IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Chief Allan Apsassin et al v. Attorney General (Canada) et al,
	2007 BCSC 492

Date: 20070412
Docket: 07-0612
Registry: Victoria

Between:

Chief Allan Apsassin on his own behalf and on behalf of the members
of the Saulteau First Nations; the Saulteau First Nations;
Chief Kelvin Davis on his own behalf and on behalf of the members
of the Doig River First Nation; the Doig River First Nation;
Chief Gerry Hunter, on his own behalf and on behalf of the members
of the Halfway River First Nation; the Halfway River First Nation;
Chief Liz Logan on her own behalf and on behalf of the members
of the Fort Nelson First Nation; the Fort Nelson First Nation;
Chief Roland Willson, on his own behalf and on behalf of the members
of the West Moberly First Nations; the West Moberly First Nations;
Chief Liza Wolf on her own behalf and on behalf of the members
of the Prophet River First Nation; and the Prophet River First Nation

Plaintiffs

And:

The Attorney General of Canada,
Her Majesty the Queen in Right of the Province of British Columbia,
Lheidli T'enneh and Lheidli T'enneh Indian Band

Defendants

Before: The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

Counsel for the Plaintiffs:	A. Rana and C. G. Devlin
Counsel for the Defendant The Attorney General of Canada:	H. A. Frankson and R. E. Schipizky
Counsel for the Defendant Her Majesty the Queen in Right of the Province of British Columbia:	L. J. Mrozinski and P. Yearwood
Counsel for the Defendant Lheidli T'enneh and Lheidli T'enneh Indian Band:	J. J. Arvay, Q.C. and A. Peeling
Date and Place of Trial/Hearing:	March 16 and 28, 2007
	Victoria, B.C.

I.

[1]                By memorandum dated 29 March 2007, I dismissed the plaintiffs' application for an interlocutory injunction, with reasons to follow.  Here are the reasons.

II.

[2]                In 1899 a treaty was concluded between a number of First Nations, and Canada.  The treaty was ratified by the Governor in Council on 20 February 1900, by Order-in-Council No. 363.

[3]                Throughout the years, other First Nations, including the plaintiffs in this action, adhered to or were admitted into, the treaty.

[4]                The treaty is known as "Treaty No. 8".

[5]                The territorial application of the treaty's terms falls, among other areas, within the northeast quadrant of the Province of British Columbia.

[6]                Among other things, the treaty provides:

And Her Majesty the Queen hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described subject to such regulations as may from time to time be made by the government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

III.

[7]                The defendant Lheidli T'enneh and Lheidli T'enneh Indian Band are not parties to Treaty No. 8.

[8]                These defendants entered formal treaty negotiations, in their own right, with the defendant Canada in the early 1980's.

[9]                In December 1993, these defendants entered the then recently established B.C. Treaty Commission process.

[10]            Pursuant to that process, the band submitted a statement of intent to negotiate a treaty.  In that statement of intent, these defendants described their claimed traditional territory, a tract of some 45,000 square kilometres.  Twelve percent of that territory, some 5,600 square kilometres, overlapped territory included within the Treaty No. 8 tract referred to above.

[11]            Although the Lheidli T'enneh did not initially identify the plaintiffs as a neighbouring First Nation, with overlapping territorial issues, by, at least, the spring of 1995, Canada and British Columbia had been alerted to the Treaty No. 8 overlap issues.  Thereafter, the plaintiffs sought consultation with Canada and British Columbia on those issues.  Among other things, in November 1998, the plaintiffs proposed a four-stage process for resolution of any conflicts, which process would include the plaintiffs, Canada, British Columbia, and First Nations asserting claims over Treaty No. 8 territory.

[12]            Written, and oral, communications were exchanged over the years, to no conclusion from the perspective of the plaintiffs.  Canada and British Columbia took the position that resolution of overlapping claims' issues was a matter for the First Nations to address between themselves.

[13]            Attempts by the plaintiffs and the Lheidli T'enneh to establish a forum to address the overlap issues were equally unsuccessful.

[14]            All the while, the B.C. Treaty Commission process continued to unfold.  The parties concluded a framework agreement in August of 1996, and an agreement in principle in July 2003.  In late October 2006, the defendants initialled the Lheidli T'enneh final agreement.  Whereupon the Lheidli T'enneh commenced the process of ratification of the final agreement by its members.  Voting in that process was scheduled to complete 30 March 2007.  In the event of an affirmative vote by the members of the Lheidli T'enneh Nation, the matter would be the subject of legislation in the British Columbia Legislative Assembly.  If such legislation was adopted, then the matter would proceed to Parliament.  And if adopted by Parliament, the final agreement would come into force as a treaty, by way of an order of the Governor-in-Council.  If this process developed as anticipated, the effective date of the treaty is projected at the spring of 2008.

[15]            After the final agreement had been initialled in October 2006, Canada and British Columbia informed the plaintiffs of their interest in consultations with the plaintiffs.  This latter correspondence from Canada and British Columbia, with the plaintiffs, reflects a higher tone of earnestness in consultation than had previously obtained.

IV.

[16]            The plaintiffs commenced this action on 9 February 2007.  Concurrently, the plaintiffs applied for the interlocutory relief which I dismissed by the memorandum of 29 March 2007.

