553-4 where the Court discussed the assessment of a claim to an aboriginal right:

To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society's distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive -- that it was one of the things that truly made the society what it was.
This aspect of the integral to a distinctive culture test arises from fact that aboriginal rights have their basis in the prior occupation of Canada by distinctive aboriginal societies. To recognize and affirm the prior occupation of Canada by distinctive aboriginal societies it is to what makes those societies distinctive that the court must look in identifying aboriginal rights. The court cannot look at those aspects of the aboriginal society that are true of every human society (e.g., eating to survive), nor can it look at those aspects of the aboriginal society that are only incidental or occasional to that society; the court must look instead to the defining and central attributes of the aboriginal society in question. It is only by focusing on the aspects of the aboriginal society that make that society distinctive that the definition of aboriginal rights will accomplish the purpose underlying s. 35(1). [Emphasis in original]

[54] I note that this Court is not asked, nor was the Chambers judge below, to make a determination concerning the appellants' aboriginal rights. However, the issues surrounding the division of powers analysis require an inquiry into the "core" aspects of aboriginal rights.

[55] To support the view that this legislation is in the matter of Indians or singles out Indians, the appellants point this Court to the specific wording of ss. 13(2)(c) and (d). Section 13(2)(c) specifically addresses aboriginal rock paintings or aboriginal rock carvings. Section 13(2)(d) makes reference to "human habitation or use before 1846". This, submit the appellants, really means "aboriginal habitation." The learned trial judge below stated that:

That use of the year 1846 is meant to refer to aboriginal habitation or aboriginal use, is clear from the prior legislation on this topic.

[56] According to archaeologist and anthropologist John Dewhirst the vast majority of evidence of human habitation in British Columbia prior to 1846 was aboriginal in origin. He was of the opinion that:

Most of this archaeological evidence of human habitation or use in British Columbia prior to 1846 is evidence of aboriginal habitation or use. Non aboriginal occupation of British Columbia was limited to mainly a small number of fur trade posts such as Fort Langley, Fort St. James and Fort Simpson, and similar outposts of Europeans. These forts, together with a few other minor sites, were the only places where Europeans left an archaelogical record prior to 1846. Otherwise, the overwhelming physical evidence of human habitation and use prior to 1846 is aboriginal in origin. If I was to estimate the proportion of aboriginal to non-aboriginal archaelogical evidence of human habitation that pre-dates 1846, I would say that 99% of it is aboriginal in origin.

[57] The respondents concede that the vast majority of matters that will be affected by s. 13(2)(d) given the use of the 1846 date will be aboriginal in nature. However, they point out that non aboriginal heritage objects or other evidence of human habitation will also be caught. In this sense s. 13(2)(d) has a wider ambit than its predecessor section which only protected "North American Indian kitchen midden, shell heap, house pit, cave or other habitation site, cairn, or fortification".

[58] Referring to the impugned provisions the intent of each of the provisions is clear. Section 12 provides the Minister with power to issue permits, or to refuse them, where, in the opinion of the Minister, the permit would authorize an action inconsistent with the purpose of the heritage protection of the property in question. Section 12(2)(a) confers upon the Minister the discretion to issue a permit authorizing an action referred to in s. 13. The various classes of heritage objects and sites enumerated in s. 13 all enjoy the same degree of protection. Section 13(2)(d) clearly applies not only to heritage objects of aboriginal origin, but to all heritage objects as defined in s. 1, which predate 1846.

[59] The power of the Minister to issue, refuse, cancel or suspend permits under s. 12 applies equally to all of the categories of heritage objects and sites enumerated in s. 13, and does not distinguish between classes of heritage objects or sites. Similarly, the protections described in s. 13 apply equally to all of the enumerated classes of heritage objects or sites. As the respondents pointed out, heritage objects of aboriginal origin not only have significance to aboriginals but also to the general population of British Columbia.

[60] Furthermore, s. 13(2) states:

Except as authorized by a permit issued under section 12 or 14, . . ., a person must not do any of the following. . . . [Emphasis added]
 

[61] On its face ss. 12 and 13 apply to all persons in the Province. The fact that parts of s. 13 may affect Indians does not cause the HCA to lose its status as a valid provincial law enacted under the authority given to the provinces under s. 92(13).

[62] Heritage property is provided the same protection whether its origin is aboriginal or non-aboriginal. The HCA is not aimed at Indians or at any other specific class of persons. Section 13 prohibits "persons" from damaging heritage objects or sites and, of course, some of the sites or objects which fall under the purview of the HCA are aboriginal in nature.

[63] HHThe fact that the policy and intent of the legislation is not aimed at Indians or the impairment of Indian status is reinforced by s. 8 which provides that nothing in the HCA abrogates or derogates from the aboriginal and treaty rights of a first nation or any aboriginal peoples.

[64] The granting of a licence to cut CMTs cannot affect the determination of an aboriginal right. The evidence of or the fact of the existence of the tree is preserved. The general intent of the statute appears to be to protect such objects as have significant historical value and balance this legislative value against other general interests of all of the occupants of the Province of British Columbia. This general object of the legislation is not intended in any way to diminish the appellants' rights as Indians and the Act retains its characterization as a provincial law concerning property and civil rights. In general the statute provides for enhanced protection of all heritage objects, whether aboriginal or non-aboriginal.

[65] As part of the Minister's delegate's decision to issue the site alteration permit the following were considered:

1. Interim archaeological impact assessment (AIA) reports prepared by Arcas under Heritage Inspection Permit 1998-047 and dated April-May 1998.
2. A "PETITION TO THE COURT" from the Kitkatla Band dated June 15, 1998.
3. Interfor's CMT management plan, dated July 20, 1998.
4. An "AMENDED" PETITION TO THE COURT" from the Kitkatla Band dated August 10, 1998.
5. The Reasons for Judgment of the Honourable Mr. Justice R.D. Wilson dated October 21, 1998.
6. Interfor's October 23, 1998, amendments to the July 20, 1998, CMT management plan.
7. Minutes of an October 28, 1998, meeting at Kitkatla prepared by Brian Wesleyson, Operations Manager, North Coast Forest District.
8. A transcript prepared by a court reporter of a meeting held in the village of Kitkatla on October 28, 1998, "IN THE MATTER OF: The Consultation between the Kitkatla First Nations and the Ministry of Forests regarding Interfor's Amendment 98-3 in the Kumealon Region."
9. A letter from Woodward & Company, Barristers and Solicitors to the Honourable Ian G. Waddell, Minister of Small Business, Tourism and Culture dated November 2, 1998.
10. A "PETITION TO THE COURT" from the Kitkatla Band dated November 23, 1998.
11. The Reasons for Judgment of the Honourable Mr. Justice R.D. Wilson dated December 15, 1998.
12. The affidavits filed in the court proceedings.
13. A letter from Woodward & Company to S. Gallagher, Ministry of Attorney General dated December 17, 1998.

All of these matters formed part of the decision-making process and demonstrate that the Minister's delegate, in determining "heritage value", balanced the various competing interests. This not only accords with the purpose of the HCA as found in s. 2 but also balances the interests of the affected parties including the provincial interest in maintaining heritage objects and here many CMTs were preserved as trees left standing and as trees preserved after they were cut.

[66] I am of the opinion that the constitutional argument of the appellants is fundamentally flawed because in my view the HCA does not either in its purpose or its effect impinge upon aboriginal rights or purport to touch on aboriginal matters reserved for Parliament under s. 91(24) of the Constitution Act, 1867. The task of the Minister or his delegate is to determine whether a permit will be issued in the context of relevant considerations under the HCA. The person making the decision is concerned with assessing the heritage value of particular heritage property.

