[1] The Westbank Indian Band as part of the Okanagan Nation claims its aboriginal title gives it the right to log an area called Hidden Creek. The Crown petitions under the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, to enforce a stop work order to prevent this logging.

[2] The Westbank Band has filed a notice of constitutional questions challenging the applicability and constitutionality of ss. 96 and 123 of the Forest Practices Code. Those sections allow a forestry official to issue a stop work order if he or she considers there is unauthorized cutting of Crown timber. The issues as set out in the notice are:

[3] The relevant provisions of the Forest Practices Code are ss. 96(1), 123 and 147 which read in part:

...

...

[4] On September 23, 1999, Mr. Justice W. Davies heard a preliminary application. The respondents sought directions about issues to be addressed during the hearing of the petition.

[5] The Crown has filed a motion under Rule 52(11)(d) seeking to have the petition referred to the trial list. The Westbank Band opposes this and brings on an application for directions. It contends that I should fix a schedule for the delivery of affidavits and expert evidence and set a date for the hearing of the petition. The Westbank Band claims that a hearing with affidavits and oral argument is adequate to deal with the issues raised in this proceeding. The respondents assert that a trial, as opposed to a summary hearing by way of petition, is inappropriate and unnecessary in these circumstances. The issue here is whether there should be directions for the filing of evidence by way of affidavit and perhaps cross-examination or whether this dispute would be more appropriately resolved by way of a conventional trial with pleadings and examinations for discovery.

[6] At about the same time as I heard this application, I also heard applications in two other proceedings involving similar issues: Her Majesty the Queen (Minister of Forests) v. Chief Dan Wilson on behalf of the Okanagan Indian Band (Action No. 23911 Vernon Registry); and, Her Majesty the Queen (Minister of Forests) v. Chief Ronnie Jules on behalf of the Adams Lake Band, Chief Stewart Lee on behalf of the Spallumcheen Indian Band, and Chief Arthur Manuel on behalf of the Neskonlith Indian Band (Action No. 23914 Vernon Registry). In those proceedings, the immediate question was whether I should grant a statutory or equitable interlocutory injunction pending the resolution of the question of the Westbank Band's asserted aboriginal title and entitlement to log. Although the particular interlocutory applications in those proceedings are different from the present case, the underlying legal questions are acknowledged by counsel to be similar.

[7] There is a preliminary issue. The Westbank Band says that this application should be dismissed because Mr. Justice Davies has already decided the issue that the Crown raises on its Rule 52(11)(d) motion. Ms. Mandell for the Westbank Band argues that the previous decision creates an issue estoppel.

[8] Therefore, I am faced with the following questions. Firstly, does the decision of Davies J. of September 28, 1999 give rise to an issue estoppel that this proceeding should be heard summarily? If that question is answered in the negative, I must then determine whether this petition should be remitted to the trial list under Rule 52(11)(d). If I decide that this petition should proceed as is, then I must make directions with respect to the hearing of the petition.

[9] Let me turn first to the decision of Mr. Justice Davies.

[10] In his decision of British Columbia v. Westbank First Nation, (28 September 1999), Kelowna Registry, 46440 (B.C.S.C.) at 3-4, he said:

[11] At 5, he continued stating:

[12] At 8-9, he concluded:

[13] A notice of appeal has been filed from the decision of Davies J.

[14] The Westbank Band argues that the issue identified and decided by Davies J. was whether the constitutional issue should be before the court at the same time as the question of whether the statutory requirements for an order under s. 147 of the Forest Practices Code have been met. It is Westbank Band's submission that the effect of Davies J.'s decision is that all issues in the petition should be before the court at the same time, rather than severing some to be heard in a subsequent trial.

[15] Therefore, the Westbank Band submits that Davies J.'s decision gives rise to an issue estoppel. Issue estoppel is a species of res judicata, which prohibits decided issues from being relitigated. The requirements to establish an issue estoppel were described in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at 935:

[16] In my view, the decision of Davies J. does not, strictly speaking, give rise to a question of issue estoppel. I think, however, there is a similar governing principle.

