Date: 19990323 Docket: C981165 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: LUUXHON also known as GUY MORGAN, GAMLAXYELTQUE also known as SOLOMON MARSDEN, SINDIHL also known as ROBERT GOOD, WIDAXHAYETSXW also known as BARNEY GOOD, TSIIWA also known as HERB RUSSELL, GWINUU also known as GODFREY GOOD, GWASSLAM also known as ABEL CAMPBELL, WIILITSQUE also known as ABEL CAMPBELL, WIILITSQUE also known as MORRIS DERRICK, MALII also known as GORDON JOGHNSON, HAIZIMSQUE also known as KEN RUSSELL, on behalf of themselves and in their capacity as the GITANYOW HEREDITARY CHIEFS and on behalf of all members of GITANYOW FIRST NATION PLAINTIFFS AND: HER MAJESTY THE QUEEN IN RIGHT OF CANADA AND: THE ATTORNEY GENERAL OF CANADA, representing Her Majesty The Queen in Right of Canada AND: HER MAJESTY THE QUEEN IN RIGHT OF BRITISH COLUMBIA DEFENDANTS AND: NISGA'A TRIBAL COUNCIL INTERVENER REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE WILLIAMSON (IN CHAMBERS) Counsel for the Plaintiffs: Peter R. Grant Peter W. Hutchins Julia Quon Counsel for the Defendant Her Majesty the Queen in Right Patrick G. Foy, Q.C. of British Columbia: Shawn C.D. Neylan Counsel for the Defendant Her Majesty the Queen in Right of Canada: John J.L. Hunter, Q.C. Counsel for the Nisga'a Tribal Council: Ronald J. Shulman Place and Dates of Hearing: Vancouver, B.C. January 18, 19, 20, 21 and 22, 1999. [1] In the well known Supreme Court of Canada decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at p.1123, Lamer C.J.C., in the context of urging that aboriginal claims be settled by negotiation rather than by litigation, wrote: ... the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. [2] The plaintiffs, hereditary Chiefs of the Gitanyow First Nation, submit the Crown's obligation to negotiate in good faith is a legal duty. They seek a declaration in the following terms: ... that the Crown in Right of Canada and the Crown in Right of British Columbia in undertaking to negotiate a treaty with the Gitanyow within the framework of the British Columbia treaty process and in proceeding with those treaty negotiations are obliged to negotiate a treaty in good faith with the Gitanyow and to make every reasonable effort to conclude and sign a treaty with the Gitanyow with the objective of securing Gitanyow rights through treaty and constitutional protection and that all representatives of the Crown in Right of Canada and the Crown in Right of British Columbia are bound by such duty. [3] Should a declaration be granted in these terms, the plaintiffs seek a second declaration that the defendants, having commenced treaty negotiations with the plaintiffs, are in breach of the duty to negotiate in good faith. Proceedings with respect to the second declaration have been adjourned pending the outcome of this application. [4] The defendants Her Majesty the Queen in Right of Canada and the Attorney General of Canada ("Canada") and Her Majesty the Queen in Right of British Columbia ("the Province") oppose the granting of the declaration. The Intervener takes no position on this application. [5] It is common ground that the Gitanyow First Nation, Canada and the Province have entered negotiations governed by the British Columbia treaty process. [6] The Province has submitted that some of the documents which have been filed are part of a treaty negotiation process underway between Canada, the Province and the Gitanyow and are therefore privileged. I have not been persuaded this is so, and will discuss this objection later in these reasons. [7] In these proceedings, Canada has acknowledged that the honour of the Crown is always engaged in its dealings with aboriginal peoples, and that, as a matter of honour, it must conduct negotiations, including those with the Gitanyow, in good faith. Indeed, Canada says it will do so. But, Canada submits the British Columbia treaty process, by which those negotiations are carried out, is not amenable to judicial supervision. While there is a moral obligation, it argues, there is no legal obligation to negotiate in good faith. [8] The Province concedes it is not permitted to enter into these negotiations "in bad faith", but it argues the British Columbia treaty process is a unique regime, voluntarily entered into by all parties who in doing so expressly agreed upon the role of each of the participants. It says this process, to which all parties consented, contemplates the Crown representing non-aboriginal interests, and the supervision of the process by the statutorily created Treaty Commission. It is a process, the Province submits, with which the court should not interfere. [9] In British Columbia, in the circumstances which now pertain, this specific issue has not been considered by a court. The matter is complicated by the fact that