[67] I am of the opinion that when the HCA is read as a whole, it falls within the legislative competency of the Province and seeks to balance the protection of heritage objects and sites against other valid provincial legislative objectives. The words of the impugned sections of the HCA must be read in context based on a consideration of the entire Act. The issuing of a permit to harvest CMTs cannot be said to strike at the core value of matters reserved under s. 91(24). That being so, the legislation is intra vires the province of British Columbia as it is in pith and substance a matter falling under the heading of property and civil rights.

[68] I note that if an aboriginal group is of the opinion that it has an aboriginal right or interest in an object or objects, and is not satisfied with the way that interest is being protected by the requirements stipulated by the Minister in issuing a permit, they continued to have their usual remedies and the HCA does not impinge upon those remedies. A claimant who asserts an aboriginal right or title but has not yet established the existence of such may seek interlocutory relief, either against a permit holder or against the issuance of a permit. This affords meaning to s. 8 of the HCA, which states that nothing in the act abrogates or derogates from an aboriginal right.

Do the Impugned Provisions Apply Ex Proprio Vigore?

[69] As mentioned earlier valid provincial laws, on a division of powers analysis, which do not affect "Indians in their Indianness", "Indians qua Indians", "Indians in relation to core values of their society", or "the status and capacities of Indians" apply to aboriginal peoples of their own force. That is to say that they do not require s. 88 of the Indian Act to be applicable to Indians. Provincial laws which do affect Indians in the ways listed above require the assistance of s. 88 of the Indian Act, which gives them the force of federal law to make them effective in relation to Indians.

[70] As Professor Hogg notes in Constitutional Law of Canada, at 27-10, para. 27.2(c):

The second exception to the general rule that provincial laws apply to Indians and lands reserved for the Indians is "Indianness". A provincial law that affects "an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians" will be inapplicable to Indians and lands reserved for the Indians, even though the law is one of general application that is otherwise within provincial competence. This vague exception, which has been framed as precluding laws that impair the "status or capacity" of Indians, or that affect "Indianness", has its analogy in the immunity from provincial laws that affect a vital part of undertakings within federal jurisdiction.
... Hunting on a reserve is such a significant element of traditional Indian ways that it should probably be free of provincial regulation...
Provincial laws that do affect Indianness cannot apply to Indians of their own force. However ... some such laws could become applicable to Indians through s. 88 of the Indian Act, which incorporates by reference provincial laws of general application.

[71] In R. v. Dick, [1985] 2 S.C.R. 309, the Supreme Court of Canada assumed, without deciding, that the particular provisions of the British Columbia Wildlife Act, which prohibited the killing of deer out of season without a permit, regulated the appellant qua Indian. That is to say the provisions in issue impaired the status and capacity or the Indianness of the appellant. In the Court of Appeal decision reported at R. v. Dick (1982), 3 C.C.C.(3d) 481, Lambert J.A. commented at 495 that:

... I would add that if the facts in this case do not place the killing of the deer within the central core of Indianness, if there is one, or within the boundary that outlines the status and capacities of the Alkali Lake Band, then it is difficult to imagine other facts that would do so.

[72] However, the legislation now before us does not purport to restrict the rights of the appellants to engage in any activity which relates to "Indianness". A provincial law which regulates all heritage objects and sites in the Province cannot be said to impair the status or capacity of aboriginal peoples nor can it be said to regulate them qua Indians. The HCA is unlike the Wildlife Act provisions prohibiting the hunting of food, which Lambert J.A., in Dick found to give shape and meaning to the lives of the Alkali Lake Band and which is at the centre of what they do and who they are. Sections 12(2), 13(2)(c) and (d) of the HCA, by contrast, simply regulate the protection of heritage objects and sites, and that right to regulate includes the right to impose limits on that protection.

[73] Accordingly, I am of the opinion that the impugned provisions of the HCA do not affect "Indians in their Indianness", "Indians in relation to the core values of their society", "Indians qua Indians" or the "status and capacity of Indians." Therefore, the provisions are valid ex proprio vigore and the appellants' argument must fail.

Section 88 of the Indian Act

[74] It is not necessary to consider s. 88 of the Indian Act for the purposes of this appeal as I have found that the impugned provisions are valid ex proprio vigore. However, if I were of the opinion that ss. 12(2), 13(2)(c) and (d) touched upon the core of Indianness, thereby depending on s. 88 of the Indian Act for the provisions to be applicable to aboriginal peoples, I would find that the impugned provisions were laws of general application within the meaning of s. 88, which provides:

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.

[75] At this stage of the inquiry the issue becomes whether the provincial legislation is a law of general application.

[76] The Supreme Court of Canada in R. v. Kruger, [1978] 1 S.C.R. 104, at 110, stated the following test for provincial laws of general application:

There are two indicia by which to discern whether or not a provincial enactment is a law of general application. It is necessary to look first to the territorial reach of the Act. If the Act does not extend uniformly throughout the territory, the inquiry is at an end and the question is answered in the negative. If the law does extend uniformly throughout the jurisdiction the intention and effects of the enactment need to be considered. The law must not be "in relation to" one class of citizens in object and purpose. But the fact that a law may have graver consequence to one person than to another does not, on that account alone, make the law other than one of general application. There are few laws which have a uniform impact. The line is crossed, however, when an enactment, though in relation to another matter, by its effect, impairs the status or capacity of a particular group.
 

[77] It is not enough to say that the sections in question affect Indians.

[78] Beetz J., for the Supreme Court of Canada in Dick, at 323-4, commented on the judgment of Dickson J., as he then was, in Kruger and stated:

... what Dickson J., as he then was, referred to in Kruger when he mentioned laws which had crossed the line of general application were laws which, either overtly or colourably, single out Indians for special treatment and impair their status as Indians. Effect and intent are both relevant. Effect can evidence intent. But in order to determine whether a law is not one of general application, the intent, purpose or policy of the legislation can certainly not be ignored: they form an essential ingredient of a law which discriminates between various classes of persons, as opposed to a law of general application. This in my view is what Dickson, J. meant when in the above passage, he wrote:
It would have to be shown that the policy of such an Act was to impair the status and capacity of Indians.

[79] In continuing the s. 88 analysis the Supreme Court of Canada, in Dick, concluded, at 325-6, that:

In the previous chapter, I have assumed that its application to [the] appellant would have the effect of regulating the latter qua Indian. However, it has not been demonstrated, in my view, that this particular impact has been intended by the provincial legislator. While it is assumed that the Wildlife Act impairs the status or capacity of [the] appellant, it has not been established that the legislative policy of the Wildlife Act singles out Indians for special treatment or discriminates against them in any way.
I accordingly conclude that the Wildlife Act is a law of general application within the meaning of s. 88 of the Indian Act.

[80] The Chambers judge applied this Court's decision in Alphonse, where it was concluded, at paragraph 50, page 34, that:

. . . a law can be considered no less a law of general application merely because it is aboriginal rights, rather than the status and capacity of Indians, which are said to be affected by it. An acknowledgment that aboriginal rights are at stake does not change the legislative competence required for the Legislature to enact the Wildlife Act. Aboriginal rights are necessarily elemental to the Indianness or the core values of Indian society, and the status and capacity of Indians. This relationship is recognized in the description of an aboriginal right as "an integral part of their distinctive culture" . . .
 

[81] Here, the impugned provisions of the HCA apply to all persons in the province where they are aboriginal or non-aboriginal, and to all heritage objects and sites as enumerated in s. 13(2). When the impugned provisions are considered in the context of the entire HCA it cannot be said the law is in relation to one class of citizens in object or purpose. There has been no "singling out" of Indians nor does the HCA provide special treatment in such a way as to impair the status of the appellants as Indians or discriminate against them in any way. Consequently, even if these provisions did not apply ex proprio vigore, they would be saved by s. 88 of the Indian Act as they are law of general application within the meaning of the jurisprudence relating to s. 88 of the Indian Act.

