File No. 34986

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL)

BETWEEN: ROGER WILLIAM, on his own behalf and on behalf of all other members of the Xeni Gwet'in First Nation Government and on behalf of all other members of the Tsilhqot'in Nation APPELLANT AND: HER MAJESTY THE QUEEN in right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region and THE ATTORNEY GENERAL OF CANADA RESPONDENTS AND: ATTORNEY GENERAL OF QUEBEC, ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA, B.C. WILDLIFE FEDERATION and B.C. SEAFOOD ALLIANCE, CHIEF WILSON and CHIEF JULES, SUMMIT, TE'MEXW TREATY ASSOCIATION, BUSINESS COUNCIL OF BRITISH COLUMBIA, COUNCIL OF FOREST INDUSTRIES, COAST FOREST PRODUCTS ASSOCIATION, MINING ASSOCIATION OF BRITISH COLUMBIA and ASSOCIATION FOR MINERAL EXPLORATION BRITISH COLUMBIA, CHIPPEWAS OF NAWASH UNCEDED FIRST NATION, SAUGEEN FIRST NATION, WALPOLE ISLAND FIRST NATION and UNITED CHIEFS and COUNCILS OF MNIDOO MNISING, ASSEMBLY OF FIRST NATIONS, GITANYOW HEREDITARY CHIEFS OF GWASS HLAAM, GAMLAXYELTXW, MALl!, GWINUU, HAIZIMSQUE, WATAKHAYETSXW, LUUXHON and WII'LITSWX, ON THEIR OWN BEHALF AND ON BEHALF OF ALL GITANYOW, HUL'QUMI'NUM TREATY GROUP, COUNCIL OF THE HAIDA NATION, GRAND COUNCIL TREATY #3, OFFICE OF THE WET'SUWET'EN CHIEFS, INDIGENOUS BAR ASSOCIATION OF CANADA, STO:LO NATION CHIEFS COUNCIL, , TSARTLIP FIRST NATION, and KWAKIUTL FIRST NATION, COALITION OF UNION OF B.C. INDIAN CHIEFS, OKANAGAN NATION ALLIANCE and the SHUSWAP NATION TRIBAL COUNCIL, and THEIR MEMBER COMMUNITIES, OKANAGAN, ADAMS LAKE, NESKONL!TH and SPLATSIN INDIAN BANDS, AMNESTY INTERNATIONAL and CANADIAN FRIENDS SERVICE COMMITTEE, LESLIE CAMERON on his own behalf and on behalf of all Members of WABAUSKANG FIRST NATION, BERNARD CONRAD LEWIS on his own behalf and on behalf of all other Members of the GITXAALA NATION, CHILKO RESOURCES AND COMMUNITY ASSOCIATION and COUNCIL OF CANADIANS INTERVENERS

FACTUM ON APPEAL OF THE INTERVENERS THE BUSINESS COUNCIL OF BRITISH COLUMBIA eta/. pursuant to Rules 37 and 42 of the Rules ofthe Supreme Court of Canada - I -

Counsel for the Intervener, Ottawa Agent for the. Intervener, Business Council of British Columbia eta!.: Business Council of British Columbia eta!.: Charles F. Willms Stephen Acker Fasken Martineau DuMoulin LLP Fasken Martineau DuMoulin LLP 2900- 550 Burrard Street 1300- 55 Metcalfe Street Vancouver, BC V6C OA3 Ottawa, ON KIP 615 Phone: 604 631 4 789 Phone: 613 2363882 Fax: 604 632 4789 Fax: 613 230 6423 E-mail: [email protected] E-mail: [email protected] - ii - ORJGINAL TO: The Registrar

COPIES TO:

Counsel for the Appellant: Ottawa Agent for the Appellant: David M. Rosenberg Henry S. Brown, Q.C. Rosenberg & Rosenberg Gowling LaFleur Henderson LLP 671D Market Hill Road 2600 - 160 Elgin Street Vancouver, BC V5Z 4B5 Ottawa, ON K 1P l C3 Phone: 604 879 4505 Phone: 6132331781 Fax: 604 879 4934 Fax: 613 788 3433 E-mail: [email protected] E-mail: [email protected]

Counsel for the Respondent, Ottawa Agent for the Respondent, Her Majesty the Queen in Right of the Province of Her Majesty the Queen in Right of the Province of British Columbia: British Columbia: Patrick G. Fay, Q.C. Nadia Effendi Borden Ladner Gervais LLP Borden Ladner Gervais LLP 1200 - 200 Burrard Street 11 00 - I 00 Queen Street Vancouver, BC V7X IT2 Ottawa, ON K l P l J9 Phone: 604 687 5755 Phone: 613 237 5160 Fax: 604 687 1415 Fax: 613 230 8842 E-mail: [email protected] E-mail: [email protected]