[17] Generally speaking, even when dealing with procedural questions, courts will not decide questions they have already decided in the absence of a material change in circumstances. In this case, there is no suggestion that there has been a material change in circumstances since September 28, 1999. The issue, I think, is really this: am I being asked to decide the very question that Davies J. decided?

[18] I do not think so. Davies J. concluded that the constitutional issues concerning possible aboriginal title were relevant as a defence and could be raised by the respondents in answer to the petition. He did not deal with questions of whether there ought to be interim relief pending the hearing of this petition and more importantly for present purposes, he did not expressly or by implication decide whether the petition should be remitted to the trial list under Rule 52. Although that question has some similarities to the question that Davies J. decided, it is not the same question. For that reason the preliminary objection fails.

[19] I now turn to the question of whether the petition should be referred to the trial list.

[20] Rule 52(11)(d) states:

[21] The Crown says that it is not appropriate to have the petition heard and the issues disposed of summarily when the respondents' answer gives rise to aboriginal title and constitutional questions. The Westbank Band contends that it is appropriate and seeks directions for the expeditious hearing of the petition, including time limits for the petitioner to file its affidavit evidence.

[22] The Crown submits that the two constitutional questions which I have set out in the introduction raise the following issues: Do the impugned sections of the Forest Practices Code constitute an unjustified infringement of the aboriginal title claimed by the Westbank Band? The Crown contends this issue can only be decided after there has been a determination of whether aboriginal title, as asserted by the respondents, exists. It argues that unless aboriginal title is proven in the manner required by Delgamuukw v. British Columbia (1997), 153 D.L.R. (4th) 193 (S.C.C.), the question of infringement and justification, which the respondents say are the only issues, are not relevant. The Crown contends that a summary process is not appropriate to determine complex questions of aboriginal title.

[23] The Crown says that the summary process will not permit adequate consideration of evidence related to the existence and nature of any inherent limitations resulting from the nature of exclusive occupancy at the time of assertion of sovereignty in 1846 (Delgamuukw v. British Columbia. supra at paras. 125-132). It also contends that a trial is necessary to provide an adequate forum for the identification of any competing aboriginal interests (Delgamuukw v. British Columbia, supra at para. 185.).

[24] The Crown submits that the Westbank Band's assertion of aboriginal title to the lands in question is enough to raise serious questions of fact and law. The Crown has filed affidavit material stating that significant research will be required to determine if the respondents have satisfied the requirements set out by Delgamuukw to establish aboriginal title. The Crown says that in order to defend this claim it needs the processes not normally available in a petition, i.e. examination for discovery, pleadings and cross-examination at trial. The petitioner says that recent authority in British Columbia dealing with the determination of disputes of this type indicate that the proof of aboriginal title as detailed in Delgamuukw is a complex matter and not capable of summary determination.

[25] The Westbank Band's position, on the other hand, is that a trial is not necessary. They claim the case can be determined summarily by hearing after an exchange of affidavit evidence. In that respect, the Westbank Band proposes a particular schedule for the delivery of affidavits and a schedule for fixing a hearing date. The Westbank Band complains that the Crown has, since the logging stopped, taken no steps to file any material challenging its aboriginal title.

[26] The Westbank Band points to issues arising out of the constitutional questions that it asserts require little or no evidence. Whether the statutory schemes are unstructured discretionary schemes that risk infringing aboriginal rights is an example of such issue. Further, the respondents argue that whether the Crown has an unencumbered title to the lands and whether the Forest Act and Forest Practices Code have no application to the case at bar also require little or no evidence. The respondents point to cases where issues of aboriginal title have been dealt with summarily. Ms. Mandell argues that the issue at hand is even more appropriate for summary disposition as here the issue of aboriginal title is raised as a defence to an injunction application.

[27] The respondents submit that the application under Rule 52(11)(d) is premature given that the Crown has filed no material putting its contention of aboriginal title in issue. The respondents claim that the court must have an evidentiary basis to find "a disputed fact" or "something upon which evidence is required" such that it is not just and convenient to resolve the dispute by way of petition.