Second Appeal
 

[82] In the Second Judgment the trial judge found as follows:

I am persuaded by the respondents that s. 8 is declaratory; it does not confer substantive rights or duties. It is a grant of immunity. The right must be defined by others than the Minister. Upon that right being so defined, the first nation, or aboriginal people, possessing the right, is immune from the reach of the Act to their heritage valuables. Only after the right has been defined, is s. 8 a necessary and sufficient condition of the permit process.
 

[83] The appellants submit that the trial judge did not go far enough and that s. 8, when properly interpreted, applies not only to rights that have been previously established by a court of law or by treaty, but also to prohibit the infringement of potential aboriginal rights that have not been so established.

[84] This argument suggests that the Minister should embark upon an inquiry or failing his doing so, no permit should be issued unless and until the aboriginal right issue has been determined by treaty or by a court of law. According to the appellants, the Minister should exercise his discretion and may come to a conclusion that there is or is not an aboriginal right threatened with infringement. Following that decision either party can make an application for judicial review. However, in the event the Minister decides that there is an aboriginal right that will be infringed then he has no power to exercise his discretion and issue a permit.

[85] With the greatest of deference to the learned trial judge, not only do I not accept the appellants' submission but I do not accept the interpretation placed upon s. 8 in the judgment appealed from. For ease of reference I repeat the text of s. 8:

8 For greater certainty, no provision of this Act and no provision in an agreement entered into under section 4 abrogates or derogates from the aboriginal and treaty rights of a first nation or of any aboriginal peoples.
 

[86] I am of the opinion that the intent of s. 8 is to declare that the application of any provision in the HCA is not to impact on the determination of aboriginal rights. This being so, those claiming an aboriginal right can be assured that any action taken under the HCA will have no impact on the determination of such rights. To destroy a piece of evidence while preserving the fact of the evidence cannot affect the existence of any underlying aboriginal right. Accordingly, even though the tree is destroyed, the facts are preserved for future evidence and insofar as they may be objects in which an Indian Band has an interest, the issue arises as to whether the HCA authorizes and permits them to be cut.

[87] The proposition can best be illustrated by the following example. Let us assume that the registered owner of an ordinary residence applied to the Cabinet pursuant to s. 9 of the HCA to have his residence declared a heritage site (assuming that could be done) and then, sometime later, he applied and was granted a permit to make a substantial alteration to the site. A relative, being dissatisfied with the proposed alteration, brought a lawsuit in Supreme Court for a declaration that the registered owner is actually a trustee of the said premises and that he, the applicant, was the beneficial owner. In these circumstances s. 8 would protect the claimant from an assertion that the granting of a right to alter the premises in any way conferred title on the registered owner such that the lawsuit could continue without regard to the proceedings under the HCA.

[88] The remedy open to the appellant to prevent the cutting of CMTs is to bring separate proceedings, and this in fact is what occurred in this instance. On 10 June 1998, the appellants commenced Victoria Registry Action No. 982171 in which they sought declarations that they had existing aboriginal title and aboriginal rights in the Kumealon watershed. They applied for an interlocutory injunction to restrain logging by Interfor in the vicinity of Kumealon Lake. This application for an interlocutory injunction was dismissed by Mr. Justice Hutchison at the Supreme Court level and an appeal from his decision was dismissed by this Court.

[89] When the HCA is read as a whole, it could not have been in the mind of the Legislature to intend that the Minister was to adjudicate on aboriginal rights in the context of a HCA proceeding. First, the words of s. 8 are not in and of themselves apt to support the meaning sought to be advanced in argument by the appellants. Second, if it had been intended that the Minister embark upon this inquiry one would expect mention elsewhere in the HCA or in the regulations of how to deal with such a process and provide some structure and guidance. Issues such as the ability to call or possibly subpoena witness would need to be addressed. For example, there appears to be no right of discovery of documents, usually thought to be a necessary tool in order to form a proper background for the determination of issues.

[90] The appellants appear to suggest that the Minister could determine the existence of aboriginal rights without any form of guidance from the HCA or its regulations. I find that proposition untenable. As the Supreme Court of Canada said in R. v. Adams, [1996] 4 C.N.L.R. 1 at 21:

I am of the view that the same approach should not be adopted in identifying infringements under s. 35(1) of the Constitution Act, 1982. In light of the Crown's unique fiduciary obligations towards Aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing Aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an Aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of Aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfil their fiduciary duties, and the statute will be found to represent an infringement of Aboriginal rights under the Sparrow test.

[90(a)] When one considers the HCA there are no criteria provided upon which the Minister can exercise his alleged discretion. This provides evidence of the lack of legislative intent to endorse the Minister with the power to exercise any such discretion which could pass upon alleged aboriginal rights. The complexity of the issues relating to the proof of aboriginal rights or title are demonstrated by the Supreme Court of Canada's decisions in Van der Peet and Delgamuukw. An analysis of historical, anthropological, archaeological and documentary evidence along with aboriginal oral history and such other evidence which may be appropriate could not have been intended to be undertaken by the Minister during an application for a site alteration permit under the HCA.

[90(b)] Where a statutory construction would lead to consequences that would be characterized as absurd, such an interpretation should be rejected. As noted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at 43:

It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment...

[91] Consequently, I am of the opinion that the second appeal should be dismissed, based on the interpretation of s. 8.

[92] The issue as to whether or not the HCA lawfully authorizes the cutting of the trees in question is the subject matter of the first appeal.

[93] I have had the privilege of reading the draft reasons of Mr. Justice Hall. In paragraphs 2 and 3, he comments on written submissions that were made concerning two cases decided after the hearing in this Court. I respectfully agree with those comments.

CONCLUSION

[93(a)] In conclusion, I would dismiss both appeals.

"The Honourable Mr. Justice Braidwood"

Reasons for Judgment of the Honourable Mr. Justice Hall:

 

[94] This case concerns certain provisions of the Heritage Conservation Act, R.S.B.C. 1996, c. 187 ("the HCA"). The appellants, supported by some intervenors and opposed by other intervenors, appeal against two decisions of a Chambers judge, one decision involving what I shall term a constitutional issue and the second, what I shall term an administrative law issue. The relevant legislative provisions and the background of the cases are conveniently set out in the Reasons of Braidwood J.A.

[95] After the original arguments were concluded in this case, the appellants sought and were granted permission to make additional submissions concerning two cases that were decided after the hearing in this court. These submissions related to the administrative law issue. One case was the case of Paul v. Forest Appeals Commission (23 September 1999), VR 98-1858, a decision of Pitfield J. We have now received further submissions from all parties. In my view, that decision does not advance the case argued for the appellants on this appeal. The Forest Appeals Commission, the tribunal dealt with in the Paul case appears to have a considerably different and rather broader mandate than that afforded the Minister in the legislation under consideration in the instant case. Because the legislative mandate differs so significantly, I am not of the view that Paul could be viewed as having any useful application to the situation in the case at bar.

