IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Hupacasath First Nation v. British Columbia (Minister of Forests) et al., |
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2005 BCSC 1712 |
Date: 20051206
Docket: L043095
Registry: Vancouver
Between:
Ke-Kin-Is-Uqs, also known as Judith Sayers,
Chief Councillor
suing on her own behalf and on behalf of all members of the
Hupacasath First Nation, the Hupacasath
First Nation Council and
the Hupacasath First Nation
Petitioners
And:
Minister of Forests of the Province of British
Columbia,
the Chief Forester and Brascan Corporation
Respondents
Before: The Honourable Madam Justice Lynn Smith
Reasons for Judgment
| Counsel for Petitioners: |
P.R. Grant |
| Counsel for Respondents Minister of Forests and The Chief Forester: |
G.R. Thompson |
| Counsel for the Respondent Brascan Corporation: |
D.R. Clark, Q.C. |
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Date and Place of Trial/Hearing: |
July 11-15, 2005 |
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Vancouver, B.C. |
I. INTRODUCTION
[1] The Hupacasath First Nation (“HFN”) seeks judicial review of decisions by the British Columbia Minister of Forests and the Chief Forester.
[2] The individual petitioner, Ke-Kin-Is-Uqs (also known as Judith Sayers), is a member and elected Chief of the petitioner HFN. The Hupacasath people were formerly known as the Opetchesaht, and are an aboriginal people of Canada within the meaning of s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K), 1982, c.11.
[3] The respondent Brascan Corporation (“Brascan”) controls the lands and is the licensee under the Tree Farm Licence (“TFL”) relevant to these proceedings. Brascan has recently changed its name to Brookfield Asset Management Inc., but for convenience I will continue to refer to it as Brascan.
[4] The petitioners seek judicial review of two decisions: (1) the July 9, 2004 decision of the Minister of Forests consenting to the removal of certain privately owned land (the “Removed Lands”) from Tree Farm Licence 44 (“TFL 44”); (2) the August 26, 2004 decision of the Chief Forester determining a new allowable annual cut for TFL 44, effective July 9, 2004.
[5] The petitioners seek relief based on an alleged breach of the constitutional duty of the Provincial Crown to consult with them regarding the Crown’s decisions to permit removal of the land from TFL 44 and to amend the allowable annual cut for TFL 44. Alternatively, they seek relief based on an alleged failure of the relevant provincial authorities to comply with the governing statutes and regulations. They seek orders quashing or suspending the two decisions, and referring the matter for reconsideration after there has been consultation and compliance with the statutes.
[6] The respondents oppose the petition on a number of grounds, one of the most significant being that the Removed Lands are privately owned. Their position is that there was no duty on the Crown to consult; if there was any duty, it was met; and if there was any failure in a duty to consult, the relief sought by the petitioners should not be granted in all of the circumstances. Their position is further that the decisions were made in compliance with applicable laws.
[7] The origin of the constitutional duty of the Crown to aboriginal peoples is in s. 35 of the Constitution Act, 1982, which states:
35 (1)
The existing aboriginal and treaty rights of the
aboriginal peoples of
[8] The statutory provision governing the removal of land from a TFL is s. 39.1 of the Forest Act, R.S.B.C. 1996, c. 157, brought into force May 13, 2004:
39.1 (1) The minister may change the boundary or area of a tree farm licence with the consent of its holder.
(2) The discretion of the minister under subsection (1) includes the discretion to change the boundary or area of the tree farm licence with the consent of its holder by
(a) adding private land of the holder of the tree farm licence to the area of the licence, or
(b) removing private land from the area of the licence.
The Ministry of Forests Act, R.S.B.C. 1996, c. 300, provides authority for the Minister to enter into agreements:
6 The minister may
(a) enter
into an agreement or arrangement with any person or province or with
The Forest Act provides for the determination of the allowable annual cut in s. 8, which states in part:
8 (1) The chief forester must determine an allowable annual cut at least once every 5 years after the date of the last determination, for
(a) the Crown land in each timber supply area, excluding tree farm licence areas, community forest agreement areas and woodlot licence areas, and
(b) each tree farm licence area.