Counsel for the Respondent, Ottawa Agent for the Respondent, Attorney General of Canada: Attorney General of Canada: Mark Kindrachuk, Q.C. Christopher M. Rupar Attorney General of Canada Attorney General of Canada 123- 2"' Avenue South, 10'h Floor 234 Wellington Street, Room 212 Saskatoon, SK S7K 7E6 Ottawa, ON KIA OH8 Phone: 306 975 4765 Phone: 613 941 2351 Fax: 306 975 5013 Fax: 613 954 1920 E-mail: mark.kind rachuk@j ustice.gc.ca E-mail: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Attorney General of Manitoba Attorney General of Manitoba Nathaniel Carnegie Henry S. Brown, Q.C. Department of Justice, Constitutional Law Branch Gowling LaFleur Henderson LLP 1205 - 405 Broadway 2600 - 160 Elgin Street Winnipeg, MB R3C 3L6 Ottawa, ON KIP 1C3 Phone: 204 945 8763 Phone: 613 233 1781 Fax: 204 945 0053 Fax: 613 788 3433 E-mail: [email protected] E-mail: [email protected] [email protected] - iii - Counsel for the Intervener Ottawa Agent for the Intervener Attorney General of Saskatchewan Attorney General of Manitoba Mitch P. McAdam, Q.C. HenryS. Brown, Q.C. Ministry of Justice & Attorney General Gowling LaFleur Henderson LLP 820 - 1874 Scarth Street 2600 - 160 Elgin Street Regina, SK 24P- 4B3 Ottawa, ON KIP 1C3 Phone: 306 878 7846 Phone: 613 233 1781 Fax: 306 787 9111 Fax: 613 7883433 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Attorney General of Alberta Attorney General of Manitoba Sandra Felkins HenryS. Brown, Q.C. Department of Justice & Solicitor General Gowling LaFleur Henderson LLP 1670-639 5 Ave. S.W. 2600 - 160 Elgin Street Calgary, AB T2P OM9 Ottawa, ON KIP IC3 Phone: 403 297 3 781 Phone: 6132331781 Fax: 403 662 3824 Fax: 613 7883433 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Attorney General of Quebec Attorney General of Quebec Genevieve Verreau It Tremblay/Sylvain Leboeuf Pierre Landry Procureur general du Quebec Noel & Associes 2e etage, 1200, route de I' Eglise Ill, rue Champlain Quebec,QC GlV4Ml Gatineau, QC J8X 3R I Phone: 418 643 1477 Phone: 613 233 1781 Fax: 418 646 1696 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener First Nations Summit First Nations Summit Maria Morellato, Q.C. Brian A. Crane, Q.C. Mandell Pinder LLP Gowling LaFleur Henderson LLP 422 - I 080 Mainland Street 2600 - I 60 Elgin Street Vancouver, BC V6T 2T4 Ottawa, ON KIP IC3 Phone: 819 771 7393 Phone: 613 233 1781 Fax: 819 771 5397 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Te'mexw Treaty Association Te'mexw Treaty Association Robert J.M. Janes HenryS. Brown, Q.C. Janes Freedman Kyle Law Corporation Gowling LaFleur Henderson LLP 816- 1175 Douglas Street 2600 - 160 Elgin Street Victoria, BC V8W 2El Ottawa, ON KIP 1C3 Phone: 250 405 3460 Phone: 6132331781 Fax: 250 381 8567 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected] - iv-

Counsel for the Intervener Ottawa Agent for the Intervener Assembly of First Nations Assembly of First Nations Joseph J. Arvay, Q.C. Eugene Meehan, Q.C. Catherine J. Boies Parker Supreme Advocacy LLP Professor Patrick Macklem 100- 397 Gladstone Avenue Arvay Fin law Ottawa, ON K2P OY9 1320- 355 Burrard Street Phone: 613 695 8855, Ext. 101 Vancouver, BC V6C 2G8 Fax: 613 695 8580 Phone: 604 689 4421 E-mail: [email protected] Fax: 888 575 3281 E-mail: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Gitanyow Hereditary Chiefs of Gwass Hlaam,Gitanyow Hereditary Chiefs of Gwass Hlaam, Gamlaxyeltxw, Malii, Gwinuu, Haizmsque,Gamlaxyeltxw, Malii, Gwinuu, Haizmsque, Watakhayetsxw, Luuxhon and Wiielitswx, on theirWatakhayetsxw, Luuxhon and Wiielitswx, on their own behalf and on behalf of all Gitanyow own behalf and on behalf of all Gitanyow Peter R. Grant HenryS. Brown, Q.C. Peter Grant & Associates Gowling LaFleur Henderson LLP 900 - 777 Hornby Street 2600 - 160 Elgin Street Vancouver, BC V6Z 1S4 Ottawa, ON KIP IC3 Phone: 604 685 1229 Phone: 613 2331781 Fax: 604 685 0244 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener Ottawa Agent for the Intervener Hul'qumi'num Treaty Group Hul'qumi'num Treaty Group Robert B. Morales Henry S. Brown, Q.C. P.O. Box356 Gowling LaFleur Henderson LLP Duncan, BC V9L 3X5 2600 - 160 Elgin Street Ottawa, ON KIP !C3 Phone: 250 748 5233 Fax: 250 748 5264 Phone: 613 2331781 E-mail: n/a Fax: 613 563 9869 E-mail: [email protected]

