National Energy Board in the Matter of +Hdulqj

NATIONAL ENERGY BOARD

IN THE MATTER OF Hearing Order GH-001-2014 – NOVA Gas Transmission Ltd. Application for the North Montney Pipeline Project

BOOK OF AUTHORITIES of PROPHET RIVER FIRST NATION

December 3, 2014

TO: The Secretary National Energy Board 517 Tenth Avenue Calgary, Alberta T2R 0A8

Index

TAB DESCRIPTION

1 Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354

2 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73

3 Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470

Homalco Indian Band v. British Columbia (Minister of Agriculture, Food & Fisheries), 4 2005 BCSC 283

5 Kwikwetlem First Nation v. British Columbia Transmission Corp., 2009 BCCA 68

6 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

7 R. v. Badger, [1996] 1 S.C.R. 771

8 R. v. Sparrow, [1990] 1 S.C.R. 1075

9 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247

TAB 1 Page 1 2006 CarswellNat 3642, 2006 FC 1354, 25 C.E.L.R. (3d) 247, [2007] 1 C.N.L.R. 1, 303 F.T.R. 106 (Eng.), 153 A.C.W.S. (3d) 1, 2006 CF 1354

2006 CarswellNat 3642, 2006 FC 1354, 25 C.E.L.R. (3d) 247, [2007] 1 C.N.L.R. 1, 303 F.T.R. 106 (Eng.), 153 A.C.W.S. (3d) 1, 2006 CF 1354

Dene Tha' First Nation v. Canada (Minister of Environment)

Dene Tha' First Nation (Applicant) and Minister of Environment Minister of Fisheries and Oceans, Minister of Indian and Northern Affairs Canada, Minister of Transport, Imperial Oil Resources Ventures Limited, on behalf of the Proponents of the Mackenzie Gas Project, National Energy Board, and Robert Hornal, Gina Dolphus, Barry Greenland, Percy Hardisty, Rowland Harrison, Tyson Pertschy and Peter Usher, all in their capacity as panel members of a Joint Review Panel established pursuant to the Canadian Environmental Assessment Act to conduct an environmental review of the Mackenzie Gas Project (Respondents)

Federal Court

M.L. Phelan J.

Heard: June 19-23, 2006 Judgment: November 10, 2006 Docket: T-867-05

Counsel: Mr. Robert J.M. Janes, Mr. Robert Freedman for Applicant

Mr. Kirk Lambrecht, Q.C. for Respondent, Attorney General of Canada

Ms Mary E. Comeau for Respondent, Imperial Oil Resources Ventures Limited

Mr. Andrew Hudson for Respondent, National Energy Board

Mr. Greg Chase for Respondent, Joint Review Panel for the Mackenzie Gas Project

Subject: Public; Constitutional; Environmental; Natural Resources; Property; Civil Practice and Procedure

Aboriginal law --- Constitutional issues — Rights under constitutional statutes generally — Constitution Act, 1982

mechanisms to deal with planning for pipeline, notably a co-operation plan to reduce duplication of environmental and regulatory processes and joint review panel agreement ("JRP") which was agreement for environmental impact review of MPG — Applicant brought proceedings for judicial review seeking declaration that Federal government breached constitutionally entrenched duty to consult and accommodate First Nations people adversely affected by its conduct — Specifically, applicant claimed breach occurred when it was excluded from discussions and decisions regarding design of regulatory and environmental review process — Application granted — Crown's duty to consult had been breached — Canadian jurisprudence has identified the honour of the Crown as source of Crown's duty to consult in good faith with First Nations, and where reasonable and necessary, make required accommodation — Honour of Crown ensures that Crown fulfils goal of reconciliation of pre-existence of aboriginal societies with sovereignty of Crown, as provided in s. 35 of Constitution Act, 1982 — Specific infringement of aboriginal right is not required for government's duty to consult to be engaged — Evidence indicated that Federal government made no effort to consult applicant when formulating cooperation plan or JRP — Public forum process was not substitute for formal consultation — Duty of Federal government to consult arose at earliest sometime during contemplation of cooperation plan, since that plan set up means by which whole process would be managed — None of entities set up by government possessed either separately or together the jurisdiction to engage in consultation — First time government reached out to applicant was when it gave applicant just 24 hours to respond to process for JRP, which was too little, too late — By depriving applicant of opportunity to participate from outset, applicant's specific concerns were not incorporated into environmental and regulatory process — To preserve situation until final remedy order issued, JPR was enjoined from considering any aspect of MGB affecting applicant and from issuing any report.

Aboriginal law --- Constitutional issues — Fiduciary duty

Applicant was First Nations band residing in Alberta — Federal government began planning massive natural gas pipeline ("MPG") running from gathering facilities in northern Northwest Territories to southern distribution terminus in Alberta — Parts of pipeline were to run through applicant's territory as defined by treaty and through further areas over which it had rights to hunt, fish and trap — Federal government set up various regulatory mechanisms to deal with planning for pipeline, notably a co-operation plan to reduce duplication of environmental and regulatory processes and joint review panel agreement ("JRP") which was agreement for environmental impact review of MPG — Applicant brought proceedings for judicial review seeking declaration that Federal government breached constitutionally entrenched duty to consult and accommodate First Nations people adversely affected by its conduct — Specifically, applicant claimed breach occurred when it was excluded from discussions and decisions regarding design of regulatory and environmental review process — Application granted — Crown's duty to consult had been breached — Canadian jurisprudence has identified the honour of the Crown as source of Crown's duty to consult in good faith with First Nations, and where reasonable and necessary, make required accommodation — Honour of Crown ensures that Crown fulfils goal of reconciliation of pre-existence of aboriginal societies with sovereignty of Crown, as provided in s. 35 of Constitution Act, 1982 — Specific infringement of aboriginal right is not required for government's duty to consult to be engaged — Evidence indicated that Federal government made no effort to consult applicant when formulating cooperation plan or JRP — Public forum process was not substitute for formal consultation — Duty of Federal government to consult arose at earliest sometime during contemplation of cooperation plan, since that plan set up means by which whole process would be managed — None of entities set up by government possessed either separately or together the jurisdiction to engage in consultation — First time government reached out to applicant was when it gave applicant just 24 hours to respond to process for JRP, which was too little, too late — By depriving applicant of opportunity to participate from outset, applicant's specific concerns were not incorporated into environ-

mental and regulatory process — To preserve situation until final remedy order issued, JPR was enjoined from considering any aspect of MGB affecting applicant and from issuing any report.

Environmental law --- Statutory protection of environment — Environmental assessment — Aboriginal interests

Applicant was First Nations band residing in Alberta — Federal government began planning massive natural gas pipeline ("MPG") running from gathering facilities in northern Northwest Territories to southern distribution terminus in Alberta — Parts of pipeline were to run through applicant's territory as defined by treaty and through further areas over which it had rights to hunt, fish and trap — Federal government set up various regulatory mechanisms to deal with planning for pipeline, notably a co-operation plan to reduce duplication of environmental and regulatory processes and joint review panel agreement ("JRP") which was agreement for environmental impact review of MPG — Applicant brought proceedings for judicial review seeking declaration that Federal government breached constitutionally entrenched duty to consult and accommodate First Nations people adversely affected by its conduct — Specifically, applicant claimed breach occurred when it was excluded from discussions and decisions regarding design of regulatory and environmental review process — Application was granted — Crown's duty to consult had been breached — Canadian jurisprudence has identified the honour of the Crown as source of Crown's duty to consult in good faith with First Nations, and where reasonable and necessary, make required accommodation — Honour of Crown ensures that Crown fulfils goal of reconciliation of pre-existence of aboriginal societies with sovereignty of Crown, as provided in s. 35 of Constitution Act, 1982 — Specific infringement of aboriginal right is not required for government's duty to consult to be engaged — Evidence indicated that Federal government made no effort to consult applicant when formulating cooperation plan or JRP — Public forum process was not substitute for formal consultation — Duty of Federal government to consult arose at earliest sometime during contemplation of cooperation plan, since that plan set up means by which whole process would be managed — None of entities set up by government possessed either separately or together the jurisdiction to engage in consultation — First time government reached out to applicant was when it gave applicant just 24 hours to respond to process for JRP, which was too little, too late — By depriving applicant of opportunity to participate from outset, applicant's specific concerns were not incorporated into environmental and regulatory process — To preserve situation until final remedy order issued, JPR was enjoined from considering any aspect of MGB affecting applicant and from issuing any report.

Natural resources --- Oil and gas — Constitutional issues — Pipelines

— Specific infringement of aboriginal right is not required for government's duty to consult to be engaged — Evidence indicated that Federal government made no effort to consult applicant when formulating cooperation plan or JRP — Public forum process was not substitute for formal consultation — Duty of Federal government to consult arose at earliest sometime during contemplation of cooperation plan, since that plan set up means by which whole process would be managed — None of entities set up by government possessed either separately or together the jurisdiction to engage in consultation — First time government reached out to applicant was when it gave applicant just 24 hours to respond to process for JRP, which was too little, too late — By depriving applicant of opportunity to participate from outset, applicant's specific concerns were not incorporated into environmental and regulatory process — To preserve situation until final remedy order issued, JPR was enjoined from considering any aspect of MGB affecting applicant and from issuing any report. Cases considered by M.L. Phelan J.:

Forsyth v. Canada (Attorney General) (2002), 2002 FCT 643, 2002 CarswellNat 1408, 2002 CFPI 643, 2002 CarswellNat 1929, [2003] 1 F.C. 96, 222 F.T.R. 12 (Fed. T.D.) — referred to

Guerin v. R. (1984), 59 B.C.L.R. 301, 1984 CarswellNat 693, 1984 CarswellNat 813, [1984] 6 W.W.R. 481, [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321, (sub nom. Guerin v. Canada) 55 N.R. 161, [1985] 1 C.N.L.R. 120, 20 E.T.R. 6, 36 R.P.R. 1 (S.C.C.) — considered

Haida Nation v. British Columbia (Minister of Forests) (2004), 19 Admin. L.R. (4th) 195, 327 N.R. 53, [2004] 3 S.C.R. 511, 36 B.C.L.R. (4th) 282, 206 B.C.A.C. 52, 338 W.A.C. 52, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, 2004 CarswellBC 2656, 2004 CarswellBC 2657, 2004 SCC 73, 245 D.L.R. (4th) 33, [2005] 3 W.W.R. 419 (S.C.C.) — followed

Industrial Gas Users Assn. v. Canada (National Energy Board) (1990), 1990 CarswellNat 598, 33 F.T.R. 217, 43 Admin. L.R. 102 (Fed. T.D.) — referred to

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2005), 2005 SCC 69, 2005 CarswellNat 3756, 2005 CarswellNat 3757, [2006] 1 C.N.L.R. 78, 342 N.R. 82, [2005] 3 S.C.R. 388, 21 C.P.C. (6th) 205, 259 D.L.R. (4th) 610, 37 Admin. L.R. (4th) 223 (S.C.C.) — followed

Q. v. College of Physicians & Surgeons (British Columbia) (2003), 2003 SCC 19, 2003 CarswellBC 713, 2003 CarswellBC 743, 11 B.C.L.R. (4th) 1, 223 D.L.R. (4th) 599, 48 Admin. L.R. (3d) 1, (sub nom. Dr. Q., Re) 302 N.R. 34, [2003] 5 W.W.R. 1, (sub nom. Dr. Q. v. College of Physicians & Surgeons of British Columbia) [2003] 1 S.C.R. 226, (sub nom. Dr. Q., Re) 179 B.C.A.C. 170, (sub nom. Dr. Q., Re) 295 W.A.C. 170 (S.C.C.) — not followed

R. v. Sparrow (1990), 1990 CarswellBC 105, 1990 CarswellBC 756, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410 (S.C.C.) — considered

Roberts v. R. (2002), 2002 CarswellNat 3438, 2002 CarswellNat 3439, (sub nom. Wewaykum Indian Band v. Canada) 2002 SCC 79, (sub nom. Wewaykum Indian Band v. Canada) [2003] 1 C.N.L.R. 341, (sub nom. Wewaykum Indian Band v. Canada) 220 D.L.R. (4th) 1, (sub nom. Wewayakum Indian Band v. Canada) 297 N.R. 1, (sub nom. Wewaykum Indian Band v. Canada) [2002] 4 S.C.R. 245, (sub nom. Wewayakum In- dian Band v. Canada) 236 F.T.R. 147 (note) (S.C.C.) — considered

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004), 19 Admin. L.R. (4th) 165, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) 327 N.R. 133, 36 B.C.L.R. (4th) 370, 206 B.C.A.C. 132, 338 W.A.C. 132, 11 C.E.L.R. (3d) 49, [2005] 1 C.N.L.R. 366, 26 R.P.R. (4th) 50, 2004 CarswellBC 2654, 2004 CarswellBC 2655, 2004 SCC 74, 245 D.L.R. (4th) 193, [2004] 3 S.C.R. 550, [2005] 3 W.W.R. 403 (S.C.C.) — referred to

Statutes considered:

Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11, s. 1, reprinted R.S.C. 1985, App. II, No. 44

s. 35 — considered

Federal Courts Act, R.S.C. 1985, c. F-7

s. 18.5 [en. 1990, c. 8, s. 5] — considered

s. 28(1)(f) — referred to

Indian Act, R.S.C. 1985, c. I-5

Generally — referred to

Mackenzie Valley Resource Management Act, S.C. 1998, c. 25

Generally — referred to

National Energy Board Act, R.S.C. 1985, c. N-7

Generally — referred to

s. 22(1) — referred to

Treaties considered:

Treaty No. 8, 1899

Generally — considered

APPLICATION by Indian band for judicial review, seeking declaration that Crown had breached its constitutionally entrenched duty to consult and accomodate First Nations people adversely affected by its conduct.

M.L. Phelan J.:

I. Introduction

1 A massive industrial project like the Mackenzie Gas Pipeline (MGP), one that anticipates the creation of a corridor of pipeline originating in Inuvik in the far north of the Northwest Territories and terminating 15 metres south of the Northwest Territories and Alberta border, where a proposed connecting pipeline will link it up with existing provincial pipelines for southern distribution (the "Connecting Facilities"), attracts a myriad of govern-

ment obligations. The issues of environmental review go beyond the physical pipeline from the north to this connection point. Government must deal with the proponents of the project, detractors of the project, regulatory review boards, environmental review boards, and affected First Nations. The alleged failure of the Government of Canada to fulfill its obligations toward this last group, specifically the Dene Tha' First Nation (Dene Tha'), forms the subject matter of this judicial review.

2 The Dene Tha' alleges that the Government of Canada through the Minister of Environment, the Minister of Fisheries and Oceans, the Minister of Indian and Northern Affairs Canada and the Minister of Transport (the Ministers) breached its constitutionally entrenched duty to consult and accommodate the First Nations people adversely affected by its conduct. Specifically, the Dene Tha' identifies as the moment of this breach as its exclusion from discussions and decisions regarding the design of the regulatory and environmental review processes related to the MGP. The Ministers deny that any duty arose at this point and, in any event or in the alternative, asserts that its behavior with respect to the Dene Tha' was sufficiently reasonable to discharge its duty to consult and thus withstands judicial scrutiny. The so-called discharge of the duty to consult and accommodate consisted of (1) including the Dene Tha' in a single media release of June 3, 2004 inviting public consultation on a draft Environment Impact Terms of Reference and Joint Review Panel Agreement and (2) a 24-hour deadline on July 14, 2004 to comment on these documents. That is not sufficient to meet the duty to consult and accommodate.

3 This Court's conclusion is that the Ministers breached their duty to consult the Dene Tha' in its conduct surrounding the creation of the regulatory and environmental review processes related to the MGP from as early as the first steps to deal with the MGP in late 2000 through to early 2002 and continued to breach that duty to the present time. The Dene Tha' had a constitutional right to be, at the very least, informed of the decisions being made and provided with the opportunity to have its opinions heard and seriously considered by those with decision-making authority. The Dene Tha' were never given this opportunity, the Ministers having taken the position that no such duty to consult had arisen yet.

4 Quite remarkably, when the Ministers did decide to "consult" with the Dene Tha', upon the establishment of the process for the Joint Review Panel, the Dene Tha' were given 24 hours to respond to a process which had taken many months and years to establish and had involved substantial consultation with everyone potentially affected but for the Dene Tha'. This last gasp effort at "consultation" was a case of too little, too late.

5 To arrive at this conclusion, this Court has considered the following matters: (1) the factual background relating to the regulatory and environmental processes underlying the MGP. (2) the particular facts relating to the Dene Tha'. (3) the current state of the law relating to aboriginal consultation. and (4) how the law applies to the situation of the Dene Tha'.

6 At the outset, it should be noted that the issue of remedy in this case is not straightforward. Hence, it will receive special attention in the final section of these Reasons. At the very least, any of the current procedures which may affect the Dene Tha' must be stayed until other remedial provisions can be completed.

II. Facts

A. Dene Tha'

(1) Dene Tha' People and Territory

7 The Dene Tha' is an Aboriginal group within the meaning of section 35 of the Constitution Act, 1982 and an Indian Band under the Indian Act. Currently, there are approximately 2500 members of the Dene Tha', the majority of which resides on the Dene Tha's seven Reserves. All Dene Tha' Reserves are located in Alberta. The three most populous Reserve communities are Chateh, Bushe River, and Meander.

8 The Dene Tha' defines its "Traditional Territory" as lying primarily in Alberta, but also extending into northeastern British Columbia and the southern Northwest Territories (NWT). In the NWT, the Dene Tha' claims that its territory overlaps with that of the Deh Cho First Nation, with whom the Dene Tha' shares significant familial and cultural relationships. The Crown asserts that the phrase "Traditional Territory" imports no legal significance with respect to the Aboriginal rights claimed by the Dene Tha' north of the 60 parallel — the division between the NWT and the Province of Alberta.

(2) Dene Tha' — Treaty 8 Rights in Alberta

9 In 1899 the Dene Tha' signed Treaty 8. Treaty 8 is a classic surrender treaty whereby the Government promised payment and various rights, including the rights to hunt, trap, and fish in exchange for the surrender of land. The territory defined by Treaty 8 does not extend into the traditional territory claimed by the Dene Tha' in the NWT. The Dene Tha' asserts that this means its rights in the NWT remain unextinguished as they are outside the bounds contemplated by Treaty 8. Conversely, if the Ministers are correct and the Dene Tha's rights in the NWT are extinguished by Treaty 8, the Dene Tha' submits that this is an admission by the Ministers that the Dene Tha' has Treaty 8 rights in the NWT. Dene Tha's allegation of unextinguished aboriginal rights in the NWT is discussed more fully later in these Reasons.

10 The proposed course of the MGP travels through the NWT, ending just south of the NWT and Alberta border. The portion of the pipeline stemming from the Alberta border to its southern terminus runs through territory of the Dene Tha' defined by Treaty 8. The proposed Connecting Facilities pass through Bitscho Lake which runs through Trap Line 99, a trap line owned by a Dene Tha' member. None of that pipeline runs directly through Dene Tha' Reserves.

11 The NGTL pipeline which connects the southern terminus of the MGP with the existing Nova Gas Transmission Line also runs through territory over which the Dene Tha' has Treaty 8 rights to hunt, trap, fish, and gather plants for food.

12 That the pipeline does not run through a reserve, contrary to the Ministers' implied submission, is insig- nificant. A reserve does not have to be affected to engage a Treaty 8 right as held in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 (S.C.C.). What is important is that the pipeline and the regulatory process, including most particularly environmental issues, are said to affect the Dene Tha'.

(3) Dene Tha' — Aboriginal Rights in NWT

13 The Dene Tha' posits unrecognized Aboriginal rights to hunt, trap, fish, and gather plants for food in the southern portion of the NWT. As proof of Government recognition of said rights, the Dene Tha' points to government archives from the 1930's regarding the proposal for a creation of an Indian Hunting Preserve for the Dene Tha' in this area.

14 The Court was not asked to determine the legitimacy of the Dene Tha's claim to Aboriginal rights in the NWT. Moreover, as the Dene Tha's Treaty 8 rights in Alberta are sufficient to trigger a duty to consult, there is

no need to make such a determination in order to resolve this judicial review.

B. Mackenzie Gas Pipeline — Regulatory and Environmental Matrices

15 The MGP is an enormous and complex industrial undertaking. Its proposed routing envisions a starting point in the gas fields and central processing facilities near Inuvik in the northwest corner of the Northwest Ter- ritories. From these collecting facilities, the envisioned pipeline will transport the extracted natural gas through the NWT to just south of the Alberta border. At this point, Nova Gas Transmission Limited (NGTL) in Alberta will build the Connecting Facilities up from its existing facilities to connect with the MGP. In this manner, natural gas can be transported from the northern gathering facilities to a southern distribution terminus.

16 Initially the participants in the project envisaged the MGP extending 65 kilometres to the connecting point with NGTL's distribution system. It appears that in the hopes of keeping the gas which flows into Alberta within Alberta jurisdiction, it was decided to have the connection point with NGTL be located just 15 metres inside the NWT-Alberta border.

17 The Dene Tha's initial judicial review application had sought to raise the constitutional issue of the original proposal as a single federal work or undertaking. This aspect of judicial review has been discontinued.

18 Given the enormity of this project and its inherent cross-jurisdictional character, its conception triggered the involvement of a multitude of regulatory mechanisms. As the Dene Tha's case rests on its exclusion from the discussions and processes surrounding this regulatory machinery, it is necessary to describe in some detail the respective geneses of the regulatory arrangements and mandates of each of these regulatory bodies. Hence, the purpose of this section is to outline the geographical, regulatory, and environmental matrices that overlay the MGP.

19 The backdrop of the MGP consists of seven major regulatory and environmental layers: (1) the Coopera- tion Plan, (2) the Regulators' Agreement, (3) the Joint Review Panel Agreement, (4) the Environmental Impact Terms of Reference, (5) the Joint Review Panel Proceedings, (6) the National Energy Board Proceedings, and (7) the Crown Consultation Unit. Each is discussed below in what is roughly chronological order — from oldest to most recent.

(1) The "Cooperation Plan"

(a) The Genesis

20 Four years prior to the filing of an application for the MGP with the National Energy Board (NEB), representatives from various regulatory agencies began to consult with one another about how to coordinate the regulatory and environmental impact review process for such an application. The regulators and authorities involved included: Indian and Northern Affairs Canada (INAC), the Canadian Environmental Assessment Agency (CEAA), the NEB, the Mackenzie Valley Environmental Impact Review Board (MVEIRB), the Mackenzie Val- ley Land and Water Board (MVLWB), the Gwich'in Land and Water Board, the Sahtu Land and Water Board, the Inuvialuit Land Administration, and the Inuvialuit Game Council.

21 In addition to these core regulatory bodies, other parties were included in the development of the Co- operation Plan. Representatives from the Government of the Yukon and the Government of the NWT were included as observers in the negotiations. The Deh Cho First Nation (Deh Cho) also, through its MVEIRB deleg-

ate, obtained observer status. As it is a helpful counterpoint to the exclusion of the Dene Tha' from this stage of the process, a fuller discussion of the participatory role played by the Deh Cho will be developed later in these Reasons.

22 The parties involved with developing the Cooperation Plan also heard presentations from gas producers and potential proponents of the MGP. In particular, the parties met with the Mackenzie Delta Gas Producers Group in December 2000, with the Alaska Gas Producers Group in May of 2001, and with Imperial Oil Re- sources Ventures Limited (IORVL).

23 As a result of these meetings and information-gathering sessions, in June 2002, the Cooperation Plan for Environmental Impact Assessment and Regulatory Review of a Northern Gas Project through the Northwest Territories ("Cooperation Plan") was finalized. Suffice it to say that the Dene Tha' are noticeably absent from the list of persons, organizations and first nations people who were involved in the development of the regulatory framework.

(b) The Mandate

24 The Cooperation Plan had a laudable objective, namely, to reduce duplication of the environmental and regulatory processes. To this end, the Cooperation Plan set up a framework for the environmental and regulatory processes to follow. This framework focused on how these processes would be integrated, how joint hearings would be conducted, and how the terms of reference for any future environmental assessment process would be developed.

(2) The Agreement for Coordination of the Regulatory Review of the MGP ("Regulators' Agreement")

(a) The Genesis

25 The Cooperation Plan recommended the filing of a Preliminary Information Package (PIP) by the proponents of the pipeline. On June 18, 2003, IORVL filed a PIP for the MGP. Subsequent to this filing, the parties to the Cooperation Plan resumed discussions on the review process for the MGP and on April 24, 2004, a number of government ministries and agencies entered into an Agreement for Coordination of the Regulatory Review of the MGP.

(b) The Mandate

26 In addition to implementing the provisions of the Cooperation Plan and ensuring compliance with applicable legislation, like the Cooperation Plan, the Regulators' Agreement contained as its mandate the avoidance of unnecessary duplication. In particular, the parties to the Regulators' Agreement agreed to incorporate the final Joint Review Panel Report and other relevant materials from this process into the record of their respective regulatory processes.

(3) The Agreement for an Environmental Impact Review of the MGP (Joint Review Panel Agreement — JRP Agreement)

(a) The Genesis

27 On August 3, 2004, the federal Minister of the Environment, the MVEIRB, and the Inuvialuit Game Council concluded an Agreement for an Environmental Impact Review of the Mackenzie Gas Project. The JRP

Agreement specified the mandate of the Joint Review Panel and the scope of the environmental impact assessment it would conduct. A further Memorandum of Understanding, executed between the Minister of the Envir- onment and the Inuvialuit, bestowed upon the JRP the responsibility to address certain provisions of the Inuvi- aluit Final Agreement (IFA).

(b) The Mandate

28 The JRP Agreement sets out what bodies are responsible for selecting the members of the JRP. The MVEIRB (composed of delegates from the Gwich'in, Sahtu, and the Deh Cho) would appoint three members. the Minister of the Environment, four members (two of whom would be nominated by the Inuvialuit Game Council). The selection of a Chairperson would be approved by the Minister of the Environment, the MVEIRB, and the Inuvialuit Game Council. These panelists were appointed on August 22, 2004 and were: Robert Hornal (Chair), Gina Dolphus, Barry Greenland, Percy Hardistry, Rowland Harrison, Tyson Pertschy, and Peter Usher — all named Respondents in this judicial review.

(4) Environmental Impact Terms of Reference

(a) The Genesis

29 The scope of the JRP's environmental assessment and the informational requirements that the proponent (applicant, IORVL) needed to provide for its Environmental Impact Statement (EIS) were defined on August 22, 2004 in the Environmental Impact Review Terms of Reference for Review of the Mackenzie Gas Project ("Environmental Impact (EI) Terms of Reference"). The EI Terms of Reference were issued by the Minister of the Environment, the Chair of the MVEIRB, and the Chair of the Inuvialuit Game Council.

(b) The Mandate

30 The EI Terms of Reference describe the MGP as including the Connecting Facilities for the purposes of the JRP process — that is, for the purposes of the environmental assessment. The Terms of Reference also required IORVL to file an Environmental Impact Statement with the JRP. This it did in August 2004. As it was deficient for failing to include the Connecting Facilities, the JRP requested IORVL resubmit. This it did in December 2004 by way of a Supplemental Environmental Impact Statement.

(5) The Joint Review Panel Proceedings

(a) The Genesis

31 The Joint Review Panel was contemplated initially by the Cooperation Plan, agreed to be incorporated by the Regulators' Agreement, and implemented through the JRP Agreement. On July 18, 2005, the JRP concluded it had received sufficient information from the proponent (IORVL) to commence the public hearing process. These hearings began on February 14, 2006, are currently in process, and are scheduled to continue throughout the current calendar year and into the next.

(b) The Mandate

32 The JRP is assigned the task of conducting the environmental assessment for the project. The project for the purposes of the JRP encompasses both the environmental impact of the MGP and the NGTL Connecting Fa- cilities.

33 It is important to realize that while the NEB would consider the pipeline regulatory process from the north through to the connection point 15 metres inside the Alberta border, the environmental review process takes into consideration the MGP and the Connecting Facilities to the existing NGTL facilities 65 kilometres long partially through territory in which the Dene Tha' had asserted treaty rights as well as Aboriginal rights.

34 The term "environment" comports a broad meaning. It includes the "cumulative effect" of the MGP and the NGTL Connecting Facilities and any other facilities to be developed in the future. The JRP is specifically mandated to consider effects on "health and socioeconomic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site or thing that is of historical, archeological, paleontological or architectural significance".

35 The JRP has no mandate to conduct aboriginal consultation. It can only consider Aboriginal rights in the context of factual, not legal, determinations. Since the JRP cannot evaluate the legal legitimacy of an Aboriginal rights claim, it can only make determinations in respect of adverse impact to current Aboriginal usage of territory. It cannot make a determination regarding the potential further use of land since this would not be based on a claim of current usage but on a claim of future use grounded in a claim of an Aboriginal right.

36 The JRP Report will inform the NEB decision with respect to whether or not to recommend the issuance of a Certificate of Public Convenience and Necessity. When the JRP issues its Report, the NEB will stay its public hearings. These hearings will then continue after the NEB has reviewed the Report and will thus provide the public with an opportunity to respond to its contents.

(6) The National Energy Board Proceedings

(a) The Genesis

37 IORVL made its application before the NEB in October of 2004. The NEB review arose as part of the development of a coordinated process for environmental assessment and regulatory review of the MGP defined in the Cooperation Plan.

(b) The Mandate

38 The NEB is responsible for the decision of whether to recommend the issuance of a Certificate of Public Convenience and Necessity (CPCN) to the proponent of the pipeline project, IORVL. To determine this, the NEB has scheduled public hearings where this issue will be addressed. These hearings also began in early 2006 and are scheduled in a coordinated fashion with those of the JRP. The NEB's hearings will be continued after the JRP process has concluded. The ultimate decision of the NEB will be informed by the Report from the JRP. If the NEB decides that the granting of a CPCN is warranted, then the federal Cabinet still must approve the actual issuance of this Certificate.

(7) The Crown Consultation Unit

(a) The Genesis

39 The Crown Consultation Unit (CCU) is not the product of a statutory, regulatory, or prerogative exercise. It is essentially an administrative body within the federal government created unilaterally by the Government of Canada. Despite its name, one thing it had no authority to do was consult — at least not with any native group as to its rights, interests or other issues in respect of the very matters of concern to the Dene Tha'.

(b) The Mandate

40 The mandate of the CCU is to coordinate and conduct "consultation" with First Nations groups who believe that their proven or asserted rights under section 35 of the Constitution Act, 1982 may be affected by the MGP. It was intended to serve as a medium through which the concerns of First Nations regarding the MGP could be brought to the specific relevant government Ministers. Pursuant to this overall purpose, the CCU was mandated to set up meetings, prepare a formal record of meetings, and present a record of consultation to the NEB, to Ministers, and to other Government of Canada entities with regulatory decision-making authority.

41 The CCU has no jurisdiction to deal with matters relating to the Cooperation Plan, the Regulators' Agreement, or the JRP Agreement. The mandate of the CCU, moreover, does not extend to the authority to determine the existence of an aboriginal right. rather, it only can address the impact on an established right. It was for all intents and purposes a "traffic cop" directing issues to other persons and bodies who had the authority, expertise or responsibility to deal with the specific matters.

C. Dene Tha's Involvement in these Processes

(1) Cooperation Plan

42 The Government of Canada made no effort to consult the Dene Tha' in respect of the formulation of the Cooperation Plan. The Dene Tha' asserts and the evidence demonstrates that all the various proposed routings of the pipeline passed through territory in Alberta over which the Dene Tha' has recognized Treaty 8 rights. The federal government attempts to justify this exclusion on the basis that the Dene Tha' was not an agency with any regulatory or environmental assessment jurisdiction in relation to the pipeline projects — no jurisdiction was provided by Treaty 8, by legislation, or by a Comprehensive Land Claim agreement. As such, the Crown argues that it was reasonable for the Dene Tha' to be excluded at this stage.

43 The federal government further argues that the Dene Tha' had the opportunity to comment on the draft of the Cooperation Plan as the Government of Canada released a draft to the public on January 7, 2002. Details of the public release of the Cooperation Plan and other evidence the federal government adduces to support the argument that it has fully discharged its duty to consult will be discussed in a more in-depth fashion in a consideration of whether the Crown has fulfilled its duty to consult.

(2) Regulators' Agreement, JRP Agreement, and Terms of Reference

44 The Dene Tha' was not consulted in respect of the Regulators' Agreement, the JRP Agreement, or the En- vironmental Impact Terms of Reference. On July 14, 2004, the federal government, through its instrument, the CCU, provided the Dene Tha' with copies of the draft EI Terms of Reference and draft JRP Agreement, instruct- ing that the deadline for input on both was the following day. The Dene Tha' asserts that this was the first time it obtained official knowledge of the contents of these drafts. The federal government further submits that on June 3, 2004 through select media releases and over the internet, it invited public consultation on drafts of the Envir- onmental Impact Terms of Reference and JRP Agreement. This fact was also relied upon by the federal government to support its argument that, to the extent it had a duty to consult, it had carried out that duty.

(3) NEB Proceedings and JRP Proceedings

45 The Dene Tha' has intervener status for both the NEB and JRP hearings. As interveners, the Dene Tha'

can provide oral and written submissions and can submit questions to other interveners and the proponents. The Dene Tha' has filed a plan for participation in the public hearings of the JRP and has actively engaged in the preparation and delivery of Information Requests pursuant to the JRP Rules of Procedure.

(4) CCU

46 In April of 2004, the Dene Tha' learned that the federal government intended to consult with the Dene Tha' about the MGP through the CCU. On July 14, 2004, the Dene Tha' met with representatives of the CCU. The Dene Tha' provided the CCU with information regarding its Aboriginal and Treaty Rights and made known its need of financial assistance to facilitate meaningful consultation efforts.

47 The Dene Tha' alleges that this July meeting marks the first time it was made aware of the imminent establishment of the JRP by receipt of the draft Environmental Impact Terms of Reference and draft JRP Agree- ment. The Dene Tha' claims the CCU representative informed it that it had until the following day (July 15, 2004) to provide comments on these documents. Not surprisingly, the Dene Tha' did not meet this deadline for public comment.

48 The Dene Tha' was also informed at this meeting that the CCU was not yet fully staffed or operational and had yet to develop its terms of reference. Moreover, up to and including October 2004, the Dene Tha' was informed that the CCU could only begin consulting with respect to the MGP once the proponent had filed an application for the project with the NEB.

49 The Dene Tha' consistently and continuously pestered the CCU regarding its claim for recognition of rights north of 60. This is a subject matter distinct from its treaty rights under Treaty 8 south of 60. On January 4, 2006, the Dene Tha' learned definitively that Canada's position was and always had been that these rights had been extinguished via Treaty 8. This position turned out to be intractable and was reiterated by CCU representatives in its further meetings with the Dene Tha' in 2006. The CCU stated Canada's position was that it would consider Dene Tha' "activities" in the NWT, but not rights.

50 There were no other impediments to consultation with the Dene Tha' other than the failure or refusal of the federal government to engage in consultation. The Dene Tha' put up no barriers to such consultation, despite the suggestion by the Ministers that the Dene Tha' had imposed some form of preconditions.

D. Jurisdiction over Consultation

51 It is necessary to consider the jurisdictions of the above institutional entities — the JRP, the NEB, and the CCU — over consultation with native groups and specifically the Dene Tha'.

52 As this is a factual inquiry, several legally salient issues need not be considered for the moment. In particular, neither the necessity of express government delegation of its duty to consult nor the necessity of an intention to consult will be addressed. There is a significant gap in the mandates of JRP, NEB, and CCU — a gap consisting of the jurisdiction to engage in Aboriginal consultation with the Dene Tha'.

53 The JRP has jurisdiction over the entire pipeline project, including both the MGP portion stemming from Inuvik to just south of the Alberta border and the Connecting Facilities that connect the southern terminus of the MGP with the existing NGTL pipeline facilities. The JRP has a broad mandate to consider a wide range of environmental effects, including adverse impact on First Nations activities and can make factual, but not legal de-

terminations, regarding Aboriginal rights. The JRP has no mandate to engage in consultation. Furthermore, it cannot determine the existence of contested Aboriginal rights.

54 The NEB only has jurisdiction over what has been applied for pursuant to the National Energy Board Act . IORVL submitted an application for the MGP in October of 2004. NGTL has yet to submit an application for the Connecting Facilities and, when it does, this will not go before the NEB, but before the Alberta equivalent, the Alberta Energy and Utility Board (AEUB). As such, the NEB does not have jurisdiction to consider Abori- ginal concerns south of the southern terminus of the MGP. In other words, it cannot consult meaningfully with the Dene Tha' regarding the area from the connecting point to the southern end of the Connecting Facilities. Fur- thermore, there is doubt that it can address concerns the Dene Tha' raises on this judicial review — with the creation of the process itself — as the NEB can be argued to have no jurisdiction pre-application date, that is, pre- October 2004. It is also questionable as to whether the NEB can or should deal with the creation of the process in which it was intimately involved.

55 It was submitted that the NEB, as part of its mandate, is charged with the ability and responsibility to consider the adequacy of consultation in its determination of whether to recommend the issuance of a CPCN. It seems that inadequate Aboriginal consultation would be a factor that would militate against the public benefit of the MGP. Aside from the problems of allowing a private right to trump the benefits that the MGP might provide to the general public (given the "public interest" mandate of the NEB), the NEB, as discussed above, does not have temporal jurisdiction over consultation efforts (or lack thereof) pre-application, that is, pre-October 2004. As this is precisely the time frame that the Dene Tha' has issues with federal government behaviour, the NEB's inability to include such behaviour in its evaluation of the adequacy of consultation is extremely problematic.

56 The federal government raised an argument regarding the exclusion of jurisdiction of the Federal Court by virtue of the jurisdiction of the NEB over aboriginal consultation. The government's argument is that the NEB has a mandate to assess the adequacy of aboriginal consultation as an issue it will consider in its ultimate decision of whether to issue a CPCN.

57 The submission is that either the NEB's jurisdiction over issues relating to aboriginal consultation ousts the Federal Court's jurisdiction with respect to this judicial review or that it is more appropriate for this Court to defer to the NEB process given that board's expertise. However, that expertise is in the field of energy resources and undertakings, not native consultation or, more importantly, whether there is a duty to consult, when the duty arose and whether it had been met.

58 It was further agreed that, pursuant to subsection 28(1)(f) of the Federal Courts Act, the Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of the NEB. Sub- section 22.(1) of the National Energy Board Act provides a right of appeal to the Federal Court of Appeal on questions of law and/or jurisdiction. Section 18.5 of the Federal Courts Act is thus engaged since if the Federal Court of Appeal has jurisdiction over the NEB, then the Federal Court, it was argued, should be deprived of its jurisdiction in reviewing whether the consultation procedure, in part orchestrated by the NEB, is in compliance with section 35 of the Constitution Act, 1982 and/or the honor of the Crown.

59 In sum, 18.5 does not apply to the case at hand. There has been no "decision or order of a federal board, commission, or other tribunal" as required for the exclusion envisioned by s. 18.5 to operate (Forsyth v. Canada (Attorney General) (2002), [2003] 1 F.C. 96 (Fed. T.D.). Industrial Gas Users Assn. v. Canada (National En- ergy Board) (1990), 43 Admin. L.R. 102 (Fed. T.D.)).

60 Moreover, this argument is essentially a red herring as the scope of the project from the NEB perspective (that is, excluding the Connecting Facilities and pre-application behavior of the Crown) does not cover what the JRP does and what is of fundamental concern to the Dene Tha'. While the NEB can deal with recognized aboriginal rights north of 60, it cannot address Dene Tha's Treaty 8 rights south of 60.

61 Hence, neither the JRP nor the NEB is competent to conduct Aboriginal consultation with the Dene Tha' in respect of its territory in Alberta. Consequently, one might suppose that the CCU, the Crown Consultation Unit, the only entity left to consider, would naturally fulfill this role. However, the CCU expressly states it is not doing consultation. Its mandate does not include the ability to recognize claims to unproven aboriginal rights and, moreover, affidavit evidence reveals that the CCU has made up its mind on this point. The CCU had no jurisdiction to consult on matters relating to the Cooperation Plan, the Regulators' Agreement, the JRP Agreement, or the EI Terms of Reference.

62 To summarize, the only unit out of the CCU, the NEB, and the JRP that could wholly address the territorial and temporal areas of concern of the Dene Tha' is the JRP. However, the JRP is engaged in environmental assessment, not aboriginal consultation. Although it will assess the effects the MGP and NGTL pipelines will have on aboriginal communities, it does so through the lens of environmental assessment, focusing on activities, not rights. Further, an aspect of the subject matter of which the Dene Tha' say their rights to consultation and accommodation were ignored is the process by which the JRP itself was created.

E. Comparison of Dene Tha' to other First Nations

63 Against the background of the environmental and regulatory processes, it is necessary to consider the comparative treatment of the Dene Tha' by the federal government with that of other First Nations groups: the Inuvialuit, the Sahtu, the Gwich'in, and, in particular, the Deh Cho. If the Crown is correct that differences between First Nations groups can justify differential treatment in accordance with those differences, then logic and fairness demands that substantial similarities between these groups would require similar treatment.

(1) The Inuvialuit, Gwich'in, and Sahtu

64 In 1977, the Report of the Berger Commission was delivered. The Royal Commission, headed by Justice Thomas Berger, was appointed to assess proposed natural gas development in the Northwest and Yukon Territ- ories. That Commission found that development in the North would likely lead to disruption of the traditional way of life of Aboriginal inhabitants of the area. As such, the Commission recommended any development of the area be preceded by land claims settlements with the local Aboriginal people.

65 As a consequence of Justice Berger's recommendation, the Inuvialuit, the Gwich'in, and the Sahtu each negotiated and entered into respective final land claims settlements with the Government of Canada: (1) The Inuvialuit Final Agreement, entered into in 1984. (2) the Gwich'in Comprehensive Land Claim Agreement. and (3) the Sahtu Dene and Metis Comprehensive Land Claim Agreement. These agreements recognized the rights and responsibilities of the Inuvialuit, Gwich'in, and Sahtu respectively.

66 In addition to recognizing rights, the agreements established means by which Aboriginal peoples could have an ongoing say in what was done to and on the lands stipulated by the agreements. In particular, various new regulatory agencies were created by the agreements. The regulatory agencies of particular relevance in this matter are the Inuvialuit Game Council, the Gwich'in Land and Water Board, the Sahtu Land and Water Board, and the Mackenzie Valley Environmental Impact Review Board (MVEIRB).

67 Of these relevant agencies, the MVEIRB plays a crucial role in the establishment of the JRP. The MVEIRB, through its enabling statute the Mackenzie Valley Resource Management Act, anticipates the creation of joint panels to conduct environmental assessments. Pursuant to its enabling legislation, at least half of the MVEIRB's members must be nominated by the Sahtu, the Gwich'in, and the Tlicho First Nation Governments.

(2) The Deh Cho

68 The Deh Cho First Nation (Deh Cho) is the First Nation group whose territory lies directly north of the Dene Tha' in the NWT. The Deh Cho does not have a final land claim settlement with Canada. however, Canada and the Deh Cho are currently in negotiations to this end. Thus far, the Deh Cho has filed a comprehensive land claim agreement with Canada that Canada has accepted. Canada and the Deh Cho have entered into an Interim Measures Agreement and an Interim Resource Development Agreement that give the Deh Cho rights in respect of its claimed territory. Included in these rights is the right of the Deh Cho to nominate one member to the MVEIRB. As stated earlier, as result of its delegate to the MVEIRB, the Deh Cho was able to have observer status during the development of the Cooperation Plan.

69 As a result of litigation initiated by the Deh Cho alleging that Canada had failed to consult with it adequately regarding the MGP, the Deh Cho received a generous settlement agreement. Pursuant to this agreement, the Deh Cho obtained $5 million in settlement funds, $2 million for each fiscal year until 2008 to prepare for the environmental assessment and regulatory review of the MGP, $15 million in economic development funding for this same time period to facilitate the identification and implementation of economic development opportunities relating the MGP, and $3 million each fiscal year until 2008 for Deh Cho process funding.

F. Summary of First Nations Comparison

70 Unlike the Inuvialuit, the Sahtu, and the Gwich'in, the Dene Tha' has no settled land claim agreement with Canada. A salient consequence of a settled land claim agreement was the creation of new regulatory agencies: the Inuvialuit Game Council, the Gwich'in Land and Water Board, the Sahtu Land and Water Board, and the MVEIRB. These Boards were assigned the task of managing the use of the land and resources within the respectively defined territories. In this case these boards play an even more significant role in that in part through them the members of the JRP were selected. Thus, through these Boards and their representatives, the First Na- tions of the Inuvialuit, Sahtu, and Gwich'in were able to consult meaningfully with Canada about the anticipated effects of the MGP. The Dene Tha' has no settled land claim agreement, no regulatory board, and no representation on any Board.

71 The Deh Cho, like the Dene Tha', also has no settled land claim agreement. Unlike the Dene Tha', however, the Crown is in the process of negotiating such a final agreement. In the spirit of negotiation, Canada included the Deh Cho in the process for setting up the environmental and regulatory review process for the MGP by permitting them to nominate one member to the MVEIRB. Thus, through its representation on the MVEIRB, the Deh Cho may be in a position to be able to consult meaningfully with Canada.

72 The Dene Tha' has no such representation. Its status is purely that of intervener. Through its lack of representation on any boards or panels engaged in conducting the environmental and regulatory review processes themselves, it will always be an outsider to the process.

73 The Crown justifies this differential treatment on the basis that different First Nations will have different rights and thus it is reasonable to treat each differently in accordance with their differences. The primary differ-

ences between the Dene Tha' and the other First Nations here are: (1) the Dene Tha' has no settled land claim agreement and are not in the process of negotiating one, and (2) the Dene Tha's uncontested territory lies south of the NWT — Alberta border.

74 Neither difference is legally relevant as to the existence of the duty to consult the Dene Tha' or the time at which the duty arose. It may be relevant to how the consultations are carried out. That the Dene Tha' has no settled land claim agreement is not sufficient to exclude the duty to consult as it has, as a minimum, a constitutionally equivalent agreement with Canada about its rights as manifest in Treaty 8. The location of the Dene Tha's affected territory (south of 60) also is irrelevant to justification for exclusion because the scope of the JRP includes the Connecting Facilities as part of its consideration of the whole MGP.

75 The conduct of the federal government in involving and consulting every aboriginal group affected by the MGP but the Dene Tha' undermines the Ministers' argument that it was premature to consult with the Dene Tha' when the regulatory/environmental processes were being created.

III. Duty to Consult — timing and Content

A. Introduction

76 The concept and recognition of the fiduciary duty owed by the Crown toward Aboriginal peoples was first recognized in Guerin v. R., [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321 (S.C.C.). The duty to consult, originally, was held by the Courts to arise from this fiduciary duty (see R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.)).

77 The Supreme Court of Canada in three recent cases — Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (S.C.C.), Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74 (S.C.C.); and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] S.C.J. No. 71, 2005 SCC 69 (S.C.C.) — has described a more general duty arising out of the honor of the Crown. This duty includes the duty to consult.

78 In Guerin, the Supreme Court of Canada held that a fiduciary obligation on behalf of the Crown arose when the Crown exercises its discretion in dealing with land on a First Nation's behalf. In R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385 (S.C.C.), the Court expanded this duty to encompass protection of Aborigin- al and treaty rights. Even with this expansion, however, the fiduciary duty did not fit many circumstances. For example, the duty did not make sense in the context of negotiations between the Crown and First Nations with respect to land claim agreements, as the Crown cannot be seen as acting as a fiduciary and the band a benefi- ciary in a relationship that is essentially contractual. The duty also encountered problems in conjunction with the Crown's obligations to the public as a whole. It is hard to justify the Crown acting only in the best interests of one group especially when this might conflict with its overarching duty to the public at large.

79 In Roberts v. R., [2002] 4 S.C.R. 245, 220 D.L.R. (4th) 1, 2002 SCC 79 (S.C.C.) [hereinafter "We- waykum"], Justice Binnie of the SCC noted that the fiduciary duty does not exist in every case but rather is limited to situations where a specific First Nation's interest arises. As Binnie explained at paragraph 81 of that judgment:

But there are limits [to the fiduciary duty of the Crown]. The appellants seemed at times to invoke the "fiduciary duty" as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship. This overshoots the mark. The fiduciary duty imposed on the Crown does not exist at large but in rela-

tion to specific Indian interests.

80 In light of the decision in Wewaykum, in order for the purpose of reconciliation which underpins s. 35 of the Constitution Act, 1982 to have meaning, there must be a broader duty on the Crown with respect to Abori- ginal relations than that imposed by a fiduciary relationship. Hence, in Haida Nation, the Court first identified the honor of the Crown as the source of the Crown's duty to consult in good faith with First Nations, and where reasonable and necessary, make the required accommodation. As such, the Crown must consult where its honor is engaged and its honor does not require a specific Aboriginal interest to trigger a fiduciary relationship for it to be so engaged. Another way of formulating this difference is that a specific infringement of an Aboriginal right is no longer necessary for the Government's duty to consult to be engaged.

81 The major difference between the fiduciary duty and the honor of the Crown is that the latter can be triggered even where the Aboriginal interest is insufficiently specific to require that the Crown act in the Abori- ginal group's best interest (that is, as a fiduciary). In sum, where an Aboriginal group has no fiduciary protection, the honor of the Crown fills in to insure the Crown fulfills the section 35 goal of reconciliation of "the pre- existence of aboriginal societies with the sovereignty of the Crown."

82 In assessing whether the Crown has fulfilled its duty of consultation, the goal of consultation — which is reconciliation — must be firmly kept in mind. The goal of consultation is not to be narrowly interpreted as the mitigation of adverse effects on Aboriginal rights and/or title. Rather, it is to receive a broad interpretation in light of the context of Aboriginal-Crown relationships: the facilitation of reconciliation of the preexistence of Aboriginal peoples with the present and future sovereignty of the Crown. The goal of consultation does not also indicate any specific result in any particular case. It does not mean that the Crown must accept any particular position put forward by a First Nations people.

B. The Trigger for Consultation

83 The trigger for the Crown's duty to consult is articulated clearly by Chief Justice McLachlin in Haida Nation at paragraph 35:

But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it: see Halfway River First Nation v. British Columbia (Minister of Forests), [1997] 4 C.N.L.R. 45 (B.C.S.C), at p. 71, per Dorgan J.

84 There are two key aspects to this triggering test. First, there must be either an existing or potentially existing Aboriginal right or title that might be affected adversely by Crown's contemplated conduct. Second, the Crown must have knowledge (either subjective or objective) of this potentially existing right or title and contemplate conduct might adversely affect it. There is nothing in the Supreme Court decisions which suggest that the triggers for the duty are different in British Columbia than in other areas of Canada where treaty rights may be engaged.

85 Thus, the question at issue here is when did the Crown have or can be imputed as having knowledge that its conduct might adversely affect the potential existence of the Dene Tha' aboriginal right or title? In other words, did the setting up of the regulatory and environmental processes for the MGP constitute contemplation of conduct that could adversely affect a potential aboriginal right of the Dene Tha'? Given the scope of the MGP

and its impact throughout the area in which it will function, it is hardly surprising that the parties are in agreement that the construction of the MGP itself triggers the Crown's duty to consult. Indeed the Crown engaged in that duty with every other aboriginal group.

C. Content of the Duty to Consult and Accommodate

86 Whenever the duty of consultation is found to have begun, whether the duty was breached depends on the scope and content of this duty. Again Chief Justice McLachlin's comments in Haida Nation are applicable:

39 The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

Hence, unlike the question of whether there is or is not a duty to consult, which attracts a yes or no answer, the question of what this duty consists is inherently variable. Both the strength of the right asserted and the seriousness of the potential impact on this right are the factors used to determine the content of the duty to consult.

87 Four paragraphs later, at 43-45, McLachlin C.J.C. invokes the image of a spectrum to illustrate the variable content of the duty to consult:

Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. "'[C]onsultation' in its least technical definition is talking together for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.

At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.

Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims.

The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

88 To summarize, at the lowest end of the spectrum, the duty to consult requires the Crown to give notice, disclose information, and discuss any issues raised in response to said notice. On the highest end of the spectrum, the duty to consult requires the opportunity to make submissions for consideration, formal participation in the decision-making process, and the provision of written reasons that reveal that Aboriginal concerns were considered and affected the decision.

D. Standard of Review

89 The Ministers identified as the theme of its submissions the overall reasonableness of the Crown's behavior, asserting that this was the appropriate standard of review for the Court to adopt on this judicial review.

90 The Ministers further used the language of deference, imposing the pragmatic and functional approach from Q. v. College of Physicians & Surgeons (British Columbia), [2003] 1 S.C.R. 226 (S.C.C.) that dominates administrative law onto the case at hand. This approach is not particularly helpful in this case where the core issue is whether there was a duty to consult and when did it arise.

91 The pragmatic and functional approach and the language of deference are tools most often used by courts to establish jurisdictional respect visàvis statutorily created boards and tribunals. The law of aboriginal consultation thus far has no statutory source other than the constitutional one of s. 35. Therefore, to talk of deference and/or impose a test, the goal of which is to determine the level of deference, is inappropriate in this context.

92 In respect of the Ministers' "theme" of reasonableness, comments by the Chief Justice in Haida are illu- minating. At paragraph 6063 of her judgment in Haida Nation, McLachlin C.J.C. concisely addresses the issue of administrative review of government decisions vis-à-vis first nations:

Where the government's conduct is challenged on the basis of allegations that it failed to discharge its duty to consult and accommodate pending claims resolution, the matter may go to the courts for review. To date, the Province has established no process for this purpose. The question of what standard of review the court should apply in judging the adequacy of the government's efforts cannot be answered in the absence of such a process. General principles of administrative law, however, suggest the following.

On questions of law, a decision-maker must generally be correct: for example, , [2003] 2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: , [2003] 1 S.C.R. 247, 2003 SCC 20. Paul, supra. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director of Investigation and Research) v. Southam Inc. , [1997] 1 S.C.R. 748.

The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required. the question is whether the regulatory scheme or government action "viewed as a whole, ac- commodates the collective aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, "in ... information and consultation the concept of reasonableness must come into play ... So long as every reasonable effort is made to inform and to consult, such efforts would suffice". The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.

Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government's process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.

93 It thus follows that as the question as to the existence of a duty to consult and or accommodate is one of law, then the appropriate standard of review is correctness. Often, however, the duty to consult or accommodate is premised on factual findings. When these factual findings can not be extricated from the legal question of consultation, more deference is warranted and the standard should be reasonableness.

94 These two standards of review dovetail onto the questions of whether there is a duty to consult and if so, what is its scope. The further question of whether the duty to consult has been met attracts a different analysis. From McLachlin C.J.C.'s reasons, it is clear that the standard of review for this latter question is reasonableness. To put that matter in slightly different terms, the government's burden is to demonstrate that the process it adopted concerning consultation with First Nations was reasonable. In other words, the process does not have to be perfect.

95 In this case, all parties agree that there is a duty to consult and accommodate the Dene Tha'. The disagreement centers on when this duty arose and whether the government's failure to consult the Dene Tha' on issues of design of the consultation process constituted a breach. The federal government's efforts made after the determination as to the scope and existence of the duty to consult may be reviewed on the reasonableness standard. The issue of when the duty to consult arose is, however, one that goes to the definition of the scope of this duty, as such, as it is considered a question of law, it would attract the correctness standard of review.

96 In my view, the question posed by the Dene Tha' is whether the duty to consult arose at the stage of process design — that is, from late 2000 to early 2002. The questions of fact involved in this issue — what the precise Aboriginal interests of the Dene Tha' are and what are the adverse effects of this failure to consult — are better contemplated in determining the content of the duty to consult, not its bare existence. As the question posed by Dene Tha' is a question of law focused on whether the duty to consult extends to a time period prior to any decision-making as to land use, the appropriate standard of review for this inquiry is correctness.

97 Whether or not the government's actions/efforts after the duty to consult arose complied with this duty, however, would be judged on a reasonableness standard, assuming that it actually engaged in consultation. The issue would be whether it had engaged in reasonable consultation or made reasonable efforts to do so.

E. Application of the Law to the Dene Tha'

(1) When did the Duty Crystallize?

98 The issue is: at what time did the Crown possess actual or constructive knowledge of an aboriginal or treaty right that might be adversely affected by its contemplated conduct? (No claim to Aboriginal title has been brought before this Court).

99 There are three components to this question: (1) did the Crown have actual or constructive knowledge of an aboriginal or treaty right? (2) did it have actual or constructive knowledge that that right might be affected adversely by its contemplated conduct? and (3) what is the conduct contemplated?

100 Dealing with the third question first, the conduct contemplated here is the construction of the MGP. It is not, as the Crown attempted to argue, simply activities following the Cooperation Plan and the creation of the regulatory and environmental review processes. These processes, from the Cooperation Plan onwards, were set up with the intention of facilitating the construction of the MGP. It is a distortion to understand these processes as hermetically cut off from one another. The Cooperation Plan was not merely conceptual in nature. It was not, for example, some glimmer of an idea gestating in the head of a government employee that had to be further re- fined before it could be exposed to the public. Rather, it was a complex agreement for a specified course of action, a road map, which intended to do something. It intended to set up the blue print from which all ensuing regulatory and environmental review processes would flow. It is an essential feature of the construction of MGP.

101 Turning now to the first question, the right in question is the Dene Tha' Treaty 8 right. As it is a signatory to the treaty agreements, the federal government has imputed knowledge of the existence of treaty rights ( Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 (S.C.C.)). There is no dispute that the Dene Tha' has Treaty 8 rights in the territory in which the MGP and Connecting Facilities will run, and the federal government has knowledge of these rights. At the time of the Cooperation Plan, all versions of the proposed routing of the pipeline envisioned it going through Dene Tha' Treaty 8 territory in Alberta.

102 The Mikisew decision referred to above is particularly applicable and is virtually on "all fours" with this judicial review. The decision involved affected rights under Treaty 8 in respect of the Mikisew Cree First Na- tion. The subject matter was a new road to be built through the Mikisew's territory (but not through a reserve) and the failure of the government to consult despite a public comment process.

103 The Court held that any consultation must be undertaken with the genuine intention to address First Na- tion concerns. In the present case there was no intention to address the concerns before the environment and regulatory processes were in place.

104 The Court also held that a public forum process is not a substitute for formal consultation. That right to consultation takes priority over the rights of other users. Therefore the public comment process in January 2002 in respect of the Cooperation Plan and that of July 2004 in respect of the Regulators' Agreement, JRP Agree- ment and Terms of Reference is not a substitute for consultation.

105 Furthermore, there is no dispute that the federal government contemplated that the construction of the MGP had the potential of adversely affecting Aboriginal rights. It admitted on numerous occasions that it recognized it owed a duty of consultation to the Dene Tha' upon construction of the MGP.

106 The precise moment when the duty to consult was triggered is not always clear. In Haida, the Court found that the decision to issue a Tree Farm License (T.F.L) gave rise to a duty to consult. A T.F.L. is a license that does not itself authorize timber harvesting, but requires an additional cutting permit. The Court held that the "T.F.L. decision reflects the strategic planning for utilization of the resource" and that "[d]ecisions made during

strategic planning may have potentially serious impacts on Aboriginal right and title". [Emphasis added. See Haida paragraph 76]

107 From the facts, it is clear that the Cooperation Plan, although not written in mandatory language, func- tioned as a blueprint for the entire project. In particular, it called for the creation of a JRP to conduct environmental assessment. The composition of the JRP was dictated by the JRP Agreement, an agreement contemplated by the Cooperation Plan. The composition of this review panel and the terms of reference adopted by the panel are of particular concern to the Dene Tha'. In particular, the Dene Tha had unique concerns arising from its unique position. Such concerns included: the question of the enforceability of the JRP's recommendations in Al- berta and funding difficulties encountered by the Dene Tha' as result of its not qualifying for the "north of 60 funding programs" (a funding program apparently available only to those First Nations bands north of the 60° parallel). The Dene Tha' also had other issues to discuss including effects on employment, skill levels training and requirements and other matters directly affecting the lives of its people.

108 The Cooperation Plan in my view is a form of "strategic planning". By itself it confers no rights, but it sets up the means by which a whole process will be managed. It is a process in which the rights of the Dene Tha' will be affected.

109 There can be no question that the Crown had, at the very least, constructive knowledge of the fact that the setting up of a Cooperation Plan to coordinate the environmental and regulatory processes was an integral step in the MGP, a project that the Crown admits has the potential to affect adversely the rights of the Dene Tha'.

110 The duty to consult arose at the earliest some time during the contemplation of the Cooperation Plan — that is, before its finalization in 2002. At the latest before the JRP Agreement was executed. For purposes of this case, nothing turns on the fixing of a more precise date as no consultation occurred during the creation of the Cooperation Plan or indeed the other regulatory processes through to July 15, 2004.

(2) What is the Content of the Duty?

111 The Ministers submitted that the content of the duty in this case fell at the high end of the spectrum. The question here is whether the Crown in its behavior toward the Dene Tha' fulfilled the duty.

112 The Crown also asserted that the combination of the JRP, NEB, and CCU worked to discharge it of its duty to consult. As canvassed earlier, none of these entities possessed either separately or together the jurisdiction to engage in consultation.

113 The first time the Crown admits that what it was doing was consultation was the July 14, 2004 meeting between CCU and the Dene Tha', 24 hours before the JRP Agreement draft was finalized. Although there is evidence that the Dene Tha' had knowledge of the contents of the JRP draft Agreement prior to this meeting, this is not particularly significant. The first time that the Crown reached out to the Dene Tha' was at this meeting. Consultation is not consultation absent the intent to consult. Consultation cannot be meaningful if it is inadvert- ent or de facto. Consultation must represent the good faith effort of the Crown (reciprocated by the First Nation) to attempt to reconcile its sovereignty with preexisting claims of rights or title by the First Nation. Thus it is relevant that at the time of this meeting the CCU asserted it was not engaged in aboriginal consultation as no application for the MGP had been filed. The Ministers cannot now argue that the CCU was engaged in consultation.

114 By depriving the Dene Tha' of the opportunity to be a participant at the outset, concerns specific to the Dene Tha' were not incorporated into the environmental and regulatory process. Among the concerns cited by the Dene Tha', two stand out: its concern over the enforceability of the federal review process' conclusions vis- à-vis the Alberta portion of the pipeline (the "Connecting Facilities" to be operated and owned by Nova Gas Transmission Limited) and the absence of funding to be able to engage in meaningful consultation.

115 At the hearing, the Ministers and IORVL agreed that the construction of the MGP would demand the highest level of consultation from government. It is clear that during the period when the duty to consult first arose — at the stage of the Cooperation Plan — not even the most minimal threshold of consultation was met. To take one patent example, the Dene Tha' was not specifically notified of the creation of the Cooperation Plan. Public consultation processes cannot be sufficient proxies for Aboriginal Consultation responsibilities. As such, the Crown has clearly not fulfilled the content of its duty to consult.

116 Even if one were to take the view that the duty to consult arose when the JRP process was being created and finalized, the duty was not met. The duty to consult cannot be fulfilled by giving the Dene Tha' 24 hours to respond to a process created over a period of months (indeed years) which involved input from virtually every affected group except the Dene Tha'. It certainly cannot be met by giving a general internet notice to the public inviting comments.

117 This conduct would not even meet the obligation to give notice and opportunity to be heard which underlies the administrative law principle of fairness much less the more onerous constitutional and Crown duty to consult First Nations.

118 The Court's conclusion is that there was a duty to consult with respect to the MGP. that the duty arose between late 2000 and early 2002; that the duty was not met at this time because there was no consultation whatsoever. that the meetings in July 2004 cannot be considered reasonable consultation.

119 In the face of the Court's conclusion that the duty to consult had been breached, it is necessary to consider the remedy which should flow. The remedies must address the rights of the offended party, and be practical and effective and fair to all concerned including those who played no role in the Crown's breach of its duty.

IV. Remedy

120 The first remedy is a declaration that the Respondents Minister of Environment, Minister of Fisheries and Oceans, Minister of Indian and Northern Affairs Canada, and the Minister of Transport are under a duty to consult with the Dene Tha' in respect of the MGP, including the Connecting Facilities. The Court further declares that the Ministers have breached their duty to consult.

121 The Dene Tha' requested that there be a "stick", an incentive, to goad the Crown into meaningful consultation. Specifically, the Applicant requested that the JRP hearing process be stayed pending further order of this Court, except insofar as the JRP may deliberate on matters unrelated to the Connecting Facilities or the territory within which the Dene Tha' have asserted Aboriginal or treaty rights. Moreover, the Applicant proposed that 120 days lapse following this order before a Party could apply to the Court without the consent of the other party for a lifting of this stay.

122 The Applicant further requested that the Court provide detailed direction to the Ministers about what constitutes consultation. Specifically, the Applicant requested that the Court order the Ministers consult with the

Dene Tha' about the MGP, including the design of the environmental assessment process, the Terms of Refer- ence for the environmental assessment, the treatment of the Connecting Facilities, and the provision of financial and/or technical support to assist the Dene Tha' in participating in the process.

123 In addition, the Applicant suggested the Court play an ongoing supervisory role in the consultation process to follow as evidenced by its suggestion that a party be able to apply to the Court on ten days notice to request further directions.

124 The remedy requested by the Dene Tha' is somewhat novel. As such, it is beneficial to search for some first principles regarding remedy in the context of Aboriginal law.

125 In Haida in the context of whether the Haida Nation were limited in respect of remedy to an interlocutory injunction of the government, McLachlin C.J.C. provided a glimpse at some general principles that might underlie the determination of an appropriate remedy in the event of a governmental breach of its duty to consult.

126 The Court tied the issue of remedy into the ultimate goal of Aboriginal-Crown relations, namely, reconciliation, finding that "the alleged duty to consult and accommodate by its very nature entails balancing of Ab- original and other interests and thus lies closer to the aim of reconciliation at the heart of Crown-Aboriginal relations." (paragraph 14). The Court also noted that negotiation was preferable to litigation in respect of achieving this reconciliatory goal.

127 A striking feature of this present case is that while many government departments, agencies, entities and boards were involved, no one seemed to be in charge or at least responsible for consultation with First Na- tions. Clearly that was the case with Dene Tha'.

128 As a part of any remedy, it is necessary to fix some Minister or person with responsibility, whose actions are subject to accountability in meeting the duty to consult which has been breached.

129 The parties were at some disadvantage in making their arguments on remedies in that they did not know if and on what basis any liability or breach would be found. To that end, their submissions on remedy should be considered preliminary in nature.

130 The difficulty posed by this case is that to some extent "the ship has left the dock". How does one consult with respect to a process which is already operating? The prospect of starting afresh is daunting and could be ordered if necessary. The necessity of doing so in order to fashion a just remedy is not immediately obvious. However, it is also not immediately obvious how consultation could lead to a meaningful result.

131 The first priority has been to identify the problem (if any); the next priority is to fix the problem to the extent possible in a real, practical, effective and fair way. The parties should be given an opportunity to address some of the ways in which this can be achieved in a final order.

132 Therefore the Court will issue final orders of declaration and an order to consult upon terms and conditions to be stipulated following a remedies hearing.

133 To preserve the current situation until a final remedy order is issued, the members of the JRP shall be enjoined from considering any aspect of the MGP which affects either the treaty lands of the Dene Tha' or the aboriginal rights claimed by the Dene Tha'. They shall be further enjoined from issuing any report of its pro-

ceedings to the National Energy Board.

134 The Court will hold a remedies hearing, after hearing from the parties as to the issues which should be addressed at that hearing. Those issues shall include but not be limited to:

• whether the Crown should be required to appoint a Chief Consulting Officer (similar to a Chief Negotiator in land claims) to consult with the Dene Tha'.

• the mandate for any such consultation.

• the provision of technical assistance and funding to the Dene Tha' to carry out the consultation.

• the role, if any, that the Court should play in the supervision of the consultation. and

• the role that any entities including the JRP and NEB should have in any such consultation process.

135 Therefore, the application for judicial review will be granted with costs. A formal order will issue.

Application granted.

END OF DOCUMENT

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2004 CarswellBC 2656, 2004 SCC 73, 245 D.L.R. (4th) 33, 19 Admin. L.R. (4th) 195, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, [2005] 3 W.W.R. 419, [2004] 3 S.C.R. 511, 36 B.C.L.R. (4th) 282, 327 N.R. 53, 206 B.C.A.C. 52, 338 W.A.C. 52, REJB 2004-80383, J.E. 2004-2156, 135 A.C.W.S. (3d) 2, 2004 CSC 73

Haida Nation v. British Columbia (Minister of Forests)

Minister of Forests and Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia (Appellants) v. Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation (Respondents)

Weyerhaeuser Company Limited (Appellant) v. Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation (Respondents) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General for Saskat- chewan, Attorney General of Alberta, Squamish Indian Band and Lax-kw'alaams Indian Band, Haisla Nation, First Nations Summit, Dene Tha' First Nation, Tenimgyet, aka Art Matthews, Gitxsan Hereditary Chief, Busi- ness Council of British Columbia, Aggregate Producers Association of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, Council of Forest Industries, Mining Asso- ciation of British Columbia, British Columbia Cattlemen's Association and Village of Port Clements (Interveners)

Supreme Court of Canada

McLachlin C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish JJ.

Heard: March 24, 2004 Judgment: November 18, 2004 Docket: 29419

Proceedings: reversing in part Haida Nation v. British Columbia (Minister of Forests) (2002), 2002 BCCA 147, 2002 CarswellBC 329, 99 B.C.L.R. (3d) 209, [2002] 2 C.N.L.R. 121, [2002] 6 W.W.R. 243, 44 C.E.L.R. (N.S.) 1, 164 B.C.A.C. 217, 268 W.A.C. 217 (B.C. C.A.); additional reasons at Haida Nation v. British Columbia (Minister of Forests) (2002), 2002 BCCA 462, 2002 CarswellBC 2067, 216 D.L.R. (4th) 1, 5 B.C.L.R. (4th) 33, [2002] 10 W.W.R. 587, [2002] 4 C.N.L.R. 117, 172 B.C.A.C. 75, 282 W.A.C. 75 (B.C. C.A.); reversing Haida Nation v. British Columbia (Minister of Forests) (2000), 2000 BCSC 1280, 2000 CarswellBC 2434, 36 C.E.L.R. (N.S.) 155, [2001] 2 C.N.L.R. 83 (B.C. S.C.)

Counsel: Paul J. Pearlman, Q.C., Kathryn L. Kickbush for Appellants, Minister of Forests and Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia

John J.L. Hunter, Q.C., K. Michael Stephens for Appellant, Weyerhaeuser Co. Ltd.

© 2014 Thomson Reuters. No Claim to Orig. Govt. Works Page 2 2004 CarswellBC 2656, 2004 SCC 73, 245 D.L.R. (4th) 33, 19 Admin. L.R. (4th) 195, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, [2005] 3 W.W.R. 419, [2004] 3 S.C.R. 511, 36 B.C.L.R. (4th) 282, 327 N.R. 53, 206 B.C.A.C. 52, 338 W.A.C. 52, REJB 2004-80383, J.E. 2004-2156, 135 A.C.W.S. (3d) 2, 2004 CSC 73

Louise Mandell, Q.C., Michael Jackson, Q.C., Terri-Lynn Williams-Davidson, Gidfahl Gudsllaay, Cheryl Y. Sharvit for Respondents

Mitchell R. Taylor, Brian McLaughlin for Intervener, Attorney General of Canada

E. Ria Tzimas, Mark Crow for Intervener, Attorney General of Ontario

Pierre-Christian Labeau for Intervener, Attorney General of Quebec

Alexander MacBain Cameron (written) for Intervener, Attorney General of Nova Scotia

Graeme G. Mitchell, Q.C., P. Mitch McAdam for Intervener, Attorney General for Saskatchewan

Stanley H. Rutwind, Kurt Sandstrom for Intervener, Attorney of Alberta

Gregory J. McDade, Q.C., John R. Rich for Interveners, the Squamish Indian Band and the Lax-kw'alaams Indi- an Band

Allan Donovan for Intervener, Haisla Nation

Hugh M.G. Braker, Q.C., Anja Brown, Arthur C. Pape, Jean Teillet for Intervener, First Nations Summit

Robert C. Freedman for Intervener, Dene Tha' First Nation

Robert J.M. Janes, Dominique Nouvet for Intervener, Tenimgyet aka Art Matthews, Gitxsan Hereditary Chief

Charles F. Willms, Kevin G. O'Callaghan for Interveners, Business Council of British Columbia, Aggregate Pro- ducers Association of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, and Council of Forest Industries and the Mining Association of British Columbia

Thomas F. Isaac for Intervener, British Columbia Cattlemen's Association

Stuart A. Rush, Q.C. for Intervener, Village of Port Clements

Subject: Natural Resources; Public; Property; Civil Practice and Procedure; Environmental; Constitutional

Timber --- Timber licences — Judicial review

Crown has duty to consult and, where appropriate, accommodate Indian bands on relevant matters where possibility of aboriginal title has been asserted.

Crown --- Crown property — Grants of Crown lands — General

Crown has duty to consult and, where appropriate, accommodate Indian bands on relevant matters where possibility of aboriginal title has been asserted.

Aboriginal law --- Reserves and real property — Transfer or disposition — General principles

Crown has duty to consult and, where appropriate, accommodate Indian bands on relevant matters where possib-

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ility of aboriginal title has been asserted.

Injunctions --- Injunctions involving Crown — Miscellaneous injunctions

Crown has duty to consult and, where appropriate, accommodate Indian bands on relevant matters where possibility of aboriginal title has been asserted — Band not required to seek injunction in order to exercise remedy.

Bois d'oeuvre --- Permis de coupe de bois — Contrôle judiciaire

Lorsqu'une bande indienne revendique l'existence d'un titre ancestral, l'État a l'obligation de la consulter et, si cela est possible, de lui trouver un accommodement à l'égard des questions pertinentes à la revendication.

Couronne --- Propriété de la Couronne — Concession des terres de la Couronne — En général

Droit autochtone --- Réserves et biens-fonds — Transfert ou disposition — Principes généraux

Injonctions --- Injonctions impliquant la Couronne — Injonctions diverses

An aboriginal band lived on an island in British Columbia, where it had harvested cedar timber for many generations. The band claimed title to the island, but the claim had not been recognized at the time of the proceedings. The Province issued a tree farm licence and replaced the licence on three occasions.

The band's application to set aside the licence and replacements was dismissed. The trial judge found that no legal duty existed to negotiate with the band, although a moral duty existed.

The band's appeal was allowed. The appellate court found that the Government and the logging company had a legal duty to negotiate with the band regarding the timber licence.

The Government and the logging company appealed.

Held: The Government's appeal was dismissed and the logging company's appeal was allowed.

The honour of the Crown requires that the Government consult on relevant issues with Indian bands when their assertion of aboriginal rights is sufficiently strong. In appropriate circumstances, a duty to accommodate may also arise. The fact that the rights claimed had not yet been proven did not negate the duty to consult. Know- ledge of a credible but unproven claim is sufficient to trigger the duty to consult and possibly accommodate. The scope of the duty is proportionate to a preliminary assessment of the strength of the band's case, and the potentially adverse effects of the impugned activity on the aboriginal title. The duty does not rest exclusively with the federal Government but extends to the provincial Government as well.

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In the case at bar, the Province failed in its duty to consult the native band. The Province had knowledge of potential aboriginal title. Red cedar was integral to the Indian band's culture, and the logging licence covered a large amount of the island.

The logging company did not have a duty to consult or accommodate. The honour of the Crown cannot be delegated to a third party. The doctrine of "knowing receipt" was not applicable. The fact that a third party is not required to consult or accommodate native interests does not preclude findings of liability.

The band was not required to seek an interlocutory injunction rather than bring the current proceedings. The current proceedings did not prevent an application for an injunction.

Une bande indienne vivait sur une île de la Colombie-Britannique et elle coupait depuis plusieurs générations le cèdre qui y poussait. La bande a revendiqué le titre de l'île, mais sa revendication n'avait toujours pas été recon- nue au moment des procédures. La province a délivré un permis, appelé concession de ferme forestière, et l'a remplacé à trois reprises.

La demande de la bande en annulation du permis et des remplacements a été rejetée. Le premier juge a conclu que seule une obligation morale, et non légale, existait de négocier avec la bande.

Le pourvoi de la bande a été accueilli. La Cour d'appel a conclu que le gouvernement et la compagnie d'exploitation du bois avaient une obligation légale de négocier avec la bande indienne relativement au permis d'exploitation du bois.

Le gouvernement et la compagnie ont interjeté appel.

Arrêt: Le pourvoi du gouvernement a été rejeté et le pourvoi de la compagnie a été accueilli.

L'honneur de l'État exige que le gouvernement consulte les bandes indiennes au sujet des questions pertinentes lorsque leurs revendications de titres ancestraux sont assez solides. Une obligation d'accommodement peut également naître dans des circonstances appropriées. Le fait que les droits revendiqués n'avaient pas encore été prouvés n'enlevait pas l'obligation de consulter. La connaissance d'une revendication crédible mais non prouvée suffit pour donner naissance à l'obligation de consulter et aussi, possiblement, à celle de trouver un accommodement. L'étendue de l'obligation est proportionnelle à l'évaluation préliminaire de la force de la preuve de la bande et de l'impact potentiellement négatif de l'activité contestée sur le titre ancestral. L'obligation n'appartient pas exclusivement au gouvernement fédéral; elle s'applique également au gouvernement provincial.