[9] Evidence was tendered in the form of affidavits (in a Chambers Record of some 21 volumes). The evidence went in almost entirely without objection, but where objection was taken to evidence or submissions were made as to its weight, I have disregarded the evidence or have taken those submissions into account in weighing it.
II. FACTS
[10] The Hupacasath live near Port Alberni, on Vancouver Island. They assert aboriginal rights and title with respect to some 232,000 hectares of land in central Vancouver Island. They claim that most of the privately owned Removed Lands are within their traditional territory. The territory which they claim is described in the affidavit of Chief Sayers as encompassing:
… the headwaters of the Ash and Elsie River systems in the northwest, east to the height of land on the Beaufort Range and then southeast to Mount Arrowsmith to Labour Day Lake and the Cameron River system; the southeast boundary includes the China Creek, Franklin River, Corrigan Creek Areas and the north part of the Coleman Creek Area; the southern boundary follows Alberni Inlet to Handy Creek then northwest to follow the height of land between Henderson Lake and Nahmint Lake; the west boundary includes the headwaters of the Sproat Lake and Great Central Lake Areas; and including the river beds and lake beds of all bodies of water.
[11] The HFN occupied their claimed traditional territory at the time of first contact with Europeans, according to the evidence they tendered. They have never surrendered their aboriginal rights and title by treaty.
[12] Hupacasath elders deposed that the Hupacasath have names, which pre-date contact, for places found throughout their traditional territory. They have traditionally used the claimed traditional territory for hunting wildlife (including deer and marmot), gathering food and medicinal plants, fishing for trout and salmon (a mainstay of their diet) and harvesting red and yellow cedar for numerous uses, including the building of houses and canoes. The Hupacasath traditionally visited sacred sites throughout their traditional territory for spiritual purposes, and continue to do so. The petitioners’ evidence is that their sacred sites are secret, specific to families, and must be secluded from, and untouched by, other human beings. One particularly important sacred site is Grassy Mountain, which is in the Removed Lands and has never been logged.
[13] The petitioners’ evidence as to their traditional use of the land was not contradicted, although the Crown tendered some evidence regarding overlapping claims to some of the same territory.
[14] Chief Judith Sayers deposed that the Hupacasath have never been conquered. That assertion is questioned by the Crown. Counsel for the Crown referred to some historical sources stating that another First Nation, the Tseshaht, may have been the dominant group in a portion of the land in the upper Alberni Inlet and the lower Somass River at the time the Crown asserted sovereignty in 1846. The Crown also pointed to some evidence that the Ucluelet took another area (called Nahmint) from the Hupacasath. I make no finding on this point, because the scant evidence before me does not permit it, but note that the evidence referred to by the Crown, if accepted, would not on its own ground a conclusion that the Hupacasath had been conquered.
[15] About 50% of the HFN claimed traditional territory is not subject to any competing claim.
[16] With respect to the other 50%, the Tseshaht, Cape Mudge, Comox, Qualicum, Snuneymuxw, Te’mexw, Uchucklesaht and Ucluelet First Nations have advanced claims and indicated consultative boundaries that overlap with some portions of the HFN claimed territory.
[17] The Tseshaht have two Indian Reserves in the middle of the HFN asserted traditional territory. The largest of the Tseshaht Reserves is between two smaller HFN Reserves near the city of Port Alberni.
[18] In 1980 the Nuu-Chah-Nulth Tribal Council, of which the HFN was a member, filed a comprehensive land claim with the federal government.
[19] In 1993, the Nuu-Chah-Nulth Tribal Council provided to the Provincial Crown a Statement of Intent, which included the claims of the HFN, as part of the British Columbia Treaty Process. This led to a Framework Agreement signed with the provincial and federal Crown on March 27, 1996, marking entry into Stage Four of the treaty process.