when dealing with aboriginal claims, and in particular "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown" (R. v. Van der Peet, [1996] 2 S.C.R. 507 at 539) traditional rules and concepts in domestic statutory and common law do not always appear to fit precisely. [10] The answers are often to be found in principle, in history and, of course, in the many judgments in the area which have emanated from the Supreme Court of Canada and other appellate tribunals in the last few years. [11] I propose to approach this task in the following order: the historical background in British Columbia; the British Columbia treaty process; the fiduciary position of the Crown with respect to First Nations peoples; the submissions of the Crown; the privilege issue; and the various aspects of the declarations sought. Background [12] Long before the creation of the colony and later the Province of British Columbia, the Crown negotiated treaties with First Nations just as they did and do with foreign nations. This is confirmed in the 1996 Report of the Royal Commission on Aboriginal Peoples, and in many judicial authorities in Canada and the United States. [13] In 1832, in Worcester v. State of Georgia 31 U.S. 515 (1832), Chief Justice Marshall, at p.560, observed that in using the words "treaty" and "nation" we have: ... applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. [14] In R. v. Sioui, [1990] 1 S.C.R. 1025, Lamer J., as he then was, reviewed the history of relations between both the French and British Crowns and native peoples, and concluded at p.1053 that: ... the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations. [15] In British Columbia, the aboriginal peoples were not so regarded. With minor early exceptions, treaties were not negotiated and aboriginal rights and title remained unextinguished and undefined. Despite repeated requests and entreaties by native peoples, their claims were ignored. Eventually, the Indian Act was amended to make it illegal to raise money to pursue legal claims against the Crown. [16] This unfortunate piece of legislation was repealed in 1951. Aboriginal peoples renewed their claims, and by the l960s the significance of the Crown's assurances to native peoples began to be recognized in the courts. [17] In R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.), aff'd (1965), 52 D.L.R. (2d) 481 (S.C.C.), Norris J.A., speaking for himself on a five person court but concurring in the result with the majority, reviewed the history of treaties with First Nations in North America. He observed that the word "treaty", in the context of the Crown and aboriginal peoples, embraced all: ... engagements made by persons in authority as may be brought within the term "the word of the white man" the sanctity of which was, at the time of the British exploration and settlement, the most important means of obtaining the good-will and co-operation of the native tribes and ensuring that the colonists would be protected from death and destruction. On such assurances the Indians relied. [18] The Nisga'a Nation continued to pursue its claim in the l960s, and eventually sought relief in the courts. In 1973, in Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, six of seven justices found that aboriginal title is derived from the native peoples historical possession and occupation of their lands. However, only three concluded that the aboriginal title of the Nisga'a First Nation had not been extinguished (three others decided to the contrary and a seventh did not decide the point). [19] Subsequently, and probably as a result of Calder, the federal government established a land claims process and began to negotiate with the Nisga'a. The Province, however, remained intransigent, denying the validity of land claims and declining to participate. [20] The position of the Province changed in 1990 after the trial decision in Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97, when, as counsel for the plaintiffs put it, "after 130 years" the Province agreed to become involved in tripartite discussions. A tripartite Task Force, with terms of reference endorsed by Canada, British Columbia and the First Nations Summit ("the Summit"), an association of some 135 Indian bands within British Columbia, was established to consider ways in which meaningful negotiations could proceed. [21] In June 1991, the Task Force reported. It made 19 recommendations, all of which were accepted by Canada, the Province and the Summit. As these recommendations are the genesis of the British Columbia treaty process, I set them out in full: 1. The First Nations, Canada, and British Columbia establish a new relationship based on mutual trust, respect, and understanding - through political negotiations. 