Date: 20010129
Docket: T-1258-00
BETWEEN:
| Chief Larry Commodore, Chief of the Soowahlie Indian Band, on behalf of himself and all other members of the Soowahlie Indian Band, and on behalf of himself and all other members of the Sto:lo Aboriginal Nation |
| Chief David Sepass, Chief of the Skowkale Indian Band, on behalf of himself and all other members of the Skowkale Indian Band, and on behalf of himself and all other members of the Sto:lo Aboriginal Nation |
| Chief Joe Hall, Chief of the Tzeachten Indian Band, on behalf of himself and all other members of the Tzeachten Indian Band, and on behalf of himself and all other members of the Sto:lo Aboriginal Nation |
| Chief Frank Malloway, Chief of the Yakweakwioose Indian Band, and Chief Dalton Silver, Acting Chief of the Yakweakwioose Indian Band, and on behalf of themselves and all other members of the Sto:lo Aboriginal Nation |
Applicants
AND:
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an appeal by the respondent from an Order of Madam Prothonotary R. Arnovitch dated November 21, 2000, wherein she dismissed the respondent's motion to convert the applicants' judicial review application into an action pursuant to section 18.4 of the Federal Court Act. In the alternative, the respondent challenges an irregularity in the judicial review application insofar as the grounds pleaded do not conform with Rule 301(e) of the Federal Court Rules.
[2] The applicants are members of four Indian bands which form part of the Sto:lo Aboriginal Nation and are representing aboriginal people living in or around Chilliwack, British Columbia. In July of 2000 they commenced a judicial review application in this Court challenging the validity of Order-in-Council P.C.-2000-925 dated June 16, 2000, which authorizes the Minister of Defence to transfer title of approximately sixty-two hectares of land to the Canada Lands Company Limited pursuant to the Federal Real Property Act, S.C. 1991, c. 50.
[3] The respondent brought a motion to convert the judicial review application into an action on the basis that the application and supporting evidence raised the issue of proof of aboriginal rights and title to the lands in question. Prothonotary Aronovitch dismissed the Respondent's motion by decision dated November 21, 2000, stating her reasons, in part, as follows:
| I accept that the matter for determination in this application is not as to the title or rights of the applicants in the land at issue. The applicants in this judicial review are seeking to establish the scope of the fiduciary duty and obligations of the Crown to them, if any, on the facts of this case namely, in the circumstances where the Crown has knowledge of a claim as well as the basis of evidence supporting the claim. |
| It may well be, that the application, as the respondent suggests, will be unsuccessful in establishing a duty or a breach thereof on the basis of asserted rather than proven rights. That, however, goes to the merits of the judicial review and that deficiency in grounds can, and I am sure will, be argued by Canada in defence. |
| As to the evidenciary matters, I accept that the applicants' affidavit evidence, including regarding the central and contested issue of the establishment of the Douglas reserve and ensuing reserve rights to the Sto:lo, is proffered by the applicants as evidence of the basis or reasonableness of their claim as asserted and not, as proof of entitlement or the existence of reserve rights as such. |
| Accordingly, in my view, neither the Court, nor Canada will be prejudiced, in one case by having to determine, and in the other by having to disprove entitlement to such rights in the context of a summary proceeding, on insufficient or untested evidence. |
| If and when rights and title have to be determined, the matter can be set down for trial and will require full discoveries and cross-examination before the trier of fact. |
[4] The respondent now appeals from that decision on the grounds that the Prothonotary erred in law by finding that the applicants did not intend to prove aboriginal rights or title to the lands in question, but instead had a reasonably founded assertion of such rights and that this "assertion theory" did not require determination by way of an action.
[5] I am allowing the appeal for the following reasons.
[6] The jurisprudence has clearly established that cases which require proof of aboriginal rights or title require determination by way of an action. In MacMillan Bloedel Ltd. v. Mullin et al. (1985), 61 B.C.L.R. 145, one of the first cases to reach the courts dealing with claims of this nature, the British Columbia Court of Appeal rejected the assertion that aboriginal rights or title could be determined on the basis of affidavit evidence. The Court stated at p. 151:
| I am firmly of the view that the claim to Indian title cannot be rejected at this stage of the litigation. The questions raised by the claim are not the type of questions that should be decided on an interlocutory application. A great amount of factual evidence will have to be heard and considered, opinion evidence of those knowledgeable in these matters will have to be assembled and related to the factual evidence, and there will have to be a meticulous study of the law. That must take place at a trial; it cannot be done on an interlocutory application. |
[7] This same reasoning has been applied in a number of subsequent cases including Barlow v. Canada, [2000] F.C.J. No. 282 (T.D.); Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (April 30, 1999) Vancouver Registry No. A990300 (B.C.S.C.); Athabasca Tribal Council v. Alberta (Minister of Environmental Protection) (1985), 15 Admin. L.R. (3d) 110 (Alta. Q.B.); Calliou and Kelly Lake Cree Nation v. Canada (Ministry of Energy and Mines), (September 21, 1998, Vancouver Registry No. C984320 (B.C.S.C.); British Columbia (Minister of Forests) v. Westbank First Nation [2000] B.C.J. No. 1613 (B.C.S.C.).
[8] The most recent decision on this question is Haida Nation v. British Columbia (Minister of Forests), [2000] B.C.J. No. 2427 (B.C.S.C.), a case which deals with issues which are very similar, if not identical, to those raised in the case at bar. The Haida Nation judgment concerns a legal challenge by the Haida to certain statutory decisions made by the British Columbia Minister of Forests relating to timber harvesting on the Queen Charlotte Islands. The grounds raised at the hearing and addressed by the Court were that the assertion of aboriginal title gives rise to a fiduciary duty on the part of the Provincial Crown and triggers the protection of section 35 of the Constitution Act, 1982.
[9] In dismissing the Haida's petition, the British Columbia Supreme Court held that the assertion of aboriginal title cannot be determined without a trial. The Court stated at p. 8 as follows:
| I see fundamental weaknesses in the petitioners' argument. First, it purports to cast an onus on the Crown to disprove the asserted Aboriginal title of the Haida to all of the lands of Block 6. If the Crown has not done this, so the argument goes, the existence of Haida title to Block 6 must be presumed. But more than that, the argument requires that Haida title be presumed to exist, to the extent claimed by the Haida. Only if that presumption is made, can the argument proceed to the next step, namely, the contention that Haida title must be given "priority". This would permit the petitioners to argue that the Crown had the duty to "accommodate" Haida title. But I have concluded that there is no such presumption, in law. |
| The petitioners are saying, in effect, that the Crown has the burden of proving "justification" for infringing rights that have not yet been proved, in kind or in extent. In my opinion, the issue of whether there has been infringement of Aboriginal right cannot be decided until both the kind of right, and its extent, have been established. I think the fatal flaw is that the petitioners want results that could be achieved at a trial, and only after the Haida proved their Aboriginal title, and its infringement. |
| My opinion is that the scope of the Crown's fiduciary duty to the Haida cannot be determined without a trial. Whether the duty requires that priority be given to Aboriginal title, and if so, whether the measures taken by the Crown are consistent with the principle of priority, are issues that depend on the nature and extent of the Aboriginal right or title at issue. In my view, the judgement of Lamer, C.J.C. in Delgamuukw at paragraphs 162 to 167 indicates that these questions are matters for trial. |
[10] That reasoning is equally applicable to the case now before me. The applicants' judicial review application as currently pleaded raises the issues of proof of aboriginal rights and title. These are questions which can only be determined by way of a trial and accordingly the applicants' judicial review application should be converted into an action.
[11] Finally, the applicants submit that the fiduciary duty owed to them by the Crown and the accompanying fiduciary obligation to consult, are enforceable prior to the proof of the existence of rights and title to the land in question. I have reviewed the cases on which the applicants rely in support of their argument and am satisfied that they are distinguishable insofar as they arose in the context of existing treaty negotiations or an obligation arising under the statutory framework of the Environmental Assessment Act. In this regard, I agree with the British Columbia Supreme Court in British Columbia (Minister of Forests) v. Westbank First Nation, [2000] B.C.J. No. 1613 that the cases cited by the applicant on this point do not stand for the proposition that a fiduciary obligation to consult arises merely in the face of asserted rights.
[12] For these reasons, the appeal from the Prothonotary's decision is allowed. The applicants' judicial review application is hereby converted into an action pursuant to section 18.4 of the Federal Court Act. If the applicants choose to proceed, this matter is to be managed as a specially managed proceeding.
JUDGE
OTTAWA, Ontario
January 29, 2001