[20] The HFN provided its own land selection to the Provincial Crown on September 23, 1998. The land selection covered lands in TFL 44, including the Removed Lands, which were then owned by Weyerhaeuser Company Limited (“Weyerhaeuser”).
[21]
On
February 22, 2000, the HFN filed a
Statement of Intent to engage in direct treaty negotiations with
[22] The Removed Lands are located in the centre of Vancouver Island. The area of the Removed Lands is about 70,000 hectares and is largely within the HFN claimed traditional territory. The Removed Lands roughly form a rectangle that runs along the northwest/southeast plane of Vancouver Island, but exclude an area around Port Alberni that stretches northeast. Their western border cuts through the eastern tip of Great Central Lake and Sterling Arm in Sprout Lake, and their eastern border stops short of Home and Cameron Lakes. Smaller pockets of the Removed Lands are located within the borders of TFL 44, primarily around Great Central Lake and Sprout Lake, Alberni Inlet, Bamfield and Ucluelet.
[23] The Removed Lands have been privately owned since 1887 when the Dominion of Canada transferred a tract of land (the “Railway Lands”) to the Esquimalt and Nanaimo Railway Company. The Dominion had received the lands from the British Columbia Government in 1884 under the Settlement Act, 1884, chap. 14 S.B.C. (An Act relating to the Island Railway, the Graving Dock and Railway Lands of the Province)).
[24] MacMillan Bloedel Limited owned the lands for a time, and Weyerhaeuser owned them until May, 2005.
[25] Although the lands have been used for logging for over 100 years, some old growth areas remain untouched.
[26] Making an estimate based on the maps provided in evidence, about 40% of the Removed Lands is not subject to any competing claim from other First Nations.
[27] TFLs are created under the Forest Act, and permit logging by private entities on Crown land.
[28] A TFL may also cover private land. This occurs when an owner of private land adjacent to a TFL on Crown land agrees to have the same TFL extend to cover the private land, in order to permit a unified managed logging operation. In the past, private landowners were given tax incentives, preferential harvesting rights, and other economic incentives to bring their land under a TFL.
[29] Once private land has come under a TFL, the land or an interest in the land cannot be alienated to third parties without the prior written consent of the Minister of Forests (s. 54.7 of the Forest Act). The land cannot be used for other non-forestry purposes (s. 2(1) of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 (“Forest Practices Code”)). The permission of the Minister of Forests must be obtained to remove the land from the TFL (s. 39.1 of the Forest Act).
[30] The Land Title Act, R.S.B.C. 1996, c. 250, s. 281, provides that the Minister of Forests may file a written notice in the Land Title Office showing that land for which indefeasible title is registered has become subject to a TFL. The evidence is silent as to whether the Minister had filed a written notice with respect to the TFL covering the Removed Lands.
[31] Around 1945 the then owner of the Removed Lands held a TFL covering adjacent Crown land and agreed to have the Removed Lands brought under that TFL. Brascan produced evidence that the Removed Lands have been moved in and out of the TFL more than once.
[32] Beginning in about 1995, the Provincial Crown engaged in consultation with the HFN and Weyerhaeuser regarding forestry activity within TFL 44.
[33] John Laing, a Tenures Officer of the Ministry of Forests, deposed that there is “a long history of extensive consultations and accommodations with the [HFN] in relation to forestry operations and activities on TFL 44”. In the exhibits to Mr. Laing’s affidavit, recording consultations with the HFN, there is no indication that those involved in the consultation made a distinction between the private lands and the Crown lands. It appears from the evidence as a whole that in general no distinction was made between the Crown lands and the Removed Lands regarding the fact or degree of consultation.
[34] In 1997, the HFN established a liaison position within the Band to review and respond to forest consultation requests. In 1998, a Joint Forest Council was formed between the Crown and the HFN.