[17]            In this action, the plaintiffs claim, among other things, an order declaring:

... the provisions of the Lheidli T'enneh Final Agreement that confer wildlife and migratory bird harvesting, plant gathering, and wildlife and parks management rights to the Lheidli T'enneh within the territory of Treaty No. 8 are unconstitutional ... and are of no force and effect ... until there is adequate consultation and accommodation of the existing Treaty No. 8 rights of the plaintiffs by Canada and British Columbia.

V.

[18]            The first point taken by Canada and British Columbia, in opposing the plaintiffs' application, is that injunctive relief is not available against the Crown.  That, they say, is the law by virtue of the common law,[1] and statute.[2]  I reject this position.

[19]            The plaintiffs allege that Canada and British Columbia failed to perform their constitutional duties to consult with the plaintiffs; and thereby deprived the plaintiffs of their constitutional right to be consulted.

[20]            In Snuneymuxw First Nation v. British Columbia,[3] this court held that, on constitutional issues, it had jurisdiction to grant interlocutory injunctive relief against the Crown.  I find, therefore, that this court does have jurisdiction to grant interlocutory injunctive relief in this case against Canada and British Columbia.

VI.

[21]            There is no dispute about the principles governing the disposition of the plaintiffs' application.  The plaintiffs must establish that there is a serious question to be tried; that they will suffer irreparable harm if an injunction is not granted; and that the balance of convenience favours the granting of an injunction in the circumstances.

VII.

[22]            I do not understand Canada and British Columbia to contend that, as a matter of law, they did not have a duty to consult with the plaintiffs, over matters which touch and concern Treaty No. 8 territory.

[23]            I am satisfied that the plaintiffs have made a strong prima facie case that there was no consultation.

[24]            However, British Columbia takes the position that what consultation is due must be decided within the context of the individual case.[4]  I am not persuaded by the defendants that the limited relief sought by the plaintiffs, on this application, would constitute a "final determination" of the action.  The defendants rely on the proposition that enjoining the continuation of the ratification process will cause that process to "unravel".  That contention is based upon the personal opinion of one witness.  In my view, that evidence cannot be dispositive of the issue.

[25]            Nor am I satisfied that the constitutional question raised can be determined on this summary, interlocutory application.

[26]            This is not a case, therefore, where the "low threshold" for the finding of a serious issue to be tried does not apply.  The plaintiffs have established that there is a serious question to be tried.

VIII.

[27]            Substantively, the nugget of the plaintiffs' assertion of irreparable harm, is that if the ratification process is not stopped now, accommodation opportunities available, prior to ratification, will disappear, after ratification.  The plaintiffs will lose the opportunity to be consulted about the potential effect of the Lheidli T'enneh final agreement on existing Treaty No. 8 rights, while accommodation measures such as changes to that final agreement are still possible.  Once the ratification process starts, say the plaintiffs, all such measures are precluded.

[28]            Procedurally, the plaintiffs contend that irreparable harm will occur, per force, from the failure to consult itself.

[29]            The plaintiffs refer to previous litigation in which they were involved in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage).[5]

[30]            In that case, the trial court found that Canada had granted approval for the construction of a road without consulting with the plaintiffs before making the decision to approve.  In result, the Supreme Court of Canada confirmed the trial judge's disposition, quashed the approval, and remitted the matter for consultation.

[31]            I note in passing that an interlocutory injunction against construction of the road had issued, pending the trial.

[32]            The present case is not a case of the permanent alteration of geography by road construction; or the clear cutting of a forest, as in Haida.  I am not persuaded that refusal of an interlocutory injunction at this stage, in this case, will deny the plaintiffs their remedy.

[33]            The plaintiffs say that Canada and British Columbia have acted unlawfully.  If they prevail with that assertion at trial, then the remedy, as in Mikisew, must be the setting aside of the results of that unlawful conduct.

[34]            Such a remedy would have been the remedy if the plaintiffs had gone to trial on this matter on 28 October 2006, or 30 October 2006, the day before, or the day after the final agreement was initialled.  In that event, they would be attacking an unlawful  provision in an agreement.  Their remedy will be the same after the agreement is ratified and confirmed, with the sole exception being that their attack is on an unlawful provision in a treaty.

[35]            Accordingly, I do not accept the plaintiffs' propositions referred to above.  In my view, the plaintiffs' negotiating position does not change.  If the plaintiffs are successful at the trial of their action, then the defendants will find that they have accomplished a nullity.  The overlap issue will be open, without any predetermined notions impeding a consultative process, and, if appropriate or indicated, accommodation.

IX.

[36]            Comparative harm is the factor which I find tips the balance of convenience in favour of refusing the relief sought by the plaintiffs.  In my view, neither party will suffer irreparable harm by any decision I may make.  I find the plaintiffs' arguments on this aspect of the application compelling, but I do not find them to be dispositive.

[37]            Given the recommendations in the report of the British Columbia Claims Task Force of 28 June 1991, and the policies and procedures of the B.C. Treaty Commission of 11 April 1997, addressing the problem of overlapping claims, it is astonishing that this matter has been allowed to come this far without resolution.  But it has.  And considerable resources have been expended along the way.

[38]            I acknowledge that the relief sought by the plaintiffs is limited only to those provisions of the final agreement which touch and concern Treaty No. 8 territory, but I think that any interference with the process at this stage, may attract an undesirable, adverse, result of unduly complicating the Lheidli T'enneh ratification process.  Accordingly, the Lheidli T'enneh would be harmed more if the injunction were granted than the plaintiffs will if the injunction is refused.

“R.D. Wilson, J.”
The Honourable Mr. Justice R.D. Wilson