Council for the Intervener Ottawa Agent for the Intervener Council of the Haida Nation Council of the Haida Nation Terri-Lynne Williams-Davison Henry S. Brown, Q.C. White Raven Law Corporation Gowling LaFleur Henderson LLP 16541 Upper Beach Road 2600 - 160 Elgin Street Surrey, BC V3S 9R6 Ottawa, ON KIP 1C3 Phone: 604 536 5541 Phone: 613 233 1781 Fax: 604 536 5542 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected] - v- Council for the Intervener Ottawa Agent for the Intervener Office of the Wet'suwet'en Chief Office of the Wet'suwet'en Chiefs Peter R. Grant HenryS. Brown, Q.C. Peter Grant & Associates Gowling LaFleur Henderson LLP 900 - 777 Hornby Street 2600 - 160 Elgin Street Vancouver, BC V 6Z I S4 Ottawa, ON KIP I C3 Phone: 604 685 I229 Phone: 613 233 1781 Fax: 604 685 0244 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected]

Council for the Intervener Ottawa Agent for the Intervener Indigenous Bar Association of Canada Indigenous Bar Association of Canada David C. Nahwegahbow Guy Regimbald Nahwegahbow, Corbiere Genoodmagejig Gowling LaFleur Henderson LLP I 09 - 5884 Rama Road 2600 - 160 Elgin Street Rama, ON L3V 6H6 Ottawa, ON KIP 1C3 Phone: 705 325 0520 Phone: 613 786 0197 Fax: 705 325 7204 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected]

Council for the Intervener Ottawa Agent for the Intervener Tsawout First Nation, Tsartlip First Nation,Tsawout First Nation, Tsartlip First Nation, Snuneymuxw First Nation and Kwakiutl First Nation Snuneymuxw First Nation and Kwakiutl First Nation John W. Gailus Eugene Meehan, Q.C. Christopher G. Devlin Supreme Advocacy LLP Devlin Gail us I 00 - 397 Gladstone Avenue 556 Herald Street Ottawa, ON K2P OY9 Victoria, BC V8W IS6 Phone: 613 695 8855, Ext. 101 Phone: 250 361 9469 Fax: 613 695 8580 Fax: 250 361 9429 E-mail: [email protected] E-mail: [email protected]

Council for the Intervener Ottawa Agent for the Intervener Coalition of Union of B.C. Indian Chiefs, OkanaganCoalition of Union of B.C. Indian Chiefs, Okanagan Nation Alliance and the Shuswap Nation Triba!Nation Alliance and the Shuswap Nation Tribal Council and their member communities, Okanagan,Council and their member communities, Okanagan, Adams Lake, Neskonlith and Splatsin Indian Bands Adams Lake, Neskonlith and Splatsin Indian Bands Louise Mandell, Q.C. Brian A. Crane, Q.C. Mandell Pinder LLP Gowling LaFleur Henderson LLP 422- 1080 Mainland Street 2600- 160 Elgin Street Vancouver, BC V6T 2T4 Ottawa, ON KIP IC3 Phone: 604 681 4146 Phone: 613 233 1781 Fax: 604 681 0959 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected] -vi- Council for the Intervener Ottawa Agent for the Intervener Amnesty International and Canadian Friends ServiceAmnesty International and Canadian Friends Service Committee Committee Justin Safayeni Michael J. Sobkin Stockwoods LLP 2 - 90 Blvd. de Lucerne 4130-77 King Street West Gatineau, QC J9H 7K8 Toronto, ON M5K !HI Phone: 819 778 7794 Phone: 416 593 7200 Fax: 8197781740 Fax: 416 593 9345 E-mail: [email protected] E-mail: [email protected]

Council for the Intervener Ottawa Agent for the Intervener Chilko Resorts and Community Association andChilko Resorts and Community Association and Council of Canadians Council of Canadians Gregory J. McDade, Q.C. Michael J. Sobkin F. Matthew Kirchner 2- 90 Blvd. de Lucerne Kate M. Bloomfield Gatineau, QC J9H 7K8 Ratcliff & Company Phone: 819 778 7794 500 - 221 West Esplanade Fax: 8197781740 North Vancouver, BC V7Y 313 E-mail: [email protected] Phone: 604 988 5201 Fax: 604 988 1452 E-mail: [email protected]

Council for the Intervener Ottawa Agent for the Intervener Bernard Conrad Lewis, on his own behalf and onBernard Conrad Lewis, on his own behalf and on behalf of all other members of the Gitxaala Nation behalf of all other members of the Gitxaala Nation Tim A. Dickson Matthew Estabrooks Farris, Vaughan, Wills & Murphy LLP Gowling LaFleur Henderson LLP 1 25 h Floor - 700 West Georgia Street 2600 - 160 Elgin Street Vancouver, BC V7Y 1B3 Ottawa, ON K 1P 1C3 Phone: 604 661 9341 Phone: 613 233 1781 Fax: 604 661 9349 Fax: 613 563 9869 E-mail: [email protected] E-mail: [email protected] -I-

TABLE OF CONTENTS

PAGE

PART I OVERVIEW AND STATEMENT OF FACTS 1

The Business Coalition and its members' interest in these 1 proceedings

Issues in the Court below 3

PART II POSITION WITH RESPECT TO APPELLANT'S 4 QUESTIONS

PART III ARGUMENT 5

Economic prosperity for all citizens requires certainty 5

Provincial legislation applies to Aboriginal title lands 6

Nature of Aboriginal title and the duty to consult 8

PART IV SUBMISSIONS CONCERNING COSTS 10

PARTY ORDER SOUGHT 10

PART VI TABLE OF AUTHORITIES 11

PART VII RELEVANT LEGISLATIVE PROVISIONS 12 PART I: OVERVIEW AND STATEMENT OF FACTS

1. By order of LeBel J. on July 30,2013, the Business Council of British Columbia, Council of Forest Industries, Coast Forest Products Association, Mining Association of British Columbia and Association for Mineral Exploration British Columbia (collectively, the "Business Coalition") were granted leave to intervene in this appeal.

2. The Business Coalition takes the position that the Province of British Columbia does have the statutory and constitutional authority to authorize timber harvesting on Aboriginal title lands. If provincial laws do not apply to Aboriginal title lands there will be a legislative vacuum,. resulting in significant uncertainty for existing tenure holders and businesses who service those tenures, and risks for existing and prospective investment in British Columbia. The Constitution and the jurisprudence make it clear that the provincial government must have a role in the regulation of resources.

3. The Business Coalition also takes the position that the Court of Appeal correctly adopted a site-specific approach to the definition and proof of Aboriginal title. This approach to Aboriginal title is consistent with this Court's previous decisions and the underlying objective of reconciliation. The Appellant promotes a very broad approach, based on traditional territories, with the declared objective of extracting economic advantages. The approach urged by the Appellant would make it practically impossible for proponents of resource projects to discharge the procedural duty to consult that the Province typically delegates to proponents in accordance with this Court's decision in Haida Nation v. British Columbia (Minister ofForests). 1 Again, the territorial approach to Aboriginal title creates uncertainty and in the Business Coalition's submission would threaten the economy. Specifically, a territorial approach undermines the ability of corporations, and indeed First Nations, to ensure the global competitiveness that is required to attract capital and realize a return on current operations and future projects within natural resource sectors dependent on the land base.

The Business Coalition and its members' interest in these proceedings

4. Each member of the Business Coalition is an umbrella organization comprising a large number of individuals and corporations who carry on business in British Columbia The

'20o4 sec 73, [2004] s.c.R. 511. -2-

Business Council of British Columbia represents many companies and organizations whose operations depend on the use of Crown land or resources, such as mining companies, oil and gas companies, forest companies, tourism operations, and fishing and fish farming organizations. In many cases, the livelihood of constituent members depends on grants from the Province of British Columbia (the "Crown" or the "Province") permitting the use of Crown lands or the harvesting or extraction of resources from those lands. Members of the Council of Forest Industries ("COFI") and the Coast Forest Products Association operate pursuant to various forms of forest tenure granted by the Crown. Members of the Mining Association of British Columbia and the Association for Mineral Exploration British Columbia hold various forms of mining interests and, in some cases, have been granted tenure by the Crown to exploit those interests.

5. This litigation "was precipitated by proposed forestry activities" in the areas over which the Appellant asserted Aboriginal rights and title (the "Claim Area").2 The proponent was Carrier Lumber Ltd., a member of COFI. The Claim Area is within in the Williams Lake Timber Supply Area, where, as the trial judge recognized, "forestry is responsible for more jobs than any other component of the economy. Other major areas of the economy include mining, tourism, farming and ranching."3 This conclusion is unremarkable in a province like British Columbia where there are so many single resource sector communities.

6. It should be emphasized that the Appellant now asserts that Aboriginal title exists over an area that is different from the Claim Area described in the Appellant's pleadings and advanced at trial. Although the trial judge dismissed the claim for a declaration of Aboriginal title, he provided an "opinion" that approximately 40% of the Claim Area, along with land outside the Claim Area, was subject to Aboriginal title. The Court of Appeal described this as the "Opinion Area".4 On appeal to this Court, the Appellant seeks a declaration of Aboriginal title only over that part of the Opinion Area within the original Claim Area. 5

2 Reasons of Grobennan J.A. for the Court, 2012 BCCA 285 ("Appeal Decision"), para. 10. 3 Reasons ofVickers J., 2007 BCSC 1700 ("Trial Decision"), para. 55. 4 Appeal Decision, para 78; Trial Decision, paras. 958-961. ' Appellant's Factum, paras. 78, 301. Quaere whether this is appropriate in light of this Court's decision in R. v. Pamajewon, [1996] 2 S.C.R. 821, at para. 27 and the observations of the trial judge in Delgamuukw v. British Columbia, (1991] 3 W.W.R. 97, 1991 CanLII 2372 (B.C.S.C.) at p. I 19 W.W.R., since the Appellant relies on findings by the trial judge on general claims made in argument, not in the pleadings. -3-

Issues in the courts below

7. As a consequence of the issuance of a cutting permit and other forestry activities, the Xeni Gwet'in people (members of the Tsilhqot'in Nation) issued the Xeni ·Gwet'in (Nemiah) Declaration on August 23, 1989. The Xeni Gwet'in Declaration asserted that "[t]here shall be no commercial logging", "[t]here shall be no mining or mining explorations" and "[t]here shall be no commercial road building."6 Despite the declared intention to halt commercial resource development, the Appellant opposed a motion brought by the Attorney General that would have required the Appellant to give notice of claims to all land or resource use tenure holders, or applicants for tenure, whose interests might be affected by the litigation. 7

8. The trial judge dismissed the claims for declarations of Aboriginal title but, as noted above, provided an opinion that if the pleadings had allowed, he would have declared approximately 40% of the Claim Area along with land outside the Claim Area to have been subject to Aboriginal title. The trial judge concluded that the Appellant had demonstrated exclusive occupation based on effective control of the Tsilhqot'in Nation's traditional territory, and rejected the proposition that exclusive occupation had to be established on a site-specific basis.8 The trial judge also decided that Aboriginal title land is not "Crown land" and that the provincial Forest Act does not apply to Aboriginal title land. The trial judge held that the jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government pursuant to s. 91(24) of the Constitution Act, 1867. In the alternative, "the doctrine of interjurisdictional immunity is engaged and the Forest Act is inapplicable where it intrudes or touches upon forest resources located on Aboriginal title lands." If the Province did have the authority to infringe, the trial judge found that the Province had, in administering the Forest Act, unjustifiably infringed the Appellant's Aboriginal title in the Claim Area.9

9. The Court of Appeal concluded that a territorial claim for Aboriginal title does not meet the tests set out by this Court in Delgamuukw10 and Marshall; Bernard, 11 does not meet the

6 Trial Decision, paras. 23, 39, 59-92; see also Appellant's Factum, paras. 63-66. 7 Trial Decision, para. 89; see also William v. Riverside Forest Products Limited, 2002 BCSC 1199. 8 As summarized in the Appeal Decision, paras. 37, 39, 78-84. 9 Appeal Decision, paras. 85-91; Trial Decision, Executive Summary and paras. 963-981, 1012-1013, 1032, 1045- 1049,1141. 10 Delgamuukw v. British Columbia, [ 1997] 3 S.C.R. I 010. -4- purposes of s. 35 of the Constitution Act, 1982 or the rationale for the common law's recognition of Aboriginal title, and is antithetical to the goal of reconciliation. Given this conclusion, the Court found it unnecessary "to come to any final determination as to whether [the trial judge] was correct in finding that the Forest Act was inapplicable to title Iands." 12

PART II: POSITION WITH RESPECT TO APPELLANT'S QUESTIONS

10. The central issue is whether Court of Appeal erred in adopting a site-specific approach to Aboriginal title. The Appellant supports the trial judge's approach to Aboriginal title based on "regular use" as part of a systemic, recurring pattern of land use. 13 The Business Coalition takes the position that the Court of Appeal did not err in adopting a site-specific approach to the definition and proof of Aboriginal title. The Business Coalition submits that in deciding the correct legal test for Aboriginal title, this Court must take into account the purpose of section 35 of the Constitution Act, 1982 which is to reconcile the prior presence of Aboriginal peoples with the assertion of Crown sovereignty. As part of that reconciliation, the Court must also take into account the potential consequences for the Haida consultation process, including the practical effects for proponents operating on land that may be subject to Aboriginal title land and the nature of the accommodation pursued by the Appellant and other First Nations.

I 1. The Appellant also asserts that the Province does not have the statutory authority to authorize timber harvesting on Aboriginal title lands. The Appellant submits that the constitutional questions stated for decision by this Court14 should be answered in the affirmative, arguing that provincial legislation is constitutionally inapplicable to Aboriginal title lands and does not authorize unjustified infringements of Aboriginal title. 15 The Business Coalition takes the position that provincial legislation does apply, as a matter of statutory interpretation and constitutional law, to Aboriginal title lands. This Court has said that a province may infringe Aboriginal title. In order to infringe, provincial legislation must apply to lands encumbered by Aboriginal title. Otherwise, there would be no lawful method for the Province to justifiably infringe Aboriginal title. The Business Coalition takes the position that the second constitutional

11 R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220. 12 Appeal Decision, paras. 125, 214-243, 344. 13 Appellant's Factum, 144-147,301. 14 Appellant's Factum, paras. 94-95. 15 Appellant's Factum, paras. 248-287. -5- question should not be answered in the absence of a determination that legislation has unjustifiably infringed Aboriginal title. 16 In the result, the Business Coalition submits that the answer to the first constitutional question should be no and that the second constitutional question should not be answered.

PART ill: ARGUMENT

Economic prosperity for all citizens requires certainty

12. There are unresolved claims of Aboriginal title in almost every province and territory in Canada. The application of provincial legislation to Aboriginal title lands is of the utmost importance to all citizens of Canada. Virtually the entire province of British Columbia is subject to claims of Aboriginal title. Business and industry in British Columbia require certainty and predictability in order to invest, plan, operate and provide employment and prosper. The Business Coalition submits that there must be certainty concerning the application of provincial law, particularly in respect of resource tenures granted by the Crown. The Appellant's position, that the Province does not have the statutory or constitutional authority to legislate in respect of Aboriginal title lands, has enormous consequences for land use and resource development and existing operations and economic activity in British Columbia. If provincial law does not apply to any lands found by a court to be subject to Aboriginal title, there will be a legislative vacuum that will hamper investment and the creation of jobs and will endanger the viability of existing operations and jobs in British Columbia. The resulting investment chill for an economy such as British Columbia will have serious and perhaps irrevocable consequences for the Province's reputation and will erode provincial revenues derived from the land base. Any such erosion of provincial revenues and private sector investment has a direct impact on government's ability to fund services (including healthcare, education and social programs) and on community services such as banking and retail. The effects are magnified for resource-based communities that are

16 While noting that since Aboriginal title is a sui generis property right, there would be no impediment to an award of damages for unjustified infringement of that right. As Chief Justice Lamer stated in Delgamuukw (at para. 169): "aboriginal title . .. has an inescapably economic aspect, particularly when one takes into account the modern uses to which lands held pursuant to aboriginal title can be put. The economic aspect of aboriginal title suggests that compensation is relevant to the question of justification as well .... fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated." -6-

often dependent on a single resource or corporate operator in mining, energy, resource exploration or forestry.

13. Similarly, there must be certainty in respect of the nature of Aboriginal title. As explained earlier, the Crown delegates to proponents various procedural obligations in relation to the duty to consult. It would be immensely challenging for private parties to discharge those delegated procedural obligations in the face of stated assertions of Aboriginal title based on traditional territories. Consultation based on a site-specific approach to the definition and proof of Aboriginal title is achievable in practice and ultimately more consistent with the underlying objective of reconciliation.

Provincial legislation applies to Aboriginal title lands

14. The position that provincial forestry legislation, or any provincial legislation regarding natural resources, is inapplicable to Aboriginal title lands is contrary to longstanding authority, including decisions of this Court. It is also contrary to the manner in which resource development has been governed since Confederation.

15. The Appellant seeks to uphold the trial judge's reasoning that the Forest Act applies only to "Crown land" and that Aboriginal title is not Crown land. As a matter of statutory interpretation, this position is incorrect. On its true construction, the Forest Act does apply to land held under Aboriginal title. The underlying title to lands and minerals within the province remains vested in the Crown in right of the province but may be subject to the burden of Aboriginal title. Even if burdened by Aboriginal title, the timber is still Crown timber and the minerals are still Crown minerals. 17 Provincial legislation continues to apply.

16. The conclusion is the same as a matter of constitutional law. In St. Catherine's Milling 18 and Lumber Company v. The Queen , the Privy Council considered whether s. 91(24) of the Constitution Act, 1867, by its reference to "lands reserved for the Indians", put beyond the powers of the province of Ontario the ability to legislate in relation to lands subject to Aboriginal title. The Judicial Committee held that it did not. The Privy Council also noted that whatever the

17 St. Catherine's Milling and Lumber Company v. The Queen (1886), 14 App. Cas. 46 (J.C.P.C), esp. at pp. 54, 58, 59. 18 (1886), 14 App. Cas. 46 (J.C.P.C). -7- nature of Aboriginal title, it did not amount to ownership in fee simple. While the Privy Council's characterization of Aboriginal interests as a "personal and usufructuary right dependent upon the good will of the Sovereign" has been further developed and refined by this Court, the basic premise remains intact: Aboriginal title does not deprive a province of its ability to grant forest tenures in the land of the province under ss. 92(5), 92A and I 09 of the Constitution Act, 1867. 19

I 7. This Court has confirmed that a province is entitled to infringe Aboriginal title if the infringement can be justified. This Court has explained that "the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that ... in principle, can justify the infringement of aboriginal title".20 A province can neither infringe nor justify infringement if provincial legislation does not apply to lands encumbered by Aboriginal title: without legislative authority, there would be no lawful method for the Province to justifiably infringe Aboriginal title.

18. On the Appellant's theory, no provincial laws apply to timber and minerals on Aboriginal title land. Sections 91(24), 92(5) and 92A of the Constitution Act, 1867 and section 35 of the Constitution Act, 1982 cannot be read as intending that provincial legislative authority does not exist over lands encumbered by Aboriginal title. Nor can the Constitution Acts be interpreted as providing that Aboriginal title supplants provincial legislative authority. The jurisprudence of this and other courts does not support this conclusion. 21

19. The Business Coalition agrees with the Respondents and the intervening Attorneys General that it is not appropriate to invoke the doctrine of inteijurisdictional immunity in order to determine the application of provincial legislation to Aboriginal title lands. Again, the

19 A position accepted in Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 (leave to appeal granted Sept. 19, 2013) at para. 129, where the Ontario Court of Appeal ruled that Ontario does not require Canada's approval to "take up" treaty lands for resource projects. See also Chartrand v. District Manager, cited above, at para. 204: "Section 92(5) and later s. 92A(b) granted the Provincial Crown jurisdiction to exclusively make laws in relation to forestry matters. The Provincial Crown's administration and control of lands and forests, including lands subject to treaty rights, includes the ability to sell, lease and license such lands and forests." 20 Delgamuukw at paras. 160, 165 per Lamer C.J.; see also reasons of La Forest J. at paras. 201-202 and McLachlin J. (as she then was) at para. 209 agreeing on this issue. 21 See, e.g., Keewatin and Chartrand, both supra. -8- jurisprudence including this Court's decision in Delgamuukw makes it clear that provinces can infringe Aboriginal title. The only way to infringe is under the authority of provincial legislation. Applying interjurisdictional immunity to prevent the application of provincial laws would countermand the regime that has governed the regulation and use of natural resources in this country since Confederation.

20. A declaration that provincial laws do not apply to Aboriginal title lands, as the Appellant urges, would result in a legal vacuum that would create significant risk to the economy of British Columbia. The Appellant optimistically suggests that the various levels of government could negotiate a resolution, but this does not alleviate uncertainty about rights acquired pursuant to provincial authority. This Court would presumably adhere to the principle that "the courts will not allow the Constitution to be used to create chaos and disorder" and uphold existing rights 2 granted under colour of righe • Nevertheless, to declare that provincial laws are inapplicable would lead to confusion and litigation and would create a barrier to reconciliation.

Nature of Aboriginal title and the duty to consult

21. While the claims process is ongoing, the Crown has a duty to consult with Aboriginal claimants on matters that may adversely affect their treaty and Aboriginal rights, and to accommodate those interests in the spirit of reconciliation. Although reconciliation is primarily a matter between the Crown and First Nations, private proponents are affected because of their involvement in the consultation process and because they require certainty about the status of their tenures and other Crown-granted interests in order to finance and develop projects pending agreements between the Crown and First Nations.

22. Crown conduct triggers the duty to consult, but consultation issues typically arise in the course of a private party's application for tenure or other rights emanating from the Crown. In Haida Nation, this Court agreed that "the Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development. "23 The Province routinely delegates important aspects of the consultation process. Among other things, the Province expects proponents to suggest mitigation or avoidance measures - accommodation - that might lessen or avoid potential impacts on claimed Aboriginal rights, including title, because it is the proponent

22 Re Manitoba Language Rights, [ 1985] I S.C.R. 721, at pp. 755-768. 23 Haida Nation per McLachlin C.J. for the Court at para. 53. -9-

which can best assess the immediate impacts of proposed activities. Proponents must understand the nature of Aboriginal title in order to discharge these delegated obligations.

23. The Appellant expressly links his territorial approach to Aboriginal title with the duty to consult and economic benefits, arguing that "only Aboriginal title confers the right to the economic benefit from the land and resources, and the right to choose how the lands are used. Prima facie Aboriginal title claims provide support for First Nations in Crown consultation for benefit sharing from development and an enhanced voice in how development proceeds." On the other hand, the Appellant maintains that the Court of Appeal's decision leaves "minimal leverage for economic benefits or a meaningful role in decision-making about resource development on their traditional lands." Assuming economic accommodation is part of the substantive aspects of the Crown's Haida duty to consult/4 it is difficult to understand how the territorial approach to aboriginal title would foster reconciliation between the Crown and First Nations in light of the consultation uncertainty it creates.Z5 A First Nation's demand for economic accommodation from the Crown, based on a territorial claim to Aboriginal title, effectively means that there is no aspect of procedural consultation in relation to aboriginal title that can meaningfully be delegated creating devastating uncertainty for ongoing operations, investment, employment and future project development.

24. If Aboriginal title claims were based on the traditional territory approach, as the Appellant asserts, it is difficult to conceive of workable mitigation or avoidance strategies for tenure acquisition or project development. The resulting uncertainty would be an impediment to achieving reconciliation, one of the purposes of Haida consultation. The difficulty for private interests is compounded where there are overlapping claims,26 which is more likely where Aboriginal title is asserted on a traditional territory basis.Z7 On the other hand, if claims of Aboriginal title relate to specific sites, it is easier to achieve some level of certainty in relation to interim reconciliation. Proponents will better understand the potential impact of Crown-granted

24 Although Fenlon J. questioned whether this was so in Adams Lake Indian Band v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2013 BCSC 877, at paras. 94 to 98. 25 It is important to note that business and industry in Canada do provide significant economic benefits to First Nations however those benefits arise from working relationships between private parties and First Nations and not a legal obligation. 26 In British Columbia, there are few areas without some overlapping claims to aboriginal title. 27 As the trial judge noted, "[b ]ecause of the overlapping nature of Aboriginal territories, the sum total of Aboriginal title claims has been said to exceed 100% of the provincial land mass": Trial Decision, paras. 930-938 and 1013. - 10- rights on the asserted title and to propose mitigation or avoidance measures that might be taken in relation to the potential impact of the Crown conduct.

25. The definition of Aboriginal title has an inescapable economic component but the Appellant's desire to secure economic benefits as part of the consultation process cannot dictate how Aboriginal title is defined. The Business Council agrees with the Attorney General of Canada that "the economic component of Aboriginal title is not part of the test for its existence.. ,2sMoreover, economic. accommo d'atwn is not part of the consultation process endorsed by this Court in Haida Nation. 29

PART IV: SUBMISSIONS CONCERNING COSTS

26. The interveners have been ordered to pay to the appellant and respondents any additional disbursements occasioned by their interventions. The Business Coalition asks that no other costs be awarded against it and seeks no order for costs in its favour.

PARTY: ORDER SOUGHT

27. The Business Coalition seeks leave to present oral argument at the hearing of the appeal.

ALL OF WHICH IS RESPECTFULLY SU

Counsel for the Applicants, the Business Council of British Columbia, Council of Forest Industries, Coast Forest Products Association, Mining Association of September 20, 2013 British Columbia and Association for Mineral Vancouver, British Columbia Exploration British Columbia

28 Factum of the Attorney General of Canada, paras. 73-35. 29 Adams Lake Indian Band v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations, 2013 BCSC 877, at paras. 94 to 98 -11-

PART VI: TABLE OF AUTHORITIES

No. Paragraph(s) Cases 1. Adams Lake Indian Band v. British Columbia (Ministry ofForests, Lands 23,25 and Natural Resource Operations, 2013 BCSC 877 2. Chartrand v. District Manager, North Island Central Coast Forest 16, 18 District et al, 2013 BCSC 1068 3. Delgamuukw v. British Columbia, [1991] 3 W.W.R. 97, 1991 CanLII 6, 9 2372 (B.C.S.C.) 4. Delgamuukw v. British Columbia, [1997]3 S.C.R. 1010 9, 11, 17, 19 5. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, 3,22,25 2004 S.C.R. 511 6. Keewatin v. Ontario (Natural Resources), 2013 ONCA !58 16 7. R. v. Pamajewon, [1996]2 S.C.R. 821 6 8. R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220 9 9. Re Manitoba Language Rights, [1985] I S.C.R. 721 20 10. St. Catherine's Milling and Lumber Company v. The Queen (1886), 14 15, 16 App. Cas. 46 (J.C.P.C) II. Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 7, 8 12. William v. Riverside Forest Products Limited, 2002 BCSC I 199 7 Statutes 13. Constitution Act, 1867, ss. 91(24), 92(5), 92A, 109 8, 16, 18 14. Constitution Act, 1982, s. 35 9, 10 15. Forest Act, R.S.B.C. 1996 c. !57 8, 9, 15 - 12-

PART VII: RELEVANT LEGISLATIVE PROVISIONS

[ONLY THOSE PROVISIONS NOT REPRODUCED IN THE FACTUMS OR BOOKS OF AUTHORITIES OF THE APPELLANT OR RESPONDENTS!

I Constitution Act, 1867, ss. 92(5), 92A

'