[35] Chief Judith Sayers deposed that the consultation processes dealt with the following concerns: protecting and enhancing fish habitat and rebuilding salmon runs, protecting and enhancing water quality, protecting sacred sites, protecting and managing red and yellow cedar and maintaining old growth trees, protecting culturally modified trees, protecting and enhancing bird and wildlife habitat, protecting uncommon tree and plant species such as Yew which are used for cultural and medicinal purposes, and providing access to the territory for HFN members to exercise spiritual practices and aboriginal hunting and fishing rights. She swore that between 1998 and June 2004, the HFN and Weyerhaeuser met almost monthly to consult on forestry-related issues and by 2001 had developed an efficient process for considering and integrating aboriginal interests into the operational-level planning of forestry operations, with the result that Ministry intervention was rarely required.
[36] On August 6, 1999, following public consultations, the MacMillan Bloedel Parks Settlement Agreement, written by David Perry (the “Perry Report”) was submitted to government regarding the contemplated removal of private lands from TFL 44 and TFL 39. The report concluded that such a transfer might impinge on aboriginal rights because any removed lands would be subject to the much less restrictive private forest regulations.
[37] On November 30, 2000, Weyerhaeuser entered into a Memorandum of Understanding with the HFN, which included a consultation protocol regarding the Ash River lands, which at that time were being transferred from the Crown to Weyerhaeuser. They form part of the Removed Lands.
[38] In 2001, Weyerhaeuser published a document (Coastal Competitive Reform: A Proposal for Market-based Stumpage and Tenure Diversification for Coastal B.C., October 2001) in which it referred to the economic benefits of removing private lands from Tree Farm Licences. The document states:
4.2.2 Removal of Private Lands from TFLs
A few coastal companies have private land within their Tree Farm Licences (TFLs). Private land within TFLs is managed to the Forest Practices Code. Private land outside TFLs is managed to the lower cost and results-based private forest land regulations. Private land inside the TFLs is subject to an AAC approval from the Chief Forester of the Ministry of Forests. Private land outside TFLs is subject to an economic harvest regime. Private land inside the TFLs is subject to provincial log export restrictions with the logs financially restricted for being exported. The value of removing private lands from the TFLs is attributed to those three areas: 1) regulatory cost reduction; 2) harvest rate benefit; and 3) log export benefit.
[39] On October 1, 2003, the HFN announced that it had completed the first phase of a Land Use Plan for its claimed traditional territory.
[40] Weyerhaeuser wrote to the Minister of Forests on December 5, 2003, requesting removal of private land from both TFL 39 and TFL 44.
[41] Counsel for the petitioners advised the court that the petitioners filed a writ (Van. Reg. No. SO36690) claiming aboriginal title to their traditional territory on December 10, 2003, in order to avoid a possible limitations defence.
[42] The West Island Woodlands Community Advisory Group (“WIWAG”) was formed around 1998. It was sponsored by Weyerhaeuser in compliance with one of the requirements for certification by the Canadian Standards Association (“CSA”). It is composed of representatives from various sectors, including regional and city governments, small businesses, Parks Canada, woodlot owners, sawmill owners, logging contractors, First Nations (Hupacasath and Tseshaht), environmental organizations, Ministry of Forests and contractors.
[43] The CSA Standard 5.2 (in Sustainable Forest Management: Requirements and Guidance) states:
5.2 Interested Parties
The organization shall
a) openly seek representation from a broad range of interested parties, including DFA-related workers, and invite them to participate in developing the public participation process;
b) provide interested parties with relevant background information;
c) demonstrate through documentation that efforts were made to contact Aboriginal forest users and communities affected by or interested in forest management in the DFA;
d) demonstrate through documentation that efforts were made to encourage Aboriginal forest users and communities to become involved in identifying and addressing SFM values;
e) recognize Aboriginal and treaty rights and agree that Aboriginal participation in the public participation process will not prejudice those rights;
f) establish and maintain a list of interested parties, including those that chose to participate, those that decided not to participate, and those that were unable to participate. The list shall contain names and contact information, as well as any links to the organization.