En l'espèce, la province a manqué à son obligation de consulter la bande indienne. La province connaissait l'existence possible d'un titre ancestral. Le cèdre rouge faisait partie intégrante de la culture de la bande indienne, et le permis de couper du bois couvrait une large partie de l'île.

La compagnie n'avait aucune obligation de consulter ou de trouver un accommodement. L'honneur de l'État ne peut être délégué à un tiers. La doctrine de la « réception en connaissance de cause » ne trouvait pas application ici. Le fait qu'un tiers n'était pas obligé de consulter les autochtones vis-à-vis leurs intérêts ou de trouver un accommodement pour ceux-ci n'empêchait cependant pas de tirer une conclusion de responsabilité.

La bande n'était pas obligée de demander une injonction au lieu des procédures actuelles. Celles-ci n'empêchaient par ailleurs pas une demande d'injonction. Cases considered by McLachlin C.J.C.:

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Baker v. Canada (Minister of Citizenship & Immigration) (1999), 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, 1 Imm. L.R. (3d) 1, 14 Admin. L.R. (3d) 173, [1999] 2 S.C.R. 817 (S.C.C.) — considered

Canada (Director of Investigation & Research) v. Southam Inc. (1997), 144 D.L.R. (4th) 1, 71 C.P.R. (3d) 417, [1997] 1 S.C.R. 748, 209 N.R. 20, 50 Admin. L.R. (2d) 199, 1997 CarswellNat 368, 1997 CarswellNat 369 (S.C.C.) — considered

Cardinal v. Kent Institution (1985), [1985] 2 S.C.R. 643, [1986] 1 W.W.R. 577, 24 D.L.R. (4th) 44, 63 N.R. 353, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 1985 CarswellBC 402, 1985 CarswellBC 817 (S.C.C.) — considered

Delgamuukw v. British Columbia (1997), 153 D.L.R. (4th) 193, 220 N.R. 161, 99 B.C.A.C. 161, 162 W.A.C. 161, [1997] 3 S.C.R. 1010, 1997 CarswellBC 2358, 1997 CarswellBC 2359, [1998] 1 C.N.L.R. 14, [1999] 10 W.W.R. 34, 66 B.C.L.R. (3d) 285 (S.C.C.) — followed

Guerin v. R. (1984), [1984] 6 W.W.R. 481, [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321, (sub nom. Guerin v. Canada) 55 N.R. 161, [1985] 1 C.N.L.R. 120, 20 E.T.R. 6, 36 R.P.R. 1, 59 B.C.L.R. 301, 1984 CarswellNat 813, 1984 CarswellNat 693 (S.C.C.) — followed

Halfway River First Nation v. British Columbia (Ministry of Forests) (1997), 1997 CarswellBC 1745, 39 B.C.L.R. (3d) 227, [1997] 4 C.N.L.R. 45, [1998] 4 W.W.R. 283 (B.C. S.C.) — referred to

Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 1999 CarswellBC 1821, 64 B.C.L.R. (3d) 206, [1999] 9 W.W.R. 645, 1999 BCCA 470, [1999] 4 C.N.L.R. 1, 178 D.L.R. (4th) 666, (sub nom. Halfway River First Nation v. British Columbia (Minister of Forests)) 129 B.C.A.C. 32, (sub nom. Halfway River First Nation v. British Columbia (Minister of Forests)) 210 W.A.C. 32 (B.C. C.A.) — referred to

Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107, 4 C.E.L.R. (3d) 214, 2003 BCSC 1422, 2003 CarswellBC 2294 (B.C. S.C.) — referred to

Marshall v. Canada (1999), (sub nom. R. v. Marshall) [1999] 3 S.C.R. 456, 1999 CarswellNS 262, 1999 CarswellNS 282, (sub nom. R. v. Marshall) 177 D.L.R. (4th) 513, (sub nom. R. v. Marshall) 246 N.R. 83, ( sub nom. R. v. Marshall) 138 C.C.C. (3d) 97, (sub nom. R. v. Marshall) [1999] 4 C.N.L.R. 161, (sub nom. R. v. Marshall) 178 N.S.R. (2d) 201, (sub nom. R. v. Marshall) 549 A.P.R. 201 (S.C.C.) — considered

Marshall v. Canada (1999), (sub nom. R. v. Marshall) [1999] 3 S.C.R. 533, 1999 CarswellNS 349, 1999 CarswellNS 350, (sub nom. R. v. Marshall) [1999] 4 C.N.L.R. 301, (sub nom. R. v. Marshall) 247 N.R. 306, (sub nom. R. v. Marshall) 179 D.L.R. (4th) 193, (sub nom. R. v. Marshall) 139 C.C.C. (3d) 391, (sub nom. R. v. Marshall) 179 N.S.R. (2d) 1, (sub nom. R. v. Marshall) 553 A.P.R. 1 (S.C.C.) — considered

Mitchell v. Minister of National Revenue (2001), 2001 SCC 33, 2001 CarswellNat 873, 2001 CarswellNat 874, (sub nom. Mitchell v. M.N.R.) 199 D.L.R. (4th) 385, (sub nom. Mitchell v. M.N.R.) 83 C.R.R. (2d) 1, 269 N.R. 207, (sub nom. Mitchell v. M.N.R.) [2001] 3 C.N.L.R. 122, (sub nom. Mitchell v. M.N.R.) [2001] 1 S.C.R. 911, 206 F.T.R. 160 (note), [2002] 3 C.T.C. 359 (S.C.C.) — considered

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Paul v. British Columbia (Forest Appeals Commission) (2003), 18 B.C.L.R. (4th) 207, [2003] 11 W.W.R. 1, [2003] 4 C.N.L.R. 25, 3 C.E.L.R. (3d) 161, 231 D.L.R. (4th) 449, 5 Admin. L.R. (4th) 161, 111 C.R.R. (2d) 292, [2003] 2 S.C.R. 585, 2003 SCC 55, 2003 CarswellBC 2432, 2003 CarswellBC 2433 (S.C.C.) — considered

R. c. Adams (1996), 202 N.R. 89, [1996] 3 S.C.R. 101, 110 C.C.C. (3d) 97, 138 D.L.R. (4th) 657, [1996] 4 C.N.L.R. 1, 1996 CarswellQue 912, 1996 CarswellQue 913 (S.C.C.) — considered

R. v. Badger (1996), [1996] 4 W.W.R. 457, 37 Alta. L.R. (3d) 153, 195 N.R. 1, 105 C.C.C. (3d) 289, 133 D.L.R. (4th) 324, [1996] 2 C.N.L.R. 77, [1996] 1 S.C.R. 771, 181 A.R. 321, 116 W.A.C. 321, 1996 CarswellAlta 365F, 1996 CarswellAlta 587 (S.C.C.) — considered

R. c. Côté (1996), 110 C.C.C. (3d) 122, 202 N.R. 161, 138 D.L.R. (4th) 385, [1996] 3 S.C.R. 139, [1996] 4 C.N.L.R. 26, 1996 CarswellQue 1039, 1996 CarswellQue 1040 (S.C.C.) — considered

R. v. Gladstone (1996), [1996] 9 W.W.R. 149, 23 B.C.L.R. (3d) 155, 50 C.R. (4th) 111, 200 N.R. 189, 137 D.L.R. (4th) 648, 109 C.C.C. (3d) 193, 79 B.C.A.C. 161, 129 W.A.C. 161, [1996] 2 S.C.R. 723, [1996] 4 C.N.L.R. 65, 1996 CarswellBC 2305, 1996 CarswellBC 2306 (S.C.C.) — considered

R. v. Nikal (1996), [1996] 5 W.W.R. 305, 19 B.C.L.R. (3d) 201, 105 C.C.C. (3d) 481, 196 N.R. 1, 133 D.L.R. (4th) 658, 74 B.C.A.C. 161, 121 W.A.C. 161, [1996] 1 S.C.R. 1013, (sub nom. Canada v. Nikal) 35 C.R.R. (2d) 189, [1996] 3 C.N.L.R. 178, 1996 CarswellBC 950, 1996 CarswellBC 950F (S.C.C.) — considered

R. v. Sparrow (1990), 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410, 1990 CarswellBC 105, 1990 CarswellBC 756 (S.C.C.) — considered

R. v. Vanderpeet (1996), 50 C.R. (4th) 1, (sub nom. R. v. Van der Peet) 137 D.L.R. (4th) 289, (sub nom. R. v. Van der Peet) 109 C.C.C. (3d) 1, (sub nom. R. v. Van der Peet) 200 N.R. 1, (sub nom. R. v. Van der Peet) 80 B.C.A.C. 81, (sub nom. R. v. Van der Peet) [1996] 2 S.C.R. 507, [1996] 9 W.W.R. 1, 23 B.C.L.R. (3d) 1, (sub nom. R. v. Van der Peet) [1996] 4 C.N.L.R. 177, (sub nom. R. v. Van der Peet) 130 W.A.C. 81, 1996 CarswellBC 2309, 1996 CarswellBC 2310 (S.C.C.) — followed

RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 54 C.P.R. (3d) 114, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 164 N.R. 1, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 60 Q.A.C. 241, 111 D.L.R. (4th) 385, 1994 CarswellQue 120F, [1994] 1 S.C.R. 311, 1994 CarswellQue 120, (sub nom. RJR-Macdonald Inc. c. Canada (Procureur général)) 171 N.R. 402 (note) (S.C.C.) — followed

Roberts v. R. (2002), (sub nom. Wewaykum Indian Band v. Canada) [2002] 4 S.C.R. 245, (sub nom. We- waykum Indian Band v. Canada) 2002 SCC 79, 2002 CarswellNat 3438, 2002 CarswellNat 3439, (sub nom. Wewaykum Indian Band v. Canada) 220 D.L.R. (4th) 1, (sub nom. Wewayakum Indian Band v. Canada) 297 N.R. 1, (sub nom. Wewaykum Indian Band v. Canada) [2003] 1 C.N.L.R. 341, (sub nom. Wewayakum Indian Band v. Canada) 236 F.T.R. 147 (note) (S.C.C.) — followed

Ryan v. Law Society (New Brunswick) (2003), (sub nom. Law Society of New Brunswick v. Ryan) [2003] 1

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S.C.R. 247, 2003 SCC 20, 2003 CarswellNB 145, 2003 CarswellNB 146, 223 D.L.R. (4th) 577, 48 Admin. L.R. (3d) 33, 302 N.R. 1, 257 N.B.R. (2d) 207, 674 A.P.R. 207, 31 C.P.C. (5th) 1 (S.C.C.) — considered

Sioui v. Quebec (Attorney General) (1990), (sub nom. R. v. Sioui) [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427, 109 N.R. 22, (sub nom. R. c. Sioui) 30 Q.A.C. 280, 56 C.C.C. (3d) 225, [1990] 3 C.N.L.R. 127, 1990 CarswellQue 103, 1990 CarswellQue 103F (S.C.C.) — considered

St. Catharines Milling & Lumber Co. v. R. (1888), 1888 CarswellNat 20, (1889) L.R. 14 App. Cas. 46, 4 Cart. B.N.A. 107, 58 L.J.P.C. 54, 6 L.T. 197, C.R. [10] A.C. 13 (Canada P.C.) — considered

TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 2000 CarswellOnt 1072, 186 D.L.R. (4th) 403, (sub nom. Ontario (Minister of Municipal Affairs & Housing) v. TransCanada Pipelines Ltd.) [2000] 3 C.N.L.R. 153, 137 O.A.C. 201 (Ont. C.A.) — referred to

Statutes considered:

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5

s. 109 — considered

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44

s. 35 — considered

s. 35(1) — referred to

Forest Act, R.S.B.C. 1996, c. 157

Generally — referred to

Forestry Revitalization Act, S.B.C. 2003, c. 17

Generally — referred to

APPEAL by Government and logging company from judgment reported at Haida Nation v. British Columbia (Minister of Forests) (2002), 2002 BCCA 147, 2002 CarswellBC 329, 99 B.C.L.R. (3d) 209, [2002] 2 C.N.L.R. 121, [2002] 6 W.W.R. 243, 44 C.E.L.R. (N.S.) 1, 164 B.C.A.C. 217, 268 W.A.C. 217 (B.C. C.A.), allowing In- dian band's appeal from dismissal of application to set aside timber licence.

POURVOI du gouvernement et de la compagnie d'exploitation du bois à l'encontre de l'arrêt publié à Haida Na- tion v. British Columbia (Minister of Forests) (2002), 2002 BCCA 147, 2002 CarswellBC 329, 99 B.C.L.R. (3d) 209, [2002] 2 C.N.L.R. 121, [2002] 6 W.W.R. 243, 44 C.E.L.R. (N.S.) 1, 164 B.C.A.C. 217, 268 W.A.C. 217 (B.C. C.A.), qui a accueilli le pourvoi de la bande indienne à l'encontre du rejet de sa demande d'annulation du permis de coupe de bois.

McLachlin C.J.C.:

I. Introduction

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1 To the west of the mainland of British Columbia lie the Queen Charlotte Islands, the traditional homeland of the Haida people. Haida Gwaii, as the inhabitants call it, consists of two large islands and a number of smaller islands. For more than 100 years, the Haida people have claimed title to all the lands of the Haida Gwaii and the waters surrounding it. That title is still in the claims process and has not yet been legally recognized.

2 The islands of Haida Gwaii are heavily forested. Spruce, hemlock and cedar abound. The most important of these is the cedar which, since time immemorial, has played a central role in the economy and culture of the Haida people. It is from cedar that they made their ocean-going canoes, their clothing, their utensils and the to- tem poles that guarded their lodges. The cedar forest remains central to their life and their conception of themselves.

3 The forests of Haida Gwaii have been logged since before the First World War. Portions of the island have been logged off. Other portions bear second-growth forest. In some areas, old-growth forests can still be found.

4 The Province of British Columbia continues to issue licences to cut trees on Haida Gwaii to forestry companies. The modern name for these licenses are Tree Farm Licences, or T.F.L.S. Such a licence is at the heart of this litigation. A large forestry firm, MacMillan Bloedel Limited acquired T.F.L. 39 in 1961, permitting it to harvest trees in an area designated as Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39 pursuant to procedures set out in the Forest Act, R.S.B.C. 1996, c. 157. In 1999, the Minister approved a transfer of T.F.L. 39 to Weyerhaeuser Company Limited ("Weyerhaeuser"). The Haida people challenged these replacements and the transfer, which were made without their consent and, since at least 1994, over their objections. Nevertheless, T.F.L. 39 continued.

5 In January of 2000, the Haida people launched a lawsuit objecting to the three replacement decisions and the transfer of T.F.L. 39 to Weyerhaeuser and asking that they be set aside. They argued legal encumbrance, equitable encumbrance and breach of fiduciary duty, all grounded in their assertion of Aboriginal title.

6 This brings us to the issue before this Court. The government holds legal title to the land. Exercising that legal title, it has granted Weyerhaeuser the right to harvest the forests in Block 6 of the land. But the Haida people also claim title to the land — title which they are in the process of trying to prove — and object to the harvesting of the forests on Block 6 as proposed in T.F.L. 39. In this situation, what duty if any does the government owe the Haida people? More concretely, is the government required to consult with them about decisions to harvest the forests and to accommodate their concerns about what if any forest in Block 6 should be harvested before they have proven their title to land and their Aboriginal rights?

7 The stakes are huge. The Haida argue that absent consultation and accommodation, they will win their title but find themselves deprived of forests that are vital to their economy and their culture. Forests take generations to mature, they point out, and old-growth forests can never be replaced. The Haida's claim to title to Haida Gwaii is strong, as found by the chambers judge. But it is also complex and will take many years to prove. In the meantime, the Haida argue, their heritage will be irretrievably despoiled.

8 The government, in turn, argues that it has the right and responsibility to manage the forest resource for the good of all British Columbians, and that until the Haida people formally prove their claim, they have no legal right to be consulted or have their needs and interests accommodated.

9 The chambers judge found that the government has a moral, but not a legal, duty to negotiate with the

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Haida people: (2000), [2001] 2 C.N.L.R. 83, 2000 BCSC 1280 (B.C. S.C.). The British Columbia Court of Ap- peal reversed this decision, holding that both the government and Weyerhaeuser have a duty to consult with and accommodate the Haida people with respect to harvesting timber from Block 6: (2002), 99 B.C.L.R. (3d) 209, 2002 BCCA 147 (B.C. C.A.), with supplementary reasons (2002), 5 B.C.L.R. (4th) 33, 2002 BCCA 462 (B.C. C.A.).

10 I conclude that the government has a legal duty to consult with the Haida people about the harvest of timber from Block 6, including decisions to transfer or replace Tree Farm Licences. Good faith consultation may in turn lead to an obligation to accommodate Haida concerns in the harvesting of timber, although what accommodation if any may be required cannot at this time be ascertained. Consultation must be meaningful. There is no duty to reach agreement. The duty to consult and, if appropriate, accommodate cannot be discharged by delegation to Weyerhaeuser. Nor does Weyerhaeuser owe any independent duty to consult with or accommodate the Haida people's concerns, although the possibility remains that it could become liable for assumed obligations. It follows that I would dismiss the Crown's appeal and allow the appeal of Weyerhaeuser.

11 This case is the first of its kind to reach this Court. Our task is the modest one of establishing a general framework for the duty to consult and accommodate, where indicated, before Aboriginal title or rights claims have been decided. As this framework is applied, courts, in the age-old tradition of the common law, will be called on to fill in the details of the duty to consult and accommodate.

II. Analysis

A. Does the Law of Injunctions Govern this Situation?

12 It is argued that the Haida's proper remedy is to apply for an interlocutory injunction against the government and Weyerhaeuser, and that therefore it is unnecessary to consider a duty to consult or accommodate. In RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.), the requirements for obtaining an interlocutory injunction were reviewed. The plaintiff must establish: (1) a serious issue to be tried; (2) that irreparable harm will be suffered if the injunction is not granted; and (3) that the balance of convenience fa- vours the injunction.

13 It is open to plaintiffs like the Haida to seek an interlocutory injunction. However, it does not follow that they are confined to that remedy. If plaintiffs can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue these remedies. Here the Haida rely on the obligation flowing from the honour of the Crown toward Aboriginal peoples.

14 Interlocutory injunctions may offer only partial imperfect relief. First, as mentioned, they may not cap- ture the full obligation on the government alleged by the Haida. Second, they typically represent an all- or-nothing solution. Either the project goes ahead or it halts. By contrast, the alleged duty to consult and accommodate by its very nature entails balancing of Aboriginal and other interests and thus lies closer to the aim of reconciliation at the heart of Crown-Aboriginal relations, as set out in R. v. Vanderpeet, [1996] 2 S.C.R. 507 (S.C.C.), at para. 31, and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.), at para. 186. Third, the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result that Aboriginal interests tend to "lose" outright pending a final determination of the issue, instead of being balanced appropriately against conflicting concerns: J.J.L. Hunter, "Advancing Aboriginal Title Claims after Delgamuukw: The Role of the Injunction" (June 2000). Fourth, interlocutory injunctions are designed as a stop- gap remedy pending litigation of the underlying issue. Aboriginal claims litigation can be very complex and re-

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quire years and even decades to resolve in the courts. An interlocutory injunction over such a long period of time might work unnecessary prejudice and may diminish incentives on the part of the successful party to compromise. While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests. For all these reasons, interlocutory injunctions may fail to adequately take account of Aboriginal interests prior to their final determination.

15 I conclude that the remedy of interlocutory injunction does not preclude the Haida's claim. We must go further and see whether the special relationship with the Crown upon which the Haida rely gives rise to a duty to consult and, if appropriate, accommodate. In what follows, I discuss the source of the duty, when the duty arises, the scope and content of the duty, whether the duty extends to third parties, and whether it applies to the provincial government and not exclusively the federal government. I then apply the conclusions flowing from this discussion to the facts of this case.

B. The Source of a Duty to Consult and Accommodate

16 The government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples: see for example R. v. Badger, [1996] 1 S.C.R. 771 (S.C.C.), at para. 41; Marshall v. Canada, [1999] 3 S.C.R. 456 (S.C.C.). It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

17 The historical roots of the principle of the honour of the Crown suggest that it must be understood gener- ously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown": Delgamuukw, supra, at para. 186, quoting Vanderpeet, supra, at para. 31.

18 The honour of the Crown gives rise to different duties in different circumstances. Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty: Roberts v. R., [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.), at para. 79. The content of the fiduciary duty may vary to take into account the Crown's other, broader obligations. However, the duty's fulfilment requires that the Crown act with reference to the Aboriginal group's best interest in exercising discretionary control over the specific Aboriginal interest at stake. As explained in Roberts, at para. 81, the term "fiduciary duty" does not connote a universal trust relationship encompassing all aspects of the relationship between the Crown and Aboriginal peoples:

..."fiduciary duty" as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship .... overshoots the mark. The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests.

Here, Aboriginal rights and title have been asserted but have not been defined or proven. The Aboriginal interest in question is insufficiently specific for the honour of the Crown to mandate that the Crown act in the Aboriginal group's best interest, as a fiduciary, in exercising discretionary control over the subject of the right or title.

19 The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of "sharp dealing" (Badger, at para. 41). Thus in Marshall, supra, at para. 4, the majority of this Court supported its inter-

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pretation of a treaty by stating that "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship...".

20 Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.), at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition, and "[i]t is always assumed that the Crown intends to fulfil its promises" (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.

21 This duty to consult is recognized and discussed in the jurisprudence. In Sparrow, supra, at p. 1119, this Court affirmed a duty to consult with west-coast Salish asserting an unresolved right to fish. Dickson C.J. and La Forest J. wrote that one of the factors in determining whether limits on the right were justified is "whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented".

22 The Court affirmed the duty to consult regarding resources to which Aboriginal peoples make claim a few years later in R. v. Nikal, [1996] 1 S.C.R. 1013 (S.C.C.), where Cory J. wrote: "So long as every reasonable effort is made to inform and to consult, such efforts would suffice to meet the justification requirement" (para. 110).

23 In the companion case of R. v. Gladstone, [1996] 2 S.C.R. 723 (S.C.C.), Lamer C.J. referred to the need for "consultation and compensation", and to consider "how the government has accommodated different aboriginal rights in a particular fishery ... how important the fishery is to the economic and material well-being of the band in question, and the criteria taken into account by the government in, for example, allocating commercial licences amongst different users" (para. 64).

24 The Court's seminal decision in Delgamuukw, supra, at para. 168, in the context of a claim for title to land and resources, confirmed and expanded on the duty to consult, suggesting the content of the duty varied with the circumstances: from a minimum "duty to discuss important decisions" where the "breach is less serious or relatively minor"; through the "significantly deeper than mere consultation" that is required in "most cases"; to "full consent of [the] aboriginal nation..." on very serious issues. These words apply as much to unresolved claims as to intrusions on settled claims.

25 Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

C. When the Duty to Consult and Accommodate Arises

26 Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants' inherent rights. But proving rights may take time, sometimes a very long

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time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?

27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cava- lierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

28 The government argues that it is under no duty to consult and accommodate prior to final determination of the scope and content of the right. Prior to proof of the right, it is argued, there exists only a broad, common law "duty of fairness", based on the general rule that an administrative decision that affects the "rights, privileges or interests of an individual" triggers application of the duty of fairness: Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 (S.C.C.), at p. 653; Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), at para. 20. The government asserts that, beyond general administrative law obligations, a duty to consult and accommodate arises only where the government has taken on the obligation of protecting a specific Aboriginal interest or is seeking to limit an established Aboriginal interest. In the result, the government submits that there is no legal duty to consult and accommodate Haida interests at this stage, although it concedes there may be "sound practical and policy reasons" to do so.

29 The government cites both authority and policy in support of its position. It relies on Sparrow, supra, at pp. 1110-13 and 1119, where the scope and content of the right were determined and infringement established, prior to consideration of whether infringement was justified. The government argues that its position also finds support in the perspective of the Ontario Court of Appeal in TransCanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403 (Ont. C.A.), which held that "what triggers a consideration of the Crown's duty to consult is a showing by the First Nation of a violation of an existing Aboriginal or treaty right recognized and affirmed by s. 35(1)..." (para. 120).

30 As for policy, the government points to practical difficulties in the enforcement of a duty to consult or accommodate unproven claims. If the duty to consult varies with the circumstances from a "mere" duty to notify and listen at one end of the spectrum to a requirement of Aboriginal consent at the other end, how, the government asks, are the parties to agree which level is appropriate in the face of contested claims and rights? And if they cannot agree, how are courts or tribunals to determine this? The government also suggests that it is impractical and unfair to require consultation before final claims determination because this amounts to giving a remedy before issues of infringement and justification are decided.

31 The government's arguments do not withstand scrutiny. Neither the authorities nor practical considerations support the view that a duty to consult and, if appropriate, accommodate arises only upon final determination of the scope and content of the right.

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32 The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown's duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown's assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people. As stated in Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911, 2001 SCC 33 (S.C.C.), at para. 9, "[w]ith this assertion [sovereignty] arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation..." (emphasis added).

33 To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic goal, devoid of the "meaningful content" mandated by the "solemn commitment" made by the Crown in recognizing and affirming Aboriginal rights and title: Sparrow, supra, at p. 1108. It also risks unfortunate consequences. When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honourable.

34 The existence of a legal duty to consult prior to proof of claims is necessary to understand the language of cases like Sparrow, Nikal, and Gladstone, supra, where confirmation of the right and justification of an alleged infringement were litigated at the same time. For example, the reference in Sparrow to Crown behaviour in determining if any infringements were justified, is to behaviour before determination of the right. This negates the contention that a proven right is the trigger for a legal duty to consult and if appropriate accommodate even in the context of justification.

35 But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation, suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. See Halfway River First Nation v. British Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45 (B.C. S.C.), at p. 71, per Dorgan J.

36 This leaves the practical argument. It is said that before claims are resolved, the Crown cannot know that the rights exist, and hence can have no duty to consult or accommodate. This difficulty should not be denied or minimized. As I stated (dissenting) in Marshall, supra, at para. 112, one cannot "meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope". However, it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate, short of final judicial determination or settlement. To facilitate this determination, claimants should outline their claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements. This is what happened here, where the chambers judge made a preliminary evidence-based assessment of the strength of the Haida claims to the lands and resources of Haida Gwaii, particularly Block 6.

37 There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. Parties can assess these matters, and

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if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.

38 I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands. It preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation: see S. Lawrence and P. Macklem, "From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult" (2000), 79 Can. Bar Rev. 252, at p. 262. Precisely what is required of the government may vary with the strength of the claim and the circumstances. But at a minimum, it must be consistent with the honour of the Crown.

D. The Scope and Content of the Duty to Consult and Accommodate

40 In Delgamuukw, supra, at para. 168, the Court considered the duty to consult and accommodate in the context of established claims. Lamer C.J. wrote:

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

41 Transposing this passage to pre-proof claims, one may venture the following. While it is not useful to classify situations into watertight compartments, different situations requiring different responses can be identified. In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law.

42 At all stages, good faith on both sides is required. The common thread on the Crown's part must be "the intention of substantially addressing [Aboriginal] concerns" as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown's reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C. C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107 (B.C. S.C.). Mere hard bargaining, however, will not offend an Aboriginal people's right to be consulted.

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43 Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. "'[C]onsultation' in its least technical definition is talking together for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.

44 At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non- compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.

45 Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

46 Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justice's Guide for Consultation with Mäori (1998) provides insight:

Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed ... (at s. 2.0 of Executive Summary)

...genuine consultation means a process that involves...:

• gathering information to test policy proposals

• putting forward proposals that are not yet finalized

• seeking Mäori opinion on those proposals

• informing Mäori of all relevant information upon which those proposals are based

• not promoting but listening with an open mind to what Mäori have to say

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• being prepared to alter the original proposal

• providing feedback both during the consultation process and after the decision-process. (at s. 2.2 of Deciding)

47 When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government's proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Ac- commodation is achieved through consultation, as this Court recognized in Marshall v. Canada, [1999] 3 S.C.R. 533 (S.C.C.), at para. 22: "...the process of accommodation of the treaty right may best be resolved by consultation and negotiation".

48 This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal "consent" spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.

49 This flows from the meaning of "accommodate". The terms "accommodate" and "accommodation" have been defined as to "adapt, harmonize, reconcile" ... "an adjustment or adaptation to suit a special or different purpose ... a convenient arrangement; a settlement or compromise": The Concise Oxford Dictionary of Current English 9th ed. 1995) at p. 9. The accommodation that may result from pre-proof consultation is just this — seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree. But it does require good faith efforts to understand each other's concerns and move to address them.

50 The Court's decisions confirm this vision of accommodation. The Court in Sparrow raised the concept of accommodation, stressing the need to balance competing societal interests with Aboriginal and treaty rights. In Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.), at p. 1072, the Court stated that the Crown bears the burden of proving that its occupancy of lands "cannot be accommodated to reasonable exercise of the Hurons' rights". And R. c. Côté, [1996] 3 S.C.R. 139 (S.C.C.), at para. 81, the Court spoke of whether restrictions on Aboriginal rights "can be accommodated with the Crown's special fiduciary relationship with First Na- tions". Balance and compromise are inherent in the notion of reconciliation. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

51 It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts. As noted in R. c. Adams, [1996] 3 S.C.R. 101 (S.C.C.), at para. 54, the government "may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance". It should be observed that, since October 2002, British Columbia has had a Provincial Policy for Consultation with First Nations to direct the terms of provincial ministries' and agencies' operational guidelines. Such a policy, while falling short of a regulatory scheme, may guard against unstructured discretion and provide a guide for decision makers.

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E. Do Third Parties Owe a Duty to Consult and Accommodate?

52 The Court of Appeal found that Weyerhaeuser, the forestry contractor holding T.F.L. 39, owed the Haida people a duty to consult and accommodate. With respect, I cannot agree.

53 It is suggested (per Lambert J.A) that a third party's obligation to consult Aboriginal peoples may arise from the ability of the third party to rely on justification as a defence against infringement. However, the duty to consult and accommodate, as discussed above, flows from the Crown's assumption of sovereignty over lands and resources formerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments. Similarly, the terms of T.F.L. 39 mandated Weyerhaeuser to specify measures that it would take to identify and consult with "aboriginal people claiming an aboriginal interest in or to the area" (Tree Farm Licence No. 39, Haida Tree Farm Licence, para. 2.09(g)(ii). However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated.

54 It is also suggested (per Lambert J.A) that third parties might have a duty to consult and accommodate on the basis of the trust law doctrine of "knowing receipt". However, as discussed above, while the Crown's fiduciary obligations and its duty to consult and accommodate share roots in the principle that the Crown's honour is engaged in its relationship with Aboriginal peoples, the duty to consult is distinct from the fiduciary duty that is owed in relation to particular cognizable Aboriginal interests. As noted earlier, the Court cautioned in Roberts against assuming that a general trust or fiduciary obligation governs all aspects of relations between the Crown and Aboriginal peoples. Furthermore, this Court in Guerin v. R., [1984] 2 S.C.R. 335 (S.C.C.), made it clear that the "trust-like" relationship between the Crown and Aboriginal peoples is not a true "trust", noting that "[t]he law of trusts is a highly developed, specialized branch of the law" (p. 386). There is no reason to graft the doctrine of knowing receipt onto the special relationship between the Crown and Aboriginal peoples. It is also questionable whether businesses acting on licence from the Crown can be analogized to persons who knowingly turn trust funds to their own ends.

55 Finally, it is suggested (per Finch C.J.B.C.) that third parties should be held to the duty in order to provide an effective remedy. The first difficulty with this suggestion is that remedies do not dictate liability. Once liability is found, the question of remedy arises. But the remedy tail cannot wag the liability dog. We cannot sue a rich person, simply because the person has deep pockets or can provide a desired result. The second problem is that it is not clear that the government lacks sufficient remedies to achieve meaningful consultation and accommodation. In this case, Part 10 of T.F.L. 39 provided that the Ministry of Forests could vary any permit granted to Weyerhaeuser to be consistent with a court's determination of Aboriginal rights or title. The government may also require Weyerhaeuser to amend its management plan if the Chief Forester considers that interference with an Aboriginal right has rendered the management plan inadequate (para. 2.38(d). Finally, the government can control by legislation, as it did when it introduced the Forestry Revitalization Act, S.B.C. 2003, c. 17, which claws back 20 percent of all licensees' harvesting rights, in part to make land available for Aboriginal peoples. The government's legislative authority over provincial natural resources gives it a powerful tool with which to respond to its legal obligations. This, with respect, renders questionable the statement by Finch C.J.B.C. that the government "has no capacity to allocate any part of that timber to the Haida without Weyer- haeuser's consent or co-operation" (2002), 5 B.C.L.R. (4th) 33 (B.C. C.A.), at para. 119). Failure to hold Weyer- haeuser to a duty to consult and accommodate does not make the remedy "hollow or illusory".

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56 The fact that third parties are under no duty to consult or accommodate Aboriginal concerns does not mean that they can never be liable to Aboriginal peoples. If they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dis- honestly, they may be held legally liable. But they cannot be held liable for failing to discharge the Crown's duty to consult and accommodate.

F. The Province's Duty

57 The Province of British Columbia argues that any duty to consult or accommodate rests solely with the federal government. I cannot accept this argument.

58 The Province's argument rests on s. 109 of the Constitution Act, 1867, which provides that "[a]ll Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada ... at the Union ... shall belong to the several Provinces...". The Province argues that this gives it exclusive right to the land at issue. This right, it argues, cannot be limited by the protection for Aboriginal rights found in s. 35 of the Constitution Act, 1982. To do so, it argues, would "undermine the balance of federalism" (Crown's factum, at para. 96).

59 The answer to this argument is that the Provinces took their interest in land subject to "any Interest other than that of the Province in the same". The duty to consult and accommodate here at issue is grounded in the assertion of Crown sovereignty which pre-dated the Union. It follows that the Province took the lands subject to this duty. It cannot therefore claim that s. 35 deprives it of powers it would otherwise have enjoyed. As stated in St. Catharines Milling & Lumber Co. v. R. (1888), (1889) L.R. 14 App. Cas. 46 (Canada P.C.), lands in the Province are "available to [the Province] as a source of revenue whenever the estate of the Crown is disen- cumbered of the Indian title" (p.59). The Crown's argument on this point has been canvassed by this Court in Delgamuukw, supra, at para. 175, where Lamer C.J. reiterated the conclusions in St. Catharines Milling & Lum- ber Co., supra. There is therefore no foundation to the Province's argument on this point.

G. Administrative Review

60 Where the government's conduct is challenged on the basis of allegations that it failed to discharge its duty to consult and accommodate pending claims resolution, the matter may go to the courts for review. To date, the Province has established no process for this purpose. The question of what standard of review the court should apply in judging the adequacy of the government's efforts cannot be answered in the absence of such a process. General principles of administrative law, however, suggest the following.

61 On questions of law, a decision-maker must generally be correct: for example, Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55 (S.C.C.). On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: Ryan v. Law Society (New Brunswick), [2003] 1 S.C.R. 247, 2003 SCC 20 (S.C.C.); Paul, supra. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness:

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Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748 (S.C.C.).

62 The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action "viewed as a whole, accom- modates the collective aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, "in ... information and consultation the concept of reasonableness must come into play.... So long as every reasonable effort is made to inform and to consult, such efforts would suffice...". The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.

63 Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government's process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.

H. Application to the Facts

(1) Existence of the Duty

64 The question is whether the Province had knowledge, real or constructive, of the potential existence of Aboriginal right or title and contemplated conduct that might adversely affect them. On the evidence before the Court in this matter, the answer must unequivocally be "yes".

65 The Haida have claimed title to all of Haida Gwaii for at least 100 years. The chambers judge found that they had expressed objections to the Province for a number of years regarding the rate of logging of old-growth forests, methods of logging, and the environmental effects of logging. Further, the Province was aware since at least 1994 that the Haida objected to replacement of T.F.L. 39 without their consent and without accommodation with respect to their title claims. As found by the chambers judge, the Province has had available evidence of the Haida's exclusive use and occupation of some areas of Block 6 "[s]ince 1994, and probably much earlier". The Province has had available to it evidence of the importance of red cedar to the Haida culture since before 1846 (the assertion of British sovereignty).

66 The Province raises concerns over the breadth of the Haida's claims, observing that "[i]n a separate action the Haida claim aboriginal title to all of the Queen Charlotte Islands, the surrounding waters, and the air space.... The Haida claim includes the right to the exclusive use, occupation and benefit of the land, inland waters, seabed, archipelagic waters and air space" (Crown's factum, at para. 35). However, consideration of the duty to consult and accommodate prior to proof of a right does not amount to a prior determination of the case on its merits. Indeed, it should be noted that, prior to the chambers judge's decision in this case, the Province had successfully moved to sever the question of the existence and infringement of Haida title and rights from issues involving the duty to consult and accommodate. The issues were clearly separate in the proceedings, at the Province's instigation.

67 The chambers judge ascertained that the Province knew that the potential Aboriginal right and title applied to Block 6, and could be affected by the decision to replace T.F.L. 39. On this basis, the honour of the Crown mandated consultation prior to making a decision that might adversely affect the claimed Aboriginal title and rights.

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(2) Scope of the Duty

68 As discussed above, the scope of the consultation required will be proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

(i) Strength of the case

69 On the basis of evidence described as "voluminous," the chambers judge found, at para. 25, a number of conclusions to be "inescapable" regarding the Haida's claims. He found that the Haida had inhabited Haida Gwaii continuously since at least 1774, that they had never been conquered, never surrendered their rights by treaty, and that their rights had not been extinguished by federal legislation. Their culture has utilized red cedar from old-growth forests on both coastal and inland areas of what is now Block 6 of T.F.L. 39 since at least 1846.

70 The chambers judge's thorough assessment of the evidence distinguishes between the various Haida claims relevant to Block 6. On the basis of a thorough survey of the evidence, he found, at para. 47:

(1) a "reasonable probability" that the Haida may establish title to "at least some parts" of the coastal and inland areas of Haida Gwaii, including coastal areas of Block 6. There appears to be a "reasonable possibility" that these areas will include inland areas of Block 6;

(2) a "substantial probability" that the Haida will be able to establish an aboriginal right to harvest old- growth red cedar trees from both coastal and inland areas of Block 6.

The chambers judge acknowledged that a final resolution would require a great deal of further evidence, but said he thought it "fair to say that the Haida claim goes far beyond the mere 'assertion' of Aboriginal title" (para. 50).

71 The chambers judge's findings grounded the Court of Appeal's conclusion that the Haida claims to title and Aboriginal rights were "supported by a good prima facie case" (para. 49 (c)). The strength of the case goes to the extent of the duty that the Province was required to fulfill. In this case the evidence clearly supports a conclusion that, pending a final resolution, there was a prima facie case in support of Aboriginal title, and a strong prima facie case for the Aboriginal right to harvest red cedar.

(ii) Seriousness of the potential impact

72 The evidence before the chambers judge indicated that red cedar has long been integral to Haida culture. The chambers judge considered that there was a "reasonable probability" that the Haida would be able to establish infringement of an Aboriginal right to harvest red cedar "by proof that old-growth cedar has been and will continue to be logged on Block 6, and that it is of limited supply" (para. 48). The prospect of continued logging of a resource in limited supply points to the potential impact on an Aboriginal right of the decision to replace T.F.L. 39.

73 Tree Farm Licences are exclusive, long-term licences. T.F.L. 39 grants exclusive rights to Weyerhaeuser to harvest timber within an area constituting almost one quarter of the total land of Haida Gwaii. The chambers judge observed that "it [is] apparent that large areas of Block 6 have been logged off" (para. 59(b)). This points to the potential impact on Aboriginal rights of the decision to replace T.F.L. 39.

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74 To the Province's credit, the terms of T.F.L. 39 impose requirements on Weyerhaeuser with respect to Aboriginal peoples. However, more was required. Where the government has knowledge of an asserted Abori- ginal right or title, it must consult the Aboriginal peoples on how exploitation of the land should proceed.

75 The next question is when does the duty to consult arise? Does it arise at the stage of granting a Tree Farm Licence (T.F.L.), or only at the stage of granting cutting permits? The T.F.L. replacement does not itself authorize timber harvesting, which occurs only pursuant to cutting permits. T.F.L. replacements occur periodically, and a particular T.F.L. replacement decision may not result in the substance of the asserted right being destroyed. The Province argues that, although it did not consult the Haida prior to replacing the T.F.L., it "has consulted, and continues to consult with the Haida prior to authorizing any cutting permits or other operational plans" (Crown's factum, at para. 64).

76 I conclude that the Province has a duty to consult and perhaps accommodate on T.F.L. decisions. The T.F.L. decision reflects the strategic planning for utilization of the resource. Decisions made during strategic planning may have potentially serious impacts on Aboriginal right and title. The holder of T.F.L. 39 must submit a management plan to the Chief Forester every five years, to include inventories of the licence area's resources, a timber supply analysis, and a "20-Year Plan" setting out a hypothetical sequence of cutblocks. The inventories and the timber supply analysis form the basis of the determination of the allowable annual cut (A.A.C.) for the licence. The licensee thus develops the technical information based upon which the A.A.C. is calculated. Con- sultation at the operational level thus has little effect on the quantity of the annual allowable cut, which in turn determines cutting permit terms. If consultation is to be meaningful, it must take place at the stage of granting or renewing Tree Farm Licences.

77 The last issue is whether the Crown's duty went beyond consultation on T.F.L. decisions, to accommodation. We cannot know, on the facts here, whether consultation would have led to a need for accommodation. However, the strength of the case for both the Haida title and the Haida right to harvest red cedar, coupled with the serious impact of incremental strategic decisions on those interests, suggest that the honour of the Crown may well require significant accommodation to preserve the Haida interest pending resolution of their claims.

(3) Did the Crown Fulfill its Duty?

78 The Province did not consult with the Haida on the replacement of T.F.L. 39. The chambers judge found, at para. 42:

[O]n the evidence presented, it is apparent that the Minister refused to consult with the Haida about replacing T.F.L. 39 in 1995 and 2000, on the grounds that he was not required by law to consult, and that such consultation could not affect his statutory duty to replace T.F.L. 39.

In both this Court and the courts below, the Province points to various measures and policies taken to address Aboriginal interests. At this Court, the Province argued that "[t]he Haida were and are consulted with respect to forest development plans and cutting permits.... Through past consultations with the Haida, the Province has taken various steps to mitigate the effects of harvesting..." (Crown's factum, at para. 75). However, these measures and policies do not amount to and cannot substitute for consultation with respect to the decision to replace T.F.L. 39 and the setting of the licence's terms and conditions.

79 It follows, therefore, that the Province failed to meet its duty to engage in something significantly deeper than mere consultation. It failed to engage in any meaningful consultation at all.

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III. Conclusion

80 The Crown's appeal is dismissed and Weyerhaeuser's appeal is allowed. The British Columbia Court of Appeal's order is varied so that the Crown's obligation to consult does not extend to Weyerhaeuser. The Crown has agreed to pay the costs of the respondents regarding the application for leave to appeal and the appeal. Wey- erhaeuser shall be relieved of any obligation to pay the costs of the Haida in the courts below. It is not necessary to answer the constitutional question stated in this appeal.

Order accordingly.

Ordonnance en conséquence.

END OF DOCUMENT

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1999 CarswellBC 1821, 64 B.C.L.R. (3d) 206, [1999] 9 W.W.R. 645, 1999 BCCA 470, [1999] 4 C.N.L.R. 1, 178 D.L.R. (4th) 666, 129 B.C.A.C. 32, 210 W.A.C. 32, [1999] B.C.J. No. 1880, 4 C.N.L.R. 1, 10 B.C.T.C. 80, 90 A.C.W.S. (3d) 512

Halfway River First Nation v. British Columbia (Ministry of Forests)

Chief Bernie Metecheah, on his own behalf and on behalf of all other members of the Halfway River First Na- tion, and the Halfway River First Nation, Petitioners (Respondents) and David Lawson, District Manager, Fort St. John Forest District and The Ministry of Forests, Respondents (Appellants) and Canadian Forest Products Ltd., Respondents (Appellants)

British Columbia Court of Appeal

Southin, Finch, Huddart JJ.A.

Heard: January 19-22, 1999 Judgment: August 12, 1999 Docket: Vancouver CA023526, CA023539

Proceedings: affirming (1997), 39 B.C.L.R. (3d) 227, [1997] 4 C.N.L.R. 45, [1998] 4 W.W.R. 283 (B.C.S.C.)

Counsel: M.W.W. Frey and H.M. Groberman, Q.C., for Appellants District Manager and Ministry of Forests.

S.B. Armstrong and J.M. Marks, for Appellant Canadian Forest Products Ltd.

C. Allan Donovan, for Respondents Chief Bernie Metecheah and Halfway River First Nation.

Subject: Public

Native law --- Hunting and fishing — Native rights — Hunting

District manager allowed logging in area adjacent to native reserve — Decision was quashed on judicial review, on basis that band was not consulted and decision unreasonably denied band its preferred means of exercising its rights — Appeal dismissed — Failure to consult was breach of procedural fairness — Interference with right to hunt was prima facie infringement of treaty, but district manager's finding that decision would have minimal impact on wildlife was sufficient to meet tests for minimal impairment or infringement.

Administrative law --- Requirements of natural justice — Right to hearing — Duty of fairness

District manager allowed logging in area adjacent to native reserve — Decision was quashed on judicial review,

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on basis that band was not consulted and district manager unlawfully fettered discretion — Appeal dismissed — Failure to consult was breach of procedural fairness.

The district manager granted a permit allowing a company to log a non-reserve area adjacent to a native reserve occupied by the band. The band's predecessors had surrendered all title to the non-reserve area under a treaty. The Crown allowed the band to continue traditional activities throughout the area. The decision of the district manager was quashed on judicial review. The district manager was found to have unlawfully fettered his discretion and violated the principles of procedural fairness, as the decision unreasonably denied the band its preferred means of exercising its rights. The Crown was found to have failed to meet its fiduciary duty to adequately consult and inform the band prior to decision. The company, district manager and Minister of Forests appealed.

Held: The appeal was dismissed.

Per Finch J.A.: It was unreasonable to infer that the district manager denied the band procedural fairness. While the district manager may have held a mistaken view of the law, this did not necessarily demonstrate a failure to keep an open mind or an unwillingness to decide the issues on merits. The chambers judge erred in holding that the district manager's conduct gave rise to a reasonable apprehension of bias and that adequate notice of the decision had not been given to the band. There was no requirement for the district manager to hold a formal hearing, but the failure to consult and ascertain the band's position was correctly found to be a breach of procedural fairness.

The chambers judge did not err in holding that interference with the right to hunt was a prima facie infringement of the treaty. Although the chambers judge did not address the issue of whether such an infringement was a minimal impairment of the right to hunt, the district manager's finding that the company's activities would have minimal impact on wildlife was sufficient to meet the tests for minimal impairment or infringement. The benefits ensuring to the company would outweigh any detriment to the band's rights.

Per Huddart J.A. (concurring): The district manager's failure to consult was a deficiency in the decision-making process that made Finch J.A.'s analysis of procedural fairness premature. The district manager is required to initiate a process of adequate and meaningful consultation with the band to ascertain the nature and scope of the treaty right. Once this is done, a determination as to whether the proposed use is compatible with the treaty right is made. If it is found compatible, the district manager must seek to accommodate the uses to each other. It is the accommodation that is subject to judicial review. The chambers judge was therefore acting outside of his jurisdiction when he found that any interference with the right to hunt was an infringement of the treaty.

Per Southin J.A. (dissenting): To require administrators to consult to ascertain the nature and scope of a treaty right is to impose a burden that civil servants should not have to bear. A district manager is not qualified to decide a legal issue arising under the treaty. The burden also affects the people of the province who must pay for any wrongs committed by the Crown. Companies who find themselves in a similar position to the company in this case may not be able to afford the costs of litigation. Cases considered by Finch J.A.:

Berg v. University of British Columbia, 13 Admin. L.R. (2d) 141, 79 B.C.L.R. (2d) 273, (sub nom. Uni- versity of British Columbia v. Berg) 152 N.R. 99, (sub nom. University of British Columbia v. Berg) [1993] 2 S.C.R. 353, (sub nom. University of British Columbia v. Berg) 26 B.C.A.C. 241, (sub nom. University of British Columbia v. Berg) 44 W.A.C. 241, (sub nom. University of British Columbia v. Berg) 102 D.L.R. (4th) 665, (sub nom. University of British Columbia v. Berg) 18 C.H.R.R. D/310 (S.C.C.) — referred to

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Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, [1973] 4 W.W.R. 1, 34 D.L.R. (3d) 145 (S.C.C.) — referred to

Canada (Attorney General) v. Mossop, 93 C.L.L.C. 17,006, 13 Admin. L.R. (2d) 1, 46 C.C.E.L. 1, 149 N.R. 1, [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658, 17 C.H.R.R. D/349 (S.C.C.) — referred to

Chetwynd Environmental Society v. Dawson Creek Forest District (District Manager) (1995), 13 B.C.L.R. (3d) 338 (B.C. S.C. [In Chambers]) — referred to

Clare v. Thomson (1993), 25 B.C.A.C. 146, 43 W.A.C. 146, 83 B.C.L.R. (2d) 263 (B.C. C.A.) — referred to

Colliers MaCaulay Nicolls Inc. v. Clarke (September 29, 1989), Doc. Vancouver CA009621 (B.C. C.A.) — referred to

Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115 (S.C.C.) — referred to

Daniels v. White, [1968] S.C.R. 517, 4 C.R.N.S. 176, 64 W.W.R. 385, [1969] 1 C.C.C. 299, 2 D.L.R. (3d) 1 (S.C.C.) — referred to

Davison v. Maple Ridge (District) (1991), 60 B.C.L.R. (2d) 24, 6 M.P.L.R. (2d) 221, 4 B.C.A.C. 233, 9 W.A.C. 233 (B.C. C.A.) — referred to

Doe d. Jacobs v. Phillips (1845), 115 E.R. 835, 8 Q.B. 158 (Eng. Q.B.) — referred to

Eastmain Band v. Robinson (1992), 9 C.E.L.R. (N.S.) 257, (sub nom. Eastmain Band v. Canada (Federal Administrator)) [1993] 3 C.N.L.R. 55, (sub nom. Eastmain Band v. James Bay & Northern Quebec Agree- ment (Administrator)) 99 D.L.R. (4th) 16, (sub nom. Eastmain Indian Band v. Robinson) 145 N.R. 270, (sub nom. Eastmain Band v. Canada (Federal Administrator)) [1993] 1 F.C. 501, (sub nom. Eastmain Indian Band v. Robinson) 58 F.T.R. 240 (note) (Fed. C.A.) — referred to

Emcon Services Inc. v. British Columbia (Council of Human Rights) (1991), 49 Admin. L.R. 220, 20 C.H.R.R. D/193 (B.C. S.C.) — referred to

International Forest Products v. British Columbia (March 19, 1997), Doc. Appeal 96/02(b) (B.C. Forest Appeals Comm.) — referred to

International Forest Products Ltd. v. British Columbia (1998), (sub nom. International Forest Products Ltd. v. British Columbia (Forest Appeals Commission)) 12 Admin. L.R. (3d) 45 (B.C. S.C.) — referred to

Koopman v. Ostergaard (1995), 12 B.C.L.R. (3d) 154, 34 Admin. L.R. (2d) 144 (B.C. S.C. [In Chambers]) — referred to

Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, 44 N.R. 354, 137 D.L.R. (3d) 558 (S.C.C.) — applied

Mitchell v. Sandy Bay Indian Band, (sub nom. Mitchell v. Peguis Indian Band) [1990] 5 W.W.R. 97, [1990] 2 S.C.R. 85, 71 D.L.R. (4th) 193, 3 T.C.T. 5219, 67 Man. R. (2d) 81, 110 N.R. 241, [1990] 3 C.N.L.R. 46 (S.C.C.) — referred to

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Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 134 N.R. 241, [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289, 4 Admin. L.R. (2d) 121, 95 Nfld. & P.E.I.R. 271, 301 A.P.R. 271 (S.C.C.) — referred to

Nowegijick v. R., (sub nom. Nowegijick v. Canada) [1983] 1 S.C.R. 29, 83 D.T.C. 5041, 46 N.R. 41, [1983] 2 C.N.L.R. 89, [1983] C.T.C. 20, 144 D.L.R. (3d) 193 (S.C.C.) — referred to

Orangeville Raceway Ltd. v. Wood Gundy Inc. (1995), 6 B.C.L.R. (3d) 391, 40 C.P.C. (3d) 226, 59 B.C.A.C. 241, 98 W.A.C. 241 (B.C. C.A.) — referred to

Pezim v. British Columbia (Superintendent of Brokers), 4 C.C.L.S. 117, [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385, (sub nom. Pezim v. British Columbia (Securities Commission)) 168 N.R. 321, [1994] 7 W.W.R. 1, 92 B.C.L.R. (2d) 145, 22 Admin. L.R. (2d) 1, 14 B.L.R. (2d) 217, (sub nom. Pezim v. British Columbia (Securities Commission)) 46 B.C.A.C. 1, (sub nom. Pezim v. British Columbia (Securities Commission)) 75 W.A.C. 1 (S.C.C.) — referred to

Placer Development Ltd. v. Skyline Explorations Ltd. (1985), 67 B.C.L.R. 366 (B.C. C.A.) — referred to

R. v. Badger, [1996] 4 W.W.R. 457, 37 Alta. L.R. (3d) 153, 195 N.R. 1, 105 C.C.C. (3d) 289, 133 D.L.R. (4th) 324, [1996] 2 C.N.L.R. 77, [1996] 1 S.C.R. 771, 181 A.R. 321, 116 W.A.C. 321 (S.C.C.) — applied

R. v. Bartleman, 55 B.C.L.R. 78, [1984] 3 C.N.L.R. 114, 13 C.C.C. (3d) 488, 12 D.L.R. (4th) 73 (B.C. C.A.) — referred to

R. v. Horse, [1988] 2 W.W.R. 289, [1988] 1 S.C.R. 187, [1988] 2 C.N.L.R. 112, 47 D.L.R. (4th) 526, 82 N.R. 206, 65 Sask. R. 176, 39 C.C.C. (3d) 97 (S.C.C.) — distinguished

R. v. Jack (1995), 16 B.C.L.R. (3d) 201, 103 C.C.C. (3d) 385, 131 D.L.R. (4th) 165, [1996] 5 W.W.R. 45, 67 B.C.A.C. 161, 111 W.A.C. 161, [1996] 2 C.N.L.R. 113 (B.C. C.A.) — referred to

R. v. Nikal, [1996] 5 W.W.R. 305, 19 B.C.L.R. (3d) 201, 105 C.C.C. (3d) 481, 196 N.R. 1, 133 D.L.R. (4th) 658, 74 B.C.A.C. 161, 121 W.A.C. 161, [1996] 1 S.C.R. 1013, (sub nom. Canada v. Nikal) 35 C.R.R. (2d) 189, [1996] 3 C.N.L.R. 178 (S.C.C.) — applied

R. v. Noel, [1995] 4 C.N.L.R. 78, [1996] N.W.T.R. 68 (N.W.T. Terr. Ct.) — considered

R. v. Sampson (1995), 16 B.C.L.R. (3d) 226, 103 C.C.C. (3d) 411, 131 D.L.R. (4th) 192, [1996] 5 W.W.R. 18, 67 B.C.A.C. 180, 111 W.A.C. 180, [1996] 2 C.N.L.R. 184 (B.C. C.A.) — referred to

R. v. Sikyea, [1964] S.C.R. 642, 44 C.R. 266, 49 W.W.R. 306, [1965] 2 C.C.C. 129, 50 D.L.R. (2d) 80 (S.C.C.) — referred to

R. v. Simon, [1985] 2 S.C.R. 387, 62 N.R. 366, [1986] 1 C.N.L.R. 153, 24 D.L.R. (4th) 390, 71 N.S.R. (2d) 15, 23 C.C.C. (3d) 238, 171 A.P.R. 15 (S.C.C.) — referred to

R. v. Sparrow, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410 (S.C.C.) — applied

R. v. Sundown, 132 C.C.C. (3d) 353, 236 N.R. 251, 170 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 289, [1999] 6

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W.W.R. 278, 177 Sask. R. 1, 199 W.A.C. 1, [1999] 1 S.C.R. 393 (S.C.C.) — applied

R. v. Sutherland, [1980] 2 S.C.R. 451, 53 C.C.C. (2d) 289, [1980] 5 W.W.R. 456, 7 Man. R. (2d) 359, 35 N.R. 361, 113 D.L.R. (3d) 374, [1980] 3 C.N.L.R. 71 (S.C.C.) — referred to

R. v. Taylor, [1981] 3 C.N.L.R. 114, 34 O.R. (2d) 360, 62 C.C.C. (2d) 227 (Ont. C.A.) — referred to

Rootman Estate v. British Columbia (Public Trustee) (1998), 115 B.C.A.C. 281, 189 W.A.C. 281, 24 E.T.R. (2d) 287, 60 B.C.L.R. (3d) 187 (B.C. C.A.) — referred to

Ryan v. Fort St. James Forest District (District Manager) (January 25, 1994), Doc. Smithers 7855, 7856 (B.C. S.C.) — referred to

Ryan v. Fort St. James Forest District (District Manager) (1994), 40 B.C.A.C. 91, 65 W.A.C. 91 (B.C. C.A.) — referred to

Saanichton Marina Ltd. v. Claxton, 36 B.C.L.R. (2d) 79, (sub nom. Marina Ltd. v. Tsawout Indian Band) 57 D.L.R. (4th) 161, [1989] 5 W.W.R. 82, [1989] 3 C.N.L.R. 46 (B.C. C.A.) — applied

Semiahmoo Indian Band v. Canada (1997), 148 D.L.R. (4th) 523, 215 N.R. 241, 131 F.T.R. 319 (note), [1998] 1 F.C. 3, [1998] 1 C.N.L.R. 250 (Fed. C.A.) — referred to

Sioui v. Quebec (Attorney General), (sub nom. R. v. Sioui) [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427, 109 N.R. 22, (sub nom. R. c. Sioui) 30 Q.A.C. 280, 56 C.C.C. (3d) 225, [1990] 3 C.N.L.R. 127 (S.C.C.) — applied

T. (C.) v. Langley School District No. 35 (1985), 65 B.C.L.R. 197 (B.C. C.A.) — referred to

Thompson v. Bennett (1872), 22 U.C.C.P. 393 (Ont. C.P.) — referred to

U.S.W.A., Local 4589 v. Bombardier - M.L.W. Ltée, 32 N.R. 426, [1980] 1 S.C.R. 905, 80 C.L.L.C. 14,057, 112 D.L.R. (3d) 61 (S.C.C.) — referred to

Zurich Insurance Co. v. Ontario (Human Rights Commission), 39 M.V.R. (2d) 1, (sub nom. Ontario (Human Rights Commission) v. Zurich Insurance Co.) [1992] I.L.R. 1-2848, (sub nom. Ontario (Human Rights Commission) v. Zurich Insurance Co.) 138 N.R. 1, 93 D.L.R. (4th) 346, [1992] 2 S.C.R. 321, 16 C.H.R.R. D/255, 12 C.C.L.I. (2d) 206, (sub nom. Ontario (Human Rights Commission) v. Zurich Insurance Co.) 55 O.A.C. 81, 9 O.R. (3d) 224 (note) (S.C.C.) — referred to

Cases considered by Huddart J.A. (concurring):

Cheslatta Carrier Nation v. British Columbia (Project Assessment Director), 26 C.E.L.R. (N.S.) 37, 4 Ad- min. L.R. (3d) 22, (sub nom. Cheslatta Carrier Nation v. British Columbia (Environmental Assesment Act, Project Assessment Director)) [1998] 3 C.N.L.R. 1, 53 B.C.L.R. (3d) 1 (B.C. S.C.) — referred to

Delgamuukw v. British Columbia, 153 D.L.R. (4th) 193, 220 N.R. 161, 99 B.C.A.C. 161, 162 W.A.C. 161, [1997] 3 S.C.R. 1010, [1998] 1 C.N.L.R. 14 (S.C.C.) — referred to

R. v. Badger, [1996] 4 W.W.R. 457, 37 Alta. L.R. (3d) 153, 195 N.R. 1, 105 C.C.C. (3d) 289, 133 D.L.R.

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(4th) 324, [1996] 2 C.N.L.R. 77, [1996] 1 S.C.R. 771, 181 A.R. 321, 116 W.A.C. 321 (S.C.C.) — considered

R. v. Gladstone, [1996] 9 W.W.R. 149, 23 B.C.L.R. (3d) 155, 50 C.R. (4th) 111, 200 N.R. 189, 137 D.L.R. (4th) 648, 109 C.C.C. (3d) 193, 79 B.C.A.C. 161, 129 W.A.C. 161, [1996] 2 S.C.R. 723, [1996] 4 C.N.L.R. 65 (S.C.C.) — considered

R. v. Mousseau, [1980] 2 S.C.R. 89, [1980] 4 W.W.R. 24, 31 N.R. 620, 3 Man. R. (2d) 338, 111 D.L.R. (3d) 443, 52 C.C.C. (2d) 140, [1980] 3 C.N.L.R. 63 (S.C.C.) — considered

R. v. Smith, [1935] 2 W.W.R. 433, 64 C.C.C. 131, [1935] 3 D.L.R. 703 (Sask. C.A.) — considered

R. v. Sparrow, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410 (S.C.C.) — considered

R. v. Sundown, 132 C.C.C. (3d) 353, 236 N.R. 251, 170 D.L.R. (4th) 385, [1999] 2 C.N.L.R. 289, [1999] 6 W.W.R. 278, 177 Sask. R. 1, 199 W.A.C. 1, [1999] 1 S.C.R. 393 (S.C.C.) — considered

Ryan v. Fort St. James Forest District (District Manager) (January 25, 1994), Doc. Smithers 7855, 7856 (B.C. S.C.) — referred to

Ryan v. Fort St. James Forest District (District Manager) (1994), 40 B.C.A.C. 91, 65 W.A.C. 91 (B.C. C.A.) — referred to

Cases considered by Southin J.A. (dissenting):

British Columbia (Attorney General) v. Mount Currie Indian Band, 54 B.C.L.R. (2d) 156, (sub nom. British Columbia (Attorney General) v. Andrew) [1991] 4 C.N.L.R. 3 (B.C. C.A.) — considered

R. v. Sparrow, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410 (S.C.C.) — considered

Saanichton Marina Ltd. v. Claxton (1987), 18 B.C.L.R. (2d) 217, [1988] 1 W.W.R. 540, [1987] 4 C.N.L.R. 48, 43 D.L.R. (4th) 481 (B.C. S.C.) — considered

Saanichton Marina Ltd. v. Claxton, 36 B.C.L.R. (2d) 79, (sub nom. Marina Ltd. v. Tsawout Indian Band) 57 D.L.R. (4th) 161, [1989] 5 W.W.R. 82, [1989] 3 C.N.L.R. 46 (B.C. C.A.) — referred to

Statutes considered by Finch J.A.:

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5

s. 91 — referred to

s. 91¶24 — referred to

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s. 92 — referred to

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44

Generally — referred to

s. 35 — considered

s. 35(1) — referred to

Constitution Act, 1930 (U.K.), 20 & 21 Geo. 5, c. 26, reprinted R.S.C. 1985, App. II, No. 26

Generally — referred to

Sched. — considered

Sched., (3) — referred to

Sched., (3)¶12 — referred to

Sched., (4) — considered

Fisheries Act, R.S.C. 1970, c. F-14

Generally — referred to

Forest Act, R.S.B.C. 1979, c. 140

Generally — considered

s. 9 — referred to

s. 10 [am. 1980, c. 14, s. 4] — considered

s. 10 [am. 1980, c. 14, s. 4; am. 1994, c. 41, s. 247] — considered

s. 10(a) — considered

s. 10(b) — considered

s. 10(c) — considered

s. 10(d) — considered

s. 12 — referred to

s. 12(f) — considered

s. 158(2) [am. 1980, c. 14, s. 47] — referred to

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s. 158(2)(d.1) [en. 1980, c. 14, s. 47(a)] — considered

Forest Amendment Act, 1980, S.B.C. 1980, c. 14

Generally — referred to

Forest Practices Code of British Columbia, S.B.C. 1994, c. 41

Generally — considered

Preamble — considered

Pt. 3 — referred to

Pt. 3, Div. 3 — referred to

s. 10 — referred to

s. 11 — referred to

s. 12 — referred to

s. 13 — referred to

s. 14 — referred to

ss. 15-16 — referred to

ss. 17-19 — referred to

ss. 20-21 — referred to

ss. 22-23 — referred to

s. 24 — referred to

s. 25 — referred to

ss. 26-27 — referred to

s. 238 — referred to

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

Generally — referred to

s. 2(a) — referred to

Migratory Birds Convention Act, R.S.C. 1952, c. 179

Generally — referred to

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Ministry of Forests Act, R.S.B.C. 1979, c. 272

Generally — referred to

s. 2(1) [am. 1980, c. 14, s. 50] — referred to

s. 2(1)(d) [rep. & sub. 1980, c. 14, s. 50(a)] — considered

Public Service Act, R.S.B.C. 1979, c. 343

Generally — referred to

Railway Belt Re-transfer Agreement Act, S.B.C. 1930, c. 60

Generally — referred to

Range Act, R.S.B.C. 1979, c. 355

Generally — referred to

Statutes considered by Huddart J.A. (concurring):

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44

Generally — referred to

Criminal Code, R.S.C. 1985, c. C-46

Generally — referred to

Forest Act, R.S.B.C. 1979, c. 140

Generally — referred to

Forest Practices Code of British Columbia Act, S.B.C. 1994, c. 41

Generally — referred to

Offence Act, R.S.B.C. 1996, c. 338

Generally — referred to

Statutes considered by Southin J.A. (dissenting):

British Columbia Boundaries Act, 1863 (26 & 27 Vict.), c. 83

Generally — referred to

s. 3 — referred to

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British Columbia Terms of Union (U.K.), May 16, 1871, reprinted R.S.C. 1985, App. II, No. 10, Sched., Term 11

s. 13 — referred to

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44

s. 35 — considered

s. 35(1) — considered

Forest Act, R.S.B.C. 1979, c. 140

Generally — referred to

Forest Act, R.S.B.C. 1996, c. 157

Generally — referred to

Land Act, R.S.B.C. 1979, c. 214

Generally — referred to

Land Act, R.S.B.C. 1996, c. 245

Generally — referred to

Mineral Tenure Act, S.B.C. 1988, c. 5

Generally — referred to

Mineral Tenure Act, R.S.B.C. 1996, c. 292

Generally — referred to

Petroleum and Natural Gas Act, R.S.B.C. 1979, c. 323

Generally — referred to

Petroleum and Natural Gas Act, R.S.B.C. 1996, c. 361

Generally — referred to

Railway Belt Re-transfer Agreement Act, S.B.C. 1930, c. 60

Generally — referred to

Wildlife Act, R.S.B.C. 1996, c. 488

Generally — considered

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Treaties considered by Finch J.A.:

Treaty No. 6, 1876 (Between Her Majesty the Queen and the Plains and Wood Cree Indians and other Tribes of Indians at Fort Carlton, Fort Pitt and Battle River)

Generally — referred to

Article 9 — considered

Treaty No. 8, 1899

Generally — considered

Treaties considered by Huddart J.A. (concurring):

Treaty No. 8, 1899

Generally — considered

Treaties considered by Southin J.A. (dissenting):

Treaty No. 8, 1899

Generally — considered

Rules considered by Finch J.A.:

Rules of Court, 1990, B.C. Reg. 221/90

R. 52(11)(d) — considered

Regulations considered by Finch J.A.:

Forest Practices Code of British Columbia Act, S.B.C. 1994, c. 41

Operational Planning Regulation, B.C. Reg. 174/95

Generally

s. 2

s. 4(1)

s. 4(4)

s. 4(5)

ss. 5-8

s. 6(1)(a)

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s. 11(1)

s. 11(2)(b)

APPEAL from judgment reported at (1997), 39 B.C.L.R. (3d) 227, [1997] 4 C.N.L.R. 45, [1998] 4 W.W.R. 283 (B.C. S.C.), allowing application for judicial review from decision of district manager granting permit to log non-reserve land adjacent to native reserve.

Finch J.A.:

I Introduction

1 The Ministry of Forests ("the Ministry"), its District Manager at Fort St. John, David Lawson, ("the Dis- trict Manager") and Canadian Forest Products Limited ("Canfor") appeal the order of the Supreme Court of Brit- ish Columbia pronounced 24 June, 1997, which quashed the decision of the District Manager on 13 September, 1996, approving Canfor's application for Cutting Permit 212. Canfor holds the timber harvesting licence for the wilderness area in which C.P.212 would permit logging. It is Crown land, adjacent to the reserve land granted to the Halfway River First Nation. The Halfway Nation are descendants of the Beaver People who were signatories to Treaty 8 in 1900.

2 The part of Treaty 8 that preserved the signatories right to hunt says:

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.

(my emphasis)

3 The petitioners claimed under the Treaty the traditional right to hunt on the Crown land adjacent to their reserve, which they refer to as the "Tusdzuh" area, including the areas covered by C.P.212. In addition, they have an outstanding Treaty Land Entitlement Claim (T.L.E.C.) against the federal Crown, and they say lands re- coverable in that claim may be located in the Tusdzuh.

4 Among many other arguments advanced the petitioners said that issuance of the permit, and the logging it will allow, infringes their hunting rights under the Treaty, and that such infringement cannot be justified by the Crown. The petitioners also claimed that C.P.212 was granted by the District Manager in breach of his administrative law duty of fairness, in that he fettered his discretion by applying government policy, prejudged Canfor's right to have the permit issued, failed to give adequate notice of his intention to decide the question, and failed to provide an adequate opportunity for them to be heard. The petitioners also said the District Manager reached a patently unreasonable decision in deciding factual issues on an incomplete evidentiary base.

5 The learned chambers judge accepted all these submissions and held therefore that C.P.212 should be quashed. Other submissions were rejected.

6 On this appeal, the appellants say the learned chambers judge erred on all counts. They say that, properly construed, the plaintiffs' right under Treaty 8 to hunt is subject to the Crown's right to "require", or "take up"

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lands from time to time for, among other purposes, "lumbering"; and that the issuance of C.P.212 therefore did not breach or infringe the petitioners' treaty rights to hunt. Alternatively, the petitioners say that if the treaty right to hunt was breached, that breach was justified within the test laid down in R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, [1990] 4 W.W.R. 410 (S.C.C.).

7 As to the administrative law issues, the appellants say the learned chambers judge erred in finding that the District Manager had fettered his discretion, that his decision gave rise to a reasonable apprehension of bias, and that he failed to give adequate notice or opportunity to be heard. They also say the learned chambers judge erred in holding the District Manager's decision to be patently unreasonable.

8 For the reasons that follow, I have concluded that the only lack of procedural fairness in the decision-making process of the District Manager was the failure to provide to the petitioners an opportunity to be heard. In my respectful view, the learned chambers judge erred in holding that there was a lack of procedural fairness on the other three grounds that were raised. I have also concluded that the issuance of the cutting permit infringed the petitioners' treaty right to hunt, that the Crown has failed to show that infringement was justified, and that the learned chambers judge did not err in quashing the District Manager's approval of Canfor's permit application.

II Background

9 Treaty 8 is one of 11 numbered treaties made between the federal government and various Indian bands between 1871 and 1923. B.C. joined confederation in 1871, but the provincial government was not represented in these treaty negotiations. Treaty 8 was negotiated in 1899, and was adhered to in that year by a number of bands who lived in what are now Alberta, Saskatchewan and the Northwest Territories. The first adherents, a band of Cree Indians, signed the treaty at Lesser Slave Lake in June, 1899. The Hudson Hope Beaver people, from whom the petitioners are descended, adhered to the treaty at Fort St. John in 1900. At that time there were 46 Beaver people living in the vicinity of Fort St. John. The Hudson Hope people are now spread between the Halfway River Nation and the West Moberley Band.

10 On this appeal, counsel for the Ministry of Forests told the Court that the British Columbia government acknowledged that it was bound by the provisions of Treaty 8 concerning the petitioners' rights to hunt and fish, but made no similar concession in respect of the petitioners' right to lands under the treaty.

11 The full provisions of the treaty are set out in the reasons of my colleague, Madam Justice Southin. The Indians could neither read nor write English, and the terms of the treaty were interpreted to them orally. There is a question in this case as to what extrinsic evidence, if any, is admissible in interpreting the treaty. The commissioners who acted on behalf of the federal government made a report concerning their discussions and negotiations with the original adherents to the treaty in 1899. There is no similar record of what was said to the Beaver people of Fort St. John in 1900. The appellant Minister says the extrinsic evidence of what occurred in 1899, and which was admitted and considered in R. v. Badger, [1996] 1 S.C.R. 771 (S.C.C.), is not admissible for the purposes of construing the treaty adhered to by the petitioners' ancestors in 1900.

12 In 1900 title to Crown land was vested in the provincial Crown by virtue of the terms of union between British Columbia and Canada in 1871. Treaty 8 provides for reserve lands to be set aside for the Indians, to the extent of one square mile for each family of five, or 160 acres per individual. The "selection" of such reserves was to be made in the manner provided for in the treaty.

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13 On 15 May, 1907 the provincial government transferred administration and control of lands in the Peace River block to the federal government by Executive Order-in-Council. The transfer covered about 3.5 million acres of land, selected as agreed in 1884. By virtue of s. 91(24) of the Constitution Act, 1867, the federal government already had all jurisdiction to deal with "Indians and land reserved for Indians".

14 The reserve lands of the Halfway River Nation were not finally surveyed and located until 1914. The reserve is located on the north bank of the Halfway River, about 100 miles west of the city of Fort St. John. The reserve comprises about 9,880 acres.

15 The lands to the south and west of the Halfway River reserve were, in 1900 and 1914, unsettled and un- developed wilderness. The Halfway River Nation referred to this area as the Tusdzuh. It is an area that the petitioners and their ancestors have used for hunting, fishing, trapping and the gathering of food and medicinal plants. The area was plentiful with game, and conveniently located for the purposes of the Halfway Nation. The petitioners or their forebears built cabins, corrals and meat drying racks in the area for use in conjunction with their hunting activities. The time of building, and the precise location of these structures, is not disclosed in the evidence.

16 In 1930 the federal government transferred administration and control of the lands in the Peace River block back to the provincial government by the Railway Belt Retransfer Agreement Act, S.B.C. 1930, c. 60. Also in 1930, the Constitution Act, 1930 was enacted by the parliament of the United Kingdom giving effect to, inter alia, the agreement between the federal and B.C. provincial governments by which the retransfer of lands, including the Peace River block, took place. There was an exception from the retransfer of the Indian reserve lands located in the Peace River block.

17 It is significant for the purposes of this case, and to understanding earlier jurisprudence interpreting Treaty 8 and other of the numbered treaties, that B.C. is not affected by the Natural Resources Transfer Act, S.S. 1930, c. 87 (confirmed by the Constitution Act, 1930, 120 & 21 Geo. 5, c. 26 (U.K.)), which was an important consideration in such cases as R. v. Badger, supra and R. v. Horse, [1988] 1 S.C.R. 187 (S.C.C.).

18 In 1982, the Constitution Act, 1982 was enacted. Section 35 of the Act provides:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

19 About 15 years ago, at a date not disclosed in the evidence, the Halfway River Nation entered into negotiations with both the federal and provincial governments to allow the expansion of its reserve lands. They subsequently advanced a Treaty Land Entitlement Claim (TLEC) against the Crown in Right of Canada asserting a shortfall of over 2,000 acres in the reserve lands allocated to them in 1914. In fact, the Nation has made a demand for over 35,000 acres of additional land, the basis for which claim was not made clear in the submissions of counsel. Whatever the area entitlement of the petitioners to further reserve lands may be, there is an unresolved issue as to their location. The petitioners claim that the entitlement may be located, in whole or in part, in the Tusdzuh, the wilderness area to the south of their present reserve lands.

20 There are now said to be 184 men, women and children in the Halfway River Nation. They are a poor people, economically, and have in general not adapted themselves to the agricultural lifestyle contemplated in those parts of Treaty 8 granting each family of five one square mile of land, or each individual 160 acres of land, as well as livestock, farm implements and machinery, and such seed as was suited to the locality of the Band.

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They have instead pursued their traditional means of support and sustenance, of which moose hunting is an important element. 75% of the members of the Halfway River Nation live on social assistance.

21 The lands referred to by the petitioners as the Tusdzuh are vast areas in which, until fairly recent times, there has been limited industrial use or development. There has been some mining since the early 1900s and, more recently, some oil and gas exploration. A network of seismic lines was cut for that purpose. The evidence does not disclose when the first timber harvesting licence was granted. Canfor obtained one part of its current timber harvesting licence in 1983, and a second part in 1989. These licences were amalgamated into Forest Li- cence No. A181154.

22 In 1991, Canfor first identified the areas covered by C.P.212 in its five year Forest Development Plan for 1991-96. Chief Metecheah wrote to the Minister of Forests on 20 January, 1992 requesting a meeting to discuss the development of lands in the Tusdzuh. On 30 June, 1992, Canfor wrote to the Treaty 8 Tribal Association (of which the Halfway River Nation is a member) advising of the proposed harvesting. From that time up to the present litigation there have been both correspondence and telephone communications between the parties to these proceedings: these are more specifically detailed in the reasons for judgment of the learned chambers judge, and in Appendix A to her reasons, setting out a" chronology of notices and consultation". Particular reference to some of these communications will be made later in these reasons, as may appear necessary.