[28] The respondents point to the extensive period of time they have had to wait for recognition of their aboriginal rights to the land. They say that I should exercise my discretion to decline to remit the matter to trial because a trial will cause further delay. The respondents say the government simply persists in refusing to recognize aboriginal rights.

[29] I will describe some of the evidence that has been filed on this petition. Ron Derrickson, the Chief of the Westbank First Nation, deposes that Westbank Band is a member of the Okanagan Nation which is comprised of seven bands. They include the Okanagan Indian Band, the Penticton Indian Band, the Upper Similkameen Band, the Lower Similkameen Band, the Osoyoos Indian Band and the Upper Nicola Band.

[30] Chief Derrickson says that the Okanagan Nation collectively asserts aboriginal title to certain lands in which the subject land in Hidden Creek is included. He says that according to oral history he learned from his grandfather, father and uncles, the Okanagan people have exclusively occupied certain territory. According to this oral history, he asserts that the Okanagan people have always made use of trees for hunting and trapping, firewood and fuel, materials for houses and utensils, bark canoes, sweat lodges, fishing implements and other purposes tied the culture and self-sufficiency of the Okanagan Nation. The area in dispute in this proceeding, he says, is in the heartland of this territory.

[31] Chief Derrickson indicates that the Westbank Band filed a Statement of Intent with the B.C. Treaty Commission. He says that the Westbank Band has not continued in these treaty negotiations because the federal and provincial governments require, as part of the negotiations, that they give up their claim to most of what they assert is their territory.

[32] Chief Derrickson says that the Westbank Band, with the permission of the Okanagan Nation, decided to log in the Hidden Creek area after efforts to negotiate through the Treaty Commission, the Ministry of Forests and other political avenues were unsuccessful. The logging that has been done by the Westbank Band in the Hidden Creek area, according to the Chief, was based on sustainability criteria. The trees that it has harvested were to contribute to housing for elders in the Westbank Band.

[33] The respondents also filed the affidavit of Mickey Werstuik, a natural resource technologist with the Westbank Band. In the affidavit, he describes the circumstances leading up to the logging in 1999 and mentions the fact that the Westbank Band has voluntarily suspended logging following the request of Mr. Justice Davies.

[34] The petitioner filed an affidavit of Ruth Underhill, a researcher under contract to the Aboriginal Research Centre of the Ministry of the Attorney General. She has a master's degree in historical research and was recently retained to investigate the assertion that the Westbank Band, as part of the Okanagan Nation, has aboriginal title to the Hidden Creek area, allowing it to log.

[35] Ms. Underhill deposes that this research will involve a consideration of evidence relating to the issue of aboriginal title of the Okanagan nation as a whole and the specific parcel, a parcel on which she says that there has been little research. She deposes that this kind of research is complex as none of the available sources were created to determine if the Okanagan Nation has aboriginal title to the land in question. Moreover, Ms. Underhill deposes that a time-consuming review will be required, as well as an absorption of complex material in order to formulate an answer to the questions raised by Westbank Band's assertion. She says that she will have to consider a number of sources in order to give a realistic analysis on the extent to which the Okanagan Nation exercised occupation and possession of the subject land and whether that occupation was exclusive according to the tests set out in the recent decisions on aboriginal title from the Supreme Court of Canada. She says these sources include works from anthropologists, an enthobotanist, archaeological site forms and available books and articles on Okanagan oral history. She also identifies the need, according to Delgamuukw, to review documents created prior to 1846, such as recorded accounts of early explorations in the area, records of the North West and Hudson's Bay Company and records of priests in the Okanangan area prior to 1850. She deposes that it is important to look at records after 1846 to determine the extent to which the Westbank Band maintained a continuous interest in the subject land. She identifies and describes 19 categories of particular documents that she claims need to be reviewed.

[36] The respondents say that Rule 52(11) does not apply to a petition brought under s. 147 of the Forest Practices Code.