[44] The WIWAG minutes show that on September 19, 2002, Tom Holmes of Weyerhaeuser made a presentation to WIWAG in which he advised WIWAG that Weyerhaeuser was “trying to change the status of Private Lands inside of the TFL”.
[45] The minutes of the January 8, 2004 meeting of WIWAG state that “[t]he rumor mill has indicated that Private Lands currently in TFL #44 will be taken out of the Tree Farm Licence by March”, that the group asked Steve Chambers of Weyerhaeuser for more information, and that he inquired and reported that Weyerhaeuser was not aware of this development.
[46] On February 12, 2004, Stan Coleman, the Unit Manager (West Island Timberlands) for Weyerhaeuser, advised a WIWAG meeting that Weyerhaeuser was “actively seeking to remove its private lands from TFL 44” and addressed “the likely management practices that would apply on those lands after their removal”. There was further discussion about the “fate of the private lands in the TFL” at the WIWAG meeting of May 13, 2004.
[47] The minutes of the meetings show that Tawney Lem attended as the HFN representative at all of these meetings and that, with the exception of the September 19, 2002 meeting, there was apparently no representative of the Provincial Crown present.
[48] Chief Sayers deposed, and her evidence was not contradicted in this respect, that no representative of the Minister or Chief Forester ever contacted her or any other HFN representative to propose consultation regarding the removal of the lands from the TFL.
[49] On June 11, 2004, Chief Sayers, at a meeting with Weyerhaeuser discussing the Removed Lands, proposed certain conditions before Weyerhaeuser could “get the land out”.
[50] Tawney Lem and Judith Sayers both deposed that they believed that Weyerhaeuser and the government were having discussions, but did not know that Weyerhaeuser had made formal application for permission to remove the lands.
[51] The evidence thus shows that the HFN (through WIWAG meetings with Weyerhaeuser) became aware of Weyerhaeuser’s desire to remove the lands from the TFL as early as 2002, and learned of the company’s pursuit of the issue with government in early 2004. The evidence does not show, however, any formal consultation or indeed any discussion between the Minister or other agent of the Crown and the HFN regarding Weyerhaeuser’s initiative.
[52] The Minister of Forests made the removal decision on July 9, 2004, pursuant to the newly-enacted s. 39.1 of the Forest Act. In his letter advising of the decision, the then Minister, the Honourable Michael DeJong, set out a number of terms and conditions. These were:
Future Forest Management
Subject to applicable law and Weyerhaeuser’s operation, risk management and other needs, the current status of “managed forest” on the private property will continue and be subject to all applicable legislation and regulations within the Private Managed Forest Land Act that governs planning, soil conservation, harvesting rate and reforestation. Variable retention and stewardship zoning on old growth areas will be maintained indefinitely. Federally, the Department of Fisheries and Oceans and the Species at Risk Act will govern fish habitat and wildlife issues.
Water Quality
Private Forest Watershed Assessment Plan (PFWAP) for key community watersheds will be developed in collaboration with the Ministry of Sustainable Resource Management, Department of Fisheries and Oceans, local stream keepers and municipal governments. Weyerhaeuser will commit to periodic follow-up meetings with impacted stakeholders to verify the commitments have been kept. Weyerhaeuser commits to initiating a PLWAP on the China Creek Watershed within 1-year of closing and other communities with high fisheries value watersheds, within private lands, will be prioritized for PLWAP within 1-year of closing.
Critical Wildlife Habitat
Weyerhaeuser will maintain all current critical wildlife habitat areas within the subject private lands for 2 years while a long-term plan for protecting Ungulate Winter Ranges and Wildlife Habitat Area #1-002 is developed with the Ministry of Water, Land and Air Protection.
Certification
Weyerhaeuser will maintain ISO and/or CSA certifications and continue to subject the private lands to the public advisory as per CSA standards.