2. Each of the parties be at liberty to introduce any issue at the negotiation table which it views as significant to the new relationship. 3. A British Columbia Treaty Commission be established by agreement among the First Nations, Canada, and British Columbia to facilitate the process of negotiations. 4. The Commission consist of a full-time chair-person and four commissioners - of whom two are appointed by the First Nations, and one each by the federal and provincial governments. 5. A six-stage process be followed in negotiating treaties. 6. The treaty negotiation process be open to all First Nations in British Columbia. 7. The organization of First Nations for the negotiations is a decision to be made by each First Nation. 8. First Nations resolve issues related to overlapping traditional territories among themselves. 9. Federal and provincial governments start negotiations as soon as First Nations are ready. 10. Non-aboriginal interests be represented at the negotiating table by the federal and provincial governments. 11. The First Nation, Canadian, and British Columbian negotiating teams be sufficiently funded to meet the requirements of the negotiations. 12. The commission be responsible for allocating funds to the First Nations. 13. The parties develop ratification procedures which are confirmed in the Framework Agreement and in the Agreement in Principle. 14. The commission provide advice and assistance in dispute resolution as agreed by the parties. 15. The parties select skilled negotiators and provide them with a clear mandate, and training as required. 16. The parties negotiate interim measures agreements before or during the treaty negotiations when an interest is being affected which could undermine the process. 17. Canada, British Columbia, and the First Nations jointly undertake public education and information programs. 18. The parties in each negotiation jointly undertake a public information program. 19. British Columbia, Canada, and the First Nations request the First Nations Education Secretariat, and various educational organizations in British Columbia, to prepare resource materials for use in the schools and by the public. [22] In September of 1992, the three parties executed the British Columbia Treaty Commission Agreement ("the Agreement"). In this document, Canada agreed to introduce legislation to establish the Commission referred to in recommendation no. 3 above, as did the Province. The role of the Commission was stated to be "... to facilitate the negotiation of treaties ..." and the Agreement set out in detail criteria for assessing the readiness of the parties to commence negotiations. The Agreement also mandated the Commission to report annually to Parliament and the Legislative Assembly, and stated specifically that the 1991 Task Force Report could be used as an aid to the interpretation of the Agreement. [23] The Legislative Assembly and Parliament subsequently passed the required legislation: Treaty Commission Act, R.S.B.C. 1996, c.461, and British Columbia Treaty Commission Act, S.C. 1995, c.45. In May of 1995, the Summit adopted a companion resolution. Thus, all three parties to the Task Force were now committed to the treaty process. The British Columbia Treaty Process [24] It is important to note that the First Nations now involved in treaty negotiations were not parties to the 1992 Agreement. The process itself, however, requires participating First Nations to execute a "framework agreement" which binds them to the terms of that document. [25] The process involves six stages: Stage 1 Filing a Statement of Intent to Negotiate a Treaty Stage 2 Preparing for Negotiations and Assessing Readiness Stage 3 Negotiating a Framework Agreement Stage 4 Negotiating an Agreement in Principle Stage 5 Negotiating a Final Treaty Stage 6 Implementing the Treaty The Gitanyow Negotiations [26] In a letter dated December 15, 1993, the plaintiffs wrote to the then Chief Commissioner of the B.C. Treaty Commission, setting out their intention to enter into treaty negotiations. The letter said: Kindly accept this letter as our Statement of Intent to enter into treaty negotiations on behalf of the Gitanyow people and pursuant to the Agreement reached among the First Nations Summit, the Provincial Crown and the Federal Crown. The Gitanyow Hereditary Chiefs' Office has been mandated by the members of the eight Gitanyow Houses to pursue this negotiation. Each House Chief is responsible for territory within the Gitanyow claim area in Northwest British Columbia. We enclose a map of our traditional territory with this letter. [27] By a letter dated September 22, 1993, the Commission notified the plaintiffs that their Statement of Intent had been accepted as complete. At a meeting held February 1, 1994, Canada, the Province, and the Gitanyow Nation agreed to submit