[96] Also by way of supplementary argument, the recent decision of this court in Halfway River First Nation v. British Columbia (12 August 1999), CA023526 was brought to our attention. The appellants submit that this case should be interpreted as affording support for their arguments on the administrative law issue. It is to be noted that no issue arose in that case concerning the existence of the asserted treaty right to hunt. In the case at bar, there is dispute over whether any such aboriginal right as is asserted could be found to exist. While Halfway River ultimately was decided on the issue of a failure to adequately consult, (specifically not an issue in this case), the majority in separate judgments were of the opinion that the District Forest Manager was under a positive duty to recognize and consider the treaty right to hunt in deciding whether or not to issue a cutting permit for certain forest lands situated in the northeastern sector of the province. The Forest Practices Code, the legislative regime being considered in Halfway River, required the District Manager to take account of cultural and economic factors relating to the interested First Nation. The statute here under consideration, the HCA, does not suggest by its terms that the Minister should go farther than determining heritage considerations. The Minister would be going beyond the statutory mandate if any inquiry into aboriginal rights were to be undertaken (s. 8, HCA). Because the circumstances and the legislation under consideration in the Halfway River case were so distinct from the circumstances and legislation being considered in this case, I do not consider that the decision of this court in the Halfway River case has any precedential value in the case at bar. For the reasons given by Braidwood J.A., I would dismiss the appeal of the appellants on the appeal on the administrative law issue.

[97] Concerning the appeal on the constitutional issue, I would reach the same result as Braidwood J.A. I generally agree with his Reasons but I wish to add certain comments of my own.

[98] The statute we are here construing, the HCA, is concerned with the preservation of heritage objects in the Province of British Columbia. In the case of R. v. Leighton (1989), 57 D.L.R. (4th) 657, this court found ultra vires provisions of the Social Service Tax Act, R.S.B.C. 1979, c. 388, which singled out Indians to pay a special tax not payable by anyone else. In the course of giving judgment for himself and Toy J.A., Lambert J.A. observed at p. 660 that:

...in characterizing the pith and substance of a law, consideration must be given to the language in which the law is expressed and also to the concepts that it embodies. Both the language and the concepts must be considered in their context.
 

[99] I would say that the pith and substance of the legislation under consideration here is the treatment of heritage objects of all descriptions throughout the province. The particular sections argued by the appellants to be ultra vires are an integral part of the legislative scheme that aims at preservation. Clearly, the Provincial Legislature over many years has deemed it desirable to afford a measure of protection to historic or heritage items. A helpful history of the legislation on this subject is set forth in the Reasons for Judgment of my colleague, Prowse J.A. One could envisage a great range of items that might comprise heritage material. I should think the concept would embrace a great variety of items from the past considered worth preserving. The objects at issue in this case are a number of trees which have had alterations made to them, presumably by ancient aboriginal residents of the Kumealon area. There are denoted culturally modified trees, ("CMTs"). As I understand it, the permit that was granted by the Minister envisages that after the permitted logging in the area the items displaying evidence of the alterations will be largely preserved for study by those interested in the history and provenance of these objects.

[100] I agree with Braidwood J.A. that the pith and substance of his legislation, the HCA, is the preservation of heritage objects in the province. The constitutional basis for the statute are provisions of s. 92(13) of the Constitution Act, 1867. Absent this provincial legislation, there would exist no legislative basis to prevent destruction or damage to heritage objects or sites located in this province. Broadly viewed therefore, the existence of such legislation results in an enhancement of the preservation of ancient sites and objects having heritage value. The appellants are interested in preserving the CMTs at issue here and the legislation in its general thrust appears to be supportive of this objective.

[101] The legislation, as might be expected, is not framed in absolute preservationist terms. While it is desirable to preserve elements of the past, humanity is required to live in the present. This legislation, like most legislation of whatever type, sets out to endeavour to strike a balance between competing interests. The interests are preserving heritage objects and sites and also permitting proper utilization of provincial land and resources. A Minister of the Crown, in practice a ministerial delegate, is authorized after investigation and the receipt of comments from interested parties, to issue or refuse to issue a permit for the alteration or destruction of places or things found to be within the statute. Without a permit, one is not permitted to alter or destroy sites or objects of heritage value - see sections 12-14 of the HCA.

[102] While the legislation makes reference to "first nation" and "aboriginal" matters, in my judgment it cannot be said that this is legislation directed either at Indians or Indian Lands. I do not regard it as in any way singling out Indians although I note that certain of the legislative provisions do make reference to sites and objects of interest to aboriginal or first nations people. The core of this legislation, in my view, is about the preservation of heritage objects and sites of all descriptions. An ancient vessel indicating a visit to these shores long ago by migrant people, an old stockade from fur trading days or an aboriginal campsite could all possess heritage interest for our society generally or for various persons or groups. The Provincial Legislature has recognized in its legislation over the years the value of preserving heritage material. While the subjects referred to in the HCA are significant matters of importance to all residents of the province, I am not certain that I would accord them the same significance as my colleague Prowse J.A. One's lineage and heritage in the general sense is an important circumstance for us all but objects and sites, the primary subjects of the HCA, do not appear to me to rise to the level of importance of territorial rights or "way of life" rights - such latter subjects in the aboriginal field as hunting and fishing rights and practices for instance.

[103] This case is to be distinguished from a situation such as that found to exist in the case of the R. v. Sutherland et al., [1980] 2 S.C.R. 451. That case concerned Manitoba legislation which sought to alter a 1929 agreement between the Province and the Federal government guaranteeing continued hunting rights to Indians in Manitoba. It was one of the Natural Resources Transfer Agreements. The memorandum of Agreement had provided that the Province would assure to Indians in the province the right to hunt game for food at all seasons of the year on all unoccupied Crown lands and on certain other lands. The impugned section of the Manitoba Wildlife Act purported to designate large amounts of what was formerly unoccupied Crown land as lands "deemed to be occupied Crown lands to which Indians do not have a right of access for purposes of exercising any rights bestowed upon them under para. 13 of the Memorandum of Agreement under The Manitoba Natural Resources Act". The background of the matter is conveniently set out in the following quote from the judgment of Dickson J. at 460:

Paragraph 12 of the Memorandum of Agreement will, I think, be better understood if brief reference is made to two treaties which applied to Indians in Manitoba, Treaty No. 4 and Treaty No. 5. In Frank v. The Queen where consideration was given to para. 12 of the Saskatchewan Natural Resources Transfer Agreement, virtually identical to para. 13 of the Manitoba Agreement, this Court had this to say at p. 100:
It would appear that the overall purpose of para. 12 of the Natural Resources Transfer Agreement was to effect a merger and consolidation of the treaty rights theretofore enjoyed by the Indians but of equal importance was the desire to re-state and reassure to the treaty Indians the continued enjoyment of the right to hunt and fish for food. See R. v. Wesley; R. v. Smith; R. v. Strongquill.
By Treaty No. 4, dated September 4, 1870, the Cree and Salteaux tribes ceded, released, surrendered and yielded up to the Government of the Dominion of Canada a large part of what is now the Province of Manitoba in exchange for reserves (one square mil for family of five), small cash payments, powder, shot, ball and twine and gardening and carpenters' tools. Of historic interest in the present case is the following provision contained in Treaty No. 4:
And further, Her Majesty agrees that Her said Indians shall have right to pursue their avocations of hunting, trapping and fishing throughout the tract surrendered, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining or other purposes, under grant or other right given by Her Majesty's said Government.
Treaty No. 5 was concluded at Berens River on September 20, 1875 and at Norway House on September 24, 1875, with the Salteaux and Swampy Creek tribes. The Indians surrendered a tract embracing an area of 100,000 square miles, in exchange for reserves (160 acres for each family of five), $5 per person, ammunition, twine for nets and tools. The treaty assured the Indians the "right" to pursue their avocations of hunting and fishing throughout the tract surrendered, in terms similar to those found in Treaty No. 4.
Paragraph 13 of the Memorandum of Agreement, it is true, makes provincial game laws applicable to the Indians within the boundaries of the Province, but with the large and important proviso that assures them, inter alia, the "right" to hunt game at all seasons of the year for food on lands to which the Indians may have a right of access. This proviso should be given a broad and liberal construction. History supports such an interpretation as do the plain words of the proviso.
 

[104] The vice found in the legislation by the majority of the Manitoba Court of Appeal, reported at (1979), 2 W.W.R. 552 and by the Supreme Court of Canada is identified in the following passage from the judgment of Dickson J. at 455:

I do not think there is any doubt s. 49 of The Wildlife Act is beyond the constitutional competence of the Province of Manitoba and ultra vires in entirety. The provision cannot purport to be a law of general application. Section 49 has effect only against Indians and its sole purpose is to limit or obliterate a right Indians would otherwise enjoy. Indians are singled out for special treatment. While provincial law may apply to Indians, it can only do so "... as long as such laws do not single out Indians nor purport to regulate them qua Indians ...". Four B Manufacturing Ltd. v. United Garment Workers et al. This legislation is clearly "in relation to" one class of citizens in object and purpose and is, therefore, in constitutional derogation of the right of the federal power to legislate in respect of Indians and lands reserved for the Indians under Head 24 of s. 91 of the British North America Act. See C.P.R. v. Notre Dame de Bonsecours Parish, Kruger and Manuel v. The Queen. As Mr. Justice Hall, speaking for a majority of the Manitoba Court of Appeal in the present case, observed: "It is one thing to deem certain lands to be occupied Crown lands to which the public, including Indians, have no right of access; it is quite another thing to deem the same lands to be occupied Crown lands to which Indians have no right of access."
The purpose of any "deeming" clause is to impose a meaning, to cause something to be taken to be different from that which it might have been in the absence of the clause. In the present instance, the patent purpose of s. 49 is to cause certain provincial forests, wildlife management areas, and the like, to be regarded as occupied whether or not, on the facts, they can properly be said to be occupied. The unoccupied is conclusively deemed to be occupied. Section 49 seeks to affect the status of Indians in respect of their constitutionally entrenched right to hunt for food. It is a blatant attempt to un-entrench the concluding words of para. 13 and, by taking lands out of the operation of para. 13, to derogate from rights granted to the Indians by the agreement. (Emphasis added.)
 

[105] As I see it, that case involved a colourable attempt by the Manitoba Legislature to attempt to adversely affect hunting rights vested in the Indians under a Federal-Provincial Agreement that in effect entrenched existing treaty rights. It was legislation that affected a core activity of Indian people and could not be sustained as a law of general application. The appellants relied upon Sutherland in the instant case as an authority supportive of their argument that the present legislation ought to be found ultra vires. In my opinion, Sutherland was a very different situation because in that situation, there was clearly a singling out of Indian people in the legislative scheme. It was, as the Supreme Court of Canada noted, a blatant attempt to take back unilaterally that which the Province had agreed with the Federal government to continue as a basic right of Indian people. I discern no such cast in the legislation under consideration in this case.

[106] In the case at bar, we are dealing with the subject of trees which have had alterations made to them, presumably by long ago residents of the area. I have difficulty in perceiving how these items or virtually all of the relevant subject matters of the HCA could be said to relate to a core of Indianness. Nor can it be successfully asserted in my view that this legislation deals with the subject matter of Indians or lands reserved for the Indians. The legislation struck down by this court in Leighton, supra, was found to trench on federal jurisdiction because it interfered with the tax situation of Indian people - it could be seen, inter alia, as affecting the status or capacity of Indian people. It had a direct economic impact upon them. The statute under consideration here by its terms cannot affect any aboriginal rights or treaty rights of aboriginal peoples - section 8, HCA.

[107] In the Canadian federation, there will always be some degree of uncertain borderland between subject matters that lie within the respective provincial and federal spheres of legislative jurisdiction or competence. A case that we were referred to in argument, A.G. Quebec v. Irwin Toy Ltd. (1989), 58 D.L.R. (4th) (S.C.C.) affords an example of the interface between the respective federal and provincial legislative jurisdictions. Provincial legislation regulating television advertising aimed at children was at issue there. There were both constitutional division of power and Charter freedom of expression issues in the case. The Supreme Court of Canada upheld the provincial legislation even though it had an effect and economic impact on the subject of broadcasting, an area within exclusive federal legislative jurisdiction. It was found that although the provincial legislation affected television broadcasting and its revenues, it was not legislation that had a sterilizing affect on the undertaking. Accordingly, the legislation was found to be intra vires the province. Although this issue in Irwin Toy was factually a different issue from the case at bar, I consider that the approach taken by the Supreme Court of Canada in that case is supportive of the argument of the respondents in this case that the HCA is in its entirety legislation that is valid provincial legislation.

[108] It might be a nice question as to whether there could be valid federal legislation for instance dealing with aboriginal heritage items or off reserve heritage sites? While we are not called upon to decide any such specific question in this litigation, it seems to me that arguably the more natural "fit" for heritage legislation would be thought to fall under the provincial legislative sphere. The subject matter has to it a generally local aspect and it concerns property located in a province. This province has deemed it desirable to afford a measure of protection to heritage objects and sites of various origins. In order to make it clear that heritage materials of importance to all people resident in the province are included as objects of protection, specific reference is made in the legislation to heritage materials of primary interest to aboriginal persons or groups. But I should think these objects would be of considerable interest to the citizenry generally as well as being of particular interest to specialists such as archaeologists and anthropologists.

[109] This legislation both generally and specifically in sections 12 and 13 deals with the subject of conservation of heritage materials. It does not in my opinion single out Indian people or Indian land for any disparate treatment. Preservation of all heritage objects is the defining theme of this legislation. I do not consider that in any way the legislation can be said to affect the status or capacity of Indian people or lands. I, accordingly, view the legislation as a valid provincial legislative enactment. I consider it applies of its own force and does not require an application of s. 88 of the Indian Act. I would dismiss the appeal on the constitutional issue.

 

 

"The Honourable Mr. Justice Hall"

Reasons for Judgment of the Honourable Madam Justice Prowse:

 

INTRODUCTION

[110] I have had the privilege of reading, in draft form, the reasons for judgment of Mr. Justice Braidwood. I agree with his outline of the background giving rise to this appeal. I am also in general agreement with his statement of the relevant legal principles to be applied in examining the constitutionality of the provisions of the Heritage Conservation Act, R.S.B.C. 1996, c. 187, (the "Act") at issue before us. I disagree, however, with Mr. Justice Braidwood's application of the relevant principles to the impugned provisions of the Act, taken in the context of the Act as a whole.

[111] In summary, I conclude that the impugned provisions of the Act, when read together, are laws specifically providing for the destruction of, or interference with, aboriginal heritage objects, a subject which I conclude is at the core of s. 91(24) as affecting "Indians in their Indianness", "Indians qua Indians", and "Indians in relation to the core values of their society". Although these provisions are found within a statute which is one of general application and conceded by the appellants to be otherwise within provincial jurisdiction, I am satisfied that they cannot stand, as they substantially affect an integral part of primary federal jurisdiction over Indians. In coming to this conclusion, I place considerable reliance on the judgment of Chief Justice Lamer, speaking for the majority, in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, with particular emphasis on his discussion of interjurisdictional immunity and the applicability of s. 88 of the Indian Act, R.S.C. 1985, c. I-5, found at paras. 177-183 of that decision. While that discussion arose in relation to the power of the provincial government to pass laws of general application which have the effect of extinguishing aboriginal rights, I am satisfied that the aboriginal interests at stake in this appeal are closely analogous to aboriginal rights in terms of their significance to aboriginal peoples.

[112] In the result, I would allow the appeal on the constitutional issue by setting aside the decision of the learned chambers judge in Appeal V03364, and by declaring s. 12(2)(a) of the Act in respect of the subject-matter of s. 13(2)(c) and (d) to be of no force and effect insofar as they apply to aboriginal heritage objects. Because such a declaration may affect other provisions of this Act and other provincial statutes, I would direct that this order not take effect for 180 days from the date these reasons are released.

[113] Based on the conclusion I have reached with respect to the constitutional appeal, it is not necessary for me to deal with the issue raised in the second appeal.

PRELIMINARY OBSERVATIONS

[114] Counsel for the appellants framed the issue before us as one involving the constitutional validity of s. 12(2)(a) of the Act when read in conjunction with ss. 13(2)(c) and (d). He submitted that the province has the power to pass legislation protecting aboriginal heritage objects, but that it does not have the power to pass legislation authorizing the destruction of, or interference with, such objects.

[115] In my view, it is unnecessary to decide that question on this appeal since the constitutional challenge before us is limited to s. 12(2)(a), when read in conjunction with ss. 13(2)(c) and (d). The issue is not whether the province has the power to enact legislation protecting aboriginal heritage objects, but, rather, whether it has the power to enact legislation providing for the destruction of such objects.

[116] It is of critical importance, however, to emphasize that although the constitutional issue in this case has arisen in the context of the issuance of a permit which grants permission to the holder to destroy a limited number of culturally modified trees ("CMTs") in a particular area of the province, the scope of the impugned provisions would encompass permits for the destruction of, or interference with, any and all aboriginal heritage objects of whatever magnitude, and wherever found, in the province.

THE ACT

[117] Mr. Justice Braidwood has set out the relevant provisions of the Act at para. 32 of his reasons. The contentious provisions are s. 12(2)(a) and ss. 13(2)(c) and (d), which provide:

[12](2) The minister may
(a) issue a permit authorizing an action referred to in section 13,
. . .
[13](2) Except as authorized by a permit issued under section 12 . . . , a person must not do any of the following:
. . .
(c) damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value;
(d) damage, excavate, dig in or alter, or remove any heritage object from, a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846;
 

These provisions, when read together, expressly authorize a person who has been issued a permit under s. 12(2)(a) to, amongst other things, "damage, excavate, dig in or alter, or remove" aboriginal heritage objects.

DISCUSSION

(a) Scope of s. 13(2)(d)

[118] Before turning to a constitutional analysis, it is necessary to deal with the respondents' submission that, unlike s. 13(2)(c), s. 13(2)(d) is not directed specifically at aboriginal heritage objects, but encompasses all heritage objects (including non-aboriginal heritage objects) pre-dating 1846. Taken at face value, and devoid of context, this submission appears to be accurate. I agree with counsel for the appellants, however, that the respondents' submission that s. 13(2)(d) is not directed at aboriginal heritage objects is not tenable where the uncontradicted evidence is that 99 percent of the heritage objects pre-dating 1846 are of aboriginal origin. As stated by Mr. John Dewhirst, an archaeologist and anthropologist, in his affidavit filed September 17, 1998:

2. In British Columbia, the main archaeological remains consist of culturally modified trees ("CMTs"), middens, camps, villages, houses, burials, lithic scatters, resource procurement sites such as fish weirs, fish traps and deadfall traps, pictographs, and petroglyphs, forts, trails quarries, shipwrecks, and associated artifacts.
3. Most of this archeological evidence of human habitation or use in British Columbia prior to 1846 is evidence of aboriginal habitation or use. Non aboriginal occupation of British Columbia was limited to mainly a small number of fur trade posts such as Fort Langley, Fort St. James and Fort Simpson, and similar outposts of Europeans. These forts, together with a few other minor sites, were the only places where Europeans left an archaeological record prior to 1846. Otherwise, the overwhelming physical evidence of human habitation and use prior to 1846 is aboriginal in origin. If I was to estimate the proportion of aboriginal to non-aboriginal archaeological evidence of human habitation that pre-dates 1846, I would say that 99% of it is aboriginal in origin.
. . .
6. In addition to evidence from CMTs, evidence of aboriginal habitation and use prior to 1846 includes human burials. The burials are very important. DNA testing of the archaeological human remains and of contemporary aboriginal groups may establish links between the past and current aboriginal groups, and throw light on which aboriginal group occupied a specific territory prior to 1846.
[Emphasis added.]
 

[119] A review of the legislative history of s. 13(2)(d) also leads to the conclusion that it is focused on aboriginal heritage objects.

[120] The first Heritage Conservation Act, S.B.C. 1977, c. 37, was proclaimed on August 18, 1977. (That Act, in turn, finds its origins in two earlier statutes: the Historic Objects Preservation Act 1925, S.B.C. 1925, c. 17 and the Archaeological and Historic Sites Protection Act 1960, S.B.C. 1960, c. 2.) The predecessors to s. 13(2)(c) and (d) in the 1977 Act were s. 6(2)(c) and (d), which provided that:

[6](2) No person shall, except as authorized by a permit under section 5, knowingly:
. . .
(c) destroy, deface, or alter a North American Indian painting or rock carving of historic or archaeological significance, or
(d) destroy, deface, alter, excavate, or dig in a North American Indian kitchen-midden, shell-heap, house-pit, cave or other habitation site, cairn or fortification.
 

There can be no doubt that these provisions were concerned solely with aboriginal heritage objects.

[121] In 1987, a "Project Pride Task Force" was appointed by the government. It received representations from aboriginal and non-aboriginal groups expressing concerns about limitations in the existing heritage legislation. Those concerns were reflected in the 1991 Draft Heritage Conservation Act, British Columbia, Ministry of Municipal Affairs, Recreation and Culture, Heritage Legislation: A Draft Bill (Victoria: Queen's Printer, 1991) (the "White Paper"). The Notes to the White Paper are of particular interest since they indicate the extent to which the protection of aboriginal heritage objects was a significant consideration at that time. The Notes are headed: HERITAGE LEGISLATION: IMPROVING STEWARDSHIP FOR HERITAGE RESOURCES OF NATIVE ORIGIN. The introduction to the Notes states at p. 1:

Throughout this province there can be found sites and artifacts documenting thousands of years of aboriginal settlement. British Columbia has long recognized a special responsibility for the conservation of this ancient heritage. The proposed legislation enables improved stewardship for pre-colonial heritage resources:
1. through strengthened statutory protection,
2. by enabling Native participation in the Province's heritage resource management processes, and
3. through formal recognition of Native descendants' rights to ownership of many of the ancient artifacts.
[Emphasis added.]
 

The concerns expressed by aboriginal groups at that time (which were echoed by the appellants in this proceeding) were referred to in the following passage from the Notes:

Of more fundamental concern to the Native community is that the existing system is geared more towards protecting sites and objects as archaeological resources - sites and specimens for the scientific study of past cultures - rather than as the cultural legacy of a living people. Increasingly, the Native people in British Columbia are demanding stewardship responsibility for their heritage and culture.
 

[122] In 1994, The Heritage Conservation Statutes Amendment Act, S.B.C. 1994, c. 43, was passed by the legislature. In that legislation, s. 13(2)(d) was amended and the current wording adopted. The two principal changes to what became s. 13(2)(d) were the removal of the word "knowingly" in the introduction, and the replacement of the limited list of aboriginal heritage objects with a more encompassing provision tied to a key date - 1846. The removal of the word "knowingly" was obviously designed to permit those who interfered with heritage objects to be more readily prosecuted. The replacement of specific categories of aboriginal heritage objects with a more encompassing protection for such objects responded to earlier criticisms of the legislation that, by listing specified aboriginal heritage objects, it necessarily excluded protection for a broader category of such objects.

[123] The choice of 1846 as the relevant date in s. 13(2)(d) undoubtedly relates to the issue raised in Delgamuukw, supra, as to when Great Britain asserted sovereignty over the territory which is now British Columbia. Delgamuukw decided that this occurred in 1846 with the Oregon Boundary Treaty. (This was found to be the relevant date for the purpose of identifying aboriginal title.) Thus, the date in s. 13(2)(d) was not chosen accidentally, or arbitrarily, but is clearly linked to the Delgamuukw decision and must be interpreted in that context.

[124] In that regard, I note that the Delgamuukw decision was referred to in the debates in Hansard at the time the amendments resulting in the current wording to s. 13(2)(d) were introduced. It is apparent that aboriginal issues were very much on the minds of members of the Legislative Assembly at that time. Given this background, it is not tenable to suggest that the change in wording when this section was enacted changed its purpose or intended effect, which was to preserve aboriginal heritage objects, subject, of course, to their destruction, removal or alteration in the event a permit was issued under s. 12(2)(a) of the Act.

[125] I conclude, therefore, that both ss. 13(2)(c) and (d) are, in substance, laws in relation to aboriginal heritage objects. Are they, as such, simply laws relating to property in the province under s. 92(13) of the Constitution Act, 1867, or are they, when read together with s. 12(2)(a), laws affecting the core of Parliament's primary jurisdiction over Indians under s. 91(24)?

(b) The Constitutional Question

[126] In answering these questions, I reiterate that the basic principles involved in the analysis of the constitutionality of a particular piece of legislation are not in dispute. Those principles are referred to in the reasons for judgment of Mr. Justice Braidwood. The problem, however, is that the appellants approach these principles by focusing on the impugned provisions of the Act, while the respondents' primary emphasis is on the Act as a whole.

[127] Broadly stated, the difficulty I have with the approach taken by the respondents is that unconstitutional provisions can undoubtedly be found in otherwise valid provincial legislation. A provincial legislature cannot simply insert provisions which invade federal jurisdiction into a statute and then seek to justify them by stating that the Act "as a whole" is constitutionally sound. Clearly, one must look to the impugned provisions to determine if this is what has occurred.

[128] On the other hand, one cannot simply hone in on the word "aboriginal" in a provincial statute and leap to the conclusion that the legislation must be ultra vires as invading federal jurisdiction over Indians. Rather, one must look to the Act as a whole to place the impugned provisions in context. (See, for example, General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641.

[129] In this case, the critical point upon which I part company with the respondents, and with Mr. Justice Braidwood, is that I am satisfied that the impugned provisions of the Act impact fundamentally upon aboriginal culture, and the preservation of that culture, in such a way as to go to the core of Indianness. In coming to this conclusion, I rely, in part, upon the uncontradicted evidence of Mathew Stanley Hill, Chief of the Kitkatla Band, in his affidavit filed September 17, 1998.

[130] In his affidavit, Chief Hill states that: "CMT sites are living museums of aboriginal culture." He emphasizes their role in demonstrating the Band's cultural achievements to their children and as a means of passing their cultural heritage on to future generations. He notes that the drastic reduction in the Kitkatlan population has meant that there are fewer elders than ever to pass on the cultural heritage of their people and that as a result:

CMTs become even more important as a way to know our ancestors and their way of life. By studying the location and the details of how the forest was used in the past, we can learn about our own culture even when there are no people alive to tell us about those places or those uses. It is like the spirit of our dead ancestors still have a way to speak to us and to our children.
 

[131] While Chief Hill's affidavit was directed specifically to the cultural, historical and spiritual values of CMTs, other affidavit material filed on behalf of the appellants makes it clear that their cultural heritage objects are not simply objects, but are seen by them to be fundamentally tied to their cultural history and to the essence of their identity as Indians.

[132] The evidence of Chief Hill is consistent with the submissions made by aboriginal groups to the Project Pride Task Force in 1987 which identified the aboriginal concern for the protection of aboriginal heritage objects as a concern for preserving the "cultural legacy of a living people."

[133] In summary, therefore, I conclude that s. 12(2)(a) of the Act, when read in conjunction with ss. 13(2)(c) and (d), are laws specifically authorizing the destruction of, or interference with, aboriginal heritage objects, a subject-matter affecting Indians in relation to the core values of their society and falling within the federal power under s. 91(24) of the Constitution Act, 1867.

(c) Interjurisdictional Immunity and Section 88

[134] Based on this conclusion, I now turn to the doctrine of interjurisdictional immunity and its relationship to s. 88 of the Indian Act.

[135] Section 91(24) confers upon Parliament the power to make laws in relation to "Indians and lands reserved for the Indians". As a general rule, provincial laws apply to Indians and lands reserved for Indians. Two of the exceptions to this general rule are:

1. "Singling out": Provincial laws that single out Indians or Indian reserves for special treatment; and
2. "Indianness": Provincial laws that affect an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians, even though the law is one of general application that is otherwise within provincial competence.
 

[136] In this case, although I have found that ss. 13(2)(c) and (d) are concerned with aboriginal heritage objects, I am not satisfied that the Act as a whole, or the impugned provisions, single out Indians for special treatment. As noted by Mr. Justice Braidwood in his reasons, the Act treats aboriginal heritage objects in the same manner as non-aboriginal heritage objects, and s. 13(2) in particular prohibits both aboriginals and non-aboriginals from doing the things enumerated in that section.

[137] The second exception, however, raises the doctrine of interjurisdictional immunity. A recent description of this doctrine is set out in Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 81:

As a general matter within the Canadian federal system, it is constitutionally permissible for a validly enacted provincial statute of general application to affect matters coming within the exclusive jurisdiction of Parliament. The principal question in any case involving exclusive federal jurisdiction is whether the provincial statute trenches, either in its entirety or in its application to specific factual contexts, upon a head of exclusive federal power. Where a provincial statute trenches upon exclusive federal power in its application to specific factual contexts, the statute must be read down so as not to apply to those situations. This principle of statutory interpretation is known perhaps most commonly as the doctrine of "interjurisdictional immunity": see P.W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at pp. 15-25 et seq. It is this doctrine which is relevant for present purposes. The doctrine has been discussed and applied in numerous decisions of the Judicial Committee of the Privy Council and of this Court: see, e.g., John Deere Plow Co. v. Wharton, [1915] A.C. 330; Attorney-General for Manitoba v. Attorney-General for Canada, [1929] A.C. 260; Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Registrar of Motor Vehicles v. Canadian American Transfer Ltd., [1972] S.C.R. 811; Dick v. The Queen, [1985] 2 S.C.R. 309; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), [1990] 2 S.C.R. 838; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at paras. 177-81.
[Emphasis added.]
 

[138] In Delgamuukw, supra, Chief Justice Lamer discussed the question of whether provincial laws which on their face apply to Indians, intrude on federal jurisdiction and are inapplicable to them to the extent of that intrusion. He went on to address the issue of interjurisdictional immunity in the following excerpt from his reasons at para. 177-8:

As I explain below, the Court has held that s. 91(24) protects a "core" of Indianness from provincial intrusion, through the doctrine of interjurisdictional immunity.
It follows, at the very least, that this core falls within the scope of federal jurisdiction over Indians. That core, for reasons I will develop, encompasses aboriginal rights, including the rights that are recognized and affirmed by s. 35(1). Laws which purport to extinguish those rights therefore touch the core of Indianness which lies at the heart of s. 91(24), and are beyond the legislative competence of the provinces to enact. The core of Indianness encompasses the whole range of aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land; that part of the core derives from s. 91(24)'s reference to "Lands reserved for the Indians". But those rights also encompass practices, customs and traditions which are not tied to land as well; that part of the core can be traced to federal jurisdiction over "Indians". Provincial governments are prevented from legislating in relation to both types of aboriginal rights.
[Emphasis added.]
 

[139] The Chief Justice went on to discuss provincial laws of general application and s. 88 of the Indian Act. He noted that, notwithstanding s. 91(24), provincial laws of general application apply to Indians ex proprio vigore. He went on to find, however, that provincial laws of general application could not extinguish aboriginal rights, basing his conclusion, in part, on the concept of interjurisdictional immunity.

[140] In this case, the rights or interests sought to be protected by the appellants are not now asserted to be aboriginal rights per se. They are, however, asserted to be rights or interests going to the core of Indianness to such an extent that they should receive equal protection from the scope of s. 88 of the Indian Act.

[141] In discussing the application of s. 88, Chief Justice Lamer stated, at para. 182 of Delgamuukw:

Provincial laws which would otherwise not apply to Indians proprio vigore, however, are allowed to do so by s. 88 of the Indian Act, which incorporates by reference provincial laws of general application: Dick, supra, at pp. 326-27; Derrickson v. Derrickson, [1986] 1 S.C.R. 285, at p. 297; Francis, supra, at pp. 1030-31. However, it is important to note, in Professor Hogg's words, that s. 88 does not "invigorate" provincial laws which are invalid because they are in relation to Indians and Indian lands (Constitutional Law of Canada (3rd ed. 1992), at p. 676; also see Dick, supra, at p. 322). What this means is that s. 88 extends the effect of provincial laws of general application which cannot apply to Indians and Indian lands because they touch on the Indianness at the core of s. 91(24). For example, a provincial law which regulated hunting may very well touch on this core. Although such a law would not apply to aboriginal people proprio vigore, it would still apply through s. 88 of the Indian Act, being a law of general application. Such laws are enacted to conserve game and for the safety of all.
 

[142] Provincial laws of general application that affect "Indianness", cannot apply to Indians of their own force. However, such laws may become applicable to Indians, in certain circumstances, through the application of s. 88 of the Indian Act, which incorporates by reference provincial laws of general application.

[143] Since I have concluded that the impugned provisions of the Act affect aboriginals in their "Indianness", the next question is whether s. 88 applies.

[144] One of the cases commonly cited in relation to the applicability of s. 88 of the Act is Dick v. The Queen, [1985] 2 S.C.R. 309.

[145] In Dick, the appellant, a non-treaty member of the Alkali Lake Band, was charged, inter alia, with killing a deer out of season without being the holder of a permit, contrary to s. 3(1)(c) of the Wildlife Act, R.S.B.C. 1979, c. 433. Section 3(1) provided, in part, as follows:

3. (1) No person shall hunt, trap, wound or kill wildlife
. . .
(c) at any time not within the open season;
. . .
 

[146] In Dick, as here, the appellant did not seek to rely upon either aboriginal title or aboriginal rights. Rather, the appellant submitted that the Wildlife Act strikes at the core of Indianness and that, while it was otherwise valid provincial legislation, it should be read down so as not to apply to him in the circumstances. This argument did not succeed at trial or on appeal to this Court, Mr. Justice Lambert dissenting.

[147] In the Supreme Court of Canada, Mr. Justice Beetz, speaking for the Court, assumed, without deciding, that Mr. Justice Lambert correctly concluded that the Wildlife Act impaired the status and capacities of the Alkali Lake Band members and affected them in their Indianness. He concluded, however, that the Wildlife Act was a law of general application which applied to Dick, either of its own force, or, assuming that the provision had the effect of regulating him qua Indian, by referential incorporation under s. 88 of the Indian Act.

[148] In his book, P.W. Hogg, Constitutional Law of Canada, 4th ed. (Toronto: Carswell, 1997) discusses the impact of the Dick decision in determining what is meant by "provincial laws of general application" in relation to s. 88 of the Indian Act at p. 683:

What is meant by the phrase "laws of general application"? The phrase certainly excludes provincial laws that single out Indians for special treatment. As noted earlier, such laws are likely to be classified as being in relation to Indians and therefore as invalid. Section 88 does not invigorate such laws.
Does the phrase "laws of general application" also exclude laws that, while not singling out Indians for special treatment, have a specially severe effect on Indians by affecting Indianness? As noted earlier, such laws cannot apply to Indians of their own force. The Supreme Court of Canada in 1978 answered no to this question, holding that s. 88 did not make provincial laws affecting Indianness applicable to Indians [Kruger and Manuel v. The Queen, [1978] 1 S.C.R. 104, 110]. Since other provincial laws of general application would apply to Indians of their own force anyway, this interpretation made s. 88 merely declaratory of the general constitutional position, in that s. 88 did not expand the body of provincial law that applied to Indians.
In Dick v. The Queen (1985), the Court changed its mind about the scope of s. 88. Beetz J. for the Court held that s. 88 did apply to provincial laws that affected Indianness by impairing the status or capacity of Indians. These were the only laws to which s. 88 needed to apply, because these were the laws that could not apply to Indians of their own force. Indeed, Beetz J. held, these were the only laws to which s. 88 applied. Those "provincial laws that can be applied to Indians without touching their Indianness, like traffic legislation", applied to Indians of their own force. Section 88 was not needed to make those laws applicable to Indians, and s. 88 should be interpreted as not extending to those laws.
The Dick interpretation of "laws of general application" in s. 88 has been reaffirmed in later cases [Derrickson v. Derrickson, [1986] 1 S.C.R. 285, 297; R. v. Francis, [1988] 1 S.C.R. 1025, 1030], and seems to be firmly established. It means that s. 88 is not merely declaratory of the existing constitutional position. On the contrary, s. 88 expands the body of provincial law that is applicable to Indians. Provincial laws affecting Indianness, which do not apply to Indians of their own force, are made applicable by s. 88. Provincial laws not affecting Indianness, which do apply to Indians of their own force, are not caught by s. 88.

I would add R. v. Alphonse (1993), 80 B.C.L.R. (2d) 17 (C.A.), to the list of cases which have adopted the "Dick" interpretation of "laws of general application" in s. 88.

[149] In this case, I have found that, although the Legislature intended to deal specifically with aboriginal heritage objects in ss. 13(2)(c) and (d) of the Act, it did not single out either those objects or aboriginals for special treatment; nor did it intend that the legislation have an adverse impact on them. Further, it was not disputed by the appellants that the Act as a whole is a law of general application in the province.

[150] In order to avoid the application of s. 88 of the Indian Act, therefore, the appellants have to establish that the cultural rights or interests at stake under the impugned provisions of the Act are closely analogous to the aboriginal rights protected from the scope of s. 88 in Delgammukw. As I stated earlier in these reasons, the cultural rights or interests at stake in this appeal are not limited to the preservation of a limited number of culturally modified trees, but extend to the preservation of all aboriginal heritage objects, of whatever magnitude and wherever found in the province. Examined from that perspective, I am satisfied that s. 88 cannot be applied in this case. In my view, just as s. 88 cannot be applied to extinguish aboriginal rights, it cannot be applied to effectively destroy or interfere with aboriginal culture or heritage by authorizing the destruction of aboriginal heritage objects.

[151] In coming to this conclusion, I do not wish to be understood as saying that every CMT, Indian arrowhead or other heritage object pre-dating 1846 must be preserved in order to enable aboriginal peoples to maintain and pass on their heritage and culture to future generations. Rather, I am saying that legislation authorizing the destruction or interference with aboriginal heritage objects is fundamentally a matter for Parliament to deal with pursuant to its powers under s. 91(24), or for the governments and First Nations people to work out by agreement.

[152] In the result, I would allow the appeal, set aside the order of the learned chambers judge and declare that s. 12(2)(a), in respect of the subject-matter of ss. 13(2)(c) and (d) be declared of no force and effect, insofar as they affect aboriginal heritage objects, such declaration to take effect 180 days following the release of this decision.

[153] I would also grant the appellants their costs in the Supreme Court and in this Court.

 

 

"The Honourable Madam Justice Prowse"