III The Legislative Scheme

23 The authority of the District Manager to issue a cutting a permit derives from the Forest Act, R.S.B.C. 1979, c. 140, as am. S.B.C. 1980, c. 14 (the Act), the Forest Practices Code of British Columbia Act, S.B.C. 1994, c. 41 (the Code, now R.S.B.C. 1996, c. 159) and subsequent regulations, and the Ministry of Forests Act, R.S.B.C. 1979, c. 272, as am. S.B.C. 1980, c. 14. That latter statute amended various aspects of the Forest Act, the Ministry of Forests Act, and the Range Act, R.S.B.C. 1979, c. 355. The 1980 amendment to s. 158(2) of the Forest Act provides:

158 (2) Without limiting ss. (1), the Lieutenant Governor in Council may make regulations respecting ...

(d.1) the establishment of an area of the Province as a forest district, the abolition and variation in boundaries and name of a forest district and the consolidation of 2 or more forest districts; ...

Section 2(1) of the Ministry of Forests Act, R.S.B.C. 1979, c. 272 (now R.S.B.C. 1996, c. 300) was amended to state:

2 (1) The following persons may be appointed under the Public Service Act: ...

(d) a district manager for a forest district established under the Forest Act and the part of a range district established under the Range Act that covers the same area as the forest district; ...

24 That section, in combination with the Public Service Act, R.S.B.C. 1979, c. 343, authorized the Lieuten- ant Governor in Council to appoint district managers for forest districts established under the Forest Act. Section 9 of the 1979 Forest Act (now section 11) specified that no rights to harvest Crown timber could be granted on behalf of the government except in accordance with the Act. Section 10 (now section 12) specified that a District Manager, a regional manager or the minister may enter into agreements granting rights to harvest timber in the form of licenses and/or permits subject to the provisions of the Act and the Regulations. In 1994, section 247 of

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the Code amended section 10 of the Forest Act, subjecting the District Manager's authority to enter into agreements granting rights to harvest timber to the requirements of the Code. Section 238 of the Code states that every cutting permit in existence at the time the Code came into force remains in existence, but ceases to have effect two years after the date the section came into force unless the District Manager determines that the operational planning requirements of the cutting permit are consistent with the requirements of the Code. With the exception of a few sections, the Code came into effect pursuant to Reg. 165/95 on June 15, 1995.

25 The relationship between the Forest Act and the Forest Practices Code with respect to the District Man- ager's authority to issue a cutting permit pursuant to a forest licence agreement is important. The Code regulates the actual practice of forestry as it occurs on the ground, whereas the Act governs matters such as the formation of forest licence agreements and the determination of the annual allowable cut. The Code does not replace the Act but supplements it, as contemplated by s. 10 of the Act (now s. 12) where the authority of officials (including the District Manager) in the Ministry of Forests to issue licenses is circumscribed by the Code insofar as the Code requires that certain operational plans receive approval before the granting of licenses or permits. The process by which those plans receive approval is set out in the Code and in the Regulations enacted pursuant to the Code. Sections 10 and 12 of the 1979 Act, as amended in 1980, provide:

10. Subject to this Act and the Regulations, a district manager, a regional manager or the minister, on behalf of the Crown, may enter into an agreement granting rights to harvest Crown timber in the form of a

(a) forest licence;

(b) timber sale licence;

(d) tree farm licence; ...

12. A forest licence ...

(f) shall provide for cutting permits to be issued by the Crown to authorize the allowable annual cut to be harvested, within the limits provided in the licence, from specific areas of land in the public sus- tained yield unit or timber supply area described in the licence;

.....

26 The enactment of the Forest Practices Code further amended these provisions, so as to render the formation of agreements under section 10 of the Act subject to the provisions of the Code (s. 247 of the Code).

27 In addition, the preamble to the Code provides a broad set of principles to guide the actions of forestry officials, and by which the statute is to be interpreted.

28 The preamble to the Forest Practices Code is as follows:

WHEREAS British Columbians desire sustainable use of the forests they hold in trust for future generations;

AND WHEREAS sustainable use includes

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(a) managing forests to meet present needs without compromising the needs of future generations,

(b) providing stewardship of forests based on an ethic of respect for the land,

(c) balancing productive, spiritual, ecological and recreational values of forests to meet the economic and cultural needs of peoples and communities, including First Nations,

(d) conserving biological diversity, soil, water, fish, wildlife, scenic diversity and other forest resources, and

(e) restoring damaged ecologies;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

29 The Code is to be interpreted so as to achieve the principles set out in the preamble: see Koopman v. Os- tergaard (1995), 12 B.C.L.R. (3d) 154 (B.C. S.C. [In Chambers]); Chetwynd Environmental Society v. Dawson Creek Forest District (District Manager) (1995), 13 B.C.L.R. (3d) 338 (B.C. S.C. [In Chambers]). The preamble of the Code, therefore, is to receive a broad and liberal construction so as to best ensure the attainment of the Code's goals: International Forest Products v. British Columbia (unreported (March 19, 1997), Doc. Appeal 96/02(b) (B.C. Forest Appeals Comm.) (Vigod, Chair)) [affirmed by Bauman J., without comment on this issue, at (1998), 12 Admin. L.R. (3d) 45].

30 In addition to receiving guidance from the preamble's principles, the District Manager's authority to grant cutting permits is subject to certain specific operational planning requirements under the Code. These generally take the form of requiring the permit holder to demonstrate that the plans for harvesting conform to certain environmental standards. The operational planning requirements are set out in Part 3 of the Code, directing that the holder of an agreement under the Forest Act must carry out certain impact assessments of the proposed harvest area and integrate the findings of such an assessment into forest development plans (ss. 10, 17-19), logging plans (s. 11, 20-21), silviculture prescriptions and plans (s. 12, 14, 22-23, 25), and access management, stand management, and range use plans (ss. 13, 15-16, 24, 26-27). There are numerous provisions that allow for the holder of an agreement under the Forest Act to apply for exemptions from these requirements (Part 3, Divi- sion 3).

31 Finally, the District Manager's authority to grant cutting permits pursuant to forest licence agreements entered into under the Act is limited by many of the regulations enacted pursuant to the Code. Specifically, the Operational Planning Regulations [B.C. Reg. 174/95] identify areas where the District Manager must satisfy himself of the nature of the various kinds of public consultations that have occurred and need to occur. Accord- ing to sections 5-8 of the Operational Planning Regulations the proponent of an operational plan or forest development plan is required to ensure that the best information available is used and that the District Manager approves of it.

32 Under the Regulations, before a person submits, or a District Manager puts into effect, a forest development plan, they must publish notice of the plan to the public (s.2). The District Manager must provide an opportunity for review and comment to an interested or affected person (s.4(4)), and must consider all comments received (s.4(5)).

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33 Section 4(4) of the Regulations provides:

An opportunity for review and comment provided to an interested or affected person under s-s.(1) will only be adequate for the purposes of that subsection if, in the opinion of the district manager, the opportunity is commensurate with the nature and extent of that person's interest in the area under the plan and any right that person may have to use the area under the plan.

34 Finally, under s.6(1)(a) of the Regulations the District Manager has a discretion to require that operational plans be referred to any other resource agency, person, or other agency he may specify. I observe in passing that the District Manager's discretion to determine the adequacy of the opportunity to "review and comment" does not extend to that consultation required by the jurisprudence concerning the Crown's obligation to justify infringement of aboriginal or treaty rights.

35 The proponent of a plan is under an obligation to use the best information available (s.11(1)) and to use all information known to the person (s.11(2)(b)). These provisions confer a very broad discretion. It would appear, however, to be the sort of discretion calling for expertise beyond that of a professional forester. Whether a set plan of logging is acceptable to those members of the public who have a stake in it appears to be a question of judgment that any properly informed person would be as well able to answer as a forester.

36 In summary then, the District Manager's powers to issue cutting permits are found in s.10 of the 1979 Forest Act as amended by s.247 of the Code in 1994, and those powers are subject to the requirements of the Code. The preamble to the Code states the guiding principles for forest management which include meeting "the economic and cultural needs of First Nations". Section 4(4) to the Regulations gives the District Manager a discretion to determine the adequacy of consultation with interested parties, as specified in s.4(1).

IV The Decision of the District Manager

37 After investigation, reviews and discussion, the District Manager finally decided to issue C.P.212 on 13 September, 1996. His reasons for doing so are set out in a letter he wrote to Chief Metecheah on 3 October, 1996. In summary, the District Manager held:

1. Canfor's application for C.P.212 was consistent with Canfor's approved five year forest development plan;

2. C.P.212 was in substantial compliance with the requirements of the Forest Practices Code;

3. Canfor's harvesting operations would have minimal impacts on wildlife habitat suitability and capability for ungulates (moose and deer) and black bear in the area;

4. There would be minimal to no impact on fish habitat or fishing activities;

5. It was not the policy of the Provincial government to halt resource development pending resolution of a Treaty Land Entitlement Claim (TLEC) advanced by the petitioners against the federal Crown;

6. Canfor would be required to perform an Archeological Impact Assessment (AIA) in block 4 of C.P.212 where an old First Nations pack trail was located;

7. The proposed harvesting plan included sufficient measures to mitigate any concerns as to the trapping of

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fur bearing animals in the area;

8. Canfor's plan would deactivate all roads seasonally, to make them impassable, and on completion of harvesting, would deactivate the roads permanently.

9. Canfor's proposed harvesting activities would not infringe the petitioners' Treaty 8 rights of hunting, fishing and trapping.

38 There does not appear to be any statutory requirement for the giving of such reasons, either oral or written. The reasons are useful, however, because they record the factors the District Manager took into account in reaching his decision, and they lend an air of openness to the process he followed. On the other hand, the giving of reasons may suggest a more judicial or quasi-judicial process than is required by the legislative scheme.

V The Decision of the Chambers Judge

39 The Halfway River First Nation brought an application for judicial review, seeking to quash the decision of the District Manager to issue C.P.212. That application was brought pursuant to the Judicial Review Proced- ure Act, which provides remedies for administrative actions in excess of statutory powers. Whether this was the proper form of proceedings to bring is considered more fully below. On that application, Madam Justice Dorgan granted certiorari and quashed the decision of the District Manager, citing reasons related to the various issues involved, which are outlined below.

A. Fettering:

40 The learned chambers judge held that the District Manager had fettered his discretion. She said at para.35:

[35] Notwithstanding these references which indicate a notion of weighing various interests, on the whole of the record I am satisfied that Lawson fettered his discretion by treating the government policy of not halting development as a given and by simply following the direction of the Minister of Forests not to halt development. This is particularly evident from p.4 of his Reasons for Decision which reads:

... in December 1995 the Minister of Forests advised both ourselves and the Halfway band that it is not the policy of the provincial government to halt resource development pending resolution of the Treaty Land Entitlement (TLE) claim and that we must honour legal obligations to both the Forest Industry as well as First Nations. This fact was again reiterated by Janna Kumi, Assistant Deputy Minister, Opera- tions, upon her meeting with the Halfway Band in January 1996.

B. Bias

41 The learned chambers judge held that there was no actual bias in the District Manager's decision, but that there was a reasonable apprehension of bias. She said at paras.48-9:

[48] However, a further statement by Lawson is of concern. In his letter to Chief Metecheah dated August

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29, 1996 Lawson states:

I must inform you that if the application is in order and abides by all ministry regulations and the Forest Practices Code I have no compelling reasons not to approve their application.

This statement strongly suggests that Lawson had already concluded that there was no infringement of Treaty or Aboriginal Rights. His only remaining concerns about the application were with respect to compliance with MOF and Code requirements. He requests information on Aboriginal and Treaty Rights with respect to future Canfor activities but makes no reference to such rights vis-a-vis CP212. The only conclusion to be drawn from this letter is that Lawson had already decided that there was no infringement of Halfway's rights.

[49] As well, it should be noted that at paragraph 18 of the affidavit of David Menzies, he states:

Approval to proceed with harvesting in Blocks 1, 2, 4, 5, 17 and 19 was granted by the District Manager on September 13, 1996 (attached as Exhibit 8). The formal application letter was only sent after the Ministry of Forests confirmed that the application would be granted, consistent with the approval already granted for the Development Plan.

[emphasis added]

This evidence indicates that once the Development Plan was approved, all applications for cutting permits within it will likely be approved as well and is evidence which supports a finding of a reasonable apprehension of bias.

42 She held that the petitioners had not waived their right to rely on the allegation of apprehended bias.

C. The District Manager's "Errors of Fact"

43 The learned chambers judge held that it was patently unreasonable for the District Manager to conclude that there was no infringement of the petitioner's hunting rights under Treaty 8. In reaching this conclusion, she said in part at paras. 63, 66 and 68:

[63] In the present case, it cannot be said that there was no evidence supporting Lawson's finding that Ab- original and Treaty Rights would not be infringed. Lawson had the CHOA report and information provided by BCE staff regarding the impact of harvesting on the traditional activities of hunting, trapping and fishing.

.....

[66] Given the limited evidence available to Lawson, the factual conclusions which he reached as to infringement of Treaty 8 or Aboriginal Rights is unreasonable. There was some evidence supporting his findings, however, Lawson had no information from Halfway. How can one reach any reasonable conclusion as to the impact on Halfway's rights without obtaining information from Halfway on their uses of the area in question? This problem was recognized in the CHOA report, which stated, at 33-34:

In summary, the Cultural Heritage (Ethnographic) Overview presented here provides a useful starting point for assessing the extent of the Halfway River First Nation's use of the Tusdzah study area. It demonstrates the area was, and continues to be, utilized for hunting, fishing, trapping and plant collect-

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ing, and provides a ranking of the use potential for each of these activities. However, these data alone are not sufficient to understanding the issues surrounding infringement of Treaty and/or Aboriginal rights of the Halfway River Peoples. It is my opinion that additional cultural and ecological studies of the Tusdzah study area are required before this issue can be adequately addressed.

.....

However, as discussed above, there are numerous shortcomings with a study of this nature, from both a cultural and ecological perspective. In fact, I suggest that until more detailed information is obtained in both these areas, studies such as this will fail to adequately address the concerns and management needs of forest managers and First Nations.

.....

[68] Given the importance attached to Treaty and Aboriginal Rights, in the absence of significant information and in the face of assertions by Halfway as to their uses of CP212, it was patently unreasonable for Lawson to conclude that there was no infringement.

D. Notice

44 The learned chambers judge held that the highest standard of fairness should apply in the circumstances of this case, and although the petitioners had some notice of Canfor's application for C.P.212, that notice was inadequate because the petitioners did not see Canfor's application in final form until after the Cutting Permit had been approved by the District Manager, and the petitioners had no specific notice that the District Manager would make his decision on 13 September, 1996 or on any other date. The history of the notice given to the petitioners is set out in para.73 of her reasons.

E. Infringement of Treaty 8 Right to Hunt

45 The learned chambers judge held that there was a prima facie infringement of the petitioners Treaty 8 right to hunt, as recognized and affirmed by s.35(1) of the Constitution Act, 1982 which provides:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

46 She held that infringement was to be determined in accordance with the test laid down in R. v. Sparrow, supra. She said in part at paras.91-93:

[91] Pursuant to Treaty 8 the Beaver First Nation (of which Halfway is a member) agreed to surrender "all their rights, titles and privileges whatsoever" to the Tusdzuh area. Treaty 8 appears to have extinguished any non-Treaty Aboriginal Rights Halfway may have had prior to entering into the Treaty.

See for example Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570 at 575, 83 D.L.R. (4th) 381.

[92] In return for the surrender of land, the government agreed that the Natives would have the "right to pur-

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sue their usual vocations of hunting, trapping and fishing throughout the tract surrendered." In R. v. Noel, [1995] 4 C.N.L.R. 78 at 88 (N.W.T. Terr. Ct.), Halifax J. stated:

There is no doubt that Treaty No. 8 provided a right to fish, hunt and trap to persons covered under that Treaty.

[93] According to the Treaty, these rights were 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.

47 She held, citing R. v. Badger, supra (at para.101):

... that any interference with the right to hunt, fish or trap constitutes a prima facie infringement of Treaty 8 rights.

48 She considered the availability to Canfor of other areas in which to log at para.108:

[108] While the onus is on the petitioners to establish infringement, it is worth noting that there is no persuasive evidence to suggest that other areas do not exist which Canfor could log in place of CP212 to avoid interfering with aboriginal rights.

She said at para.114:

[114] The MOF and Canfor argue that Halfway has the rest of the Tusdzuh area in which to enjoy the preferred means of exercising its rights. This again ignores the holistic perspective of Halfway. Their preferred means are to exercise their rights to hunt, trap and fish in an unspoiled wilderness in close proximity to their reserve lands. In that sense, the approval of CP 212 denies Halfway the preferred means of exercising its rights.

F. Justification of Infringement

49 The learned chambers judge held that the Crown's infringement of the petitioners' Treaty 8 right to hunt was not justified because it had failed in its fiduciary duty to engage in adequate, reasonable consultation with the petitioners. She said, in part at paras. 140-142 and 158-159:

[140] In summary, then, the following meaningful opportunities to consult were provided:

(a) Fourteen letters from the MOF to Halfway during 1995 and 1996 requesting information and/or a meeting or offering consultation.

(b) Three meetings between Lawson and Halfway: on November 27/28, 1995; and February 2 and May 13, 1996.

(d) An opportunity to provide feedback on the CHOA.

[141] The following reasonable opportunities to consult were denied to Halfway:

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(a) Halfway was not invited to attend the meeting between MOF and Canfor employees at which the cutting permit was approved.

(b) The report "Potential Impacts to Fish & Wildlife Resources" was not provided to Halfway until Au- gust 26, 1996, despite that a draft copy was available January 4, 1996.

(d) Canfor's actual application for CP212 was not provided to Halfway until after the decision was made.

[142] While the MOF did make some efforts to inform itself, by requesting information from and meetings with Halfway, I have concluded these measures were inadequate. Briefing notes prepared by the MOF indicate that there was inadequate information with respect to potential infringement of treaty and aboriginal rights.

.....

[158] Finally, the present case is categorically different from Ryan in that in the present case the MOF failed to make all reasonable efforts to consult. In Ryan Macdonald J. stated, at 10, "I accept the submission that the M.O.F. more than satisfied any duty to consult which is upon it." While Halfway may not have been entirely reasonable, the fact remains that the MOF did not meet its fiduciary obligations.

[159] (1) Halfway has a treaty right to hunt, fish and trap in the Tusdzuh area. There is some evidence to suggest that the harvesting in CP212 will infringe upon this right, and in my view this evidence establishes prima facie infringement. The MOF has failed to justify this infringement under the second stage of the Sparrow test. Of particular significance is the fact that the MOF did not adequately consult with Halfway prior to approving Canfor's CP212 application.

(2) The MOF owes a fiduciary duty to Halfway. As part of this duty, the MOF must consult with the Band prior to making decisions which may affect treaty or aboriginal rights. The MOF failed to make all reasonable efforts to consult with Halfway, and in particular failed to fully inform itself respecting aboriginal and treaty rights in the Tusdzuh region and the impact the approval of CP212 would have on these rights. The MOF also failed to provide Halfway with information relevant to CP212 approval.

VI Issues

50 The following issues are raised by this appeal:

1. Whether judicial review of the District Manager's decision to issue a cutting permit is a proper proceeding in which to consider the alleged infringement of treaty rights;

2. The standard of review to be applied by this Court in reviewing the chambers judge's decisions as to fettering, reasonable apprehension of bias, adequacy of notice, and opportunity to be heard;

3. Whether the chambers judge erred in deciding that the District Manager had fettered his discretion, that there was a reasonable apprehension of bias, or that there was inadequate notice, or opportunity to be heard;

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4. Whether the chambers judge applied the correct standard of review to the District Manager's decision that treaty rights had not been infringed, and that the cutting permit should issue;

5. What is the true interpretation of Treaty 8, and the effect of s.35 of the Constitution Act, 1982, and then, whether the petitioner's right to hunt under the Treaty has been infringed; and

6. If there is an infringement of treaty rights, whether that infringement is justified.

VII Form of Proceedings

51 Madam Justice Southin takes the position that this Court should not decide the question of treaty rights or infringement on an application for judicial review, and that an action properly constituted is necessary for that purpose. With respect I take a different view of that matter.

52 Review of administrative decisions is traditionally challenged by way of judicial review: Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s.2(a). The Halfway River First Nation was a party in the consultation process contemplated under the Forest Practices Code and by Ministerial policy guidelines. It brought a petition for certiorari, seeking to quash the District Manager's decision. Such proceedings are usually decided on affidavit evidence.

53 Where the issues raised on such an application are sufficiently complex, and are closely tied to questions of fact, a chambers judge has a discretion to order a trial of the proceedings. Under Supreme Court Rule 52(11)(d), "the court may order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed, and may give directions for the conduct of the trial and of pre-trial proceedings, and for the disposition of the application." The court's powers under this Rule can be invoked on the court's own motion or on an application of a party.

54 Here we are told by counsel for the Minister that he took the position in the court below that the issue of Treaty rights and their breach had not been properly raised in the petition, and could not properly be decided on affidavit evidence, and without pleadings. The chambers judge does not mention these matters in her reasons, and it is impossible to tell how strenuously the point was argued. In any event, counsel for the Minister does not appear to have moved under Rule 52(11)(d) to have the proceedings converted into a trial.

55 In considering whether to issue C.P.212, the District Manager must be taken to have been aware of his fiduciary duty to the petitioners, as an agent of the Crown, of the right the petitioners asserted under Treaty 8, and of the possibility that issuance of the permit might constitute an infringement of that right. Of necessity his decision included a ruling on legal and constitutional rights. On these matters his decision is owed no deference by the courts, and is to be judged on the standard of correctness.

56 Those matters are nonetheless capable of disposition on affidavit evidence on an application for judicial review. And the District Manager and the forest industry would be in an impossible situation if, before deciding to issue a cutting permit, the applicant was required to commence an action by writ for resolution of any dispute over treaty rights, and the District Manager was bound to wait for the disposition of such an action (and the appeals) before deciding to issue a permit.

57 The learned chambers judge had a discretion under Rule 52(11)(d) whether to have the proceedings converted into a trial, and I am not at all persuaded that she erred in the exercise of that discretion by proceeding as

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she did. Counsel for the minister did not make a motion under the Rule, and it would be unfair to all concerned to refuse now to decide the treaty issues dealt with by the chambers judge, and which the District Manager could not avoid confronting.

VIII Standard of Review to be Applied to the Decision of the Chambers Judge Concerning Fettering, Bias, Notice and Hearing

58 The learned chambers judge held that the process followed by the District Manager offended the rules of procedural fairness in four respects: he fettered his decision by applying government policy; he pre-judged the merits of issuance of the cutting permit before hearing from the petitioners; he failed to give the petitioners adequate notice of his intention to decide whether to issue C.P.212; and he failed to provide an opportunity to be heard. These are all matters of procedural fairness, and do not go to the substance or merits of the District Man- ager's decision. There is, therefore, no element of curial deference owed to that decision by either the chambers judge or by this Court.

59 The chambers judge's decisions on fettering, apprehension of bias, inadequacy of notice and opportunity to be heard are all questions of mixed law and fact. To the extent that her decision involves questions of fact decided on affidavit and other documentary evidence, this Court would intervene only if the decision was clearly wrong, that is to say not reasonably supported by the evidence: see Placer Development Ltd. v. Skyline Explora- tions Ltd. (1985), 67 B.C.L.R. 366 (B.C. C.A.) at 389; Colliers MaCaulay Nicolls Inc. v. Clarke (September 29, 1989), Doc. Vancouver CA009621 (B.C. C.A.); Orangeville Raceway Ltd. v. Wood Gundy Inc. (1995), 6 B.C.L.R. (3d) 391 (B.C. C.A.) at 400; and Rootman Estate v. British Columbia (Public Trustee) (1998), 115 B.C.A.C. 281 (B.C. C.A.).

60 To the extent that her decision involves questions of law this Court would, of course, intervene if it were shown that the judge misapprehended the law or applied the appropriate legal principles incorrectly.

IX Whether the Chambers Judge Erred in Deciding Those Issues

A. Fettering

61 The learned chambers judge held (para.35) that the District Manager fettered his discretion concerning issuance of the cutting permit by "treating the government policy of not halting development as a given and by simply following the direction of the Minister of Forests not to halt development."

62 The general rule concerning fettering is set out in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 (S.C.C.), which holds that decision makers cannot limit the exercise of the discretion imposed upon them by adopting a policy, and then refusing to consider other factors that are legally relevant. Other cases to the same effect are Davison v. Maple Ridge (District) (1991), 60 B.C.L.R. (2d) 24 (B.C. C.A.) and T. (C.) v. Langley School District No. 35 (1985), 65 B.C.L.R. 197 (B.C. C.A.). Government agencies and administrative bodies must, of necessity, adopt policies to guide their operations. And valid guidelines and policies can be considered in the exercise of a discretion, provided that the decision maker puts his or her mind to the specific circumstances of the case rather than blindly following the policy: see Maple Lodge Farm, supra at pages 6-8 and Clare v. Thomson (1993), 83 B.C.L.R. (2d) 263 (B.C. C.A.). It appears to me, with respect, that the learned chambers judge applied correct legal principles in her consideration of whether the District Manager fettered his discretion.

63 The question then is whether she applied those principles correctly in the circumstances of this case. In

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my respectful view she did not. Government policy, as expressed by the District Manager, was to not halt resource development pending resolution of the TLECs. In other words, such claims would not be treated as an automatic bar to the issuance of cutting permits. Even though such a claim was pending in respect of a potential logging area, the policy was to consider the application for a cutting permit in accordance with the requirements of the regulations, Act and Code.

64 A TLEC does not, on its face, require the cessation of all logging in the subject area. Such a claim does not impose any obligation on the District Manager, or on the Ministry generally. The claim is simply one factor for the District Manager to consider with respect to the land's significance as a traditional hunting area, and to potential land use.

65 The government policy in respect of TLECs does not preclude a District Manager from considering aboriginal hunting rights, and the effect that logging might have upon them. It is apparent in this case that the Dis- trict Manager gave a full consideration to the information before him concerning those hunting rights. Cognis- ance by him of the government policy on TLECs did not give rise to the automatic issuance of a cutting permit without further consideration of other matters relevant to that decision.

66 I am therefore of the view that the learned chambers judge erred in applying the legal principles concerning fettering to the facts of this case. While the existence of TLEC was a factor for the District Manager to consider, the government policy of not halting resource development while such a claim was pending did not limit or impair the District Manager's discretion, or its exercise. Misapplication of the appropriate legal principle is an error of law that this Court can and should correct.

B. Reasonable Apprehension of Bias

67 The basic legal test on this issue is whether reasonable right-minded persons informed of the relevant facts, and looking at the matter realistically and practically, would consider that the District Manager had prejudged the question of whether to issue C.P.212: see Committee for Justice & Liberty v. Canada (National En- ergy Board) (1976), [1978] 1 S.C.R. 369 (S.C.C.) at 394-95, and Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 (S.C.C.).

68 The matter is a little more complex in this case where the District Manager's role includes both an investigative and an adjudicative function. The expression of a tentative or preliminary opinion on what the evidence shows in the investigative stage does not necessarily amount to a reasonable apprehension of bias: see Emcon Services Inc. v. British Columbia (Council of Human Rights) (1991), 49 Admin. L.R. 220 (B.C. S.C.) and U.S.W.A., Local 4589 v. Bombardier - M.L.W. Ltée, [1980] 1 S.C.R. 905 (S.C.C.).

69 In a case such as this the District Manager has a continuing and progressive role to play in making the numerous enquiries required of him by the Regulations, Act and Code, and in communicating with the applicant and others who have a stake in his decision. It is to be expected that his conclusions would develop over time as more information was obtained, and as interested parties made their positions known. His "decision letter" was written to Chief Metecheah on 3 October, 1996, but it is clear that the components of that decision were the result of previous investigations and deliberations.

70 In these circumstances I think one should be very cautious about inferring prejudgment or the appearance of bias to the District Manager.

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71 The learned chambers judge's conclusion that there was a reasonable apprehension of bias is based primarily on the statement the District Manager made in his letter of 29 August, 1996 to Chief Metecheah, that if the appellants' application complied with the Ministry's regulations and the Code he had "no compelling reasons" not to approve their application.

72 Applying the legal test set out above, and having regard to the nature of the District Manager's investigative and adjudicative roles, it would, in my view, be unreasonable to infer from that letter that the District Man- ager had closed his mind to anything further the petitioners might wish to put forward. A fair reading of his statement is that he had formed a tentative view on the information then available that the permit should issue, but that the final decision had not been made, and he was prepared to refuse issuance of the permit if there was a good reason to do so.

73 Nor in my view does the statement from David Menzies' affidavit, quoted at para.49 of the chambers judge's reasons, support an inference of bias reasonably apprehended. Administrative procedures followed by the District Manager in confirming approval of the appellants' application, before the formal application was received, are consistent with the continuing nature of the District Manager's contact and dialogue with the applicants.

74 It may be that the District Manager held a mistaken view of the law concerning the Crown's duty to satisfy itself that there was no infringement of the aboriginal right to hunt, and that the onus did not lie upon the petitioners to assert and prove that right or infringement. But in my view a misapprehension of the law by an administrative officer does not necessarily demonstrate a failure by him to keep an open mind, or an unwillingness to decide the issues on the merits as he saw them. Even the most open minds may sometimes fall into legal error.

75 In my respectful view, the learned chambers judge erred in holding that the District Manager's conduct gave rise to a reasonable apprehension of bias.

C. Adequacy of Notice

76 The learned chambers judge held that the petitioners did not have adequate notice that the District Man- ager would make his decision on 13 September, 1996 (para.78 of her reasons). With respect, I think the learned chambers judge more closely equated the decision making process in this case with a purely adjudicative process than is warranted by the legislative scheme.

77 As indicated above, this is not a case where a formal hearing on a fixed date was held or required. The District Manager's job required him to develop information over time, and it was properly within his role as an administrator to make tentative decisions as he went along, up to the time when he was finally satisfied that a cutting permit should or should not issue in accordance with the requirements of the Regulations, Act and Code.

78 In para.73 of her reasons the learned chambers judge set out in detail the means by which the petitioners were made aware of Canfor's logging plans for the area covered by C.P.212. The first notice, on the chambers judge's findings of fact, occurred in 1991. On 8 November, 1995 the District Manager sent the petitioner a copy of Canfor's application for C.P.212, and on 5 March, 1996 the District Manager wrote to the petitioners' lawyer to advise that "a decision regarding C.P.212 would be made within the next couple of weeks". In fact, the decision was not made for another six months.

79 On 13 May, 1996 the District Manager provided the petitioners with a map of Canfor's proposed harvest-

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ing activities, including blocks in C.P.212. The map was colour-coded and clearly identified the cut blocks under consideration by the District Manager. The learned chambers judge described the meeting at which this map was presented to the petitioners as "the only true advance notice" of Canfor's plans, but she held it to be defect- ive as notice because it did not give the date on which his decision would be made.

80 In my respectful view the learned chambers judge was plainly wrong to conclude that adequate notice had not been given in this case. Only if it could be said that notice of a fixed date for decision was required by law could her conclusion be justified. For the reasons expressed above, notice of such a fixed date was not required either by the statute, or by the requirements of procedural fairness. Imposing a requirement for such a fixed date would be inconsistent with the administrative regime under which the District Manager operated, and would unnecessarily restrict the flexibility that such a regime contemplates. The petitioners were well aware of Canfor's plans to log in the area covered by C.P.212 and had time to submit evidence and to make representations. The notice was adequate in the context of the legislative scheme, and the nature of the District Manager's duties.

D. The Right to be Heard

81 The learned chambers judge dealt with this issue at paras. 69-72. She held that the District Manager had not met the high standards of fairness in ensuring that the petitioners had an effective opportunity to be heard. She said the right to be heard was very similar to the consultation requirement encompassed by the Ministry's fiduciary duty to the petitioners.

82 Under the legislative scheme described above, there is no requirement for the District Manager to hold a formal "hearing", and in fact none was. However, the legislation and the Regulations do require consideration of First Nations' economic and cultural needs, and imply a positive duty on the District Manager to consult and ascertain the petitioners' position, as part of an administrative process that is procedurally fair. As the District Manager did not do this it is my view that the learned chambers judge was correct in holding there to have been a breach of the duty of procedural fairness.

E. Conclusion on Administrative Law Issues

83 In my respectful view, there was a failure to provide the petitioners an adequate opportunity to be heard. Otherwise, there was no lack of procedural fairness on any of the other grounds asserted by the petitioners, and found by the learned chambers judge.

X The Standard of Review Applicable to the District Manager's Decision

84 The learned chambers judge treated the District Manager's decision as to treaty rights, and breach of same, as a question of fact (see para.37 above, quoting the chambers judge's reasons at paras. 63, 66 and 68). She appears to have concluded, or assumed, that it was within the statutory powers of the District Manager to decide such matters, and she therefore asked whether his decisions on those matters were patently unreasonable. She concluded that the District Manager's decisions on those matters were patently unreasonable (see her conclusion No. 5 at para.158), and she therefore held that she was justified in substituting her view on those matters for those of the District Manager.

85 With respect, interpreting the treaty, deciding on the scope and interplay of the rights granted by it to both the petitioners and the Crown, and determining whether the petitioners' rights under the treaty were in-

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fringed, are all questions of law, although the last question may be one of mixed fact and law. Even though he has a fiduciary duty, the District Manager had no special expertise in deciding any of these issues, and as I understand the legislation, he has no authority to decide questions of general law such as these. To the extent that his decisions involve legal components, in the absence of any preclusive clause, they are reviewable on the standard of correctness: see Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 (S.C.C.) at para.63; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 (S.C.C.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 (S.C.C.); and Berg v. University of British Columbia , [1993] 2 S.C.R. 353 (S.C.C.).

86 Moreover, as an agent of the Crown, bound by a fiduciary duty to the petitioners arising from the treaty in issue, the District Manager could not be seen as an impartial arbitrator in resolving issues arising under that treaty. To accord his decision on such questions the deference afforded by the "patently unreasonable" standard would, in effect, allow him to be the judge in his own cause.

87 As I consider these issues, characterized in the chambers judge's reasons as aboriginal issues, to be questions of law, the test applied to the District Manager's decision is that of correctness. Similarly, of course, the standard of correctness applies to her conclusions. In other words, the question for us is whether she erred in law.

XI Treaty 8

A. Principles of Treaty Interpretation

88 The principles applicable in the interpretation of treaties between the Crown and First Nations have been discussed and expounded in a number of cases: see Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 (S.C.C.) at p.404; R. v. Sutherland, [1980] 2 S.C.R. 451 (S.C.C.); R. v. Taylor (1981), 34 O.R. (2d) 360 (Ont. C.A.); R. v. Bartleman (1984), 55 B.C.L.R. 78 (B.C. C.A.); Nowegijick v. R., [1983] 1 S.C.R. 29 (S.C.C.); R. v. Simon, [1985] 2 S.C.R. 387 (S.C.C.); R. v. Horse, supra Saanichton Marina Ltd. v. Claxton (1989), 36 B.C.L.R. (2d) 79 (B.C. C.A.); Mitchell v. Sandy Bay Indian Band, [1990] 2 S.C.R. 85 (S.C.C.); Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.); R. v. Sparrow, supra; and R. v. Badger, supra.

89 In Saanichton v. Tsawout, supra, Mr. Justice Hinkson conveniently summarized the then principles of interpretation at pp. 84-85:

(b) Interpretation of Indian treaties - general principles

In approaching the interpretation of Indian treaties the courts in Canada have developed certain principles which have been enunciated as follows:

(a) The treaty should be given a fair, large and liberal construction in favour of the Indians;

(b) Treaties must be construed not according to the technical meaning of their words, but in the sense that they would naturally be understood by the Indians;

(d) Any ambiguity in wording should be interpreted as against the drafters and should not be interpreted

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to the prejudice of the Indians if another construction is reasonably possible;

(e) Evidence by conduct or otherwise as to how the parties understood the treaty is of assistance in giving it content.

90 Paragraph (d) in that list should now be modified to include the statement of Mr. Justice Cory in R. v. Badger, supra at 794:

Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed.

91 And to para.(e) one might add the following, from Sioui v. Quebec (Attorney General), supra, at 1035, per Lamer, J. (as he then was):

In particular, [Courts] must take into account the historical context and perception each party might have as to the nature of the undertaking contained in the document under consideration. ...

92 Those are the principles which I consider applicable in the circumstances of this case.

B. The Parties' Positions

1. The Appellants' Position

93 The positions of the Ministry of Forests and of Canfor are very similar, if not identical, and I consider them together.

94 Both the Minister and Canfor say that the Indian right to hunt preserved in paragraph 9 of Treaty 8 (quoted above at para.2 of these reasons) is expressly made subject to two independent rights of the Crown which are of equal status to the Indian's rights. Those two Crown rights are the government power to regulate hunting etc. and the government right to "require" or" take up" parts of the Treaty lands for, inter alia," lumbering". The appellants say that the Crown's right to require or take up lands for one of the listed purposes limits or qualifies the petitioners' right to hunt. The appellants say the Crown's right to acquire or take up land is clearly expressed, and is not ambiguous.

95 The appellants say that no extrinsic evidence is necessary or admissible to alter the terms of the treaty by adding to or subtracting from its express terms.

96 The appellants say the granting of C.P.212 was an exercise by the Crown of its express right to require or take up land, and there is therefore no infringement of the petitioners' treaty right to hunt.

97 The appellants say that the learned chambers judge erred when she held that any interference with the petitioners' right to hunt was a breach of Treaty 8, and say further that she erred in basing her decision on the petitioners' "holistic perspective" and in holding that they had the right to exercise their "preferred means" of hunting in an "unspoiled wilderness". The Minister says such conclusions are embarrassing as they do not reflect the historical realities of what had occurred in the Tusdzuh (mining and oil and gas exploration) before the granting of C.P.212.

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98 The appellants say that s.35 of the Constitution Act, 1982 gives the petitioners no better position than they held before 1982, because their right to hunt in the treaty lands was, and remains, a defeasible right subject to derogation by the Crown's exercise of its rights. The power to require and take up lands remains unimpaired by s.35.

99 The appellants maintain that "taken up" includes designation of land by the Crown in a cutting permit, and that visible signs of occupation, or incompatible land use (see R. v. Badger, supra, at paragraphs 53, 54, and 66-68) are not necessary as indicia. The appellants say those considerations that are relevant where an Indian is charged with an offence as in Badger , are not relevant here where such an offence is not alleged, and the Crown is merely exercising its Treaty right.

100 So the appellants say that as a result of the "geographical limitation" in Treaty 8 the Crown is entitled to take up Treaty lands for "settlement, mining, lumbering, or other purposes" without violating any promise made by the Crown to the Indians. As there has been no infringement of Indian treaty rights, no "justification" analysis is required.

2. The Petitioners' Position

101 The petitioners say that the Crown's (and Canfor's) approach to Treaty 8 would give the Crown "the unlimited and unfettered right to take up any land or all lands as it sees fit and does not have to justify its decision in any way". It says this approach would allow the Crown to ignore the impact of such conduct on the rights of aboriginal signatories and would render meaningless the 1982 constitutionalization of Treaty rights. The Crown's approach, say the petitioners, is therefore unreasonable and manifestly wrong. To give the Treaty such an interpretation would not uphold the honour and integrity of the Crown.

102 The petitioners say that the government power to require or take up land is not a separate right in itself. It is rather a limitation on the petitioners' right to hunt, etc. The petitioners say s.35 guaranteed the aboriginal rights to hunt and fish. The Crown's right of defeasance is not mentioned in s.35, and is therefore not subject to a similar guarantee.

103 Prior to 1982, before the right to hunt was guaranteed by s.35, the Crown could have exercised its right of defeasance, and so overridden or limited the right to hunt. But since the enactment of s.35 the Crown's right is not so unlimited. Now the Crown can only exercise its right after consultation with the Indians. The Treaty cre- ates competing, or conflicting rights - the Indian right to hunt on the one hand, and the Crown's right to take up such hunting grounds for the listed purposes on the other. Such competing rights cannot be exercised in disregard of one another. If exercise of the Crown right will impair or infringe the aboriginal right, then such infringement must be justified on the analysis set out in Sparrow, supra (a non-Treaty case).

104 The petitioners say the meaning of the Treaty proviso allowing the Crown to require or take up lands is ambiguous and can be read in more than one way. It should therefore be read in the context of the Crown's oral promises at the time of Treaty negotiations. Extrinsic evidence, including the representations made by the Crown's negotiators to the signatories in 1899, as well as in 1900, is admissible for the purposes of construing the Treaty. The petitioners say the Treaty should be read in a broad, open fashion, and construed in a liberal way in favour of the Indians. All subsequent adhesions refer back to the Treaty made at Lesser Slave Lake with the Cree people in 1899, and the oral promises made there are essential to a true understanding of the Treaty made with the petitioners' forebears.

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C. The Admissibility of Extrinsic Evidence

105 In support of its argument against the admissibility of extrinsic evidence, The Ministry of Forests relies on R. v. Horse, supra, where Mr. Justice Estey, writing for the court, said at S.C.R. 201:

I have some reservations about the use of this material as an aid to interpreting the terms of Treaty No. 6. In my view the terms are not ambiguous. The normal rule with respect to interpretation of contractual documents is that extrinsic evidence is not to be used in the absence of ambiguity; nor can it be invoked where the result would be to alter the terms of a document by adding to or subtracting from the written agreement.

And further at p.203:

In my opinion there is no ambiguity which would bring in extraneous interpretative material. Nevertheless I am prepared to consider the Morris text, proffered by the appellants, as a useful guide to the interpretation of Treaty No. 6. At the very least, the text as a whole enables one to view the treaty at issue here in its overall historical context.

106 Those comments were made in a case involving Treaty 6, which has an identical "geographical limitation" to that contained in Treaty 8. Further, Horse was concerned with the interpretation of s.12 of the Saskat- chewan Natural Resources Transfer Agreement, which required interpretation of the words" unoccupied Crown land" and "right of access", language not at issue in this case. Counsel for the Ministry also referred us to Sioui v. Quebec (Attorney General), supra and R. v. Badger, supra. In my respectful view, the conventional statement of the rule governing admissibility of extrinsic evidence enunciated in R. v. Horse has been somewhat relaxed by subsequent decisions. In Sioui v. Quebec (Attorney General), supra, after referring to R. v. Horse at p.1049, Mr. Justice Lamer (as he then was) said at p.1068:

The historical context, which has been used to demonstrate the existence of the treaty, may equally assist us in interpreting the extent of the rights contained in it. As MacKinnon J.A. said in Taylor and Williams, supra, at p.232:

Cases on Indian or aboriginal rights can never be determined in a vacuum. It is of importance to consider the history and oral traditions of the tribes concerned, and the surrounding circumstances at the time of the treaty, relied on by both parties, in determining the treaty's effect.

107 And in R. v. Badger, supra, Mr. Justice Cory for the majority held at pp.798-9:

Third, the applicable interpretative principles must be borne in mind. Treaties and statutes relating to Indi- ans should be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians. In addition, when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement: see Alexander Morris, The Treaties of Canada with the Indians of Man- itoba and the North-West Territories (1880), at pp.338-42; Sioui, supra, at p.1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991); Jean Fiesen, Grant me Wherewith to Make my Living (1985). The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines. Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories. Even if they had been, it is un-

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likely that the Indians, who had a history of communicating only orally, would have understood them any differently. As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. This applies, as well, to those words in a treaty which impose a limitation on the right which has been granted. See Nowe- gijick, supra, at p.36; Sioui, supra, at pp. 1035-36 and 1044; Sparrow, supra, at p.1107; and Mitchell, supra, where La Forest J. noted the significant difference that exists between the interpretation of treaties and statutes which pertain to Indians.

108 I observe in passing that R. v. Badger, like R. v. Horse also involved interpretation of s.12 of the Natur- al Resources Transfer Agreement, 1930. But I understand the ruling concerning the admissibility of extrinsic evidence to be equally applicable in a case such as this one, where that agreement is not in issue.

109 In this case, the learned chambers judge held that extrinsic evidence was admissible to explain the "context" in which the Treaty was signed (at paras. 96-98 of her reasons). In my respectful view in so doing she did not err in principle. The passage quoted above from the judgment of Mr. Justice Cory in Badger at pp.798-9 is particularly apt in this case. The Treaty, written in English, purports to reflect the mutual understanding of the Crown and all aboriginal signatories. The understanding of the aboriginal peoples cannot be deduced from the language of the Treaty alone, because its meaning to the aboriginal signatories could only have been expressed to them orally by interpretation into their languages, and by whatever oral explanations were necessary to ensure their understanding.

D. What Extrinsic Evidence is Admissible

110 The Crown says, without admitting any ambiguity in the Treaty, that even if extrinsic evidence is admissible for the purpose of giving historical context, evidence of the Commissioner's Report on negotiations in 1899 is not admissible in this case, because there is no evidence that what was said by the government negotiators at Lesser Slave Lake, and elsewhere in 1899, was also said at Fort St. John in 1900, when the Beaver people signed. In particular, the Crown says that the passage of the Commissioner's Report referred to by Mr. Justice Cory in Badger, and by the learned chambers judge in this case, is not evidence of what was said to the Beaver people at Fort St. John. In the Crown's submission, only the report of the Commissioners made in 1900 is admissible.

111 What the Commissioners report of 1889 said, as quoted in part by the learned chambers judge at para.98 of her reasons, is this:

There was expressed at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges, ... We pointed out ... that the same means of earning a livelihood would continue after the treaty as existed before it ...

Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they

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would be as free to hunt and fish after the treaty as they would be if they never entered into it.

112 In my respectful view, the position of the Crown on this issue is not tenable. The adhesion signed by the representatives of the Beaver people at Fort St. John in 1900 contains this:

The Beaver Indians of the Upper Peace River and the country thereabouts, having met at Fort St. John, on this thirtieth day of May, in this present year 1900, Her Majesty's Commissioner, James Ansdell Macrae, Esquire, and having had explained to them the terms of the treaty unto which the Chief and Headmen of the Indians of Lesser Slave Lake and adjacent country set their hands on the twenty-first day of June, in the year 1899, do join in the cession made by the said Treaty, and agree to adhere to the terms thereof in consideration of the undertakings made therein.

(my emphasis)

113 The terms of the Treaty signed by the Indians at Lesser Slave Lake had been explained to them orally, as indicated in the Commissioner's report in 1899, and it is therefore, in my view, a reasonable inference from the terms of the Beavers' adhesion in 1900 that the terms of the Treaty were explained to them in similar, if not identical, terms.

114 Moreover, it would not be consistent with the honour and integrity of the Crown to accept that the Treaty was interpreted and explained to the Indians at Lesser Slave Lake in one way, but interpreted and explained to the Beaver at Fort St. John in another less favourable and more limited way. To accept the proposition put forward by the Ministry would be to acknowledge that the same Treaty language is to be given different meanings in respect of different signatories. Only the clearest evidence could persuade me to such a conclusion, and such evidence is not present in this case.

115 The Ministry of Forests further objects to the admission of the affidavit evidence of Father Gabriel Breynat, an interpreter present at the signing of Treaty 8 in 1899 at Fort Chippewan, and Fond du Lac. This affidavit was sworn in 1937 at Ottawa, Ontario. The Ministry says the document is irrelevant, and in addition has not been properly proven as an ancient document.

116 The objection as to relevance is similar to the Crown's objection to the Commissioner's Report of 1899, as relating to events at a different time and place, and with a different Indian people. I would not give effect to the objection based on relevance for the reasons expressed above.

117 Turning to the question of proof, the general rule in Canada governing the admissibility of ancient documents (a document more than thirty years old) is that any document "which is produced from proper custody, is presumed in the absence of circumstances of suspicion, to have been duly signed, sealed, attested, delivered, or published according to its purport": Sopinka, Lederman and Bryant, The Law of Evidence in Canada, (Toronto: Butterworths, 1992) at 955. If there are suspicious circumstances surrounding the origins of the document, the court will either require proof of the execution of it as being in a similar manner as the execution of a similar document of a more recent date. Further, documents are considered to have been in "proper custody" when they have been kept by someone in a place where the documents might reasonably and naturally be expected to be found: Sopinka et al, supra at 956, citing Doe d. Jacobs v. Phillips (1845), 8 Q.B. 158, 115 E.R. 835 (Eng. Q.B.), and Thompson v. Bennett (1872), 22 U.C.C.P. 393 (Ont. C.P.).

118 The affidavit of Father Breynat appears on its face to have been executed in a manner consistent with

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the execution of modern affidavits. The copy produced is not entitled in any particular cause or matter, and one cannot tell from the document itself the purpose for which it was sworn. I would not say that this gives rise to suspicions concerning its origins, but rather that there is an unanswered question as to why it was sworn.

119 The affidavit of Father Breynat was adduced in these proceedings as an exhibit to the affidavit of Mi- chael Pflueger. He is Alberta counsel representing the Halfway River First Nation in its Treaty Land Entitlement Claim. His affidavit does not disclose in whose custody Father Breynat's affidavit has been kept. There is a nota- tion at the top of page 1 of Father Breynat's affidavit, clearly not part of the original, which says "Anthropology UA", which I take to be a reference to the Anthropology Department at the University of Alberta. However, there is nothing to indicate whether the University was the custodian of the document. Mr. Pflueger deposes that the affidavit of Father Breynat is part of "the standard treaty package that is submitted with Treaty Land Entitle- ment Claims".

120 On the evidence as it stands, I do not think there is any indication of suspicious circumstances surrounding the document's origins. However, I think the evidence falls short of proving that the document was produced from "proper custody". Wigmore, Evidence in Trials at Common Law vol. 7 (Boston: Middlebound & Company, 1978) explains why evidence as to custody of such a document is important:

A forger usually cannot secure the placing of a document in such custody; and hence the naturalness of its custody, being relevant circumstantially, is required in combination with the document's age.

I think therefore that Father Breynat's affidavit is inadmissible as not having been properly proven. The learned chambers judge did not refer to this affidavit, so she cannot be said to have made any error on that account.

E. R. v. Sparrow and its Application

121 In R. v. Sparrow, supra, the Supreme Court of Canada considered the effect of s.35(1) of the Constitu- tion Act, 1982 on the status of aboriginal rights, and set out a framework for deciding whether aboriginal rights had been interfered with, and if so, whether such interference could be justified. In Sparrow a native fisher was charged with an offence under the Fisheries Act, R.S.C. 1970, c. F-14. In his defence, he admitted the constituent elements of the charge, but argued that he was exercising an existing aboriginal right to fish, and that the statutory and regulatory restrictions imposed were inconsistent with s.35.

122 The court held that the words in s.35 "existing aboriginal rights" must be interpreted flexibly, so as to permit their evolution over time, and that "an approach to the constitutional guarantee embodied in s.35(1) that would incorporate 'frozen rights' must be rejected." It held that the Crown had failed to discharge the onus of proving that the aboriginal right to fish had been extinguished, and it held that the scope of the right to fish for food was not confined to mere subsistence, but included as well fishing for social and ceremonial purposes.

123 The court also considered the meaning of the words "recognized and affirmed" in s.35. It held that a generous, liberal interpretation of those words was required. It held the relationship between government and aboriginal peoples was trustlike, rather than adversarial, and that the words" recognized and affirmed" incorporated a fiduciary relationship, and so imported some restraint on the exercise of sovereign power. Federal legislative powers continue to exist, but those powers "must be reconciled with the federal duty", and that reconciliation could best be achieved by requiring "justification" of any government regulation that infringed or denied aboriginal rights. Section 35 was therefore "a strong check on legislative power". The court emphasized the importance of" context" and the "case by case approach to s.35(1)".

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124 The court then set out the test for prima facie interference with an existing aboriginal right. First, does the impugned legislation have the effect of interfering with an existing aboriginal right, having regard for the character or incidence of the right in issue? Infringement may be found where the statutory limitations on the right are unreasonable, impose undue hardship, or deny the aboriginal the preferred means of exercising the right. The question is whether either the purpose or effect of the statutory regulation unnecessarily infringes the aboriginal interest.

125 The court then considered the question, if a prima facie infringement be found, of how the Crown could show that the infringement was justified. The justification analysis involved asking whether there is a valid legislative objective. In the context of Sparrow , conservation and resource management were considered to be valid legislative objectives. The Crown has a heavy burden on the justification issue because its honour is at stake. Justification also requires considering whether the aboriginal interest at stake has been infringed, "as little as possible", whether in cases of expropriation fair compensation is available, and whether the aboriginal group has been consulted with respect to conservation, or at least informed of the proposed regulatory scheme. This list of factors was said not to be exhaustive.

126 There are several features in the present case that differ from Sparrow, and the extent to which those differences may qualify or limit Sparrow's application to this case will have to be considered. First, there is the fact that the right to hunt in this case is based on Treaty 8. There was no treaty in Sparrow. Second, Sparrow is another case involving the allegation of an offence against a native person, in answer to which charge he has relied upon his aboriginal right. In this case there is no offence alleged. It is the provincial Crown which asserts a positive right under Treaty 8 to require or to take up land as the basis for its legislative scheme in respect of forestry. Third, in Sparrow the attack was made on the constitutional validity of federal legislation, the Fisheries Act. In this case the petitioners do not allege that any legislation is unconstitutional. The amended petition alleges that the decision of the District Manager in issuing C.P.212 was in breach of constitutional or administrative law duties. The attack is therefore on executive or administrative conduct rather than on any legislative enactment. Fourth, and finally, it is provincial legislation that authorizes the impugned conduct. In Sparrow, the attack was on federal legislation.

127 The fact that a treaty underlies the aboriginal right to hunt in this case does not, to my mind, render inapplicable the s.35(1) analysis engaged in by the court in Sparrow. Section 35(1) gives constitutional status to both aboriginal and treaty rights. As indicated above, treaties with aboriginal peoples have always engaged the honour and integrity of the Crown. The fiduciary duties of the Crown are, if anything, more obvious where it has reduced its solemn promises to writing.

128 As noted above in discussing some of the other cases, there is in this case no allegation of an offence by an aboriginal person. The Crown asserts its positive rights under the Treaty as the basis for its forestry program. In Sparrow, the federal Crown relied on its enumerated powers in s.91 of the Constitution Act, 1867 (the BNA Act) as the basis for its legislative and regulatory scheme in respect of fisheries. Here, even if one accepts that the Crown's right to require or take up land under Treaty 8 has achieved constitutional status under s.35(1) (a position which the petitioners stoutly reject), its authority to act could be no higher than the constitutional powers the federal Crown sought to exercise in Sparrow.

129 In my view the fact that the Crown asserts its rights under Treaty 8 can place it in no better position vis- a-vis a competing or conflicting aboriginal treaty right than the position the Crown enjoys in exercising the powers granted in either s.91 or 92 of the Constitution Act, 1867.

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130 There is also a distinction between the alleged unconstitutionality of legislation in Sparrow, and the attack here on the conduct of a government official; and the fact that the conduct was authorized under provincial legislation, whereas in Sparrow a federal statute was impugned. Here the petitioners do not challenge the validity of the provincial legislation concerning forestry. They seek to prohibit any activity in connection with C.P. 212 until the Ministry has fulfilled its" fiduciary and constitutional" duty to consult with the petitioners.

F. Interpretation of Treaty 8 and Infringement of the Right to Hunt

131 The appellants say the learned chambers judge erred in holding, at para.101, that: "... That any interference with the right to hunt, fish or trap constitutes a prima facie infringement of Treaty 8 rights" and further erred in holding (at para.114) that the issue was to be considered from the petitioners' "holistic perspective", and that the approval of C.P.212 denied the petitioners "their preferred means ... to hunt ... in an unspoiled wilderness in close proximity to their reserve lands." The appellants assert the Crown's independent right under the Treaty to require or take up lands as described above in these reasons.

132 I begin by observing that earlier cases involving the interpretation of the proviso in Treaty 8 (e.g. R. v. Badger, supra) or similar language in other treaties (e.g. R. v. Horse, supra) are of limited assistance for two reasons. First, they are cases involving a charge against an Indian for breach of a provincial statute, in answer to which the accused relied upon the treaty right to hunt. Second, they are cases involving the interpretation of s.12 of the Natural Resources Transfer Agreement, in addition to the language of the treaty granting the right to hunt. The only case we were cited involving the interpretation of Treaty 8, and in which the Natural Resources Trans- fer Agreement was not a factor, is R. v. Noel, [1995] 4 C.N.L.R. 78 (N.W.T. Terr. Ct.), a decision of the Northw- est Territories Territorial Court. As with the other cases, Noel was a charge against a native for breach of legislation in answer to which he relied on his Treaty 8 right to hunt.

133 A second observation I would make is that prior to the enactment of s.35 of the Constitution Act, 1982, parliamentary sovereignty was not limited or restricted by treaties with aboriginal peoples, and the federal government had the power to vary or repeal treaty rights by act of parliament: see R. v. Sikyea, [1964] S.C.R. 642 (S.C.C.), and Daniels v. White, [1968] S.C.R. 517 (S.C.C.) where the Migratory Birds Convention Act was held to supersede Indian treaty rights.

134 The third observation I would make is that the Indians' right to hunt granted to the signatories of Treaty 8, and the Crown's right to regulate, and to require or take up lands, cannot be given meaning without reference to one another. They are competing, or conflicting rights as has been recently affirmed in R. v. Sundown (1999), 132 C.C.C. (3d) 353 (S.C.C.). The Indians' right to hunt is subject to the "geographical limitation", and the Crown's right to take up land cannot be read as absolute or unrestricted, for to do so (as even the Crown concedes) would render the right to hunt meaningless. Such a position cannot be asserted in conformity with the Crown's honour and integrity. So even before the enactment of s.35 in 1982, a balancing of the competing rights of the parties to the Treaty was necessary.

135 Fourth, the enactment of s.35 in 1982 has improved the position of the petitioners. Their right to hunt, and other treaty rights, now have constitutional status. They are therefore protected by the supreme law of Canada, and those rights cannot be infringed or restricted other than in conformity with constitutional norms.

136 I am therefore of the view that it is unrealistic to regard the Crown's right to take up land as a separate or independent right, rather than as a limitation or restriction on the Indians' right to hunt. In either case, however, the Crown's right qualifies the Indians' rights and cannot therefore be exercised without affecting those

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rights.

137 The effect of the decision to issue C.P.212, and the reasonableness of the District Manager's decision, must be viewed in the context of the competing rights created by Treaty 8, namely the Indians' right to hunt, and the government's right to take up land for lumbering. The petitioners' interest in the logging activity proposed in the Tusdzuh was known from the outset, and it was recognized by both appellants. In his letter of 3 October, 1996, the District Manager recognized the petitioners' assertion of a Treaty Land Entitlement Claim (TLEC) in the area where C.P.212 was located, as well as the effect logging might have on wildlife habitat and hunting activities. His view was that Canfor's proposed logging plan would have "minimal impact" on those matters, and that the plan included elements that would "mitigate" the impact of logging.

138 In my view the District Manager effectively acknowledged that C.P.212 would affect the petitioners' hunting rights in some way. Given the fiduciary nature of the relationship between government and Indians, and the constitutional protection afforded by s.35 over the treaty right to hunt, it seems to me that the interference contemplated by C.P.212 amounts to an infringement of the petitioners' right to hunt. The granting of C.P.212 was the de facto assertion of the government's right to take up land, a right that by its very nature limited or interfered with the right to hunt.

139 I do not think the learned chambers judge erred in holding that any interference with the right to hunt was a prima facie infringement of the petitioners' Treaty 8 right to hunt.

140 In my respectful view, the learned chambers judge overstated the petitioners' position in holding that they were entitled to exercise their" preferred means of hunting" by doing so in an "unspoiled wilderness". The Tusdzuh was not unspoiled wilderness in 1996 when the District Manager approved C.P.212, nor was it unspoiled wilderness in 1982 when treaty rights received constitutional protection. This was a wilderness criss- crossed with seismic lines, where oil and gas exploration and mining had taken place.

141 Nor do I think "preferred means" should be taken to refer to an area, or the nature of the area, where hunting or fishing rights might be exercised. Those words more correctly refer to the methods or modes of hunting or fishing employed.

142 But despite these disagreements with the reasons of the learned chambers judge, I do not think she erred in concluding that approval of C.P.212 constituted a prima facie infringement of the Treaty 8 right to hunt because the proposed activity would limit or impair in some degree the exercise of that right.

143 The appellants contend that in reaching that conclusion the learned chambers judge substituted her finding of fact for that of the District Manager. But the interpretation of Treaty rights, and a decision as to whether they have been breached, are not within any jurisdiction conferred on the District Manager by the Forest Act, Forest Practices Code or relevant regulations. They are questions of law and even the District Manager acknowledges that the proposed harvesting would have some effect on hunting. He said (at p.3 of the letter of 3 October, 1996) that:

... the proposed harvest areas would have minimal impacts on wildlife habitat suitability and capability for ungulates and black bear...

144 I respectfully agree with the learned chambers judge that any interference with the right to hunt is a prima facie infringement of the Indians' treaty right as protected by s.35 of the Constitution Act, 1982.

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XII Justification

145 The analysis required in deciding whether infringement of a treaty right is justified is referred to above briefly in paragraph 83. Although Sparrow was not a treaty case, in my view the same approach is warranted here as in cases of aboriginal rights, as both treaty and aboriginal rights have constitutional protection under s.35(1) of the Constitution Act, 1982.

146 Justification requires consideration of the following questions (said in Sparrow not to be an exhaustive or exclusive list):

1. Whether the legislative or administrative objective is of sufficient importance to warrant infringement;

2. Whether the legislative or administrative conduct infringes the treaty right as little as possible;

3. Whether the effects of infringement outweigh the benefits derived from the government action; and

4. Whether adequate meaningful consultation has taken place.

147 Overriding all these issues is whether the honour and integrity of the Crown has been upheld in its treatment of the petitioners' rights.

148 I will consider those issues in turn.

A. Importance of the Legislative Objective

149 The learned chambers judge does not appear to have addressed this question, nor does the petitioner appear to have led any evidence to suggest that the objectives of the Forest Act and Code are not of sufficient importance to warrant infringement of the petitioners right to hunt.

150 It would, in my view, be unduly limited, and therefore wrong, to consider the objective in issuing a cutting permit only from the perspective of Canfor's presumed goal to have a productive forest business with at- tendant economic benefits, or from the perspective of the Provincial Government to have a viable forest industry and a vibrant Provincial economy. The objectives of the forestry legislation go far beyond economics. The preamble to the Code (see para.28 above) refers to British Columbians' desire for sustainable use of the forests they hold in trust for future generations, and to the varied and sometimes competing objectives encompassed within the words "sustainable use".

151 In Sparrow the legislative objective was found to be conservation of the fishery, and the Court held that to be a sufficiently important objective to warrant infringement of the aboriginal right to fish for food. Viewing the legislative scheme in respect of forestry as a whole, and by a parity of reasoning with Sparrow, in my view the legislative objectives of the Forest Act and Code are sufficiently important to warrant infringement of the petitioners' treaty right to hunt in the affected area. Those objectives include conservation, and the economic and cultural needs of all peoples and communities in the Province.

B. Minimal Impairment

152 As with the first issue, the learned chambers judge does not appear to have addressed directly the question of minimal infringement. When dealing with the issue of infringement of the right to hunt, she did say (at

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para.108) that" there is no persuasive evidence to suggest that other areas do not exist which Canfor could log in place of C.P.212 to avoid interfering with aboriginal rights".

153 But the learned chambers judge stopped short of saying that minimal interference means no interference, and correctly so, for the law does not impose such a stringent standard. In R. v. Nikal, [1996] 1 S.C.R. 1013 (S.C.C.) at 1065, the Court held that "[s]o long as the infringement was one which in the context of the circumstances presented could reasonably be considered to be as minimal as possible then it will meet the test".

154 The onus for showing minimal impairment rests on the Crown. See Semiahmoo Indian Band v. Canada (1997), 148 D.L.R. (4th) 523, [1998] 1 C.N.L.R. 250 (Fed. C.A.) at 268.

155 In this context, the findings of the District Manager are significant. He found (see para. 37 above) that Canfor's proposed operations would have minimal impacts on wildlife habitat suitability and capability for moose, deer and bear, that there would be minimal to no impact on fish habitat or fishing activities, and that the proposed harvesting plan included sufficient measures to mitigate any concerns as to the trapping of fur bearing animals in the area.

156 In my respectful view, these findings, which are within the scope of the District Manager's authority to make, are sufficient to meet the tests for minimal impairment or infringement of the right to hunt.

C. Whether the Effects of Infringement Outweigh the Benefits to be Derived from the Government Action

157 Again, this issue was not addressed by the chambers judge. Given the minimal effects on hunting that the proposed logging would have, as found by the District Manager, and in the absence of any evidence to the contrary, it is in my view a fair inference that the benefits to be derived from implementation of the legislative scheme, and the issuance of cutting permits in accordance with its requirements, would outweigh any detriment to the petitioners caused by the infringement of the right to hunt.

D. Adequate Meaningful Consultation

158 The learned chambers judge found that there had been inadequate consultation with the petitioners, and it is upon this ground that she found the Crown had failed in its attempts to justify the infringement of the petitioners' right to hunt.

159 It is perhaps worth mentioning here the difference between adequate notice as a requirement of procedural fairness (considered above at paras.76-80) and adequate consultation, which is a substantive requirement under the test for justification. The fact that adequate notice of an intended decision may have been given, does not mean that the requirement for adequate consultation has also been met.

160 The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action: see R. v. Sampson (1995), 16 B.C.L.R. (3d) 226 (B.C. C.A.) at 251; R. v. Noel, [1995] 4 C.N.L.R. 78 (N.W.T. Terr. Ct.) at 94-95; R. v. Jack (1995), 16 B.C.L.R. (3d) 201 (B.C. C.A.) at 222-223; Eastmain Band v. Robinson (1992), 99 D.L.R. (4th) 16 (Fed. C.A.) at 27; and R. v. Nikal, supra.

161 There is a reciprocal duty on aboriginal peoples to express their interests and concerns once they have

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had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions: see Ryan v. Fort St. James Forest District (District Manager) (January 25, 1994), Doc. Smithers 7855, 7856 (B.C. S.C.); affirmed (1994), 40 B.C.A.C. 91 (B.C. C.A.).

162 The chambers judge's findings as to what steps were taken by way of consultation are matters of fact that cannot be impugned unless there is no evidence to support them. In my view there is such evidence and we must accept the facts as found by her.

163 It remains to consider the adequacy or inadequacy of the Crown's efforts in that behalf.

164 The learned chambers judge found (at para.141) that:

The following reasonable opportunities to consult were denied to Halfway:

(a) Halfway was not invited to attend the meeting between MOF and Canfor employees at which the cutting permit was approved.

(b) The report "Potential Impacts to Fish & Wildlife Resources' was not provided to Halfway until Au- gust 26, 1996, despite that a draft copy was available January 4, 1996.

(d) Canfor's actual application for CP212 was not provided to Halfway until after the decision was made.

165 These findings, particularly (b) and (c) support the conclusion that the Crown did not meet the first and second parts of the consultation test referred to, namely to provide in a timely way information the aboriginal group would need in order to inform itself on the effects of the proposed action, and to ensure that the aboriginal group had an opportunity to express their interests and concerns.

166 I respectfully agree with the learned chambers judge that given the positive duty to inform resting on the Crown, it is no answer for it to say that the petitioners did not take affirmative steps in their own interests to be informed, conduct that the learned chambers judge described as possibly "not ... entirely reasonable".

167 As laid down in the cases on justification, the Crown must satisfy all aspects of the test if it is to succeed. Thus, even though there was a sufficiently important legislative objective, the petitioners rights were infringed as little as possible, and the effects of the infringement are outweighed by the benefits to be derived from the government's conduct, justification of the infringement has not been established because the Crown failed in its duty to consult. It would be inconsistent with the honour and integrity of the Crown to find justification where the Crown has not met that duty.

XIII Remedy

168 The learned chambers judge granted "an order quashing the decision made September 13, 1996 which approved the application for CP.212".

169 I would dismiss the appeal from that order for the reasons given above.

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Huddart J.A. (concurring):

170 My approach to the issues on this appeal varies somewhat from those of my colleagues, whose reasons I have had the opportunity to read in draft. While I agree entirely with Mr. Justice Finch with regard to the administrative law issues, like Madam Justice Southin I part company with him on his application of the principles from Sparrow, supra, to the circumstances of this case.

171 The larger question may be whether the province's forest management scheme permits the accommodation of treaty and aboriginal rights with the perceived rights of licensees. However, the constitutionality of the legislative scheme governing the management of the province's forests is not in issue on this appeal. So we must accept, for the purposes of our analysis in this case, that the legislature and executive have provided an acceptable method of "recognizing and affirming" treaty and aboriginal rights of first nations in making the decisions required by that management scheme. The scheme obviously contemplates situations where shared use would be made of the territory in question. Shared use was also envisaged by the treaty makers on both sides of Treaty 8. That is evident from the evidence in this case and from the discussion in Badger, supra, about the same Treaty 8. Thus accepting the adequacy of the legislative scheme to accommodate treaty and aboriginal rights is not necessarily offensive to the interests of the Halfway River First Nation.

172 I agree with Mr. Justice Finch that the District Manager's decision must be reviewed "in the context of the competing rights created by Treaty 8". On the facts as the District Manager found them, however, this is not a case of" visible incompatible uses" such as would give rise to the "geographical limitation" on the right to hunt as Cory J. discussed it in Badger, supra.

173 I do not think the District Manager for a moment thought he was "taking up" or "requiring" any part of the Halfway traditional hunting grounds so as to exclude Halfway's right to hunt or to extinguish the hunting right over a particular area, whatever the Crown may now assert in support of his decision to issue a cutting permit. At most the Crown can be seen as allowing the temporary use of some land for a specific purpose, compatible with the continued long-term use of the land for Halfway's traditional hunting activities. The Crown was asserting a shared use, not a taking up of land for an incompatible use. There was evidence before the District Manager to support a finding that the treaty right to hunt and Canfor's tree harvesting were compatible uses. That finding must underpin his conclusion that CP212 would not infringe the treaty right to hunt.

174 Nor do I agree with Canfor's argument that the test formulated by Cory J. in Badger is not applicable to a lumbering use. Justice Cory is clear that," whether or not land has been taken up or occupied is a question of fact that must be resolved on a case-by-case basis" i.e. whether a proposed use is incompatible with the treaty right is a question of fact. The same can be said of "required or taken up ... for the purpose of ... lumbering", although I would compare lumbering more with the wilderness park use in Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.) and R. v. Sundown (1999), 132 C.C.C. (3d) 353 (S.C.C.), than with settlement, or the use for a game preserve in R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.) or a public road corridor in R. v. Mousseau, [1980] 2 S.C.R. 89 (S.C.C.).

175 The District Manager's task was to allocate the use of the land in the Timber Supply Area among competing, perhaps conflicting, but ultimately compatible uses among which the land could be shared; not unlike the sharing of herring spawn in R. v. Gladstone, [1996] 2 S.C.R. 723 (S.C.C.).

176 Nevertheless, a shared use decision may be scrutinized to ensure compliance with the various obligations on the District Manager, including his obligation to "act constitutionally", as I recall Crown counsel put-

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ting it in oral argument. Counsel agreed Sparrow provided the guidelines for that scrutinization on judicial review if a treaty right was engaged and I will expand further on that analysis below.

177 Just as the impact of a statute or regulation may be scrutinized to ensure recognition and affirmation of treaty rights of aboriginal peoples, so may the impact of a decision made under such a statute or regulation by an employee of the Crown. The District Manager can no more follow a provision of a statute, regulation, or policy of the Ministry of Forestry in such a way as to offend the Constitution than he could to offend the Criminal Code or the Offence Act.

178 I share Mr. Justice Finch's view that the District Manager was under a positive obligation to the Halfway River First Nation to recognize and affirm its treaty right to hunt in determining whether to grant Cut- ting Permit 212 to Canfor. This constitutional obligation required him to interpret the Forest Act and the Forest Practices Code so that he might apply government forest policy with respect for Halfway's rights. Moreover, the District Manager was also required to determine the nature and extent of the treaty right to hunt so as to honour the Crown's fiduciary obligation to the first nation: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.) at 1112-1113 per Lamer C.J.C.; and see the discussion by Williams C.J.S.C. in Cheslatta Carrier Na- tion v. British Columbia (Project Assessment Director) (1998), 53 B.C.L.R. (3d) 1 (B.C. S.C.) at 14-15.

179 Mr. Justice Finch points out that the District Manager's failure to consult adequately precluded justification under the second stage of the Sparrow analysis of the infringement of the Halfway treaty right to hunt he considered was constituted by CP212. In my view this deficiency in the decision-making process is a breach of the Crown's fiduciary responsibilities that makes this Court's application of the Sparrow analysis premature.

180 Because only the first nation will have information about the scope of their use of the land, and of the importance of the use of the land to their culture and identity, if the Sparrow guidelines are to organize the review of an administrative decision it makes good sense to require the first nation to establish the scope of the right at the first opportunity, to the decision-maker himself during the consultation he is required to undertake, so that he might satisfy his obligation to act constitutionally. It is only upon ascertaining the full scope of the right that an administrative decision maker can weigh that right against the interests of the various proposed users and determine whether the proposed uses are compatible. This characterization is crucial to an assessment of whether a particular treaty or aboriginal right has been, or will be infringed. Thus, particularly in the context of a judicial review where the Court relies heavily upon the findings of the decision maker, a consideration of whether consultation has been adequate must precede any infringement/justification analysis using the Sparrow guidelines.

181 It is implicit in Halfway's submission that the proposed lumbering use is incompatible with its rights or at least would be found to be so if the District Manager had full information and properly considered the scope of its treaty right to hunt and of its aboriginal right to use the particular tract in question for religious and spiritual purposes.

182 The requirement that a decision-maker under the Forest Act and the Forest Practices Code consult with a first nation that may be affected by his decision does not mean the first nation is absolved of any responsibility. Once the District Manager has set up an adequate opportunity to consult, the first nation is required to co- operate fully with that process and to offer the relevant information to aid in determining the exact nature of the right in question. The first nation must take advantage of this opportunity as it arises. It cannot unreasonably refuse to participate as the first nation was found to have done in Ryan v. Fort St. James Forest District (District

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Manager) (January 25, 1994), Doc. Smithers 7855, 7856 (B.C. S.C.); affirmed (1994), 40 B.C.A.C. 91 (B.C. C.A.). In my view, a first nation should not be permitted to provide evidence on judicial review it has had an appropriate opportunity to provide to the decision-maker, to support a petition asserting a failure to respect a treaty right.

183 The District Manager's failure to consult adequately means that we cannot know what additional information might have been available to him regarding the nature and extent of the Treaty 8 right to hunt or of other aboriginal rights not surrendered by the treaty. Nor can we know how he might have weighed that information with information he might have sought regarding other possible cutting areas to meet Canfor's needs while minimizing the effects on the Halfway River First Nation's treaty right to hunt. Counsel adverted in argument to Canfor having obtained permits to cut in other areas to replace CP212 after the chambers judge made her order. Finally, any weighing of benefits is limited by the evidence, in this case almost entirely put forward by Canfor. Only when adequate consultation has taken place and both parties have fulfilled their respective consultation duties will the District Manager be in a position to determine whether the uses are compatible or a geographical limitation is being asserted, and the consequences in either event to the application for a cutting permit.

184 Halfway did not receive an appropriate opportunity to establish the scope of its right. Thus, the District Manager's decision must be set aside because it was made without the information about Halfway's rights he should have made reasonable efforts to obtain. The most that can be decided definitively on judicial review in such circumstances is whether the legislative objective was sufficiently important to warrant infringement. About that there has never been a question in this case.

185 This conclusion does not signify agreement with Canfor's submission that the interference by CP212 with Halfway's treaty right to hunt could not be elevated to an infringement of a constitutional right. There was evidence of a diminution of the treaty right in this case for the valid purpose of lumbering, a purpose recognized by the treaty itself as a reason for government encroachment on the treaty right to hunt. There was evidence the proposed lumbering activity would preclude hunting in an area considerably larger than the particular cutting blocks during active logging for two years. While mitigating steps were to be taken, there was also evidence of the detrimental effect of road construction on the long-term use of the area by native hunters. Common sense suggests these effects might be sufficiently meaningful, particularly when they are felt in an area near the first nation's reserve, to require justification by the government of its action, depending on the nature of the hunting right. Had the District Manager understood the extent of his obligation to consult, he might have concluded the activities of Canfor authorized by CP212 would result in a meaningful diminution of the Treaty 8 right to hunt, just as he might have seen to the mitigation of such effects or to compensation for them as part of his analysis of how the proposed use and the treaty right could be accommodated to each other.

186 My difference with the reasoning of Mr. Justice Finch flows from my view that the chambers judge was wrong when she found that "any interference" with the right to hunt constituted an "infringement" of the treaty right requiring justification. I cannot read either Sparrow or Badger to support that view. As my colleague notes at para. 124, in Sparrow the court stated the question as "whether either the purpose or effect of the statutory regulation unnecessarily infringes the aboriginal interest." In Badger, at 818, in his discussion as to whether conservation regulations infringed the treaty right to hunt, Cory J. indicated the impugned provisions might not be permissible "if they erode an important aspect of the Indian hunting rights." In Gladstone, supra, Lamer C.J.C. indicated that a "meaningful diminution" of an aboriginal right would be required to constitute an infringement. Each of these expressions of the test for an "infringement" imports a judgment as to the degree and significance of the interference. To make that judgment requires information from which the scope of the exist-

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ing treaty or aboriginal right can be determined, as well as information about the precise nature of the interference.