readiness papers to the Commission, and the two governments committed themselves: ... to negotiate a treaty with the Gitanyow Nation according to [the] process established by the B.C. Treaty Commission Agreement and the B.C. Claims Task Force Report. [28] On February 6, 1996, the parties executed the Gitanyow Framework Agreement between Canada, the Province, and the plaintiffs. It confirmed the three parties were committed to negotiate a treaty in accordance with the British Columbia Treaty Commission process. The parties, then, have completed stage 3 of the process, and are now engaged in negotiations aimed at concluding an Agreement in Principle. [29] Thus we come to the issue. In these negotiations, is the Crown, in Right of Canada or of British Columbia, subject to a legal obligation to negotiate in good faith? I conclude the Crown is so bound, although for reasons which I will set out below I would not issue a declaration in the terms sought by the plaintiffs. Analysis [30] As early as the Royal Proclamation of 1763 it was recognized that aboriginal peoples "who live under our [the Crown's] protection" should not be disturbed. That this relationship involved "trust like" responsibilities is evident upon a reading of modern cases such as Guerin v. The Queen, [1984] 2 S.C.R. 335 and R. v. Sparrow, [1990] 1 S.C.R. 1075. [31] In Guerin, the government leased surrendered Musqueam Band lands to a golf course on much less favourable terms than the Musqueam had understood at the time of the surrender. The court found that the Crown owed a fiduciary obligation to the Indians with respect to the lands, and at p.376, said that: ... the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect. And further, at p.379: It does not matter, in my opinion, that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized aboriginal title in traditional tribal lands. [32] Guerin dealt with the alienation of Indian land. But the fiduciary obligation described in that case was affirmed in Sparrow, a case concerning aboriginal fishing rights. Sparrow not only confirmed that the Crown had a fiduciary relationship with aboriginal peoples extending to land and to rights, it explained the relationship between that fiduciary obligation and s.35(1) of the Constitution Act, 1982. That section reads: 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. At p.1109, the Chief Justice wrote: There is no explicit language in the provision that authorizes this Court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet, we find that the words "recognition and affirmation" incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s.91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s.35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle enunciated in Nowegijick, supra ([1983] 1 S.C.R. 29), and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada as suggested by Guerin v. The Queen, supra. [33] This expressed relationship between the longstanding fiduciary duty the Crown owes aboriginal peoples and the 1982 constitutional entrenching of s.35(1) is of particular significance to the case at bar in light of the earlier comment in Sparrow, at p.1105, that s.35(1): ... at the least, provides a solid constitutional base upon which subsequent negotiations can take place. [34] I add that s.35(3) says: (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. [35] Thus, the constitutional provision providing the basis for subsequent negotiations itself incorporates aspects of the fiduciary relationship. It is difficult to conclude that the negotiations themselves may oust that trust like obligation. [36] While Sparrow specifically recognizes that the constitution contemplates challenges to policy objectives embodied in legislation, the court observed at p.1110 that: The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. [37] It follows that the legislation establishing the B.C. treaty process must be examined in light of s.35(1) which imports the unique fiduciary relationship existing between the Crown and the plaintiffs. [38] The evidence discloses that the three parties who designed the B.C. treaty process were cognizant of this principle. I noted above that when Canada, the Province, and the Summit executed the British Columbia Treaty Commission Agreement in September of 1992, they included a provision that the June 28, 1991, Report of the British Columbia Claims Task Force could be used as an aid to interpretation. The Task Force report said at p.18: Important to the relationship between the Crown and aboriginal peoples is the concept of the fiduciary duty owed by the Crown. This duty is rooted in history and reflects the unique and special place of aboriginal peoples in Canada. The treaty-making process will define and clarify the terms of the new relationship between the Crown and aboriginal peoples but it cannot end the Crown's fiduciary duty. The determination of the extent to which fiduciary duty continues to exist is a matter for the courts. [39] Similarly, the Gitanyow Framework Agreement, which incorporates s.35(1) in its preamble, sets out in s.10.1 that nothing in the agreement is intended to "deny or amend any of the rights of the parties". [40] I conclude that the longstanding fiduciary relationship between aboriginal peoples and the Crown, involving as it does the honour of the Crown, and recognized and affirmed as it is in s.35(1) of the Constitution Act, cannot be displaced simply because the Crown and First Nations enter into negotiations concerning aboriginal title and/or rights. [41] This conclusion is supported by Nunavik Inuit v. Canada (Minister of Canadian Heritage) (1998), 164 D.L.R. (4th) 463 (F.C.T.D), a decision which I am told has not been appealed, in which Richard A.C.J. found that the Crown, having entered into negotiations with the Makivik Inuit people pursuant to a framework agreement, was bound to act in good faith. Nunavik is particularly apposite because, like this case, it is about process. [42] The Crown seeks to distinguish Nunavik on the grounds that it is not a case involving the unique B.C treaty process and that the governing framework agreement in that case expressly requires the parties to negotiate in good faith. In my view these factors are not significant. A review of Richard A.C.J.'s analysis, in particular the section on the "Obligation to Consult and Negotiate" commencing with paragraph 83, discloses he did not rely upon the specific process or the framework agreement. Rather, he relies upon the jurisprudence and upon s.35(1). [43] In paragraph 105, Richard A.C.J. sets out a number of principles which he concludes can be drawn from the jurisprudence: a) It is the role of the court to assist and further the negotiating process. Where the federal government has agreed to negotiate claims, the public anticipates that the claims will be resolved by negotiation and by settlement. b) Subsection 35(1) represents the recognition of Aboriginal rights in the treaty process and the government's obligation within that process; it is a specific constitutional basis upon which subsequent negotiations can take place and requires a just settlement for aboriginal peoples. c) A treaty process is entered into for the mutual benefit of both the Crown and the aboriginal peoples; it should be solemnly respected. d) The relationship between the Crown and the aboriginal peoples, as well as the dealings between the parties should be given a generous interpretation in favour of the aboriginal peoples. e) The honour of the Crown is at stake in its dealings with the aboriginal people. f) There are additional considerations in cases involving Aboriginal rights. The fiduciary duty is enforceable and includes protection against unwarranted effects upon the aboriginal interests. g) The government's responsibility to safeguard the aboriginal peoples' interests is equally applicable to the rights which relate to the land and the native interest in the land. h) The federal jurisdiction and responsibilities pursuant to subsection 91(24) are tied to section 35 as well. The treaty process encompasses the transactions of aboriginal rights as well as aboriginal title. (emphasis added) [44] It can be seen that Nunavik imports the honour of the Crown and its fiduciary obligation to act in good faith into the treaty negotiation process. Does the fiduciary obligation extend to the Province? [45] British Columbia, while conceding it is now settled that a fiduciary relationship arises in some contexts between the "Federal Crown" and aboriginal peoples, has been careful to not make that concession with respect to the Province. Although the Province agrees it may not act in bad faith in negotiating with aboriginal peoples, the implication of its position is that the duty to act in good faith aspect of the fiduciary obligation subsisting in the Crown prior to confederation passed to the Queen in Right of Canada with the constitutional assigning of responsibilities for Indians and lands reserved for Indians to the federal government in the British North America Act of 1867. I am not persuaded either upon principle or upon the authorities. [46] In my view, this position is based upon an unfortunate tendency to speak of "two crowns" in Canada. There is only one Crown. The Crown "is not and never has been divisible": see Southin J.A., in dissent, in B.C. (A.G.) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 156 (C.A.), writing upon a point with which the majority did not disagree. [47] In 1867, the powers, duties and responsibilities of the Crown pre-Confederation were enumerated and assigned to either the Crown in Right of Canada and or the Crown in Right of the Provinces. But, as can be seen above, the fiduciary obligation of the Crown which characterized its relationship with aboriginal peoples continued after 1867 as before. As a result, in its dealings with native peoples within its jurisdictional powers, the Crown in Right of British Columbia must act in light of that duty even as its predecessor, the Crown of colonial times, should have done. [48] In R. v. Badger, [1996] 1 S.C.R. 771, the court applied the reasoning in Sparrow in determining whether an aboriginal person could be convicted of violating a provincial wildlife statute. The power of the legislature to legislate in the field resulted from the Natural Resources Transfer Agreement of 1930. The court found the transfer agreement did not extinguish existing treaty rights to hunt. The court concluded, at p.794, that provincial hunting statutes must be interpreted so as to maintain: ... the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. [49] From the perspective of aboriginal peoples, then, the fiduciary obligations of the Crown remain whether they were dealing with the Crown of colonial times, or are dealing with the Crown in Right of Canada or the Crown in Right of British Columbia. [50] In Halfway River First Nation v. British Columbia (Ministry of Forests) (1997), 39 B.C.L.R. 227 (S.C.), the Halfway River First Nation sought a review of a decision of a provincial Ministry of Forests official approving the application of a logging company for a cutting permit. In discussing the fiduciary relationship between the Crown in Right of the Province and the petitioners, the court reviewed Guerin, Sparrow, and Badger, and concluded the Crown in Right of the Province is subject to the requirements of that relationship. [51] A very recent decision of this court comes to the same conclusion. In Chemainus First Nation v. British Columbia Assets and Lands Corporation (7 January, 1999), Victoria 983940 (B.C.S.C.), the plaintiffs, who have entered into negotiations pursuant to the B.C. Treaty Commission process, sought a declaration that the Crown has a duty to negotiate with the plaintiffs in good faith, and an injunction enjoining the defendants from dealing with certain lands. The court found, at paragraph 26, that if a nexus has been established between the first nation and the land in question, a duty to negotiate in good faith: ... flows inexorably from the recognized fiduciary relationship between the government and the First Nations. The special nature of that relationship was recognized in terms of North America as far back as 1763. I wish to make it clear, though, in my opinion there is no legal duty to negotiate or reach agreement. However once the government commences negotiation with First Nations in my view it is a furtherance of its fiduciary duty. It must negotiate in good faith. The "government", in this passage, speaks for the Crown in Right of British Columbia. [52] The Province submits that the B.C. treaty negotiations are not about land. Rather, an affidavit filed on behalf of the Province states that the negotiations are "directed towards a new relationship and in particular, towards negotiating a treaty which the Province expects will include a land component". This fine distinction is of no significance. The Statement of Intent filed by the plaintiffs December 15, 1993, speaks of "the territory within the Gitanyow claim area" and encloses a map of the plaintiffs claimed traditional territory. To suggest a land claim is not an essential part of the claim, or at the least that a nexus with the land has not been established, is unrealistic. [53] I conclude that the duty to negotiate in good faith, founded upon the fiduciary relationship between aboriginal people and the Crown, applies equally to the Crown in Right of Canada and the Crown in Right of British Columbia. Does the B.C. Treaty process release the Crown from its duty to negotiate in good faith? [54] The Province submits that once the parties enter into negotiations pursuant to the B.C. Treaty process the rules change and if any duty to negotiate in good faith exists, it falls away. [55] First, the Crown points to recommendation numbers 10, 11 and 12 of the Task Force report: 10. Non-aboriginal interests be represented at the negotiating table by the federal and provincial governments. 11. The First Nation, Canadian, and British Columbian negotiating teams be sufficiently funded to meet the requirements of the negotiations. 12. The commission be responsible for allocating funds to the First Nations. [56] The Crown submits these recommendations, accepted by all three parties, manifest an intention to provide each party with the necessary resources to ensure an equality of representation and a releasing of the Crown from any legal duty to act in good faith during these specific negotiations. Further, it is suggested that requiring the Crown to negotiate in good faith while at the same time obligating it to represent the interests of non-aboriginals makes little sense in this process. [57] I am not persuaded. In a review of recent developments in the case law and scholarship of commercial contracts, Prof. Jamie Cassels concluded there is "... considerable momentum behind the emergence of good faith in contract bargaining". See: Good Faith in Contract Bargaining: General Principles and Recent Developments, (1993), 15 Advocates Quarterly 56 at 90. [58] As well, a duty to bargain in good faith is well established in other areas of the law, such as labour law. Despite that requirement, management and labour conduct tough negotiations and resolve disputes regularly. It would seem inappropriate to hold management to a duty to negotiate in good faith with its labour force, but permit the Crown to abandon its fiduciary relationship with aboriginal peoples in negotiations intended to prescribe forever, in the constitutional sense, the First Nations' relationship with their traditional territories and the sovereignty of the state. [59] Nor can the provision of adequate funding to First Nations for the purpose of negotiating terms altering or ending a trust like relationship release the Crown from its fiduciary obligations. The Supreme Court of Canada has said the relationship is "trust-like". A trustee could not, in negotiations to terminate a trust, act contrary to its fiduciary responsibilities. [60] Furthermore, history has shown the Crown's submission to be unpersuasive. The Crown, notwithstanding that it has long borne the fiduciary duty to deal with aboriginal peoples in good faith, has always had to balance that responsibility with its obligation to consider the interests of non-aboriginal citizens as well. Such a task may be difficult, and aboriginal people may have reason to believe governments failed them in the past. Nevertheless, an unavoidable and central aspect of governing is the necessity to decide between competing interests. To conclude that because the Crown is faced with responsibility for competing interests it must be released from its fiduciary obligation to native peoples is untenable. Similar reasoning was rejected in by the Supreme Court of Canada in Sparrow, at p.1113: We find the "public interest" justification to be so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights. [61] The Crown also submits that treaty negotiation pursuant to the B.C. process is a political exercise, encouraged by the courts, and not amenable to judicial supervision or the "supplanting" of the Treaty Commission by the courts. Aside from the rejection in Sparrow, at p.1105, that any federal obligation was "of a political character", I am not persuaded that judicial encouragement of political negotiation can be said to amount to an abandonment by the court of its duty to enforce fiduciary obligations. [62] The Crown also submits that it is the British Columbia Treaty Commission which has the statutory duty to facilitate treaty negotiations, as well as to provide advice and assistance, and the courts should not interfere. To do so, the Province argues, would be contrary to the Supreme Court of Canada's admonition that negotiation is to be preferred to litigation. Canada submits this very application contravenes that directive. [63] While the courts should be chary of interfering in the process itself, it is appropriate for the courts to assist in determining the duties of the parties involved in that process, in particular when the obligations of the Crown in dealing with aboriginal peoples have been recognized only after judicial pronouncement. In Delgamuukw, at p.1123, Chief Justice Lamer wrote: Ultimately, it is through negotiated settlements, with good faith and give and take on all side, reinforced by the judgments of this Court, that we will achieve ... the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [64] I reject the submission that "reinforced by the judgments of this Court" can mean only judicial enforcement of executed agreements. That such agreements will become treaties and will be enforceable is contemplated by s. 35 of the Constitution Act, 1982. I do not read the recommendations of the B.C. Task Force, nor the subsequent treaty commission legislation, as ousting the jurisdiction of the court from its important task of ensuring that the Crown does not fail in its fiduciary obligation to aboriginal peoples. [65] I conclude that the Crown in Right of Canada, and in Right of British Columbia, in entering negotiations with the Gitanyow Nation, pursuant to the B.C. treaty process, has a duty to negotiate in good faith. [66] Before considering the precise declaration to be issued, I must deal with the question of privilege raised by the Province. The Province submits that the B.C. treaty process, and specifically the Gitanyow Framework Agreement, impose "settlement negotiation privilege over the Gitanyow Treaty Negotiations, or over any documents exchanged in or generated in relation to such negotiations": affidavit of Assistant Deputy Minister, Ministry of Aboriginal Affairs, filed in these proceedings. [67] I am told that the documents relied upon by the plaintiffs in these proceedings which may be said to have been "generated in relation" to the Gitanyow negotiations have been made public. These include the Statement of Intent and the Framework Agreement. As such, they cannot be privileged. Even if they had not been made public, in my view they are not privileged. At the least, such a restriction represents "an unduly, artificial approach to the process": see Melvin J. in Chemainus, at paragraph 4. These documents concern the process, not its content. I decline to rule upon whether documents that might disclose a position taken by a party on the substantive issues at the negotiating table may be privileged. That issue does not arise in this application. [68] Although I am satisfied that the Crown, in entering upon treaty negotiations with the Gitanyow pursuant to the B.C. treaty process, has a duty to negotiate in good faith, I am not prepared to issue a declaration in the terms sought by the plaintiffs as set out in paragraph 2 above. [69] For ease of reference, I set out the declaration sought again, with those portions which I decline to issue, italicized: ... a declaration that the Crown in Right of Canada and the Crown in Right of British Columbia in undertaking to negotiate a treaty with the Gitanyow within the framework of the British Columbia treaty process and in proceeding with those treaty negotiations are obliged to negotiate a treaty in good faith with the Gitanyow and to make every reasonable effort to conclude and sign a treaty with the Gitanyow with the objective of securing Gitanyow rights through treaty and constitutional protection and that all representatives of the Crown in Right of Canada and the Crown in Right of British Columbia are bound by such duty; [70] I remove the italicized portions because I can find nothing that obliges the Crown to negotiate a treaty. The B.C. treaty process is voluntary. The parties enter the process of their own free will and while the purpose of their doing so is if possible to secure a treaty, there is no obligation to achieve that end. The Gitanyow Framework Agreement provides, in s.13.1, that any of the parties may suspend the negotiations by written notice. [71] In Uukw v. British Columbia (5 December 1986), Vancouver CA006460, CA006495 (B.C.C.A.), in the context of an application to amend a prayer for relief, Hutcheon J.A. said at para.18: I can find no jurisdiction in law and, in my view, the Supreme Court has no jurisdiction to declare that the defendants are obligated to negotiate. No one doubts, however, that must of necessity be done. Still less has the Supreme Court the power to direct the defendants to meet with the plaintiffs and negotiate in good faith as sought by paragraph 15 ... [72] The declaration sought here does seek to require the Crown to meet with the Gitanyow and negotiate. It has already done so. The plaintiffs seek a declaration that having entered upon those negotiations, the Crown's duty to act in good faith subsists. [73] I decline at this stage to determine in a detailed way the content of the Crown's duty to negotiate in good faith. To do so, in other than the most general terms, would be to come perilously close to considering the case for the second declaration sought by the plaintiffs, a matter upon which I have heard neither evidence nor submissions. [74] In general terms, that duty must include at least the absence of any appearance of "sharp dealing" (Badger, at p.794), disclosure of relevant factors (Cassels, at p.83), and negotiation "without oblique motive" (Chemainus, at para.26). [75] In the result, the plaintiffs will have a declaration in the following terms: The Crown in Right of Canada and the Crown in Right of British Columbia in undertaking to negotiate with the Gitanyow within the framework of the British Columbia treaty process and in proceeding with those negotiations are obliged to negotiate in good faith with the Gitanyow, and all representatives of the Crown in Right of Canada and the Crown in Right of British Columbia are bound by such duty. [76] The plaintiffs will have the costs of this application. Counsel may make submissions as to the appropriate scale. "L.P. Williamson, J." Mr. Justice Williamson