[37] They rely on Rule 1(4), which provides that the Rules of Court govern every proceeding in this court except where an enactment otherwise provides. The respondents submit that s. 147 and s. 123 of the Forest Practices Code are part of a framework which by implication excludes Rule 52(11)(d). That framework allows an official to decide if unauthorized logging is occurring, to issue a stop work order and to allow the Minister the option of requesting the Supreme Court to hear an application for a compliance order. In that framework, the court may make an order it considers appropriate. This procedure, the respondents say, is summary and by implication ousts the court's jurisdiction under Rule 52(11)(d).

[38] The respondents contend that the Forest Practices Code provides a complete set of rights and remedies, which would be rendered ineffective if Rule 52(11)(d) applied to a s. 147 petition. The respondents suggest two decisions are instructive: Paul v. British Columbia (Forest Appeals Commission), [1999] B.C.J. No. 2129 (Q.L.) (B.C.S.C.), and Halfway River First Nation v. British Columbia (Minister of Forests), [1999] B.C.J. No. 1880 (Q.L.) (B.C.C.A.). They cite those cases as authority for the proposition that issues relating to permits and stop work orders can be dealt with summarily even when there is an assertion of aboriginal rights.

[39] Halfway River, supra, was an appeal from an application for judicial review of a district manager's decision to issue a cutting permit. In that case, Finch J.A., for the majority, said that the judge had discretion under Rule 52(11)(d) to order a trial of the proceedings. In that case, the court was not persuaded that the judge had erred in the exercise of that discretion by refusing to convert the proceedings to a trial.

[40] Paul, supra, was an application for prohibition to prevent the Forest Appeals Commission from hearing an appeal under the Forest Practices Code. In that case, Pitfield J. held that the Commission, by implication, had power to consider and adjudicate in respect of aboriginal rights in the context of s. 96 of the Forest Practices Code. He said at para. 81:

[41] I do not, however, see support in either case for the contention that Rule 52(11)(d) does not apply to a petition brought to enforce a stop work order under the Forest Practices Code. The cases seem instead to support the proposition that in appropriate cases a trial or equivalent procedures should be used to properly resolve a dispute concerning aboriginal title.

[42] In my opinion, Rule 52(11)(d) has not expressly or by implication been ousted and therefore, has application to a petition under s. 147.

[43] I conclude that the court has jurisdiction under Rule 52(11)(d), in appropriate circumstances, to remit this petition to the trial list.

[44] The overall question is whether this is an appropriate case to exercise my discretion under Rule 52(11)(d) and remit this petition to the trial list. I think the question might be stated more specifically this way: are the issues raised on this application sufficiently complex and closely tied to questions of fact that I should exercise my discretion to order a trial of the proceeding? The question may also be stated more specifically this way: are there bona fide triable issues in this proceeding that are incapable of being resolved by way of affidavits and documents? If either of these questions are answered in the affirmative, then this dispute is likely unsuitable for summary disposition and ought to be remitted to the trial list.

[45] Before a trial can be ordered, the court must determine there to be a bona fide triable issue. The test to be applied has been articulated by Cumming J.A. in Douglas Lake Cattle Company v. Smith (1991), 54 B.C.L.R. (2d) 52 (B.C.C.A.) at 59 as being

[46] Newbury J.A., in Dias-Kas Inc. v. Virani et al. (1997), 88 B.C.A.C. 26 (B.C.C.A.) at 30 referred to the "very low threshold described in Douglas Lake Cattle, supra, for when a respondent is entitled to have a petition placed on a trial list ...".

[47] The respondents contend that it would be premature for me to determine whether a triable issue exists since the petitioner has not filed affidavit material putting in issue the respondents' evidence. In some circumstances that may be necessary, but I do not think that is necessary here. I agree with the comments of Goldie J.A. in Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (30 April 1999), Vancouver Registry, A990300 (B.C.S.C.); leave to appeal dismissed [1999] B.C.J. No. 1665 (Q.L.) (B.C.C.A.). In dismissing leave to appeal from a decision remitting a petition to the trial list, Goldie J.A. said at para. 9:

Appeal of refusal of leave to appeal dismissed [1999] B.C.J. 2204 (Q.L.) (B.C.C.A.).