187 Incidentally, as an aside, given the significance of particular land to aboriginal culture and identity, I would not preclude "preferred means" from being extended to include a preferred tract of land. Proof may be available that use of a particular tract of land is fundamental to a first nation's collective identity, as it is to many indigenous cultures. While it may be that" preferred area" for hunting is not relevant," preferred area" for religious and spiritual purposes is likely to be. Such rights do not appear to have been included in the treaty-making one way or the other.

188 If, after the requisite consultation has occurred, the District Manager confirms the nature of his decision is one involving compatible shared uses, modification of the Sparrow guidelines for review of his allocation of the resources is likely to be necessary. I find support for such modification in the following statement from Sparrow, at 1111 (per Dickson C.J.C. and La Forest J.):

... We wish to emphasize the importance of context and a case-by-case approach to s. 35(1). Given the generality of the text of the constitutional provision and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case.

189 As is apparent from the discussion in Gladstone, supra, it will be impossible to determine how the contours of the justificatory standard should be modified without an understanding of the existing treaty and aboriginal rights and the precise nature of the competing use or uses proposed. Lamer C.J.C. emphasized the distinction between a right with an internal limit such as the right to fish for social, ceremonial and food purposes in Sparrow and a right with an external, market-driven limit such as the right to sell herring spawn commercially at issue in Gladstone. As he noted, the scope of the aboriginal right can determine whether or not exclusive exercise of that right is warranted or how the doctrine of priority will be applied in a government decision on resource allocation. In the circumstances of the case at hand the scope of the Halfway nation's hunting right is yet to be fully determined. Thus it is impossible to reach a conclusion as to what justificatory standard would be applied to the issuance of the cutting permit.

190 Where the decision maker has determined the proposed uses are compatible with the aboriginal right, the question becomes one of accommodation as opposed to one of exclusive exercise of either the aboriginal right in question or the Crown's proposed use. In Quebec (Attorney General), supra, the Court held it was up to the Crown "to prove that its occupancy of the territory cannot be accommodated to reasonable exercise of the Hurons' rights," if the Crown wanted to assert its occupancy of the land in question was incompatible with the Hurons' religious customs or rites. It may be that guidance can be found in this concept for the review of an administrative decision on the allocation of resources among compatible uses.

191 In summary, so as to fulfill the Crown's fiduciary and constitutional duties to Halfway, the District Manager is required to initiate a process of adequate and meaningful consultation with Halfway to ascertain the nature and scope of the treaty right at issue. Having done so, and having determined the effect of the proposed non-aboriginal use, he then makes a determination as to whether the proposed use is compatible with the treaty right. If it is he must seek to accommodate the uses to each other. It will be that accommodation the court reviews within the contours of a justificatory standard yet to be determined.

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192 If the District Manager determines the proposed use is incompatible with the treaty right, he will be asserting a geographical limitation on the treaty right. In that event, I agree with Mr. Justice Finch that his decision may be reviewed under the Sparrow analysis.

193 It follows from these reasons that I too would affirm the order of Dorgan J. setting aside the decision of the District Forest Manager to grant CP212.

Southin J.A. (dissenting):

194 This is an appeal by the respondents below from this judgment pronounced 24 June 1997:

THIS COURT ORDERS that

• the decision of the District Manager made September 13, 1996, approving the application for Cutting Permit 212 be quashed; and

• costs be awarded to the Petitioner.

195 What led to this judgment was a petition for judicial review brought in late 1996 for an order:

1. [Reviewing and setting aside the decision of the Ministry of Forests to allow forestry] activities within Cutting Permit 212;

2. Declaring that the Ministry of Forests has a fiduciary and constitutional duty to adequately consult with the Halfway River First Nation and declaring that the level of consultation to date is insufficient;

3. Compelling the Ministry of Forests to consult with the Halfway River First Nation with respect to the full scope, nature and extent of the impact of proposed forestry activities on the exercise of the Treaty and Aboriginal rights of the Halfway River First Nation in accordance with the reasons and directions of this Honourable Court, and compelling the Ministry of Forests to provide funding to the Halfway River First Nation to support this consultation process;

[There is no "4." in the amended petition.]

5. Remitting the matter to the Respondent Ministry of Forests to complete the consultation process and then reconsider and determine whether to consent to the proposed cutting activities, and to determine appropriate conditions and requirements to be imposed upon any such cutting activities;

6. Prohibiting the Ministry of Forests from making any decision with respect to forestry activity within Cutting Permit 212 until completing the consultation process ordered by this Honourable Court.

7. Retaining jurisdiction over matters dealt within this application such that any party may return to the Court, by motion, for determination of any issue relating to the consultation or the implementation of this Order.

8. Such other relief as this Honourable Court may deem meet; and

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9. Costs on a solicitor client basis.

196 The central point was an assertion by the respondents in this Court that rights preserved to them under s. 35 of the Constitution Act, 1982 were infringed by that act of the District Manager.

197 The learned judge below had before her not only this petition for judicial review but also an application by the respondent below, here the appellant, Canadian Forest Products Ltd., more familiarly known in this Province as Canfor, for an interlocutory injunction restraining the Chief and Halfway River First Nation from interfering with the implementation of the cutting permit.

198 The petition recites that in support of it will be read the affidavits of Chief Bernie Metecheah, Chief George Desjarlais, Stewart Cameron, Peter Havlik, Judy Maas, and Michael Pflueger. These affidavits and their exhibits comprise nearly 1,000 pages in the appeal book.

199 As both proceedings came on together, the learned judge below had affidavits from both sides in both proceedings. In its action, Canfor filed the affidavits of James Stephenson, Jill Marks and J. David Menzies, totalling 330 pages of the appeal book. The Crown in this proceeding filed, among others, two affidavits of Mr. Lawson, the District Manager, bearing date the 20th December, 1996, and amounting to 432 pages. There were some further shorter affidavits from both sides. Thus, the appeal book, excluding the reasons for judgment, judgment and notice of appeal, is 2,376 pages.

200 These proceedings engaged the chambers judge in eight days of hearing.

201 As I shall explain, I would allow the appeal on the simple footing that the central issue in this case concerning the existence or non-existence of rights in the Halfway River First Nation under s. 35 of the Constitution Act, 1982, ought to have been dealt with by action. For a precedent of an action on a treaty, see Saanichton Mar- ina Ltd. v. Claxton (1987), 18 B.C.L.R. (2d) 217 (B.C. S.C.), aff'd. (1989), 36 B.C.L.R. (2d) 79 (B.C. C.A.), in which the learned trial judge, Mr. Justice Meredith, most usefully included in his reasons for judgment the Tsa- wout Indian Band statement of claim.

202 In revising these reasons, I have had the benefit of the draft reasons of my colleagues.

203 If this were not the first case on the implications for British Columbia of Treaty 8 and if these implications did not go far beyond whether Canfor can or cannot log these cut blocks, I would agree with Mr. Justice Finch that, as the parties did not object to the mode of proceeding, it must be taken to be satisfactory. But, in my opinion, the courts do have an obligation to ensure that a case the implications of which extend beyond the parties and the implications of this case may extend not only to all the inhabitants of the Peace River but also, because the Peace River country is not poor in resources, to all the inhabitants of British Columbia is fully explored on proper evidence. Furthermore, to my mind, the so-called administrative law issues in this case are nothing but distractions from the issues arising on the Treaty.

204 By s. 35(1), of the Constitution Act, 1982:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

205 Because Treaty No. 8 is central to this case and to all other cases which may arise in the Peace River

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between First Nations, on the one hand, and the Crown and the non-aboriginal inhabitants on the other, I set it out in full:

Treaty No. 8

ARTICLES OF A TREATY made and concluded at the several dates mentioned therein, in the year of Our Lord one thousand eight hundred and ninety-nine, between Her most Gracious Majesty the Queen of Great Britain and Ireland, by Her Commissioners the Honourable David Laird, of Winnipeg, Manitoba, Indian Commissioner for the said Province and the Northwest Territories; James Andrew Joseph McKenna, of Ott- awa, Ontario, Esquire, and the Honourable James Hamilton Ross, of Regina, in the Northwest Territories, of the one part; and the Cree, Beaver, Chipewyan and other Indians, inhabitants of the territory within the limits hereinafter defined and described, by their Chiefs and Headmen, hereunto subscribed, of the other part: —

WHEREAS, the Indians inhabiting the territory hereinafter defined have, pursuant to notice given by the Honourable Superintendent General of Indian Affairs in the year 1898, been convened to meet a Commis- sion representing Her Majesty's Government of the Dominion of Canada at certain places in the said territory in this present year 1899, to deliberate upon certain matters of interest to Her Most Gracious Majesty, of the one part, and the said Indians of the other.

AND WHEREAS, the said Indians have been notified and informed by Her Majesty's said Commission that it is Her desire to open for settlement, immigration, trade, travel, mining, lumbering, and such other purposes as to Her Majesty may seem meet, a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of Her Indian subjects inhabiting the said tract, and to make a treaty, and arrange with them, so that there may be peace and good will between them and Her Majesty's other subjects, and that Her Indian people may know and be assured of what allowances they are to count upon and receive from Her Majesty's bounty and benevolence.

AND WHEREAS, the Indians of the said tract, duly convened in council at the respective points named hereunder, and being requested by Her Majesty's Commissioners to name certain Chiefs and Headmen who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon, and to become responsible to Her Majesty for the faithful performance by their respective bands of such obligations as shall be assumed by them, the said Indians have therefore acknowledged for that purpose the several Chiefs and Headmen who have subscribed hereto.

AND WHEREAS, the said Commissioners have proceeded to negotiate a treaty with the Cree, Beaver, Chipewyan and other Indians, inhabiting the district hereinafter defined and described, and the same has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands included within the following limits, that is to say: —

Commencing at the source of the main branch of the Red Deer River in Alberta, thence due west to the central range of the Rocky Mountains, thence northwesterly along the said range to the point where it intersects the 60th parallel of north latitude, thence east along said parallel to the point where it intersects Hay River, thence northeasterly down said river to the south shore of Great Slave Lake, thence along the said shore

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northeasterly (and including such rights to the islands in said lakes as the Indians mentioned in the treaty may possess), and thence easterly and northeasterly along the south shores of Christie's Bay and McLeod's Bay to old Fort Reliance near the mouth of Lockhart's River, thence southeasterly in a straight line to and including Black Lake, thence southwesterly up the stream from Cree Lake, thence including said lake southwesterly along the height of land between the Athabasca and Churchill Rivers to where it intersects the northern boundary of Treaty Six, and along the said boundary easterly, northerly and southwesterly, to the place of commencement.

AND ALSO the said Indian rights, titles and privileges whatsoever to all other lands wherever situated in the Northwest Territories, British Columbia, or in any other portion of the Dominion of Canada.

TO HAVE AND TO HOLD the same to Her Majesty the Queen and Her successors for ever.

And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such bands as desire reserves, the same not to exceed in all one square mile for each family of five for such number of families as may elect to reside on reserves, or in that proportion for larger or smaller families; and for such families or individual Indians as may prefer to live apart from band reserves, Her Majesty undertakes to provide land in severalty to the extent of 160 acres to each Indian, the land to be conveyed with a proviso as to non- alienation without the consent of the Governor General in Council of Canada, the selection of such reserves, and lands in severalty, to be made in the manner following, namely, the Superintendent General of Indian Affairs shall depute and send a suitable person to determine and set apart such reserves and lands, after consulting with the Indians concerned as to the locality which may be found suitable and open for selection.

Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any band as She may see fit; and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty's Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained.

It is further agreed between Her Majesty and Her said Indian subjects that such portions of the reserves and lands above indicated as may at any time be required for public works, buildings, railways, or roads of whatsoever nature may be appropriated for that purpose by Her Majesty's Government of the Dominion of Canada, due compensation being made to the Indians for the value of any improvements thereon, and an equivalent in land, money or other consideration for the area of the reserve so appropriated.

And with a view to show the satisfaction of Her Majesty with the behaviour and good conduct of Her Indi- ans, and in extinguishment of all their past claims, She hereby, through Her Commissioners, agrees to make each Chief a present of thirty-two dollars in cash, to each Headman twenty-two dollars, and to every other Indian of whatever age, of the families represented at the time and place of payment, twelve dollars.

Her Majesty also agrees that next year, and annually afterwards for ever, She will cause to be paid to the said Indians in cash, at suitable places and dates, of which the said Indians shall be duly notified, to each

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Chief twenty-five dollars, each Headman, not to exceed four to a large Band and two to a small Band, fif- teen dollars, and to every other Indian, of whatever age, five dollars, the same, unless there be some exceptional reason, to be paid only to heads of families for those belonging thereto.

FURTHER, Her Majesty agrees that each Chief, after signing the treaty, shall receive a silver medal and a suitable flag, and next year, and every third year thereafter, each Chief and Headman shall receive a suitable suit of clothing.

FURTHER, Her Majesty agrees to pay the salaries of such teachers to instruct the children of said Indians as to Her Majesty's Government of Canada may seem advisable.

FURTHER, Her Majesty agrees to supply each Chief of a Band that selects a reserve, for the use of that Band, ten axes, five hand-saws, five augers, one grindstone, and the necessary files and whetstones.

FURTHER, Her Majesty agrees that each Band that elects to take a reserve and cultivate the soil, shall, as soon as convenient after such reserve is set aside and settled upon, and the Band has signified its choice and is prepared to break up the soil, receive two hoes, one spade, one scythe and two hay forks for every family so settled, and for every three families one plough and one harrow, and to the Chief, for the use of his Band, two horses or a yoke of oxen, and for each Band potatoes, barley, oats and wheat (if such seed be suited to the locality of the reserve), to plant the land actually broken up, and provisions for one month in the spring for several years while planting such seeds; and to every family one cow, and every Chief one bull, and one mowing-machine and one reaper for the use of his Band when it is ready for them; for such families as prefer to raise stock instead of cultivating the soil, every family of five persons, two cows, and every Chief two bulls and two mowing-machines when ready for their use, and a like proportion for smaller or larger families. The aforesaid articles, machines and cattle to be given one for all for the encouragement of agriculture and stock raising; and for such Bands as prefer to continue hunting and fishing, as much ammunition and twine for making nets annually as will amount in value to one dollar per head of the families so engaged in hunting and fishing.

And the undersigned Cree, Beaver, Chipewyan and other Indian Chiefs and Headmen, on their own behalf and on behalf of all the Indians whom they represent, DO HEREBY SOLEMNLY PROMISE and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen.

THEY PROMISE AND ENGAGE that they will, in all respects, obey and abide by the law; that they will maintain peace between each other, and between themselves and other tribes of Indians, and between themselves and others of Her Majesty's subjects, whether Indians, half-breeds or whites, this year inhabiting and hereafter to inhabit any part of the said ceded territory; and that they will not molest the person or property of any inhabitant of such ceded tract, or of any other district or country, or interfere with or trouble any person passing or travelling through the said tract or any part thereof, and that they will assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this Treaty or infringing the law in force in the country so ceded.

[Emphasis mine.]

206 The Beaver Indians, from whom the present respondents are descended, adhered to the Treaty in 1900:

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The Beaver Indians of the Upper Peace River and the country thereabouts, having met at Fort St. John, on this thirtieth day of May, in this present year 1900, Her Majesty's Commissioner, James Ansdell Macrae, Esquire, and having had explained to them the terms of the treaty unto which the Chief and Headmen of the Indians of Lesser Slave Lake and adjacent country set their hands on the twenty-first day of June, in the year 1899, do join in the cession made by the said treaty, and agree to adhere to the terms thereof, in consideration of the undertakings made therein.

In witness whereof, Her Majesty's said Commissioner, and the following of the said Beaver Indians, have hereunto set their hands, at Fort St. John, on this the thirtieth day of May, in the year herein first above written.

[Here followed the signatures.]

207 Canfor holds under the Crown a forest licence A18154 dated 28th June, 1993, which covers a very substantial area of northeastern British Columbia between the Rocky Mountains and 120° west longitude, being there the boundary between this Province and Alberta. Under such a licence the District Manager from time to time issues cutting permits. The issuance of such permits is governed not only by the terms of the licence but also by the terms of the Forest Act.

208 For the purposes of these reasons for judgment I accept:

1. The Halfway River First Nation, which has its reserve on the Halfway River, claims under Treaty 8 the right to hunt, fish and trap, particularly to hunt moose, in the area covered by the cutting permit, the logging of which may impede their hunting for moose.

2. The holder of a forest licence does not, under its licence, acquire any exclusive right of occupation of the lands encompassed in a cutting permit.

3. Neither the Wildlife Act, R.S.B.C. 1996, c. 488, nor any other statute of this Province forbids hunting on lands upon which logging is being carried on but it does prohibit the dangerous discharge of firearms. It would be dangerous to discharge firearms where logging is being carried on and I do not think for one moment that any member of the Halfway River First Nation would do such a thing even if there were no statutory prohibition.

209 The respondents assert a breach of the Treaty in two ways:

1. When the reserve for the Halfway people was set up, which was said not to have happened until 1914, that is, some fourteen years after the Beaver had adhered to the Treaty, they received less than their entitlement under the Treaty. In its claim to the Federal Government, submitted in 1995 under the Federal Land Claims Process, the Halfway River First Nation calculated the shortfall thus:

15.1 The following is a summary of the key population figures indicating a shortfall at date of first survey. Detailed information concerning individual members of the Halfway River Band, absentees/arrears and late adherents is contained in the Genealogical Appendices.

Halfway River Band on Hudson Hope Band Paylist - Date of First Survey - 1914 77

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Deduct Double Counts ...... 0

Base Paylist ...... 77

Absentees/Arrears ...... 13

Late Adherents ...... 4

Adjusted Date of First Survey Population ...... 94

Calculation of Shortfall 94 × 128 acres - 9823 acres = Treaty Land Entitlement Shortfall of 2,139 acres

I do not pretend to have grasped the full import of this claim, nor the relationship to it, if any, of Section 13 of the British Columbia Terms of Union and the various events arising from that section, as to which see my judgment in British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 156 (B.C. C.A.) at 176, where the whole sorry history of reserves in other parts of the Province is recounted and in which, in my opinion, the right clearly belonged to the Mount Currie Indian Band. If the Halfway River First Nation is right and the claim is not settled but must be pursued in an action, an interesting question of law will fall to be determined: Is British Columbia bound to provide further lands and, if so, who is to choose those lands, or is Canada bound to pay compensation and, in either event, to what ancillary remedies, if any, is the Halfway River First Nation entitled? At this stage, no authority with the power to resolve the claim as made in 1995 has made any findings of fact or law relating thereto.

2. Development in the area has deleteriously affected the hunting. Chief Metecheah deposes:

3. The Halfway River First Nation community is very poor. More than 75% of our members rely on social assistance and hunting to feed their families. Because we are so poor, the members of our community rely very much on hunting to feed their children.

4. All of the land within Cutting Permit 212 ("C.P. 212") is very good for hunting and is the land that is used the most by our people to feed their children. The C.P. 212 area is next to our reserve. Our members don't need to spend much money to get there to get food for their families.

5. All through C.P. 212, there is proof of this use. Our members' permanent camp sites, corrals and meat drying racks are everywhere in the area.

6. We have many religious, cultural and historical sites in C.P. 212.

7. I am told by one of our members that some of the cut blocks are right where important spiritual ceremonies are held.

8. We have told the Ministry of Forests ("Ministry") that we are willing to gather this information but we need money and help to do this.

9. I have hunted throughout the Treaty 8 territory all my life and I have seen the effects of forestry activities on wildlife and hunting. The land is not as good for hunting once the trees have been cut. Non-Native hunters use the roads left by the forestry people to hunt in our traditional territory and there

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is less game left to feed our families.

10. If the hunting in C.P. 212 is affected, children in our community will go hungry.

11. C.P. 212 is right next to our Reserve. Because of all of the things that the government has done to our traditional territory by allowing logging companies and oil and gas companies to cut trees and pol- lute the land without consulting us or respecting our rights, our people must go farther and farther from our Reserve to get to land where we can hunt and gather berries and medicine. We use the land in C.P. 212 for teaching our children about our spiritual beliefs and our way of life. If the trees in C.P. 212 are cut down and the animals are driven away we will not be able to teach our children how to hunt and how our ancestors lived.

210 The appellants do not accept that the development of the area has adversely affected the animal population or, more particularly, that cutting pursuant to this cutting permit will do so. There is some evidence that logging, because it results in fresh growth, ultimately produces good browse for ungulates, including moose.

211 The assertions by the Chief in paragraphs 9-11 are sweeping and I am sure he is profoundly convinced of their truth. But, in my opinion, assertions, even if contained in an affidavit, which are sweeping in scope but which the deponent does not support, to use Lord Blackburn's words in another context, by condescending to particulars, should be given little weight in a proceeding seeking a final, in contra-distinction to an interlocutory, order.

212 As I understand Mr. Justice Finch's reasons, his central premise is set forth in this paragraph:

[144] I respectfully agree with the learned chambers judge that any interference with the right to hunt is a prima facie infringement of the Indians' treaty right as protected by s.35 of the Constitution Act, 1982.

213 That premise leads inexorably to the application of the doctrine of R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160, [1990] 4 W.W.R. 410, 46 B.C.L.R. (2d) 1 (S.C.C.).

214 It is upon that premise that my colleague and I part company.

215 I accept that the doctrine of the honour of the Crown applies to the interpretation of treaties which are within s. 35(1) of the Constitution Act. But I do not accept that the central words of the Treaty bear the construction put upon them by my colleague. To my mind, the words which, in the court below, ought to have been but were not addressed, except perhaps by a side wind, are "as may be required or taken up". Do the words empower the Crown, to whom all the lands covered by the Treaty were surrendered, to convey those lands away to others in fee simple? Such a conveyance would, of course, give exclusive possession to the grantee.

216 In the case at bar, the issuance of a cutting permit did not give exclusive possession to the appellant Canfor. It did not exclude the respondents from hunting. But if the Crown did grant all the lands away, it might be argued with some force that it had made the reservation nugatory. One might apply the common law doctrine of derogation from a grant, by analogy, to such a state of affairs.

217 In order that the significance of the principal issue to this Province may be understood, I must set out some history.

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218 By the British Columbia Boundaries Act, 26 & 27 Vict., c. 83 (1863), Parliament at Westminster established the boundaries of then Colony of British Columbia thus:

3. British Columbia shall for the Purposes of the said Act, and for all other Purposes, be held to comprise all such Territories within the Dominions of Her Majesty as are bounded to the South by the Territories of the United States of America, to the West by the Pacific Ocean and the Frontier of the Russian Territories in North America, to the North by the Sixtieth Parallel of North Latitude, and to the East, from the Boundary of the United States Northwards, by the Rocky Mountains and the One hundred and twentieth Meridian of West Longitude, and shall include Queen Charlotte's Island and all other Islands adjacent to the said Territ- ories, except Vancouver's Island and the Islands adjacent thereto.

219 When the Colony of British Columbia, which by then encompassed Vancouver Island as well, became part of Canada in 1871, it did so pursuant to the Terms of Union and the order in council of 16 May 1871. By the Terms of Union a substantial part of British Columbia known as the Railway Block was conveyed to the Dominion government. By subsequent statutes, other lands known as the Peace River Block were granted by the Province to Canada. These statutes are recited in the Railway Belt Retransfer Agreement Act, S.B.C. 1930, c. 60.

220 From the time that the Beaver adhered to this treaty in 1900 until after the Second World War, there was very little settlement in what British Columbians call the Peace River which, more sensibly, ought to have been part of Alberta, lying as it does east of the Rocky Mountains.

221 The introduction by Gordon E. Bowes to Peace River Chronicles (Prescott Publishing Co., 1963) gives a sufficient overview [p. 13 et seq]:

The Hudson's Bay Company remained in undisturbed possession of its huge fur preserve until the gold rush to the Peace and the Finlay in 1862. Many of the gold-seekers turned to the fur trade themselves, and so ended the Company's monopoly. There was another gold rush in the years 1870-73, this time to the Om- ineca country. Klondikers passed through in 1898-99, and a few returned later as traders. In 1908-09, there was a smaller gold rush to McConnell Creek on the Ingenika River.

Ignoring difficulties and hardships, the miners and the independent traders and trappers opened up the country and made it known to the outside world. They were soon followed by missionaries, travellers, and railway and geological survey parties. Their favourable reports drew attention to the agricultural advantages of the eastern part of the region.

Land surveyors and settlers entered the Peace River region of British Columbia only a few years prior to the First World War. Until that time, the area from the Rockies east to the Alberta boundary had been kept under a provincial government reserve which prohibited homesteading. The purpose of this reserve was to permit the federal government to select 3,500,000 acres of unalienated arable land (the Peace River Block) in return for aid given earlier by Ottawa for railway construction elsewhere in the province. The long-delayed choice of the block was announced in 1907, and Ottawa threw open some of the lands for homesteading in 1912.

Lack of transportation has been the great obstacle to development of the region. Some settlers came in on the mere rumour of a railway. In 1913 there were 40 settlers near Hudson Hope, 30 along the Peace down to

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Fort St. John, and about 400 in the Pouce Coupe prairie. Even Finlay Forks had two general stores in 1913, and hopes were high. The First World War pricked the bubble, leaving deserted cabins everywhere.

The building of what is now the Northern Alberta Railways line in 1916 from Edmonton to Grande Prairie on the Alberta side facilitated some further settlement of the eastern half of the region. Following the war, the Soldier Settlement Board helped to establish veterans on the land. Another influx of land-hungry settlers occurred in 1928 and 1929, with the result that there were almost 7,000 persons in the eastern part of the region by 1931.

The completion of the Northern Alberta Railways line to Dawson Creek in January 1931 marked the beginning of a new era. At long last the railway had arrived, if only just within the area's eastern boundary! Dur- ing the depression years discouraged wheat farmers from the parched districts of southern Alberta and Saskatchewan swelled the migratory waves. The trek into the Promised Land with livestock and farm equipment sometimes took as long as three or four months.

The arrival of bush pilots and the establishment of air lines in the thirties heralded the coming of further improvements in transportation. The Second World War, with its building of airports and the Alaska Highway and its forced economic expansion, played a sudden and spectacular part in the region's growth. Dawson Creek was given a highway to the Yukon and Alaska a full decade before it obtained one to the rest of the province! In the immediate post-war years, settlement continued in substantial volume. A major land boom occurred in 1948-49. Dawson Creek established itself in the front rank in all of Western Canada for grain shipments. The eastern part of the region is still the fastest-growing section of British Columbia.

The initial exploitation of the oil and gas fields, the completion of the John Hart Highway from Prince George in 1952, the building in 1957 of Canada's first major natural gas pipeline, Westcoast Transmission Company's line from Taylor south to the American border, the long-delayed and eagerly-awaited extension of the Pacific Great Eastern Railway to Fort St. John and Dawson Creek in 1958, the completion of the Western Pacific Products and Crude Oil pipeline to Kamloops in 1961, and the construction, now under way, of the great hydro-electric power project near Hudson Hope, all represent other significant steps in the region's development in recent years.

The present prosperity and the growing commercial importance of Dawson Creek, Fort St. John, Hudson Hope, Taylor, and Chetwynd contrast sharply with conditions two decades ago. Isolated no longer, and provided with air lines, highways, railways, and gas and oil pipelines, the region has overcome its transportation problems. Nature's lavish endowment of this corner of British Columbia is becoming evident to all. Not only one of the world's greatest power sites but also the untold wealth of natural gas, oil, coal, base metals, gold, timber, and millions of fertile acres for agriculture are beginning to make the pioneers' wildest dreams come true.

222 Thus, I think it fair to infer that from the time they adhered to the Treaty in 1900 until after the Second World War, the Beaver people, including the present respondents, were left with their hunting ranges largely free of the" taking up" for any purpose by the Crown of lands ceded to it and from intrusion by non-natives upon those lands for such purposes as hunting, fishing, exploring for minerals, and so forth. Thus, until then, no issue could have arisen of breach by the Crown.

223 Since the early 1960's, there has been in the Peace River further extensive taking up of land by the Crown, although to what extent that taking up has excluded the Beaver people from their traditional hunting

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ranges by the granting of exclusive possession to others, does not appear with any clarity in the evidence in this case.

224 In my opinion the issue is not whether there is an infringement and justification within the Sparrow test, but whether the Crown has so conducted itself since 1900 as to be in breach of the Treaty. The proper parties to a proceeding to determine that issue are in my opinion the Halfway River First Nation and the Attor- ney General for British Columbia, or, if monetary compensation is sought, Her Majesty the Queen in right of British Columbia, and the proper means of proceeding is an action.

225 The question in such an action would be whether what the Crown has done throughout the Halfway River First Nation's traditional lands by taking up land for oil and gas production, forestry, and other activities has so affected the population of game animals as to make the right of hunting illusory. "To make the right of hunting illusory" may be the wrong test. Perhaps the right test is "to impair substantially the right of hunting" or some other formulation of words.

226 Whatever is the correct formulation, it cannot be applied without addressing all that has been done by the Crown since the lands were ceded to it. The Beaver Indians have the right to hunt but that right is burdened or cut down by the right of the Crown to take up lands. There are many issues of fact to be addressed on proper evidence to answer the question in whatever terms one puts it.

227 My colleague, Madam Justice Huddart, approaches this case differently from Mr. Justice Finch. The culmination of her reasons is in this paragraph:

[191] In summary, so as to fulfill the Crown's fiduciary and constitutional duties to Halfway, the District Manager is required to initiate a process of adequate and meaningful consultation with Halfway to ascertain the nature and scope of the treaty right at issue. Having done so, and having determined the effect of the proposed non-aboriginal use, he then makes a determination as to whether the proposed use is compatible with the treaty right. If it is he must seek to accommodate the uses to each other. It will be that accommodation the court reviews within the contours of a justificatory standard yet to be determined.

228 Essentially, therefore, she accedes to the respondent's prayer for relief contained in the petition for judicial review.

229 With respect, to create a system in which those appointed to administrative positions under the Forest Act or any other statute of British Columbia regulating Crown land in the Peace River are expected to consult" to ascertain the nature and scope of the treaty right at issue" and to determine "whether the proposed use is compatible with the treaty right" is to place on our civil servants a burden they should not have to bear - a patchwork quilt of decision making by persons appointed not for their skill in legal questions but for their skill in forestry, mining, oil and gas, and agriculture.

230 A District Manager under the Forest Act is no more qualified to decide a legal issue arising under this treaty than my colleagues and I are qualified to decide how much timber Canfor should be permitted or required to cut in any one year in order to conform to the terms of its tenure.

231 Not only is this burden on the civil servants unfair to them, but also it ladens the people of British Columbia with burdens heavy to be borne, burdens which no other province's people have to bear, even though

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the other provinces, except Newfoundland, also have First Nations.

232 If my colleagues are right, British Columbia, which was once described as the spoilt child of Confeder- ation, is about to become the downtrodden stepchild of Confederation.

233 This case has serious economic implications. To decide the issues arising on the evidence here adduced, which, as the parties chose to proceed, was not focused on that question only, is a course fraught with danger, especially to third parties. Those third parties include, as well as those who have rights acquired under the Forest Act, R.S.B.C. 1996, c. 157, and predecessor statutes, those who have rights acquired under the Petroleum and Natural Gas Act, R.S.B.C. 1996, c. 361, and predecessor statutes, the Mineral Tenure Act, R.S.B.C. 1996, c. 292, and predecessor statutes, and the Land Act, R.S.B.C. 1996, c. 245, and predecessor statutes.

234 If the Crown has so conducted itself that it has committed a breach of its obligations under the Treaty to the respondents, and, perhaps, other First Nations who are also Beaver Indians, then it is right that the Crown should answer for that wrong and pay up. The paying up will be done by all the taxpayers of British Columbia. But it is not right that Canfor and all others, who in accordance with the Statutes of British Columbia have obtained from the Crown rights to lands in the Peace River and conducted their affairs in the not unreasonable be- lief that they were exercising legal rights, should find themselves under attack in a proceeding such as this.

235 Canfor, a substantial corporation, presumably can afford this litigation. But others whose rights may be imperilled may not have Canfor's bank account.

236 I would allow the appeal and set aside the judgment below.

Appeal dismissed.

END OF DOCUMENT

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2005 CarswellBC 438, 2005 BCSC 283, [2005] B.C.W.L.D. 2525, [2005] B.C.W.L.D. 2694, [2005] B.C.W.L.D. 2703, [2005] B.C.W.L.D. 2564, 39 B.C.L.R. (4th) 263, [2005] 2 C.N.L.R. 75, 32 Admin. L.R. (4th) 87, 138 A.C.W.S. (3d) 172

Homalco Indian Band v. British Columbia (Minister of Agriculture, Food & Fisheries)

Darren Blaney, Chief Councillor, Florence Hackett, Bonnie Wilson, Clyde Leo, Bill Blaney, Band Councillors, suing on their own behalf and on behalf of all the members of the Homalco Indian Band, and the Homalco Indi- an Band (Petitioners) and The Minister of Agriculture Food and Fisheries and Marine Harvest Canada (Respondents)

British Columbia Supreme Court

Powers J.

Heard: January 24-28, 31, 2004; February 1,2,10,11, 2004 Judgment: March 2, 2005[FN*] Docket: Vancouver L043154

Counsel: P.R. Grant, B. O'Reilly, L. Schmidt for Petitioners

L. Mrozinski, P.E. Yearwood for Respondent, Minister of Agriculture Food and Fisheries

S.B. Armstrong, Q.C., J.M. Shore, C.J. Kowbel for Respondent, Marine Harvest Canada

Subject: Public; Civil Practice and Procedure; Constitutional

Aboriginal law --- Aboriginal rights to natural resources — Aboriginal rights — Fishing

Consultation process in amending fish farming licence — H band were aboriginal people who claimed title and rights to area on central coast of British Columbia — N Inc. operated aquaculture facility which was at site adjacent to H band reserve — N Inc. applied in April of 2004 to amend licence to allow it to raise Atlantic salmon — Minister of Agriculture, Food and Fisheries wrote to H band on July 20, 2004, to notify band of application and to obtain band's input — Ministry proceeded with final approval of amendment before there was opportunity for it to meet with H band to discuss band's concerns and Ministry's response — Amendment was granted effective December 8, 2004 — H band applied for judicial review — Application granted — Standard of review is correctness — Ministry erred in failing to consult to extent necessary — Ministry believed that change of species from Chinook to Atlantic salmon was not significant amendment and did not have any impact on claims or rights of H band than original licence — Concerns raised by H were not frivolous nor vexatious.

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Fish and wildlife --- Nature and origin of fishing and hunting rights — Fishing — Private rights — General

Consultation with aboriginal people and fish farming licence — H band were aboriginal people who claimed title and rights to area on central coast of British Columbia — N Inc. operated aquaculture facility which was at site adjacent to H band reserve — N Inc. applied in April of 2004 to amend licence to allow it to raise Atlantic salmon — Minister of Agriculture, Food and Fisheries wrote to H band on July 20, 2004, to notify band of application and to obtain band's input — Ministry proceeded with final approval of amendment before there was opportunity for it to meet with H band to discuss band's concerns and Ministry's response — Amendment was granted effective December 8, 2004 — H band applied for judicial review — Application granted — Standard of review is correctness — Ministry erred in failing to consult to extent necessary — Ministry believed that change of species from Chinook to Atlantic salmon was not significant amendment and did not have any impact on claims or rights of H band than original licence — Concerns raised by H were not frivolous nor vexatious.

Injunctions --- Availability of injunctions — Injunctions in specific contexts — Restraint of government acts — General

Granting of fish farm licence amendment — H band were aboriginal people who claimed title and rights to area on central coast of British Columbia — N Inc. operated aquaculture facility which was at site adjacent to H band reserve — N Inc. applied in April of 2004 to amend licence to allow it to raise Atlantic salmon — Minister of Agriculture, Food and Fisheries wrote to H band on July 20, 2004, to notify band of application and to obtain band's input — Ministry proceeded with final approval of amendment before there was opportunity for it to meet with H band to discuss band's concerns and Ministry's response — Amendment was granted effective December 8, 2004 — H band applied for judicial review — Application granted — H band argued that only appropriate remedy was declaration that Ministry has failed to properly consult and order quashing approval of amendment — N Inc. argued that quashing amendment would burden N Inc. with financial hardship — Minister has legally enforceable duty to H band to consult with them in good faith, and to endeavour to seek workable accommodation among their interests and long-term objectives of Crown, N Inc. and public interest — N Inc. will provide information subject to protection of confidentiality with respect to fish health management plan and best management plan — Matter best resolved through process provided by Fisheries Act rather than by granting of injunction.

Constitutional law --- Distribution of legislative powers — Areas of legislation — Maritime law — Regulation of fisheries

H band were aboriginal people who claimed title and rights to area on central coast of British Columbia — N Inc. operated aquaculture facility which was at site adjacent to H band reserve — N Inc. applied in April of 2004 to amend licence to allow it to raise Atlantic salmon — Minister of Agriculture, Food and Fisheries wrote to H band on July 20, 2004, to notify band of application and to obtain band's input — Ministry proceeded with final approval of amendment before there was opportunity for it to meet with H band to discuss band's concerns and Ministry's response — Amendment was granted effective December 8, 2004 — H band applied for judicial review — Application granted — H band argued that provincial jurisdiction under s. 92 ¶ 5 of Constitution Act, 1867, which is basis of authority for provincial Fisheries Act, established constitutional obligations in Fisheries Act to conserve stock of fish and to protect fish environment — Court rejected H band's argument — No authority was cited for proposition that Fisheries Act and regulations must conserve stock of fish and protect fish environment — While s. 92 ¶ 5 of Constitution Act, 1867, grants provinces power to legislate with respect to conservation of fish stock, provinces were not required to pass legislation and regulations to conserve stock.

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Cases considered by Powers J.:

Cheslatta Carrier Nation v. British Columbia (Project Assessment Director) (1998), 1998 CarswellBC 128, 26 C.E.L.R. (N.S.) 37, 4 Admin. L.R. (3d) 22, (sub nom. Cheslatta Carrier Nation v. British Columbia (Environmental Assesment Act, Project Assessment Director)) [1998] 3 C.N.L.R. 1, 53 B.C.L.R. (3d) 1 (B.C. S.C.) — considered

Gitxsan Houses v. British Columbia (Minister of Forests) (2002), 2002 BCSC 1701, 2002 CarswellBC 2928, 10 B.C.L.R. (4th) 126, 48 Admin. L.R. (3d) 225, (sub nom. Gitxsan First Nation v. British Columbia (Minister of Forests)) [2003] 2 C.N.L.R. 142 (B.C. S.C.) — considered

Haida Nation v. British Columbia (Minister of Forests) (2002), 2002 BCCA 147, 2002 CarswellBC 329, 99 B.C.L.R. (3d) 209, [2002] 2 C.N.L.R. 121, [2002] 6 W.W.R. 243, 44 C.E.L.R. (N.S.) 1, 164 B.C.A.C. 217, 268 W.A.C. 217 (B.C. C.A.) — considered

Haida Nation v. British Columbia (Minister of Forests) (2004), 245 D.L.R. (4th) 33, 19 Admin. L.R. (4th) 195, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, [2005] 3 W.W.R. 419, 2004 CarswellBC 2656, 2004 CarswellBC 2657, 2004 SCC 73 (S.C.C.) — followed

Operation Dismantle Inc. v. R. (1985), [1985] 1 S.C.R. 441, 59 N.R. 1, 18 D.L.R. (4th) 481, 12 Admin. L.R. 16, 13 C.R.R. 287, 1985 CarswellNat 151, 1985 CarswellNat 664 (S.C.C.) — considered

Pugliese v. Canada (National Capital Commission) (1979), [1979] 2 S.C.R. 104, (sub nom. National Capit- al Commission v. Pugliese) 8 C.C.L.T. 69, (sub nom. National Capital Commission v. Pugliese) 8 C.E.L.R. 68, 25 N.R. 498, 97 D.L.R. (3d) 631, 1979 CarswellOnt 1317, 1979 CarswellOnt 680 (S.C.C.) — considered

Vancouver Island Peace Society v. Canada (1992), [1992] 3 F.C. 42, (sub nom. Vancouver Island Peace So- ciety v. Canada (Minister of National Defence)) 53 F.T.R. 300, 1992 CarswellNat 108, 1992 CarswellNat 108F (Fed. T.D.) — considered

114957 Canada Ltée (Spray-Tech, Société d'arrosage) v. Hudson (Ville) (2001), 2001 SCC 40, 2001 CarswellQue 1268, 2001 CarswellQue 1269, (sub nom. 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)) 200 D.L.R. (4th) 419, 19 M.P.L.R. (3d) 1, 271 N.R. 201, 40 C.E.L.R. (N.S.) 1, (sub nom. 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town)) [2001] 2 S.C.R. 241 (S.C.C.) — referred to

Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

Generally — referred to

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s. 7 — referred to

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5

s. 92 ¶ 5 — referred to

Fisheries Act, R.S.C. 1985, c. F-14

Generally — considered

s. 35(2) — referred to

Heritage Conservation Act, R.S.B.C. 1996, c. 187

Generally — referred to

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

Generally — referred to

Ontario Water Resources Act, R.S.O. 1990, c. O.40

Generally — referred to

Rules considered:

Rules of Court, 1990, B.C. Reg. 221/90

R. 2(3) — considered

R. 10 — referred to

Regulations considered:

Fisheries Act, R.S.C. 1985, c. F-14

Fishery (General) Regulations, SOR/93-53

s. 55

APPLICATION by aboriginal band for judicial review of decision of Minister of Agriculture, Food and Fisher- ies granting amendment to licence of aquaculture facility.

Powers J.:

Introduction

1 The petitioners, who I will refer to as "the Homalco", are the Chief councillor and Band councillors suing on their own behalf, and on behalf of the members of the Homalco Indian Band. The Homalco Band is also known as the Xwémalhkwu First Nation.

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2 The Minister of Agriculture, Food and Fisheries ("MAFF" or "Ministry") is the Minister responsible on behalf of the Crown in right of British Columbia for licensing and approval of aquaculture facilities and amendments to aquaculture licenses.

3 "Marine Harvest Canada" is a trade name for Nutreco Canada Inc. Marine Harvest Canada ("Marine Har- vest") operates an aquaculture facility in British Columbia at a site adjacent to the Church House Indian Reserve at Bute Inlet. The reserve is held in trust by the Crown in right of Canada on behalf of the Homalco.

4 The Homalco seek judicial review of the decision by the Minister, through its decision maker, to approve an amendment to an existing fish farm licence on Bute Inlet. Marine Harvest has a licence to operate a fish farm and raise Chinook salmon at this facility. They applied to amend that licence in April of 2004 to allow them to raise Atlantic salmon. The amendment was granted effective December 8, 2004.

5 The Homalco say the approval of the amendment was done without proper consultation and accommodation of their concerns, as required by law.

6 The Homalco seek the following in their petition:

1. a declaration that the Minister has failed to properly consult and accommodate them with respect to the amendment;

2. an order quashing or setting aside the decision of the Minister;

3. relief in the nature of certiorari quashing the decision of the Minister approving the amendment;

4. a declaration that the decision of the Minister to proceed with the granting of approval of the amendment prior to meaningful consultation with the Homalco in good faith was a breach of the constitutional duty of the Crown to consult in good faith with the Homalco;

7. a permanent injunction prohibiting Marine Harvest from placing Atlantic salmon in the Church House fish farm without proper authorization from the Department of Fisheries and Oceans for the harmful alteration, disruption or destruction [HAAD] of fish habitat pursuant to s. 35(2) of the Fisheries Act, R.S.C. 1985, c. F-14 ("Fisheries Act") and without obtaining a licence pursuant to s. 55 of the Fish- ery (General) Regulations.

7 They also seek an order that the Atlantic salmon which are presently located in this fish farm be removed.

Background

8 The Homalco Band are Aboriginal people who claim Aboriginal title and rights to an area on the central coast of British Columbia that includes Bute Inlet and the area surrounding the Church House and Barlett Island Indian Reserves.

9 Marine Harvest operates the aquaculture facility which is at the site adjacent to the Church House Reserve and at the mouth of Bute Inlet. The licence was originally granted in 2002, allowing the raising of Chinook salmon. Marine Harvest applied in April of 2004 to amend the licence to allow them to raise Atlantic salmon. The MAFF wrote to Homalco on July 20, 2004 to notify them of the application and to obtain their input. A biologist

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at MAFF "approved" the application on July 28, 2004.

10 Homalco replied, expressing their concerns about the amendment, and seeking additional information.

11 These exchanges were followed by a number of letters and emails, as well as telephone communication between the Ministry representatives, Homalco's lawyers, and in some instances, the Homalco themselves. Des- pite this communication and the expressed desire and willingness to meet in some of the communications, the parties never did have a meeting to discuss the concerns raised by the Homalco. The Ministry, in late November, indicated that it intended to make its decision by December 9. In fact, its decision was made on December 8, without a meeting occurring between the parties. The Homalco submitted further materials, and the Ministry responded to those materials on January 18, 2005.

12 These proceedings were commenced on December 22, 2004, after Marine Harvest had placed 700,000 Atlantic smolts out of a possible 1 million in the Church House site.

The Law

13 The Supreme Court of Canada has dealt with the issue of the obligation to consult and accommodate in two recent decisions. These decisions are Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] S.C.J. No. 70 (S.C.C.) and Taku River Tlingit First Nation v. British Columbia (Project Assessment Dir- ector), [2004] S.C.J. No. 69 (S.C.C.). These decisions were delivered November 18, 2004. They confirm the Crown's obligations to consult, and decided that a third party in the position of Marine Harvest did not have a duty to consult.

14 The Supreme Court of Canada in Haida, supra, said the following:

¶16 The government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples: see for example R. v. Badger, [1996] 1 S.C.R. 771, at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456 . It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

¶17 The historical roots of the principle of the honour of the Crown suggest that it must be understood gen- erously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve "the reconciliation of the pre- existence of Aboriginal societies with the sovereignty of the Crown": Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31.

.....

¶20 Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims: R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982. Section 35 represents a promise of rights recognition, and "[i]t is always assumed that the Crown intends to fulfil its promises" (Badger, supra, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them

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with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.

.....

¶25 Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

.....

¶32 The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown's duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown's assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people. As stated in , [2001] 1 S.C.R. 911, 2001 SCC 33, at para. 9, "[w]ith this assertion [sovereignty] arose an obligation to treat Aboriginal peoples fairly and honourably, and to protect them from exploitation..." (emphasis added).

15 The Supreme Court of Canada said in the Taku, supra, case:

¶24 The Province's submissions present an impoverished vision of the honour of the Crown and all that it implies. As discussed in the companion case of Haida, supra, the principle of the honour of the Crown grounds the Crown's duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown's assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown's honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).

When Does the Duty Arise?

16 The petitioner correctly argues that the duty arises when the Crown makes decisions that have a serious impact on asserted Aboriginal rights and title. The duty comes into existence when:

1. the Crown has knowledge, real or constructive of the potential existence of Aboriginal rights or titles; and

2. it contemplates conduct that might adversely affect them.

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17 The Supreme Court of Canada in Haida said:

¶35 But, when precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation, suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. See Halfway River First Nation v. British Columbia (Minister of Forests), [1997] 4 C.N.L.R. 45 (B.C.S.C.), at p. 71, per Dorgan J.

(Also see Taku at ¶25).

18 In situations where claims have not yet been resolved, the court in Haida said:

¶36 This leaves the practical argument. It is said that before claims are resolved, the Crown cannot know that the rights exist, and hence can have no duty to consult or accommodate. This difficulty should not be denied or minimized. As I stated (dissenting) in Marshall, supra, at para. 112, one cannot "meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope". However, it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate, short of final judicial determination or settlement. To facilitate this determination, claimants should outline their claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements. ...

¶37 There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. Parties can assess these matters, and if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not be denying the existence of a duty.

¶ 38 I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands. It preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation: see S. Lawrence and P. Macklem, "From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult" (2000), 79 Can. Bar Rev. 252, at p. 262. Precisely what is required of the government may vary with the strength of the claim and the circumstances. But at a minimum, it must be consistent with the honour of the Crown.

D. The Scope and Content of the Duty to Consult and Accommodate

¶ 39 The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

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¶ 40 In Delgamuukw, supra, at para. 168, the Court considered the duty to consult and accommodate in the context of established claims. Lamer C.J. wrote:

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to Aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the Aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an Aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to Aboriginal lands.

¶ 41 Transposing this passage to pre-proof claims, one may venture the following. While it is not useful to classify situations into watertight compartments, different situations requiring different responses can be identified. In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law.

¶ 42 At all stages, good faith on both sides is required. The common thread on the Crown's part must be "the intention of substantially addressing [Aboriginal] concerns" as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown's reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Minister of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107 (B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal people's right to be consulted.

¶ 43 Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. "'[C]onsultation' in its least technical definition is talking together for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.

¶ 44 At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non- compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or adminis-

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trative regimes with impartial decision-makers in complex or difficult cases.

¶ 45 Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Abori- ginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

¶ 46 Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justice's Guide for Consultation with Maori (1998) provides insight:

• gathering information to test policy proposals

• putting forward proposals that are not yet finalized

• seeking Maori opinion on those proposals

• informing Maori of all relevant information upon which those proposals are based

• not promoting but listening with an open mind to what Maori have to say

• being prepared to alter the original proposal

• providing feedback both during the consultation process and after the decision-process. (at s. 2.2 of Deciding)

¶ 47 When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government's proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation, as this Court recognized in R. v. Marshall, [1999] 3 S.C.R. 533, at para. 22: "... the process of accommodation of the treaty right may best be resolved by consultation and negotiation".

¶ 48 This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal "consent" spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing in-

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terests, of give and take.

¶ 49 This flows from the meaning of "accommodate". The terms "accommodate" and "accommodation" have been defined as to "adapt, harmonize, reconcile" ... "an adjustment or adaptation to suit a special or different purpose ... a convenient arrangement; a settlement or compromise": The Concise Oxford Diction- ary of Current English 9th ed. 1995) at p. 9. The accommodation that may result from pre-proof consultation is just this — seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree. But it does require good faith efforts to understand each other's concerns and move to address them.

¶ 50 The Court's decisions confirm this vision of accommodation. The Court in Sparrow raised the concept of accommodation, stressing the need to balance competing societal interests with Aboriginal and treaty rights. In R. v. Sióui, [1990] 1 S.C.R. 1025, at p. 1072, the Court stated that the Crown bears the burden of proving that its occupancy of lands "cannot be accommodated to reasonable exercise of the Hurons' rights". And R. v. Côté, [1996] 3 S.C.R. 139, at para. 81, the Court spoke of whether restrictions on Aboriginal rights "can be accommodated with the Crown's special fiduciary relationship with First Nations". Balance and compromise are inherent in the notion of reconciliation. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

¶ 51 It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts. As noted in R. v. Adams, [1996] 3 S.C.R. 101, at para. 54, the government "may not simply adopt an unstructured discretionary administrative regime which risks infringing Aboriginal rights in a substantial number of applications in the absence of some explicit guidance". It should be observed that, since October 2002, British Columbia has had a Provincial Policy for Consultation with First Nations to direct the terms of provincial ministries' and agencies' operational guidelines. Such a policy, while falling short of a regulatory scheme, may guard against unstructured discretion and provide a guide for decision makers.

19 The court in Haida then went on to consider the nature of the review of the government's conduct where it is challenged. In particular, the court said the following:

¶ 60 Where the government's conduct is challenged on the basis of allegations that it failed to discharge its duty to consult and accommodate pending claims resolution, the matter may go to the courts for review. To date, the Province has established no process for this purpose. The question of what standard of review the court should apply in judging the adequacy of the government's efforts cannot be answered in the absence of such a process. General principles of administrative law, however, suggest the following.

¶ 61 On questions of law, a decision-maker must generally be correct: for example, , [2003] 2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: , [2003] 1 S.C.R. 247,

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2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director of Investigation and Research) v. Southam Inc. , [1997] 1 S.C.R. 748.

¶ 62 The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action "viewed as a whole, ac- commodates the collective Aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, "in ... information and consultation the concept of reasonableness must come into play. ... So long as every reasonable effort is made to inform and to consult, such efforts would suffice ...". The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.

¶ 63 Should the government misconceive the seriousness of the claim or impact of the infringement, this question of law would likely be judged by correctness. Where the government is correct on these matters and acts on the appropriate standard, the decision will be set aside only if the government's process is unreasonable. The focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.

H. Application to the Facts

(1) Existence of the Duty

20 The process of consultation and accommodation places obligations on both sides of the discussion. The parties are not obliged to reach an agreement, but they are obliged to make reasonable efforts in the process of consultation, and to keep an open mind. Failure to reach an agreement does not mean that consultation and reasonable accommodation has not occurred. Accommodation involves a balancing of competing societal interests with Aboriginal and treaty rights. The Supreme Court of Canada has made it clear that balance and compromise are inherent in the notion of reconciliation as discussed in Haida.

21 I find that there is a duty on the Crown to consult in the circumstances of this case. The Crown has actual knowledge of the claims by the Homalco to Aboriginal title and rights in the area of the Bute Inlet. The basis of that knowledge includes the following:

1. The submissions of Homalco's statement of intent filed with the British Columbia Treaty Commis- sion;

2. Information regarding Homalco's traditional and present day use of the Homalco territory transmitted directly to British Columbia and Canada by Homalco elders and other representatives in the course of the treaty process and regional planning process.

3. Information regarding Homalco's traditional and present day use of the Homalco Territory contained in the Homalco Traditional Use Study and in the March 2003 Marine Resources Study prepared by Dorothy Kennedy and Randy Bouchard and transmitted to British Columbia during the course of treaty negotiations.

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4. Published information regarding Homalco traditional use and occupation of the Homalco Territory available on reasonable enquiry and Sliammon people, Sliammon lands, 1999.

5. The Homalco had made earlier submissions to MAFF regarding licensing applications with respect to the Marine Harvest fish farm.

22 The fish farm in question is close to the Church House reserve. The Church House reserve is not presently occupied by the Homalco but it is an area which they have rights to and where they may attend.

23 The Homalco have claimed the rights to harvest wild salmon stocks, clam beds, rock fish and other stocks and they are concerned about the management protection and enhancement of these resources within their claimed territory.

24 The Crown is aware that the Homalco claim Aboriginal rights with regard to the wild Pacific salmon stocks that spawn in rivers and creeks flowing into Bute Inlet. The Homalco argue that these wild stocks can pass by the fish farm and be affected by it. The Homalco also argue that their rights to harvest shell fish and clams at sites in the vicinity of the fish farm can be impacted. They argue that these rights are an integral part of their Aboriginal culture for their sustenance needs, social needs and trade.

25 There may be claims by other bands that overlap a portion of the territory claimed by the Homalco (the Sliammon and the Klahoose), however, I am satisfied that:

1. There is a reasonable probability that the Homalco will be able to establish Aboriginal title to at least some parts of the Homalco Territory including portions of Bute Inlet in the vicinity of Church House. The Homalco certainly have rights to the use and occupation of the reserve lands;

2. There is a substantial probability that the Homalco will be able to establish Aboriginal rights to harvest wild Pacific salmon and other marine resources of the Homalco territory.

Extent of the Scope and Content of the Obligation to Consult and Accommodate in This Case

26 The parties disagree as to the scope and content of the obligation to consult and whether there has been reasonable accommodation.

27 The Homalco argue that they have presented a strong prima facie case with regard to their claims to title and rights. The Homalco also argue that the evidence they have presented and the evidence which was submitted to the Ministry demonstrates the seriousness of their concerns and the serious potential risks to their Aboriginal rights to continue to harvest marine resources.

28 The Ministry, supported by Marine Harvest, argue that in this case the scope and content of the consultation is at the low end of the scale. They say that the obligation to consult relates only to the amendment to the license to substitute Atlantic salmon for Chinook salmon. They argue that any issues regarding the existence or location of the fish farm have been resolved or dealt with when the license was initially granted. They argue that the evidence submitted by the Homalco with regard to the potential harm against wild salmon stocks or marine life has already been considered when the Province conducted an extensive review of salmon aquaculture in the past. They argue that any new evidence submitted by the Homalco has been considered by the Ministry and is inconsistent with other expert opinions known to the Ministry. They argue that any risk to wild salmon or mar-

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ine life from the introduction of Atlantic salmon to the Church House fish farm is low or non-existent.

29 The parties have submitted voluminous affidavits including opinions of various scientists to support their positions. The parties have all agreed that it is not the function of the Court to decide which of these conflicting opinions is correct. Marine Harvest refers to the decision Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (Fed. T.D.), at 51. This was a case dealing with a federal decision to allow nuclear powered ships into Canadian ports. Voluminous affidavit material was provided which offered opinions on environmental risks. The Honourable Mr. Justice Strayer said:

It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected. Whether society would be well served by the Court per- forming either of these roles, which I gravely doubt, they are not the roles conferred upon it in the exercise of judicial review under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7]

They refer to this material, however, to support their arguments about the risks of potential harm or infringement of the rights claimed by the Homalco.

30 In their supplemental argument, the Homalco identify what they say are the potential adverse impacts on wild salmon arising from the introduction of Atlantic salmon to include the following:

(a) The potential of farmed Atlantic salmon from their net cages through accident, negligence or force of nature;

(b) The certainty of 'leakage' of Atlantic salmon from the aquaculture facility;

(c) The potential colonization of the spawning habitat of wild Pacific salmon stocks by escaped Atlantic salmon and their offspring;

(d) The potential displacement of wild stocks through competition from escaped Atlantic salmon for competition for food and other resources;

(e) The potential spread of diseases such as ISA, IHN and Kudoa from farmed Atlantic salmon to wild Pacific salmon stocks;

(f) The potential spread of sea lice from farmed Atlantic salmon to migrating wild Pacific salmon smolts causing significant declines in those stocks;

(g) The potential adverse impact on wild Pacific salmon stocks arising from the cumulative effect of any of these adverse impacts in the impact such as habitat loss, overfishing and climate change which are already causing a significant decline in wild stocks;

(h) The potential scale effects of the introduction of Atlantic salmon to the facility at issue when taken together with the adverse impacts arising from other salmon farms which may have an impact on the relevant stocks.

31 Regarding shell fish and other marine life the Homalco argue that the impact is effluent from the farm containing feces, food waste, and chemotheropeutants on nearby clam beds and other aquatic life forms may det-

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rimentally affect their interests.

32 They also raise the issue of the potential impact on marine mammals which may attempt to feed on the Atlantic salmon at the fish farm and be destroyed in order to prevent that.

33 The Homalco argue that the Ministry has failed to properly consider the significant evidence of potential adverse impacts on their Aboriginal rights and failed to apply proper principles of risk assessment. They also argue that the Ministry, in making its decision, has failed to properly apply the "precautionary principle".

34 I have been referred to large volumes of scientific information in the affidavits. However, as I said earlier, all of the parties agreed that the court should not become the arbitrator of scientific theories. I agree. However, what is clear from the material is that there are differences in scientific opinion about the effects and risks involved with salmon aquaculture, and particularly the farming of Atlantic salmon and its affect, or potential affect on wild salmon stocks. All of the scientists and panels involved in studying the issues confirm that there are serious gaps in knowledge and that research is needed to fill those gaps.

35 The Ministry referred to the Salmon Aquaculture Review. The review commenced in 1995 and the report was released August 1997. The study was conducted through the Environmental Assessment Office. Input was received from various groups including scientists and technical experts. The presenters included government agencies, local governments, Aboriginal people, industry, support services to the industry, environmental organizations, wild salmon commercial fishing organizations, recreational and tourism organizations and labour.

36 The review was to assess environmental, economic, social, cultural, heritage and health impacts related to issues of (1) escaped farm fish, (2) fish health, (3) waste discharges, (4) interactions between salmon farms and coastal mammals and other species, and (5) fish farm siting. The review did not deal with the issue of sea lice but that issue does not appear to have been identified at the time.

37 The Salmon Aquaculture Review in its summary, Volume 1, p. 4 stated the following:

The technical advisory team concluded that salmon farming in B.C. as presently practised and at current production levels, presents a low overall risk to the environment. However, this general finding is tempered by certain reservations. First, continuing concern about localized impacts on benthic (sea bed) organisms, shell fish populations and marine mammals suggests the need for additional measures to protect them. Second, significant gaps in the scientific knowledge on which the technical advisory teams' conclusions are based point to the need for monitoring and research in areas such as the potential impacts of interactions of escaped farm salmon with wild populations, identification and control of disease and disease pathogens, potential for disease transfer and impacts from antibiotic residues, and affects of waste discharges on water quality and sea bed life.

Science rarely has the ability to reach definitive conclusions on the risk or potential severity of the consequences of human interactions with complex ecosystems. In the face of this uncertainty, governments still need to make land and resource management decisions. Direction is provided by the precautionary principle which advocates the consideration and anticipation of the potential negative impacts of any activity before it is approved. Similarly, the concept of preventative management allows government to manage, to prevent certain specific events even though not all potential outcomes can be predicted. Where the risk of environmental impacts from an economically important activity is low but the consequences of damages may be significant, the public interest may best be served by dealing with risk, by being precautionary and invoking

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a series of measures, including: preventative management, adaptive management, and performance-based standards. In the case of salmon farming, this means reducing risk by setting high standards for farm operations based on the best available knowledge, and rigorously enforcing the implementation of those standards. And it means being prepared to alter management practices over time to take account of increased understanding of risk and different means of reducing it. This means that industry will be required to adapt to evolving management schemes.

38 The Ministry argues the response to this report included the development of extensive obligatory requirements dealing with the issues identified by the Salmon Aquaculture Review. The Ministry argues that as a result of this, the practices in salmon aquaculture have greatly improved and, therefore, argue the risks or any potential risks are reduced. It should be noted that since the review and the new regulations, the number of salmon aquaculture sites has also increased.

39 The thrust of the Salmon Aquaculture Review is not that its recommendations will address all of the concerns. The thrust of the review is that its recommendations are important in reducing potential risks, but that further research and ongoing preventative management and review are required.

40 The Homalco argue that the application of the precautionary principle or approach requires the Ministry to take steps to avoid the identified risks until further research allows the uncertainty with respect to the extent of those risks to be reduced or eliminated.

41 The respondent's arguments are essentially that the precautionary principle does not require government action, but simply says that lack of scientific knowledge is not an excuse to fail to take action. The respondents argue that the adaptive management approach that the government has taken is in line with precautionary principles and appropriate in this case.

42 In correspondence and in argument, the Homalco referred to the precautionary principle as defined in the Bergen Ministerial Declaration on Sustainable Development (1990) as follows:

In order to achieve sustainable development, policies must based on the precautionary principle. Environ- mental measures must anticipate, prevent and attack the cause of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

43 The Homalco take the position that there should be no amendment to allow the aquaculture of Atlantic salmon until the Ministry and Marine Harvest can prove that there is no risk to wild salmon stock. They argue, that the gaps in scientific knowledge and research make it impossible to prove that there is no risk to wild salmon stock. Therefore, they argue that no amendment should be allowed.

44 The respondents argue that the Homalco have misunderstood the precautionary principle. They argue that the principle really means that lack of scientific knowledge is not a basis for failing to pass regulations or controls to avoid potential serious or irreversible damage to the environment. They argue that it does not mean, nor are governments bound, to prevent all activities which might cause such harm however low the risk might be, or however speculative the risk might be, until it is proven as a certainty that there is no risk.

45 I agree with the respondents that the precautionary principle does not require governments to halt all activity which may pose some risk to the environment until that can be proven otherwise. The decisions on what

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activity to allow and how to control it often require a balancing of interests and concerns and a weighing of risks. This is exactly the kind of situation which requires consultation, discussion, exchange of information, and perhaps accommodation.

46 In some portions of the submissions, it appears the parties are confusing the issues of the obligation to consult and the appropriate accommodation after that consultation. However, I do not think I could say the adaptive management approach is not a proper means of accommodation, although there may be some other things that should be considered. Some of these may be the levels of enforcement of the regulations and monitoring those regulations, et cetera. These matters are certainly the proper subject of consultation and discussions about accommodation, and do not appear to have been considered here. I am sure there are many other matters as well that the parties can discuss, and that may amount to reasonable accommodation.

The Required Scope and Content of Consultation

47 The respondents argue that the only matters or issues that require consultation were those that involve the change in risks between the introduction of Atlantic as opposed to Chinook salmon at this fish farm. They argue the existence of the fish farm and any potential harm caused by fish farming in general has already been dealt with when the original license was granted. The respondents point to the fact that the prior Chief and council supported the establishment of this fish farm at this particular location. Marine Harvest had originally considered a different location, but with the encouragement of the Chief agreed to establish the fish farm at the present Church House location. The Chief at that time wrote a letter of support for the granting of a license for a fish farm for Chinook salmon. The original application had been for Chinook and Atlantic salmon but Marine Harvest withdrew its request with regard to Atlantic salmon. Shortly after the licences were granted there were new elections within the band and the Chief and council were replaced. The new Chief and council appeared to oppose fish farming in general and the fish farm at Church House in particular.

48 The Ministry has taken the position that it is only concerned with regard to the change of species which is the subject matter of consultation. Their position is that unless some new evidence was submitted to them to demonstrate some significant risk over and above that of salmon farming in general, to the Homalco's Aborigin- al rights or title, there was no need for anything more than the lowest level of consultation. They argue that any consultation necessary did occur by an exchange of correspondence and the accommodations that were necessary have occurred as a result of the implementation of the detailed Aquaculture Regulations, following the Sal- mon Aquaculture Review.

49 I agree that matters which have been extensively consulted on in the past do not require a full repetition of that consultation. However, that does not mean that these matters do not continue to be the subject of review and further consultation in light of additional knowledge or information. The fact that there may be some contro- versy about the new evidence or information provided does not mean that it is not a proper matter of consultation. The underlying message in the Salmon Aquaculture Review is that the present state of knowledge is incomplete, further research is required, and that the approaches to management of salmon aquaculture need to be reviewed and altered as the circumstances dictate.

50 The issue of siting of a particular aquaculture fish farm is not something that is concluded once and for all. Additional information may require a review of the siting and further consultation with the Homalco.

51 The fact that the Salmon Aquaculture Review occurred and that some Aboriginal people may have been involved in that study does not eliminate or reduce the need for consultation on a site by site basis. Different Ab-

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original groups may take different positions on aquaculture. The Homalco are a group of people whose claims to Aboriginal title and Aboriginal rights may well be affected by the actions of the government. It is the obligation of the Crown to consult with them and it is their entitlement to be consulted. In this case, the obligation to consult, and if appropriate, accommodate, is not at the lowest end of the spectrum as argued by the respondents. Nor is it the deep level of consultation that the petitioners argue.

What Has Occurred in This Case?

52 The Homalco take the position that the Ministry has failed to fulfill the obligation to consult and accommodate. They argue that the Ministry has failed to act in good faith through a meaningful process with the intention of substantially addressing the Homalco's concerns.

53 The Homalco and the Ministry both appear to lack any faith in the good will of the other. The Homalco argue that the Ministry has acted in bad faith. The Homalco argue that the Ministry approved the application by Marine Harvest on July 28, only eight days after sending notice of the application to Homalco and before Homalco could respond. The Homalco argue that there was no genuine consultation after that.

54 The Ministry argue and believe that the Homalco were not interested in consultation, but had simply decided that they no longer supported aquaculture of any kind. The Ministry believed that the Homalco were not really prepared to engage in meaningful consultation. The Ministry argues in any event that they did consult and have accommodated or addressed the concerns raised by the Homalco. The Ministry argues that the Homalco have not demonstrated any real risk or infringement on any of their claimed rights or title. The Ministry, therefore, argues that any obligation to consult is at the lower end of the scale in any event.

55 The Ministry received the application to amend the license in April 2004. However, it was not until July 20, 2004, that they wrote to the Homalco advising them of this application, enquiring as to how it may affect the Homalco. The delay is explained by the workload the Ministry experienced at the time. The letter does indicate that the Ministry would be available to discuss any issues with regard to the amended application. The same correspondence was sent to the Klahoose First Nation and the Sliammon First Nation. The Ministry believes they have overlapping claims to this area. The Klahoose and Sliammon First Nations did not respond to these letters.

56 The Homalco responded with a letter from their counsel on August 9, 2004. The letter requests a copy of the amended management plan and any studies or documentation furnished by Marine Harvest regarding any applications whether new or for amendments. The Homalco say they require this information in order to properly consult.

57 Prior to receiving that information, however, the initial response of the Chief and council was that they did not support the amendment application because of too many outstanding risks to the marine environment related to open netcage finfish aquaculture as it presently practiced at the site. They stated the introduction of the Atlantic salmon would only exacerbate those conditions.

58 The letter included a July 16, 2003 correspondence and a report by Dorothy Kennedy dealing with the traditional use of that area. The July 2003 letter sent was a letter sent by the Homalco's lawyers. It is just over eighteen pages long and deals with an earlier application by Marine Harvest to expand the aquaculture operation by adding two additional pens. The application appears to be made in order to provide additional space for the same number of fish. The material in support of that application and the Ministry's response indicates that it was believed by having additional area there would be better disbursement of waste. It appears that the application

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was not to add additional fish but merely to make more room for the fish that were there.

59 The letter of July 2003 refers to the Homalco's claim and the obligation to consult. The letter refers to the traditional and current uses of the Church House area by the Homalco including the harvesting of clams, oysters, mussels, sea urchins, prawns, herring, red snapper, rock fish and various kinds of wild salmon. The letter makes clear the importance of the wild salmon and other marine resources to the Homalco. The letter then identifies what the Homalco believe to be extremely serious risks to the wild salmon and environment as a result of aquaculture. The risks identified include:

1. Spread of disease;

2. Spread of parasites such as sea lice;

3. Introduction of non-native species, being Atlantic salmon and potential escapements and competition with wild salmon;

4. Destruction of mammals attempting to feed or to feed at the net pens;

5. Pollution from waste feed, excrement, pesticides, antibiotics.

60 The letter refers to the concerns about sea lice infestation in the Broughton Archipelago in June 2001, and the need to invoke the precautionary principle as a result of these concerns. The letter points out that the Church House site is on a wild salmon migration route and that the wild salmon species are already depressed making them more vulnerable.

61 The letter makes it clear that the Salmon Aquaculture Review cannot be relied upon because it was based on the then levels of production and as it identified, there was severe gaps in knowledge or research. The letter takes a position that most of the recommendations by the Salmon Aquaculture Review have not been meaningfully implemented. The letter takes a position that the precautionary principle must be applied "...where any risk of severe, irreversible impacts exist, that risk must be eliminated before those impacts have already occurred and it may then be too late to preserve the wild salmon stocks. It is even more important to apply the precautionary principle where what is at stake are the resources on which the exercise of the most fundamental rights of an Ab- original people depend." The letter refers to the Supreme Court of Canada decision 114957 Canada Ltée (Spray-Tech, Société d'arrosage) v. Hudson (Ville), [2001] S.C.J. No. 42 (S.C.C.), ¶31, where the precautionary principle is referred to as defined at ¶7 of The Burgen Ministerial Declaration on Sustainable Development (1990) as follows:

In order to achieve sustainable development, policies must be based on the precautionary principle. Envir- onmental measures must anticipate, prevent and attack the cause of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

62 The letter does recognize that there is little or no evidence of these risks but says the reason is because of the lack of research by the provincial or federal government.

63 The letter also refers to cumulative impacts they say could arise because of the location and a number of other fish farms in the vicinity.

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64 The letter does refer to the fact that the Homalco had approved Marine Harvest's original application including the one at Church House. The letter makes the point that those approvals were given before more current information was available particularly with regard to the potential impact of sea lice. The letter alleges a lack of full disclosure by the provincial government and Marine Harvest and says that vitiates any approval given.

65 It is not clear to me what the claims of failure to disclose are based on. The letter concludes stating that meaningful consultation and accommodation is required with regard to the application to add additional netcages that was made in 2003.

66 The August 9, 2004, letter also refers to a Johnstone Bute Coastal Plan and the submissions of the Homalco with regard to the area that includes the Church House site.

67 The letter points out that the Homalco have declared this area as a Xwémalhwu salmon enhancement and protected area, as a Xwémalhwu rock fish conservation area, and as a Xwémalhwu krill conservation area, and a Xwémalhwu heritage and protected zone. The letter takes the position that the amendment by adding Atlantic salmon and even the fish farm aquaculture as it is presently practiced is in conflict with those designations.

68 The letter included a report from a fisheries biologist that indicated the addition of Atlantic salmon would create new risks because of the possibility of escaped Atlantic salmon competing with native species. The report also indicates that the existing wild salmon stocks are already under pressure or decline.

69 The Homalco's lawyer sent a second letter dated August 9, 2004, which is a one page letter which en- closes the Band Council's Resolution regarding the application and the submission of the Homalco to the John- stone Bute Coastal Plan.

70 The letter again asks for the amended management plan and any studies or documentation furnished by Marine Harvest to support the application. The final paragraph of the letter indicates the Homalco would be pleased to meet in person and provide information on their concerns and Aboriginal perspectives and traditional, ecological knowledge, and the potential infringements on their rights and titles.

71 The August 8, 2004 Band Council Resolution that was attached resolves that the Band and council do not approve of open netcage fin fish aquaculture as presently practiced in British Columbia and in their traditional territory. The letter does not approve the facility at Church House or the amendment to add Atlantic salmon or any species to the operation.

72 The Church House management plan was provided to Homalco's counsel by email October 4, 2004. The Homalco counsel responded by email on the same date and itemized the information that they required, including the Management Plan; any amended management plans, any studies or reports subsequent to the first management plan for the site, any environmental monitoring results with respect to the site; any new policy or approach by the proponent to deal with potential escapees; any studies or updated studies by the proponent with respect to historical or current escapement data or monitoring of streams in the environs which they may have used in bringing forward this amendment or any previous amendment or the initial application; any specific consultation the proponent has carried out with my client with respect to learning of any Aboriginal interests in the site area and the surrounding Bute Inlet area, including any important fish streams or marine resources harvested close to or potentially affected by the introduction of yet another species to the site; any updated provincial policies on aquaculture, including specifically the introduction of Atlantic salmon and its potential harm to wild salmon stocks, clam beds, rock fish habitat, et cetera; any previous amendment applications or approvals, in-

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cluding rational for such approval and reconciliation with the potential harm to my client's interest.

73 A letter dated October 7, 2004, from Homalco's counsel to the Ministry confirms a telephone conversation between counsel and Ministry representatives on September 28, 2004. Their letter repeats the submissions opposing the application and lists them. They ask for information about how Marine Harvest will monitor and respond to potential Atlantic salmon escapes. The letter again speaks of information necessary for consultation and asks if the Minister has taken into account the Johnstone Bute Coastal Plan including the Homalco submission and the conservation declarations made by the Homalco. The letter refers to the Johnson Bute Coastal Plan with regard to Unit 15 where Church House is located and that plan provides only tenure modifications relating to anchoring or waste management should be considered.

74 The letter expresses concern that the Ministry refers to Marine Harvest by the term "client". The letter confirms that the Ministry representative, Mr. Westlake, will review all of the materials submitted and provide a written response. The letter confirms that Mr. Westlake is prepared to meet with the Homalco and their counsel to review the process by which applications are organized and co-ordinate the status of outstanding applications. It also confirms that communications with regard to the application should be made through counsel and not directly to the Homalco. The letter states at p. 4:

However, I have now advised our client that you confirm that no aquaculture application would be decided until meaningful consultation had occurred with Homalco. By this I understand that you agree that no decision will be made until any and all follow-up questions and information requests for original or amended management plans, studies or research information provided by the various proponents to your Ministry regarding each and every application has been provided to my client by your Ministry.

75 A similar letter was sent on October 28, 2004, including further requests for specific information including the following:

...any studies completed by the proponent since the original management plan for the site, including results of environmental monitoring, letters to the proponent approving any previous amendments, new technical information or reports to the ministry has been provided,and will use in relation to making such a decision.

76 The Ministry responded to this by an email dated October 29, 2004 indicating they were working on a substantive response to the October 7 letter. The email also discusses the request for clarification about potential earlier escapes.

77 The Homalco counsel responded by email November 2, 2004, referring to the earlier escape of Chinook salmon that they say occurred, and asking what remediation was proposed.

78 The Homalco counsel sent an email to the Ministry on November 3, 2004 requesting a copy of Marine Harvest's fish health management plan for the Church House site. This is a document that was submitted by Marine Harvest to the Ministry as a condition of its licence. It again confirms that the Chief and council are prepared to meet with the Ministry to discuss their concerns.

79 Mr. Westlake did provide a letter dated November 22, 2004 responding to the concerns raised by the Homalco. The letter does point out that the fish health management plan is proprietary, that is, the property of Marine Harvest, and cannot be released by the Ministry. The template for a fish health management plan is referred to. Mr. Westlake indicates that he believes that this information and that available on the electronic web-

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site should be sufficient for a response. The letter refers Chief Blaney to the Ministry of Water, Land and Air Protections, FinFish Agriculture Waste Control Regulations and a contact person where Chief Blaney can obtain information that has been gathered by the licence holder in fulfillment of those regulations.

80 The letter makes it clear that the position of the Ministry is that the Homalco have already approved the initial site, and that the Ministry is seeking information in support of specific concerns relating to the addition of Atlantic salmon. The letter also makes it clear that the Ministry will consider information relating to potential infringements that may have arisen through the operation of the facility since the initial decision to grant the licence.

81 The letter deals with the report of the biologist indicating that it had been reviewed by the Ministry's biologist and states:

In their view, the concerns raised in the report are not sufficient to result in a rejection of the species amendment application.

82 There is no further discussion about why that conclusion has been reached.

83 The letter states that the anthropological information referred to in the July 2003 letter was relevant to the original licensing, and confirms that the Heritage Conservation Act, [RSBC 1996] c. 187 protects archaeological resources from disturbance or damage. The letter asks for any specific aspects of the anthropological information contained in the Kennedy report of July 31, 2003 that relates to potential infringement as a result of the amendment application.

84 The letter states the Johnstone-Bute Coastal Plan is not in effect, but that the Ministry will refer to it for general guidance.

85 The letter confirms that Atlantic salmon are an approved species for FinFish Aquaculture.

86 The letter states that the Ministry has received no reports of escapes from the Church House facility, and that the regulations require reporting of any escapes. The letter confirms that Marine Harvest's plan to deal with escapes is contained in the management plan which was forwarded to the Homalco or their counsel. The letter refers to the regulatory framework that deals with escapes and its requirements that each aquaculture facility implemented Best Management Practices document describing how they will meet the regulations.

87 The letter confirmed that the Department of Fisheries and Oceans ("DFO") did not object to the application pending negotiation of an authorization to "Harmfully Alter, Disrupt and Destroy" habitat under the federal Fisheries Act.

88 The letter confirms that it is aware of the Homalco's opposition to the application, and will ensure that the Ministry's statutory decision maker is aware of their position.

89 The letter confirms the Ministry's interest in further discussions with Homalco, and suggests that a meeting could be arranged to discuss those concerns, particularly the monitoring of potential escapes and regarding the proximity of the fish farm to shellfish resources. The letter confirms that Marine Harvest has expressed a willingness to participate in those discussions. The letter also refers to the fact that Marine Harvest is participating in the development of a multi-stakeholder area management process for finfish aquaculture that includes areas within the Homalco's asserted traditional territory.

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90 The letter concludes:

Unless there are specific infringement concerns, MAFF will be making a decision on this application on December 9, 2004. If there are specific infringement concerns related to this amendment application, we ask that you provide them to us by the end of November.

91 The Homalco's counsel responded by letter dated November 29, 2004 indicating that they have significant substantive concerns and will be providing a substantive response in reply. The letter confirmed that Homalco had an interest in meeting with Mr. Westlake to attempt to address those concerns. The letter confirms that counsel had been asked by their clients to coordinate that meeting time.

92 The Ministry replied by letter November 30, 2004 confirming that the Ministry would be happy to meet with Homalco and their counsel, but that they required a written copy of the substantive concerns so that they could be reviewed ahead of time and an agenda be formulated. The letter confirms that a decision will be made on the application on December 9, 2004. The letter asks for the substantive response no later than December 2.

93 The letter confirms that if a meeting is not possible, the concerns of the Homalco will be taken into consideration.

94 Chief Blaney responded to that letter by his of December 2, 2004, expressing his disappointment in the response from the Ministry, and seeking meaningful consultation by way of a meeting between the Ministry and the Chief and council. He confirms that, in his opinion, meaningful consultation should include meeting with them and addressing their concerns prior to making a decision. He confirms that further submissions will be delivered. He states that the short timeline given by the Ministry is not reasonable, especially given that it took approximately a month for the Ministry to respond to counsel's letter at the end of October 2004. The letter asks that a decision not be made prior to the Ministry knowing the Homalco's concerns and meeting with them.

95 The Ministry responded by letter dated December 3, 2004 confirming a willingness to meet with the Homalco, and confirming the need to develop an agenda before any meeting. The letter does state, however, that they are prepared to meet with the band and counsel, either on December 6 or December 8.

96 Chief Blaney responded by letter dated December 3, 2004, and stated that a number of requests for information remained outstanding. He asked that at any meeting Ministry staff be prepared to substantially and meaningfully respond to numerous concerns and impacts on the Homalco rights that have already been raised. He expresses concern that substantial and meaningful consultations cannot occur if the meeting does not occur until December 8, when the decision is to be made December 9, 2004. He formally requests an extension of the deadline for making a decision on the application. He confirms that he will be unavailable on December 6 or 8, because he is required to be in Ottawa and asks for an extension of the deadline so that a proper meeting can occur. He confirms that Homalco's further submissions would be sent within a week.

97 The actual approval by the Ministry was granted on December 8, 2004, and the Homalco were notified of this on December 10, 2004. They were told a decision had made, but not the nature of the decision. When learning of the decision, Homalco's counsel immediately forwarded their further submissions to the Ministry on December 10, 2004.

98 The Ministry advised Chief Blaney, by letter dated December 17, 2004, that the decision was made before receiving the December 10 submission, but offers to continue discussions. The letter confirms that the Min-

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istry will review the materials received on December 10 and 13 provide a response. The letter also confirms that the Ministry is prepared to meet and discuss the response with the Homalco, and consider any new information when renewals of the licence occur. The letter confirms that the application to amend the licence was approved.

99 The Homalco's counsel then sent a letter December 20, 2004, seeking the name of the statutory decision maker and a copy of the decision as soon as possible.

100 The Ministry provided a response to the December 10 submissions by letter dated January 18, 2005, after these proceedings were commenced. The covering letter pointed out that many of the concerns appeared to relate to the site and the original licence rather than the amendment to allow Atlantic salmon, as opposed to Chinook salmon. The letter confirms that the response deals with those issues, with the concerns about the site as well as the amendment. The letter also states that the Ministry is committed to meaningful consultation, including meetings with the Homalco, if requested.

101 The response consists of a twenty-seven page document that deals with the concerns raised in the material of the Homalco's on an item by item basis. Attached to the report were thirteen appendices referred to in the response. The response is extensive, and I accept that it is an honest attempt by Mr. Westlake to address the concerns raised. Basically, the position is that the government does apply the precautionary principle in dealing with aquaculture by way of an adapted management strategy and by implementation of detailed regulations controlling aquaculture. The Ministry states that the application of the precautionary approach includes an assessment of the proposed risks, incorporates mitigation and management strategies and adjustments based on experience. The response confirms that aquaculture has to develop in consideration of its possible effects on other marine resources and in a precautionary manner.

102 The response also takes the position that the amendment to allow Atlantic salmon in the Church House facility will not produce any infringement of asserted Aboriginal rights, and then addresses the assertions made by the Homalco on an item by item basis.

103 The response at page 9 indicates that the Ministry's position is that the initial approval by the Homalco of the Church House site is binding on the Homalco. The response states that the Ministry will continue to respond to new scientific information where appropriate, but that new information does not invalidate the processes or approvals that predate that information. The response is that this information will be considered in future management strategies if appropriate. The response reviews the submissions made by the Homalco and the evidence in support of those submissions, and comments on it.

104 Page 20 of the report deals with the requirement by DFO for an authorization to Harmfully Alter, Dis- rupt and Destroy habitat ("HADD"). The response essentially is that that is a matter between DFO and Marine Harvest, and it was not a condition of the amendment. The Homalco are simply referred to the DFO. The response is not particularly helpful to the Homalco. I would have expected that the Ministry would be concerned about whether Marine Harvest was compliant with all of the federal regulations as well as the provincial regulations.

105 The response concludes this is an initial response provided for Homalco's consideration and future discussion. The response also states that the Ministry is committed to meaningful consultation, including meetings as are required to fully understand the Homalco's position and accommodate any unidentified infringements on rights or title.

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Has Sufficient or Appropriate Consultation Occurred?

106 I agree with the Ministry that all of their responses are relevant. They form an excellent basis for continuing discussion. However, the responses by themselves do not amount to the level of consultation that I find was necessary in this case. I understand why the Ministry might conclude that the Homalco's statement of concerns were really a statement of position, on which they had little interest in moving. Despite the strong position that the Homalco appeared to take, however, the communications from them made it clear that they wished to discuss their position with the Ministry. They did not assert, at any time, that they were not prepared to change their position as a result of further consultation.

107 I do not agree with the Homalco's assertion that the Ministry was not prepared to engage in meaningful consultation because it had already made up its mind with regard to this application. The Homalco argue that the Ministry has been guilty of bad faith, or sharp dealing, because the licence has the word "Approved" dated July 28, 2004. I understand why this would initially give them some concern, but the explanation given by the Min- istry is reasonable. The "Approved" simply indicates when the Ministry's biologist had reviewed the application to make an initial determination as to whether it meets their requirements. It is clear throughout the correspondence that the Ministry understood that consultation with the Homalco was necessary before a final determination was made as to whether the "Approval" would be made effective. The effective date of the approval was Decem- ber 8, 2004. I am not convinced that the Ministry has been guilty of bad faith or sharp dealing as alleged by the Homalco.

108 I find that the Ministry has erred in failing to consult to the extent necessary in these particular circumstances. The Ministry believed that the change of species from Chinook to Atlantic salmon was not a significant amendment, and did not have any different impact on the claims or rights of the Homalco than the original licence. Based on that starting point, they believed that the level of consultation required was not great. Their approach also was that it was only with regard to the effect of the amendment itself that they were required to consult. They believed that the matter would proceed fairly quickly, and when correspondence continued until late 2004, found themselves in a situation where Marine Harvest was making inquiries as to when the amendment might be granted, because they had been raising smolts and needed to place them somewhere. This combination of circumstances led the Ministry to proceed with the final approval of the amendment before there was an opportunity for them to meet with the Homalco, discuss their concerns and the Ministry's response. The concerns raised by the Homalco were not frivolous or vexatious. The Ministry does not agree with the scientific opinions presented by the Homalco, and the response required was significantly more than that contained in the letter of November 22, 2004. The letter of January 18, 2005 is a good foundation for the face to face meetings that consultation requires. Consultation, in some cases, may include the parties educating each other as to their concerns and responses to those concerns. The concerns raised may not necessarily be accepted, but they may still lead to some reasonable accommodation of those concerns. This type of consultation should have occurred before the amendment to the existing licence was approved.

Standard of Review

109 On the issue of standard of review, the counsel referred to the comments of the Supreme Court of Canada in Haida at ¶61 to 63 as follows:

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degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: , [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director of Investigation and Research) v. Southam Inc. , [1997] 1 S.C.R. 748.

¶ 62 The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action "viewed as a whole, ac- commodates the collective aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, "in ... information and consultation the concept of reasonableness must come into play. ... So long as every reasonable effort is made to inform and to consult, such efforts would suffice ...". The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.

110 In determining the standard of review on a judicial review procedure, the courts often distinguish between questions of law where the standard is correctness, and questions of fact or mixed fact in law, where the court may show a degree of deference to the decision maker. The deference recognizes in some cases the expertise of the decision maker in an area where the courts may not have the same expertise. In cases such as this, the decision maker may have expertise which the court does not have with regard to the analysis of scientific evidence. However, the decision maker does not have any special expertise over and above that of the court in determining when the obligation to consult arises. In determining whether the decision maker has correctly decided whether an obligation to consult has arisen, the standard of review is correctness.

Request for Information

111 The Homalco argue that there has been a breach of the obligation to consult because of a failure to provide information. Certainly, the obligation to consult includes the provision of relevant information that the Ministry may have in its possession. A great deal of information was provided, but there were some items that were still in contention between the parties. Some of the information that was only provided at the hearing included some survey results conducted on behalf of the Ministry or Marine Harvest of the seabed beneath and around the fish netcages. The Ministry failed to provide this information simply as a result of an oversight not with any intention to deprive the Homalco of information they required in order to engage in meaningful consultation.

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112 The Homalco were provided with the management plan relating to the Church House site, or at least part of it, but did not receive a copy of the fish health management plan. Marine Harvest took the position that the information contained in that plan is proprietary information. They are concerned that if it is delivered to the Homalco that it could be used for purposes other than consultation. They are concerned that it may get into the hands of their competitors, or could be used by the Homalco themselves, if they decided to enter the aquaculture business. The Homalco are, at present, opposed to aquaculture in the area they claim as their traditional territory, but that has not always been the case. They were involved in applications to allow the aquaculture of Atlantic salmon in the Bute Inlet as recently as 2002. It does not appear that they are presently pursuing those applications. Marine Harvest is also concerned that the information may be delivered to the Georgia Strait Alliance, an organization opposed to aquaculture, and with whom the Homalco are presently cooperating.

113 I accept Marine Harvest's argument that the Fish Health Management Plan, which is a 218 page comprehensive document, does contain confidential proprietary information. The document specifically details operational instructions and procedures during all stages of production, specifies operational instructions and procedures determined by their veterinarian or fish house staff. The document is for the use of the operators' site staff in training, and in day-to-day contact with the fish by the fish house staff. Marine Harvest also use this document in making decisions about fish health. The Fish Health Management also applies to sites other than the Church House site. I accept Marine Harvest's argument that it contains the collective experience and expertise in producing Chinook and Atlantic salmon. This expertise is derived from extensive research and experience of their experts, and enables Marine Harvest to maintain a competitive advantage over its competitors.

114 The Best Management Practices Plan may also contain confidential information. However, it was my understanding that this plan had been disclosed. The plan contains the process by which Marine Harvest meets its obligations under the regulations dealing with aquaculture. Some of the information may not be confidential or proprietary. However, I accept that some of it may contain in-house specific procedures, technologies and techniques developed and used by Marine Harvest. Marine Harvest says that this information is based on expertise that has allowed it to be the only aquaculture company in North America that is both IS014001 and IS09001 certified. Marine Harvest does say that it is prepared to share this information, provided there are confidentiality arrangements and communication protocol agreements in place.

115 The Ministry and Marine Harvest point out that the template for the fish health management plan, that has been provided to the Homalco, which they were able to access on the Ministry's website, gives the Homalco a great deal of information about the sort of things which would be contained in the plan. Marine Harvest indicates that they are prepared to sit down with the Homalco and discuss the contents of the fish health management plan, as they do with the Ministry, but they wish some assurances to be made regarding the confidentiality of that information.

116 I find that the concerns raised by Marine Harvest are reasonable. I would not order the production of the fish health management plan without specific terms that protect the interests of Marine Harvest, if actual production of the plan is necessary. Marine Harvest's suggestion that they meet and discuss the contents of the plan with the Homalco under certain conditions may be sufficient to meet the needs of all of the parties.

The Remedy

117 The Homalco argue that the only appropriate remedy is a declaration that the Ministry has failed to properly consult, and an order quashing the approval of the amendment. They say an order should then be made

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that all of the Atlantic salmon presently at the Church House site be removed until consultation and, if necessary, reasonable accommodation is made for their concerns. They say this is necessary to put them in the position they were in before December 8, 2004.

118 The Ministry and Marine Harvest argue that such an order is unnecessary and inappropriate in these circumstances. They argue that even on the evidence provided by the Homalco, the risks that they raise regarding potential infringement of their Aboriginal rights are at the low end of the scale. Marine Harvest argues that it would cost them approximately $300,000.00 to move the Atlantic salmon that are presently at the Church House site. They also argue that this would have a significant impact on their potential earnings because they would lose the capacity for rearing salmon that they have at the Church House site. In other words, even if they had somewhere else to place these salmon, they will still lose the opportunity to use the Church House site and profit from the activities there. They estimate that the value of the salmon presently at Church House will be approximately 15 million dollars when the salmon reaches the stage where they are able to harvest them.

119 I find that it would be unreasonable to order the immediate removal of all of the Atlantic salmon presently at the Church House site.

120 Marine Harvest, in their argument, points out that the court has a discretion to exercise in determining what remedy to apply in a judicial review proceeding. They cite from Brown and Evans, Judicial Review of Ad- ministrative Action in Canada:

The exercise of the court's supervisory jurisdiction is discretionary. That is, even where a litigant has established a ground on which the courts may intervene in the administrative process, relief will not necessarily be granted: the court may decline to provide a remedy for reasons other than the merits of the application for a judicial review.

(Judicial Review of Administrative Action in Canada Volume I Toronto: canvas back, loose leaf updated August 2003 release chapter 3 ... pages 3-1).

121 Marine Harvest points to other cases in which the court did grant a remedy short of attempting to place the parties back in their original positions.

122 Some of those cases are:

Cheslatta Carrier Nation v. British Columbia (Project Assessment Director) (1998), 53 B.C.L.R. (3d) 1 (B.C. S.C.). In this case, Chief Justice Williams, as he then was, attempted to balance the rights and potential preju- dices to the parties, and made orders requiring the respondents to fulfil their obligation to consult meaningfully and properly and made directions for production of information.

They refer to the Gitxsan Houses v. British Columbia (Minister of Forests), 2002 BCSC 1701 (B.C. S.C.). In that case, Mr. Justice Tysoe dealt with the issue of remedies, beginning at ¶100. There Mr. Justice Tysoe also referred to a decision Haida Nation v. British Columbia (Minister of Forests), 2002 BCCA 147 (B.C. C.A.) (Haida No. 1) where the court declined to quash a decision of the Ministry even though consultation had not occurred. Haida No. 1 was a decision of the Court of Appeal, and the Court of Appeal indicated that a decision on whether or not to quash the licence itself, or the transfer of the licence, is better determined after the extent of any infringement had been determined.

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123 Similarly, in Gitxsan, supra, Mr. Justice Tysoe determined at ¶106:

...it is my view that it is preferable to first make a declaration with respect to the duty of consultation on an interim basis and to then allow the parties to undertake a proper process of consultation and accommodation. If the process does not succeed, the matter can be brought back before the Court for further directions or further declarations.

124 Mr. Justice Tysoe also dealt with the issue of the disclosure of information. In that case, he found that there should be discussion between the parties as to the exact type and extent of information to be provided before the court makes a determination as to whether specific documents should be provided. (¶113).

125 Marine Harvest suggests that an appropriate order in this case that would balance the interests of all of the parties would include:

1. an adjournment of the application for judicial review;

2. a declaration of the need for further consultation between the Homalco and the Crown;

3. some direction as to the scope and content of the consultation, and potentially the schedule for consultation;

4. an encouragement to Marine Harvest to participate in an appropriate way in the consultation (which Marine Harvest is prepared to do);

5. some direction on the provision of information, subject to protection for confidentiality with respect to the fish health management plan and the best management plan;

6. providing leave to the parties to seek further directions; and

7. providing leave to the Homalco to pursue its remedy in the event that they are of the view that further consultation and accommodation are inadequate.

126 I find that the remedy suggested by Marine Harvest is appropriate.

127 Therefore, I make the following orders:

1. I adjourn the application for judicial review generally;

2. I declare that the Minister had, and continues to have, a legally enforceable duty to the Homalco to consult with them in good faith, and to endeavour to seek workable accommodation between their interests and the long-term objectives of the Crown and Marine Harvest, and the public interest, both Ab- original and non-Aboriginal. This includes issues surrounding the location and management of the Church House fish farm and the amendment to the existing licence to allow the introduction of Atlantic salmon;

3. The parties are at liberty to apply for further directions if they are unable to agree on a schedule for consultation;

4. Marine Harvest is to participate in an appropriate way in the consultation;

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5. Marine Harvest will provide information subject to protection of confidentiality with respect to the fish health management plan and the best management plan. The parties have liberty to apply if they are unable to agree under the specific terms required to protect the confidentiality of the information;

6. Marine Harvest will not add any more Atlantic salmon to the Church House site until the process of consultation and potential accommodation has been completed, and the Ministry confirms the amendment of the licence, if it does so;

7. The Ministry is to approach this consultation with an open mind and be prepared to withdraw its approval of the amendment if, after reasonable consultation, it determines that it is necessary to do so, or add whatever conditions appear to be necessary for reasonable accommodation of the concerns of the Homalco;

8. The parties have leave to apply for further directions;

9. The Homalco have leave to bring the matter back before the court in the event that they are of the view that further consultation and accommodation are inadequate.

128 In making this order I have considered the factors referred to in Marine Harvest's argument:

Marine Harvest argues the factors to consider are:

a) that there is no direct or immediate interference with Homalco's claimed rights arising from the farm raising Atlantic salmon rather than Pacific. I would point out, however, that it is not simply direct or immediate interference which is a concern. It is also indirect and potential future interference. This is the very subject matter of the consultation. This is also a matter on which the various scientists differ;

b) concerns of the Homalco respecting risks to wild salmon and to the marine environment or substant- ively addressed through the regulatory requirements which govern the operation of the fish farm (e.g. protection against escapes, and measures respecting fish health, waste management and general protection of the environment).

I have considered the regulatory requirements, but again, that is not the end of the matter. Those are the proper subject matters of discussion during consultation. There may well be additional measures which should be taken to address the concerns of the Homalco.

129 Marine Harvest also refers to:

a) The fact that there was consultation prior to the decision, further submission issued by the Homalco after the decision (on December 10, 2004), and the substantive response giving additional reasons by the Crown on January 18, 2005;

b) This does indicate a willingness to consult and is a good starting point;

c) The recognition that the obligation to consult and accommodate is an evolving one, which was only fully articulated by the Supreme Court of Canada on November 18, 2004 (in Haida and in Taku River), only twenty days before the decision of MAFF was made on December 8, 2004. Each of the parties to the consultation can take direction respecting rights and obligations from these cases.

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However, I note the recognition of the obligation to consult is not a new one and did not arise simply out of the Supreme Court of Canada decisions referred to. The obligation to consult has been recognized by the courts for a considerable period of time, and the British Columbia Court of Appeal decision in Haida certainly made it clear that the province had this obligation whether or not they agreed with that decision or were appealing it.

d) The fact that Marine Harvest, as a third party, has relied on the December 8, 2004 decision, and would suffer significant damages if the decision was quashed and the salmon requested to be removed. This would be particularly unjust if the only issue is further consultation and a similar decision may be the ultimate result.

I have pointed out the estimated financial cost to Marine Harvest. I also find that they are entitled to rely on the amendment granted to them.

e) The fact that further consultation may well satisfy the Homalco in their concerns, or identify some further accommodation which could be implemented, in other words, that setting aside the decision may be premature.

I agree that this is a reasonable matter to consider, including the willingness of Marine Harvest to participate in that consultation.

f) The fact that continuing with the Atlantic salmon in the fish farm will not cause irreparable harm (e.g. unlike carrying on with timber harvesting or building a road). If the ultimate decision of the court, after a period of further consultation, is that the December 8, 2004 decision should be set aside, the salmon could then be removed. The potential for any harm during an interim period allowing for further consultation is low (remote).

To some extent this is part of the argument that is made and the disagreement between the scientists. The consultation, including the early portion of the consultation, could be specific steps that may be taken to further minimize the risk above and beyond the existing regulations, or steps that could be taken to ensure that the existing regulations are enforced.

130 I have also considered the evidence submitted about Marine Harvest's practices. Marine Harvest's evidence is that they take seriously all of their obligations under the regulations, and pride themselves in the manner in which they operate their fish farms. They state they are the world's largest aquaculture company, and the largest producer and suppler of farmed salmon. They point out that they own or operate 19 salmon farms in Brit- ish Columbia, all but five of which are currently licensed for both Chinook and Atlantic salmon production. They also point out that they own and operate two land-based fresh water hatcheries that produce almost all of the smolts that they use.

131 Their position is that they are at the leading edge of development in aquaculture and are committed to conducting their operations to maximize environmental protection of fish health. They argue that they impose their own stringent environmental management and fish health policies, as well as applying all of the governmental regulations and policies.

132 Marine Harvest points out that its environmental management system for its fin fish production sites is registered to the Environmental Management System Standard IS014001: 1996 which is an international stand-

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ard that specifies a process for controlling and improving a company's environmental performance. In addition to the creation and implementation of strict policies and procedures, there must be a monitoring system in place to monitor compliance. The standards also require internal and external audits to ensure compliance. Marine Harvest is also IS09001 certified, which deals with quality management systems, including product quality, management style, customer relations and other business related issues. Marine Harvest points out that they are one of only five aquaculture companies worldwide who hold both IS014001 and IS09001 registrations. Their management plan includes a goal to eliminate all escapes from marine netcage operations, and a detailed fish escape prevention and response plan. They say that this plan is implemented daily.

133 I should deal with the comment made by Mr. Westlake in his affidavit #2 at paragraph 25, which reads as follows:

In my view, if I were to recommend that MAFF deny Marine Harvest's application to farm Atlantic salmon on the basis that escapees might cause one or any of the various harms that are identified from time to time, I could not recommend approval of Atlantic or any other salmon farming at all in British Columbia.

134 It was suggested that this was one of the principle reasons that Mr. Westlake recommended approval of the amendment. Counsel for the Ministry argues that Mr. Westlake is merely indicating the issues with regard to escapees have already been considered at length, and that the appropriate regulations and policies are in place to deal with that issue. The Ministry argues this is really not a new or significant issue.

135 Clearly, the Ministry must deal with each application on its own merits, and consult and address the individual concerns of the Homalco with regard to this specific sight. If, after consultation, reasonable accommodation of the concerns raised by the Homalco required a refusal to allow the amendment, then that would be the decision that the Ministry must make. The Ministry must deal with the concerns of potential infringements on a sight by sight basis, not based on any general policy.

136 There was a significant amount of argument about the admissibility and consideration of certain evidence, including the scientific evidence. Counsel have made it clear that they do not feel it is the court's position to chose between the scientific opinions. Therefore, I have not found it necessary to consider the arguments about the validity or qualifications of the various scientists making their opinions. The only use I have made of the scientific evidence, is for the purposes of concluding that there is some basis for the Homalco's concerns without deciding the strength or weight that should be given to those opinions of concern.

137 The Homalco did argue that the provincial jurisdiction under s. 92(5) of the Constitution Act 1867 which is the basis of the authority for the Fisheries Act, [RSBC 1996) c. 149 and the way in which the regulations are framed as prohibitions or requirements for permission, supports the argument that the purpose and the constitutional obligations in the Fisheries Act are to conserve the stock of fish and to protect the fish environ- rd ment. They referred to Peter Hogg, Constitutional Law 3 Edition at 29.5(c) as follows:

The management of public lands in section 92(5) [of the Constitution Act 1867] must include measures to conserve the stock of fish and to protect the fish environment. [my emphasis added]

138 No authority was cited for the proposition that the Fisheries Act and regulations must conserve the stock of fish and protect the fish environment. I conclude that all Hogg was saying is that the powers that the province has under s. 92(5) must include measures to conserve, not that the province must pass legislation and regulations to conserve stock. He is merely stating what the province can do as a result of its legislative author-

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ity, not what it must do.

Relief under Paragraph 7 of the Petition

139 Paragraph 7 of the petition applies for the following relief:

7. An interlocutory and permanent injunction prohibiting the Respondent, Marine Harvest Canada, from placing Atlantic salmon in the Church House fish farm without proper authorization from the Department of Fisheries and Oceans for the harmful alteration, disruption or destruction ["HADD"] of fish habitat pursuant to s. 35(2) of the Fisheries Act and without obtaining a licence pursuant to s. 55 of the Fisheries (General) Regulations.

140 Marine Harvest argues that relief applied for in paragraph 7 of the petition is not available under Rule 10 of the Rules of Court and that it is not available under the Judicial Review Procedures Act.

141 I am satisfied that if it were necessary, directions could be given as to how to resolve this issue to eliminate any concerns whether the petition under Rule 10 was the appropriate method of pursuing this relief. Rule 2(3) states:

(3) The court shall not wholly set aside a proceeding on the ground that it was required to be commenced by an originating process other than the one employed.

142 In other words, appropriate directions or orders could be made to allow the matter to be resolved, even though it had been commenced by way of petition.

143 I agree with the petitioner that an injunction can be included in claims for relief under the Judicial Re- view Procedures Act.

144 Marine Harvest also argues that this claim for relief really relates to the exercise of the jurisdiction of the federal Minister of Fisheries and Oceans, and that the petitioners have started separate proceedings for relief in the federal court where these matters should be resolved.

145 The Homalco respond by saying that they are simply attempting to prevent a breach of a federal statute, where that breach may have a direct impact upon themselves. They point to the decision Pugliese v. Canada (National Capital Commission) (1979), 97 D.L.R. (3d) 631 (S.C.C.). The Supreme Court of Canada found that individual homeowners had a right of action for damages to their property. They say that damage arose when the defendants breached the Ontario Water Resources Act by abstracting more than 10,000 gallons of water per day without a permit. They argued that the removal of under-surface water caused their properties to subside and suffer damage. The Homalco argue that this demonstrates that an individual may have the right to sue a party for breach of a statute.

146 The Federal Fisheries Act provides that someone shall not cause a HADD without a permit. In this case, there is discussion between Marine Harvest and the Department of Fisheries as to whether they require a permit to cause a HADD in this case. The initial operation of the Church House site operated under an agreement not to cause a HADD. Marine Harvest is in the process of negotiating with the Department of Fisheries to determine whether a permit to cause a HADD is necessary, or should be granted. There is evidence that the Department of Fisheries may require a permit, but it is not clear on the evidence that Marine Harvest is operating in contravention of the Fisheries Act. The Department of Fisheries and Oceans did send a letter to the Ministry on July 14,

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2004 indicating that they were not opposed to the amendment of the licence, provided Marine Harvest obtained a HADD. Marine Harvest was in the process of negotiating for a HADD, but only as part of an overall process to convert permits not to cause a HADD to a permit to cause a HADD. It is not clear that they were unable to continue to operate with the existing permit.

147 Marine Harvest also points out that the petition has not alleged that the Church House facility has caused a HADD, or is likely to cause a HADD. Nor is there any evidentiary foundation to conclude that the facility has caused a HADD, or is expected to cause a HADD. The Ministry has referred to the decision Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 (S.C.C.). This dealt with a judicial review of a Cabinet decision relating to missile testing. The opponents were concerned about risks of nuclear war and alleged that their s. 7 Charter rights, life and security of the person were being infringed. The court said that the government did not have a duty to refrain from the action it proposed to take based on the Charter rights, and the allegation of infringement was based on speculation or hypotheses about possible effects of the government action (¶29). The court in Operation Dismantle said the following at ¶34 through ¶36:

¶ 34 A similar concern with the problems inherent in basing relief on the prediction of future events is found in the principles relating to injunctive relief. Professor Sharpe, Injunctions and Specific [page458] Perform- ance (1983), clearly articulates the difficulties in issuing an injunction where the alleged harm is prospective, at pp. 30-31:

All injunctions are future looking in the sense that they are intended to prevent or avoid harm rather than compensate for an injury already suffered....

Where the harm to the plaintiff has yet to occur the problems of prediction are encountered. Here, the plaintiff sues quia timet — because he fears — and the judgment as to the propriety of injunctive relief must be made without the advantage of actual evidence as to the nature of harm inflicted on the plaintiff. The court is asked to predict that harm will occur in the future and that the harm is of a type that ought to be prevented by injunction.

¶ 35 The general principle with respect to such injunctions appears to be that "there must be a high degree of probability that the harm will in fact occur": (Sharpe, supra, at p. 31). In Redland Bricks Ltd. v. Morris, [1970] A.C. 652, at p. 665, per Lord Upjohn, the House of Lords laid down four general propositions concerning the circumstances in which mandatory injunctive relief could be granted on the basis of prospective harm. The first of these stated [at p. 665]:

1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.... It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.

¶ 36 It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probable future harm demonstrates the courts' reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights.

148 I conclude that this is a matter better resolved through the process provided by the Fisheries Act, rather than making findings with only a portion of the evidence available. In these circumstances, even if I have discre-

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tion or the authority to grant an injunction, I decline to do so on the evidence before me.

149 I am satisfied that this is a matter that is more properly handled, at this stage, through the Department of Fisheries and Oceans. Certainly, I anticipate the Department of Fisheries and Oceans would consult with the Homalco on the issue of whether a permit for a HADD should be granted, or whether an agreement to prevent a HADD is appropriate. Those matters, however, may be the subject of the proceedings in the federal court, and I do not wish to make any further comment on them.

150 The parties have not addressed the issue of costs. They are at liberty to do so if they are unable to agree on that issue.

Application granted.

FN* Corrigenda issued by the court on March 23 and April 21, 2005 have been incorporated herein.

END OF DOCUMENT

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2009 CarswellBC 341, 2009 BCCA 68, [2009] B.C.W.L.D. 1753, [2009] B.C.W.L.D. 1575, 76 R.P.R. (4th) 213, 41 C.E.L.R. (3d) 159, 89 B.C.L.R. (4th) 273, [2009] 2 C.N.L.R. 212, 266 B.C.A.C. 250, 449 W.A.C. 250, [2009] 9 W.W.R. 92, 308 D.L.R. (4th) 285, 175 A.C.W.S. (3d) 270

Kwikwetlem First Nation v. British Columbia Transmission Corp.

In the Matter of the Utilities Commission Act, R.S.B.C. 1996, c. 473, and the Application by the British Columbia Transmission Corporation for a Certificate of Public Convenience and Necessity for the Interior to Lower Mainland Project

The Kwikwetlem First Nation (Appellant / Applicant / Intervenor) and British Columbia Transmission Corpora- tion, British Columbia Hydro and Power Authority, and British Columbia Utilities Commission (Respondents)

Nlaka'pamux Nation Tribal Council, Okanagan Nation Alliance and Upper Nicola Indian Band (Appellants / Applicants / Intervenors) and British Columbia Utilities Commission, British Columbia Transmission Corpora- tion, and British Columbia Hydro and Power Authority (Respondents)

British Columbia Court of Appeal

Donald, Huddart, Bauman JJ.A.

Heard: November 26-27, 2008 Judgment: February 18, 2009 Docket: Vancouver CA035864, CA035928

Counsel: G.J. McDade, Q.C. for Appellant, Kwikwetlem First Nation

T. Howard, B.C. Stadfeld for Appellants, Nlaka'pamux Nation Tribal Council, Okanagan Nation Alliance, Upper Nicola Indian Band

K.B. Bergner, A. Bespflug for Respondent, British Columbia Hydro and Power Authority

A.W. Carpenter for Respondent, British Columbia Transmission Corporation

Subject: Public; Property; Environmental

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Public law --- Public utilities — Regulatory boards — Practice and procedure — Statutory appeals — Grounds for appeal — Miscellaneous

Duty to consult — First Nations intervenor made application for certificate of public convenience and necessity ("CPCN") for transmission line project proposed by respondent, British Columbia Transmission Corporation ("BCTC") — First Nations intervenor appealed decision of British Columbia Utilities Commission ("Commission") — Appeal allowed — Order was made that Commission reconsider scoping decision — Duty to consult with regard to CPCN process was acknowledged — Commission had obligation to inquire into adequacy of consultation before granting CPCN — If consultation was to be meaningful, it must take place when project was being defined and continue until project was completed — Pre-application stage of Environmental Assess- ment Certificate ("EAC") process in case appeared to have synchronized well with BCTC's practice of first seeking CPCN and not making formal application for EAC until CPCN was granted — Question Commission must decide was whether consultation efforts up to point of decision were adequate.

Aboriginal law --- Reserves and real property — Fiduciary duty

British Columbia Hydro & Power Authority v. British Columbia (Utilities Commission) (1996), 36 Admin. L.R. (2d) 249, 20 B.C.L.R. (3d) 106, 71 B.C.A.C. 271, 117 W.A.C. 271, 1996 CarswellBC 352 (B.C. C.A.) — referred to

British Columbia Transmission Corp., Re (2006), 2006 CarswellBC 3694 (B.C. Utilities Comm.) — considered

British Columbia Transmission Corp., Re (March 5, 2008), Doc. L-6-08 (B.C. Utilities Comm.) — considered

Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) (2009), 2009 CarswellBC 340, 2009 BCCA 67, 76 R.P.R. (4th) 159 (B.C. C.A.) — followed

Kwikwetlem First Nation v. British Columbia Transmission Corp. (2008), 2008 CarswellBC 958, 2008

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BCCA 208 (B.C. C.A. [In Chambers]) — considered

Osoyoos Indian Band v. Oliver (Town) (2001), 95 B.C.L.R. (3d) 22, [2002] 1 W.W.R. 23, 2001 SCC 85, 2001 CarswellBC 2703, 2001 CarswellBC 2704, 45 R.P.R. (3d) 1, 278 N.R. 201, 75 L.C.R. 1, [2002] 1 C.N.L.R. 271, 206 D.L.R. (4th) 385, [2001] 3 S.C.R. 746, 160 B.C.A.C. 171, 261 W.A.C. 171 (S.C.C.) — referred to

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004), 19 Admin. L.R. (4th) 165, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) 327 N.R. 133, 36 B.C.L.R. (4th) 370, 206 B.C.A.C. 132, 338 W.A.C. 132, 11 C.E.L.R. (3d) 49, [2005] 1 C.N.L.R. 366, 26 R.P.R. (4th) 50, 2004 CarswellBC 2654, 2004 CarswellBC 2655, 2004 SCC 74, 245 D.L.R. (4th) 193, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director) [2004] 3 S.C.R. 550, [2005] 3 W.W.R. 403 (S.C.C.) — considered

Statutes considered:

Business Corporations Act, S.B.C. 2002, c. 57

Generally — referred to

Environmental Assessment Act, R.S.B.C. 1996, c. 119

Generally — referred to

Environmental Assessment Act, S.B.C. 2002, c. 43

Generally — referred to

s. 8(1)(a) — considered

s. 8(1)(c) — considered

s. 9 — referred to

s. 9(1)(a) — considered

s. 9(1)(c) — considered

s. 9(2) — considered

s. 10(1)(c) — considered

s. 11 — referred to

s. 11(1) — considered

s. 11(2)(f) — considered

s. 11(2)(g) — considered

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s. 11(3) — considered

s. 16 — considered

s. 17 — referred to

s. 17(1) — considered

s. 17(2)(a) — considered

s. 17(2)(b) — considered

s. 17(2)(c) — considered

s. 17(3) — considered

s. 17(4) — considered

s. 30 — considered

s. 50(2)(e) — considered

Hydro and Power Authority Act, R.S.B.C. 1996, c. 212

Generally — referred to

Transmission Corporation Act, S.B.C. 2003, c. 44

Generally — referred to

Utilities Commission Act, R.S.B.C. 1996, c. 473

Generally — referred to

s. 45 — referred to

s. 45(1) — considered

s. 45(3) — considered

s. 45(6) — considered

s. 45(7) — considered

s. 45(8) — considered

s. 45(9) — considered

s. 46(1) — considered

s. 46(3) — considered

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s. 46(3.1) [en. 2008, c. 13, s. 9(b)] — considered

s. 46(3.2) [en. 2008, c. 13, s. 9(b)] — considered

s. 71 — referred to

s. 99 — considered

s. 101 — pursuant to

s. 101(1) — considered

s. 101(5) — considered

Regulations considered:

Environmental Assessment Act, S.B.C. 2002, c. 43

Concurrent Approval Regulation, B.C. Reg. 371/2002

s. 3(2)(a) — referred to

APPEAL by First Nations intervenor from decision of British Columbia Utilities Commission.

Huddart J.A.:

1 This appeal under s. 101 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, questions the approach of the British Columbia Utilities Commission ("the Commission") to the application of the principles of the Crown's duty to consult about and, if necessary, accommodate asserted Aboriginal interests on an application under s. 45 of that Act, for a certificate of public convenience and necessity ("CPCN") for a transmission line project proposed by the respondent, British Columbia Transmission Corporation ("BCTC").

2 The line is said by its proponents to be necessary because the lower mainland's current energy supply will soon be insufficient to meet the needs of its growing population: the bulk of the province's electrical energy is generated in the interior of the province while the bulk of the electrical load is located at the coast. BCTC's preferred plan to remedy this problem is to build a new 500 kilovolt alternating current transmission line from the Nicola substation near Merritt to the Meridian substation in Coquitlam, a distance of about 246 kilometres (the "ILM Project"). It requires transmission work at both the Nicola and Meridian substations and the construction of a series capacitor station at the midpoint of the line.

3 The proposed line originates, terminates, or passes through the traditional territory of each of the four appellants. Most of the line will follow an existing right of way, although parts will need widening. About 40 kilometres of new right of way will be required in the Fraser Canyon and Fraser Valley. The respondents agree the ILM Project has the potential to affect Aboriginal interests, including title, requires a CPCN, and has been designated a reviewable project under the Environmental Assessment Act, S.B.C. 2002, c. 43.

4 The Nlaka'pamux Nation Tribal Council represents the collective interests of the Nlaka'pamux Nation of which there are seven member bands. Their territory is generally situated in the lower portion of the Fraser River watershed and across portions of the Thompson River watershed. Their neighbour, the Okanagan Nation, con-

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sists of seven member bands whose collective interests are represented by the Okanagan Nation Alliance. The Upper Nicola Indian Band, one of the member bands of the Okanagan Nation, is uniquely affected by the ILM Project as it asserts particular stewardship rights in the area around Merritt where the Nicola substation is located. The Kwikwetlem First Nation is a relatively small band whose territory encompasses the Coquitlam River watershed and adjacent lands and waterways. Its territory, largely taken up by the development of a hydro dam and the urban centres, Port Coquitlam and Coquitlam, contains the Meridian substation, the terminus of the proposed transmission line.

5 The appellants all registered with the Commission as intervenors on BCTC's s. 45 application and asked to lead evidence at an oral hearing about whether the Crown had fulfilled its duty to consult before seeking a CPCN for the ILM Project. Their essential complaint is that the Commission's refusal to permit them to lead evidence about the consultation process in that proceeding effectively precludes consideration of alternatives to the ILM Project as a solution to the lower mainland's anticipated energy shortage.

6 The question arises in an appeal from a decision by which the Commission determined it need not consider the adequacy of the Crown's consultation and accommodation efforts with First Nations when determining whether public convenience and necessity require the proposed extension of the province's transmission system: British Columbia Transmission Corp., Re (March 5, 2008), Doc. L-6-08 (B.C. Utilities Comm.), First Nations Scoping Issue (the "scoping decision"). In the Commission's view, it could and should defer any assessment of whether the Crown's duty of consultation and accommodation with regard to the ILM Project had been fulfilled to the ministers with power to decide whether to issue an environmental assessment certificate under s. 17(3) of the Environmental Assessment Act (an "EAC").

7 The Commission based its scoping decision on two earlier decisions concerning CPCN applications: Brit- ish Columbia Transmission Corp., Re [2006 CarswellBC 3694 (B.C. Utilities Comm.)], B.C.U.C. Decision, 7 July 2006, Commission Order No. C-4-06 ("VITR") and British Columbia Hydro & Power Authority, Re (July 12, 2007), Doc. C-8-07, (B.C. Utilities Comm.) ("Revelstoke"). It is the reasoning in VITR, amplified in Revels- toke and the scoping decision, this Court is asked to review.

8 As a quasi-judicial tribunal with authority to decide questions of law on applications under its governing statute, the Commission has the jurisdiction and capacity to decide the constitutional question of whether the duty to consult exists and if so, whether that duty has been met with regard to the subject matter before it: Carri- er Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 (B.C. C.A.) at paras. 35 to 50. The question on this appeal is whether the Commission also has the obligation to consider and decide whether that duty has been discharged on an application for a CPCN under s. 45 of the Utilities Commission Act as it did on the application under s. 71 in Carrier Sekani.

9 The Commission is a regulatory agency of the provincial government which operates under and administers that Act. Its primary responsibility is the supervision of British Columbia's natural gas and electricity utilities "to achieve a balance in the public interest between monopoly, where monopoly is accepted as necessary, and protection to the consumer provided by competition", subject to the government's direction on energy policy. At the heart of its regulatory function is the grant of monopoly through certification of public convenience and necessity. (See British Columbia Hydro & Power Authority v. British Columbia (Utilities Commission) (1996), 20 B.C.L.R. (3d) 106, 36 Admin. L.R. (2d) 249 (B.C. C.A.), at paras. 46 and 48.)

10 BCTC is a Crown corporation, incorporated under the Business Corporations Act, S.B.C. 2002, c. 57. In

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undertaking the ILM Project, it is supported by another Crown corporation, the British Columbia Hydro and Power Authority ("BC Hydro"), incorporated under the Hydro and Power Authority Act, R.S.B.C. 1996, c. 212. Under power granted to BCTC by the Transmission Corporation Act, S.B.C. 2003, c. 44, and a series of agreements with BC Hydro, BCTC is responsible for operating and managing BC Hydro's transmission lines, which form the majority of British Columbia's electrical transmission system. Planning for and building enhancements or extensions to the transmission system, and obtaining the regulatory approvals they require, are included in BCTC's responsibilities; BC Hydro retains responsibility for consultation with First Nations regarding them. Like the appellants, BC Hydro registered as an intervenor on BCTC's application for a CPCN for the ILM Project.

The Issues

11 It is common ground that the ILM Project has the potential to affect adversely the asserted rights and title of the appellants, that its proposal invoked the Crown's consultation and accommodation duty, and that the Crown's duty with regard to the ILM Project has not yet been fully discharged. The broad issue raised by the scoping decision under appeal is the role of the Commission in assessing the adequacy of the Crown's consultation efforts before granting a CPCN for a project that may adversely affect Aboriginal title. The narrower issue is whether the Commission's decision to defer that assessment to the ministers is reasonable.

12 In granting leave, Levine J.A. defined the issue as "whether [the Commission] may issue a CPCN without considering whether the Crown's duty to consult and accommodate First Nations, to that stage of the approval process has been met": Kwikwetlem First Nation v. British Columbia Transmission Corp., 2008 BCCA 208 (B.C. C.A. [In Chambers]). It may be thought this issue was settled when this Court stated at para. 51 in Carrier Sekani:

Not only has the Commission the ability to decide the consultation issue, it is the only appropriate forum to decide the issue in a timely way. Furthermore, the honour of the Crown obliges it to do so. As a body to which powers have been delegated by the Crown, it must not deny the appellant timely access to a decision- maker with authority over the subject matter.

13 The Commission's constitutional duty was to consider whether the Crown's constitutional duty of consultation had been fulfilled with respect to the subject matter of the application. Thus, before it certified the ILM Project as necessary and convenient in the public interest, it was required to determine when the Crown's duty to consult with regard to that project arose, the scope of that duty, and whether it was fulfilled. The Commission did not look at its task that way or undertake that analysis. It decided that the government had put in place a process for consultation and accommodation with First Nations that required a ministerial decision as to whether the Crown had fulfilled these legal obligations before the ILM Project could proceed and that the Commission should defer to that process.

14 As I will explain, I am persuaded the reasons expressed at paras. 52 to 57 for the conclusion reached at para. 51 in Carrier Sekani apply with equal force to an application for a CPCN and the Commission erred in law when it refused to consider the appellant's challenge to the consultation process developed by BC Hydro. However, in anticipation of that potential conclusion, the respondents asked this Court to step back from a narrow view having regard only to the Commission's mandate, and to find that, in this case, the Commission both acknowledged and fulfilled its constitutional duty when it deferred consideration of the adequacy of BC Hydro's consultation and accommodation efforts to the ministers' review on the EAC application. In my view, the nature

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and effect of the CPCN decision obliged the Commission to assess the adequacy of the consultation and accommodation efforts of BC Hydro on the issues relevant to the s. 45 proceeding. The Commission's refusal to consider whether the honour of the Crown was maintained to the point of its decision was based on a misunderstanding of the import of the relevant jurisprudence and was unreasonable.

15 I would remit the scoping decision to the Commission for reconsideration in accordance with this Court's opinion, once certified, and direct that the effect of the CPCN be suspended for the purpose of determining whether the Crown's duty to consult and accommodate the appellants had been met up to that decision point. (See Utilities Commission Act, ss. 99 and 101(5).)

The Relevant Statutory Regimes

The CPCN Process

Utilities Commission Act

45.(1) Except as otherwise provided, after September 11, 1980, a person must not begin the construction or operation of a public utility plant or system, or an extension of either, without first obtaining from the commission a certificate that public convenience and necessity require or will require the construction or operation.

.....

(3) Nothing in subsection (2) [deemed CPCN for pre-1980 projects] authorizes the construction or operation of an extension that is a reviewable project under the Environmental Assessment Act.

.....

(6) A public utility must file with the commission at least once each year a statement in a form prescribed by the commission of the extensions to its facilities that it plans to construct.

(7) Except as otherwise provided, a privilege, concession or franchise granted to a public utility by a municipality or other public authority after September 11, 1980 is not valid unless approved by the commission.

(8) The commission must not give its approval unless it determines that the privilege, concession or franchise proposed is necessary for the public convenience and properly conserves the public interest.

(9) In giving its approval, the commission

(a) must grant a certificate of public convenience and necessity, and

(b) may impose conditions about

(i) the duration and termination of the privilege, concession or franchise, or

(ii) construction, equipment, maintenance, rates or service,

as the public convenience and interest reasonably require.

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46.(1) An applicant for a certificate of public convenience and necessity must file with the commission information, material, evidence and documents that the commission prescribes.

.....

(3) Subject to subsections (3.1) and (3.2), the commission may issue or refuse to issue the certificate, or may issue a certificate of public convenience and necessity for the construction or operation of a part only of the proposed facility, line, plant, system or extension, or for the partial exercise only of a right or privilege, and may attach to the exercise of the right or privilege granted by the certificate, terms, including conditions about the duration of the right or privilege under this Act as, in its judgment, the public convenience or necessity may require.

(3.1) In deciding whether to issue a certificate under subsection (3), the commission must consider

(a) the government's energy objectives,

(b) the most recent long-term resource plan filed by the public utility under section 44.1, if any, and

(c) whether the application for the certificate is consistent with the requirements imposed on the public utility under sections 64.01 [achieving electricity self-sufficiency by 2016] and 64.02 [achieving the goal that 90% of electricity be generated from clean or renewable resources], if applicable.

(3.2) Section (3.1) does not apply if the commission considers that the matters addressed in the application for the certificate were determined to be in the public interest in the course of considering a long-term resource plan under section 44.1.

.....

99. The commission may reconsider, vary or rescind a decision, order, rule or regulation made by it, and may rehear an application before deciding it.

.....

101.(1) An appeal lies from a decision or order of the commission to the Court of Appeal with leave of a justice of that court.

.....

(5) On the determination of the questions involved in the appeal, the Court of Appeal must certify its opinion to the commission, and an order of the commission must conform to that opinion.

16 The Commission issues CPCN Application Guidelines to assist public utilities and others in the preparation of CPCN applications. The preface to the guidelines issued March 2004 includes this advice:

The scope of the information requirement for a specific application will depend on the nature of the project and the issues that it raises. Project proponents are encouraged to initiate discussions with appropriate government agencies and the public very early in the project planning stage in order to obtain an appreciation of the issues to be addressed prior to the filing of the application.

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CPCN Applications may be supported by resource plans and/or action plans prepared pursuant to the Re- source Planning Guidelines issued in December 2003. The resource plan and/or action plans may deal with significant aspects of project justification, particularly the need for the project and the assessment of the costs and benefits of the project and alternatives.

According to the Guidelines, the application should include the following:

2. Project Description

.....

(iv) identification and preliminary assessment of any impacts by the project on the physical, biological and social environments or on the public, including First Nations; proposals for reducing negative impacts and obtaining the maximum benefits from positive impacts; and the cost to the project of implementing the proposals;

.....

3. Project Justification

.....

(ii) a study comparing the costs, benefits and associated risks of the project and alternatives, which estimates the value of all of the costs and benefits of each option or, where not quantifiable, identifies the cost or benefit and states that it cannot be quantified;

(iii) a statement identifying any significant risks to successful completion of the project;

.....

4. Public Consultation

(i) a description of the Applicant's public information and consultation program, including the names of groups, agencies or individuals consulted, as well as a summary of the issues and concerns discussed, mitigation proposals explored, decisions taken, and items to be resolved.

.....

6. Other Applications and Approvals

(i) a list of all approvals, permits, licences or authorizations required under federal, provincial and municipal law; and

(ii) a summary of the material conditions that are anticipated in the approvals and confirmation that the costs of complying with these conditions are included in the cost estimate of the Application.

The EAC Process

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Environmental Assessment Act

8.(1) Despite any other enactment, a person must not

(a) undertake or carry on any activity that is a reviewable project,

.....

unless

.....

9.(1) Despite any other enactment, a minister who administers another enactment or an employee or agent of the government or of a municipality or regional district, must not issue an approval under another enactment for a person to

(a) undertake or carry on an activity that is a reviewable project,

.....

unless satisfied that

.....

(2) Despite any other enactment, an approval under another enactment is without effect if it is issued contrary to subsection (1).

10.(1) The executive director by order

.....

(c) if the executive director considers that a reviewable project may have a significant adverse environmental, economic, social, heritage or health effect, taking into account practical means of preventing or reducing to an acceptable level any potential adverse effects of the project, may determine that

(i) an environmental assessment certificate is required for the project, and

(ii) the proponent may not proceed with the project without an assessment .

.....

11.(1) If the executive director makes a determination set out in section 10 (1) (c) for a reviewable project, the executive director must also determine by order

(a) the scope of the required assessment of the reviewable project, and

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(b) the procedures and methods for conducting the assessment, including for conducting a review of the proponent's application under section 16, as part of the assessment.

(2) The executive director's discretion under subsection (1) includes but is not limited to the discretion to specify by order one or more of the following:

.....

(f) the persons and organizations, including but not limited to the public, first nations, government agencies and, if warranted in the executive director's opinion, neighbouring jurisdictions, to be consulted by the proponent or the Environmental Assessment Office during the assessment, and the means by which the persons and organizations are to be provided with notice of the assessment, access to information during the assessment and opportunities to be consulted;

(g) the opportunities for the persons and organizations specified under paragraph (f), and for the proponent, to provide comments during the assessment of the reviewable project;

(3) The assessment of the potential effects of a reviewable project must take into account and reflect government policy identified for the executive director, during the course of the assessment, by a government agency or organization responsible for the identified policy area.

.....

16.(1) The proponent of a reviewable project for which an environmental assessment certificate is required under section 10 (1) (c) may apply for an environmental assessment certificate by applying in writing to the executive director and paying the prescribed fee, if any, in the prescribed manner.

(2) An application for an environmental assessment certificate must contain the information that the executive director requires.

(3) The executive director must not accept the application for review unless he or she has determined that it contains the required information.

.....

17.(1) On completion of an assessment of a reviewable project ... the executive director ... must refer the proponent's application for an environmental assessment certificate to the ministers for a decision under subsection (3).

(2) A referral under subsection (1) must be accompanied by

(a) an assessment report prepared by the executive director ...,

(b) the recommendations, if any, of the executive director, ..., and

(3) On receipt of a referral under subsection (1), the ministers

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(a) must consider the assessment report and any recommendations accompanying the assessment report,

(b) may consider any other matters that they consider relevant to the public interest in making their decision on the application, and

(i) issue an environmental assessment certificate to the proponent, and attach any conditions to the certificate that the ministers consider necessary,

(ii) refuse to issue the certificate to the proponent, or

(iii) order that further assessment be carried out, in accordance with the scope, procedures and methods specified by the ministers.

(4) The executive director must deliver to the proponent the decision and the environmental assessment certificate, if granted.

.....

30.(1) At any time during the assessment of a reviewable project under this Act, and before a decision under section 17(3) about the proponent's application for an environmental assessment certificate ..., the minister by order may suspend the assessment until the outcome of any investigation, inquiry, hearing or other process that

(a) is being or will be conducted by any of the following or any combination of the following:

(i) the government of British Columbia, including any agency, board or commission of British Columbia;

(ii) the government of Canada;

(iii) a municipality or regional district in British Columbia;

(iv) a jurisdiction bordering on British Columbia;

(v) another organization, and

(b) is material, in the opinion of the minister, to the assessment, under this Act, of the reviewable project.

(2) If a time limit is in effect under this Act at the time that an assessment is suspended under subsection (1), the minister may suspend the time limit until the assessment resumes.

17 The Guide to the Environmental Assessment Process published by the Environmental Assessment Office ("EAO") outlines the general framework for a typical environmental assessment. Key to that process are an order issued under s. 11 of the Act determining the scope of the assessment and the procedures and methods to be used for that particular project, and the terms of reference, which define the information the proponent must provide in its application. Once the executive director (or a delegate) accepts the application for review (s. 16),

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he has 180 days to complete the review, prepare an assessment report and refer the application to the designated ministers. As noted in the Guide at page 18, "Government agency, First Nation and public review of the application, any formal public comment period, and opportunities for the proponent to respond to issues raised, are nor- mally scheduled within the 180 days."

18 The assessment report documents the findings of the assessment, including the issues raised and how they have been or could be addressed. It may be accompanied by recommendations, with reasons, of the executive director. Currently, the responsible ministers are the Minister of the Environment and the minister designated as responsible for the category of the reviewable project, in this case, the Minister of Energy, Mines and Petro- leum Resources. After the application is referred to them, they have 45 days to decide whether to issue an EAC or require further assessment (s. 17). At that stage, the Guide notes at page 20, the ministers must consider whether the province has fulfilled its legal obligations to First Nations.

19 The parties' disagreement about the nature and effect of these processes and their interplay is at the root of this appeal. However, they agree that both a CPCN and EAC are required before the ILM Project can proceed. They do not suggest that either s. 9 of the Environmental Assessment Act or s. 45(3) of the Utilities Com- mission Act requires the EAC to be issued before the CPCN can be considered and issued. The wording of those statutes suggests otherwise. While s. 30 of the Environmental Assessment Act permits the ministers to suspend the EAC assessment until a CPCN is issued, there is no comparable provision in the Utilities Commission Act.

20 The Commission, like the respondents, takes the view the CPCN process should be completed before an application for an EAC is made. In the appellants' view, this practical approach is possible only if the Commis- sion is required to ensure the Crown has fulfilled its duty to consult about and, if necessary, accommodate their interests during the preliminary planning stage before it grants a CPCN for a specific project.

Relevant Background

21 This brief summary of events (taken from the CPCN application) is intended only to help in understanding the procedural issue before this Court. The appellants do not accept the respondents' descriptions of their consultation efforts as "statements of facts". This evidence could not be tested because of the scoping decision.

22 BC Hydro began its consultation efforts when it contacted First Nations in August 2006; in Kwikwe- tlem's case, by telephone on 16 August 2006. At that time BCTC was considering four options: upgrade the existing infrastructure, build a new transmission line, non-wire options such as local energy generation and conservation, and doing nothing. Both the upgrade and the new line would require a CPCN; only the new line required an EAC. From August to October 2006, BC Hydro met with 46 First Nations and Tribal Councils to provide an overview of these options (including four potential routes for a new line) and the required regulatory processes.

23 Recognizing a new transmission line would require an EAC, and that consultation with First Nations would be required for both that option and the alternative upgrade, BCTC began the pre-application stage of the EAC process by filing a project description with the EAO on 4 December 2006. Two weeks later, the executive director of the EAO issued an order under s. 10(1)(c) of the Environmental Assessment Act stating that the proposed new transmission line was a reviewable project, required an EAC, and could not proceed without an assessment. Meanwhile, BC Hydro continued its efforts to consult with Aboriginal groups through the spring of 2007 by holding three more "Rounds of Consultation" and the first round of "Community Open Houses".

24 In February 2007, the EAO held an initial Technical Working Group meeting attended by 26 Aboriginal

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Groups where an overview of the ILM Project and the environmental assessment process was provided together with draft Terms of Reference on which comment was invited. In March, the EAO provided a draft of its procedural order issued pursuant to s. 11 of the Environmental Assessment Act and draft technical discipline Work Plans to 60 First Nations and 7 Tribal Councils for comment.

25 In May 2007, BCTC made its decision to pursue the ILM Project as its preferred option to increase the province's transmission capacity. On 31 May 2007, the executive director issued a s. 11 procedural order, establishing a formal consultation process for the ILM Project. At para. 4.1 of that order, it set out the scope of the assessment it required:

4.1 The scope of assessment for the Project will include consideration of the potential for:

4.1.1 potential adverse environmental, social, economic, health and heritage effects and practical means to prevent or reduce to an acceptable level any such potential adverse effects; and,

4.1.2 potential adverse effects on First Nation's Aboriginal interests, and to the extent appropriate, ways to avoid, mitigate or otherwise accommodate such potential adverse effects.

26 In Schedule B, the order identified 60 First Nations and 7 Tribal Councils with whom consultation was required. At recital F, it stated that the project area lay in their "asserted traditional territories", and at recital G, that BCTC had "held discussions or attempted to hold discussions" with them "with respect to their interests in the Project, including potential effects" on their "potential Aboriginal interests".

27 The order also affirmed that the Project Assessment Director had established a Working Group which was to contain representation from First Nations as well as federal, provincial and local government agencies (paras. 7.1, 7.2). The order contained directives that the proponent meet with the Working Group (para. 7.2), consult with First Nations (para. 9.1), and seek advice from First Nations on the means of that consultation (para. 9.2).

28 The order specified BCTC was to include a summary of its consultation efforts to date and a proposal for future consultation with First Nations and the comments of First Nations on both in its EAC application (paras. 13.1 and 13.2). In para. 15.5 the order required BCTC to provide a written report on the potential adverse effects of the project, including those on First Nations' Aboriginal interests, and its intentions as to how it would address those issues. The order also stated that, based on these submissions, the Project Assessment Director might require BCTC (or the EAO) to undertake further measures to ensure adequate consultation occurred during the review of the EAC application (paras. 13.3, 13.4, 15.6). Finally, the order stated that the Project Assessment Director would consult with BCTC, First Nations and other members of the Working Group in his preparation of the draft assessment report, "as a basis for a decision by Ministers" under s. 17(3) of the Act.

29 On 6 June 2007, BC Hydro sent a letter to the 67 First Nations and Tribal Councils identified by the EAO, notifying them of BCTC's decision to seek approvals for a new transmission line. That letter included this explanation:

In deciding to pursue the new transmission line alternative, BCTC believes that it has selected the alternative that is the most effective and energy efficient solution to increase the province's transmission capacity. BCTC will be required to present its assessment of the alternatives in its application for the approval for the Interior to Lower Mainland Transmission Project (ILM Project) to the British Columbia Utilities Commis-

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sion (BCUC). The BCUC has the final decision-making authority on whether to approve BCTC's recommended solution and may choose an alternative solution, or combination of solutions.

30 In June, BC Hydro held a second round of Community Open Houses. In August, it began discussions with Aboriginal Groups about the collection of traditional land use information. On 17 September, BCTC filed draft Terms of Reference and a Screening Level Environmental Report for the ILM Project with the EAO. (The Terms of Reference were approved by the EAO on 23 May 2008 after the Commission released the scoping decision.)

31 On 5 November 2007, BCTC filed its application for a CPCN for the ILM Project with the Commission and provided a copy to each of the appellants and other identified First Nations and Tribal Councils. The appellants and two others (Sto:lo Nation Chiefs Council and Boston Bar First Nation) registered as intervenors. In its application, BCTC identified the alternative solutions it had considered and rejected. It also included three routing options other than that of the ILM Project.

32 At a procedural conference held 20 December 2007, the Commission established a process for deciding whether it should consider the adequacy of consultation and accommodation efforts as part of its determination whether to grant a CPCN (the "scoping issue"). That process was to include written submissions from the applicant (BCTC) and intervenors (including BC Hydro).

33 Five First Nations and Tribal Councils responded to BCTC's invitation to express their interest in making submissions regarding the scoping issue. In early 2008, the Commission received written submissions from BCTC, BC Hydro, the four appellants, and two other intervenors.

34 On 21 February 2008, four days before the scheduled Oral Phase of Argument on the scoping issue, the Commission Secretary advised BCTC and the intervenors that the oral hearing would not be held, and that the Commission agreed with BC Hydro and BCTC that it "should not consider the adequacy of consultation and accommodation efforts on the ILM Project as part of its determinations in deciding whether to grant a CPCN for the ILM Project" for reasons it expected to issue by 7 March 2008. Its reasons for the scoping decision under appeal followed on 5 March 2008.

The Scoping Decision

35 The Commission's focus in this decision was on its role in assessing the adequacy of the Crown's consultation with regard to the ILM Project it was asked to certify as necessary and convenient in the public interest. The Commission found it could and should rely on the environmental assessment process to ensure the Crown fulfilled its duties to First Nations at all stages of the ILM Project, as it had in VITR and Revelstoke.

36 The Commission Secretary explained (at p. 2-3):

In both the VITR Decision and the Revelstoke Decision, the Commission relied on the Environmental As- sessment Office ("EAO") process and as concluded in the VITR Decision:

The government has legislated regulatory approvals that must be obtained before VITR proceeds. Pur- suant to Section 8 of the EAA, BCTC requires an EAC for VITR. Given the Section 11 Procedural Or- der and the Terms of Reference for VITR, the Commission Panel is satisfied that a process is in place for consultation and, if necessary, accommodation. In the circumstances of VITR, the EAO approval, if

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granted, will follow some time after this decision. Through this legislation, the government has ensured that the project will not proceed until consultation and, if necessary, accommodation has also concluded. The Commission Panel concludes that it should not look beyond, and can rely on, this regulatory scheme established by the government (p. 48).

In the Revelstoke Unit 5 Decision, the Commission Panel said:

The Provincial and Federal Governments have created legislation, the Environmental Assessment Act and the Canadian Environmental Assessment Act, which ensure that regulatory approvals must be obtained before Revelstoke Unit 5 can proceed and that the project will not proceed until consultation and, if necessary, accommodation has been completed (p.34).

In the instant case, BCTC, pursuant to the Environmental Assessment Act, requires an Environmental As- sessment Certificate ("EAC") for the ILM Project. BCTC has said that it anticipates submitting its EAC application in the fall of 2008, assuming a CPCN is issued in the summer of 2008. Given the Section 11 Pro- cedural Order ... and the draft Terms of Reference ... the Commission Panel is also satisfied that a process is in place for consultation and, if necessary, accommodation.

Prior to issuing an EAC, Provincial Ministers must consider whether the Crown has fulfilled legal obligations to First Nations (Guide to Environmental Assessment Process, Step 8 and Environmental Assessment Act, Section 17.) Given the statutory requirement for an EAC and the process established by the Section 11 Procedural Order, the Commission Panel concludes that it should not look beyond, and can rely on, this regulatory scheme established by the government. Accordingly, the Commission Panel does not intend to conduct a separate inquiry into the adequacy of consultation and accommodation in this proceeding.

37 In support of its position, the Commission relied on the following passage from Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 (S.C.C.), at para. 51 (also quoted at p. 47 of the VITR decision):

It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts.

38 To the appellants' submissions that consultation and accommodation were continuing obligations that might arise throughout a series of decisions, and therefore, should start at the earliest possible stage and not be anticipated or deferred, the Commission responded (at p. 4):

The Commission Panel believes that a distinction needs to be drawn between circumstances such as those in th the Gitxsan Houses v. British Columbia (Minister of Forests) (2002), 10 B.C.L.R. (4 ) 126 (S.C.) and the Haida cases where a decision or a series of decisions are made each having their own impacts, and the circumstances in the instant case where a single project requires at least two different regulatory approvals before there are impacts on Aboriginal rights and title. ... [T]he EAC requirement ensures that if the duty to consult has not been met and, where necessary, adequate accommodation has not been provided, then the project will not proceed, and there will be no impacts on Aboriginal rights and title. In this manner, meaningful consultation is ensured, and the honour of the Crown will be upheld. In other words, the honour of the Crown does not require consultation on every step of a regulatory scheme, provided, as in the instant case, that meaningful consultation is ensured before there are impacts on Aboriginal rights and title.

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39 The Commission summarized its analysis (at p. 5):

... The CPCN can be thought of as the regulatory step that selects the most cost-effective project amongst alternatives, and also approves the scope, design, and cost estimates of the most cost-effective project. The first opportunity to consider the adequacy of consultation and accommodation is after the project is selected and is sufficiently defined so as to make accommodation discussions meaningful, that is, impacts need to be identified. And it is only after impacts can be identified, that consultation and accommodation can be concluded. This does not mean that BCTC and BC Hydro should begin consulting with First Nations after a CP- CN has been granted and the ILM Project has been further defined; it only means that the Commission can and should rely on the EAO to now or in the future make determinations with respect to the duty to consult and, if necessary, accommodate.

40 The Commission then turned briefly to the evidence it would receive and consider in assessing potential costs and risks to the ILM Project. It noted that the potential costs of accommodation were relevant to the cost- effectiveness analysis and that First Nations were entitled to full and fair participation in the proceeding on that and other relevant issues. It refused to adjourn the proceeding until the process of consultation and accommodation was completed, anticipating (at p. 5 of the scoping decision) that an adequate record could be developed from which it could "assess cost estimates and potential risks to the project arising from the duty to consult, and where necessary, accommodate." It acknowledged that one of the risks was the possibility that the environmental process might not result in an EAC or might require changes in the ILM Project requiring BCTC to seek a new or amended CPCN.

41 After this Court granted leave to appeal the scoping decision, the Commission issued the CPCN, providing its reasons for decision on 5 August 2008: British Columbia Transmission Corp., Re (August 5, 2008), Doc. C-4-08, (B.C. Utilities Comm.) (the "CPCN decision"). At page 96 of those reasons, it concluded:

The Commission Panel concludes that building a new transmission line, specifically 5L83, is the preferred alternative for reinforcement of the ILM grid from the NIC [Nicola substation] side, and concludes that UEC [the upgrade option] is uneconomic when compared to building a fifth line, 5L83, that provides higher transfer capability and lower losses.

42 The CPCN decision has not been appealed. In its reasons, the Commission affirmed the scoping decision, noting at p. 32:

... although the issue of whether BCTC had met its duty to consult and accommodate First Nations was ruled out of scope, the impacts on First Nations and risks to project costs were still well within scope. The First Nations were encouraged to be active participants in the ILM proceeding, but chose not to lead or elicit evidence.

43 From comments later in its reasons, it appears the Commission may have expected that the appellants would lead evidence about the potential adverse effects of the different options on their rights despite its refusal to consider their dissatisfaction with the consultation process. That is not a conclusion that would have been readily apparent from the scoping decision.

44 On 1 October 2008, BCTC filed its application for an EAC for the ILM Project. The environmental assessment process is ongoing, although Kwikwetlem has refused to participate in it "without substantial changes to the process". In their view, the EAO has no proper statutory mandate for consultation, no appropriate budget,

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and no sufficient ability to alter the project to meet the Crown's accommodation duties.

Discussion

45 The respondents accept that the duty to consult is engaged by the ministerial decision to grant an EAC that would allow the ILM Project to proceed. This is the reason BC Hydro has consulted with First Nations since August 2006. BCTC submits it is fully committed to ensuring that consultation and, if necessary, accommodation, with First Nations is carried out in a manner that upholds the honour of the Crown. They also acknowledge the ministers have a constitutional duty to assess the adequacy of the Crown's consultation and accommodation efforts in their review of the ILM Project under the Environmental Assessment Act, and have the authority to deny the EAC and thereby terminate the project if they determine the honour of the Crown was not maintained in the process leading to the application and the grant of the EAC. Their point is that the Commission had no comparable duty to consider and decide whether the Crown's duty to consult was fulfilled at the CPCN stage of the regulatory approval process for the ILM Project.

46 The respondents limit their submission to the factual circumstances of this case, where neither the proponent nor an intervenor suggested an alternative solution to the public need identified by BCTC. They acknowledge that the Commission may receive information about alternatives as part of its cost-effectiveness analysis and in some cases, may consider alternative proposed projects (see, for example, BC Gas Utility Ltd., Re, (May 21, 1999), Doc. G-51-99, (B.C. Utilities Comm.)). Nevertheless, in BC Hydro's view, in this case, the CPCN represents only the Commission's opinion that the ILM Project is "suitable for inclusion in the plant or system of the public utility with the result that costs of the proposed facilities may be recovered in rates." Thus, it argues, by itself, the Commission's grant of a CPCN can have no effect on Aboriginal interests.

47 At the core of this dispute are different understandings of the regulatory processes and their interplay. In particular, the parties disagree on whether the CPCN "fixes" the essential structure of the project such that, practically speaking, BCTC's preferred option cannot be revisited, whatever consultation may occur in the EAC process. In support of their argument that the CPCN has this effect, the appellants point first, to the Commission's own words that the CPCN process is "the regulatory step that selects the most cost-effective project amongst alternatives, and also approves the scope, design, and cost estimates of the most cost-effective project" (scoping decision at p. 5, affirmed in the CPCN decision); second, to the advice given to First Nations by BC Hydro in its letter of 6 June 2007; and third, to the Concurrent Approval Regulation B.C. Reg. 371/2002, s. 3(2)(a), which makes a CPCN ineligible for concurrent review with an EAC.

48 BCTC responded that the Commission's statement was "a poor choice of language", on an application presenting only one project for approval, albeit one with huge flexibility, but one the Commission had no power to modify without being asked to do so by its proponent. It also acknowledged that BC Hydro's letter could have expressed the intention and effect of its application more clearly. In BCTC's view, its application was for certification of a new transmission line from Merritt to Coquitlam with a range of potential routing options for the Commission to consider in deciding cost-effect issues, but not a specific configuration because those details might be influenced by the ongoing EAC consultation process.

49 On this issue, I agree with the appellants and accept the Commission's stated understanding of its role as applicable not only generally on CPCN applications but on this particular application. In this case, the Commis- sion reviewed the alternatives BCTC had considered and affirmed its choice as preferable. The gist of the scoping decision was that, in this case, the certified project could have no effect on Aboriginal interests until it re-

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ceived an EAC. Thus, the EAC process could test the adequacy of the Crown's consultation efforts on the ILM Project. Because the EAC process required the ministers to assess those efforts, the Commission was under no such obligation before issuing a CPCN for that project.

50 The appellants dispute this reasoning. In their view, the current EAC process was not designed to meet the requirements of the duty to consult and accommodate Aboriginal interests and cannot be so adapted.

51 Functionally, the environmental assessment process is not the same process considered in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 (S.C.C.). The legislation analyzed in Taku River was repealed in 2002 and replaced with the current statutory regime. According to Kwikwetlem, the repeal resulted in a "systemic stripping out" of First Nations participation in the EAC process. The only explicit mentions of "first nations" in the current Environmental Assessment Act are found in s. 11(2)(f) and s. 50(2)(e); the latter authorizes a regulation listing those required to be consulted under the former. To date no regulation has been established.

52 BCTC responds that the EAC process can be, and in this case has been, adapted to include the nature of the project itself and alternatives to it in the ministerial review.

53 The most significant differences between the former and the current Act are the omission of a purposes section, changes to the criteria for the grant of an EAC, and the absence of provisions mandating participation of First Nations. The notion that the interests of First Nations are entitled to special protection does not arise in the current Act. As well, the word "cultural" has been omitted from the list of effects to be considered in the assessment process. Perhaps most importantly, the EAO is no longer required to establish a project committee. Under the former Act, both the formation of such a committee and First Nations participation in it were mandated. Chief Justice McLachlin wrote in Taku River, at para. 8, that "[t]he project committee becomes the primary en- gine driving the assessment process."

54 It may be that First Nations' interests are left to be dealt with under the government's Provincial Policy for Consultation with First Nations, which directs the terms of the operational guidelines of government actors. McLachlin C.J.C. referred to this policy in Haida, noting at para. 51, it "may guard against unstructured discretion and provide a guide for decision-makers." Those directions are not before this Court and were not mentioned by any counsel. I do not know to what extent the EAC process complies with them. If they are relevant to an environmental assessment process, they are also relevant to the CPCN process. The Commission did not mention them in the scoping decision.

55 As I read the two governing statutes, they mandate discrete processes whereby two decision-makers make two different decisions at two different stages of one important provincially-controlled project. Neither is subsidiary or duplicative of the other. They are better seen the way the respondents treat them and the Commis- sion understands them, as sequential processes that can be coordinated. The CPCN defines the activity that becomes the project to be reviewed by ministers before they grant an EAC. Each decision-maker makes a decision in the public interest, taking into account factors relevant to the question on which they are required to form an opinion.

56 Information developed for the purpose of the CPCN application and the opinion expressed by the Com- mission are likely to be relevant to the EAC application, just as information gathered at the pre-application stage of the EAC process may be relevant to the CPCN hearing. That interplay does not mean the effect of their decision on Aboriginal interests is the same. Nor does it make a ministerial review of the Crown's duty to consult

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with regard to the definition of the project a necessarily satisfactory alternative to an assessment of that duty at an earlier stage by the Commission charged with opining as to whether a public utility system enhancement is necessary in the public interest.

57 The current Environmental Assessment Act provides a process designed to obtain sufficient information from the proponent of a reviewable project about any "adverse effects" of that project to permit an intelligent decision by the responsible ministers as to whether to grant an EAC for that project. I see the ministerial review as a wrap-up decision, where two ministers have unconstrained discretion to prevent a proposed activity, public or private, for profit or not-for-profit, that has potential "adverse effects" from going forward. The Act does not specify effects on whom or what. It can be inferred from the provisions of s. 10(1)(c) that the ministers are to consider any "significant adverse environmental, economic, social, heritage or health effect" revealed by the assessment. In this case, potential adverse effects on the appellants' asserted Aboriginal rights and title are undoubtedly included, although not identified in the current Act.

58 Where the activity being considered is a Crown project with the potential to affect Aboriginal interests, as it is in this case, because the responsible ministers are constitutionally required to consider whether the proponent has maintained the Crown's honour, all counsel assert they may refuse the EAC, not only by reason of any listed adverse effect, but also for failure of the Crown to meet its consultation and accommodation duty. The procedural order issued under s. 11 of the Act acknowledges this aspect of the ministerial responsibility with respect to the ILM Project.

59 By contrast, certification under s. 45 of the Utilities Commission Act is the vital first step toward the building of the transmission line across territory to which First Nations assert title and stewardship rights, one that, for practical reasons, BCTC, BC Hydro and the Commission consider necessarily precedes acceptance of an application for the required ministers' EAC. The legislature has delegated the discretion to opine as to the need and desirability for the construction of additional power transmission capacity to the Commission. Only the Commission can grant permission to enhance a power transmission line.

60 In these circumstances, in my view, the appellants were not only entitled to be consulted and accommodated with regard to the choice of the ILM Project by BCTC, they were also entitled to have their challenge to the adequacy of that consultation and accommodation assessed by the Commission before it certified BCTC's proposal for extending the power transmission system as being in the public interest. It was not enough for the Commission to say to First Nations: we will hear evidence about the rights you assert and how the ILM Project might affect them.

61 This is not to say the Commission, in formulating its opinion as to whether to grant a CPCN, will decide BC Hydro's efforts did not maintain the honour of the Crown. It is to say that the Commission is required to assess those efforts to determine whether the Crown's honour was maintained in its dealings with First Nations regarding the potential effects of the proposed project.

62 The Crown's obligation to First Nations requires interactive consultation and, where necessary, accommodation, at every stage of a Crown activity that has the potential to affect their Aboriginal interests. In my view, once the Commission accepted that BCTC had a duty to consult First Nations regarding the project it was being asked to certify, it was incumbent on the Commission to hear the appellants' complaints about the Crown's consultation efforts during the process leading to BCTC's selection of its preferred option, and to assess the adequacy of those efforts. Their failure to determine whether the Crown's honour had been maintained up to that

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stage of the Crown's activity was an error in law.

63 The certification decision is the first important decision in the process of constructing a power transmission line. It is the formulation of the opinion as to whether a line should be built to satisfy an anticipated need, rather than to upgrade an existing facility, find or develop alternative local power sources, or reduce demand by price increases or other means of rationing scarce resources.

64 If, as BCTC submits, the Commission's decision is to be read as having acknowledged its constitutional obligation by determining the existence of a duty to consult, the scope of that duty, and its fulfillment up to that stage of the ILM Project, it was unreasonable.

65 Where a decision-maker is called upon to approve a Crown activity that gives rise to the duty to consult, the first task of the decision-maker in assessing the adequacy of that duty, is to determine its scope and content in that particular case. Only when the scope of the duty to consult has been determined, can a decision-maker decide whether that duty has been fulfilled. In Haida, the Supreme Court of Canada clearly stated there is no one model of consultation; the Crown's obligations will vary with the individual circumstances of the case. Neither explicitly nor implicitly did the Commission attempt to define its obligations in this case. As it had in the two earlier cases, VITR and Revelstoke, it simply deferred to the ministers with ultimate responsibility for deciding whether to grant the project an EAC.

Summary

66 BC Hydro's duty to consult and, where necessary, accommodate First Nations' interests arose when BCTC became aware that the means it was considering to maintain an adequate supply of power to consumers in the lower mainland had the potential to affect Aboriginal rights and title. BC Hydro acknowledged that duty by initiating contact with First Nations in August 2006. The duty continued while several alternative solutions were considered. The process was given substance by the holding of information meetings over the following months and some structure by the s. 11 procedural order issued by the EAO in May 2007.

67 When BCTC settled on the ILM Project in May 2007 and applied for a CPCN for that project in Novem- ber of that year, it effectively gave the Commission two choices — accept or reject its application. As BCTC argued, supported by BC Hydro as an intervenor, it effectively ended its own consideration of alternatives and foreclosed any consideration by the Commission of alternative solutions to the anticipated energy supply problem. The decision to certify a new line as necessary in the public interest has the potential to profoundly affect the appellants' Aboriginal interests. Like the existing line (installed without consent or consultation), the new line will pass over land to which the appellants claim stewardship rights and Aboriginal title. (For an understanding of that concept see Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746 (S.C.C.), at paras. 41 to 46.) To suggest, as the respondents now do, that the appellants were free to put forward evidence during the s. 45 proceeding as to the adverse impacts of the ILM Project on their interests, and to have BC Hy- dro's consultation efforts with regard to those impacts evaluated by the ministers a year or two later, is to miss the point of the duty to consult.

68 Consultation requires an interactive process with efforts by both the Crown actor and the potentially affected First Nations to reconcile what may be competing interests. It is not just a process of gathering and exchanging information. It may require the Crown to make changes to its proposed action based on information obtained through consultations. It may require accommodation: Haida, at paras. 46-47.

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69 The crucial question is whether conduct that may result in adverse effects on Aboriginal rights or title will be considered during the CPCN process and not during the EAC process. That is the case here; the duty to consult with regard to the CPCN process is acknowledged. It follows that the Commission has the obligation to inquire into the adequacy of consultation before granting a CPCN. Even if the EAC process could theoretically be adapted to ensure the ministerial review includes a consideration of the adequacy of the consultation at the CPCN application stage, practically-speaking, the advantage would be to the proponent who has obtained a certification of its project as necessary and in the public interest. Moreover, the Commission cannot determine whether such an adapted process meets the duty whose scope it is in the best, if not only, position to determine unless it determines the scope of that duty. A cost/benefit analysis of one or more projects does not appear in the ministers' mandate.

70 If consultation is to be meaningful, it must take place when the project is being defined and continue until the project is completed. The pre-application stage of the EAC process in this case appears to have synchronized well with BCTC's practice of first seeking a CPCN and not making formal application for an EAC until a CPCN is granted. The question the Commission must decide is whether the consultation efforts up to the point of its decision were adequate.

71 For these reasons, I would order that the Commission reconsider the scoping decision in the terms I set out above at para. 15.

Donald J.A.:

I agree.

Bauman J.A.:

I agree.

Appeal allowed.

END OF DOCUMENT

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2005 CarswellNat 3756, 2005 SCC 69, 259 D.L.R. (4th) 610, [2006] 1 C.N.L.R. 78, 21 C.P.C. (6th) 205, 37 Ad- min. L.R. (4th) 223, [2005] 3 S.C.R. 388, 342 N.R. 82

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)

Mikisew Cree First Nation (Appellant) v. Sheila Copps, Minister of Canadian Heritage and Thebacha Road So- ciety (Respondents) and Attorney General for Saskatchewan, Attorney General of Alberta, Big Island Lake Cree Nation, Lesser Slave Lake Indian Regional Council, Treaty 8 First Nations of Alberta, Treaty 8 Tribal Associ- ation, Blueberry River First Nations and Assembly of First Nations (Interveners)

Supreme Court of Canada

McLachlin C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron JJ.

Heard: March 14, 2005 Judgment: November 24, 2005 Docket: 30246

Proceedings: reversing Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2004), 2004 CarswellNat 762, 2004 CAF 66, 2004 CarswellNat 418, 2004 FCA 66, [2004] 2 C.N.L.R. 74, 317 N.R. 258, 236 D.L.R. (4th) 648, 247 F.T.R. 317 (note), [2004] F.C.J. No. 277, [2004] 3 F.C.R. 436 (F.C.A.) [Federal]; reversing Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2001), 2001 CarswellNat 3747, 2001 CFPI 1426, 214 F.T.R. 48, [2001] F.C.J. No. 187, [2002] 1 C.N.L.R. 169, 2001 CarswellNat 2902, 2001 FCT 1426 (Fed. T.D.) [Federal]

Counsel: Jeffrey R.W. Rath, Allisun Taylor Rana for Appellant

Cheryl J. Tobias, Mark R. Kindrachuk, Q.C. for Respondent, Sheila Copps, Minister of Canadian Heritage

No one for Respondent, Thebacha Road Society

P. Mitch McAdam for Intervener, Attorney General for Saskatchewan

Robert J. Normey, Angela J. Brown for Intervener, Attorney General of Alberta

James D. Jodouin, Gary L. Bainbridge for Intervener, Big Island Lake Cree Nation

C. Allan Donovan, Bram Rogachevsky for Intervener, Lesser Slave Lake Indian Regional Council

Robert C. Freedman, Dominique Nouvet for Intervener, Treaty & First Nations of Alberta

E. Jack Woodward, Jay Nelson for Intervener, Treaty & First 8 Tribal Association

© 2013 Thomson Reuters. No Claim to Orig. Govt. Works Page 2 2005 CarswellNat 3756, 2005 SCC 69, 259 D.L.R. (4th) 610, [2006] 1 C.N.L.R. 78, 21 C.P.C. (6th) 205, 37 Admin. L.R. (4th) 223, [2005] 3 S.C.R. 388, 342 N.R. 82

Thomas R. Berger, Q.C., Gary A. Nelson for Intervener, Blueberry River First Nation

Jack R. London, Q.C., Bryan P. Schwartz for Intervener, Assembly of First Nations

Subject: Public; Constitutional; Property; Civil Practice and Procedure

Aboriginal law --- Aboriginal rights to natural resources — Aboriginal rights — Hunting

Crown planned to build winter road through First Nation land reserve — Crown held open house sessions inviting public comment, in which First Nation did not participate — First Nation Chief notified Crown that Nation did not support road — Crown wrote to First Nation Chief apologizing for how consultation process unfolded, but approved 200-metre wide, 23 square kilometre road corridor prohibiting use of firearms for road that tracked reserve boundary — First Nation brought application before Federal Court to set aside Crown's road approval on ground that it violated its hunting, fishing, and trapping rights assigned by land treaty — Application was granted — Crown appealed — Appeal was allowed — First Nation appealed to Supreme Court — Appeal allowed — Land treaty contemplated that land portions would periodically be "taken up" by Crown, but historical context and tensions underlying treaty implementation demanded process by which lands could be transferred — Content of process arose out of Crown's obligation to act honourably — Content of duty was variable, but turned on degree to which conduct contemplated by the Crown would adversely affect rights in question — Proposed road would reduce territory over which First Nation was entitled to exercise treaty rights, abolish hunting rights within corridor, and injuriously affect exercise of rights in surrounding bush — Crown therefore had duty to consult First Nation — Meaningful right to hunt was not ascertained on treaty-wide basis but in relation to territories over which First Nation traditionally and currently hunted, fished, and trapped — Unilateral Crown action ignored treaty promise to sustain hunting, fishing, and trapping rights, and was antithesis of reconciliation and mutual respect — Crown did not have to consult with all signatory First Nations each time it "took up" land no matter how remote its impact, but impacts of proposed road on First Nation were clear, established, and demonstrably adverse to continued exercise of rights — Crown did not discharge duty to engage directly with First Na- tion or to minimize adverse impacts on First Nation rights — While First Nation had some reciprocal onus to make their concerns known and reach some mutually satisfactory solution, consultation never got off ground to permit reaching that stage — Consultation would not have given First Nation veto over road, but may have permitted road changes that substantially satisfied First Nation concerns.

Aboriginal law --- Constitutional issues — Reserves and real property — Land surrendered to Crown

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road would reduce territory over which First Nation was entitled to exercise treaty rights, abolish hunting rights within corridor, and injuriously affect exercise of rights in surrounding bush — Crown therefore had duty to consult First Nation — Meaningful right to hunt was not ascertained on treaty-wide basis but in relation to territories over which First Nation traditionally and currently hunted, fished, and trapped — Unilateral Crown action ignored treaty promise to sustain hunting, fishing, and trapping rights, and was antithesis of reconciliation and mutual respect — Crown did not have to consult with all signatory First Nations each time it "took up" land no matter how remote its impact, but impacts of proposed road on First Nation were clear, established, and demonstrably adverse to continued exercise of rights — Crown did not discharge duty to engage directly with First Na- tion or to minimize adverse impacts on First Nation rights — While First Nation had some reciprocal onus to make their concerns known and reach some mutually satisfactory solution, consultation never got off ground to permit reaching that stage — Consultation would not have given First Nation veto over road, but may have permitted road changes that substantially satisfied First Nation concerns.

Civil practice and procedure --- Practice on appeal — Appeal to Supreme Court of Canada — Parties — Inter- venors on appeal

Crown planned to build winter road through First Nation land reserve — Crown held open house sessions inviting public comment, in which First Nation did not participate — First Nation Chief notified Crown Minister that Nation did not support road — Crown Minister wrote to First Nation Chief apologizing for how consultation process unfolded, but approved 200-metre wide road corridor prohibiting use of firearms for road that tracked reserve boundary — First Nation brought application before Federal Court to set aside road approval on ground that it violated its hunting, fishing, and trapping rights assigned by land treaty — Application was granted — Crown appealed — Attorney General of Alberta acted as intervenor and raised fresh argument on central issue — Appeal was allowed on ground raised by intervenor — First Nation appealed to Supreme Court — Issue arose as to right of intervenor to widen or add to points in issue on appeal, and of Federal Court of Appeal or Su- preme Court to decide case on that basis — Intervenor permitted to raise issue; appeal allowed on other grounds — Intervenors were always permitted to put forward legal arguments in support of legal conclusions on issues before court, provided that arguments did not require additional facts, or raise arguments unfair to either party — First Nation suffered no prejudice as no further light could be thrown on intervenor's argument by additional evidence — Issue was one of treaty interpretation rules, not evidence — Issue raised was central to case, and was not one that should have taken First Nation by surprise — For court to refrain from giving effect to correct legal analysis just because it came later rather than sooner, and from intervenor rather than party, would be intolerable and risked injustice.

Droit autochtone --- Droits ancestraux à l'égard des ressources naturelles — Droits ancestraux — Chasse

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Traité envisageait que des portions des terres pourraient périodiquement être prises par la Couronne, mais le contexte historique et les tensions sous-jacentes à la mise en oeuvre du traité commandaient un processus de transfert des terres — Contenu du processus découlait de l'obligation qu'a la Couronne d'agir honorablement — Contenu de l'obligation variait, mais dépendait de la mesure dans laquelle les dispositions envisagées par la Couronne auraient un effet préjudiciable sur les droits en question — Route proposée réduirait le territoire sur lequel la première nation avait des droits, abolirait les droits de chasse à l'intérieur du corridor et aurait un effet préjudiciable sur l'exercice des droits dans le terrain boisé environnant — Couronne avait donc l'obligation de consulter la première nation — Droit réel de chasse n'est pas établi en fonction de toutes les terres visées par le traité, mais plutôt par rapport aux territoires sur lesquels les premières nations avaient l'habitude de chasser, de pêcher et de piéger — Action unilatérale de la Couronne ignorait la promesse comprise dans le traité d'assurer les droits de chasser, de pêcher et de piéger et constituait l'antithèse de la réconciliation et du respect mutuel — Couronne n'avait pas à consulter les premières nations à chaque fois qu'elle prenait des terres peu importe l'importance de l'effet, sauf que, en l'espèce, l'impact de la route proposée était clair, établi et manifestement préjudiciable à l'exercice continu des droits — Couronne n'a pas rempli son obligation de discuter directement avec la première nation ou de minimiser l'impact préjudiciable sur les droits de celle-ci — Même si la première nation avait aussi l'obligation réciproque d'exprimer ses préoccupations et de trouver une solution mutuellement satisfaisante, la consultation pouvant permettre d'atteindre cette étape n'a jamais pris son envol — Consultation n'aurait jamais donné à la première nation un droit de veto, mais elle aurait néanmoins pu permettre d'apporter des modifications au tracé qui auraient répondu aux préoccupations de la première nation.

Droit autochtone --- Questions constitutionnelles — Réserves et biens-fonds — Terres remises à la Couronne

Couronne planifiait de construire une route d'hiver passant à travers les terres de la réserve de la première nation — Couronne a tenu des séances de portes ouvertes pour obtenir l'opinion du public, mais la première nation n'y a pas participé — Chef de la première nation a avisé la Couronne que la première nation n'était pas en faveur de la route — Couronne a envoyé une lettre d'excuses au chef de la première nation pour la façon dont s'était déroulée le processus de consultation, mais a quand même approuvé un corridor de 200 mètres de large longeant la limite de la réserve, d'une superficie total de 23 kilomètres carrés, à l'intérieur duquel il serait interdit d'utiliser des armes à feu — Première nation a présenté une demande en Cour fédérale afin que soit cassée l'approbation par la Couronne de la route, au motif que cette approbation contrevenait à ses droits de chasser, pêcher et piéger que lui avait cédé le traité sur les terres — Demande a été accueillie — Couronne a interjeté appel — Pourvoi a été accueilli — Première nation a interjeté appel à la Cour suprême — Pourvoi accueilli — Traité envisageait que des portions des terres pourraient périodiquement être prises par la Couronne, mais le contexte historique et les tensions sous-jacentes à la mise en oeuvre du traité commandaient un processus de transfert des terres — Contenu du processus découlait de l'obligation qu'a la Couronne d'agir honorablement — Contenu de l'obligation variait, mais dépendait de la mesure dans laquelle les dispositions envisagées par la Couronne auraient un effet préjudiciable sur les droits en question — Route proposée réduirait le territoire sur lequel la première nation avait des droits, abolirait les droits de chasse à l'intérieur du corridor et aurait un effet préjudiciable sur l'exercice des droits dans le terrain boisé environnant — Couronne avait donc l'obligation de consulter la première nation — Droit réel de chasse n'est pas établi en fonction de toutes les terres visées par le traité, mais plutôt par rapport aux territoires sur lesquels les premières nations avaient l'habitude de chasser, de pêcher et de piéger — Action unilatérale de la Couronne ignorait la promesse comprise dans le traité d'assurer les droits de chasser, de pêcher et de piéger et constituait l'antithèse de la réconciliation et du respect mutuel — Couronne n'avait pas à consulter les premières nations à chaque fois qu'elle prenait des terres peu importe l'importance de l'effet, sauf que, en l'espèce, l'impact de la route proposée était clair, établi et manifestement

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préjudiciable à l'exercice continu des droits — Couronne n'a pas rempli son obligation de discuter directement avec la première nation ou de minimiser l'impact préjudiciable sur les droits de celle-ci — Même si la première nation avait aussi l'obligation réciproque d'exprimer ses préoccupations et de trouver une solution mutuellement satisfaisante, la consultation pouvant permettre d'atteindre cette étape n'a jamais pris son envol — Consultation n'aurait jamais donné à la première nation un droit de veto, mais elle aurait néanmoins pu permettre d'apporter des modifications au tracé qui auraient répondu aux préoccupations de la première nation.

Procédure civile --- Procédure en appel — Appel à la Cour suprême du Canada — Parties — Intervenants en appel

Couronne planifiait de construire une route d'hiver passant à travers les terres de la réserve de la première nation — Couronne a tenu des séances de portes ouvertes pour obtenir l'opinion du public, mais la première nation n'y a pas participé — Chef de la première nation a avisé la Couronne que la première nation n'était pas en faveur de la route — Couronne a envoyé une lettre d'excuses au chef de la première nation pour la façon dont s'était déroulé le processus de consultation, mais a quand même approuvé un corridor de 200 mètres de large longeant la limite de la réserve, d'une superficie totale de 23 kilomètres carrés, à l'intérieur duquel il serait interdit d'utiliser des armes à feu — Première nation a présenté une demande en Cour fédérale afin que soit cassée l'approbation par la Couronne de la route, au motif que cette approbation contrevenait à ses droits de chasser, pêcher et piéger que lui avait cédé le traité sur les terres — Demande a été accueillie — Couronne a interjeté appel — Procureur général de l'Alberta a agi comme intervenant et a soulevé un nouvel argument à l'égard de la question principale — Pourvoi a été accueilli au motif soulevé par l'intervenant — Première nation a interjeté appel à la Cour suprême — Question a été soulevée quant au droit de l'intervenant d'élargir la portée des questions en appel ou d'en ajouter et au droit de la Cour d'appel fédérale ou de la Cour suprême de trancher l'affaire en se fondant sur cet argument — Intervenant a été autorisé à soulever la question; le pourvoi a été accueilli pour d'autres motifs — Intervenants sont toujours autorisés à soumettre aux tribunaux des arguments juridiques à l'appui de leurs conclusions juridiques, pour autant que les arguments ne nécessitent pas la preuve de faits ad- ditionnels ou ne soulèvent pas des arguments injustes pour les parties — Première nation n'a subi aucun préjudice étant donné qu'aucune preuve additionnelle n'était nécessaire pour éclaircir l'argument de l'intervenant — Question était relative aux règles d'interprétation des traités et non à la preuve — Question soulevée se situait au coeur de l'affaire et n'était pas de nature à prendre par surprise la première nation — Il serait intolérable et certainement injuste que le tribunal s'empêche de donner effet à une analyse juridique correcte simplement parce qu'elle a été présentée tardivement.

The applicant was a First Nation signatory to an 1899 land treaty surrendering 840,000 square kilometres of land to the Crown, in exchange for reserve land and the right to hunt, trap, and fish therein. The treaty was subject to the limitation that the Crown could occasionally "take up" land for settlement, trading, resource, or similar purposes. In 2000, the respondent Crown approved the construction of a winter road through the First Nation reserve. It did not consult the applicant directly, and instead held open house sessions inviting public comment. The applicant did not participate in the public forum, but wrote to the Crown protesting the road proposal. The Crown wrote to the First Nation Chief apologizing for how the consultation process unfolded, but ultimately approved a 200-metre wide, 23 square kilometre road corridor that tracked the reserve boundary and prohibited the use of firearms.

The applicant successfully applied to the Federal Court to set aside the Crown's decision on the ground that it violated the hunting, fishing, and trapping rights accorded to it by treaty. The trial judge held that the lands in question, which were within a national park, were not "taken up" by the Crown within the meaning of the treaty

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because the use of the lands as a park did not constitute a visible use incompatible with the existing rights to hunt and trap. The trial judge found that the proposed road corridor would adversely impact the applicant's treaty rights, and that the standard public notices and open houses proposed by the Crown were not sufficient as the applicant was entitled to a direct consultation process. Accordingly, the trial judge quashed the Crown's approval order for the road.

The Crown successfully appealed the reversal, and approval for the road was restored. The Court of Appeal based its grounds for the reversal on a fresh argument pertaining to the central issue that was brought forth by the Attorney General of Alberta as an intervenor on the appeal. The argument was that the treaty expressly contemplated the taking up of surrendered lands for various purposes, including roads. The winter road was more a "taking up" pursuant to the treaty, rather than an infringement. The court also held that there was no Crown obligation to consult with the applicant about the road, although to do so would be good practice. The applicant appealed to the Supreme Court of Canada. In addition to arguing the points on appeal, the applicant also objected that the Attorney General of Alberta had overstepped its proper role as an intervenor in widening or adding to the points at issue on appeal, and that neither the Federal Court of Appeal nor the Supreme Court could decide the case on that basis.

Held: The appeal was allowed. The Attorney General of Alberta did not overstep its role as intervenor. The Crown's approval order for winter road was quashed on other grounds.

Per Binnie J. (McLachlin C.J., Major, Bastarache, LeBel, Deschamps, Fish, Abella, and Charron JJ. concurring): The Attorney General of Alberta did not overstep its role as intervenor. Intervenors were always permitted to put forward legal arguments in support of legal conclusions on issues before the court, provided that the arguments did not require additional facts, or raise arguments that were unfair to either party. Additionally, the applicant did not identify prejudice caused by the fresh argument. Had the argument been similarly formulated at trial, no further light could have been thrown on it by additional evidence. The historical record of the treaty was fully explored at trial. The issue was one concerning rules of treaty interpretation, not of evidence. It had also always been central to the case, and was not one that should have taken the applicant by surprise. It would be intolerable if the courts were precluded from giving effect to a correct legal analysis just because it came later rather than sooner, and from an intervenor rather than a party. For the court to close its eyes to the argument would be to risk an injustice.

However, the Crown did not discharge its duty to engage directly with the applicant in consultation, or to minimize the adverse impacts or the winter road on its hunting, fishing, and trapping rights. The fundamental objective of the modern law of aboriginal and treaty rights was the reconciliation of aboriginal peoples and non- aboriginal peoples and their respective claims, interests, and ambitions. The treaty in question was one of the most important post-Confederation treaties. The principle of consultation in advance of interference with existing treaty rights was a matter of broad general importance, and failure on the Crown's part to engage in advance consultation undermined the process of reconciliation. The approval order was to be quashed, and the matter returned to the Crown for further consultation and consideration.

The land treaty contemplated that land portions would periodically be "taken up" by the Crown, but the historical context and tensions underlying the treaty implementation demanded a process by which lands could be transferred from a land category permitting the applicant to hunt, fish, and trap, to another in which the applicant could not. The content of this process was dictated by the Crown's duty to act honourably. Once triggered, the content of this duty was variable, but turned on the degree to which the conduct contemplated by the Crown

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would adversely affect the rights in question.

The proposed winter road would reduce territory over which the applicant was entitled to exercise treaty rights, remove hunting within the road corridor, and injuriously affect the applicant's exercise of rights in the surrounding bush. The Crown's suggestion that the test ought to be whether it was reasonably practicable for the applicant to hunt, fish, and trap within the province "as a whole" after the taking up of the land was incorrect, as it would imply acceptable prohibitions on hunting so long as it was still available 800 kilometres across the province. Nor was the position by the Attorney General that the 23 square kilometre area was de minimis tenable; a meaningful right to hunt was not ascertained on a treaty-wide basis, but in relation to territories over which the applicant traditionally and currently hunted, fished, and trapped.

The unilateral action by the Crown ignored its oral and written promise to sustain hunting and fishing rights after the treaty in the fashion they existed before it, and was the antithesis of reconciliation and mutual respect. The Crown did not have to consult with all signatory First Nations each time it "took up" land however remote its impact, but the impact on the applicant of the proposed winter road in this case was clear, established, and demonstrably adverse to its continued exercise of hunting and fishing rights. In the context of the treaty framework for managing continuing changes in land use already foreseen in 1899, consultation was key to achieving the overall objective of the modern law of treaty and aboriginal rights. Hence, while the winter road was a permissible purpose for "taking up" lands, the Crown was required to provide notice to the applicant and engage directly with them, not merely through public consultation. While the applicant had some reciprocal onus to make its concerns known and to try reaching some mutually satisfactory solution, consultation did not get off the ground and so did not reach that stage. Consultation would not have given the applicant a veto power over the road, but it might have permitted changes that substantially satisfied its concerns.

La demanderesse était une première nation signataire d'un traité de 1899 cédant 840 000 kilomètres carrés de terres à la Couronne, en échange de terres de réserve et du droit d'y chasser, pêcher et piéger. Le traité était as- sujetti à la restriction que la Couronne pourrait occasionnellement prendre des terres à des fins de peuplement, de commerce, d'exploitation de ressources ou d'autres raisons similaires. En l'an 2000, la Couronne intimée a approuvé la construction d'une route d'hiver passant à travers la réserve de la demanderesse. Elle n'a pas consulté cette dernière directement, mais a plutôt tenu des séances portes ouvertes afin d'obtenir les com- mentaires du public. La demanderesse n'a pas participé au forum public, mais a écrit à la Couronne pour protest- er contre la route proposée. Même si la Couronne s'est excusée par écrit auprès du chef de la demanderesse pour la façon dont s'était déroulé le processus de consultation, elle a ultimement approuvé un corridor de 200 mètres de large et d'une superficie de 23 kilomètres carrés qui longeait les limites de la réserve, et à l'intérieur duquel l'usage des armes à feu était interdit.

La demanderesse s'est adressée avec succès à la Cour fédérale, afin d'obtenir l'annulation de la décision de la Couronne, au motif qu'elle violait les droits de chasser, pêcher et piéger qui lui avaient été accordés par traité. Le premier juge a statué que les terres en question, qui faisaient partie d'un parc national, n'avaient pas été prises par la Couronne au sens du traité, étant donné que l'utilisation des terres comme parc ne constituait pas un usage visiblement incompatible avec les droits existants de chasser et piéger. Le juge a conclu que le corridor proposé aurait un effet préjudiciable sur les droits de traité de la demanderesse, et que les avis publics et portes ouvertes standards proposés par la Couronne ne suffisaient pas, car la demanderesse avait droit à un processus de consultation direct. Par conséquent, le premier juge a cassé la décision de la Couronne approuvant la route.

La Couronne a interjeté appel avec succès et l'approbation de la route a été rétablie. La Cour d'appel a fondé ses

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motifs sur un nouvel argument relatif à la question principale, lequel a été présenté par le Procureur général de l'Alberta à titre d'intervenant en appel. Cet argument était que le traité envisageait expressément la prise des terres cédées pour divers usages, y compris des routes. La route d'hiver constituait une prise faite en conformité avec le traité plutôt qu'une violation. Le tribunal a aussi statué qu'il n'existait aucune obligation pour la Cour- onne de consulter la demanderesse relativement à la route, même si le faire aurait constitué une bonne pratique. La demanderesse a interjeté appel à la Cour suprême du Canada. En plus de faire des observations quant aux questions en appel, la demanderesse a aussi allégué que le Procureur général de l'Alberta avait excédé son rôle à titre d'intervenant en élargissant les questions en litige en appel ou en ajoutant des questions, et que ni la Cour d'appel fédérale ni la Cour suprême ne pouvait trancher l'affaire en se fondant sur ces arguments.

Arrêt: Le pourvoi a été accueilli. Le Procureur général de l'Alberta n'a pas excédé son rôle à titre d'intervenant. La décision approuvant la route d'hiver a été cassée pour d'autres motifs.

Binnie J. (McLachlin, J.C.C., Major, Bastarache, LeBel, Deschamps, Fish, Abella et Charron, JJ., souscrivant à son opinion): Le Procureur général de l'Alberta n'a pas excédé son rôle à titre d'intervenant. Les intervenants sont toujours autorisés à soumettre des arguments juridiques pour appuyer des conclusions juridiques à l'égard des questions dont est saisi le tribunal, pour autant que ces arguments ne nécessitent pas la preuve de faits addi- tionnels ou qu'ils ne soient pas injustes pour les parties. De plus, la demanderesse n'a pas indiqué quel était le préjudice causé par le nouvel argument. Même si l'argument avait été soumis au procès, aucune preuve additionnelle n'aurait pu lui apporter plus d'éclairage. L'historique du traité a été pleinement examiné au procès. La question portait sur les règles d'interprétation des traités, et non sur la preuve. Elle a toujours été au coeur de l'affaire et n'était pas de nature à pouvoir prendre la demanderesse par surprise. Il serait intolérable d'empêcher les tribunaux de donner effet à une analyse juridique correcte pour la simple raison qu'elle a été invoquée tardivement et par un intervenant plutôt que par une partie. Si le tribunal ignorait l'argument, il pourrait en résulter une injustice.

Cependant, la Couronne n'a pas rempli son obligation de consulter directement la demanderesse ou de minimiser les effets préjudiciables de la route d'hiver sur les droits de chasser, de pêcher et de piéger de la demanderesse. L'objectif fondamental du droit moderne en matière de droits ancestraux et droits de traité était de réconcilier les peuples autochtones et non autochtones ainsi que les réclamations, intérêts et ambitions de ces deux peuples. Le traité en question était l'un des plus importants de ceux datant de l'après-Confédération. Le principe de la consultation préalable à la modification de droits de traité existants était une matière d'importance générale, et le défaut de la Couronne d'avoir procédé à des consultations préalables minait le processus de réconciliation. La décision approuvant la route devait être cassée et l'affaire renvoyée à la Couronne pour qu'elle procède à une nouvelle consultation et un nouvel examen.

Le traité prévoyait que des portions de terres seraient périodiquement prises par la Couronne, mais le contexte historique et les tensions sous-jacentes à la mise en oeuvre du traité exigeaient un processus par lequel les terres pourraient être transférées d'une catégorie permettant à la demanderesse d'y chasser, pêcher et piéger, à une autre catégorie ne le permettant pas. Le contenu de ce processus était dicté par l'obligation de la Couronne d'agir honorablement. Une fois l'obligation déclenchée, son contenu variait en fonction du degré de l'effet préjudiciable qu'aurait sur les droits en question la conduite envisagée par la Couronne.

La route d'hiver proposée réduirait le territoire à l'égard duquel la demanderesse pouvait exercer ses droits de traité, empêcherait la chasse à l'intérieur du corridor et aurait un effet préjudiciable sur l'exercice par la demanderesse de ses droits dans le boisé environnant. La Couronne avait tort de suggérer que le test devrait être

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celui de savoir si, après la prise des terres, il était raisonnablement possible pour la demanderesse de chasser, pêcher et piéger « dans l'ensemble de la province ». Cela impliquerait que l'interdiction de chasser serait acceptable tant que la chasse serait possible dans 800 kilomètres à travers la province. Était également inacceptable la position du procureur général que le territoire de 23 kilomètres carrés était insignifiant; un droit réel de chasser n'est pas établi en fonction de toutes les terres visées par le traité, mais en fonction des territoires sur lesquels la demanderesse chassait, pêchait et piégeait traditionnellement et actuellement.

L'action unilatérale par la Couronne faisait abstraction de sa promesse orale et écrite de maintenir tels quels les droits de chasser et de pêcher après le traité, et était ainsi l'antithèse de la réconciliation et du respect mutuel. La Couronne n'avait pas à consulter toutes les premières nations signataires chaque fois qu'elle prenait des terres peu importe l'importance de l'effet, sauf que, en l'espèce, l'effet de la route d'hiver proposée sur la demanderesse était clair, établi et manifestement préjudiciable à l'exercice continu des droits de chasse et de pêche. Selon le cadre établi par le traité pour gérer les changements continus à l'usage des terres entrevus en 1899, la consultation était la clé pour atteindre l'objectif général du droit moderne en matière de traités et de droits ancestraux. Par conséquent, même si la route d'hiver constituait un objectif autorisé aux fins de la prise de terres, la Cour- onne avait cependant l'obligation d'avertir la demanderesse et de s'adresser à elle directement, et non pas seule- ment à travers une seule consultation publique. Même si la demanderesse avait l'obligation réciproque de faire connaître ses préoccupations et de tenter de trouver une solution mutuellement satisfaisante, la consultation dans ce cas-ci n'a jamais pris son envol et n'a donc jamais atteint ce stade. La consultation n'aurait pas donné un droit de veto à la demanderesse quant à la route, mais elle aurait probablement permis d'apporter des changements qui auraient répondu à l'essentiel de ses préoccupations. Cases considered by Binnie J.:

Athey v. Leonati (1996), [1997] 1 W.W.R. 97, 140 D.L.R. (4th) 235, 81 B.C.A.C. 243, 132 W.A.C. 243, 31 C.C.L.T. (2d) 113, 203 N.R. 36, [1996] 3 S.C.R. 458, 1996 CarswellBC 2295, 1996 CarswellBC 2296 (S.C.C.) — referred to

Canada (Attorney General) v. Ontario (Attorney General) (1895), 25 S.C.R. 434, 1895 CarswellNat 46 (S.C.C.) — considered

Haida Nation v. British Columbia (Minister of Forests) (2004), 245 D.L.R. (4th) 33, 19 Admin. L.R. (4th) 195, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, [2005] 3 W.W.R. 419, [2004] 3 S.C.R. 511, 36 B.C.L.R. (4th) 282, 327 N.R. 53, 206 B.C.A.C. 52, 338 W.A.C. 52, 2004 CarswellBC 2656, 2004 CarswellBC 2657, 2004 SCC 73 (S.C.C.) — considered

Lamb v. Kincaid (1907), 38 S.C.R. 516, 1907 CarswellYukon 51, 27 C.L.T. 489 (S.C.C.) — considered

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R. v. Bernard (2005), 15 C.E.L.R. (3d) 163, [2005] 3 C.N.L.R. 214, 198 C.C.C. (3d) 29, 255 D.L.R. (4th) 1, 2005 SCC 43, 2005 CarswellNS 317, 2005 CarswellNS 318, 336 N.R. 22 (S.C.C.) — referred to

R. v. Morgentaler (1993), [1993] 1 S.C.R. 462, 1993 CarswellNS 429, 1993 CarswellNS 429F (S.C.C.) — referred to

R. v. Smith (1935), [1935] 2 W.W.R. 433, 64 C.C.C. 131, [1935] 3 D.L.R. 703, 1935 CarswellSask 34 (Sask. C.A.) — considered

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. (2002), 2002 SCC 19, 2002 Carswel- lAlta 186, 2002 CarswellAlta 187, 20 B.L.R. (3d) 1, 209 D.L.R. (4th) 318, [2002] 5 W.W.R. 193, 98 Alta. L.R. (3d) 1, 283 N.R. 233, 299 A.R. 201, 266 W.A.C. 201, 50 R.P.R. (3d) 212, (sub nom. Performance In- dustries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.) [2002] 1 S.C.R. 678 (S.C.C.) — considered

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004), 245 D.L.R. (4th) 193, 19 Admin. L.R. (4th) 165, 11 C.E.L.R. (3d) 49, [2005] 1 C.N.L.R. 366, 26 R.P.R. (4th) 50, [2005] 3 W.W.R. 403, [2004] 3 S.C.R. 550, 36 B.C.L.R. (4th) 370, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) 327 N.R. 133, 206 B.C.A.C. 132, 338 W.A.C. 132, 2004 CarswellBC 2654, 2004 CarswellBC 2655, 2004 SCC 74 (S.C.C.) — considered

Statutes considered by Binnie J.:

Constitution Act, 1930, (U.K.), 20 & 21 Geo. 5, c. 26, reprinted R.S.C. 1985, App. II, No. 26

Sched. 2 — referred to

Sched. 2, s. 10 — referred to

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44

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Generally — referred to

s. 35 — referred to

s. 35(1) — considered

1986 Treaty Land Entitlement Agreement, S.C. 1988, c. 39

Generally — referred to

Royal Proclamation, 1763 (U.K.), reprinted R.S.C. 1985, App. II, No. 1

Generally — referred to

Treaties considered by Binnie J.:

Treaty No. 8, 1899

Generally — referred to

Regulations considered by Binnie J.:

Canada National Parks Act, S.C. 2000, c. 32

Wood Buffalo National Park Game Regulations, SOR/78-830

s. 36(5) — referred to

APPEAL by First Nation from judgment reported at Mikisew Cree First Nation v. Canada (Minister of Cana- dian Heritage) (2004), 2004 CarswellNat 762, 2004 CAF 66, 2004 CarswellNat 418, 2004 FCA 66, [2004] 2 C.N.L.R. 74, 317 N.R. 258, 236 D.L.R. (4th) 648, 247 F.T.R. 317 (note), [2004] F.C.J. No. 277, [2004] 3 F.C.R. 436 (F.C.A.), regarding Court of Appeal reversal of Federal Court decision to set aside Crown decision to build road on First Nation reserve.

POURVOI de la première nation à l'encontre de l'arrêt de la Cour d'appel fédérale publié à Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2004), 2004 CarswellNat 762, 2004 CAF 66, 2004 CarswellNat 418, 2004 FCA 66, [2004] 2 C.N.L.R. 74, 317 N.R. 258, 236 D.L.R. (4th) 648, 247 F.T.R. 317 (note), [2004] F.C.J. No. 277, [2004] 3 F.C.R. 436 (C.A.F.), qui a infirmé la décision de la Cour fédérale, 1re instance qui avait annulé la décision de la Couronne de construire une route passant à travers la réserve de la première nation.

Binnie J.:

1 The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people's concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies. And so it is in this case.

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2 Treaty 8 is one of the most important of the post-Confederation treaties. Made in 1899, the First Nations who lived in the area surrendered to the Crown 840,000 square kilometres of what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and the southern portion of the Northwest Territor- ies. Some idea of the size of this surrender is given by the fact that it dwarfs France (543,998 square kilometres), exceeds the size of Manitoba (650,087 square kilometres), Saskatchewan (651,900 square kilometres) and Al- berta (661,185 square kilometres) and approaches the size of British Columbia (948,596 square kilometres). In exchange for this surrender, the First Nations were promised reserves and some other benefits including, most importantly to them, the following rights of hunting, trapping, and fishing:

And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as before 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. [Emphasis added.]

(Report of Commissioners for Treaty No. 8 (1899), at p. 12)

3 In fact, for various reasons (including lack of interest on the part of First Nations), sufficient land was not set aside for reserves for the Mikisew Cree First Nation (the "Mikisew") until the 1986 Treaty Lands Entitlement Agreement, 87 years after Treaty 8 was made. Less than 15 years later, the federal government approved a 118-kilometre winter road that, as originally conceived, ran through the new Mikisew First Nation Reserve at Peace Point. The government did not think it necessary to engage in consultation directly with the Mikisew before making this decision. After the Mikisew protested, the winter road alignment was changed to track the boundary of the Peace Point reserve instead of running through it, again without consultation with the Mikisew. The modified road alignment traversed the traplines of approximately 14 Mikisew families who reside in the area near the proposed road, and others who may trap in that area although they do not live there, and the hunting grounds of as many as 100 Mikisew people whose hunt (mainly of moose), the Mikisew say, would be adversely affected. The fact the proposed winter road directly affects only about 14 Mikisew trappers and perhaps 100 hunters may not seem very dramatic (unless you happen to be one of the trappers or hunters in question) but, in the context of a remote northern community of relatively few families, it is significant. Beyond that, however, the principle of consultation in advance of interference with existing treaty rights is a matter of broad general importance to the relations between aboriginal and non-aboriginal peoples. It goes to the heart of the relationship and concerns not only the Mikisew but other First Nations and non-aboriginal governments as well.

4 In this case, the relationship was not properly managed. Adequate consultation in advance of the Minis- ter's approval did not take place. The government's approach did not advance the process of reconciliation but undermined it. The duty of consultation which flows from the honour of the Crown, and its obligation to respect the existing treaty rights of aboriginal peoples (now entrenched in s. 35 of the Constitution Act, 1982), was breached. The Mikisew appeal should be allowed, the Minister's approval quashed, and the matter returned to the Minister for further consultation and consideration.

I. Facts

5 About 5 percent of the territory surrendered under Treaty 8 was set aside in 1922 as Wood Buffalo Na- tional Park. The Park was created principally to protect the last remaining herds of wood bison (or buffalo) in northern Canada and covers 44,807 square kilometres of land straddling the boundary between northern Alberta

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and southerly parts of the Northwest Territories. It is designated a UNESCO World Heritage Site. The Park itself is larger than Switzerland.

6 At present, it contains the largest free-roaming, self-regulating bison herd in the world, the last remaining natural nesting area for the endangered whooping crane, and vast undisturbed natural boreal forests. More to the point, it was been inhabited by First Nation peoples for more than over 8,000 years, some of whom still earn a subsistence living hunting, fishing and commercial trapping within the Park boundaries. The Park includes the traditional lands of the Mikisew. As a result of the Treaty Land Entitlement Agreement, the Peace Point Reserve was formally excluded from the Park in 1988 but of course is surrounded by it.

7 The members of the Mikisew Cree First Nation are descendants of the Crees of Fort Chipewyan who signed Treaty 8 on June 21, 1899. It is common ground that its members are entitled to the benefits of Treaty 8.

A. The Winter Road Project

8 The proponent of the winter road is the respondent Thebacha Road Society, whose members include the Town of Fort Smith (located in the Northwest Territories on the northeastern boundary of Wood Buffalo Nation- al Park, where the Park headquarters is located), the Fort Smith Métis Council, the Salt River First Nation, and Little Red River Cree First Nation. The advantage of the winter road for these people is that it would provide direct winter access among a number of isolated northern communities and to the Alberta highway system to the south. The trial judge accepted that the government's objective was to meet "regional transportation needs": (2001), 214 F.T.R. 48, 2001 FCT 1426 (Fed. T.D.), at para. 115.

B. The Consultation Process

9 According to the trial judge, most of the communications relied on by the Minister to demonstrate appropriate consultation were instances of the Mikisew's being provided with standard information about the proposed road in the same form and substance as the communications being distributed to the general public of interested stakeholders. Thus Parks Canada acting for the Minister, provided the Mikisew with the Terms of Reference for the environmental assessment on January 19, 2000. The Mikisew were advised that open house sessions would take place over the summer of 2000. The Minister says that the first formal response from the Mikisew did not come until October 10, 2000, some two months after the deadline she had imposed for "public" comment. Chief Poitras stated that the Mikisew did not formally participate in the open houses, because "...an open house is not a forum for us to be consulted adequately".

10 Apparently, Parks Canada left the proponent Thebacha Road Society out of the information loop as well. At the end of January 2001, it advised Chief Poitras that it had just been informed that the Mikisew did not support the road. Up to that point, Thebacha had been led to believe that the Mikisew had no objection to the road's going through the reserve. Chief Poitras wrote a further letter to the Minister on January 29, 2001 and received a standard-form response letter from the Minister's office stating that the correspondence "will be given every consideration".

11 Eventually, after several more miscommunications, Parks Canada wrote Chief Poitras on April 30, 2001, stating in part: "I apologize to you and your people for the way in which the consultation process unfolded concerning the proposed winter road and any resulting negative public perception of the [Mikisew Cree First Na- tion]". At that point, in fact, the decision to approve the road with a modified alignment had already been taken.

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12 On May 25, 2001, the Minister announced on the Parks Canada website that the Thebacha Road Society was authorised to build a winter road 10 metres wide with posted speed limits ranging from 10 to 40 kilometres per hour. The approval was said to be in accordance with "Parks Canada plans and policy" and "other federal laws and regulations". No reference was made to any obligations to the Mikisew.

13 The Minister now says the Mikisew ought not to be heard to complain, about the process of consultation because they declined to participate in the public process that took place. Consultation is a two-way street, she says. It was up to the Mikisew to take advantage of what was on offer. They failed to do so. In the Minister's view, she did her duty.

14 The proposed winter road is wide enough to allow two vehicles to pass. Pursuant to s. 36(5) of the Wood Buffalo National Park Game Regulations, SOR/78-830, creation of the road would trigger a 200-metre wide corridor within which the use of firearms would be prohibited. The total area of this corridor would be approximately 23 square kilometres.

15 The Mikisew objection goes beyond the direct impact of closure of the area covered by the winter road to hunting and trapping. The surrounding area would be, the trial judge found, injuriously affected. Maintaining a traditional lifestyle, which the Mikisew say is central to their culture, depends on keeping the land around the Peace Point reserve in its natural condition and this, they contend, is essential to allow them to pass their culture and skills onto the next generation of Mikisew. The detrimental impact of the road on hunting and trapping, they argue, may simply prove to be one more incentive for their young people to abandon a traditional lifestyle and turn to other modes of living in the south.

16 The Mikisew applied to the Federal Court to set aside the Minister's approval based on their view of the Crown's fiduciary duty, claiming that the Minister owes "a fiduciary and constitutional duty to adequately consult with Mikisew Cree First Nation with regard to the construction of the road" (trial judge, para. 26).

17 An interlocutory injunction against construction of the winter road was issued by the Federal Court, Trial Division on August 27, 2001.

II. Relevant Enactments

18 Constitution Act, 1982

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

III. Judicial History

A. Federal Court, Trial Division ( (2001), 214 F.T.R. 48, 2001 FCT 1426 (Fed. T.D.))

19 Hansen J. held that the lands included in Wood Buffalo National Park were not "taken up" by the Crown within the meaning of Treaty 8 because the use of the lands as a national park did not constitute a "visible use" incompatible with the existing rights to hunt and trap (R. v. Badger, [1996] 1 S.C.R. 771 (S.C.C.); Sioui v. Que- bec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.)). The proposed winter road and its 200-metre "[no] firearm" corridor would adversely impact the Mikisew's treaty rights. These rights received constitutional protection in 1982, and any infringements must be justified in accordance with the test in R. v. Sparrow, [1990] 1 S.C.R.

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1075 (S.C.C.). In Hansen J.'s view, the Minister's decision to approve the road infringed the Mikisew's Treaty 8 rights and could not be justified under the R. v. Sparrow test.

20 In particular, the trial judge held that the standard public notices and open houses which were given were not sufficient. The Mikisew were entitled to a distinct consultation process. She stated at paras. 170-71:

The applicant complains that the mitigation measures attached to the Minister's decision were not developed in consultation with Mikisew and were not designed to minimize impacts on Mikisew's rights. I agree. Even the realignment, apparently adopted in response to Mikisew's objections, was not developed in consultation with Mikisew. The evidence does not establish that any consideration was given to whether the new route would minimize impacts on Mikisew's treaty rights. The evidence of Chief George Poitras highlighted an air of secrecy surrounding the realignment, a process that should have included a transparent consideration of Mikisew's concerns.

Parks Canada admitted it did not consult with Mikisew about the route for the realignment, nor did it consider the impacts of the realignment on Mikisew trappers' rights.

21 Accordingly, the trial judge allowed the application for judicial review and quashed the Minister's approval.

B. Federal Court of Appeal ([2004] 3 F.C.R. 436, 2004 FCA 66 (F.C.A.))

22 Rothstein J.A., with whom Sexton J.A. agreed, allowed the appeal and restored the Minister's approval. He did so on the basis of an argument brought forward by the Attorney General of Alberta as an intervener on the appeal. The argument was that Treaty 8 expressly contemplated the "taking up" of surrendered lands for various purposes, including roads. The winter road was more properly seen as a "taking up" pursuant to the Treaty rather than an infringement of it. As Rothstein J.A. held:

Where a limitation expressly provided for by a treaty applies, there is no infringement of the treaty and thus no infringement of section 35. This is to be contrasted with the case where the limitations provided by the treaty do not apply but the government nevertheless seeks to limit the treaty right. In such a case, the Spar- row test must be satisfied in order for the infringement to be constitutionally permissible. [para. 21]

Rothstein J.A. also held that there was no obligation on the Minister to consult with the Mikisew about the road, although to do so would be "good practice" (para. 24). (This opinion was delivered before the release of this Court's decisions in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (S.C.C.), and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74 (S.C.C.).)

23 Sharlow J.A., in dissenting reasons, agreed with the trial judge that the winter road approval was itself a prima facie infringement of the Treaty 8 rights and that the infringement had not been justified under the Spar- row test. The Crown's obligation as a fiduciary must be considered. The failure of the Minister's staff at Parks Canada to engage in meaningful consultation was fatal to the Crown's attempt at justification. She wrote:

In this case, there is no evidence of any good faith effort on the part of the Minister to understand or address the concerns of Mikisew Cree First Nation about the possible effect of the road on the exercise of their Treaty 8 hunting and trapping rights. It is significant, in my view, that Mikisew Cree First Nation was not

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even told about the realignment of the road corridor to avoid the Peace Point Reserve until after it had been determined that the realignment was possible and reasonable, in terms of environmental impact, and after the road was approved. That invites the inference that the responsible Crown officials believed that as long as the winter road did not cross the Peace Point Reserve, any further objections of the Mikisew Cree First Nation could be disregarded. Far from meaningful consultation, that indicates a complete disregard for the concerns of Mikisew Cree First Nation about the breach of their Treaty 8 rights. [para. 152]

Sharlow J.A. would have dismissed the appeal.

IV. Analysis

24 The post-Confederation numbered treaties were designed to open up the Canadian west and northwest to settlement and development. Treaty 8 itself recites that "the said Indians have been notified and informed by Her Majesty's said Commission that it is Her desire to open for settlement, immigration, trade, travel, mining, lumbering and such other purposes as to Her Majesty may seem meet". This stated purpose is reflected in a corres- ponding limitation on the Treaty 8 hunting, fishing and trapping rights to exclude such "tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". The "other purposes" would be at least as broad as the purposes listed in the recital, mentioned above, including "travel".

25 There was thus from the outset an uneasy tension between the First Nations' essential demand that they continue to be as free to live off the land after the treaty as before and the Crown's expectation of increasing numbers of non-aboriginal people moving into the surrendered territory. It was seen from the beginning as an ongoing relationship that would be difficult to manage, as the Commissioners acknowledged at an early Treaty 8 negotiation at Lesser Slave Lake in June 1899:

The white man is bound to come in and open up the country, and we come before him to explain the relations that must exist between you, and thus prevent any trouble.

(C. Mair, Through the Mackenzie Basin: A Narrative of the Athabasca and Peace River Treaty Expedition of 1899, at p. 61).

As Cory J. explained in Badger, at para. 57, "[t]he Indians understood that land would be taken up for homesteads, farming, prospecting and mining and that they would not be able to hunt in these areas or to shoot at the settlers' farm animals or buildings".

26 The hunting, fishing and trapping rights were not solely for the benefit of First Nations people. It was in the Crown's interest to keep the aboriginal people living off the land, as the Commissioners themselves acknowledged in their Report on Treaty 8 dated September 22, 1899 (at p. 5):

We pointed out that the Government could not undertake to maintain Indians in idleness; that the same means of earning a livelihood would continue after the treaty as existed before it, and that the Indians would be expected to make use of them.

27 Thus none of the parties in 1899 expected that Treaty 8 constituted a finished land use blueprint. Treaty 8 signalled the advancing dawn of a period of transition. The key, as the Commissioners pointed out, was to "explain the relations" that would govern future interaction "and thus to prevent any trouble" (Mair, at p. 61).

A. Interpretation of the Treaty

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28 The interpretation of the treaty "must be realistic and reflect the intentions of both parties, not just that of the [First Nation]" (Sioui, at p. 1069). As a majority of the Court stated in Marshall v. Canada, [1999] 3 S.C.R. 456 (S.C.C.), at para. 14:

The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown's approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty ... the completeness of any written record ... and the interpretation of treaty terms once found to exist. The bottom line is the Court's obligation is to "choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles" the [First Nation] interests and those of the Crown. [Citations omitted.]

See also R. v. Bernard, 2005 SCC 43 (S.C.C.), per McLachlin C.J. at paras. 22-24, and per LeBel J. at para. 115.

29 The Minister is therefore correct to insist that the clause governing hunting, fishing and trapping cannot be isolated from the treaty as a whole, but must be read in the context of its underlying purpose, as intended by both the Crown and the First Nations peoples. Within that framework, as Cory J. pointed out in Badger

...the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. [p. 799]

30 In the case of Treaty 8, it was contemplated by all parties that "from time to time" portions of the surrendered land would be "taken up" and transferred from the inventory of lands over which the First Nations had treaty rights to hunt, fish and trap, and placed in the inventory of lands where they did not. Treaty 8 lands lie to the north of Canada and are largely unsuitable for agriculture. The Commissioners who negotiated Treaty 8 could therefore express confidence to the First Nations that, as previously mentioned, "the same means of earning a livelihood would continue after the treaty as existed before it" (p. 5).

31 I agree with Rothstein J.A. that not every subsequent "taking up" by the Crown constituted an infringement of Treaty 8 that must be justified according to the test set out in Sparrow. In Sparrow, it will be remembered, the federal government's fisheries regulations infringed the aboriginal fishing right, and had to be strictly justified. This is not the same situation as we have here, where the aboriginal rights have been surrendered and extinguished, and the Treaty 8 rights are expressly limited to lands not "required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". (Emphasis added.) The language of the treaty could not be clearer in foreshadowing change. Nevertheless the Crown was and is expected to manage the change honourably.

32 It follows that I do not accept the Sparrow -oriented approach adopted in this case by the trial judge, who relied in this respect on Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 178 D.L.R. (4th) 666, 1999 BCCA 470 (B.C. C.A.). In that case, a majority of the British Columbia Court of Appeal held that the government's right to take up land was "by its very nature limited" (para. 138) and "that any interference with the right to hunt is a prima facie infringement of the Indians' treaty right as protected by s. 35 of the Consti- tution Act, 1982" (para. 144 (emphasis in original)) which must be justified under the Sparrow test. The Mikisew strongly support the Halfway River First Nation test but, with respect, to the extent the Mikisew interpret Halfway River First Nation as fixing in 1899 the geographic boundaries of the Treaty 8 hunting right, and holding that any post-1899 encroachment on these geographic limits requires a Sparrow -type justification, I

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cannot agree. The Mikisew argument presupposes that Treaty 8 promised continuity of nineteenth century patterns of land use. It did not, as is made clear both by the historical context in which Treaty 8 was concluded and the period of transition it foreshadowed.

B. The Process of Treaty Implementation

33 Both the historical context and the inevitable tensions underlying implementation of Treaty 8 demand a process by which lands may be transferred from the one category (where the First Nations retain rights to hunt, fish and trap) to the other category (where they do not). The content of the process is dictated by the duty of the Crown to act honourably. Although Haida Nation was not a treaty case, McLachlin C.J. pointed out, at paras. 19 and 35:

The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of "sharp dealing" (Badger, at para. 41). Thus in Marshall, supra, at para. 4, the majority of this Court supported its interpretation of a treaty by stating that "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship".

.....

34 In the case of a treaty the Crown, as a party, will always have notice of its contents. The question in each case will therefore be to determine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult. Haida Nation and Taku River Tlingit First Nation set a low threshold. The flexibility lies not in the trigger ("might adversely affect it") but in the variable content of the duty once triggered. At the low end, "the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice" (Haida Nation, at para. 43). The Mikisew say that even the low end content was not satisfied in this case.

C. The Mikisew Legal Submission

35 The appellant, the Mikisew, essentially reminded the Court of what was said in Haida Nation and Taku River Tlingit First Nation. This case, the Mikisew say, is stronger. In those cases, unlike here, the aboriginal interest to the lands was asserted but not yet proven. In this case, the aboriginal interests are protected by Treaty 8. They are established legal facts. As in Haida Nation, the trial judge found the aboriginal interest was threatened by the proposed development. If a duty to consult was found to exist in Haida Nation and Taku River Tlingit First Nation then a fortiori, the Mikisew argue, it must arise here and the majority judgment of the Federal Court of Appeal was quite wrong to characterise consultation between governments and aboriginal peoples as nothing more than a "good practice" (para. 24).

D. The Minister's Response

36 The respondent Minister seeks to distinguish Haida Nation and Taku River Tlingit First Nation. Her

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counsel advances three broad propositions in support of the Minister's approval of the proposed winter road.

1. In "taking up" the 23 square kilometres for the winter road the Crown was doing no more than Treaty 8 entitled it to do. The Crown as well as First Nations have rights under Treaty 8. The exercise by the Crown of its Treaty right to "take up" land is not an infringement of the Treaty but the performance of it.

2. The Crown went through extensive consultations with First Nations in 1899 at the time Treaty 8 was negotiated. Whatever duty of accommodation was owed to First Nations was discharged at that time. The terms of the Treaty do not contemplate further consultations whenever a "taking up" occurs.

3. In the event further consultation was required, the process followed by the Minister through Parks Canada in this case was sufficient.

37 For the reasons that follow, I believe that each of these propositions must be rejected.

(1) In "taking up" Land for the Winter Road the Crown Was Doing No More Than It Was Entitled To Do Under the Treaty

38 The majority judgment in the Federal Court of Appeal held that "[w]ith the exceptions of cases where the Crown has taken up land in bad faith or has taken up so much land that no meaningful right to hunt remains, taking up land for a purpose express or necessarily implied in the treaty itself cannot be considered an infringement of the treaty right to hunt" (para. 19).

39 The "Crown rights" argument was initially put forward in the Federal Court of Appeal by the Attorney General of Alberta as an intervener. The respondent Minister advised the Federal Court of Appeal that, while she did not dispute the argument, "[she] was simply not relying on it" (para. 3). As a preliminary objection, the Mikisew say that an intervener is not permitted "to widen or add to the points in issue": R. v. Morgentaler, [1993] 1 S.C.R. 462 (S.C.C.), at p. 463. Therefore it was not open to the Federal Court of Appeal (or this Court) to decide the case on this basis.

(a) Preliminary Objection: Did the Attorney General of Alberta Overstep the Proper Role of an Intervener?

40 This branch of the Mikisew argument is, with respect, misconceived. In their application for judicial review the Mikisew argued that the Minister's approval of the winter road infringed Treaty 8. The infringement issue has been central to the proceedings. It is always open to an intervener to put forward any legal argument in support of what it submits is the correct legal conclusion on an issue properly before the Court, provided that in doing so its legal argument does not require additional facts, not proven in evidence at trial or raise an argument that is otherwise unfair to one of the parties. An intervener is in no worse a position than a party who belatedly discovers some legal argument that it ought to have raised earlier in the proceedings but did not, as in Lamb v. Kincaid (1907), 38 S.C.R. 516 (S.C.C.), where Duff J. stated, at p. 539:

A court of appeal, I think, should not give effect to such a point taken for the first time in appeal, unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it.

See also Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.), at paras. 51-52.

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41 Even granting that the Mikisew can fairly say the Attorney General of Alberta frames the non- infringement argument differently than was done by the federal Minister at trial, the Mikisew have still not identified any prejudice. Had the argument been similarly formulated at trial, how could "further light" have been thrown on it by additional evidence? The historical record was fully explored at trial. At this point the issue is one of the rules of treaty interpretation, not evidence. It thus comes within the rule stated in Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd., [2002] 1 S.C.R. 678, 2002 SCC 19 (S.C.C.), that "the Court is free to consider a new issue of law on the appeal where it is able to do so without procedural prejudice to the opposing party and where the refusal to do so would risk an injustice" (para. 33). Here the Attorney General of Al- berta took the factual record as he found it. The issue of treaty infringement has always been central to the case. Alberta's legal argument is not one that should have taken the Mikisew by surprise. In these circumstances it would be intolerable if the courts were precluded from giving effect to a correct legal analysis just because it came later rather than sooner and from an intervener rather than a party. To close our eyes to the argument would be to "risk an injustice".

(b) The Content of Treaty 8

42 The "hunting, trapping and fishing clause" of Treaty 8 was extensively reviewed by this Court in Badger. In that case Cory J. pointed out that "even by the terms of Treaty No. 8 the Indians' right to hunt for food was circumscribed by both geographical limitations and by specific forms of government regulation" (para. 37). The members of the First Nations, he continued, "would have understood that land had been 'required or taken up' when it was being put to a [visible] use which was incompatible with the exercise of the right to hunt" (para. 53).

[T]he oral promises made by the Crown's representatives and the Indians' own oral history indicate that it was understood that land would be taken up and occupied in a way which precluded hunting when it was put to a visible use that was incompatible with hunting. Turning to the case law, it is clear that the courts have also accepted this interpretation and have concluded that whether or not land has been taken up or occupied is a question of fact that must be resolved on a case-by-case basis. (para. 58)

43 While Badger noted the "geographic limitation" to hunting, fishing and trapping rights, it did not (as it did not need to) discuss the process by which "from time to time" land would be "taken up" and thereby excluded from the exercise of those rights. The actual holding in Badger was that the Alberta licensing regime sought to be imposed on all aboriginal hunters within the Alberta portion of Treaty 8 lands infringed Treaty 8, even though the treaty right was expressly made subject to "regulations as may from time to time be made by the government". The Alberta licensing scheme denied to "holders of treaty rights as modified by the [Natural Re- sources Transfer Agreement, 1930] the very means of exercising those rights" (para. 94). It was thus an attempted exercise of regulatory power that went beyond what was reasonably within the contemplation of the parties to the treaty in 1899. (I note parenthetically that the Natural Resources Transfer Agreement (NRTA) is not at issue in this case as the Mikisew reserve is vested in Her Majesty in Right of Canada. Section 10 of the NRTA provides that after-created reserves "shall thereafter be administered by Canada in the same way in all respects as if they had never passed to the Province under the provisions hereof".)

44 The Federal Court of Appeal purported to follow Badger in holding that the hunting, fishing and trapping rights would be infringed only "where the Crown has taken up land in bad faith or has taken up so much land that no meaningful right to hunt remains" (para. 18). With respect, I cannot agree with this implied rejection of the Mikisew procedural rights. At this stage the winter road is no more than a contemplated change of use. The

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proposed use would, if carried into execution, reduce the territory over which the Mikisew would be entitled to exercise their Treaty 8 rights. Apart from everything else, there would be no hunting at all within the 200-metre road corridor. More broadly, as found by the trial judge, the road would injuriously affect the exercise of these rights in the surrounding bush. As the Parks Canada witness, Josie Weninger, acknowledged in cross-examination:

Q: But roads, in effect, change the pattern of moose and other wildlife within the Park and that's been what Parks Canada observed in the past with regards to other roads, correct?

A: It is documented that roads do impact. I would be foolish if I said they didn't.

The Draft Environmental Assessment Report acknowledged the road could potentially result in a diminution in quantity of the Mikisew harvest of wildlife, as fewer furbearers (including fisher, muskrat, marten, wolverine and lynx) will be caught in their traps. Second, in qualitative terms, the more lucrative or rare species of furbearers may decline in population. Other potential impacts include fragmentation of wildlife habitat, disruption of migration patterns, loss of vegetation, increased poaching because of easier motor vehicle access to the area and increased wildlife mortality due to motor vehicle collisions. While Haida Nation was decided after the release of the Federal Court of Appeal reasons in this case, it is apparent that the proposed road will adversely affect the existing Mikisew hunting and trapping rights, and therefore that the "trigger" to the duty to consult identified in Haida Nation is satisfied.

45 The Minister seeks to extend the dictum of Rothstein J.A. by asserting, at para. 96 of her factum, that the test ought to be "whether, after the taking up, it still remains reasonably practicable, within the Province as a whole, for the Indians to hunt, fish and trap for food [to] the extent that they choose to do so" (emphasis added). This cannot be correct. It suggests that a prohibition on hunting at Peace Point would be acceptable so long as decent hunting was still available in the Treaty 8 area north of Jasper, about 800 kilometres distant across the province, equivalent to a commute between Toronto and Quebec City (809 kilometres) or Edmonton and Regina (785 kilometres). One might as plausibly invite the truffle diggers of southern France to try their luck in the Austrian Alps, about the same distance as the journey across Alberta deemed by the Minister to be an acceptable fulfilment of the promises of Treaty 8.

46 The Attorney General of Alberta tries a slightly different argument, at para. 49 of his factum, adding a de minimus element to the treaty-wide approach:

In this case the amount of land to be taken up to construct the winter road is 23 square kilometres out of 44,807 square kilometres of Wood Buffalo National Park and out of 840,000 square kilometres encompassed by Treaty No. 8. As Rothstein J.A. found, this is not a case where a meaningful right to hunt no longer remains.

47 The arguments of the federal and Alberta Crowns simply ignore the significance and practicalities of a First Nation's traditional territory. Alberta's 23 square kilometre argument flies in the face of the injurious affec- tion of surrounding lands as found by the trial judge. More significantly for aboriginal people, as for non- aboriginal people, location is important. Twenty-three square kilometres alone is serious if it includes the claimants' hunting ground or trap line. While the Mikisew may have rights under Treaty 8 to hunt, fish and trap throughout the Treaty 8 area, it makes no sense from a practical point of view to tell the Mikisew hunters and trappers that, while their own hunting territory and traplines would now be compromised, they are entitled to in- vade the traditional territories of other First Nations distant from their home turf (a suggestion that would have

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been all the more impractical in 1899). The Chipewyan negotiators in 1899 were intensely practical people, as the Treaty 8 Commissioners noted in their report (at p. 5):

The Chipewyans confined themselves to asking questions and making brief arguments. They appeared to be more adept at cross-examination than at speech-making, and the Chief at Fort Chipewyan displayed considerable keenness of intellect and much practical sense in pressing the claims of his band.

Badger recorded that a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity. Continuity respects traditional patterns of activity and occupation. The Crown promised that the Indians' rights to hunt, fish and trap would continue "after the treaty as existed before it" (p. 5). This promise is not honoured by dispatching the Mikisew to territories far from their traditional hunting grounds and traplines.

48 What Rothstein J.A. actually said at para. 18 is as follows:

With the exceptions of cases where the Crown has taken up land in bad faith or has taken up so much land that no meaningful right to hunt remains, taking up land for a purpose express or necessarily implied in the treaty itself cannot be considered an infringement of the treaty right to hunt. [Emphasis added.]

The "meaningful right to hunt" is not ascertained on a treaty-wide basis (all 840,000 square kilometres of it) but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so today. If the time comes that in the case of a particular Treaty 8 First Nation "no meaningful right to hunt" remains over its traditional territories, the significance of the oral promise that "the same means of earning a livelihood would continue after the treaty as existed before it" would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response.

49 There is in the Minister's argument a strong advocacy of unilateral Crown action (a sort of "this is surrendered land and we can do with it what we like" approach) which not only ignores the mutual promises of the treaty, both written and oral, but also is the antithesis of reconciliation and mutual respect. It is all the more ex- traordinary given the Minister's acknowledgment at para. 41 of her factum that "[i]n many if not all cases the government will not be able to appreciate the effect a proposed taking up will have on the Indians' exercise of hunting, fishing and trapping rights without consultation".

50 The Attorney General of Alberta denies that a duty of consultation can be an implied term of Treaty 8. He argues:

Given that a consultation obligation would mean that the Crown would be required to engage in meaningful consultations with any and all affected Indians, being nomadic individuals scattered across a vast expanse of land, every time it wished to utilize an individual plot of land or change the use of the plot, such a requirement would not be within the range of possibilities of the common intention of the parties. [para. 27]

The parties did in fact contemplate a difficult period of transition and sought to soften its impact as much as possible, and any administrative inconvenience incidental to managing the process was rejected as a defence in Haida Nation and Taku River Tlingit First Nation. There is no need to repeat here what was said in those cases

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about the overarching objective of reconciliation rather than confrontation.

(d) Honour of the Crown

51 The duty to consult is grounded in the honour of the Crown, and it is not necessary for present purposes to invoke fiduciary duties. The honour of the Crown is itself a fundamental concept governing treaty interpretation and application that was referred to by Gwynne J. of this Court as a treaty obligation as far back as 1895, four years before Treaty 8 was concluded: Canada (Attorney General) v. Ontario (Attorney General) (1895), 25 S.C.R. 434 (S.C.C.), at pp. 511-12 per Gwynne J. (dissenting). While he was in the minority in his view that the treaty obligation to pay Indian annuities imposed a trust on provincial lands, nothing was said by the majority in that case to doubt that the honour of the Crown was pledged to the fulfilment of its obligations to the Indians. This had been the Crown's policy as far back as the Royal Proclamation of 1763, and is manifest in the promises recorded in the report of the Commissioners. The honour of the Crown exists as a source of obligation independ- ently of treaties as well, of course. In Sparrow, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.), Haida Nation and Taku River Tlingit First Nation, the "honour of the Crown" was invoked as a central principle in resolving aboriginal claims to consultation despite the absence of any treaty.

52 It is not as though the Treaty 8 First Nations did not pay dearly for their entitlement to honourable conduct on the part of the Crown; surrender of the aboriginal interest in an area larger than France is a hefty purchase price.

(2) Did the Extensive Consultations with First Nations Undertaken in 1899 at the Time Treaty 8 Was Negotiated Discharge the Crown's Duty of Consultation and Accommodation?

53 The Crown's second broad answer to the Mikisew claim is that whatever had to be done was done in 1899. The Minister contends:

While the government should consider the impact on the treaty right, there is no duty to accommodate in this context. The treaty itself constitutes the accommodation of the aboriginal interest; taking up lands, as defined above, leaves intact the essential ability of the Indians to continue to hunt, fish and trap. As long as that promise is honoured, the treaty is not breached and no separate duty to accommodate arises. [Emphasis added.]

54 This is not correct. Consultation that excludes from the outset any form of accommodation would be meaningless. The contemplated process is not simply one of giving the Mikisew an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along. Treaty making is an important stage in the long process of reconciliation, but it is only a stage. What occurred at Fort Chipewyan in 1899 was not the complete discharge of the duty arising from the honour of the Crown, but a rededication of it.

55 The Crown has a treaty right to "take up" surrendered lands for regional transportation purposes, but the Crown is nevertheless under an obligation to inform itself of the impact its project will have on the exercise by the Mikisew of their hunting and trapping rights, and to communicate its findings to the Mikisew. The Crown must then attempt to deal with the Mikisew "in good faith, and with the intention of substantially addressing" Mikisew concerns (Delgamuukw, at para. 168). This does not mean that whenever a government proposes to do anything in the Treaty 8 surrendered lands it must consult with all signatory First Nations, no matter how remote or unsubstantial the impact. The duty to consult is, as stated in Haida Nation, triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the Crown's duty. Here the impacts were clear, estab-

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lished and demonstrably adverse to the continued exercise of the Mikisew hunting and trapping rights over the lands in question.

56 In summary, the 1899 negotiations were the first step in a long journey that is unlikely to end any time soon. Viewed in light of the facts of this case, we should qualify Badger 's identification of two inherent limitations on Indian hunting, fishing and trapping rights under Treaty 8 (geographical limits and specific forms of government regulation) by a third, namely the Crown's right to take up lands under the treaty, which itself is subject to its duty to consult and, if appropriate, accommodate First Nations' interests before reducing the area over which their members may continue to pursue their hunting, trapping and fishing rights. Such a third quali- fication (not at issue in Badger) is fully justified by the history of the negotiations leading to Treaty 8, as well as by the honour of the Crown as previously discussed.

57 As stated at the outset, the honour of the Crown infuses every treaty and the performance of every treaty obligation. Treaty 8 therefore gives rise to Mikisew procedural rights (e.g. consultation) as well as substantive rights (e.g. hunting, fishing and trapping rights). Were the Crown to have barrelled ahead with implementation of the winter road without adequate consultation, it would have been in violation of its procedural obligations, quite apart from whether or not the Mikisew could have established that the winter road breached the Crown's substantive treaty obligations as well.

58 Sparrow holds not only that rights protected by s. 35 of the Constitution Act, 1982 are not absolute, but also that their breach may be justified by the Crown in certain defined circumstances. The Mikisew rights under Treaty 8 are protected by s. 35. The Crown does not seek to justify in Sparrow -terms shortcomings in its consultation in this case. The question that remains, therefore, is whether what the Crown did here complied with its obligation to consult honourably with the Mikisew First Nation.

(3) Was the Process Followed by the Minister Through Parks Canada in this Case Sufficient?

59 Where, as here, the Court is dealing with a proposed "taking up" it is not correct (even if it is concluded that the proposed measure if implemented would infringe the treaty hunting and trapping rights) to move directly to a Sparrow analysis. The Court must first consider the process by which the "taking up" is planned to go ahead, and whether that process is compatible with the honour of the Crown. If not, the First Nation may be entitled to succeed in setting aside the Minister's order on the process ground whether or not the facts of the case would otherwise support a finding of infringement of the hunting, fishing and trapping rights.

60 I should state at the outset that the winter road proposed by the Minister was a permissible purpose for "taking up" lands under Treaty 8. It is obvious that the listed purposes of "settlement, mining, lumbering" and "trading" all require suitable transportation. The treaty does not spell out permissible "other purposes" but the term should not be read restrictively: R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.), at pp. 440-41. In any event, as noted earlier, the opening recital of Treaty 8 refers to "travel".

61 The question is whether the Minister and her staff pursued the permitted purpose of regional transportation needs in accordance with the Crown's duty to consult. The answer turns on the particulars of that duty shaped by the circumstances here. In Delgamuukw, the Court considered the duty to consult and accommodate in the context of an infringement of aboriginal title (at para. 168):

In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course,

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even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. [Emphasis added.]

62 In Haida Nation, the Court pursued the kinds of duties that may arise in pre-proof claim situations, and McLachlin C.J. used the concept of a spectrum to frame her analysis (at paras. 43-45):

At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice....

At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non- compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case....

63 The determination of the content of the duty to consult will, as Haida suggests, be governed by the context. One variable will be the specificity of the promises made. Where, for example, a treaty calls for certain supplies, or Crown payment of treaty monies, or a modern land claims settlement imposes specific obligations on aboriginal peoples with respect to identified resources, the role of consultation may be quite limited. If the respective obligations are clear the parties should get on with performance. Another contextual factor will be the seriousness of the impact on the aboriginal people of the Crown's proposed course of action. The more serious the impact the more important will be the role of consultation. Another factor in a non-treaty case, as Haida points out, will be the strength of the aboriginal claim. The history of dealings between the Crown and a particular First Nation may also be significant. Here, the most important contextual factor is that Treaty 8 provides a framework within which to manage the continuing changes in land use already foreseen in 1899 and expected, even now, to continue well into the future. In that context, consultation is key to achievement of the overall objective of the modern law of treaty and aboriginal rights, namely reconciliation.

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engagement ought to have included the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights. The Crown did not discharge this obligation when it unilaterally declared the road realignment would be shifted from the reserve itself to a track along its boundary. I agree on this point with what Finch J.A. (now C.J.B.C.) said in Halfway River First Nation at paras. 159-160.

The fact that adequate notice of an intended decision may have been given does not mean that the requirement for adequate consultation has also been met.

The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action. [Emphasis added.]

65 It is true, as the Minister argues, that there is some reciprocal onus on the Mikisew to carry their end of the consultation, to make their concerns known, to respond to the government's attempt to meet their concerns and suggestions, and to try to reach some mutually satisfactory solution. In this case, however, consultation never reached that stage. It never got off the ground.

66 Had the consultation process gone ahead, it would not have given the Mikisew a veto over the alignment of the road. As emphasized in Haida Nation, consultation will not always lead to accommodation, and accommodation may or may not result in an agreement. There could, however, be changes in the road alignment or construction that would go a long way towards satisfying the Mikisew objections. We do not know, and the Minister cannot know in the absence of consultation, what such changes might be.

67 The trial judge's findings of fact make it clear that the Crown failed to demonstrate an "'intention of substantially addressing [Aboriginal] concerns' ... through a meaningful process of consultation" (Haida Nation, para 42). On the contrary, the trial judge held that

[i]n the present case, at the very least, this [duty to consult] would have entailed a response to Mikisew's October 10, 2000 letter, and a meeting with them to ensure that their concerns were addressed early in the planning stages of the project. At the meetings that were finally held between Parks Canada and Mikisew, a decision had essentially been made, therefore, the meeting could not have been conducted with the genuine intention of allowing Mikisew's concerns to be integrated with the proposal. [para. 154]

The trial judge also wrote (at para. 157):

it is not consistent with the honour of the Crown, in its capacity as fiduciary, for it to fail to consult with a First Nation prior to making a decision that infringes on constitutionally protected treaty rights.

68 I agree, as did Sharlow J.A., dissenting in the Federal Court of Appeal. She declared that the mitigation measures were adopted through a process that was "fundamentally flawed" (para. 153).

69 In the result I would allow the appeal, quash the Minister's approval order, and remit the winter road project to the Minister to be dealt with in accordance with these reasons.

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V. Conclusion

70 Costs are sought by the Mikisew on a solicitor and client basis but there are no exceptional circumstances to justify such an award. The appeal is therefore allowed and the decision of the Court of Appeal is set aside, all with costs against the respondent Minister in this Court and in the Federal Court of Appeal on a party and party basis. The costs in the Trial Division remain as ordered by the trial judge.

Appeal allowed.

Pourvoi accueilli.

END OF DOCUMENT

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1996 CarswellAlta 587, [1996] 4 W.W.R. 457, 37 Alta. L.R. (3d) 153, 195 N.R. 1, 105 C.C.C. (3d) 289, 133 D.L.R. (4th) 324, [1996] 2 C.N.L.R. 77, [1996] 1 S.C.R. 771, 181 A.R. 321, 116 W.A.C. 321, EYB 1996-66856, [1996] A.W.L.D. 454

R. v. Badger

WAYNE CLARENCE BADGER v. R.; LEROY STEVEN KIYAWASEW v. R.; ERNEST CLARENCE OM- INAYAK v. R.; ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF MANITOBA, ATTOR- NEY GENERAL FOR SASKATCHEWAN, FEDERATION OF SASKATCHEWAN INDIAN NATIONS, LESSER SLAVE LAKE INDIAN REGIONAL COUNCIL, TREATY 7 TRIBAL COUNCIL, CONFEDERACY OF TREATY SIX FIRST NATIONS, ASSEMBLY OF FIRST NATIONS and ASSEMBLY OF MANITOBA CHIEFS (Intervenors)

Supreme Court of Canada

Lamer C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.

Heard: May 1 and 2, 1995 Judgment: April 3, 1996 Docket: Doc. 23603

Counsel: Leonard Mandamim and Alan D. Hunter, Q.C., for appellants.

Robert J. Normey and Margaret Unsworth, for the Crown.

I.G. Whitehall, Q.C., and R. Stevenson, for intervenor Attorney General of Canada.

Kenneth J. Tyler, for intervenor Attorney General of Manitoba.

P. Mitch McAdam, for intervenor Attorney General for Saskatchewan.

Mary Ellen Turpel, Donald E. Worme and Gerry Morin, for intervenor Federation of Saskatchewan Indian Na- tions.

Pricilla Kennedy, for intervenor Lesser Slave Lake Indian Regional Council.

Gerard M. Meagher, Q.C., and Eugene J. Creighton, for intervenor Treaty 7 Tribal Council.

Edward H. Molstad, Q.C., James A. O'Reilly and Wilton Littlechild, for intervenor Confederacy of Treaty Six First Nations.

© 2013 Thomson Reuters. No Claim to Orig. Govt. Works Page 2 1996 CarswellAlta 587, [1996] 4 W.W.R. 457, 37 Alta. L.R. (3d) 153, 195 N.R. 1, 105 C.C.C. (3d) 289, 133 D.L.R. (4th) 324, [1996] 2 C.N.L.R. 77, [1996] 1 S.C.R. 771, 181 A.R. 321, 116 W.A.C. 321, EYB 1996-66856, [1996] A.W.L.D. 454

Peter K. Doody and John E.S. Briggs, for intervenor Assembly of First Nations.

Jack R. London, Q.C., and Martin S. Minuk, for intervenor Assembly of Manitoba Chiefs.

Subject: Public; Constitutional; Criminal

Native Law --- Constitutional issues — Treaty rights generally

Native Law --- Constitutional issues — Hunting and fishing — Hunting offences — Treaty rights

Native Law --- Constitutional issues — Hunting and fishing — Hunting offences — Application of provincial statutes

Native law — Aboriginal rights — Hunting, trapping and fishing — Three Indians having status under Treaty 8 to hunt for food on private lands originally surrendered to Canada by treaty — Two accused hunting on visibly used land but third accused hunting on uncleared muskeg with no signs of development — All three accused charged with hunting offences under Wildlife Act — Supreme Court of Canada ruling that National Resources Transfer Agreement, 1930 only modifying treaty hunting rights — Test for geographical limitation on Indians' hunting rights consisting of whether land hunted on put to visible use incompatible with exercise of hunting right — Court dismissing appeals of first two accused — Crown having power to restrict third accused's hunting rights for safety or conservation purposes — Existing licensing system unduly restricting that accused's hunting rights — Section 26(1) of Wildlife Act prima facie infringing treaty hunting rights — Court ordering new trial to consider issue of whether that infringement justified.

Three Indians having status under Treaty 8 were charged with offences under the Wildlife Act. All three were hunting for food on privately owned lands originally surrendered to Canada by the treaty. The first accused was charged with shooting a moose outside the permitted hunting season under s. 27(1). He was hunting on land covered with second growth willow and scrub. Although there were no fences or signs posted on the land, a farm house was located a quarter mile away. The second and third accused were each charged with hunting without a licence under s. 26(1). The second was hunting on a snow-covered field. Although there was no fence, there were run-down barns nearby, signs were posted on the land and a crop had been harvested from the field that fall. The third accused was hunting on uncleared muskeg with no fences, signs or building in the area. The accused were all convicted in Provincial Court. They appealed, challenging the Wildlife Act's constitutionality insofar as it affected them as treaty Indians. The Court of Queen's Bench affirmed the convictions and the Alberta Court of Appeal dismissed the accused's appeals. Accused appealed to the Supreme Court of Canada.

Held:

First two accuseds' appeals dismissed; third accused's appeal allowed.

Per Cory J. (La Forest, L'heureux-Dubé, Gonthier and Iacobucci JJ. concurring)

The essential element for Treaty 8 Indians when they signed the treaty was the guarantee of continued hunting, fishing and trapping rights. The National Resources Transfer Agreement, 1930 ("N.R.T.A.") did not extinguish and replace the treaty right to hunt for food. Paragraph 12 of the N.R.T.A. clearly intended both to limit and expand that right. Hunting rights were at large under the treaty, but were limited to the tracts surrendered by Treaty

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8 bands. Hunting rights under the N.R.T.A. extend to the whole province, but are limited to food hunting. Under s. 1 of the Constitution Act, 1930, para. 12 of the N.R.T.A. is binding law governing the Indian right to hunt. However, para. 12 has not deprived Treaty 8 of legal significance. Treaties are sacred promises and the Crown's honour requires the court to assume that the Crown intended to fulfil its promises. Treaty rights can only be amended where that effect is clearly intended. While the N.R.T.A. partially amended the scope of the treaty hunting right, of equal importance was the desire to reassure treaty Indians of their continued enjoyment of the right to hunt and fish for food. The N.R.T.A. has only modified the treaty right to hunt to the extent that it evinces a clear intention to effect such a modification. N.R.T.A. language outlining the right to hunt for food must be read in light of continuing treaty hunting rights.

Under the N.R.T.A., Indians may hunt for food on all unoccupied Crown land and on any other lands to which they may have a right of access for hunting purposes. Under the treaty, the right to hunt for food may be exercised throughout the tract surrendered to the Crown excepting such tracts as may be required or taken up from time to time for settlement or other purposes. Thus if private land is not required or taken up in the manner the treaty describes, it is land to which the Indians have a right of access to hunt for food. The treaty's words must be interpreted in the sense that the Indians would naturally have understood them when signing. In 1899 the Treaty 8 Indians would have understood that land had been required or taken up when it was being put to a use incompatible with the exercise of the hunting right. The geographical limitation on the Indians' existing hunting right should thus be based on a concept of visible, incompatible land use. This approach is consistent with the oral promises made to the Indians when they signed the treaty, with the oral history of the Treaty 8 Indians, with earlier case law and with the provisions of the Alberta Wildlife Act. The geographical limitation on the right to hunt for food provided by Treaty 8 has not been modified by para. 12 of the N.R.T.A. Where lands are privately owned, the court must use the "visible, incompatible use" approach to determine on a case-by-case basis whether they are lands to which Indians had a right of access under the treaty. Here the lands upon which the first two accused were hunting were visibly being used. Since the accused did not have a right of access to those lands, their treaty right to hunt for food did not extend there. The limitations on hunting set out in the Wildlife Act did not infringe on their existing rights, and their appeals should be dismissed. The third accused was hunting on private land not being put to any visible use incompatible with the Indian right to hunt for food. Thus the geographical limits on the treaty right to hunt for food did not preclude him from hunting on that land.

Treaty 8 provided that the right to hunt would be subject to such regulations as the government might make. In light of conservation laws existing before the Indians signed the treaty, they would have understood that by the treaty's terms the government could pass conservation regulations. Paragraph 12 of the N.R.T.A. explicitly provides for provincial regulatory authority over conservation. Thus under both the treaty and the N.R.T.A., provincial game laws apply to Indians so long as they aim at conserving the game supply. While the Wildlife Act's licensing provisions are partly directed toward conservation, that does not automatically make s. 26(1) permissible regulation. The court must still determine whether the administration of the licensing scheme infringes treaty hunting rights as modified by the N.R.T.A. That modified treaty right pertains to the right to hunt for food, which before the treaty was an aboriginal right. Section 35(1) of the Constitution Act, 1982 supports a common approach to infringement of aboriginal and treaty rights. The Crown must justify a statute or regulation prima facie infringing aboriginal rights by showing that it so advances general public objectives that it should prevail. Such rights are an integral part of the consideration Indians received for surrendering their lands. Stand- ing on its own, the regulatory requirement that all hunters take gun safety courses and pass hunting competency tests does not infringe Indian hunting rights. Aboriginal or treaty rights must be exercised with due concern for public safety. However, under the licensing scheme, an Indian who has passed the approved safety courses may

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still not be able to hunt without breaching the conservation restrictions on hunting method, kind and numbers of game, season and permissible hunting area. Moreover, there is no provision for food hunting licences, no guarantee of Indians' preferential access to the limited number of licences and no exemption of Indians from the licence fee. The licensing system denies holders of treaty hunting rights, as modified by the N.R.T.A., the means of exercising those rights. Section 26(1) of the Wildlife Act thus prima facie breaches the treaty right to hunt for food. In deciding whether an infringement of aboriginal or treaty rights can be justified, the court's first question is whether there is a valid legislative objective. If so, the court must consider the special trust relationship and Crown responsibility regarding Indians. Finally, the court must consider such circumstances as whether the infringement has been as minimal as possible and whether the Indians were consulted about the conservation measures implemented. As the Crown led no evidence justifying infringement of the third accused's treaty hunting rights, there should be a new trial to address the issue.

Per Sopinka J. (concurring in result) (Lamer C.J.C. concurring)

Paragraph 12 of the N.R.T.A. merges and consolidates Indian treaty rights in the N.R.T.A., preserving those rights by placing them in a constitutional instrument. The sole source for a claim involving Indian food hunting rights is the N.R.T.A., and the treaty's only legal significance is to help interpret the N.R.T.A. The key interpretive principles applying both to the treaties and the N.R.T.A. are that any ambiguity will be resolved in the Indi- ans' favour, and that the Crown's integrity and its fiduciary obligation toward aboriginal peoples should be maintained.

Paragraph 12 of the N.R.T.A. grants legislative power over gaming subject to Indian food hunting rights. Both when the original treaties were signed and when the N.R.T.A. was agreed to, it would have been understood that Indian rights were subject to governmental conservation regulation. N.R.T.A. rights are thus not absolute constitutional rights for which governmental regulation is prohibited. Section 35(1) of the Constitution Act, 1982 is inapplicable to para. 12 of the N.R.T.A. protecting aboriginal food hunting rights, because para. 12 is itself a constitutional provision. However, the N.R.T.A. does require a balancing of rights. The provincial right to legislate respecting conservation must be balanced against Indian food hunting rights. The court should apply the test in R. v. Sparrow to the N.R.T.A. so that it can decide whether the provincial exercise of its legislative power is justified, which power is made subject to the food hunting right. In the absence of evidence as to justification, there should be a new trial. Cases considered:

Considered by Cory J.

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, [1973] 4 W.W.R. 1, 34 D.L.R. (3d) 145 — considered

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, [1973] 6 W.W.R. 205, 13 C.C.C. (2d) 1, 40 D.L.R. (3d) 553 — referred to

Frank v. R. (1977), [1978] 1 S.C.R. 95, [1977] 4 W.W.R. 294, 34 C.C.C. (2d) 209, 4 A.R. 271, 15 N.R. 487, 75 D.L.R. (3d) 481 — considered

Guerin v. R., [1984] 2 S.C.R. 335, [1984] 6 W.W.R. 481, 59 B.C.L.R. 301, 36 R.P.R. 1, 20 E.T.R. 6, [1985] 1 C.N.L.R. 120, (sub nom. Guerin v. Canada) 55 N.R. 161, 13 D.L.R. (4th) 321 — referred to

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Mitchell v. Sandy Bay Indian Band, [1990] 2 S.C.R. 85, (sub nom. Mitchell v. Peguis Indian Band) [1990] 5 W.W.R. 97, 71 D.L.R. (4th) 193, [1990] 3 C.N.L.R. 46, 3 T.C.T. 5219, 110 N.R. 241, 67 Man. R. (2d) 81 — considered

Nowegijick v. R., [1983] 1 S.C.R. 29, [1983] 2 C.N.L.R. 89, 144 D.L.R. (3d) 193, 46 N.R. 41, [1983] C.T.C. 20, 83 D.T.C. 5042 — referred to

Prince v. R. (1963), [1964] S.C.R. 81, 41 C.R. 403, 46 W.W.R. 121, [1964] 3 C.C.C. 2 — referred to

R. v. Agawa, 28 O.A.C. 201, [1988] 3 C.N.L.R. 73, 65 O.R. (2d) 505, 43 C.C.C. (3d) 266, 53 D.L.R. (4th) 101 [leave to appeal to S.C.C. refused (1990), 41 O.A.C. 320, 118 N.R. 399, 58 C.C.C. (3d) vi, [1991] 1 C.N.L.R. vi] — considered

R. v. Bartleman (1984), 55 B.C.L.R. 78, 13 C.C.C. (3d) 488, 12 D.L.R. (4th) 73, [1984] 3 C.N.L.R. 114 (C.A.) — considered

R. v. Cardinal (1977), 3 Alta. L.R. (2d) 108, 4 A.R. 1, 36 C.C.C. (2d) 369 (C.A.) — referred to

R. v. Eninew, [1984] 2 C.N.L.R. 126, (sub nom. R. v. Bear) 32 Sask. R. 237, 11 C.R.R. 189, 12 C.C.C. (3d) 365, 10 D.L.R. (4th) 137 (C.A.) — referred to

R. v. Fox, 71 O.A.C. 50, [1994] 3 C.N.L.R. 132 (C.A.) — referred to

R. v. Horse, [1988] 1 S.C.R. 187, [1988] 2 W.W.R. 289, 39 C.C.C. (3d) 97, [1988] 2 C.N.L.R. 112, 47 D.L.R. (4th) 526, (sub nom. R. v. Horse; R. v. Standingwater) 82 N.R. 206, 65 Sask. R. 176 — considered

R. v. Horseman, [1990] 1 S.C.R. 901, [1990] 4 W.W.R. 97, 73 Alta. L.R. (2d) 193, 55 C.C.C. (3d) 353, 108 N.R. 1, 108 A.R. 1, [1990] 3 C.N.L.R. 95 — considered

R. v. Kruger, [1978] 1 S.C.R. 104, [1977] 4 W.W.R. 300, 14 N.R. 495, 34 C.C.C. (2d) 377, 75 D.L.R. (3d) 434 — referred to

R. v. Mirasty, [1942] 1 W.W.R. 343 (Sask. Pol. Ct.) — referred to

R. v. Moosehunter, [1981] 1 S.C.R. 282, 9 Sask. R. 149, 36 N.R. 437, 59 C.C.C. (2d) 193, 123 D.L.R. (3d) 95 — referred to

R. v. Mousseau, [1980] 2 S.C.R. 89, [1980] 4 W.W.R. 24, 31 N.R. 620, 3 Man. R. (2d) 338, 111 D.L.R. (3d) 443, 52 C.C.C. (2d) 140, [1980] 3 C.N.L.R. 63 — considered

R. v. Myran (1975), [1976] 2 S.C.R. 137, [1976] 1 W.W.R. 196, 5 N.R. 551, 23 C.C.C. (2d) 73, 58 D.L.R. (3d) 1considered

R. v. Napoleon (1985), [1985] 6 W.W.R. 302, 21 C.C.C. (3d) 515, [1986] C.N.L.R. 86 (B.C.C.A.) [leave to appeal to S.C.C. refused (1985), 21 C.C.C. (3d) 515n, 63 N.R. 319] — referred to

R. v. Ominayak (1990), 108 A.R. 239, [1991] 1 C.N.L.R. 177 (C.A.) — referred to

R. v. Simon, [1985] 2 S.C.R. 387, 62 N.R. 366, 23 C.C.C. (3d) 238, 71 N.S.R. (2d) 15, 171 A.P.R. 15,

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[1986] 1 C.N.L.R. 153, 24 D.L.R. (4th) 390 — considered

R. v. Smith, [1935] 2 W.W.R. 433, 64 C.C.C. 131, [1935] 3 D.L.R. 703 (Sask. C.A.) — referred to

R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 4 W.W.R. 410, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 3 C.N.L.R. 160 — applied

R. v. Sutherland, [1980] 2 S.C.R. 451, [1980] 5 W.W.R. 456, 7 Man. R. (2d) 359, 53 C.C.C. (2d) 289, 113 D.L.R. (3d) 374, 35 N.R. 361, [1980] 3 C.N.L.R. 71 — referred to

R. v. Taylor (1981), 34 O.R. (2d) 360, 62 C.C.C. (2d) 227 (C.A.) — referred to

R. v. Wesley, [1932] 2 W.W.R. 337, 26 Alta. L.R. 433, 58 C.C.C. 269, [1932] 4 D.L.R. 774 (C.A.) — referred to

Sikyea v. R., 46 W.W.R. 65, 43 C.R. 83, [1964] 2 C.C.C. 325, 43 D.L.R. (2d) 150, affirmed [1964] S.C.R. 642, 49 W.W.R. 306, 44 C.R. 266, [1965] 2 C.C.C. 129, 50 D.L.R. (2d) 80 — referred to

Sioui v. Quebec (Attorney General), (sub nom. R. v. Sioui) [1990] 1 S.C.R. 1025, 109 N.R. 22, 56 C.C.C. (3d) 225, 70 D.L.R. (4th) 427, [1990] 3 C.N.L.R. 127, 30 Q.A.C. 280 — referred to

Considered by Sopinka J.

Frank v. R. (1977), [1978] 1 S.C.R. 95, [1977] 4 W.W.R. 294, 34 C.C.C. (2d) 209, 4 A.R. 271, 15 N.R. 487, 75 D.L.R. (3d) 481 — considered

R. v. Horseman, [1990] 1 S.C.R. 901, [1990] 4 W.W.R. 97, 73 Alta. L.R. (2d) 193, 55 C.C.C. (3d) 353, 108 N.R. 1, 108 A.R. 1, [1990] 3 C.N.L.R. 95 — considered

R. v. Moosehunter, [1981] 1 S.C.R. 282, 9 Sask. R. 149, 36 N.R. 437, 59 C.C.C. (2d) 193, 123 D.L.R. (3d) 95 — referred to

R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 4 W.W.R. 410, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 3 C.N.L.R. 160 — applied

R. v. Sutherland, [1980] 2 S.C.R. 451, [1980] 5 W.W.R. 456, 7 Man. R. (2d) 359, 53 C.C.C. (2d) 289, 113 D.L.R. (3d) 374, 35 N.R. 361, [1980] 3 C.N.L.R. 71 — considered

Reference re Roman Catholic Separate High Schools Funding, (sub nom. Reference re Bill 30, an Act to Amend the Education Act) [1987] 1 S.C.R. 1148, 77 N.R. 241, 22 O.A.C. 321, (sub nom. Reference re an Act to Amend the Education Act (Ontario)) 40 D.L.R. (4th) 18, 36 C.R.R. 305 — considered

Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11

s. 15referred to

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Constitution Act, 1867

s. 93referred to

Constitution Act, 1930

s. 1considered

Sched. (Natural Resources Transfer Agreement), para. 12considered

Constitution Act, 1982, being Schedule B of the Canada Act (U.K.), 1982, c. 11

s. 35(1)considered

Indian Act, R.S.C. 1985, c. I-5

s. 88considered

Manitoba Natural Resources Act, R.S.M. 1970, c. N30 — referred to

Migratory Birds Convention Act, R.S.C. 1970, c. M-12 — referred to

Wildlife Act, S.A. 1984, c. W-9.1

s. 15(1)(c)considered

s. 26(1)considered

s. 27(1)considered

Wildlife Act, R.S.M. 1970, c. W140 — referred to

Regulations considered:

Wildlife Act, S.A. 1984, c. W-9.1

General Wildlife Regulation, Alta. Reg. 50/87

s. 2(2)

s. 25

Wildlife (Ministerial) Regulation, Alta. Reg. 95/87

s. 7

Treaties and conventions considered:

Treaty 1

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Treaty 4

Treaty 6

Treaty 8

Treaty 10

1852 North Saanich Indian Treaty

Words and phrases considered: aboriginal rights treaty rights required or taken up

Appeals by accused from judgment of Alberta Court of Appeal, [1993] 5 W.W.R. 7, 8 Alta. L.R. (3d) 354, 135 A.R. 286, 33 W.A.C. 286, [1993] 3 C.N.L.R. 143, affirming judgment of Foster J. dismissing appeals from judgment of Provincial Court convicting accused of unlawful hunting under Alberta Wildlife Act.

Sopinka J. (concurring) (Lamer C.J.C. concurring):

1 I have had the benefit of reading the reasons for judgment prepared in this appeal by my colleague, Justice Cory, and I am in agreement with his disposition of the appeal and with his reasons with the exception of his ex- position of the relationship between Treaty No. 8, the Natural Resources Transfer Agreement (NRTA), and s. 35 of the Constitution Act, 1982.

2 In my view, the rights of Indians to hunt for food provided in Treaty No. 8 were merged in the NRTA which is the sole source of those rights. While I agree that the impugned provision of the Wildlife Act, S.A. 1984, c. W-9.1, infringes the constitutional right of Indians to hunt for food, I disagree that this constitutional right is one covered by s. 35(1) of the Constitution Act, 1982. I agree, however, that the constitutional right to hunt for food must be balanced against the right of the province to pass laws for the purpose of conservation and that this balancing may be carried out on the basis of the principles set out in R. v. Sparrow, [1990] 1 S.C.R. 1075 [[1990] 4 W.W.R. 410].

3 There is no disagreement that the NRTA:

(a) duplicated the right of Indians to hunt for food which was contained in Treaty No. 8;

(b) widely extended the geographical area to include the whole of the province rather than being limited to the tract of land surrendered;

(d) eliminated the right to hunt for commercial purposes;

(e) is a constitutional document and the Treaty is not, although the Treaty receives constitutional protection

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by virtue of s. 35(1) of the Constitution Act, 1982.

4 In these circumstances, I am of the view that it was clearly the intention of the framers to merge the rights in the Treaty in the NRTA. To characterize the NRTA as modifying the Treaty is to treat it as an amending document to the Treaty. This clearly was not the intent of the NRTA. In enlarging the area in which hunting for food was permitted to extend to the whole of the province, it could not be suggested that the NRTA extended the Treaty to all of the province. Rather, the right to hunt for food was extended by the NRTA to the whole of the province, including the area covered by the Treaty. An Indian hunting on land outside the Treaty lands could not claim to be covered by the Treaty. If the NRTA merely modified the Treaty, an Indian hunting on Treaty lands could claim the right under the Treaty while an Indian hunting in other parts of the province could claim only under the NRTA. This would invite bifurcation of the rights of Indians hunting for food in the province.

5 Similarly, the provisions which transferred to the province the power to pass gaming laws for the purpose of conservation could not have been intended simply to amend the Treaty. As an amendment to the Treaty, this provision would have no constitutional force and could not alter the constitutionally entrenched division of powers. It might be suggested that the NRTA both amended the Treaty and, as an independent constitutional document, amended the Constitution. If this were the intent, it is difficult to understand why all the terms of the Treaty relating to the right to hunt for food were replicated in NRTA. It must have been the intention to merge these rights in the NRTA so that they could be balanced with the power of the provinces to legislate for conservation purposes. In order to achieve a reasonable balance between them, it was important that they both appear in one document having constitutional status.

6 I can suggest no reason why the framers of the NRTA would have wanted to maintain any aspects of the Treaty except as an interpretative tool. They surely did not do so in order to allow these rights to be recognized under s. 35(1) of the Constitution Act, 1982 which appears to be the sole present justification for preserving the Treaty. However, even that justification loses any force when considered in light of the fact that the NRTA is itself a constitutional document and recognition under s. 35(1) is unnecessary for the protection of these important Indian rights.

7 From the foregoing, I conclude that it was the intention of the framers of para. 12 of the NRTA to effectu- ate a merger and consolidation of the Treaty rights. This was the view of Dickson J. (as he then was), speaking for the Court, in Frank v. R., [1978] 1 S.C.R. 95, at p. 100 [[1977] 4 W.W.R. 294]:

It would appear that the overall purpose of para. 12 of the Natural Resources Transfer Agreement was to effect a merger and consolidation of the treaty rights theretofore enjoyed by the Indians but of equal importance was the desire to re-state and reassure to the treaty Indians the continued enjoyment of the right to hunt and fish for food.

As pointed out, these rights were restated in the NRTA and their preservation was assured by being placed in a constitutional instrument.

8 If this was the intention, and I conclude that it was, then the proper characterization of the relationship between the NRTA and the Treaty rights is that the sole source for a claim involving the right to hunt for food is the NRTA. The Treaty rights have been subsumed in a document of a higher order. The Treaty may be relied on for the purpose of assisting in the interpretation of the NRTA, but it has no other legal significance.

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9 The fact that the source of the appellants' rights to hunt and fish for sustenance is found within the provisions of the NRTA does not alter the analysis that has previously been employed in the interpretation of treaty rights. The key interpretive principles which apply to treaties are first, that any ambiguity in the treaty will be resolved in favour of the Indians and, second, that treaties should be interpreted in a manner that maintains the integrity of the Crown, particularly the Crown's fiduciary obligation toward aboriginal peoples. These principles apply equally to the rights protected by the NRTA; the principles arise out of the nature of the relationship between the Crown and aboriginal peoples with the result that, whatever the document in which that relationship has been articulated, the principles should apply to the interpretation of that document. I find support for this reasoning in the prior decisions of this Court concerning the interpretation of the NRTA. In R. v. Sutherland, [1980] 2 S.C.R. 451 [[1980] 5 W.W.R. 456], for example, this Court specifically stated, at p. 461, that the NRTA should be given a "broad and liberal construction", and, at p. 464, that any ambiguity should be "interpreted so as to resolve any doubts in favour of the Indians". Moreover, this position is compatible with the concept that the NRTA constitutes a merger and consolidation of treaty rights, and with the view that it was through the enactment of the NRTA that the "federal government attempted to fulfil their treaty obligations" (see R. v. Moose- hunter, [1981] 1 S.C.R. 282, at p. 293).

Validity of the provisions of the Wildlife Act

10 In light of my conclusion that the right of Indian persons to hunt for food is constitutional in nature, the issue remaining for determination is whether the provisions of the Wildlife Act under which the appellants were convicted are constitutionally permissible. On the bare wording of para. 12 of the NRTA, it appears as though such an issue could never arise. The NRTA grants legislative power over "gaming" subject to the Indians' right to hunt for food, apparently suggesting that the province has no jurisdiction to legislate in relation to those rights. This interpretation arises out of the mandatory language used in para. 12, wherein the legislative power is granted to the province, but qualified by the statement that the power exists "provided, however, that the said Indians shall have the right. ..."

11 The reasoning in R. v. Horseman, [1990] 1 S.C.R. 901 [[1990] 4 W.W.R. 97, 73 Alta. L.R. (2d) 193], in- forms us that such a formalistic interpretation of the language of the NRTA is incorrect. At the time the treaties that preceded the NRTA were signed, there was already in place legislation enacted for conservation purposes which affected the Indians' rights. Indeed, there existed total bans on the hunting of certain species. As a result, at the time the treaties were signed and, even more so, at the time that the NRTA was agreed to by the provinces and the federal government, it would have been clearly understood that the rights of Indians pursuant to either document would be subject to governmental regulation for conservation purposes. The rights protected by the NRTA thus cannot be viewed as being constitutional rights of an absolute nature for which governmental regulation is prohibited.

12 How, then, is the governmental regulation permitted by the NRTA, and the extent of the protection of the appellants' rights in the face of such regulation, to be assessed? Cory J. has taken the position that the standard against which the validity of the Wildlife Act is to be assessed is s. 35(1) of the Constitution Act, 1982, and the test set out in Sparrow, supra. I am unable to agree with my colleague on this point. Section 35(1) was intended to provide constitutional protection for aboriginal rights and treaty rights that did not enjoy such protection. It cannot have been intended to be redundant and provide constitutional protection for rights that already enjoyed constitutional protection. Moreover, para. 12 of the NRTA is a constitutional provision and, as such, s. 35(1) has no direct application to it. Infringements of constitutional rights cannot be remedied by the application of a different constitutional provision. As Estey J. stated in Reference re Roman Catholic Separate High Schools Fund-

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ing, (sub nom. Reference Re Bill 30, An Act to Amend the Education Act) [1987] 1 S.C.R. 1148, at p. 1207, the Canadian Charter of Rights and Freedoms "cannot be interpreted as rendering unconstitutional distinctions that are expressly permitted by the Constitution Act, 1867". That case concerned the application of s. 15 of the Charter to s. 93 of the Constitution Act, 1867. Although the case is not directly on point with the issues arising in this appeal, in my view, Estey J.'s comment provides support for the position that constitutional provisions enacted later in time are not to be read as impliedly amending the earlier enacted provisions. (See Peter W. Hogg, Constitutional Law of Canada, 3rd ed., at p. 1183.) Nor are later provisions of the constitution applicable in terms of the interpretation of earlier provisions. On that reasoning, s. 35(1) is inapplicable to the provision of the NRTA that protects the right of aboriginal persons to hunt for food.

13 That is not to say, however, that the principles underlying the interpretation of s. 35(1) have no relevance to the determination of whether a particular legislative enactment has an acceptable purpose and whether it constitutes an acceptable limitation on the rights granted by the NRTA. There is no method provided in the NRTA whereby government measures that may impinge upon the rights the same document grants to Indians can be scrutinized. It is clear, however, that the NRTA does require a balancing of rights. The right of the province to legislate with respect to conservation must be balanced against the right granted to the Indians to hunt for food. Thus, it falls to the Court to develop a test through which this task can be accomplished. In Sparrow, this Court developed principles for balancing the constitutionally protected right to fish for food against the federal government's power to pass laws for conservation. Although the Sparrow test was developed in the context of s. 35(1), the basic thrust of the test, to protect aboriginal rights but also to permit governments to legislate for legitimate purposes where the legislation is a justifiable infringement on those protected rights, applies equally well to the regulatory authority granted to the provinces under para. 12 of the NRTA as to federal power to legislate in respect of Indians.

14 In this way, the Sparrow test is applied to the NRTA by analogy, with the result that the Court will have a means by which to ensure that the rights in the NRTA are protected, but that provincial governments are also provided with some flexibility in terms of their ability to affect those rights for the purpose of legislating in relation to conservation. As Cory J. points out, the criteria set out in Sparrow do not purport to be exhaus tive and are to be applied flexibly. In applying them in this context, it is important to bear in mind that what is being justified is the exercise of a power granted to the provinces, which power is made subject to the right to hunt for food. Both are contained in a constitutional document. The application of the Sparrow criteria should be conson- ant with the intention of the framers as to the reconciliation of these competing provisions.

15 I agree with Cory J. that, in the absence of evidence with respect to justification, there must be a new trial and I would dispose of the appeal as suggested by him.

16 The constitutional question and answers are as follows:

If Treaty 8 confirmed to the Indians of the Treaty 8 Territory the right to hunt throughout the tract surrendered, does the right continue to exist or was it extinguished and replaced by paragraph 12 of the Natural Resources Transfer Agreement (Constitution Act, 1930, 20-21 George V, c. 26 (U.K.)), and if the right continues to exist, could that right be exercised on the lands in question and, if so, was the right impermissibly infringed upon by s. 26(1) or s. 27(1) of the Wildlife Act, S.A. 1984, c. W-9.1, given Treaty 8 and s. 35(1) of the Constitution Act, 1982?

17 The right to hunt for food referred to in Treaty 8 was merged in the NRTA which is the sole source of the

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right.

18 Sections 26(1) and 27(1) of the Wildlife Act did not infringe the constitutional rights of Mr. Badger or Mr. Kiyawasew to hunt for food.

19 Mr. Ominayak was exercising his constitutional right to hunt for food. Section 26(1) of the Wildlife Act is a prima facie infringement of his right to hunt for food under NRTA and is invalid unless justified.

Cory J. (La Forest, L'heureux-Dubé, Gonthier and Iacobucci JJ. concurring):

20 Three questions must be answered on this appeal. First, do Indians who have status under Treaty No. 8 have the right to hunt for food on privately owned land which lies within the territory surrendered under that Treaty?Secondly, have the hunting rights set out in Treaty No. 8 been extinguished or modified as a result of the provisions of para. 12 of the 1930 Natural Resources Transfer Agreement, 1930 (Constitution Act, 1930, Sched- ule 2)?Thirdly, to what extent, if any, do s. 26(1) and s. 27(1) of the Wildlife Act, S.A. 1984, c. W-9.1, apply to the appellants?

Factual Background

21 Each of the three appellants was charged with an offence under the Wildlife Act. Their trials and appeals have proceeded together.

22 The facts are straightforward and undisputed. The appellant Wayne Clarence Badger was charged with shooting a moose outside the permitted hunting season contrary to s. 27(1) of the Wildlife Act. The appellants Leroy Steven Kiyawasew and Ernest Clarence Ominayak, who had also shot moose, were charged, under s. 26(1) of the same statute, with hunting without a licence. All three appellants, Cree Indians with status under Treaty No. 8, were hunting for food upon lands falling within the tracts surrendered to Canada by the Treaty.

23 The lands in question were all privately owned. Mr. Badger shot a moose on brush land with willow re- growth and scrub. There were no fences or signs posted on the land, but a farm house was located a quarter mile from the place where the moose was shot. Mr. Kiyawasew was hunting on a snow-covered field. There was no fence, but Mr. Kiyawasew testified that he had passed old run-down barns shortly before he stopped to shoot the moose. He had seen signs which were posted on the land but he was unable to read them from the road. Mr. Om- inayak was hunting on uncleared muskeg. There were no fences, signs or buildings in the vicinity.

24 The appellants were all convicted in the Provincial Court of Alberta. They appealed their summary convictions to the Court of Queen's Bench, challenging the constitutionality of the Wildlife Act in so far as it might affect them as Crees with status under Treaty No. 8. The Court of Queen's Bench affirmed the convictions. The appellants' appeals to the Alberta Court of Appeal were also dismissed.

Judgments Below

Alberta Court of Queen's Bench

25 Foster J., in brief reasons, held that R. v. Horseman, [1990] 1 S.C.R. 901 [[1990] 4 W.W.R. 97, 73 Alta. L.R. (2d) 193], decided that Treaty No. 8 had been modified by the Natural Resources Transfer Agreement, 1930 (hereinafter "NRTA"). Accordingly, an individual who comes within the ambit of Treaty No. 8 may hunt in

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order to obtain food on unoccupied Crown lands or on other lands to which he or she may have a right of access. This is the existing hunting right which is protected by s. 35(1) of the Constitution Act, 1982. Foster J. also relied upon R. v. Cardinal (1977), 36 C.C.C. (2d) 369 [3 Alta. L.R. (2d) 108] (Alta. C.A.), and R. v. Ominayak (1990), 108 A.R. 239 (Alta. C.A.), to hold that an individual does not, without more, have a right of access to private lands. As a result, hunting on those lands was not protected under s. 35(1). Accordingly, she dismissed the appeals.

Court of Appeal (1993), 135 A.R. 236 [[1993] 5 W.W.R. 7, 8 Alta. L.R. (3d) 354]

26 Although all three judges of the Court of Appeal agreed that the appellants' appeals should be dismissed, they travelled by different routes to reach that conclusion.

Per Kerans J.A.

27 Kerans J.A. concluded that it was not necessary to decide either if the hunting in question was protected under Treaty No. 8 or if Alberta could make laws that derogated from treaty rights. Rather, he held that pursuant to Horseman, supra, any treaty right to hunt other than on Crown lands had been extinguished by the NRTA. The "merger and consolidation" theory applied in Horseman, supra, was effectively a theory of "extinguishment and replacement". Because the Treaty No. 8 hunting right had been extinguished by the NRTA, reference could not be made to the Treaty to determine the scope of the "right of access" to hunt on the "other lands" referred to in the NRTA. As a result of this finding, he dismissed the appeals.

Per Lieberman J.A.

28 Lieberman J.A. held that Horseman, supra, defeated the appellants' position in this case. He determined, at p. 357, that the "entrenchment of treaty rights in s. 35(1) of the Constitution Act, 1982, has no application to the hunting rights conferred by Treaty No. 8" which he found had been extinguished by the NRTA. Thus, he concluded that the terms of the Wildlife Act prevailed and the appeals must be dismissed.

Per Conrad J.A.

29 Conrad J.A. held that since Horseman, supra, dealt with the right to hunt commercially on Crown lands, it was not binding on the issue as to whether a treaty right to hunt on private lands had been extinguished. Con- rad J.A. observed that the question of whether Treaty No. 8 gave the appellants the right to hunt on privately owned lands required that consideration be given to the meaning of "unoccupied" Crown lands in the NRTA and of "such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes" in Treaty No. 8. Conrad J.A. concluded that Crown lands would not be "unoccupied" merely because they were not put to some visible use. She found that the words "required or taken up" for "other purposes" were critical. She held that if the Crown's interest was alienated or transferred to a private owner, the Crown had "required or taken up" the land under the Treaty and the land was no longer "unoccupied" under the NRTA. She concluded that even if "occupied" as defined in R. v. Horse, [1988] 1 S.C.R. 187 [[1988] 2 W.W.R. 289], refers only to private lands visibly in use, she would extend the ratio of Horse, supra, and find that there is no treaty right to hunt on private land, regardless of whether or not it is in visible use. Therefore, she concluded that Treaty No. 8 did not reserve to the appellants the right to hunt on the privately owned lands in question and that the Wildlife Act did not infringe the right protected under s. 35(1).

30 In the event that she was wrong on that issue, Conrad J.A. went on to hold that if the Treaty did give the

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appellants the right to hunt on private lands, those rights had not been extinguished by the NRTA. The NRTA did not contain a clear intention to extinguish all treaty hunting rights, but only to extinguish commercial hunting rights on Crown lands. However, the hunting rights granted by the Treaty were not unlimited. They were subject to regulation and it would be necessary to determine if the regulations enacted in the Alberta Wildlife Act were a justifiable infringement on s. 35(1). Ultimately, she found that it was unnecessary to undertake an analysis of the justification in light of the fact that she had concluded that the treaty did not confer a right to hunt on private lands. She dismissed the appeals.

Relevant Treaty and Statutory Provisions

31 The relevant part of Treaty No. 8, made 21 June 1899, provides:

And Her Majesty the Queen hereby agrees with the said Indians that they shall have 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.

32 The Constitution Act, 1930, s. 1 provides:

1. The agreements set out in the Schedule to this Act are hereby confirmed and shall have the force of law notwithstanding anything in the Constitution Act, 1867, or any Act amending the same, or any Act of the Parliament of Canada, or in any Order in Council or terms or conditions of union made or approved under any such Act as aforesaid.

33 The Natural Resources Transfer Agreement, 1930 is the Schedule referred to in s. 1. Paragraph 12 of the NRTA provides:

12. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

34 Section 35(1) of the Constitution Act, 1982 provides:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

35 Sections 26(1) and 27(1) of the Wildlife Act provide:

26 (1) A person shall not hunt wildlife unless he holds a licence authorizing him, or is authorized by or under a licence, to hunt wildlife of that kind.

27 (1) A person shall not hunt wildlife outside an open season or if there is no open season for that wildlife.

Constitutional Question

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36 The constitutional question stated by this Court on May 2, 1994 is as follows:

Analysis

37 On this appeal, the extent of the existing right to hunt for food possessed by Indians who are members of bands which were parties to Treaty No. 8 must be determined. The analysis should proceed through three stages. First, it is necessary to decide what effect para. 12 of the NRTA had upon the rights enunciated in Treaty No. 8. After resolving which instrument sets out the right to hunt for food, it is necessary to examine the limitations which are inherent in that right. It must be remembered that, even by the terms of Treaty No. 8, the Indians' right to hunt for food was circumscribed by both geographical limitations and by specific forms of government regulation. Second, consideration must then be given to the question of whether the existing right to hunt for food can be exercised on privately owned land. Third, it is necessary to determine whether the impugned sections of the provincial Wildlife Act come within the specific types of regulation which have, since 1899, limited and defined the scope of the right to hunt for food. If they do, those sections do not infringe upon an existing treaty right and will be constitutional. If not, the sections may constitute an infringement of the Treaty rights guaranteed by Treaty 8, as modified by the NRTA. In this case the impugned provisions should be considered in accordance with the principles set out in R. v. Sparrow, [1990] 1 S.C.R. 1075 [[1990] 4 W.W.R. 410], to determine whether they constitute a prima facie infringement of the Treaty rights as modified, and if so, whether the infringement can be justified.

38 It is now appropriate to consider the source of the existing right to hunt for food.

The Existing Right to Hunt for Food

The Hunting Right Provided by Treaty No. 8

39 Treaty No. 8 is one of eleven numbered treaties concluded between the federal government and various Indian bands between 1871 and 1923. Their objective was to facilitate the settlement of the West. Treaty No. 8, made on June 21, 1899, involved the surrender of vast tracts of land in what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and part of the Northwest Territories. In exchange for the land, the Crown made a number of commitments, for example, to provide the bands with reserves, education, annuities, farm equipment, ammunition, and relief in times of famine or pestilence. However, it is clear that for the Indians the guarantee that hunting, fishing and trapping rights would continue was the essential element which led to their signing the treaties. The report of the Commissioners who negotiated Treaty No. 8 on behalf of the government underscored the importance to the Indians of the right to hunt, fish and trap. The Commis- sioners wrote:

There was expressed at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges. ...

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.....

We pointed out ... that the same means of earning a livelihood would continue after the Treaty as existed before it, and that the Indians would be expected to make use of them. ...

.....

40 Treaty No. 8, then, guaranteed that the Indians "shall have the right to pursue their usual vocations of hunting, trapping and fishing". The Treaty, however, imposed two limitations on the right to hunt. First, there was a geographic limitation. The right to hunt could be exercised "throughout the tract surrendered ... saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". Second, the right could be limited by government regulations passed for conservation purposes.

Impact of Paragraph 12 of the NRTA

Principles of Interpretation

41 At the outset, it may be helpful to once again set out some of the applicable principles of interpretation. First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. See Sioui v. Quebec (Attorney General), ( sub nom. R. v. Sioui) [1990] 1 S.C.R. 1025, at p. 1063; R. v. Simon, [1985] 2 S.C.R. 387, at p. 401. Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. See Sparrow, supra, at pp. 1107-08 and 1114; R. v. Taylor (1981), 34 O.R. (2d) 360 (C.A.), at p. 367. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. See Nowegijick v. R., [1983] 1 S.C.R. 29, at p. 36; Simon, supra, at p. 402; Sioui, supra, at p. 1035; and Mitchell v. Sandy Bay Indian Band, (sub nom. Mitchell v. Peguis Indian Band) [1990] 2 S.C.R. 85, at pp. 142-43 [[1990] 5 W.W.R. 97]. Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights. See Simon, supra, at pp. 405-06; Sioui, supra, at p. 1061; Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, at p. 404 [[1973] 4 W.W.R. 1].

42 These principles of interpretation must now be applied to this case.

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Interpreting the NRTA

43 The issue at this stage is whether the NRTA extinguished and replaced the Treaty No. 8 right to hunt for food. It is my conclusion that it did not.

44 For ease of reference, para. 12 of the NRTA provides:

45 It has been held that the NRTA had the clear intention of both limiting and expanding the treaty right to hunt. In Frank v. R. (1977), [1978] 1 S.C.R. 95 [[1977] 4 W.W.R. 294], consideration was given to the differences between Treaty No. 6 (which, for this purpose, has a hunting rights clause similar to that in Treaty No. 8) and para. 12 of the NRTA. Dickson J., as he then was, held at p. 100:

The essential differences, for present purposes, between the Treaty and the Agreement are (i) under the former the hunting rights were at large while under the latter the right is limited to hunting for food and (ii) under the former the rights were limited to about one-third of the Province of Alberta, while under the latter they extend to the entire province.

And at page 101, he stated:

The Appellate Division ... held that para. 12 of the Natural Resources Transfer Agreements of Alberta and Saskatchewan did two things: (i) it enlarged the areas in which Alberta and Saskatchewan Indians could respectively hunt and fish for food; (ii) it limited their rights to hunt and fish otherwise than for food by making those rights subject to provincial game laws. I would agree that such is the effect of para. 12.

To the same effect, see R. v. Wesley, [1932] 2 W.W.R. 337 [26 Alta. L.R. 433] (Alta. C.A.), at p. 344, as adopted in Prince v. R. (1963), [1964] S.C.R. 81, at p. 84 [46 W.W.R. 121].

46 This Court most recently considered the effect the NRTA had upon treaty rights in Horseman, supra. There, it was held that para. 12 of the NRTA evidenced a clear intention to extinguish the treaty protection of the right to hunt commercially. However, it was emphasized that the right to hunt for food continued to be protected and had in fact been expanded by the NRTA. At page 933, this appears:

Although the Agreement did take away the right to hunt commercially, the nature of the right to hunt for food was substantially enlarged. The geographical areas in which the Indian people could hunt was widely extended. Further, the means employed by them in hunting for their food was placed beyond the reach of provincial governments. For example, they may hunt deer with night lights and with dogs, methods which are or may be prohibited for others. Nor are the Indians subject to seasonal limitations as are all other hunters. That is to say, they can hunt ducks and geese in the spring as well as the fall, just as they may hunt deer at any time of the year. Indians are not limited with regard to the type of game they may kill. That is to say, while others may be restricted as to the species or sex of the game they may kill, the Indians may kill

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for food both does and bucks; cock pheasants and hen pheasants; drakes and hen ducks. [Emphasis added.]

See also Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, at p. 722 [[1973] 6 W.W.R. 205]; and R. v. Myran (1975), [1976] 2 S.C.R. 137, at p. 141 [[1976] 1 W.W.R. 196]. I might add that Horseman, supra, is a recent decision which should be accepted as resolving the issues which it considered. The decisions of this Court confirm that para. 12 of the NRTA did, to the extent that its intent is clear, modify and alter the right to hunt for food provided in Treaty No. 8.

47 Pursuant to s. 1 of the Constitution Act, 1930, there can be no doubt that para. 12 of the NRTA is binding law. It is the legal instrument which currently sets out and governs the Indian right to hunt. However, the existence of the NRTA has not deprived Treaty No. 8 of legal significance. Treaties are sacred promises and the Crown's honour requires the Court to assume that the Crown intended to fulfil its promises. Treaty rights can only be amended where it is clear that effect was intended. It is helpful to recall that Dickson J. in Frank, supra, observed at p. 100 that, while the NRTA had partially amended the scope of the Treaty hunting right, "of equal importance was the desire to re-state and reassure to the treaty Indians the continued enjoyment of the right to hunt and fish for food" (emphasis added). I believe that these words support my con clusion that the Treaty No. 8 right to hunt has only been altered or modified by the NRTA to the extent that the NRTA evinces a clear intention to effect such a modification. This position has been repeatedly confirmed in the decisions referred to earlier. Unless there is a direct conflict between the NRTA and a treaty, the NRTA will not have modified the treaty rights. Therefore, the NRTA language which outlines the right to hunt for food must be read in light of the fact that this aspect of the treaty right continues in force and effect.

48 Like Treaty No. 8, the NRTA circumscribes the right to hunt for food with respect to both the geographical area within which this right may be exercised as well as the regulations which may properly be imposed by the government. The geographical limitations must now be considered.

Geographical Limitations on the Right to Hunt for Food

49 Under the NRTA, Indians may exercise a right to hunt for food "on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access." In the present appeals, the hunting occurred on lands which had been included in the 1899 surrender but were now privately owned. Therefore, it must be determined whether these privately owned lands were "other lands" to which the Indians had a "right of access" under the Treaty.

50 At this stage, three preliminary points should be made. First, the "right of access" in the NRTA does not refer to a general right of access but, rather, it is limited to a right of access for the purposes of hunting: R. v. Mousseau, [1980] 2 S.C.R. 89, at p. 97 [[1980] 4 W.W.R. 24]; R. v. Sutherland, [1980] 2 S.C.R. 451, at p. 459 [ [1980] 5 W.W.R. 456]. For example, everyone can travel on public highways, but this general right of access cannot be read as conferring upon Indians a right to hunt on public highways.

51 Second, because the various treaties affected by the NRTA contain different wording, the extent of the treaty right to hunt on privately owned land may well differ from one treaty to another. While some treaties contain express provisions with respect to hunting on private land, others, such as Treaty No. 8, do not. Under Treaty No. 8, the right to hunt for food could be exercised "throughout the tract surrendered" to the Crown "saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes." Accordingly, if the privately owned land is not "required or taken up" in the manner described in Treaty No. 8, it will be land to which the Indians had a right of access to hunt for food.

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52 Third, the applicable interpretive principles must be borne in mind. Treaties and statutes relating to Indi- ans should be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians. In addition, when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement: see Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), at pp. 338-42; Sioui, supra, at p. 1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991); Jean Friesen, Grant Me Wherewith To Make My Living (1985). The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines. Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories. Even if they had been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently. As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. This applies, as well, to those words in a treaty which impose a limitation on the right which has been granted. See Nowegijick, supra, at p. 36; Sioui, supra, at pp. 1035-36 and 1044; Spar- row, supra, at p. 1107; and Mitchell, supra, where La Forest J. noted the significant difference that exists between the interpretation of treaties and statutes which pertain to Indians.

53 The evidence led at trial indicated that in 1899 the Treaty No. 8 Indians would have understood that land had been "required or taken up" when it was being put to a use which was incompatible with the exercise of the right to hunt. Historian John Foster gave expert evidence in this case. His testimony indicated that, in 1899, Treaty No. 8 Indians would not have understood the concept of private and exclusive property ownership separate from actual land use. They understood land to be required or taken up for settlement when buildings or fences were erected, land was put into crops, or farm or domestic animals were present. Enduring church mis- sions would also be understood to constitute settlement. These physical signs shaped the Indians' understanding of settlement because they were the manifestations of exclusionary land use which the Indians had witnessed as new settlers moved into the West. The Indians' ex perience with the Hudson's Bay Company was also relevant. Although that company had title to vast tracts of land, the Indians were not excluded from and in fact continued hunting on these lands. In the course of their trading, the Hudson's Bay Company and the Northwest Company had set up numerous posts that were subsequently abandoned. The presence of abandoned buildings, then, would not necessarily signify to the Indians that land was taken up in a way which precluded hunting on them. Yet, it is dangerous to pursue this line of thinking too far. The abandonment of land may be temporary. Owners may return to reoccupy the land, to undertake maintenance, to inspect it or simply to enjoy it. How "unoccupied" the land was at the relevant time will have to be explored on a case-by-case basis.

54 An interpretation of the Treaty properly founded upon the Indians' understanding of its terms leads to the conclusion that the geographical limitation on the existing hunting right should be based upon a concept of visible, incompatible land use. This approach is consistent with the oral promises made to the Indians at the time the Treaty was signed, with the oral history of the Treaty No. 8 Indians, with earlier case law and with the provisions of the Alberta Wildlife Act itself.

55 The Indian people made their agreements orally and recorded their history orally. Thus, the verbal promises made on behalf of the federal government at the times the treaties were concluded are of great significance in their interpretation. Treaty No. 8 was initially concluded with the Indians at Lesser Slave Lake. The Commis- sioners then travelled to many other bands in the region and sought their adhesion to the Treaty. Oral promises

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were made with the Lesser Slave Lake band and with the other Treaty signatories and these promises have been recorded in the Treaty Commissioners' Reports and in contemporary affidavits and diaries of interpreters and other government officials who participated in the negotiations. See in particular: Richard Daniel, "The Spirit and Terms of Treaty Eight", in The Spirit of the Alberta Indian Treaties, Richard Price, ed. (1979), at pp. 47-100; and René Fumoleau, O.M.I., As Long As This Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1939, at pp. 73-100. The Indians' primary fear was that the treaty would curtail their ability to pursue their livelihood as hunters, trappers and fishers. Commissioner David Laird, as cited in Daniel, "The Spirit and Terms of Treaty Eight", at p. 76, told the Lesser Slave Lake Indians in 1899:

Indians have been told that if they make a treaty they will not be allowed to hunt and fish as they do now. This is not true. Indians who take treaty will be just as free to hunt and fish all over as they now are.

In return for this the Government expects that the Indians will not interfere with or molest any miner, trav- eller or settler. [Emphasis added.]

Since the Treaty No. 8 lands were not well suited to agriculture, the government expected little settlement in the area. The Commissioners, cited in Daniel, at p. 81, indicated that "it is safe to say that so long as the fur-bearing animals remain, the great bulk of the Indians will continue to hunt and to trap." The promise that this livelihood would not be affected was repeated to all the bands who signed the Treaty. Although it was expected that some white prospectors might stake claims in the north, this was not expected to have an impact on the Indians' hunting rights. For example, one commissioner, cited in René Furmoleau, O.M.I., As Long As This Land Shall Last, at p. 90, stated:

We are just making peace between Whites and Indians — for them to treat each other well. And we do not want to change your hunting. If Whites should prospect, stake claims, that will not harm anyone.

56 Commissioner Laird told the Indians that the promises made to them were to be similar to those made with other Indians who had agreed to a treaty. Accordingly, it is significant that the earlier promises also contemplated a limited interference with Indians' hunting and fishing practices. See, for example, Alexander Morris, The Treaties of Canada with The Indians of Manitoba and the North-West Territories (1880). In negotiating Treaty No. 1, the Lieutenant Governor of Manitoba, A. G. Archibald, made the following statement to the Indi- ans, at p. 29:

When you have made your treaty you will still be free to hunt over much of the land included in the treaty. Much of it is rocky and unfit for cultivation, much of it that is wooded is beyond the places where the white man will require to go, at all events for some time to come. Till these lands are needed for use you will be free to hunt over them, and make all the use of them which you have made in the past. But when lands are needed to be tilled or occupied, you must not go on them any more. There will still be plenty of land that is neither tilled nor occupied where you can go and roam and hunt as you have always done, and, if you wish to farm, you will go to your own reserve where you will find a place ready for you to live on and cultivate.

[Emphasis added.]

With respect to Treaty 4, Lt. Gov. Morris made the following statement to the Indians, at p. 96:

We have come through the country for many days and we have seen hills and but little wood and in

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many places little water, and it may be a long time before there are many white men settled upon this land, and you will have the right of hunting and fishing just as you have now until the land is actually taken up.

[Emphasis added.]

With respect to Treaty 6, Lt. Gov. Morris stated at p. 218:

You want to be at liberty to hunt as before. I told you we did not want to take that means of living from you, you have it the same as before, on this, if a man, whether Indian or Half-breed, has a good field of grain, you would not destroy it with your hunt.

[Emphasis added.]

57 The oral history of the Treaty No. 8 Indians reveals a similar understanding of the treaty promises. Dan McLean, an elder from the Sturgeon Lake Indian Reserve, gave evidence in this trial. He indicated that the understanding of the treaty promise was that Indians were allowed to hunt anytime for food to feed their families. They could hunt on unoccupied Crown land and on abandoned land. If there was no fence on the land, they could hunt, but if there was a fence, they could not hunt there. This testimony is consistent with the oral histories presented by other Treaty No. 8 elders whose stories have been recorded by historians. The Indians understood that land would be taken up for homesteads, farming, prospecting and mining and that they would not be able to hunt in these areas or to shoot at the settlers' farm animals or buildings. No doubt the Indians believed that most of the Treaty No. 8 land would remain unoccupied and so would be available to them for hunting, fishing and trapping. See Spirit of the Alberta Indian Treaties, supra, at pp. 92-100.

58 Accordingly, the oral promises made by the Crown's representatives and the Indians' own oral history indicate that it was understood that land would be taken up and occupied in a way which precluded hunting when it was put to a visible use that was incompatible with hunting. Turning to the case law, it is clear that the courts have also accepted this interpretation and have concluded that whether or not land has been taken up or occupied is a question of fact that must be resolved on a case-by-case basis.

59 Most of the cases which have considered the geographical limitations on the right to hunt have been concerned with situations where the hunting took place on Crown land. In those cases, it was held that Crown lands were only "occupied" or "taken up" when they were actually put to an active use which was incompatible with hunting. For example, R. v. Smith, [1935] 2 W.W.R. 433 (Sask. C.A.), considered whether Indians had a right to hunt for food on a game preserve located on Crown land. There, in my view, it was correctly observed at p. 436 that "it is proper to consult th[e] treaty in order to glean from it whatever may throw some light on the meaning to be given to the words" in the NRTA. It was sensibly held at p. 437 that the Indians did not have a right of access to hunt on the game preserve because to do so would be incompatible with the fundamental purpose of establishing a preserve: "a game preserve would be one in name only if the Indians, or any other class of people, were entitled to shoot in it." See also R. v. Mirasty, [1942] 1 W.W.R. 343 (Sask. Pol. Ct.), in which Crown land was taken up for a forest and game preserve; and Mousseau,supra, in which Crown land was taken up for a public road. However, the courts have recognized an existing treaty right to hunt on Crown land taken up as a forest because hunting for food is not incompatible with that particular land use: R. v. Strongquill (1953), 8 W.W.R. (N.S.) 247 (Sask. C.A.). Finally, where limited hunting by non-Indians is permitted on Crown land taken up as a wildlife management area or a fur conservation area, the courts have held that Indians continue to have an unlimited right of access for the purposes of hunting for food: Strongquill, supra, at pp. 267 and 271; Sutherland,

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supra, at pp. 460 and 464-65; and R. v. Moosehunter, [1981] 1 S.C.R. 282, at p. 292.

60 A second but shorter line of cases has considered whether Indians have a treaty right of access to hunt on privately owned lands. While various factual situations have been considered, the courts have not settled the question as to whether the Treaty No. 8 right to hunt for food extends to privately owned land which is not put to visible use. This Court has considered hunting on private land in two cases.

61 In Myran, supra, the accused were charged with hunting without due regard for the safety of others. In obiter, it was stated that the accused persons did not have a right of access to the lands on which they had hunted. In an earlier case, the Manitoba Court of Appeal had held that, unless privately owned lands were posted with signs explicitly prohibiting hunting, both Indians and non-Indians could hunt there. Myran, supra, over- turned that line of reasoning, holding that, in and of itself, the absence of signs did not establish a right of access for hunting purposes. That position was adopted in Horse, supra, at p. 195. However, Myran, supra, did not explore in any detail the extent of the right of access. Accordingly, the full scope of the treaty right to hunt on private land remains to be considered. In addition, because the right of access is a question of fact, the particular facts arising in Myran, supra, are significant. In that case, the accused persons were hunting for food in an al- falfa field belonging to a farmer who had been awakened by the sound of the accused's rifle shots and by the accused's hunting light flashing through his bedroom window. The rifles had a range of nearly two miles and there were farm houses, highways, pastures, a town and a breeding station within their range. On those facts, there is no doubt that the land was put to an active and visible use which was incompatible with hunting.

62 In Horse, supra, the accused persons were hunting on privately owned land without the owner's permission. This Court stated repeatedly that Treaty No. 6 did not afford the accused a right of access to hunt on "occupied private lands" (see pp. 198, 204 and 209-10). In Horse, supra, the private lands were not posted, but they were sown to hay and grain and, thus, were visibly and actively used for farming. In light of these facts, there was no need to consider what was encompassed by the term "occupied private land". The use of the land was so readily apparent that it clearly fell within the category of occupied land. Similarly, in Mousseau, supra, at p. 97, this Court indicated that Indians had a right to hunt on: (a) all unoccupied Crown lands; (b) any occupied Crown land to which they had a right of access by statute, common law or otherwise; and (c) "any occupied private lands to which the Indians have a right of access by custom, usage, or consent of the owner or occupier, for the purpose of hunting, trapping, or fishing". However, that case involved hunting on a public highway which was clearly occupied Crown land. Although Mousseau, supra, summarized this Court's position on that point, the question of hunting on unoccupied private land was neither then, nor previously, before the Court. As a result, in both Horse, supra, and Mousseau, supra, the question of whether the Treaty protected a right of access to unoccupied private lands — private lands which had not be taken up for settlement or other purposes — was left unresolved.

63 One case which has specifically considered the treaty right to hunt on unoccupied private land is R. v. Bartleman (1984), 55 B.C.L.R. 78 (C.A.). There, the accused was charged with using ammunition which was prohibited under the provincial Wildlife Act. He had been hunting on uncultivated bush land. No livestock or buildings were present, no fence surrounded the land, and no signs had been posted. He claimed that, on the basis of his Treaty hunting right, the provincial legislation did not apply to him. His hunting rights were set out in the 1852 North Saanich Indian Treaty (quoted in Bartleman, at p. 87) which provided that the Indians "are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly". The B.C. Court of Appeal held that it was necessary to interpret the right on the basis of what the Indians would have understood in 1852 by the words of the Treaty. It held that the Treaty right to hunt could be exercised where to do so would not in-

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terfere with the actual use being made of the privately owned land. At page 97 this was written:

... the hunting must take place on land that is unoccupied in the sense that the particular form of hunting that is being undertaken does not interfere with the actual use and enjoyment of the land by the owner or occupier.

64 The Court of Appeal found that hunting was not incompatible with the minimal level of use to which the land was being put.

65 The "visible, incompatible use" approach, which focuses upon the use being made of the land, is appropriate and correct. Although it requires that the particular land use be considered in each case, this standard is neither unduly vague nor unworkable.

66 In summary, then, the geographical limitation on the right to hunt for food is derived from the terms of the particular treaty if they have not been modified or altered by the provisions of paragraph 12 of the NRTA. In this case, the geographical limitation on the right to hunt for food provided by Treaty No. 8 has not been modified by para. 12 of the NRTA. Where lands are privately owned, it must be determined on a case-by-case basis whether they are "other lands" to which Indians had a "right of access" under the Treaty. If the lands are occupied, that is, put to visible use which is incompatible with hunting, Indians will not have a right of access. Con- versely, if privately owned land is unoccupied and not put to visible use, Indians, pursuant to Treaty No. 8, will have a right of access in order to hunt for food. The facts presented in each of these appeals must now be considered.

67 The first is Mr. Badger. He was hunting on land covered with second growth willow and scrub. Although there were no fences or signs posted on the land, a farm house was located only one quarter of a mile from the place the moose was killed. The residence did not appear to have been abandoned. Second, Mr. Kiyawasew was hunting on a snow-covered field. Although there was no fence, there were run-down barns nearby and signs were posted on the land. Most importantly, the evidence indicated that in the fall, a crop had been harvested from the field. In the situations presented in both cases, it seems clear that the land was visibly being used. Since the appellants did not have a right of access to these particular tracts of land, their treaty right to hunt for food did not extend to hunting there. As a result, the limitations on hunting set out in the Wildlife Act did not infringe upon their existing right and were properly applied to these two appellants. The appeals of Mr. Badger and Mr. Kiyawasew must, therefore, be dismissed.

68 However, Mr. Ominayak's appeal presents a different situation. He was hunting on uncleared muskeg. No fences or signs were present. Nor were there any buildings located near the site of the kill. Although it was privately owned, it is apparent that this land was not being put to any visible use which would be incompatible with the Indian right to hunt for food. Accordingly, the geographical limitations upon the Treaty right to hunt for food did not preclude Mr. Ominayak from hunting upon this parcel of land. This, however, does not dispose of his appeal. It remains to be seen whether the existing right to hunt was in any other manner circumscribed by a form of government regulation which is permitted under the Treaty.

Permissible Regulatory Limitations on the Right to Hunt for Food

69 Pursuant to the provisions of s. 88 of the Indian Act, provincial laws of general application will apply to Indians. This is so except where they conflict with aboriginal or treaty rights, in which case the latter must prevail: R. v. Kruger, [1978] 1 S.C.R. 104, at pp. 114-15 [[1977] 4 W.W.R. 300]; Simon, supra, at pp. 411-14;

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Sparrow, supra, at p. 1109. In any event, the regulation of Indian hunting rights would ordinarily come within the jurisdiction of the Federal government and not the Province. However, the issue does not arise in this case since we are dealing with the right to hunt provided by Treaty 8 as modified by the NRTA. Both the Treaty and the NRTA specifically provided that the right would be subject to regulation pertaining to conservation.

70 Treaty No. 8 provided that the right to hunt would be "subject to such regulations as may from time to time be made by the Government of the country". In the West, a wide range of legislation aimed at conserving game had been enacted by the government beginning as early as the 1880s. Acts and regulations pertaining to conservation measures continued to be passed throughout the entire period during which the numbered treaties were concluded. In Horseman, supra, the aim and intent of the regulations was recognized. At p. 935, I noted:

Before the turn of the century the federal game laws of the Unorganized Territories provided for a total ban on hunting certain species (bison and musk oxen) in order to preserve both the species and the supply of game for Indians in the future. See The Unorganized Territories' Game Preservation Act, 1894, S.C. 1894, c. 31, ss. 2, 4 to 8 and 26. Even then the advances in firearms and trapping, coupled with the habitat loss and the over-exploitation of game, (undoubtedly by Europeans more than by Indians), had made it essential to impose conservation measures to preserve species and to provide for hunting for future generations. Moreover, beginning in 1890, provision was made in the federal Indian Act for the Superintendent General to make the game laws of Manitoba and the Unorganized Territories applicable to Indians. See An Act further to amend "The Indian Act" chapter forty-three of the Revised Statutes, S.C. 1890, c. 29, s. 10. A similar provision was in force in 1930. See Indian Act, R.S.C. 1927, c. 98, s. 69.

In light of the existence of these conservation laws prior to signing the Treaty, the Indians would have understood that, by the terms of the Treaty, the government would be permitted to pass regulations with respect to conservation. This concept was explicitly incorporated into the NRTA in a modified form providing for Provin- cial regulatory authority in the field of conservation. Paragraph 12 of the NRTA begins by stating its purpose:

It follows that by the terms of both the Treaty and the NRTA, provincial game laws would be applicable to Indi- ans so long as they were aimed at conserving the supply of game. However, the provincial government's regulatory authority under the Treaty and the NRTA did not extend beyond the realm of conservation. It is the constitutional provisions of s. 12 of the NRTA authorizing provincial regulations which make it unnecessary to consider s. 88 of the Indian Act and the general application of provincial regulations to Indians.

71 The licensing provisions contained in the Wildlife Act are in part, but not wholly, directed towards questions of conservation. At first blush, then, they may seem to form part of the permissible government regulation which can establish the boundaries of the existing right to hunt for food. However, the partial concern with conservation does not automatically lead to the conclusion that s. 26(1) is permissible regulation. It must still be determined whether the manner in which the licensing scheme is administered conflicts with the hunting right provided under Treaty No. 8 as modified by the NRTA.

72 This analysis should take into account the wording of the treaty and the NRTA. I believe this to be appropriate since the object will be to determine first whether there has been a prima facie infringement of the Treaty 8 right to hunt as modified by the NRTA and secondly if there is such an infringement whether it can be justified.

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In essence, we are dealing with a modified treaty right. This, I believe, follows from the principle referred to earlier that treaty rights should only be considered to be modified if a clear intention to do so has been manifes- ted, in this case, by the NRTA. Further, the solemn promises made in the treaty should be altered or modified as little as possible. The NRTA clearly intended to modify the right to hunt. It did so by eliminating the right to hunt commercially and by preserving and extending the right to hunt for food. The Treaty right thus modified pertains to the right to hunt for food which prior to the Treaty was an aboriginal right.

73 For reasons that I will amplify later, it seems logical and appropriate to apply the recently formulated Sparrow test in these circumstances. I would add that it can properly be inferred that the concept of reasonableness forms an integral part of the Sparrow test. It follows that this concept should be taken into account in the consideration of the justification of an infringement. As a general rule the criteria set out in Sparrow, supra, should be applied. However, the reasons in Sparrow, supra, make it clear that the suggested criteria are neither exclusive nor exhaustive. It follows that additional criteria may be helpful and applicable in the particular situation presented.

Conflict Between the Wildlife Act and Rights Under Treaty No. 8

74 It has been recognized that aboriginal and treaty rights are not absolute. The reasons in Sparrow, supra, made it clear that aboriginal rights may be overridden if the government is able to justify the infringement.

75 In Sparrow, supra, certain criteria were set out pertaining to justification at pp. 1111 and following. While that case dealt with the infringement of aboriginal rights, I am of the view that these criteria should, in most cases, apply equally to the infringement of treaty rights.

76 There is no doubt that aboriginal and treaty rights differ in both origin and structure. Aboriginal rights flow from the customs and traditions of the native peoples. To paraphrase the words of Judson J. in Calder, supra, at p. 328, they embody the right of native people to continue living as their forefathers lived. Treaty rights, on the other hand, are those contained in official agreements between the Crown and the native peoples. Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties. It follows that the scope of treaty rights will be determined by their wording, which must be interpreted in accordance with the principles enunciated by this Court.

77 This said, there are also significant aspects of similarity between aboriginal and treaty rights. Although treaty rights are the result of mutual agreement, they, like aboriginal rights, may be unilaterally abridged. See Horseman, supra, at p. 936; Sikyea v. R., [1964] 2 C.C.C. 325, at p. 330 [46 W.W.R. 65], affirmed [1964] S.C.R. 642 [49 W.W.R. 306]; and Moosehunter, supra, at p. 293. It follows that limitations on treaty rights, like breaches of aboriginal rights, should be justified.

78 In addition, both aboriginal and treaty rights possess in common a unique, sui generis nature. See Guerin v. R., [1984] 2 S.C.R. 335, at p. 382 [[1984] 6 W.W.R. 481]; Simon, supra, at p. 404. In each case, the honour of the Crown is engaged through its relationship with the native people. As Dickson C.J. and La Forest J. stated at p. 1110 in Sparrow, supra:

By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification. The way in which a legislative objective is to be attained must uphold the honour of the

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Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. [Emphasis added.]

79 The wording of s. 35(1) of the Constitution Act, 1982 supports a common approach to infringements of aboriginal and treaty rights. It provides that "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". In Sparrow, supra, Dickson C.J. and La Forest J. appeared to acknowledge the need for justification in the treaty context. They said this at pp. 1118-1119 in relation to R. v. Eninew (1984), 12 C.C.C. (3d) 365 (Sask. C.A.), a case which considered the effect of the Migratory Birds Con- vention Act on rights guaranteed under Treaty No. 10:

As we have pointed out, management and conservation of resources is indeed an important and valid legislative objective. Yet, the fact that the objective is of a "reasonable" nature cannot suffice as constitutional recognition and affirmation of aboriginal rights. Rather, the regulations enforced pursuant to a conservation or management objective may be scrutinized according to the justificatory standard outlined above. [Emphasis added.]

80 This standard of scrutiny requires that the Crown demonstrate that the legislation in question advances important general public objectives in such a manner that it ought to prevail. In R. v. Agawa (1988), 65 O.R. (2d) 505 (Ont. C.A.), at p. 524, Blair J.A. recognized the need for a balanced approach to limitations on treaty rights, stating:

... Indian treaty rights are like all other rights recognized by our legal system. The exercise of rights by an individual or group is limited by the rights of others. Rights do not exist in a vacuum and the exercise of any right involves a balancing with the interests and values involved in the rights of others. This is recognized in s. 1 of the Canadian Charter of Rights and Freedoms which provides that limitation of Charter rights must be justified as reasonable in a free and democratic society.

81 Dickson C.J. and La Forest J. arrived at a similar conclusion in Sparrow, supra, at pp. 1108-1109.

82 In summary, it is clear that a statute or regulation which constitutes a prima facie infringement of aboriginal rights must be justified. In my view, it is equally if not more important to justify prima facie infringe ments of treaty rights. The rights granted to Indians by treaties usually form an integral part of the consideration for the surrender of their lands. For example, it is clear that the maintenance of as much of their hunting rights as possible was of paramount concern to the Indians who signed Treaty No. 8. This was, in effect, an aboriginal right recognized in a somewhat limited form by the treaty and later modified by the NRTA. To the Indians, it was an essential element of this solemn agreement.

83 It will be remembered that the NRTA modified the Treaty right to hunt. It did so by eliminating the right to hunt commercially but enlarged the geographical areas in which the Indian people might hunt in all seasons. The area was to include all unoccupied Crown land in the province together with any other lands to which the Indians may have a right of access. Lastly, the province was authorized to make laws for conservation. Specific- ally:

In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall

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have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

84 The NRTA only modifies the Treaty 8 right. Treaty 8 represents a solemn promise of the Crown. For the reasons set out earlier, it can only be modified or altered to the extent that the NRTA clearly intended to modify or alter those rights. The Federal government, as it was empowered to do, unilaterally enacted the NRTA. It is unlikely that it would proceed in that manner today. The manner in which the NRTA was unilaterally enacted strengthens the conclusion that the right to hunt which it provides should be construed in light of the provisions of Treaty 8.

85 It follows that any prima facie infringement of the rights guaranteed under Treaty 8 or the NRTA must be justified. How should the infringement of a treaty right be justified? Obviously, the challenged limitation must be considered within the context of the treaty itself. Yet, the recognized principles to be considered and applied in justification should generally be those set out in Sparrow, supra. There may well be other factors that should influence the result. The Sparrow decision itself recognized that it was not setting a complete catalogue of factors. Nevertheless, these factors may serve as a rough guide when considering the infringement of treaty rights.

Prima Facie Infringement of the Treaty Right to hunt as modified by the NRTA

86 The licensing provisions of the Wildlife Act address two objectives: public safety and conservation. These objectives, in and of themselves, are not unconstitutional. However, it is evident from the wording of the Act and its regulations that the manner in which the licensing scheme is set up results in a prima facie infringement of the Treaty No. 8 right to hunt as modified by the NRTA. The statutory scheme establishes a two-step licensing process. The public safety component is the first one that is engaged.

87 Under s. 15(1)(c) of the Wildlife Act, the Lieutenant Governor in Council may pass regulations which "specify training and testing qualifications required for the obtaining and holding of a licence or permit". The regulations passed pursuant to this section are found in Alta. Reg. 50/87, s. 2(2) which reads as follows:

2 ...

(2) Subject to the General Wildlife (Ministerial) Regulation, a person is not eligible to obtain or hold a recreational licence unless

(a) prior to the date of his application for a recreational licence, he has

(i) achieved a mark, as determined by the Minister, on an examination approved by the Minister,

(ii) held a licence authorizing recreational hunting in Alberta or elsewhere, or

(iii) passed a test approved by the Minister respecting hunting competency,

and

(b) if his right to hold a recreational licence has been suspended in accordance with the Act or its predecessor, he has passed the examination referred to in clause (a)(I) subsequent to the beginning of his

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period of suspension.

88 Standing on its own, the requirement that all hunters take gun safety courses and pass hunting competency tests makes eminently good sense. This protects the safety of everyone who hunts, including Indians. It has been held on a number of occasions that aboriginal or treaty rights must be exercised with due concern for public safety. Myran, supra, dealt with two Indians charged with hunting without due regard for the safety of others, contrary to the provisions of the Manitoba Wildlife Act. The accused argued that they were immune from the Act on the basis of their right to hunt for food guaranteed under the Manitoba Natural Resources Act (parallel to the NRTA). Dickson J. (as he then was) for the Court found at p. 141 that:

I think that it is clear from Prince and Myron that an Indian of the Province is freed to hunt or trap game in such numbers, at such times of the year, by such means or methods and with such contrivances, as he may wish, provided he is doing so in order to obtain food for his own use and on unoccupied Crown lands or other lands to which he may have a right of access. But that is not to say that he has the right to hunt danger- ously and without regard for the safety of other persons in the vicinity. [Emphasis added.]

He went on at page 142 to state that:

In my opinion there is no irreconcilable conflict or inconsistency in principle between the right to hunt for food assured under para. 13 of the Memorandum of Agreement approved under The Manitoba Natural Re- sources Act and the requirement of s. 10(1) of the Wildlife Act that such right be exercised in a manner so as not to endanger the lives of others. The first is concerned with conservation of game to secure a continuing supply of food for the Indians of the Province and protect the right of the Indians to hunt for food at all seasons of the year; the second is concerned with the risk of death or serious injury omnipresent when hunters fail to have due regard for the presence of others in the vicinity. [Emphasis added.]