Access (Road Systems)
Weyerhaeuser will maintain current access for the public, industrial road user and aboriginal groups.
Log Exports
Weyerhaeuser will maintain its commitment to a voluntary moratorium of log exports from the private lands authorized by this letter for removal from the TFL until February 1, 2006.
Research Installations
Within 60 days of the date of this letter, Weyerhaeuser will enter into a Memorandum of Understanding that reconfirms the relationship between the Ministry of Forests and Weyerhaeuser regarding ministry research installations located on the private lands.
First Nations Consultation
Based on the commitment by Weyerhaeuser with respect to the managed forest designation, land-use does not change significantly. If Weyerhaeuser’s use of its private land will interfere with an exercise of an aboriginal right, Weyerhaeuser will endeavour to provide notice and the period of time the areas would be affected.
Powell River Canoe Route
Identifying the canoe route as a high value recreation feature for the Powell River community, subject to applicable law and Weyerhaeuser’s operational and risk management needs, Weyerhaeuser in consultation with CSA Community Advisory Group commits to maintaining its protection. This commitment to maintain this important recreational feature will be maintained for the duration of the Forest Stewardship Plan.
Allowable Annual Cut (AAC) Determination
Due to the significance of the private land deletion and its impact on the AAC determination for TFLs 39 and 44, I expect the chief forester will make a new AAC determination reflecting the reduction in size of the TFLs effective the date the private lands are removed.
[53] The HFN received notice of the removal decision on July 13, 2004, and on July 19, 2004, gave notice to the Minister of Forests that it considered that the removal decision infringed its aboriginal rights and title. The HFN informed the Minister that accommodation of HFN rights could be achieved by respecting the HFN Land Use Plan and on August 12, 2004, Chief Sayers outlined a list of conditions that Weyerhaeuser would have to satisfy in order to gain HFN acceptance of the removal decision.
[54] Weyerhaeuser informed the HFN on August 20, 2004, that Weyerhaeuser no longer had an obligation to consult with them with respect to activities on the Removed Lands.
[55] On August 26, 2004, the Deputy Chief Forester amended the allowable annual cut for TFL 44, retroactive to July 9, 2004. In his Rationale for AAC Adjustment Resulting from the Deletion of Private Lands (the “Amendment Rationale”), the Deputy Chief Forester stated:
I am satisfied that the assessment provided by Weyerhaeuser is a reasonable portrayal of the impact of reducing the THLB assumed in the 2003 AAC determination. Based on the assessment, my knowledge of the previous analysis, and on expert advice from Ministry staff, I hereby determine that the AAC for TFL 44 is 1 327 000 cubic metres, effective July 9, 2004
Within the AAC, I also conclude that harvesting in the Clayoquot Working Circle should not exceed 29 hectares per year.
[56] The evidence shows that the amendment was based on a Weyerhaeuser assessment and was simply mathematical; the allowable annual cut was reduced by the proportion that the Removed Lands bore to the total TFL area. Kenneth Baker, the Deputy Chief Forester at the time, deposed that the information and factors on which the original determination had been based 13 months earlier had not changed, that he had considered “concerns regarding identified wildlife, wildlife habitat and retention of old growth forests”, and that he decided on that basis that a proportional reduction was appropriate.
[57] The province confirmed in September, 2004, that it was ready to resume Stage Four treaty negotiations with the Hupacasath directly.
[58] Weyerhaeuser advised the HFN of the allowable annual cut amendment on September 14, 2004.
[59] In October 2004, Brascan began to negotiate with Weyerhaeuser for the purchase of all of Weyerhaeuser’s coastal forestry assets and operations. Brascan has produced evidence, which was uncontradicted, that the removal of the privately owned lands from TFL 44 was a critical consideration in its decision to proceed with the transaction. Its business plan was based on the premise that it would be able to conduct two different logging operations, through two different entities, under different management regimes for the Crown land than for the private land. Unlike lands in the TFL system, private timberlands can be “harvested to market”, thus allowing private owners to harvest the species commanding the best prices in the market. A further benefit for private owners is that they are not subject to TFL restrictions on the export of logs that are surplus to the demands of domestic mills.