[48] The applicant also argues that questions relating to aboriginal title are inherently unsuitable for summary determination. I think that general proposition is not correct. There is no rule that such disputes must always be resolved by trial. Any exercise of discretion under Rule 52(11)(d) must be done in light of the specific circumstances of the particular case.

[49] Proceedings involving issues of aboriginal title have been determined by some judges to contain issues that necessitate remittance to the trial list as they can raise complex questions of fact and law. In Delgamuukw, supra, Chief Justice Lamer said at para. 49 the following with respect to the unique approach required in the litigation process to the determination of aboriginal rights:

[50] In MacMillan Bloedel v. Mullin et al. (1985), 61 B.C.L.R. 145 (C.A.) at 151, Seaton J.A. made this observation in dealing with whether the claim for aboriginal title could be decided on an interlocutory application:

[51] Another case where this court held that the determination of aboriginal rights was not a matter for summary disposition was Calliou and Kelly Lake Cree Nation v. Ministry of Energy and Mines (21 September 1998), Vancouver Registry, C984230 (B.C.S.C.). In that case, Taylor J. said at para. 5:

He said later at para. 16:

[52] The issues in this case center on aboriginal title and rights and the respondents contend these issues can be resolved solely by affidavit material. Conversely, the petitioner maintains that a trial is necessary to deal fully and adequately with the issues.

[53] I have determined from a review of the affidavits filed by both sides that in order to resolve this dispute, there will have to be pleadings. At the outset, pleadings will be necessary to clarify the basis upon which the respondents assert its aboriginal title and right to log. As McLachlin J. said in Regina v. Marshall, [1999] S.C.J. No. 55 (Q.L.) (S.C.C.) at para. 112:

Delgamuukw describes complex issues such as accommodation and justification which also arise on this petition and should be pleaded by both parties to be adequately dealt with.

[54] Furthermore, the affidavit of Ms. Underhill indicates that the underlying facts surrounding aboriginal title will not only require extensive investigation by the Crown, but will also be the subject of examinations for discovery given that the respondents rely on oral histories to establish their claim. Also, the nature of the evidence likely involves some assessment of credibility. As such, the parties, particularly the Crown, will require discovery and the opportunity to cross-examine at trial for a proper determination of the extent and scope of the respondents' alleged aboriginal title.

[55] These words in Taku, supra, at para. 19 have application to the case at hand:

[56] Notwithstanding the fact that no affidavit material has been filed disputing the claim, it is apparent to me that there are serious triable issues. The question of the respondents' aboriginal title is not uncontested. It is clear to me that the petitioner is not prepared, at this time, to concede that the respondents have title or rights over the area claimed and will challenge such claims. The dispute cannot, for the reasons I have stated, be resolved by reference to documentary evidence and affidavit evidence alone.

[57] I recognize that there may be questions that arise in this dispute that do not require substantial evidence or cross-examination, including some purely legal questions. However, the core issue of the existence of the aboriginal title does require it. This case appears to be one which requires pleadings and discovery in order to ensure that the issues are justly resolved between these parties.

[58] I conclude that the issues at stake in this proceeding are incapable of being fully addressed by way a petition and should be resolved by trial. I, therefore, remit this matter to the trial list.

[59] Under Rule 52(11)(d), I am entitled to give directions with respect to the conduct of the trial and pre-trial proceedings, including the disposition of the application.

[60] The respondents are concerned that a trial, for a proceeding it suggests is largely factually undisputed, will result in the resolution of this dispute being unnecessarily time-consuming, complicated and expensive. I have taken into consideration the interests and needs of the respondents in having this dispute resolved as promptly as possible. Therefore, to ensure that this case is resolved as expeditiously as possible in the circumstances, I exercise my powers under Rule 52(11)(d) to direct that the proceeding be case-managed. I direct that the respondents file a statement of claim within 30 days setting out the basis upon which they assert their aboriginal title and the right to do the logging in question. Within 30 days thereafter, the petitioner will file its statement of defence.

[61] Following that exchange of pleadings, there will be a case management conference before me at which the following will be discussed: