Date: 19990928
Docket: 46440
Registry: Kelowna

BETWEEN:

PETITIONER

AND:

RESPONDENTS

[1] This is an application where the Respondents seek directions as to the issues to be addressed during the hearing of a Petition filed by the Petitioner. In the Petition the Petitioner is applying for:

(a) an order pursuant to s.147 of The Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c.159, directing that:

(i) all persons named in or who have been given a copy of the stop work order made pursuant to s.123 of The Forest Practices Code of British Columbia Act, dated September 2, 1999, as described in this Petition, comply with or be restrained from violating the stop work order;

(ii) The Chief and Counsellors of Westbank First Nation, cause any persons working under the direction of Westbank First Nation to comply with or to cease violating the stop work order dated September 10, 1999, made pursuant to s.123 of The Forest Practices Code of British Columbia Act.

(b) any other order this Court considers appropriate.

[2] On September 20, 1999, the Respondents filed a Notice of Constitutional Question giving notice that they will challenge the constitutionality and applicability of ss.96 and 123 of The Forest Practices Code of British Columbia Act. The issues they wish to argue are:

(a) Are the sections and the decisions unconstitutional because they are part of a statutory regime which allows unstructured discretionary actions which risk infringing aboriginal rights and title?

[2] Do the sections challenged constitute an unjustified infringement of aboriginal rights pursuant to s.35 of The Constitution Act, 1982?

[3] The Crown is seeking an order under s.147 of The Forest Practices Code of British Columbia Act for compliance with the stop work order issued under s.123 of the Act. It does not dispute the right of the Respondents to argue the constitution questions raised, but says that that argument should be made at a later date and that the only issue that should be before the Court at this time is, 'has the statutory requirement for an order under s.147 of The Forest Practices Code of British Columbia Act been met'?

[4] The constitutional question filed by the Respondents has become part of this proceeding. It must then be determined if it is appropriate to first hear the Crown's application for an order under s.147 of the Act, and then deal with the constitutional challenge by the Respondents at a later date, or, whether all issues should be before the Court at the same time.

[5] The Respondents seek to raise aboriginal rights as enshrined in s.35(1) of the Constitution to challenge the validity of sections of the Forest Practices Code of British Columbia Act , and also as a defense to the Petition. Section 52(1)the Constitution Act, 1982, operates together with the whole of the Constitution Act, 1982 to require the Courts to treat as invalid any law that contravenes constitutional provisions. Since R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, the Courts have granted standing as of a right to an accused charged under legislation alleged to be unconstitutional. In that case Chief Justice Dickson stated that no one can be convicted of an offence under an unconstitutional law, and further, that an accused may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid (pg. 313).

[6] In Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, Chief Justice Lamer for the majority, applied the reasoning in Big M Drug Mart. In that case, Richardson and others were defendants in an application for injunction by the Canadian Egg Marketing Agency. He stated at page 158:

In our opinion, the logic of Big M Drug Mart extends to give standing as of right to the respondents... They do not come before the court voluntarily. They have been put in jeopardy by a state organ bringing them before the court by an application for an injunction calling in aid a regulatory regime. Success of that application could result in enforcement by contempt proceedings.

[7] In my view, the reasoning in Canadian Egg Marketing Board Agency is applicable to the Respondents' position in this case. They do not come before the court voluntarily and are put in jeopardy by a regulatory regime the successful application of which could result in enforcement by contempt proceedings.

[8] Raising aboriginal title is rationally probative the issue before the Court, namely, the constitutionality of the impugned sections of the Forest Practices Code of British Columbia Act, and the legal authority of orders and decisions made pursuant to those sections, in so far as they may infringe on pre-existing aboriginal rights and title should the claim to aboriginal rights be held to be valid. Insisting that the Constitutional question be heard separately would deny the Respondents the opportunity to make use of a defense they have a right to raise. Therefore, I find that the Respondents may raise the constitutional challenge as a defence to the Crown's Petition.

[9] The parties are further in disagreement concerning the order in which evidence should be led at the hearing. The Respondents argue that the Province, prior to the hearing, must file all of its evidence which may be relevant to determining the issue of aboriginal rights and title. They say that if the Province does not do so it would amount to case splitting.

[10] In R. v. Chalk (1990), 62 C.C.C. (3d)193 (S.C.C.) at 238 Lamer, C.J.C. stated:

The principle that the Crown is obliged to adduce, as part of its case, only evidence that is relevant to an element of the offence that the Crown must provide is affirmed by the corollary principle that the Crown need not adduce evidence in chief to challenge a defence that an accused might possibly raise.

[11] Later on the same page the chief Justice notes that "this principle is not altered by the fact that the accused may warn the Crown that it intends to raise a particular defence".

[12] Past cases dealing with aboriginal rights make clear that the party asserting an aboriginal right protected by s. 35 (1) must present evidence to establish that right(R. v. Sparrow (1990), 70 D.L.R. (4^th) 395; R. v. van der Peet,[1996] 4 C.N.L.R. 177). The nature of an aboriginal claim must be identified precisely with regard to particular practices, customs and traditions (Delgamuukw v. British Columbia (1998),153 D.L.R. (4^th) at para. 193). The nature of the subject matter involved here is such that the Petitioner may not be in a position to anticipate the evidence which the Respondents may lead.

[13] In the recent decision of the Supreme Court of Canada in R. v. Marshall,[1999] S.C.J. No. 55 McLachlin, J., writing in the context of aboriginal treaty rights, in dissent but not on this issue, stated at paragraph 111 to 113:

A claimant seeking to rely on a treaty right to defeat a charge of violating Canadian Law must first establish a treaty right that protects, expressly or by inference, the activities in question... Only then does the onus shift to the government to show that it has accommodated the right or that its limitations of the right are justified. To proceed from a right undefined in scope or modern counterpart to the question of justification would be to render treaty rights inchoate and the justification of limitations impossible. How can one meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope? How is the government, in the absence of such definition, to know how far it may justifiably trench on the right in the collective interest of Canadians?

[14] I find this statement persuasive with respect to the issue before this Court.

[15] Therefore, I direct that the Respondents may lead evidence on the constitutional question raised and the province may provide a response which may include arguments as to accommodation and justification.

[16] The parties shall agree upon scheduling for the exchange of pleadings and a hearing date, and failing agreement may apply to the Court. Counsel are in agreement that this matter is urgent and therefore the scheduling agreed upon should reflect that fact.

[17] From the material filed by the parties I find that it would be in the interests of both parties and the general public that the timber in question be preserved pending the resolution of the important questions raised in this proceeding. Therefore, I look to the Respondents to voluntarily suspend the logging of timber in the Hidden Creek area pending the hearing of the Petition. Should they decline to do so the Province may wish to consider an interlocutory application.

[18] As has been agreed, I am not seized of this matter which will assist in having the Petition heard at the earliest possible date.

"W.H. Davies, J."
Davies, J.

Vancouver, B.C.

September, 28, 1999