[60] The Tseshaht First Nation entered into a Forest and Range Agreement with the Minister of Forests on October 15, 2004, providing the Tseshaht with access to two non-replaceable licences to harvest timber on TFL 44, in areas forming part of the asserted traditional territory of both the Hupacasath and the Tseshaht.
[61] On November 16, 2004, the District Manager of the South Island Forest District sent the HFN the Amendment Rationale for the allowable annual cut amendment.
[62] The Supreme Court of Canada handed down its decisions on November 18, 2004, in Haida First Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74. The Court held that although there is a duty on the Crown to consult with and accommodate the interests of aboriginal peoples, there is no obligation on third parties (such as Weyerhaeuser) to consult and accommodate, overturning the British Columbia Court of Appeal on that point.
[63] Brascan made a proposal to Weyerhaeuser on December 6, 2004, regarding the purchase of Weyerhaeuser’s coastal timber assets, including the Removed Lands. Weyerhaeuser accepted that proposal on December 14, 2004. The parties entered into an exclusivity agreement, which thereafter precluded Brascan from making inquiries of the Crown or of the HFN regarding the legal validity of the removal decision.
[64] This petition was filed on December 15, 2004, and Brascan learned of it on December 16, 2004.
[65] Weyerhaeuser and Brascan publicly announced the agreement for purchase and sale on February 17, 2005, and government approvals were obtained.
[66] The petitioners applied for an order enjoining the completion of the sale pending consultation and accommodation. Madam Justice Ross refused that application on March 11, 2005 (Hupacasath First Nation v. British Columbia (Minister of Forests), [2005] 2 C.N.L.R. 138, 2005 BCSC 345), finding that although there was a triable issue and the potential for irreparable harm, the balance of convenience did not favour granting interim relief.
[67] On April 27, 2005, Weyerhaeuser was joined as a party to the petition by consent and an amended petition was filed.
[68] The sale to Brascan for the total purchase price of $1.4 billion closed on May 30, 2005. The purchase included 258,000 hectares of privately owned timberlands, the annual harvesting rights to 3.6 million cubic metres of Crown timberlands, five coastal sawmills and two remanufacturing facilities.
[69] After receiving Weyerhaeuser’s coastal assets, Brascan transferred the Removed Lands to Island Timberlands GP Ltd. to be held beneficially for Island Timberlands Limited Partnership (“Island Timberlands”) and it transferred its interest in TFL 44 and the Crown land based operations to Cascadia Forest Products Ltd. (“Cascadia”). Island Timberlands is a limited partnership in which Brascan holds the majority interest and Cascadia is a wholly owned subsidiary of Brascan. (I was advised by counsel for Brascan on November 28, 2005 that Brascan has agreed to sell Cascadia to Western Forest Products Inc., a public company in which Brascan has an indirect non-controlling interest, subject to government approvals.)
[70] For convenience, however, I will refer to Brascan as both the owner of the Removed Lands and the holder of TFL 44.
[71] Brascan considers that Island Timberlands will be significantly more profitable than Cascadia because Island Timberlands will be able to operate outside the more restrictive conditions of the TFL.
[72] On May 30, 2005, Mr. Justice Goepel granted interim relief requiring Brascan to provide the petitioners with seven days notice of any intention to use the Removed Lands in a manner that will interfere with the exercise of an aboriginal right by the petitioners. At the conclusion of the hearing of this petition, I continued that order pending judgment.
III. ISSUES
[73] I will address the issues in the following sequence:
A. Duty to Consult
(1) The Foundational Principles
(2) The Legal Test
(3) Knowledge of the Crown
(4) Contemplated conduct affecting aboriginal rights
a. Could the HFN have aboriginal rights or title with respect to the Removed Lands?
b. Did the Crown contemplate conduct that might adversely affect HFN rights?
(5) The Crown’s duty
a. What was the nature and scope of the Crown’s duty?
b. Did the Crown fulfill its duty to consult and accommodate?
(6) Amendment to the allowable annual cut
(7) Remedy
B. Compliance with Provincial Statutory Requirements
C. Summary of Conclusions
IV. ANALYSIS
A. Duty to Consult
(1) The Foundational Principles
[74] In R. v. Van der Peet, [1996] 2 S.C.R. 507 at paras. 30-31, Lamer C.J.C., for the majority, described the nature and origin of the aboriginal rights protected under s. 35(1) of the Constitution Act, 1982:
In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.
More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [emphasis in original]
[75]
In
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, the Supreme Court of
[76]
The
Court held that aboriginal rights cannot be extinguished by provincial laws
of general application. It stated that constitutionally recognized aboriginal
rights fall along a spectrum. At one end of the spectrum are those aboriginal
rights which relate to practices, customs and traditions integral to the distinctive
aboriginal culture of the group claiming the rights but where the degree of
use and occupation of the land is insufficient to support a claim of aboriginal
title (para. 138). At the other end of the spectrum is aboriginal title
itself. The Court stated that s. 35(1) of the Constitution
Act, 1982, whose purpose is to reconcile the prior presence of aboriginal
peoples in
[77] In R. v. Marshall; R. v. Bernard, [2005] 3 C.N.L.R. 214, 2005 SCC 43, the Supreme Court of Canada elaborated on what it had previously said about the nature of aboriginal title. The accused had argued that as Mi'kmaq Indians, they were not required to obtain provincial authorization to log because they have a right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title.
[78] The Court held that aboriginal title is one of the aboriginal rights and that, in order to prove aboriginal title, the claimant must establish aboriginal practices that indicate possession similar to that associated with title at common law. To establish title, claimants must prove “‘exclusive’ pre-sovereignty ‘occupation’” of the land (referring to Delgamuukw at para. 143) (para. 55). The Court said (at paras. 56-57) that “occupation” means physical occupation and that “exclusive occupation” means “the intention and capacity to retain exclusive control”. The latter is not negated by occasional acts of trespass or the presence of other aboriginal groups with consent. Shared exclusivity could result in joint title and non-exclusive occupation may establish aboriginal rights short of title.
[79] The Chief Justice wrote at para. 38:
Where title to lands formerly occupied by an aboriginal people has not been surrendered, a claim for aboriginal title to the land may be made under the common law. Aboriginal peoples used the land in many ways at the time of sovereignty. Some uses, like hunting and fishing, give rights to continue those practices in today's world: see R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Nikal, [1996] 1 S.C.R. 1013. Aboriginal title, based on occupancy at the time of sovereignty, is one of these various aboriginal rights.
[80] Aboriginal rights refer to specific independent rights, such as the right to hunt or fish and they are not derivative of aboriginal title. This point is highlighted at para. 53:
Different aboriginal practices correspond to different modern rights. This Court has rejected the view of a dominant right to title to the land, from which other rights, like the right to hunt or fish, flow: R. v. Adams, [1996] 3 S.C.R. 101, at para. 26; R. v Côté, [1996] 3 S.C.R. 139, at paras. 35-39. It is more accurate to speak of a variety of independent aboriginal rights.
[81] A claim to aboriginal title must be subject to a stringent test, and evidence to establish a claim to aboriginal title must correspond to the core element of a fee simple, that is, it must show “exclusivity” (para. 40). At para. 77 the Court stated:
… [t]he common law right to title is commensurate with exclusionary rights of control. That is what it means and has always meant. If the ancient aboriginal practices do not indicate that type of control, then title is not the appropriate right. To confer title in the absence of evidence of sufficiently regular and exclusive pre-sovereignty occupation,