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Date: 20020719 |
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Docket: CA029284, |
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CA029290, CA029285, CA029289 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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CA029284/CA029290 |
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BETWEEN: |
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ROGER WILLIAM, on his own behalf and on behalf of all other members of the Xeni Gwet'in First Nations Government and on behalf of all other members of the Tsilhqot'in Nation |
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RESPONDENT (PLAINTIFF) |
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AND: |
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RIVERSIDE FOREST PRODUCTS LIMITED |
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(DEFENDANT) |
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AND: |
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THE REGIONAL MANAGER OF THE CARIBOO FOREST REGION, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, AND THE ATTORNEY GENERAL OF CANADA |
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APPELLANTS (DEFENDANTS) |
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- a n d - |
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CA029285/CA029289 |
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BETWEEN: |
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ROGER WILLIAM, on his own behalf and on behalf of all other members of the Xeni Gwet'in First Nations Government and on behalf of all other members of the Tsilhqot'in Nation |
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RESPONDENT (PLAINTIFF) |
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AND: |
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HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, THE REGIONAL MANAGER OF THE CARIBOO FOREST REGION, AND THE ATTORNEY GENERAL OF CANADA |
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APPELLANTS (DEFENDANTS) |
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AND: |
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RIVERSIDE FOREST PRODUCTS LIMITED |
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(DEFENDANTS) |
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Before: |
The Honourable Madam Justice Rowles |
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The Honourable Mr. Justice Donald |
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The Honourable Madam Justice Huddart |
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K. J. Tyler and R. J. M. Fyfe
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Counsel for the Appellants, Regional Manager and British Columbia |
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G. Donegan, Q.C. and B. McLaughlin
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Counsel for the Appellant, Attorney General of Canada |
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J. J. Arvay, Q.C. and D. Robbins
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Counsel for the Respondent |
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S. B. Margolis |
Counsel for Riverside Forest Products Limited
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Place and Dates of Hearing: |
Vancouver, British Columbia |
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May 6, 7 and 8, 2002 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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July 19, 2002 |
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Written Reasons by:
The Honourable Madam Justice Rowles
Concurred in by:
The Honourable Mr. Justice Donald
The Honourable Madam Justice Huddart
Appendix "A", page 68
Reasons for Judgment of the Honourable Madam Justice Rowles:
[1] In two actions now set for trial at the same time, Roger William, on his own behalf and on behalf of all members of the Xeni Gwet’in First Nations Government, and on behalf of all members of the Tsilhqot’in Nation people, has made claims of aboriginal rights and title in respect of certain lands within the Cariboo region of British Columbia. In these reasons, I will refer to Roger William as the Plaintiff or Respondent whether referring to him as the plaintiff or respondent in one or both actions or appeals.
[2] The Plaintiff brought an application for an order that Her Majesty the Queen in Right of the Province of British Columbia (“British Columbia” or the “Province”) and the Attorney General of Canada (“Canada”) henceforth pay the Tsilhqot’in’s legal fees and disbursements or, alternatively, the costs in advance of the trial and in any event of the cause. The chambers judge, who is also the case management judge, dismissed the application for payment of the Plaintiff’s legal fees but, relying on this Court’s decision in British Columbia (Ministry of Forests) v. Jules, sub. nom. British Columbia (Minister of Forests) v. Okanagan Indian Band (2001), 208 D.L.R. (4th) 301, 95 B.C.L.R. (3d) 273, 2001 BCCA 647 (“Jules”), granted the order for costs in advance. Mr. Justice Vickers’ reasons for judgment dated 27 November 2001 are reported at (2001), 95 B.C.L.R. (3d) 371, 2001 BCSC 1641.
[3] The material part of the order under appeal reads:
THIS COURT ORDERS that:
1. The Plaintiff’s application is dismissed insofar as the Plaintiff applied to have the Defendants, Her Majesty the Queen in Right of the Province of British Columbia and the Attorney General of Canada (the “Crown Defendants”), henceforth fund the Plaintiff’s legal fees and disbursements for the conduct of this litigation.
2. The Plaintiff’s application is granted insofar as the Plaintiff applied to have the Crown Defendants henceforth pay the Plaintiff’s interim costs in any event of the cause for the conduct of this litigation (the term “costs” being used as it is found in the Rules of Court, Rule 58 and Appendix B. s.7(1)). The Crown Defendants shall share equally in payment of these interim costs. The Plaintiff’s interim legal fees shall be paid as 50% of special costs. The Plaintiff’s reasonable disbursements shall be paid in their entirety. The Crown Defendants shall pay these accounts as they are agreed to by the Crown Defendants or as approved on taxation.
[4] British Columbia and Canada appeal from the order for payment of the Plaintiff’s costs and disbursements. There is a cross-appeal from the dismissal of the Plaintiff’s application for payment of his legal fees, which will be dealt with in separate reasons.
[5] British Columbia and Canada argue that the learned chambers judge erred in finding there were exceptional and unique circumstances in relation to this case that would justify the granting of an order for costs in advance.
[6] The Plaintiff’s response is that the appeals brought by British Columbia and Canada are from a discretionary order made by the uniquely positioned case management judge and unless the order is clearly or patently wrong or founded on a wrong principle of law, this Court ought not to interfere with it. In the Plaintiff’s submission, the chambers judge correctly adopted the test set out in Jules and exercised his discretion judicially within the bounds of that test.
[7] The Errors in Judgment, as set out in British Columbia’s factum, are these:
23. The Province and the Regional Manager submit that the Learned Chambers Judge below erred:
(a) in holding that this was a case that engaged the honour of the Crown and thus fit within the very exceptional circumstances that might justify an order of increased interim costs in advance;
(b) in holding that the circumstances in which the litigation was initiated was not a proper grounds for distinguishing this case from Jules;
(c) in holding that the treaty process that is ongoing in British Columbia was an inappropriate alternative to litigation for the Plaintiff, and
(d) in characterizing the Province’s Defence as one that relies upon extinguishment of the Plaintiff’s rights.
[8] Canada asserts the following Errors in Judgment:
12. The learned case management judge erred:
(1) in finding that the case before him was “exceptional and unique”;
(2) in making an award of costs in advance without applying a test capable of distinguishing those cases which are “exceptional and unique” from those cases which are not;
(3) in finding that the case before him was more advanced than other aboriginal rights and title cases before the courts, without regard to the possibility (since realized) that the trial might be adjourned;
(4) in taking away from the trial judge the ability to control the conduct of the parties by using costs as a sanction; and
(5) in making findings of fact regarding the British Columbia Treaty Process without any or sufficient evidence.
[9] On the cross-appeal, the Plaintiff contends that the chambers judge erred in the following ways with respect to the application for funding of the Plaintiff’s legal fees:
a. in his application of the law to conclude that the Crown’s decisions not to provide funding to the Respondents did not infringe s. 15 of the Charter;
b. in principle when he concluded that the Respondent does not have any constitutional right to publicly funded legal fees and disbursements and that the courts do not have jurisdiction to so order;
c. in concluding that a fair, realistic and just result in the circumstances of this case required an order of no more than interim costs at a scale of increased costs at 50% of specials costs against the Crown Appellants.
[10] At the conclusion of oral argument, we dismissed the appeal with reasons to follow and reserved judgment on the cross-appeal. These are the reasons to follow for dismissing the appeal.
II. History of the proceedings
[11] Two actions were commenced by the Plaintiff on behalf of the Xeni Gwet’in, the first in 1990, which is referred to as the “Nemiah Trapline action”, and the second in 1998, referred to as the “Brittany Triangle action”.
[12] The areas comprising the Nemiah Trapline and the Brittany Triangle are within the Cariboo Forest Region of British Columbia. In addition to the Xeni Gwet’in’s claims of aboriginal title, the relief sought in the actions includes damages for infringement of aboriginal rights and title, compensation for breach of fiduciary duty, declaratory orders concerning the issuance and use of certain forest licences and injunctions restraining the issuance of cutting permits.
[13] The Nemiah Trapline action was commenced in the Supreme Court of British Columbia on 18 April 1990 against the Regional Manager of the Cariboo Forest Region, Her Majesty the Queen in Right of the Province of British Columbia, Carrier Lumber Ltd., and others. The relief sought in that action includes a declaration that the Tsilhqot’in (Chilcotin) have existing aboriginal title to the whole of the lands within the Trapline Territory and a declaration that the Xeni Gwet’in have an existing aboriginal right to carry on trapping activities within the Trapline Territory.
[14] In the Nemiah Trapline action, the Plaintiff alleges that the Tsilhqot’in occupied and continue to occupy their territory according to their own laws and customs and that they defend this territory and subsist in band and familial structures primarily through hunting, trapping, gathering and fishing, including trading with neighbouring aboriginal groups.
[15] On 7 December 1990 an affidavit of an anthropologist and archaeologist, Mr. R. Tyhurst, was filed in the Nemiah Trapline action outlining the Tsilhqot’in’s occupation, defence and use of their territory, with particular reference to the Xeni Gwet’in.
[16] On 17 December 1990, a consent order was made by Mr. Justice Millward that the undertaking of Carrier Lumber Ltd. not to apply to the Province for timber cutting permits in the Nemiah Trapline without notice be accepted.
[17] On 13 May 1992, Premier Harcourt promised the Xeni Gwet’in people that there would be no further logging in their traditional territory without their consent.
[18] In 1992, the Xeni Gwet’in commissioned a sustainable forestry study for the Brittany Triangle lands. The Ministry of Forests rejected a forestry plan based on this study. Between 1994 and 1997 the Xeni Gwet’in voted against clearcut logging plans for the Brittany Triangle in five separate community referendums.
[19] On 1 January 1997, British Columbia issued forest licence A54417 over the Xeni Gwet’in region of Tsilhqot’in territory which would permit logging of the Nemiah Trapline and Brittany Triangle lands without the consent of the Xeni Gwet’in.
[20] On 8 January 1997, the Xeni Gwet’in filed a Notice of Intention to Proceed with the Nemiah Trapline action.
[21] On 1 March 1997, British Columbia issued forest licences A55901 and A55904 over the Xeni Gwet’in region of Tsilhqot’in territory which would permit further logging of the Nemiah Trapline and the Brittany Triangle lands without Xeni Gwet’in consent.
[22] With the assistance of the David Suzuki Foundation, the Xeni Gwet’in began, in the fall of 1998, eco-system based forestry and cultural tourism planning for the Nemiah Trapline and Brittany Triangle lands.
[23] On 1 November 1998, British Columbia issued forest licence A20016 and A20019 over the Xeni Gwet’in region of the Tsilhqot’in territory which would permit further logging without Xeni Gwet’in consent.
[24] The Brittany Triangle action was commenced by the plaintiff on 18 December 1998, against British Columbia, Riverside Forest Products Ltd. and others, seeking declarations similar to those in the Nemiah Trapline action with respect to the lands known as the Brittany Triangle.
[25] In the Nemiah Trapline action, British Columbia has pleaded what is referred to as the “reserve creation defence”. The Fresh Statement of Defence setting out British Columbia’s reserve creation defence is annexed as Appendix “A” to these reasons. The following is a summary of the reserve creation defence provided to us by counsel for British Columbia in the course of oral argument:
SUMMARY OF RESERVE CREATION DEFENCE
The Province's Defence is based upon the premise that the concept of "native title" now more frequently referred to as "Aboriginal title" has evolved in its meaning over time. Prior to the Supreme Court of Canada's decision in R. v. Adams, [1996] 3 S.C.R. 101 and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 the most common understanding of the concept was that it consisted of a collection of disparate rights including rights to use the land for various traditional purposes such as hunting and fishing, and a right to be compensated for the historical process of settlement __ the entry into the lands that Aboriginal people had used by non-Aboriginal settlers. The understanding that native title included a bundle of land use rights is reflected in the decision of Baker Lake v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518 where Mr. Justice Mahoney spoke of an "Aboriginal right and title to hunt and fish". Similarly, the Australian concept of "Native Title" would appear to include a collection of traditional land use rights. See Yanner v. Eaton, [1999] HCA 53. The understanding that native title included the right to be compensated for the loss of their ability to continue using the land due to the influx of new settlement was reflected in the practice adopted by the Canadian government and its predecessors in what are now Ontario and the Prairie Provinces of entering into Treaties that provided for such compensation.
The decision of the Supreme Court of Canada in and [sic] Delgamuukw v. British Columbia, foreshadowed by comments in R. v. Adams, altered this understanding of the concept of Aboriginal title. In those cases Chief Justice Lamer made it clear that Aboriginal title is a particular Aboriginal right, and not merely a bundle of Aboriginal rights. It is a right to the exclusive occupation of land, and the right to treat land and its associated resources as an economic asset.
It is notorious that historically from Confederation, until its decision to become involved in the British Columbia Treaty Process in relatively recent times, British Columbia had rejected the claim that Aboriginal people should be compensated for the influx of non-Aboriginal settlement into lands that they had previously used. It was in relation to that issue that historically the question of native title was found to be unsettled. British Columbia had also generally, if not consistently, recognized the rights of Aboriginal people to hunt and fish for subsistence purposes.
The claim in this case is a claim to exclusive use and occupation of land. Thus the claim is to a concept of Aboriginal title that is consistent with the understanding of that term enunciated in the Delgamuukw decision, and not as generally comprehended historically as native title.
While it was not necessarily regarded as part of the settlement of claims to "native title" (particularly from the perspective of the Province) there had been a process to settle the rights of Aboriginal people to the exclusive use and occupancy of land in British Columbia. That process, starting before Confederation, was the reserve creation process. Following Confederation the Indian Reserve Commissions and the McKenna McBride Royal Commission consulted extensively with Aboriginal people through-out most of the Province (the Treaty Eight area excluded) concerning the lands which should be either confirmed or set aside as reserves for their exclusive occupation and use. At the same time it was understood that the lands not so set aside could be thereafter administered and managed by the Province in the interests of all provincial residents. Those consultations and negotiations between the federal and provincial governments resulted in agreements for a full and final settlement of the Indian Land question in British Columbia. It was implemented by federal and provincial legislation and by federal provincial agreements: The British Columbia Indian Lands Settlement Act, S.C. 1920, c. 51 and Indian Affairs Settlement Act, S.B.C. 1919, c. 32; British Columbia. Executive Council. Order in Council No. 911/1923, July 26, 1923, Canada, Privy Council, Order in Council OCPC 1265/1924, July 19, 1924; the Scott/Cathcart Agreement, March 22, 1929; Canada, Privy Council, Order in Council OPC 208/1930, February 3, 1930; The Railway Belt and Peace River Block Act, S.C. 1930, c. 37; Railway Belt Re-transfer Agreement Act, S.B.C. 1930, c. 60; Constitution Act, 1930 [20-21 George V, c. 26, Imp.]; British Columbia. Executive Council. Order in Council No. 1151/1930, September 24, 1930; and British Columbia, Executive Council. Order in Council No. 1036/1938, July 29, 1938.
This Settlement not only provided for the setting aside and confirmation of certain reserves, it also provided a method of setting aside further land for the exclusive use and occupation of land in the future.
If the Tsilhqot'in establish Aboriginal title in this case, the Province will argue that their title was justifiably infringed by the Indian reserve creation process, also referred to as the Indian land settlement process. If that submission is accepted in principle, the success of that defence in this case will be dependent upon a number of potential factors including whether the consultation engaged in was sufficient, and whether the process for the provision of additional land (a process which has been used extensively in the case of the Tsilhqot'in First Nations since the Indian Land settlement process was finalized) provides an adequate accommodation of their rights__or whether some additional compensation is yet due. On the state of British Columbia's pleadings at present, it is alleged that the duty to pay such compensation would be the sole responsibility of Canada.
[26] The reserve creation defence is similar, at least in effect, to a defence considered and rejected by Chief Justice McEachern at the trial level in Delgamuukw v. British Columbia (1991), 79 D.L.R. (4th) 185. The rejected defence was not raised as an issue by British Columbia in the Delgamuukw appeal either in this Court or in the Supreme Court of Canada.
[27] On 31 May 1999, Canada refused a proposal made by the Xeni Gwet’in that Canada join the Plaintiff in a motion to strike the reserve creation defence that British Columbia had pleaded.
[28] A consent order was subsequently entered that the two actions be tried together. On 21 February 2000 a Notice of Trial was issued setting the trial date in both actions for 10 September 2001.
[29] On 5 October 2000, Mr. Justice Vickers granted an application brought by the Plaintiff in the Brittany Triangle action to add the Attorney General of Canada as a defendant. That was followed by a consent order dated 2 November 2000 to add the Attorney General of Canada as a defendant in the Nemiah Trapline action. Leave to amend the statements of claim in both actions was granted so as to include an alternative claim against Canada for compensation for loss of aboriginal title in the event that British Columbia was successful in its argument that the Tsilhqot’in had lost aboriginal title by reason of the reserve creation process of 1871-1930.
[30] Fresh Statements of Claim were filed in February 2001 and, in March 2001, Fresh Statements of Defence were filed by British Columbia with Statements of Defence being filed by Canada.
[31] In its Statements of Defence, Canada does not support British Columbia’s reserve creation defence. Instead, Canada pleads that if aboriginal title has been extinguished or otherwise caused not to continue as a right of exclusive use and possession outside the Tsilhqot’in’s reserves, Canada is not obliged to compensate the Tsilhqot’in in respect thereof:
... if the Plaintiff or the Tsilhqot’in, or any of them, possessed aboriginal title, which is not admitted, and if that aboriginal title was extinguished, expropriated, discontinued, or otherwise caused not to continue as a right of exclusive use and possession outside of the Tsilhqot’in’s reserves, then he [the Attorney General of Canada] denies that Canada is obliged to compensate the Plaintiff or the Tsilhqot’in, or any of them, in respect of such extinguishment, expropriation or discontinuation.
[32] The trial had been scheduled to proceed in September 2001 but Canada brought a motion to adjourn the trial for a period of 10 to 12 months because of Canada’s late addition as a party and the inability of Canada to be ready for trial, given the nature and extent of the work needed to be undertaken in relation to its defence. On 19 March 2001, Mr. Justice Vickers granted Canada’s application for an adjournment of trial. In his reasons for judgment granting the adjournment, found at 2001 BCSC 409, Mr. Justice Vickers noted:
[6] Canada has been joined in these proceedings because of a particular defence raised by the Province, which has been characterized as the “reserve creation defence.” However, it is open to Canada to mount a defence directed towards the plaintiff’s claims of rights and title. In that regard, Canada has indicated its intention to advance a comprehensive defence to the plaintiff’s claims.
[33] On 22 August 2001, the Xeni Gwet’in unsuccessfully applied to Canada for funding from the federal Indian Test Case Funding Program in order to continue with its litigation through trial.
[34] On 21 September 2001, the Xeni Gwet’in made an unsuccessful application to British Columbia for funding in order to continue with the litigation through trial.
[35] On 14 November 2001, the Legal Services Society notified the Xeni Gwet’in that, by provincial statute, they are not eligible for legal aid funding in their litigation.
[36] The application that resulted in the orders now under appeal was then brought. The material before the chambers judge disclosed that the solicitors for the Xeni Gwet’in were already owed a considerable sum of money with respect to the litigation when the application was made. However, the application was for fees or costs to be incurred, not those that had already been incurred.
[37] In granting the costs order, Mr. Justice Vickers found that substantial effort, time and money had already been expended in the proceedings and that to continue to trial would require the commitment of substantial financial resources. He noted that the disbursements alone were estimated to exceed $125,000. He found that the Xeni Gwet’in lacked the financial resources to proceed further and that unless they were successful on the application, they would be unable to continue with the proceedings. As I understand their submissions, neither British Columbia nor Canada takes issue with those findings of the chambers judge which were well supported by the evidence.
[38] As to a submission that it was open to the Plaintiff to enter into a contingency fee agreement with the solicitors for the Xeni Gwet’in, Mr. Justice Vickers said, at 374:
8. The principal claim advanced by the plaintiffs is for declaratory relief relating to the Trapline Territory and the Brittany Triangle. Even if the plaintiffs succeed, there is unlikely to be a fund of money available for the payment of legal fees on a contingency basis. As well, the claims for declarations of aboriginal rights and title are claims to a collective right. If successful, the plaintiff will not acquire assets that can be disposed of to satisfy legal fees earned under some form of contingency arrangement. Apart from the fact that the plaintiffs’ solicitors have declined to enter into a contingency arrangement, I conclude the nature of the claims advanced in these actions makes them singularly unsuitable for such an arrangement. Given the nature of the claims, the time already invested by the plaintiffs’ solicitors and the impending trial date, it is no answer to this application to say that the plaintiffs should enter into a contingency agreement with solicitors who are [not] prepared to do so.
[39] The appellants argued that before the Tsilhqot’in and Xeni Gwet’in pursued an order for costs in advance, they should be required to pursue other remedies, specifically, the British Columbia Treaty Process. As to that argument, Mr. Justice Vickers said:
[26] The judgment of the Court of Appeal [in Jules] does not comment on the British Columbia Treaty process under the guidance and direction of the British Columbia Treaty Commission. In this case the defendants say the plaintiffs seek an extraordinary remedy and, accordingly, before an order for costs is made they should be required to pursue other reasonable alternatives. The Tsilhqot’in and Xeni Gwet’in have failed to take advantage of the availability of public funding for treaty negotiations. The defendants acknowledge the plaintiffs have no legal duty to pursue treaty negotiations despite the strong urgings of the Supreme Court of Canada in Delgamuukw, supra. However, they argue that failure to do so is a factor that can fairly be taken into account by the court in considering this extraordinary application for costs.
[27] I think that is a fair argument to make. Funds are available for treaty negotiations. Why, in the circumstances should public funds be made available for litigation? Here the plaintiffs have advanced reasons for not pursuing treaty negotiations. It is not necessary for me to comment on the appropriateness of those reasons on this application. Rather, I look at the state of treaty negotiations in British Columbia to decide whether, for these plaintiffs, it is a viable alternative.
[28] Both governments publicly assert a commitment to the treaty process. The most recent information indicates there are 49 First Nations participating in 40 sets of negotiations in the British Columbia treaty process. These negotiations are at various stages but it must be noted that the treaty process has yet to conclude a single signed treaty. Of more importance is the cloud that now hangs over the entire process. BC has said it will hold a referendum on the issue. The questions have yet to be settled and the referendum is planned to take place sometime during the next six months. No date has been set. The proposed referendum poses a host of uncertainties because the true state of the treaty process is, to some extent, now called into question.
[29] Here the plaintiffs have invested almost 12 years in the litigation process and are about to go to trial. If I were to accede to the arguments of the defendants it would mean putting the litigation on hold to pursue an uncertain process that is about to be redefined by a referendum whose questions are unknown. In addition, I cannot ignore the fact that the current process has yet to produce a completed treaty. The alternative is too unknown and uncertain. To require the plaintiffs to engage, against their better judgment, in treaty negotiations would be entirely unfair and unreasonable.
[40] As to the events that triggered the commencement of the proceedings in the Jules case (referred to in his reasons as the Okanagan Indian Band case) and this case, Mr. Justice Vickers said:
[30] In Okanagan Indian Band, supra, the aboriginal people purported to log Crown lands without authorizations under provincial legislation. The action commenced by the Crown sought to stop these activities. In that context claims were advanced placing in issue aboriginal rights and title. In this case the Ministry of Forests granted certain forest licences to private companies and the plaintiffs commenced these proceedings to ensure no forest related activities took place on land over which they claim aboriginal rights and title. In the first case aboriginal activities with chain saws provoked the action by the Crown. In this case Crown activities, namely the issuing of forest licences, provoked the action by the plaintiffs. In this context, who brings the matter before the court, and the mechanism that triggers the action, are not proper grounds to distinguish these cases.
[41] In arriving at the conclusion that an order for costs in advance ought to be granted, Mr. Justice Vickers also compared the importance of the issues in Jules with those in this case:
[31] This case is every bit as important as the Okanagan Indian Band case. In fact, if matters proceed as planned it will be the first post Delgamuukw land claims trial. The same important issues that arose in the Okanagan Indian Band case arise in this case. In addition, this will be the first trial involving an aboriginal trapping right since the test for proving aboriginal activity rights was set out by the Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507. The Province has also advanced a defence that the rights of the plaintiffs have been extinguished by the creation of reserves and that the plaintiffs’ rights, if any, lie in seeking compensation from the federal Crown. It is in this context that the Attorney General for Canada is joined in these proceedings.
[32] For all of these reasons, there are exceptional and unique circumstances in this case. I have no difficulty in concluding it is a case of great public importance. The public interest is not served if the plaintiffs are required, from lack of funds, to abandon these proceedings. The public interest is served by seeing this action go to trial.
[33] I am unable, in any principled way, to distinguish this case from the Okanagan Indian Band case. If anything, this case appears far more advanced and stands poised on the eve of trial.
[42] As to the determination of the amount of the costs to be paid in advance, the chambers judge said:
[34] The defendants’ legal fees and disbursements are fully funded. I must make an order that is fair to the plaintiffs but, at the same time, it must be fair to the defendants against whom the order is made. The order for interim costs must also be realistic, in the sense that it must be sufficient to allow the plaintiffs’ solicitors to continue their work on behalf of the plaintiffs.
[35] I conclude that Canada and British Columbia must share equally in the payment of the plaintiffs’ future costs. I use that term as it is found in the Rules of Court, Rule 58 and App. B, s. 7(1). I conclude that the taxing of accounts under Scales 1‑5 would lead to an unjust result. Accordingly, I order the payment of all reasonable disbursements as agreed to by Canada and British Columbia or as approved on taxation. I order that interim legal fees be paid as increased costs at 50% of special costs....
[43] The order under appeal was made on 27 November 2001. On 14 December 2001, a Consent Order was made by Mr. Justice Vickers adjourning the trial date from 11 March 2002 to 9 September 2002.
[44] Leave to appeal the order for costs in advance was granted on 21 February 2002 along with the appellants’ application for a conditional stay of the order. The Plaintiff obtained leave to cross-appeal from the order dismissing his application for payment of his solicitor’s fees.
[45] On 26 February 2002, a consent order was made granting the Plaintiff interim costs pursuant to the order of Vickers J. for the purpose of conducting two depositions of Tsilhqot’in witnesses with health risks.
[46] The trial, now scheduled to proceed in November 2002, is expected to take six months to complete. Counsel informed us that they expect the two actions to be consolidated shortly and that new pleadings will be issued as a result. At that time, further amendments may also be made to add to the aboriginal rights that are claimed.
III. Discussion
[47] The appellants do not suggest that the chambers judge lacked jurisdiction to award costs in advance and in any event of the cause. Interim costs have been ordered in a variety of contexts, including corporate and commercial litigation, trust and pensions litigation, family law litigation, municipal law litigation and constitutional litigation: see Muhammad v. State Petroleum Corp. (1996), 20 B.C.L.R. (3d) 350 (S.C.); Organ v. Barnett (1992), 11 O.R. (3d) 210 (Gen. Div.); Amcan Industries Corp. v. Toronto-Dominion Bank, [1998] O.J. No. 3014 (Q.L.) (Ont. Gen. Div.); Randle v. Randle (1999), 3 R.F.L. (5th) 139 (Alta. Q.B.); Turner v. Andrews (2001), 85 B.C.L.R. (3d) 53 (C.A.); Spracklin v. Kichton (2001), 203 D.L.R. (4th) 222 (Alta. Q.B.); McDonald v. Horn, [1995] 1 All E.R. 961 (C.A.); Roberts v. Aasen, [1999] O.J. No. 1969 (Ont. Sup.Ct.J.); Simms v. Simms (1995), 165 N.B.R. (2d) 245 (N.B.Q.B.); Redfearn v. Elkford (District) (1999), 37 C.P.C. (4th) 141, 1999 BCCA 639.
[48] In R.C. v. Quebec (Attorney General); R. v. Beauchamps, 2002 SCC 52, the Supreme Court of Canada recently made reference to situations in which orders have been made to cover costs in advance:
14. The concept of costs is broader than this, however. It includes obligations to make future payments imposed by judicial decision. For example, the provisions made for costs in family law matters often cover payment of future professional services. In criminal law, it has been common for several years for Rowbotham orders to be made by the criminal courts, to provide for future legal services to be funded and made available: see: R. v. Rowbotham (1998), 41 C.C.C. (3d) 1 (Que. C.A.). In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at paras. 91 and 107, this Court recognized that a state-funded lawyer could be made available to a party in appropriate cases. As well, this Court has sometimes directed, when granting leave to appeal, that regardless of the outcome of the appeal, a party's costs should be paid or reimbursed, within the limits defined by the Court; see: Roberge v. Bolduc, [1991] 1 S.C.R. 374....
[49] In Jules, this Court recognized the jurisdiction of the Supreme Court to order costs in advance where the case involved special, exceptional or unique circumstances that outweighed the concerns about pre-judging its outcome.
B. The decision in Jules
[50] As the submissions of the appellants focus in large part on the decision in Jules, it may be useful to provide a summary of the proceedings and issues in that case.
[51] An application has been made by the Province for leave to appeal the order made in Jules to the Supreme Court of Canada. We were informed by counsel during oral argument that if leave is granted, the Attorney General of Canada will apply to intervene to support British Columbia’s position that an order for costs in advance of the trial ought not to have been granted. Before us, the appellants made their submissions on the footing that Jules was correctly decided.
[52] The proceedings in Jules were commenced in the fall of 1999 when members of certain Indian Bands began to log Crown land with authorization from their respective tribal councils but without authorization under the Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159 (the “Code”). The Minister of Forests served the appellants with stop-work orders and brought proceedings in the form of petitions to enforce those orders. The appellant Bands filed a Notice of Constitutional Question challenging certain sections of the Code on the basis that those sections did not accommodate the Bands' asserted aboriginal title to the Crown lands, and their asserted right to log the lands.
[53] The Minister sought an interim injunction to halt the logging and to preserve the status quo pending judicial determination of the matter. The chambers judge granted the injunction (see British Columbia (Ministry of Forests) v. Okanagan Indian Band (1999), 37 C.P.C. (4th) 224 (B.C.S.C.)) and the order was upheld by this Court: (2001), 208 D.L.R. (4th) 301, 95 B.C.L.R. (3d) 273, 2000 BCCA 647; leave to appeal refused, 1 February 2001, [2001] S.C.R. viii, [2000] S.C.C.A. No. 389 (Q.L.).
[54] After the injunction had been granted, the Minister applied under R. 52(11)(d) of the Rules of Court to have the petition remitted to the trial list and to have pleadings filed. The Bands opposed the motion, arguing that the court should exercise its discretion to refuse to order a trial or, alternatively, to require the Province to pay the Bands' legal fees and disbursements in any event of the cause, should a trial be ordered. The chambers judge, who was also the case management judge, ordered a trial and also declined to order that the Province pay the Bands' fees in advance.
[55] On appeal, this Court upheld the order that the Minister’s amended petition be referred to the trial list but granted an order for payment of costs in advance. Madam Justice Newbury, for the court, found there was little doubt that the financial situation of the four bands made the funding of complex litigation difficult. She noted that the Minister did not take issue with the contention that the Bands were in dire financial circumstances or that resort to a contingency fee arrangement would be unrealistic in the context of the case which involved neither a claim for damages nor a dispute about a fund of money.
[56] There was evidence in Jules that the appellants had applied to the Federal Test Case Funding Program to fund their litigation but were told the Test Case Program does not fund litigation at the trial level. Their requests for funding sent to Indian and Northern Affairs Canada went unanswered.
[57] The appellant Bands advanced constitutional arguments aimed at obtaining a funding order for fees as well as arguments to support the exercise of judicial discretion to grant costs in advance.
[58] The constitutional arguments to support an order were rejected but Newbury J.A. held that an order for payment of costs in advance of the trial ought to have been granted in light of the special or exceptional circumstances of the case:
[37] I turn next to consider whether an order should be made in respect of "costs" as that term is normally used in legal parlance. As has been noted, the Chambers judge concluded that the court has the jurisdiction in appropriate circumstances to order costs in advance but that that jurisdiction is “narrow and restricted to exceptional cases.” In my view, the circumstances of this case are “special” or “exceptional”. The “test case” nature of these proceedings has already been noted, and the public importance in this Province of the issues to be tried is obvious. It is clearly in the public interest that the applicability of the Forest Practices Code to lands and activities claimed as aboriginal be determined, and be determined on all the available evidence. The proceedings were initiated and are being pursued by the Minister against the Bands, and there is no doubt that counsel who have experience in aboriginal law are required to put forth the Bands' position. These facts remove this case from the realm of ordinary litigation where costs do generally follow the event, and financial hardship is not a proper ground for ordering otherwise: see Brown v. Black Top Cabs Ltd. (1997), 43 B.C.L.R. (3d) 76 (B.C.C.A.), at para. 16. More importantly, the honour of the Crown is at stake in dealings between it and aboriginals: see R. v. Van der Peet, [1996] 2 S.C.R. 507, at 537. The broad discretion exercisable by the Supreme Court in making costs orders must surely be informed by that principle in the particular circumstances of this case. In my view, it is simply unrealistic for the Crown in this case to fold its hands and say that the Bands will have to manage without counsel. In my respectful opinion, the Chambers judge erred in assuming that these matters were irrelevant to the exercise of his discretion regarding costs.
[59] Madam Justice Newbury went on to observe that the real challenge of the appeal was to formulate an order that would provide the Bands with concrete assistance but which would not expose the Province to unreasonable or excessive costs and set out some conditions to be used as guidance in that case. In the appeal before us, the protocol or mechanism for determining the amounts to be paid as costs in advance is not in issue and there is no need to say more about that portion or aspect of the Jules decision.
IV. Arguments on the issues on appeal
[60] Set out below is a summary of the arguments made by the parties on the four main issues or groups of issues that the appellants have raised in the Errors in Judgment they assert in their factums on this appeal.
A. Did the chambers judge err in the findings he made that led him to the conclusion that an order for costs in advance ought to be granted?
[61] The appellants do not suggest that the chambers judge erred by failing to recognize that to grant an order for costs in advance required special or exceptional circumstances; instead the appellants take issue with his conclusion that the circumstances he identified in this case were, in fact, exceptional.
[62] Canada contends that the conclusion of the chambers judge that the case was exceptional rests on four findings and that none is supportable. The Errors in Judgment in Canada’s factum that are relevant to this issue are that the chambers judge erred:
(1) in finding that the case before him was “exceptional and unique”;
(2) in making an award of costs in advance without applying a test capable of distinguishing those cases which are “exceptional and unique” from those cases which are not;
(3) in finding that the case before him was more advanced than other aboriginal rights and title cases before the courts, without regard to the possibility (since realized) that the trial might be adjourned;
[63] The Error in Judgment alleged in British Columbia’s factum that is relevant to this issue is that the chambers judge erred:
(d) in characterizing the Province’s Defence as one that relies upon extinguishment of the Plaintiff’s rights.
[64] On the points raised, the main thrust of the appellants’ submissions is that the chambers judge was in error in finding that the issues raised in the actions brought by the Xeni Gwet’in were properly viewed as test cases.
(i) Appellants’ submissions
[65] Canada’s first submission is that the finding that the case is “important” and “just as important as the case before the court in Jules” is not a circumstance that can make this case exceptional so as to justify an order for funding. In Canada’s submission, it is paradoxical that the chambers judge found that the case at bar was exceptional and unique by finding that it was similar to another case. Canada argues that all aboriginal rights and title cases are important but the importance of such cases is not something that can make each of them “exceptional”.
[66] British Columbia’s submission is that the chambers judge erred by focusing on the similarity rather than the differences between this case and Jules. British Columbia contends that it would only be in the differences that this case might contain the exceptional circumstances to properly constitute it as a test case in its own right.
[67] British Columbia goes on to assert that because the chambers judge found that this case raised issues similar to Jules, his judgment is capable of being interpreted as holding that all cases that raise aboriginal rights and title claims are entitled to be funded through costs orders in advance.
[68] The second matter with which Canada takes issue is the finding that, “This case ... if matters proceed as planned ... will be the first post Delgamuukw land claims trial” (para. 31). Canada argues that it cannot be said with any degree of certainty which of the several land claims trials now pending before the courts will turn out to be the first post-Delgamuukw land claims trial and, in any event, that is not a reliable basis on which to exercise the court's discretion. Canada goes on to argue that, “Since the order appealed from [was made], the trial has been adjourned from March to September” and that, “As of the time of writing this factum, it remains to be seen what effect the granting of a stay of execution of the cost order will have on the trial date.”
[69] The third finding with which Canada takes issue as supporting an order for costs in advance is that this case will be the first aboriginal trapping case to go to trial since the test for proving aboriginal activity rights was set out by the Supreme Court of Canada in R. v. Van Der Peet [1996] 2 S.C.R. 507. In Canada’s submission, the fact that it is the first aboriginal trapping case to go to trial since Van der Peet is not significant because the legal tests for aboriginal rights have already been conclusively established in Van der Peet and the legal tests for aboriginal title have been conclusively established by Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
[70] Canada goes on to argue that the chambers judge failed to identify any important and novel question of law which would make this case a test case. In Canada’s submission, all claims of aboriginal rights and title are site and fact specific and, for that reason, a decision in this case as to whether an aboriginal right exists will not be determinative of aboriginal claims elsewhere. Rather, in Canada’s submission, “The answers to those questions will be found by applying the facts of those cases to the tests laid out in Van der Peet and Delgamuukw.”
[71] The fourth “finding” with which the appellants take issue concerns the question of whether the reserve creation defence as pleaded by British Columbia amounts to a test case. Canada submits that the reserve creation defence is the closest the learned chambers judge came to identifying a legal issue that might be said to make the case at bar a test case but argues that the defence cannot be relied upon to conclude that this is a test case for three reasons:
34. Firstly, B.C. has not pleaded a defence that the rights of the plaintiffs have been extinguished by the creation of reserves. The word “extinguish” appears nowhere in B.C.’s statement of defence. The issue of extinguishment was dealt with by the courts in Delgamuukw. [Delgamuukw v. B.C., [1991] 3 W.W.R. 97 (B.C.S.C.) at pp. 474 to 476 and Delgamuukw v. British Columbia and Canada, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193]
35. Secondly, B.C.’s reserve creation defence is properly construed as one which is based on consultation with each particular First Nation in the setting aside of reserves. The statement of defence refers specifically to the consultation which took place with the Tsilhqot’in. The defence is one which cannot be applied generically to all First Nations, but will turn on the facts of each particular case.
36. Thirdly, it cannot be said with confidence that this case will result in any clarification of the law regarding the effect of the reserve creation process. The test for the existence of aboriginal title is whether the First Nation had exclusive occupation of the land in question at the time of the assertion of Crown sovereignty. The reserve creation defence is based on evidence of things which happened well after the assertion of Crown sovereignty. If the trial judge finds that the plaintiffs cannot prove that they had aboriginal title to the lands in question at the time of the assertion of Crown sovereignty, the trial judge may well decline to make any ruling on what effect the reserve creation process might have had on such title. [Delgamuukw v. British Columbia and Canada, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193, at paragraph 143]
[72] British Columbia also takes issue with the finding that one of the exceptional circumstances in this case arises from the Province’s reserve creation defence and, in that regard, points to the following paragraph in the reasons of the chambers judge:
[31] ... The Province has also advanced a defence that the rights of the plaintiffs have been extinguished by the creation of reserves and that the plaintiffs’ rights, if any, lie in seeking compensation from the federal Crown. It is in this context that the Attorney General for Canada is joined in these proceedings.
[73] As noted above, British Columbia alleges that the chambers judge erred “in characterizing the Province’s Defence as one that relies upon extinguishment of the Plaintiff’s rights.” British Columbia argues that the chambers judge misapprehended the nature of the Province’s defence, for nowhere in the Statements of Defence filed in either the Nemiah Trapline action or Brittany Triangle action does the Province purport to rely upon a plea of extinguishment of either aboriginal rights or title.
[74] The Province goes on to argue as follows:
79. As in all litigation, the nature of the Province’s defence must be viewed in the context of the claims made by the Plaintiff. In the Actions, the Plaintiffs assert an exclusive occupation of the Claim Areas and equate that occupation with Aboriginal title.
80. One aspect of the Province’s defence is in relation to this claim to exclusive occupation of the Claim Areas. In that regard the Province asserts that areas actually occupied by Aboriginal communities had been historically respected by the Crown, and that through the reserve allocation process Aboriginal people were consulted concerning the lands that they would continue to occupy exclusively, or that they would obtain an exclusive right to occupy.
81. If the Plaintiff were to make out a claim to Aboriginal title to the entire Claim Areas in 1846, the question of whether the process of consultation related to reserve allocation amounted to a justifiable infringement of the title of the Tsilhqot’in claimants will have to be determined by the Court on the facts relating to the circumstances of this case.
(ii) Plaintiff’s arguments respecting the alleged errors in the findings of the chambers judge
[75] The Plaintiff contends that the circumstances of this case were properly found by the chambers judge to be “exceptional” and in that regard submits that issues raised by the proceedings in the trial court clearly come within the category of test cases.
[76] In the Plaintiff’s submission, British Columbia’s argument that because the chambers judge found that this case raised issues similar to Jules, his judgment is capable of being interpreted as holding that all cases that raise aboriginal rights and title claims are entitled to be funded through costs orders in advance is simply an in terrorem argument and has no substance. In that regard, Plaintiff’s counsel points out that British Columbia has not alleged error but instead submits that “clarification ... from the Court is required” lest the chambers judgment in this case be interpreted “as holding that all cases that raise Aboriginal rights and title claims are entitled to be funded through costs orders in advance.”
[77] Plaintiff’s counsel further points out that the chambers judge did not hold, or imply, that all cases that raise aboriginal rights and title claims are entitled to be funded through orders for costs in advance, and therefore it is unclear what “clarification” is needed.
[78] The relevance of the public importance of the litigation was a factor identified in Jules in addition to the test case nature of the litigation. In the Plaintiff’s submission, it was entirely appropriate for the chambers judge to consider and rule upon the public interest character of this litigation in determining whether an order for costs in advance ought to be made.
[79] As to Canada’s argument that the chambers judge erred by concluding and relying on the fact that this case would be the first post-Delgamuukw land claims trial because the case has been adjourned and might be adjourned further due to a stay of execution of the costs order, the Plaintiff submits that it is entirely appropriate for the chambers judge to take into account that this case is poised for trial and, therefore, likely to be the first and likely to be a precedent-setting aboriginal title trial. Plaintiff’s counsel submits that this finding of fact is relevant to both the public interest and the “test case” aspect of the test articulated in Jules.
[80] The Plaintiff also points out that Canada has failed to show that any of the other cases it referred to is as advanced or long-standing as this case and submits that, regardless of whether this case proceeds as presently scheduled, it is still likely to be “the first post Delgamuukw land claims trial”.
[81] As well, the Plaintiff argues, this will be the first trial involving an aboriginal trapping right.
[82] As to Canada’s submission that this case is not a “test case” because the tests for establishing aboriginal rights and title have been settled in Van der Peet and Delgamuukw, Plaintiff’s counsel points out that the courts have repeatedly emphasized the complexity of the law concerning aboriginal rights and title. In the Plaintiff’s submission, notwithstanding the importance of Van der Peet and Delgamuukw, there is still much important work for Courts to do before it can be suggested that there are no more “test cases” in aboriginal litigation, and that British Columbia needs a body of aboriginal title law.
[83] The Plaintiff takes issue with Canada’s submission that it is good enough to have a backbone but nothing more for that is exactly the problem that the Supreme Court of Canada identified in R. v. Sparrow, [1990] 1 S.C.R. 1075 when it noted, at 1103:
For many years, the rights of the Indians to their aboriginal lands -- certainly as legal rights -- were virtually ignored. The leading cases defining Indian rights in the early part of the century were directed at claims supported by the Royal Proclamation or other legal instruments, and even these cases were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises. For fifty years after the publication of Clement’s The Law of the Canadian Constitution (3rd ed. 1916), there was a virtual absence of discussion of any kind of Indian rights to land even in academic literature. By the late 1960s, aboriginal claims were not even recognized by the federal government as having any legal status.
[84] The Plaintiff argues that Canada’s assertion that the absence of jurisprudence referred to in Sparrow can be rectified by one case (Delgamuukw), that did not decide the issue of whether aboriginal title existed, is simply incorrect. The same argument applies with respect to Van der Peet, which did not address trapping rights.
[85] As to whether the actions have test case aspects, the Plaintiff contends that the pleadings and proceedings raise issues relating to proof of aboriginal title and a trapping right, infringement of that title and right, and justification of the Forest Act and actions taken under it. As well, the case raises the yet unexplored issue of Canada’s fiduciary obligation to protect aboriginal title from incursions by the Province.
[86] The Plaintiff argues that the litigation also puts in issue a new form of “extinguishment” defence by British Columbia, and its alternative that any unextinguished title in the Province has been converted into a right of compensation against Canada, the resolution of which will have broad, if not universal, application despite British Columbia’s assertion to the contrary.
[87] As to the appellants’ submissions that the chambers judge erred in characterizing the Province’s reserve creation defence as one that relies upon extinguishment of the Plaintiff’s rights, the Plaintiff makes this submission:
48. It does not matter how the Chambers Judge characterized the defence, although the term “extinguishment” is a fair one given British Columbia’s claim that off-reserve title has been “terminated.” Even assuming that the Crown is correct in its characterization of the defence as a defence of “justification” rather than “extinguishment” (which is denied), the issues raised still make this a test case issue of public importance. Such a defence (at least according to the Province) has never been tried and a ruling thereon will clearly have broad value, despite Canada’s submissions to the contrary, as the vast majority of facts in issue with respect to British Columbia’s defence will be applicable to aboriginal title throughout the province.
B. Did the chambers judge err in not distinguishing this case from Jules in relation to whether the honour of the Crown was engaged?
[88] The Errors in Judgment in British Columbia’s factum that are relevant to this issue are that the chambers judge erred:
(a) in holding that this was a case that engaged the honour of the Crown and thus fit within the very exceptional circumstances that might justify an order of increased interim costs in advance;
(b) in holding that the circumstances in which the litigation was initiated was not a proper grounds for distinguishing this case from Jules;
(i) Appellants’ submissions on the question of whether the honour of the Crown was engaged in this case.
[89] British Columbia argues that the honour of the Crown is not engaged in this case for two reasons: unlike Jules, this case cannot properly be viewed as a test case because the issues are not ripe for determination and, unlike Jules, the Plaintiff, rather than the Province, commenced these proceedings.
[90] To support the argument that this case cannot be viewed as a test case, British Columbia argues that Cheslatta Carrier Nation v. British Columbia (2000), 80 B.C.L.R. (3d) 212 (C.A.) stands for the proposition that it is inappropriate for the Court to grant a discretionary remedy setting out the parameters of an aboriginal right in the abstract unless it was also able to indicate how that right would affect important competing interests. British Columbia contends that the case at bar is dealing with an abstract situation, as the forest licences issued by the Regional Manager to Riverside Forest Products Limited grant rights to harvest timber in the Williams Lake Timber Supply Area, a very large area that includes the area of the claims, and that, until a Forest Development Plan is submitted by Riverside proposing forest development activities in those areas and the Plan is approved, no practical conflict exists between the rights asserted by the Plaintiff and the actions of the Province or the rights and interests of Riverside.
[91] British Columbia further submits that it is far from clear that the issuance of the forest licences in question actually did infringe the rights and title that the Plaintiff alleges. The Province submits that the licences contain provisions to protect aboriginal rights including the power of the Regional Manager to vary, suspend, or refuse to grant a licence if a court determines a licence is interfering or may interfere with an aboriginal right or if a court grants an injunction pending determination of such issues. The licences include provisions dealing with consultation requirements in advance of any court finding. British Columbia argues it is necessary to await the issuance of the cutting permits before a conclusion can be drawn regarding the infringement of rights and title.
[92] British Columbia points out that although the Nemiah Trapline action was commenced more than a decade ago, no logging has occurred in the claims area and consultations with the Xeni Gwet’in First Nation and the Tsilhqot’in Nation are continuing with respect to proposed logging. In British Columbia’s submission, until it is known just what logging and related activities have been authorized, it will be impossible for a court to decide the degree to which the rights and title asserted by the Plaintiff might actually be infringed, if at all. British Columbia submits that on the facts of this case, as it stands now, it is not possible for a court to give meaningful guidance on the reconciliation of aboriginal entitlements with the public interest in the forest industry.
[93] British Columbia recognizes the Plaintiff’s right to seek a declaration in relation to apprehended infringements but contends that any declaration would not actually settle the real question between the parties of whether Riverside Forest Products Limited could harvest timber in the Claim Area and, if so, on what conditions. In the Province’s submission, this removes the case from the category of true test cases of such important public interest that might otherwise justify an order of costs in advance.
[94] British Columbia further takes issue with the conclusion of the chambers judge that the party who brings the matter before the court and the mechanism that triggers the action is not a proper basis for distinguishing Jules. British Columbia argues that the differences are significant because of how they relate to the critical question of the honour of the Crown. British Columbia argues that in Jules, the Province commenced the proceedings and, as a result, the Province could choose to discontinue the action if it felt such a course to be appropriate. In that case, the Indian Bands were not in a position to control whether the case should proceed, or at what pace. In this case, the Xeni Gwet’in commenced the actions and are in control of whether the actions proceed or are discontinued.
[95] British Columbia also argues that in Jules, the Crown was bringing legal proceedings against a group of aboriginal people who purported to be exercising constitutionally protected entitlements to harvest trees whereas, in this case, consultations are still in progress and no action has been taken or authorized that will have an impact upon the rights asserted by the aboriginal claimants. For that reason, British Columbia argues, this is not a case where the Xeni Gwet’in, when faced by an action on the part of the Crown, had no options other than to prove the existence of their rights and title.
(ii) Plaintiff’s submissions on the relevance of the honour of the Crown to the question of whether the chambers judge erred in granting an order for costs in advance.
[96] The Plaintiff contends that the chambers judge did not err by failing to distinguish this case from Jules on the grounds advanced by British Columbia. I have set out below a summary of the Plaintiff’s submissions in response to the argument that the chambers judge erred in holding that this was a case that engaged the honour of the Crown and thus fit within the very exceptional circumstances that might justify an order of increased interim costs in advance.
[97] Jules made clear that the honour of the Crown is the first dividing line between ordinary litigation and litigation engaging the Crown against aboriginal people. In Jules, this Court dealt with the honour of the Crown in both its s. 35 analysis and its analysis of the inherent jurisdiction to award costs in advance, at paras. 29 and 37:
Undoubtedly, the fiduciary duty of the Crown must be considered in connection with the application of general statutes and obligations to aboriginal peoples, but as the Chambers judge noted, there is nothing in the specific circumstances of this case that would give rise to a "fiduciary expectation" of funding. (This is not to say that the existence of the Crown's broad fiduciary duty should not be considered in the exercise of the Chambers judge's discretion in making an order as to costs, as I will discuss below.)
...
More importantly, the honour of the Crown is at stake in dealings between it and aboriginals: see R. v. Vanderpeet, [1996] 2 S.C.R. 507, at 537. The broad discretion exercisable by the Supreme Court in making costs orders must surely be informed by that principle in the particular circumstances of this case.
[98] This Court thus recognized that, even absent a specific fiduciary expectation of funding in a given case between an aboriginal party and the Crown, the honour of the Crown is still an important constitutional principle that informs the exercise of the inherent jurisdiction to award interim costs.
[99] The Plaintiff takes issue with British Columbia’s submission that the chambers judge erred in holding that the circumstances in which the litigation was initiated was not a proper grounds for distinguishing this case from Jules. The chambers judge took the view that the fact that this action was started by the Xeni Gwet’in in response to Crown action was not a principled way to distinguish this case from Jules. As British Columbia itself argued in its submissions in Jules, the analysis "...should not depend upon whether litigation is begun by way of a writ and statement of claim or by way of the snarling of chain saws. In both cases, the legal result is the same."
[100] As to British Columbia’s submissions that for a case to be a “test case” it “must be a case that has a reasonable prospect of settling the issues that it raises”, the Plaintiff notes that it is significant that the Province does not identify in “Part 2: Errors in Judgment,” that the chambers judge in any way erred by failing to consider whether the case had “a reasonable prospect of settling the issues it raises,” or was otherwise “ripe for proper consideration.” In fact, British Columbia’s statement of defence pleads the opposite of what the Province now contends. In particular, British Columbia states in both actions that, in further answer to the statement of claim:
...the Plaintiff is responsible for prolonged, inordinate and inexcusable delay in bringing this action and seeking the relief claimed herein,...
[101] The Plaintiff further argues that British Columbia’s position completely ignores the history of these actions, of which the case management judge was well aware, and that the conflict between British Columbia’s resource decisions and Xeni Gwet’in rights and title could not be more ripe for determination. The Plaintiff argues that these are not feigned disputes or one-sided contentions and, in that regard, notes the following:
a. In 1990, the Xeni Gwet’in provided British Columbia with affidavits, including that of R. Tyhurst, anthropologist and archaeologist, showing a strong prima facie case to aboriginal title and rights in Tsilhqot’in traditional territory;
b. Since 1992 trees would have been cut in the claim areas but for two major blockades instituted by the Xeni Gwet’in against provincially authorized logging by Carrier Lumber Ltd.;
c. Subsequently in 1992, the existence of this controversy prompted then Premier Harcourt to make a promise to the Xeni Gwet’in that the lands of their territory would not be logged further without their consent;
d. That promise gave rise to British Columbia’s decision to breach the forest licence it issued to Carrier Lumber Ltd., who was going to do the cutting in question. Carrier Lumber Ltd. subsequently successfully sued British Columbia for not letting it harvest the timber at issue in these proceedings;
e. In 1997 and 1998 British Columbia issued five separate forest licences without Xeni Gwet’in consent, including two to the defendant Riverside Forest Products Ltd., for the forest lands within the Xeni Gwet’in region of Tsilhqot’in traditional territory, including the Brittany Triangle and Nemiah Trapline areas;
f. The Chilcotin region has been systematically clearcut such that the two primary forest areas that remain intact within the Xeni Gwet’in region of Tsilhqot’in territory are the Brittany Triangle and Nemiah Trapline lands;
g. This litigation has been going on for years, documents have been exchanged, discoveries have been conducted, experts have been retained and belated consultation meetings have been ongoing. The pleadings are joined as if the issues are ripe and British Columbia purports to justify its forest licence issuance. There have been numerous contested applications about issues of substance and procedure, but British Columbia has said nothing about ripeness.
[102] The Plaintiff further contends that British Columbia’s submission is inconsistent with previous positions the Province has taken and, in that regard, referred us to a letter dated 18 April 2001, in which one of British Columbia’s lawyers stated:
The decision to permit harvesting in the Brittany Triangle and the Trapline areas was made at the time the licenses were issued in early 1997. The Forest Development Plans that are now under consideration are being submitted pursuant to those licences.
The letter goes on to note that there is urgency in harvesting the timber because the legal right to do so was granted in 1997. The letter also makes it clear that consultation with respect to aboriginal title did not occur either before or after the decision was made to issue forest licences and permit timber cutting in the claim areas.
[103] The Plaintiff argues that British Columbia’s clear position was that the issue of consultation with respect to aboriginal title could only be resolved in this litigation after a trial. The Plaintiff argues that, in addition, the evidence makes clear that regardless of the outcome of consultation, wherever the timber cutting is to take place in the claim areas, it will interfere with Xeni Gwet’in trapping by negatively impacting the animals and animal habitat upon which the trapping depends.
[104] Plaintiff’s counsel goes on to argue that it borders on the incredulous that British Columbia would now attempt to turn its belatedly recognized “duty to consult” as a sword to be used against aboriginal peoples to deny them in a real and practical sense the ability to litigate what even the Crown concedes to be “apprehended infringement” of their aboriginal rights and title.
[105] The Plaintiff’s position is that the chambers judge did not err in concluding that, in this case, it did not matter that the applicant for an order for costs had initiated the litigation. The Plaintiff puts his argument this way: no error arises because the Plaintiff did not wait for the Province to meet its statutory and constitutional duties to consult; nor because the Plaintiff did not wait for cutting permits to be issued; nor because the Plaintiff did not first bring an application for judicial review or for an interlocutory injunction – all of which British Columbia suggests was necessary before an award of costs could have been issued.
[106] In regard to seeking an interlocutory injunction, the Plaintiff submits that the case management judge was well aware of the ninety-day notice requirement that had been agreed upon between the parties and which was confirmed in the Case Management memorandum sent to counsel. That the chambers judge was aware of the notice requirement is clear because the chambers judge relied on the agreement in allowing Canada’s trial adjournment application roughly seven months prior to the order for interim costs. Moreover, the Plaintiff argues, British Columbia makes no mention of the submissions made before the chambers judge that injunctions were effectively unavailable to plaintiffs with claims based on aboriginal rights and title, particularly impecunious plaintiffs, as the Crown has aggressively and successfully resisted all interlocutory injunction applications over the previous 12 years. In that regard, Plaintiff’s counsel referred to William v. HMTQ, 2001 BCSC 409; Outline of Argument of Plaintiff (Applicant) on Motion For Funding/Interim Costs at para. 83; and an article by J.J.L. Hunter, Q.C., “Advancing Aboriginal Title Claims After Delgamuukw – The Role of the Injunction” for the Continuing Legal Education Society of British Columbia, Litigating Aboriginal Title, 22 June 2000, pp. 1.3 to 1.3.24.
[107] The Plaintiff takes issue with British Columbia’s submission that because Taku River makes it possible to challenge Forest Act authorizations by way of judicial review, these actions should not be funded by an interim costs order, on two grounds. First, the Plaintiff submits, it is too late in this case for British Columbia to rely on Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (2002), 98 B.C.L.R. (3d) 16, 2002 BCCA 59, and Haida Nation v. British Columbia (Minister of Forests) (2002), 99 B.C.L.R. (3d) 209, 2002 BCCA 147, because British Columbia has denied its fiduciary obligation to consult with respect to Xeni Gwet’in aboriginal rights and title for more than 12 years and it has successfully ensured that its denial could only be challenged in a full trial. Therefore, the Xeni Gwet’in have been forced to litigate all of the issues arising out of their rights and title to the eve of trial. It is unreasonable to suggest that British Columbia can now change its position on what is the appropriate procedure to resolve these claims. Second, as the Court in Taku River and Haida Nation makes perfectly clear, aboriginal rights and title claims can still only be resolved in a full trial; only the issue of consultation is appropriate for judicial review. Another consultation case, standing alone, will not allow for the full vindication of Xeni Gwet’in rights and will not fulfill the “test case” nature of this litigation.
[108] The Plaintiff also takes issue with British Columbia’s assertion that it is relevant that the Plaintiff initiated the litigation because “consultations are still in progress and no action has been taken or authorized that will have an impact upon the rights asserted by the aboriginal claimants...”. In that regard, the Plaintiff points out that until the recent decisions of this Court in Taku River, supra, and Haida Nation, supra, British Columbia has consistently taken the position that it was under no constitutional duty to consult with aboriginal peoples until their aboriginal rights or title were proven in court.
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