89 That decision was subsequently affirmed by this Court in Sutherland, supra, and Moosehunter, supra. See to the same effect R. v. Napoleon (1985), [1986] 1 C.N.L.R. 86 [[1985] 6 W.W.R. 302] (B.C.C.A.), and R. v. Fox, [1994] 3 C.N.L.R. 132 (Ont. C.A.). Accordingly, it can be seen that reasonable regulations aimed at ensuring safety do not infringe aboriginal or treaty rights to hunt for food. Similarly these regulations do not infringe the hunting rights guaranteed by Treaty 8 as modified by the NRTA.

90 While the general safety component of the licensing provisions may not constitute a prima facie infringement, the conservation component appears to present just such an infringement. Provincial regulations for conservation purposes are authorized pursuant to the provisions of the NRTA. However, the routine imposition upon Indians of the specific limitations that appear on the face of the hunting licence may not be permissible if they erode an important aspect of the Indian hunting rights. This Court has held on numerous occasions that there can be no limitation on the method, timing and extent of Indian hunting under a Treaty. I would add that a Treaty as amended by the NRTA should be considered in the same manner. Horseman, supra, clearly indicated that such restrictions conflicted with the treaty right. Moreover, in Simon, supra, this appears at p. 413:

The section clearly places seasonal limitations and licensing requirements, for the purposes of wildlife conservation, on the right to possess a rifle and ammunition for the purposes of hunting. The restrictions im posed in this case conflict, therefore, with the appellant's right to possess a firearm and ammunition in order to exercise his free liberty to hunt over the lands covered by the Treaty. As noted, it is clear that under s. 88 of the Indian Act provincial legislation cannot restrict native treaty rights. If conflict arises, the terms of the treaty prevail.

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91 The Simon case dealt with Provincial regulations which the government attempted to justify under s. 88 of the Indian Act. By contrast, in this case, s. 12 of the NRTA specifically provides that the provincial government may make regulations for conservation purposes, which affect the Treaty rights to hunt. Accordingly, Pro- vincial regulations pertaining to conservation will be valid so long as they are not clearly unreasonable in their application to aboriginal people.

92 Under the present licensing scheme, an Indian who has successfully passed the approved gun safety and hunting competency courses would not be able to exercise the right to hunt without being in breach of the conservation restrictions imposed with respect to the hunting method, the kind and numbers of game, the season and the permissible hunting area, all of which appear on the face of the licence. Moreover, while the Minister may determine how many licences will be made available and what class of licence these will be, no provisions currently exist for "hunting for food" licences.

93 At present, only sport and commercial hunting are licensed. It is true that the regulations do provide for a subsistence hunting licence. See Alta. Reg. 50/87, s. 25; Alta. Reg. 95/87, s. 7. However, its provisions are so minimal and so restricted that it could never be considered a licence to hunt for food as that term is used in Treaty No. 8 and as it is understood by the Indians. Accordingly, there is no provision for a licence which does not contain the facial restrictions set out earlier. Finally, there is no provision which would guarantee to Indians preferential access to the limited number of licences, nor is there a provision that would exempt them from the licence fee. As a result, Indians, like all other Albertans, would have to apply for a hunting licence from the same limited pool of licences. Further, if they were fortunate enough to be issued a licence, they would have to pay a licensing fee, effectively paying for the privilege of exercising a treaty right. This is clearly in conflict with both the treaty and NRTA provisions.

94 The present licensing system denies to holders of treaty rights as modified by the NRTA the very means of exercising those rights. Limitations of this nature are in direct conflict with the treaty right. Therefore, it must be concluded that s. 26(1) of the Wildlife Act conflicts with the hunting right set out in Treaty No. 8 as modified by the NRTA.

95 Accordingly, it is my conclusion that the appellant, Mr. Ominayak, has established the existence of a prima facie breach of his treaty right. It now falls to the government to justify that infringement.

Justification

96 In my view justification of provincial regulations enacted pursuant to the NRTA should meet the same test for justification of treaty rights that was set out in Sparrow, supra. The reason for this is obvious. The effect of s. 12 of the NRTA is to place the Provincial government in exactly the same position which the Federal Crown formerly occupied. Thus the Provincial government has the same duty not to infringe unjustifiably the hunting right provided by Treaty 8 as modified by the NRTA. Paragraph 12 of the NRTA provides that the province may make laws for a conservation purpose, subject to the Indian right to hunt and fish for food. Accordingly, there is a need for a means to assess which conservation laws will if they infringe that right, nevertheless be justifiable. The Sparrow analysis provides a reasonable, flexible and current method of assessing conservation regulations and enactments.

97 In Sparrow, at p. 1113, it was held that in considering whether an infringement of aboriginal or treaty rights could be justified, the following questions should be addressed sequentially:

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First, is there a valid legislative objective? Here the court would inquire into whether the objective of Parlia- ment in authorizing the department to enact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also be scrutinized. [Emphasis added.]

At page 1114, the next step was set out in this way:

If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. Here, we refer back to the guiding interpretive principle derived from Taylor and Williams and Guerin, supra. That is, the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified. [Emphasis added.]

Finally, at p. 1119, it was noted that further questions might also arise depending on the circumstances of the inquiry:

These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented. The aboriginal peoples, with their history of conservation-consciousness and interdependence with natural resources, would surely be expected, at the least, to be informed regarding the determination of an appropriate scheme for the regulation of the fisheries.

We would not wish to set out an exhaustive list of the factors to be considered in the assessment of justification. Suffice it to say that recognition and affirmation requires sensitivity to and respect for the rights of aboriginal peoples on behalf of the government, courts and indeed all Canadians. [Emphasis added.]

98 In the present case, the government has not led any evidence with respect to justification. In the absence of such evidence, it is not open to this Court to supply its own justification. Section 26(1) of the Wildlife Act constitutes a prima facie infringement of the appellant Mr. Ominayak's treaty right to hunt. Yet, the issue of conservation is of such importance that a new trial must be ordered so that the question of justification may be addressed.

Conclusion

99 The constitutional question posed before this Court was:

100 It is evident from these reasons that the constitutional question should be answered as follows. The hunting rights confirmed by Treaty No. 8 were modified by para. 12 of the NRTA to the extent indicated in these reasons. Paragraph 12 of the NRTA provided for a continuing right to hunt for food on unoccupied land.

101 Mr. Badger and Mr. Kiyawasew were hunting on occupied land to which they had no right of access

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under Treaty No. 8 or the NRTA. Accordingly, ss. 26(1) and 27(1) of the Wildlife Act do not infringe their constitutional right to hunt for food.

102 However, Mr. Ominayak was exercising his constitutional right on land which was unoccupied for the purposes of this case. Section 26(1) of the Wildlife Act constitutes a prima facie infringement of his Treaty right to hunt for food. As a result of their conclusions, the issue of justification was not considered by the courts below. Therefore, in his case, a new trial must be ordered so that the issue of justification may be addressed.

Disposition

103 The appeals of Mr. Badger and Mr. Kiyawasew are dismissed.

104 The appeal of Mr. Ominyak is allowed and a new trial directed so that the issue of the justification of the infringement created by s. 26(1) of the Wildlife Act and any regulations passed pursuant to that section may be addressed.

Order accordingly.

END OF DOCUMENT

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R. v. Sparrow

SPARROW v. R. et al.

Supreme Court of Canada

Dickson C.J.C., McIntyre,[FN*] Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

Heard: November 3, 1988 Judgment: May 31, 1990 Docket: No. 20311

Counsel: M.R.V. Storrow, Q.C., L.F. Harvey and J. Lysyk, for appellant.

T.R. Braidwood, Q.C., and J.E. Dorsey, for respondent.

H.A. Slade, A. Pape and L. Mandell, for the intervener the National Indian Brotherhood/the Assembly of First Nations.

C. Harvey, for the interveners the B.C. Wildlife Federation et al.

J.K. Lowes, for the intervener the Fisheries Council of British Columbia.

I. Donald, Q.C., for the intervener the United Fishermen and Allied Workers' Union.

J.T.S. McCabe, Q.C., and M. Hélie, for the intervener the Attorney General for Ontario.

R. Morin and R. Décary, Q.C., for the intervener the Attorney General of Quebec.

E.R.A. Edwards, Q.C., and H.R. Eddy, for the intervener the Attorney General of British Columbia.

K.J. Tyler and R.G. Richards, for the intervener the Attorney General for Saskatchewan.

R.J. Normey, for the intervener the Attorney General for Alberta.

S.R. Stevenson, for the intervener the Attorney General of Newfoundland.

Subject: Criminal; Public; Constitutional

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Native Law --- Constitutional issues — Hunting and fishing — Fishing offences — Application of federal statutes

Native law — Aboriginal rights — Hunting, trapping and fishing — Indian fishing with net longer than permitted by band's Indian food fishing licence — Indian right to fish for food constituting existing aboriginal rights protected by s. 35(1) of Constitution Act, 1982 — Court setting out approach for assessing legitimacy of legislation restricting existing aboriginal rights — Party challenging legislation bearing onus of proving prima facie infringement of s. 35(1) — Crown then carrying burden of proving justification — Court affirming setting aside of conviction and ordering of new trial.

Fish and game — Legislation — Validity — Indian fishing with net longer than permitted by band's Indian food fishing licence — Indian right to fish for food constituting existing aboriginal rights protected by s. 35(1) of Constitution Act, 1982 — Court setting out approach for assessing legitimacy of legislation restricting existing aboriginal rights — Party challenging legislation bearing onus of proving prima facie infringement of s. 35(1) — Crown then carrying burden of proving justification — Court affirming setting aside of conviction and ordering of new trial.

Constitutional law — Judicial review of legislation — Principles of interpretation — Indian fishing with net longer than permitted by band's Indian food fishing licence — Indian right to fish for food constituting existing aboriginal rights protected by s. 35(1) of Constitution Act, 1982 — Court setting out approach for assessing legitimacy of legislation restricting existing aboriginal rights — Party challenging legislation bearing onus of proving prima facie infringement of s. 35(1) — Crown then carrying burden of proving justification — Court affirming setting aside of conviction and ordering of new trial.

The accused, a member of the Musqueam band, was charged under s. 61(1) of the Fisheries Act with fishing with a drift net that was longer than that permitted by the band's Indian food fishing licence. The accused contended that, because he had an aboriginal right to fish, the net length restriction was inconsistent with s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing aboriginal and treaty rights. The accused appealed his conviction first to the County Court and then to the Court of Appeal. The Court of Appeal allowed the appeal and ordered a new trial. The accused appealed the court's holding that s. 35(1) protects the aboriginal right only when exercised for food purposes and in failing to find the net length restriction in the licence was inconsistent with s. 35(1). The Crown cross-appealed the finding that the aboriginal right had not been extinguished before the date of commencement of the Constitution Act, 1982, and argued, alternatively, that the court erred in its conclusions concerning the scope of the aboriginal right to fish for food. It maintained that a new trial should not have been directed because the accused failed to establish a prima facie case that the reduction in length of the net unreasonably interfered with his right.

Held:

Appeal and cross-appeal dismissed; setting aside of conviction affirmed; new trial ordered.

Section 35(1) of the Constitution Act, 1982 applies to those rights in existence when the Act came into effect. Extinguished rights are not revived by the Act. An existing aboriginal right cannot be read as incorporating the specific manner in which it was regulated before 1982. Indeed, the phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time. The Court of Appeal's finding that at the relevant time the accused was exercising an existing aboriginal right was supported by the evidence and not to be disturbed. To show that an aboriginal right has been extinguished, the Sovereign's intention must be be clear and

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plain; here, the Crown failed to prove the aboriginal right to fish had been extinguished. Nothing in the Fisheries Act or its regulations demonstrates a clear and plain intention to extinguish the aboriginal right to fish. The issuance of individual permits for an extended period on a discretionary basis was a means of controlling the fisheries, not of defining underlying rights.

As to the scope of the right to fish, government regulations have only recognized the right to fish for food for over a hundred years. The nature of government regulations cannot be determinative of the content and scope of an existing aboriginal right, government policy can regulate the exercise of that right but such regulation must be in keeping with s. 35(1), which is the culmination of a political and legal struggle for the constitutional recognition of aboriginal rights. The approach to be taken to interpreting s. 35(1) is derived from general principles of constitutional interpretation, principles relating to aboriginal rights and the purposes behind the provision itself. The nature of s. 35(1) suggests that it be construed in a purposive way. Given that the provision affirms aboriginal rights, a generous, liberal interpretation of the words in the subsection is demanded. The fact that s. 35(1) is not subject to s. 1 of the Charter does not mean that any law or regulation affecting aboriginal rights will automatically be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1). The government must bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1).

The first question to ask is whether the legislation in issue has the effect of interfering with an existing aboriginal right. If so, it represents a prima facie infringement of s. 35(1). The inquiry begins with a reference to the characteristics of the right at stake. As they develop an understanding of the sui generis nature of aboriginal rights, courts must carefully avoid applying traditional common law concepts of property. Sensitivity to the aboriginal perspective on the meaning of the right is crucial. To determine whether there has been a prima facie infringement certain questions must be asked. First, is the limitation reasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. If prima facie interference is found the analysis moves to the issue of justification. The first step is to determine whether there is a valid legislative objective, such as an objective aimed at preserving s. 35(1) rights by conserving and managing a natural resource. If a valid legislative objective is found, the second step is to assess whether the legislation can be justified in light of the Crown's responsibility to and trust relationship with aboriginal peoples. The nature of the constitutional protection afforded by s. 35(1) demands that there be a link between the justification question and the allocation of priorities in the fishery. The constitutional nature of the Musqueam food fishing rights meant that any allocation of priorities after valid conservation measures have been implemented had to give top priority to Indian food fishing.

The justificatory standard to be met may place a heavy burden on the Crown. However, government policy regarding the British Columbia fishery already dictates that, in allocating the right to take fish, Indian food fishing is to be given priority over the interests of other user groups. The constitutional entitlement embodied in s. 35(1) requires the Crown to ensure that its regulations are in keeping with that allocation of priority. The objective of this requirement is to guarantee that federal conservation and management plans concerning the salmon fishery treat aboriginal peoples in a way ensuring that their rights are taken seriously. Cases considered:

A.G. Can. v. A.G. Ont. (Ref. re Prov. Fisheries), [1898] A.C. 700 (P.C.) — applied

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A.G. Ont. v. Bear Island Foundation, 49 O.R. (2d) 353, [1985] 1 C.N.L.R. 1, 15 D.L.R. (4th) 321 (H.C.) — referred to

Baker Lake v. Min. of Indian Affairs & Nor. Dev., [1980] 1 F.C. 518, [1980] 5 W.W.R. 193, 107 D.L.R. (3d) 513, [1979] 3 C.N.L.R. 17 (T.D.) — considered

C.P. Ltd. v. Paul, [1988] 2 S.C.R. 654, [1989] 1 C.N.L.R. 47, 1 R.P.R. (2d) 105, 53 D.L.R. (4th) 487, 91 N.B.R. (2d) 43, 232 A.P.R. 43, 89 N.R. 325 — referred to

Calder v. A.G.B.C., 74 W.W.R. 481, 13 D.L.R. (3d) 64, affirmed [1973] S.C.R. 313, [1973] 4 W.W.R. 1, 34 D.L.R. (3d) 145 [B.C.] — considered

Guerin v. R., [1984] 2 S.C.R. 335, 59 B.C.L.R. 301, [1984] 6 W.W.R. 481, 36 R.P.R. 1, 20 E.T.R. 6, [1985] 1 C.N.L.R. 20, 13 D.L.R. (4th) 321, 55 N.R. 161 — applied

Jack v. R., [1980] 1 S.C.R. 294, [1979] 5 W.W.R. 364, [1979] 2 C.N.L.R. 25, 48 C.C.C. (2d) 246, 100 D.L.R. (3d) 193, 28 N.R. 162 [B.C.] — applied

Johnson v. McIntosh (1823), 21 U.S. (8 Wheat.) 543 (S.C.) — referred to

Kruger v. R., [1978] 1 S.C.R. 104, [1977] 4 W.W.R. 300, 34 C.C.C. (2d) 377, 75 D.L.R. (3d) 434, 14 N.R. 495 [B.C.] — referred to

Nowegijick v. R., [1983] 1 S.C.R. 29, [1983] C.T.C. 20, 83 D.T.C. 5041, [1983] 2 C.N.L.R. 89, 144 D.L.R. (3d) 193, 46 N.R. 41 [Fed.] — applied

Pasco v. C.N.R., 69 B.C.L.R. 76, [1986] 1 C.N.L.R. 35 (S.C.) [affirmed [1986] 1 C.N.L.R. 34, leave to appeal to S.C.C. refused [1986] 1 C.N.L.R. 34n, 64 N.R. 232n]— referred to

Prince v. R., [1964] S.C.R. 81, 46 W.W.R. 121, 41 C.R. 403, [1964] 3 C.C.C. 1 [Man.] — referred to

R. v. Agawa, 65 O.R. (2d) 505, [1988] 3 C.N.L.R. 73, 43 C.C.C. (3d) 266, 53 D.L.R. (4th) 101, 28 O.A.C. 201 (C.A.) — referred to

R. v. Denny, N.S.C.A., 5th March 1990 (not yet reported) — considered

R. v. Derriksan, [1976] 6 W.W.R. 480, 31 C.C.C. (2d) 575, 71 D.L.R. (3d) 159 (S.C.C.) [B.C.] — distinguished

R. v. Eninew, 7 C.C.C. (3d) 443, [1983] 2 C.N.L.R. 123, [1984] 2 C.N.L.R. 122, 8 C.R.R. 1, 1 D.L.R. (4th) 595, 28 Sask. R. 168, affirmed (sub nom. R. v. Eninew; R. v. Bear) 12 C.C.C. (3d) 365, [1984] 2 C.N.L.R. 126, 11 C.R.R. 189, 10 D.L.R. (4th) 137, 32 Sask. R. 237 (C.A.) — considered

R. v. Hare, 20 C.C.C. (3d) 1, [1985] 3 C.N.L.R. 139, 9 O.A.C. 161 (C.A.) — considered

R. v. Martin (1985), 17 C.R.R. 375, 65 N.B.R. (2d) 21, 167 A.P.R. 21 (Q.B.) — referred to

R. v. Simon, [1985] 2 S.C.R. 387, [1986] 1 C.N.L.R. 153, 23 C.C.C. (3d) 238, 24 D.L.R. (4th) 390, 71 N.S.R. (2d) 15, 171 A.P.R. 15, 62 N.R. 366 — referred to

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R. v. Sutherland, [1980] 2 S.C.R. 451, [1980] 5 W.W.R. 456, 53 C.C.C. (2d) 289, 113 D.L.R. (3d) 374, [1980] 3 C.N.L.R. 71, 7 Man. R. (2d) 359, 35 N.R. 361 — referred to

R. v. Taylor, 34 O.R. (2d) 360, [1981] 3 C.N.L.R. 114, 62 C.C.C. (2d) 227 (C.A.) — applied

R. v. Wesley, [1932] 2 W.W.R. 337, 26 Alta. L.R. 433, 58 C.C.C. 269, [1932] 4 D.L.R. 774 (C.A.) — referred to

Ref. re Man. Language Rights, [1985] 1 S.C.R. 721, (sub nom. Ref. re Language Rights under s. 23 of Man. Act, 1870) [1985] 4 W.W.R. 385, 19 D.L.R. (4th) 1, 35 Man. R. (2d) 83, 59 N.R. 321 — considered

St. Catherine's Milling & Lumber Co. v. R. (1888), 14 App. Cas. 46, 4 Cart. 107 (P.C.) — referred to

Steinhauer v. R., [1985] 3 C.N.L.R. 187, 15 C.R.R. 175, 63 A.R. 381 (Q.B.) — referred to

Statutes considered:

British Columbia Terms of Union, 1871

art. 13

Constitution Act, 1867

s. 91(12)

s. 91(24)

s. 109

Constitution Act, 1930

Constitution Act, 1982

s. 1

s. 33

s. 35

s. 52(1)

Fisheries Act, R.S.C. 1985, c. F-14

s. 43

s. 79(1)

Quebec Boundary Extension Act, S.C. 1912, c. 45

Royal Proclamation of 1763 [R.S.C. 1985, App. II (No. 1), pp. 4-6]

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Wildlife Act, S.B.C. 1966, c. 55

Regulations considered:

Fisheries Act, R.S.C. 1985, c. F-14

British Columbia Fishery (General) Regulations, SOR/84-284

s. 4

s. 12

s. 27(1), (4)

Authorities considered:

Canada, Department of Indian Affairs and Northern Development, In All Fairness: A Native Claims Policy — Comprehensive Claims (1981), pp. 11, 12.Canada, Department of Indian Affairs and Northern Development, Statement of the Government of Canada on Indian Policy (1969), p. 11.Canada, Statement made by the Honour- able Jean Chrétien, Minister of Indian Affairs and Northern Development, on Claims of Indian and Inuit People, 8th August 1973.Clement, The Law of the Canadian Constitution, 3rd ed. (1916).Little Bear, "A Concept of Nat- ive Title", [1982] 5 Can. Legal Aid Bulletin 99.Lyon, "An Essay on Constitutional Interpretation" (1988), 26 Osgoode Hall L.J. 95 at 100.McNeil, "The Constitutional Rights of the Aboriginal People of Canada" (1982), 4 Sup. Ct. L. Rev. 255, p. 258.Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982, Part II, Section 35: The Substantive Guarantee" (1987), 22 U.B.C. Law Rev. 207.Sanders, "Pre-existing Rights: The Aboriginal Peoples of Canada", in Beaudoin and Ratushny (eds.), The Canadian Charter of Rights and Freedoms, 2nd ed. (1989), p. 730.Schwartz, First Principles, Second Thoughts (1986), c. XXIV.Slattery, "The Hidden Constitution: Aboriginal Rights in Canada" (1984), 32 Am. J. of Comp. Law 361.Slattery, "Under- standing Aboriginal Rights" (1987), 66 Can. Bar Rev. 727, pp. 730, 781, 782. Appeal and Cross-appeal from decision of British Columbia Court of Appeal, [1987] 2 W.W.R. 577, 9 B.C.L.R. (2d) 300, 32 C.C.C. (3d) 65, [1987] 1 C.N.L.R. 145, 36 D.L.R. (4th) 246, allowing appeal from decision of Lamperson Co. Ct. J., [1986] B.C.W.L.D. 599, dismissing appeal from conviction under Fisheries Act.

The judgment of the court was delivered by Dickson C.J.C. and La Forest J.:

1 This appeal requires this court to explore for the first time the scope of s. 35(1) of the Constitution Act, 1982, and to indicate its strength as a promise to the aboriginal peoples of Canada. Section 35(1) is found in Pt. II of that Act, entitled "Rights of the Aboriginal Peoples of Canada", and provides as follows:

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

2 The context of this appeal is the alleged violation of the terms of the Musqueam food fishing licence which are dictated by the Fisheries Act, R.S.C. 1970, c. F-14 [now R.S.C. 1985, c. F-14], and the regulations under that Act. The issue is whether Parliament's power to regulate fishing is now limited by s. 35(1) of the Consti- tutional Act, 1982, and, more specifically, whether the net length restriction in the licence is inconsistent with

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that provision.

Facts

3 The appellant, a member of the Musqueam Indian Band, was charged under s. 61(1) [now s. 79(1)] of the Fisheries Act of the offence of fishing with a drift net longer than that permitted by the terms of the band's Indi- an food fishing licence. The fishing which gave rise to the charge took place on 25th May 1984 in Canoe Pas- sage, which is part of the area subject to the band's licence. The licence, which had been issued for a one-year period beginning 31st March 1984, set out a number of restrictions including one that drift nets were to be limited to 25 fathoms in length. The appellant was caught with a net which was 45 fathoms in length. He has throughout admitted the facts alleged to constitute the offence, but has defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the band's licence is inconsistent with s. 35(1) of the Constitution Act, 1982, and therefore invalid.

The Courts Below

4 Goulet Prov. J., who heard the case [20th March 1985 (unreported)], first referred to the very similar pre- Charter case of R. v. Derriksan, [1976] 6 W.W.R. 480, 31 C.C.C. (2d) 575, 71 D.L.R. (3d) 159 (S.C.C.) [B.C.], where this court held that the aboriginal right to fish was governed by the Fisheries Act and regulations. He then expressed the opinion that he was bound by Calder v. A.G. B.C. (1970), 74 W.W.R. 481, 13 D.L.R. (3d) 64 (B.C.C.A.), which held that a person could not claim an aboriginal right unless it was supported by a special treaty, proclamation, contract or other document, a position that was not disturbed because of the divided opinions of the members of this court on the appeal which affirmed that decision ([1973] S.C.R. 313, [1973] 4 W.W.R. 1, 34 D.L.R. (3d) 145 [B.C.]). Section 35(1) of the Constitution Act, 1982 thus had no application. The alleged right here was not based on any treaty or other document, but was said to have been one exercised by the Musqueam from time immemorial before European settlers came to this continent. He therefore convicted the appellant, finding it unnecessary to consider the evidence in support of an aboriginal right.

5 An appeal to Lamperson J. Co. Ct. of the County Court of Vancouver was dismissed for similar reasons ([1986] B.C.W.L.D. 599).

6 The British Columbia Court of Appeal, [1987] 2 W.W.R 577, 9 B.C.L.R. (2d) 300, 32 C.C.C. (3d) 65, [1987] 1 C.N.L.R. 145, 36 D.L.R. (4th) 246, found that the courts below had erred in deciding that they were bound by the Court of Appeal decision in Calder, supra, to hold that the appellant could not rely on an aboriginal right to fish. Since the pronouncement of the Supreme Court of Canada judgment, the Court of Appeal's decision has been binding on no one. The court also distinguished Calder on its facts.

7 The court then dealt with the other issues raised by the parties. On the basis of the trial judge's conclusion that Mr. Sparrow was fishing in ancient tribal territory where his ancestors had fished "from time immemorial", it stated that, with the other circumstances, this should have led to the conclusion that Mr. Sparrow was exercising an existing aboriginal right. It rejected the Crown's contention that the right was no longer existing by reason of its "extinguishment by regulation". An aboriginal right could continue, though regulated. The court also rejected textual arguments made to the effect that s. 35 was merely of a preambular character, and concluded that the right to fish asserted by the appellant was one entitled to constitutional protection.

8 The issue then became whether that protection extended so far as to preclude regulation (as contrasted with extinguishment, which did not arise in this case) of the exercise of that right. In its view, the general power

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to regulate the time, place and manner of all fishing, including fishing under an aboriginal right, remains. Parlia- ment retained the power to regulate fisheries and to control Indian lands under s. 91(12) and (24) of the Consti- tution Act, 1867 respectively. Reasonable regulations were necessary to ensure the proper management and conservation of the resource, and the regulations under the Fisheries Act restrict the right of all persons including Indians. The court observed, at p. 330:

Section 35(1) of the Constitution Act, 1982 does not purport to revoke the power of Parliament to act under Head 12 or 24. The power to regulate fisheries, including Indian access to the fisheries, continues, subject only to the new constitutional guarantee that the aboriginal rights existing on 17th April 1982 may not be taken away.

9 The court rejected arguments that the regulation of fishing was an inherent aspect of the aboriginal right to fish and that such regulation must be confined to necessary conservation measures. The right had always been and continued to be a regulated right. The court put it this way, at p. 331:

The aboriginal right which the Musqueam had was, subject to conservation measures, the right to take fish for food and for the ceremonial purposes of the band. It was in the beginning a regulated, albeit self- regulated, right. It continued to be a regulated right, and on 17th April 1982, it was a regulated right. It has never been a fixed right, and it has always taken its form from the circumstances in which it has existed. If the interests of the Indians and other Canadians in the fishery are to be protected then reasonable regulations to ensure the proper management and conservation of the resource must be continued.

10 The court then went on to particularize the right still further. It was a right for a purpose, not one related to a particular method. Essentially, it was a right to fish for food and associated traditional band activities:

The aboriginal right is not to take fish by any particular method or by a net of any particular length. It is to take fish for food purposes. The breadth of the right should be interpreted liberally in favour of the Indians. So "food purposes" should not be confined to subsistence. In particular, this is so because the Musqueam tradition and culture involves a consumption of salmon on ceremonial occasions and a broader use of fish than mere day-to-day domestic consumption.

That right, the court added, has not changed its nature since the enactment of the Constitution Act, 1982. What has changed is that the Indian food fishery right is now entitled to priority over the interests of other user groups, and that that right, by reason of s. 35(1), cannot be extinguished.

11 The Court of Appeal found that the trial judge's findings of facts were insufficient to lead to an acquittal. Observing that the conviction was based on an erroneous view of the law and could not stand, the court further remarked upon the existence of unresolved conflicts in the evidence, including the question whether a change in the fishing conditions was necessary to reduce the catch to a level sufficient to satisfy reasonable food requirements, as well as for conservation purposes.

The Appeal

12 Leave to appeal to this court was then sought and granted. On 24th November 1987, the following constitutional question was stated:

Is the net length restriction contained in the Musqueam Indian Band Indian Food Fishing Licence dated 30th

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March 1984, issued pursuant to the British Columbia Fishery (General) Regulations and the Fisheries Act, R.S.C. 1970, c. F-14, inconsistent with s. 35(1) of the Constitution Act, 1982?

13 The appellant appealed on the ground that the Court of Appeal erred (1) in holding that s. 35(1) of the Constitution Act, 1982 protects the aboriginal right only when exercised for food purposes and permits restrictive regulation of such rights whenever "reasonably justified as being necessary for the proper management and conservation of the resource or in the public interest", and (2) in failing to find the net length restriction in the band's food fish licence was inconsistent with s. 35(1) of the Constitution Act, 1982.

14 The respondent Crown cross-appealed on the ground that the Court of Appeal erred in holding that the aboriginal right had not been extinguished before 17th April 1982, the date of commencement of the Constitu- tion Act, 1982, and in particular in holding that, as a matter of fact and law, the appellant possessed the aboriginal right to fish for food. In the alternative, the respondent alleged, the Court of Appeal erred in its conclusions respecting the scope of the aboriginal right to fish for food and the extent to which it may be regulated, more particularly in holding that the aboriginal right included the right to take fish for the ceremonial purposes and societal needs of the band and that the band enjoyed a constitutionally protected priority over the rights of other people engaged in fishing. Section 35(1), the respondent maintained, did not invalidate legislation passed for the purpose of conservation and resource management, public health and safety and other overriding public interests such as the reasonable needs of other user groups. Finally, it maintained that the conviction ought not to have been set aside or a new trial directed because the appellant failed to establish a prima facie case that the reduction in the length of the net had unreasonably interfered with his right by preventing him from meeting his food fish requirements. According to the respondent, the Court of Appeal had erred in shifting the burden of proof to the Crown on the issue before the appellant had established a prima facie case.

15 The National Indian Brotherhood Assembly of First Nations intervened in support of the appellant. The Attorneys General of British Columbia, Ontario, Quebec, Saskatchewan, Alberta and Newfoundland supported the respondent, as did the British Columbia Wildlife Federation and others, the Fishery Council of British Columbia and the United Fishermen and Allied Workers Union.

The Regulatory Scheme

16 The Fisheries Act, s. 34 [now s. 43], confers on the Governor in Council broad powers to make regulations respecting the fisheries, the most relevant for our purposes being those set forth in the following paragraphs of that section:

34. ...

(a) for the proper management and control of the seacoast and inland fisheries;

(b) respecting the conservation and protection of fish;

(e) respecting the use of fishing gear and equipment;

(f) respecting the issue, suspension and cancellation of licences and leases;

(g) respecting the terms and conditions under which a lease or licence may be issued;

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Contravention of the Act and the regulations is made an offence under s. 61(1) under which the appellant was charged.

17 Acting under its regulation-making powers, the Governor in Council enacted the British Columbia Fish- ery (General) Regulations, SOR/ 84-248. Under these regulations (s. 4), everyone is, inter alia, prohibited from fishing without a licence, and then only in areas and at the times and in the manner authorized by the Act or regulations. That provision also prohibits buying, selling, trading or bartering fish other than those lawfully caught under the authority of a commercial fishing licence. Section 4 reads:

4. (1) Unless otherwise provided in the Act or in any Regulations made thereunder in respect of the fisheries to which these Regulations apply or in the Wildlife Act (British Columbia), no person shall fish except under the authority of a licence or permit issued thereunder.

(2) No person shall fish for any species of fish in the Province or in Canadian fisheries waters of the Pacific Ocean except in areas and at times authorized by the Act or any Regulations made thereunder in respect of the fisheries to which these Regulations apply.

(3) No person who is the owner of a vessel shall operate that vessel or permit it to be operated in contravention of these Regulations.

(4) No person shall, without lawful excuse, have in his possession any fish caught or obtained contrary to the Act or any Regulations made thereunder in respect of the fisheries to which these Regulations apply.

(5) No person shall buy, sell, trade or barter or attempt to buy, sell, trade or barter fish or any portions thereof other than fish lawfully caught under the authority of a commercial fishing licence issued by the Minister or the Minister of Environment for British Columbia.

18 The regulations make provision for issuing licences to Indians or a band "for the sole purpose of obtaining food for that Indian and his family and for the band", and no one other than an Indian is permitted to be in possession of fish caught pursuant to such a licence. Subsections 27(1) and (4) of the regulations read:

27. (1) In this section "Indian food fish licence" means a licence issued by the Minister to an Indian or a band for the sole purpose of obtaining food for that Indian and his family or for the band ...

(4) No person other than an Indian shall have in his possession fish caught under the authority of an Indian food fish licence.

19 As in the case of other licences issued under the Act, such licences may, by s. 12 of the regulations, be subjected to restrictions regarding the species and quantity of fish that may be taken, the places and times when they may be taken, the manner in which they are to be marked and, most important here, the type of gear and equipment that may be used. Section 12 reads as follows:

12. (1) Subject to these Regulations and any regulations made under the Act in respect of the fisheries to which these Regulations apply and for the proper management and control of such fisheries, there may be specified in a licence issued under these Regulations

(a) the species of fish and quantity thereof that is permitted to be taken;

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(b) the period during which and the waters in which fishing is permitted to be carried out;

(c) the type and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is to be used;

(d) the manner in which fish caught and retained for educational or scientific purposes is to be held or displayed;

(e) the manner in which fish caught and retained is to be marked and transported; and

(f) the manner in which scientific or catch data is to be reported.

(2) No person fishing under the authority of a licence referred to in subsection (1) shall contravene or fail to comply with the terms of the licence.

20 Pursuant to these powers, the Musqueam Indian Band, on 31st March 1984, was issued an Indian food fishing licence as it had since 1978 "to fish for salmon for food for themselves and their family" in areas which included the place where the offence charged occurred, the waters of Ladner Reach and Canoe Passage therein described. The licence contained time restrictions as well as the type of gear to be used, notably "One Drift net twenty-five (25) fathoms in length".

21 The appellant was found fishing in the waters described using a drift net in excess of 25 fathoms. He did not contest this, arguing instead that he had committed no offence because he was acting in the exercise of an existing aboriginal right which was recognized and affirmed by s. 35(1) of the Constitution Act, 1982.

Analysis

22 We will address first the meaning of "existing" aboriginal rights and the content and scope of the Musqueam right to fish. We will then turn to the meaning of "recognized and affirmed", and the impact of s. 35(1) on the regulatory power of Parliament.

"Existing"

23 The word "existing" makes it clear that the rights to which s. 35(1) applies are those that were in existence when the Constitution Act, 1982 came into effect. This means that extinguished rights are not revived by the Constitution Act, 1982. A number of courts have taken the position that "existing" means being in actuality in 1982: R. v. Eninew, 7 C.C.C. (3d) 443 at 446, [1983] 2 C.N.L.R. 123, [1984] 2 C.N.L.R. 122, 8 C.R.R. 1, 1 D.L.R. (4th) 595, 28 Sask. R. 168, affirmed (sub nom. R. v. Eninew; R. v. Bear) 12 C.C.C. (3d) 365, [1984] 2 C.N.L.R. 126, 11 C.R.R. 189, 10 D.L.R. (4th) 137, 32 Sask. R. 237 (C.A.). See also A.G. Ont. v. Bear Island Foundation, 49 O.R. (2d) 353, [1985] 1 C.N.L.R. 1, 15 D.L.R. (4th) 321 (H.C.); R. v. Hare, 20 C.C.C. (3d) 1, [1985] 3 C.N.L.R. 139, 9 O.A.C. 161 (C.A.); Steinhauer v. R., [1985] 3 C.N.L.R. 187, 15 C.R.R. 175, 63 A.R. 381 (Q.B.); R. v. Martin (1985), 17 C.R.R. 375, 65 N.B.R. (2d) 21, 167 A.P.R. 21 (Q.B.); R. v. Agawa, 65 O.R. (2d) 505, [1988] 3 C.N.L.R. 73, 43 C.C.C. (3d) 266, 53 D.L.R. (4th) 101, 28 O.A.C. 201 (C.A.) .

24 Further, an existing aboriginal right cannot be read so as to incorporate the specific manner in which it was regulated before 1982. The notion of freezing existing rights would incorporate into the Constitution a crazy patchwork of regulations. Blair J.A. in Agawa, supra, had this to say about the matter, at p. 214:

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Some academic commentators have raised a further problem which cannot be ignored. The Ontario Fishery Regulations contain detailed rules which vary for different regions in the province. Among other things, the Regulations specify seasons and methods of fishing, species of fish which can be caught and catch limits. Similar detailed provisions apply under the comparable fisheries Regulations in force in other provinces. These detailed provisions might be constitutionalized if it were decided that the existing treaty rights referred to in s. 35(1) were those remaining after regulation at the time of the proclamation of the Constitution Act, 1982.

As noted by Blair J.A., academic commentary lends support to the conclusion that "existing" means "unextinguished" rather than exercisable at a certain time in history. Professor Slattery, "Understanding Aboriginal Rights" (1987), 66 Can. Bar Rev. 726, at pp. 781-82, has observed the following about reading regulations into the rights:

This approach reads into the Constitution the myriad of regulations affecting the exercise of aboriginal rights, regulations that differed considerably from place to place across the country. It does not permit dif- ferentiation between regulations of long-term significance and those enacted to deal with temporary conditions, or between reasonable and unreasonable restrictions. Moreover, it might require that a constitutional amendment be enacted to implement regulations more stringent than those in existence on 17 April 1982. This solution seems unsatisfactory.

See also Professor McNeil, "The Constitutional Rights of the Aboriginal People of Canada" (1982), 4 Sup. Ct. L. Rev. 25, at p. 258 (q.v.); Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982, Part II, Section 35: The Substantive Guarantee" (1987), 22 U.B.C. Law Rev. 207.

25 The arbitrariness of such an approach can be seen if one considers the recent history of the federal regulation in the context of the present case and the fishing industry. If the Constitution Act, 1982 had been enacted a few years earlier, any right held by the Musqueam band, on this approach, would have been constitutionally subjected to the restrictive regime of personal licences that had existed since 1917. Under that regime, the Musqueam catch had by 1969 become minor or non-existent. In 1978 a system of band licences was introduced on an experimental basis which permitted the Musqueam to fish with a 75 fathom net for a greater number of days than other people. Under this regime, from 1977 to 1984, the number of band members who fished for food increased from 19 persons using 15 boats, to 64 persons using 38 boats, while 10 other members of the band fished under commercial licences. Before this regime, the band's food fish requirement had basically been provided by band members who were licensed for commercial fishing. Since the regime introduced in 1978 was in force in 1982, then, under this approach, the scope and content of an aboriginal right to fish would be determined by the details of the band's 1978 licence.

26 The unsuitability of the approach can also be seen from another perspective. 91 other tribes of Indians, comprising over 20,000 people (compared with 540 Musqueam on the reserve and 100 others off the reserve), obtain their food fish from the Fraser River. Some or all of these bands may have an aboriginal right to fish there. A constitutional patchwork quilt would be created if the constitutional right of these bands were to be determined by the specific regime available to each of those bands in 1982.

27 Far from being defined according to the regulatory scheme in place in 1982, the phrase "existing aboriginal rights" must be interpreted flexibly so as to permit their evolution over time. To use Professor Slattery's expression, in "Understanding Aboriginal Rights", supra, at p. 782, the word "existing" suggests that those rights

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are "affirmed in a contemporary form rather than in their primeval simplicity and vigour". Clearly, then, an approach to the constitutional guarantee embodied in s. 35(1) which would incorporate "frozen rights" must be rejected.

The Aboriginal Right

28 We turn now to the aboriginal right at stake in this appeal. The Musqueam Indian Reserve is located on the north shore of the Fraser River close to the mouth of that river and within the limits of the city of Vancouver. There has been a Musqueam village there for hundreds of years. This appeal does not directly concern the reserve or the adjacent waters, but arises out of the band's right to fish in another area of the Fraser River estuary known as Canoe Passage in the south arm of the river, some 16 kilometres (about 10 miles) from the reserve. The reserve and those waters are separated by the Vancouver International Airport and the municipality of Rich- mond.

29 The evidence reveals that the Musqueam have lived in the area as an organized society long before the coming of European settlers, and that the taking of salmon was an integral part of their lives and remains so to this day. Much of the evidence of an aboriginal right to fish was given by Dr. Suttles, an anthropologist, supported by that of Mr. Grant, the band administrator. The Court of Appeal thus summarized Dr. Suttles' evidence, at pp. 307-308:

Dr. Suttles was qualified as having particular qualifications in respect of the ethnography of the Coast Salish Indian people of which the Musqueams were one of several tribes. He thought that the Musqueam had lived in their historic territory, which includes the Fraser River estuary, for at least 1,500 years. That historic territory extended from the north shore of Burrard Inlet to the south shore of the main channel of the Fraser River, including the waters of the three channels by which that river reaches the ocean. As part of the Salish people, the Musqueam were part of a regional social network covering a much larger area but, as a tribe, were themselves an organized social group with their own name, territory and resources. Between the tribes there was a flow of people, wealth and food. No tribe was wholly self-sufficient or occupied its territory to the complete exclusion of others.

Dr. Suttles described the special position occupied by the salmon fishery in that society. The salmon was not only an important source of food but played an important part in the system of beliefs of the Salish people, and in their ceremonies. The salmon were held to be a race of beings that had, in "myth times", established a bond with human beings requiring the salmon to come each year to give their bodies to the hu- mans who, in turn, treated them with respect shown by performance of the proper ritual. Toward the salmon, as toward other creatures, there was an attitude of caution and respect which resulted in effective conservation of the various species.

30 While the trial for a violation of a penal prohibition may not be the most appropriate setting in which to determine the existence of an aboriginal right, and the evidence was not extensive, the correctness of the finding of fact of the trial judge "that Mr. Sparrow was fishing in ancient tribal territory where his ancestors had fished from time immemorial in that part of the mouth of the Fraser River for salmon" is supported by the evidence and was not contested. The existence of the right, the Court of Appeal tells us, "was not the subject of serious dispute". It is not surprising, then, that, taken with other circumstances, that court should find that "the judgment appealed from was wrong in ... failing to hold that Sparrow at the relevant time was exercising an existing aboriginal right".

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31 In this court, however, the respondent contested the Court of Appeal's finding, contending that the evidence was insufficient to discharge the appellant's burden of proof upon the issue. It is true that for the period from 1867 to 1961 the evidence is scanty. But the evidence was not disputed or contradicted in the courts below and there is evidence of sufficient continuity of the right to support the Court of Appeal's finding, and we would not disturb it.

32 What the Crown really insisted on, both in this court and the courts below, was that the Musqueam Band's aboriginal right to fish had been extinguished by regulations under the Fisheries Act.

33 The history of the regulation of fisheries in British Columbia is set out in Jack v. R., [1980] 1 S.C.R. 294 at 308 et seq., [1979] 5 W.W.R. 364, [1979] 2 C.N.L.R. 25, 48 C.C.C. (2d) 246, 100 D.L.R. (3d) 193, 28 N.R. 162, and we need only summarize it here. Before the province's entry into Confederation in 1871, the fisheries were not regulated in any significant way, whether in respect of Indians or other people. The Indians were not only permitted but encouraged to continue fishing for their own food requirements. Commercial and sport fishing were not then of any great importance. The federal Fisheries Act was only proclaimed in force in the province in 1876 and the first Salmon Fishery Regulations for British Columbia were adopted in 1878 and were minimal.

34 The 1878 regulations were the first to mention Indians. They simply provided that the Indians were at all times at liberty, by any means other than drift nets or spearing, to fish for food for themselves, but not for sale or barter. The Indian right or liberty to fish was thereby restricted, and more stringent restrictions were added over the years. As noted in Jack v. R., supra, at p. 310:

The federal Regulations became increasingly strict in regard to the Indian fishery over time, as first the commercial fishery developed and then sport fishing became common. What we can see is an increasing subjection of the Indian fishery to regulatory control. First, the regulation of the use of drift nets, then the restriction of fishing to food purposes, then the requirement of permission from the Inspector and, ultimately, in 1917, the power to regulate even food fishing by means of conditions attached to the permit.

The 1917 regulations were intended to make still stronger the provisions against commercial fishing in the exercise of the Indian right to fish for food: see P.C. 2539 of 22nd September 1917. The Indian food fishing provisions remained essentially the same from 1917 to 1977. The regulations of 1977 retained the general principles of the previous 60 years. An Indian could fish for food under a "special licence" specifying method, locale and times of fishing. Following an experimental program to be discussed later, the 1981 regulations provided for the entirely new concept of a band food fishing licence, while retaining comprehensive specification of conditions for the exercise of licences.

35 It is this progressive restriction and detailed regulation of the fisheries which, respondent's counsel maintained, have had the effect of extinguishing any aboriginal right to fish. The extinguishment need not be express, he argued, but may take place where the sovereign authority is exercised in a manner "necessarily inconsistent" with the continued enjoyment of aboriginal rights. For this proposition, he particularly relied on St. Catherine's Milling & Lumber Co. v. R. (1888), 14 App. Cas. 46, 4 Cart. 107 (P.C.); Calder v. A.G.B.C., supra [S.C.C.]; Baker Lake v. Min. of Indian Affairs & Nor. Dev., [1980] 1 F.C. 518, [1980] 5 W.W.R. 193, 107 D.L.R. (3d) 513 , [179] 3 C.N.L.R. 17 (T.D.); and A.G. Ont. v. Bear Island Foundation, supra. The consent to its extinguishment before the Constitution Act, 1982 was not required; the intent of the sovereign could be effected not only by statute but by valid regulations. Here, in his view, the regulations had entirely displaced any aboriginal right.

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There is, he submitted, a fundamental inconsistency between the communal right to fish embodied in the aboriginal right, and fishing under a special licence or permit issued to individual Indians (as was the case until 1977) in the discretion of the minister and subject to terms and conditions which, if breached, may result in cancellation of the licence. The Fisheries Act and its regulations were, he argued, intended to constitute a complete code inconsistent with the continued existence of an aboriginal right.

36 At bottom, the respondent's argument confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished. The distinction to be drawn was carefully explained, in the context of federalism, in the first fisheries case, A.G. Can. v. A.G. Ont. (Ref. re Prov. Fisheries), [1898] A.C. 700. There, the Privy Council had to deal with the interrelationship between, on the one hand, provincial property, which by s. 109 of the Constitution Act, 1867 is vested in the provinces (and so falls to be regulated qua property exclusively by the provinces) and, on the other hand, the federal power to legislate respecting the fisheries thereon under s. 91(12) of that Act. The Privy Council said the following in relation to the federal regulation (at pp. 712-13):

... the power to legislate in relation to fisheries does necessarily to a certain extent enable the Legislature so empowered to affect proprietary rights. An enactment, for example, prescribing the times of the year during which fishing is to be allowed, or the instruments which may be employed for the purpose (which it was admitted the Dominion Legislature was empowered to pass) might very seriously touch the exercise of proprietary rights, and the extent, character, and scope of such legislation is left entirely to the Dominion Legis- lature. The suggestion that the power might be abused so as to amount to a practical confiscation of property does not warrant the imposition by the Courts of any limit upon the absolute power of legislation conferred. The supreme legislative power in relation to any subject-matter is always capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the Le- gislature is elected.

37 In the context of aboriginal rights, it could be argued that, before 1982, an aboriginal right was automatically extinguished to the extent that it was inconsistent with a statute. As Mahoney J. stated in Baker Lake, supra, at p. 568:

Once a statute has been validly enacted, it must be given effect. If its necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it. That is as true of an aboriginal title as of any other common law right.

See also A.G. Ont. v. Bear Island Foundation, supra, at pp. 439-40. That in Judson J.'s view was what had occurred in Calder, supra, where, as he saw it, a series of statutes evinced a unity of intention to exercise a sovereignty inconsistent with any conflicting interest, including aboriginal title. But Hall J. in that case stated (at p. 404) that "the onus of proving that the Sovereign intended to extinguish the Indian title lies on the respondent and that intention must be 'clear and plain' " (emphasis added). The test of extinguishment to be adopted, in our opinion, is that the sovereign's intention must be clear and plain if it is to extinguish an aboriginal right.

38 There is nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to extinguish the Indian aboriginal right to fish. The fact that express provision permitting the Indians to fish for food may have applied to all Indians and that for an extended period permits were discretionary and issued on an individual rather than a communal basis in no way shows a clear intention to extinguish. These permits were simply a manner of controlling the fisheries, not defining underlying rights.

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39 We would conclude then that the Crown has failed to discharge its burden of proving extinguishment. In our opinion, the Court of Appeal made no mistake in holding that the Indians have an existing aboriginal right to fish in the area where Mr. Sparrow was fishing at the time of the charge. This approach is consistent with ensuring that an aboriginal right should not be defined by incorporating the ways in which it has been regulated in the past.

40 The scope of the existing Musqueam right to fish must now be delineated. The anthropological evidence relied on to establish the existence of the right suggests that, for the Musqueam, the salmon fishery has always constituted an integral part of their distinctive culture. Its significant role involved not only consumption for subsistence purposes, but also consumption of salmon on ceremonial and social occasions. The Musqueam have always fished for reasons connected to their cultural and physical survival. As we stated earlier, the right to do so may be exercised in a contemporary manner.

41 The British Columbia Court of Appeal in this case held that the aboriginal right was to fish for food purposes, but that purpose was not to be confined to mere subsistence. Rather, the right was found to extend to fish consumed for social and ceremonial activities. The Court of Appeal thereby defined the right as protecting the same interest as is reflected in the government's food fish policy. In limiting the right to food purposes, the Court of Appeal referred to the line of cases involving the interpretation of the natural resources agreements and the food purpose limitation placed on the protection of fishing and hunting rights by the Constitution Act, 1930 (see R. v. Wesley, [1932] 2 W.W.R. 337, 26 Alta. L.R. 433, 58 C.C.C. 269, [1932] 4 D.L.R. 774 (C.A.); Prince v. R., [1964] S.C.R. 81, 46 W.W.R. 121, 41 C.R. 403, [1964] 3 C.C.C. 1 [Man.]; R. v. Sutherland, [1980] 2 S.C.R. 451, [1980] 5 W.W.R. 456, 53 C.C.C. (2d) 289, 113 D.L.R. (3d) 374, [1980] 3 C.N.L.R. 71, 7 Man. R. (2d) 359, 35 N.R. 361).

42 The Court of Appeal's position was attacked from both sides. The respondent for its part argued that, if an aboriginal right to fish does exist, it does not include the right to take fish for the ceremonial and social activities of the band. The appellant, on the other hand, attacked the Court of Appeal's restriction of the right to fish for food. He argued that the principle that the holders of aboriginal rights may exercise those rights according to their own discretion has been recognized by this court in the context of the protection of treaty hunting rights (R. v. Simon, [1985] 2 S.C.R. 387, [1986] 1 C.N.L.R. 153, 23 C.C.C. (3d) 238, 24 D.L.R. (4th) 390, 71 N.S.R. (2d) 15, 171 A.P.R. 15, 62 N.R. 366) and that it should be applied in this case such that the right is defined as a right to fish for any purpose and by any non-dangerous method.

43 In relation to this submission, it was contended before this court that the aboriginal right extends to commercial fishing. While no commercial fishery existed prior to the arrival of European settlers, it is contended that the Musqueam practice of bartering in early society may be revived as a modern right to fish for commercial purposes. The presence of numerous interveners representing commercial fishing interests, and the suggestion on the facts that the net length restriction is at least in part related to the probable commercial use of fish caught under the Musqueam food fishing licence, indicate the possibility of conflict between aboriginal fishing and the competitive commercial fishery with respect to economically valuable fish such as salmon. We recognize the existence of this conflict and the probability of its intensification as fish availability drops, demand rises and tensions increase.

44 Government regulations governing the exercise of the Musqueam right to fish, as described above, have only recognized the right to fish for food for over a hundred years. This may have reflected the existing position. However, historical policy on the part of the Crown is not only incapable of extinguishing the existing aborigin-

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al right without clear intention, but is also incapable of, in itself, delineating that right. The nature of government regulations cannot be determinative of the content and scope of an existing aboriginal right. Government policy can, however, regulate the exercise of that right, but such regulation must be in keeping with s. 35(1).

45 In the courts below, the case at bar was not presented on the footing of an aboriginal right to fish for commercial or livelihood purposes. Rather, the focus was and continues to be on the validity of a net length restriction affecting the appellant's food fishing licence. We therefore adopt the Court of Appeal's characterization of the right for the purpose of this appeal, and confine our reasons to the meaning of the constitutional recognition and affirmation of the existing aboriginal right to fish for food and social and ceremonial purposes.

"Recognized and Affirmed"

46 We now turn to the impact of s. 35(1) of the Constitution Act, 1982 on the regulatory power of Parlia- ment and on the outcome of this appeal specifically.

47 Counsel for the appellant argued that the effect of s. 35(1) is to deny Parliament's power to restrictively regulate aboriginal fishing rights under s. 91(24) ("Indians and Lands Reserved for the Indians"), and s. 91(12) ("Sea Coast and Inland Fisheries"). The essence of this submission, supported by the intervener, the National In- dian Brotherhood Assembly of First Nations, is that the right to regulate is part of the right to use the resource in the band's discretion. Section 35(1) is not subject to s. 1 of the Charter, nor to legislative override under s. 33. The appellant submitted that, if the regulatory power continued, the limits on its extent are set by the word "inconsistent" in s. 52(1) of the Constitution Act, 1982 and the protective and remedial purposes of s. 35(1). This means that aboriginal title entails a right to fish by any non-dangerous method chosen by the aboriginals engaged in fishing. Any continuing governmental power of regulation would have to be exceptional and strictly limited to regulation that is clearly not inconsistent with the protective and remedial purposes of s. 35(1). Thus, counsel for the appellant speculated, "in certain circumstances, necessary and reasonable conservation measures might qualify" (emphasis added) — where for example such measures were necessary to prevent serious impairment of the aboriginal rights of present and future generations, where conservation could only be achieved by restricting the right and not by restricting fishing by other users, and where the aboriginal group concerned was unwilling to implement necessary conservation measures. The onus of proving a justification for restrictive regulations would lie with the government by analogy with s. 1 of the Charter.

48 In response to these submissions and in finding the appropriate interpretive framework for s. 35(1), we start by looking at the background of s. 35(1).

49 It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown: see Johnson v. McIntosh (1823), 21 U.S. (8 Wheat.) 543 (S.C.); see also the Royal Proclamation itself (R.S.C. 1985, App. II, No. 1, pp. 4-6); Calder, supra, per Judson J. at p. 328, Hall J. at pp. 383, 402. And there can be no doubt that over the years the rights of the Indians were often honoured in the breach (for one instance in a recent case in this court, see C.P. Ltd. v. Paul, [1988] 2 S.C.R. 654, [1989] 1 C.N.L.R. 47, 1 R.P.R. (2d) 105, 53 D.L.R. (4th) 487, 91 N.B.R. (2d) 43, 232 A.P.R. 43, 89 N.R. 325. As Mac- Donald J. stated in Pasco v. C.N.R., 69 B.C.L.R. 76, [1986] 1 C.N.L.R. 35 at 37 (S.C.): "We cannot recount with much pride the treatment accorded to the native people of this country."

50 For many years, the rights of the Indians to their aboriginal lands — certainly as legal rights — were vir-

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tually ignored. The leading cases de fining Indian rights in the early part of the century were directed at claims supported by the Royal Proclamation or other legal instruments, and even these cases were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises. For 50 years after the publication of Clement's The Law of the Canadian Constitution, 3rd ed. (1916), there was a virtual absence of discussion of any kind of Indian rights to land even in academic literature. By the late 1960s, aboriginal claims were not even recognized by the federal government as having any legal status. Thus, the Statement of the Government of Canada on Indian Policy, 1969, although well meaning, contained the assertion (at p. 11) that "aboriginal claims to land ... are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to the Indians as members of the Canadian community". In the same general period, the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians who lived there, even though these were expressly protected by a constitutional instrument: see the Quebec Boundary Extension Act, S.C. 1912, c. 45. It took a number of judicial decisions and notably the Calder case in this court (1973) to prompt a reassessment of the position being taken by government.

51 In the light of its reassessment of Indian claims following Calder, the federal government on 8th August 1973 issued "a statement of policy" regarding Indian lands. By it, it sought to "signify the Government's recognition and acceptance of its continuing responsibility under the British North America Act for Indians and lands reserved for Indians", which it regarded "as an historic evolution dating back to the Royal Proclamation of 1763, which, whatever differences there may be about its judicial interpretation, stands as a basic declaration of the In- dian people's interests in land in this country" (emphasis added). See Statement made by the Honourable Jean Chreacutetien, Minister of Indian Affairs and Northern Development, on Claims of Indian and Inuit People, 8th August 1973. The remarks about these lands were intended "as an expression of acknowledged responsibility". But the statement went on to express, for the first time, the government's willingness to negotiate regarding claims of aboriginal title, specifically in British Columbia, Northern Quebec, and the Territories, and this without regard to formal supporting documents. "The Government", it stated, "is now ready to negotiate with authorized representatives of these native peoples on the basis that where their traditional interest in the lands concerned can be established, an agreed form of compensation or benefit will be provided to native peoples in return for their interest."

52 It is obvious from its terms that the approach taken towards aboriginal claims in the 1973 statement constituted an expression of a policy, rather than a legal position; see also Canada, Department of Indian Affairs and Northern Development, In All Fairness: A Native Claims Policy — Comprehensive Claims (1981), pp. 11-12; Slattery, "Understanding Aboriginal Rights", op. cit., at p. 730. As recently as Guerin v. R., [1984] 2 S.C.R. 335, 59 B.C.L.R. 301, [1984] 6 W.W.R. 481, 36 R.P.R. 1, 20 E.T.R. 6, [1985] 1 C.N.L.R. 20, 13 D.L.R. (4th) 321, 55 N.R. 161, the federal government argued in this court that any federal obligation was of a political character.

53 It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. The strong representations of native associations and other groups concerned with the welfare of Canada's aboriginal peoples made the adoption of s. 35(1) possible and it is important to note that the provision applies to the Indi- ans, the Inuit and the Meacutetis. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. It also affords aboriginal peoples constitutional protection against provincial legislative power. We are, of course, aware that this would, in any event, flow from the Guerin case, supra, but for a proper understanding of the situation, it is essential to remember that the Guerin case was decided after the commencement of the Constitution Act, 1982. In addition to its effect on aboriginal rights, s. 35(1) clarified oth-

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er issues regarding the enforcement of treaty rights (see Sanders, "Pre-existing Rights: The Aboriginal Peoples of Canada", in Beaudoin and Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2nd ed., esp. at p. 730).

54 In our opinion, the significance of s. 35(1) extends beyond these fundamental effects. Professor Lyon in "An Essay on Constitutional Interpretation" (1988), 26 Osgoode Hall L.J. 95 at 100, says the following about s. 35(1):

... the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. It re- nounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown.

55 The approach to be taken with respect to interpreting the meaning of s. 35(1) is derived from general principles of constitutional interpretation, principles relating to aboriginal rights, and the purposes behind the constitutional provision itself. Here, we will sketch the framework for an interpretation of "recognized and affirmed" that, in our opinion, gives appropriate weight to the constitutional nature of these words.

56 In Ref. re Man. Language Rights, [1985] 1 S.C.R. 721 at 745, (sub nom. Ref. re Language Rights under s. 23 of Man. Act, 1870) [1985] 4 W.W.R. 385, 19 D.L.R. (4th) 1, 35 Man. R. (2d) 83, 59 N.R. 321, this court said the following about the perspective to be adopted when interpreting a constitution:

The Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government. It is, as s. 52 of the Constitutional Act, 1982 declares, the "supreme law" of the nation, unalter- able by the normal legislative process, and unsuffering of laws inconsistent with it. The duty of the judiciary is to interpret and apply the laws of Canada and each of the provinces, and it is thus our duty to ensure that the constitutional law prevails.

The nature of s. 35(1) itself suggests that it be construed in a purposive way. When the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal interpretation of the words in the constitutional provision is demanded. When the Court of Appeal below was confronted with the submission that s. 35 has no effect on aboriginal or treaty rights and that it is merely a preamble to the parts of the Constitution Act, 1982 which deal with aboriginal rights, it said the following, at p. 322:

This submission gives no meaning to s. 35. If accepted, it would result in denying its clear statement that existing rights are hereby recognized and affirmed, and would turn that into a mere promise to recognize and affirm those rights sometime in the future ... To so construe s. 35(1) would be to ignore its language and the principle that the Constitution should be interpreted in a liberal and remedial way. We cannot accept that that principle applies less strongly to aboriginal rights than to the rights guaranteed by the Charter, particularly having regard to the history and to the approach to interpreting treaties and statutes relating to Indians required by such cases as Nowegijick v. R., [1983] 1 S.C.R. 29 ...

57 In Nowegijick v. R., [1983] 1 S.C.R. 29 at 36, [1983] C.T.C. 20, 83 D.T.C. 5041, [1983] 2 C.N.L.R. 89, 144 D.L.R. (3d) 193, 46 N.R. 41 [Fed.], the following principle that should govern the interpretation of Indian treaties and statutes was set out:

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... treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.

58 In R. v. Agawa, supra, Blair J.A. stated that the above principle should apply to the interpretation of s. 35(1). He added the following principle to be equally applied, at pp. 215-16:

The second principle was enunciated by the late Associate Chief Justice MacKinnon in R. v. Taylor and Williams (1981), 34 O.R. (2d) 360. He emphasized the importance of Indian history and traditions as well as the perceived effect of a treaty at the time of its execution. He also cautioned against determining Indian right "in a vacuum". The honour of the Crown is involved in the interpretation of Indian treaties and, as a consequence, fairness to the Indians is a governing consideration. He said at p. 367:

The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart from the other considerations already noted the honour of the Crown is always involved and no appearance of 'sharp dealing' should be sanctioned.

This view is reflected in recent judicial decisions which have emphasized the responsibility of Government to protect the rights of Indians arising from the special trust relationship created by history, treaties and legislation: see Guerin v. the Queen, [1984] 2 S.C.R. 335, 55 N.R. 161, 13 D.L.R. (4th) 321.

59 In Guerin, supra, the Musqueam Band surrendered reserve lands to the Crown for lease to a golf club. The terms obtained by the Crown were much less favourable than those approved by the band at the surrender meeting. This court found that the Crown owed a fiduciary obligation to the Indians with respect to the lands. The sui generis nature of Indian title and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation. In our opinion, Guerin, together with R. v. Taylor, 34 O.R. (2d) 360, [1981] 3 C.N.L.R. 114, 62 C.C.C. (2d) 227 (C.A.), ground a general guiding principle for s. 35(1). That is, the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.

60 We agree with both the British Columbia Court of Appeal below and the Ontario Court of Appeal that the principles outlined above, derived from Nowegijick, Taylor and Guerin, should guide the interpretation of s. 35(1). As commentators have noted, s. 35(1) is a solemn commitment that must be given meaningful content (Lyon, op. cit.; Pentney, op. cit.; Schwartz, "Unstarted Business: Two Approaches to Defining s. 35 — 'What's in the Box?' and 'What Kind of Box?' ", c. XXIV, in First Principles, Second Thoughts (Montreal: Institute for Research on Public Policy, 1986); Slattery, op. cit.; and Slattery, "The Hidden Constitution: Aboriginal Rights in Canada" (1984), 32 Am. J. of Comp. Law 361).

61 In response to the appellant's submission that s. 35(1) rights are more securely protected than the rights guaranteed by the Charter, it is true that s. 35(1) is not subject to s. 1 of the Charter. In our opinion, this does not mean that any law or regulation affecting aboriginal rights will automatically be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects the exercise of aboriginal rights will nonetheless be valid, if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1).

62 There is no explicit language in the provision that authorizes this court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet we find that the words "recognition and af-

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firmation" incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle enunciated in Nowegijick, supra, and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada as suggested by Guerin, supra.

63 We refer to Professor Slattery's "Understanding Aboriginal Rights", op. cit., with respect to the task of envisioning a s. 35(1) justificatory process. Professor Slattery, at p. 782, points out that a justificatory process is required as a compromise between a "patchwork" characterization of aboriginal rights whereby past regulations would be read into a definition of the rights, and a characterization that would guarantee aboriginal rights in their original form unrestricted by subsequent regulation. We agree with him that these two extreme positions must be rejected in favour of a justificatory scheme.

64 Section 35(1) suggests that while regulation affecting aboriginal rights is not precluded, such regulation must be enacted according to a valid objective. Our history has shown, unfortunately all too well, that Canada's aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification. The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation.

65 The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on legislative power. While it does not promise immunity from government regulation in a society that, in the 20th century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1).

66 In these reasons, we will outline the appropriate analysis under s. 35(1) in the context of a regulation made pursuant to the Fisheries Act. We wish to emphasize the importance of context and a case-by-case approach to s. 35(1). Given the generality of the text of the constitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case.

Section 35(1) and the Regulation of the Fisheries

67 Taking the above framework as guidance, we propose to set out the test for prima facie interference with an existing aboriginal right and for the justification of such an interference. With respect to the question of the regulation of the fisheries, the existence of s. 35(1) of the Constitution Act, 1982, renders the authority of R. v.

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Derriksan, supra, inapplicable. In that case, Laskin C.J.C., for this court, found that there was nothing to prevent the Fisheries Act and the regulations from subjecting the alleged aboriginal right to fish in a particular area to the controls thereby imposed. As the Court of Appeal in the case at bar noted, the Derriksan line of cases established that, before 17th April 1982, the aboriginal right to fish was subject to regulation by legislation and subject to extinguish ment. The new constitutional status of that right enshrined in s. 35(1) suggests that a different approach must be taken in deciding whether regulation of the fisheries might be out of keeping with constitutional protection.

68 The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1). Par- liament is not expected to act in a manner contrary to the rights and interests of aboriginals, and, indeed, may be barred from doing so by the second stage of s. 35(1) analysis. The inquiry with respect to interference begins with a reference to the characteristics or incidents of the right at stake. Our earlier observations regarding the scope of the aboriginal right to fish are relevant here. Fishing rights are not traditional property rights. They are rights held by a collective and are in keeping with the culture and existence of that group. Courts must be careful, then, to avoid the application of traditional common law concepts of property as they develop their understanding of what the reasons for judgment in Guerin, supra, at p. 382, referred to as the "sui generis" nature of aboriginal rights. (See also Little Bear, "A Concept of Native Title", [1982] 5 Can. Legal Aid Bul. 99.)

69 While it is impossible to give an easy definition of fishing rights, it is possible, and, indeed, crucial, to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake. For example, it would be arti- ficial to try to create a hard distinction between the right to fish and the particular manner in which that right is exercised.

70 To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation. In relation to the facts of this appeal, the regulation would be found to be a prima facie interference if it were found to be an adverse restriction on the Musqueam exercise of their right to fish for food. We wish to note here that the issue does not merely require looking at whether the fish catch has been reduced below that needed for the reasonable food and ceremonial needs of the Musqueam Indians. Rather the test involves asking whether either the purpose or the effect of the restriction on net length unnecessarily infringes the interests protected by the fishing right. If, for example, the Musqueam were forced to spend undue time and money per fish caught or if the net length reduction resulted in a hardship to the Musqueam in catching fish, then the first branch of the s. 35(1) analysis would be met.

71 If a prima facie interference is found, the analysis moves to the issue of justification. This is the test that addresses the question of what constitutes legitimate regulation of a constitutional aboriginal right. The justification analysis would proceed as follows. First, is there a valid legislative objective? Here the court would inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also be scrutinized. An objective aimed at preserving s. 35(1) rights by conserving and managing a natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial.

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72 The Court of Appeal below held, at p. 331, that regulations could be valid if reasonably justified as "necessary for the proper management and conservation of the resource or in the public interest" (emphasis added). We find the "public interest" justification to be so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.

73 The justification of conservation and resource management, on the other hand, is surely uncontroversial. In Kruger v. R., [1978] 1 S.C.R. 104, [1977] 4 W.W.R. 300, 34 C.C.C. (2d) 377, 75 D.L.R. (3d) 434, 14 N.R. 495 [B.C.], the applicability of the B.C. Wildlife Act, S.B.C. 1966, c. 55, to the appellant members of the Penticton Indian band was considered by this court. In discussing that Act, the following was said about the objective of conservation (at p. 112):

Game conservation laws have as their policy the maintenance of wildlife resources. It might be argued that without some conservation measures the ability of Indians or others to hunt for food would become a moot issue in consequence of the destruction of the resource. The presumption is for the validity of a legislative enactment and in this case the presumption has to mean that in the absence of evidence to the contrary the measures taken by the British Columbia Legislature were taken to maintain an effective resource in the Province for its citizens and not to oppose the interests of conservationists and Indians in such a way as to favour the claims of the former ...

74 While the "presumption" of validity is now outdated in view of the constitutional status of the aboriginal rights at stake, it is clear that the value of conservation purposes for government legislation and action has long been recognized. Further, the conservation and management of our resources is consistent with aboriginal beliefs and practices, and, indeed, with the enhancement of aboriginal rights.

75 If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. Here, we refer back to the guiding interpretive principle derived from Taylor and Guerin, supra. That is, the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified.

76 The problem that arises in assessing the legislation in light of its objective and the responsibility of the Crown is that the pursuit of conservation in a heavily used modern fishery inevitably blurs with the efficient allocation and management of this scarce and valued resource. The nature of the constitutional protection afforded by s. 35(1) in this context demands that there be a link between the question of justification and the allocation of priorities in the fishery. The constitutional recognition and affirmation of aboriginal rights may give rise to conflict with the interests of others, given the limited nature of the resource. There is a clear need for guidelines that will resolve the allocational problems that arise regarding the fisheries. We refer to the reasons of Dickson J. in Jack v. R., supra, for such guidelines.

77 In Jack, the appellants' defence to a charge of fishing for salmon in certain rivers during a prohibited period was based on the alleged constitutional incapacity of Parliament to legislate such as to deny the Indians their right to fish for food. They argued that art. 13 of the British Columbia Terms of Union imposed a constitutional limitation on the federal power to regulate. While we recognize that the finding that such a limitation had been imposed was not adopted by the majority of this court, we point out that this case concerns a different constitutional promise that asks this court to give a meaningful interpretation to recognition and affirmation. That task requires equally meaningful guidelines responsive to the constitutional priority accorded aboriginal rights.

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We therefore repeat the following passage from Jack, at p. 313:

Conservation is a valid legislative concern. The appellants concede as much. Their concern is in the allocation of the resource after reasonable and necessary conservation measures have been recognized and given effect to. They do not claim the right to pursue the last living salmon until it is caught. Their position, as I understand it, is one which would give effect to an order of priorities of this nature: (i) conservation; (ii) In- dian fishing; (ii) non-Indian commercial fishing; or (iv) non-Indian sports fishing; the burden of conservation measures should not fall primarily upon the Indian fishery.

I agree with the general tenor of this argument ... With respect to whatever salmon are to be caught, then priority ought to be given to the Indian fishermen, subject to the practical difficulties occasioned by international waters and the movement of the fish themselves. But any limitation upon Indian fishing that is established for a valid conservation purpose overrides the protection afforded the Indian fishery by art. 13, just as such conservation measures override other taking of fish.

78 The constitutional nature of the Musqueam food fishing rights means that any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing. If the objective pertained to conservation, the conservation plan would be scrutinized to assess priorities. While the detailed allocation of maritime resources is a task that must be left to those having expertise in the area, the Indi- ans' food requirements must be met first when that allocation is established. The significance of giving the aboriginal right to fish for food top priority can be described as follows. If, in a given year, conservation needs required a reduction in the number of fish to be caught such that the number equalled the number required for food by the Indians, then all the fish available after conservation would go to the Indians according to the constitutional nature of their fishing right. If, more realistically, there were still fish after the Indian food requirements were met, then the brunt of conservation measures would be borne by the practices of sport fishing and commercial fishing.

79 The decision of the Nova Scotia Court of Appeal in R. v. Denny, 5th March 1990 (not yet reported), addresses the constitutionality of the Nova Scotia Micmac Indians' right to fish in the waters of Indian Brook and the Afton River, and does so in a way that accords with our understanding of the constitutional nature of aboriginal rights and the link between allocation and justification required for government regulation of the exercise of the rights. Clarke C.J.N.S., for a unanimous court, found that the Nova Scotia Fishery Regulations enacted pursuant to the federal Fisheries Act were in part inconsistent with the constitutional rights of the appellant Micmac Indians. Section 35(1) of the Constitution Act, 1982, provided the appellants with the right to a top priority allocation of any surplus of the fisheries resource which might exist after the needs of conservation had been taken into account. With respect to the issue of the Indians' priority to a food fishery, Clarke C.J.N.S. noted that the official policy of the federal government recognizes that priority. He added the following, at pp. 22-23:

I have no hesitation in concluding that factual as well as legislative and policy recognition must be given to the existence of an Indian food fishery in the waters of Indian Brook, adjacent to the Eskasoni Reserve, and the waters of the Afton River after the needs of conservation have been taken into account ...

To afford user groups such as sports fishermen (anglers) a priority to fish over the legitimate food needs of the appellants and their families is simply not appropriate action on the part of the Federal government. It is inconsistent with the fact that the appellants have for many years, and continue to possess an aboriginal right to fish for food. The appellants have, to employ the words of their counsel, a "right to share in the

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available resource". This constitutional entitlement is second only to conservation measures that may be undertaken by federal legislation.

Further, Clarke C.J.N.S. found that s. 35(1) provided the constitutional recognition of the aboriginal priority with respect to the fishery, and that the regulations, in failing to guarantee that priority, were in violation of the constitutional provision. He said the following, at p. 25:

Though it is crucial to appreciate that the rights afforded to the appellants by s. 35(1) are not absolute, the impugned regulatory scheme fails to recognize that this section provides the appellants with a priority of allocation and access to any surplus of the fisheries resource once the needs of conservation have been taken into account. Section 35(1), as applied to these appeals, provides the appellants with an entitlement to fish in the waters in issue to satisfy their food needs, where a surplus exists. To the extent that the regulatory scheme fails to recognize this, it is inconsistent with the Constitution. Section 52 mandates a finding that such regulations are of no force and effect.

80 In light of this approach, the argument that the cases of R. v. Hare, supra, and R. v. Eninew; R. v. Bear, 12 C.C.C. (3d) 365, [1984] 2 C.N.L.R. 126, 11 C.R.R. 189, 10 D.L.R. (4th) 137, 32 Sask. R. 237 (C.A.), stand for the proposition that s. 35(1) provides no basis for restricting the power to regulate must be rejected, as was done by the Court of Appeal below. In Hare, which addressed the issue of whether the Ontario Fishery Regula- tions, C.R.C. 1978, c. 849, applied to members of an Indian band entitled to the benefit of the Manitoulin Island Treaty which granted certain rights with respect to taking fish, Thorson J.A. emphasized the need for priority to be given to measures directed to the management and conservation of fish stocks with the following observation (at p. 17):

Since 1867 and subject to the limitations thereon imposed by the Constitution, which of course now includes s. 35 of the Constitution Act, 1982, the constitutional authority and responsibility to make laws in relation to the fisheries has rested with Parliament. Central to Parliament's responsibility has been, and continues to be, the need to provide for the proper management and conservation of our fish stocks, and the need to ensure that they are not depleted or imperilled by deleterious practices or methods of fishing.

The prohibitions found in ss. 12 and 20 of the Ontario regulations clearly serve this purpose. Accordingly it need not be ignored by our courts that while these prohibitions place limits on the rights of all persons, they are there to serve the larger interest which all persons share in the proper management and conservation of these important resources.

In Eninew, Hall J.A. found, at p. 368, that "the treaty rights can be limited by such regulations as are reasonable". As we have pointed out, management and conservation of resources is indeed an important and valid legislative objective. Yet, the fact that the objective is of a "reasonable" nature cannot suffice as constitutional recognition and affirmation of aboriginal rights. Rather, the regulations enforced pursuant to a conservation or management objective may be scrutinized according to the justificatory standard outlined above.

81 We acknowledge the fact that the justificatory standard to be met may place a heavy burden on the Crown. However, government policy with respect to the British Columbia fishery, regardless of s. 35(1), already dictates that, in allocating the right to take fish, Indian food fishing is to be given priority over the interests of other user groups. The constitutional entitlement embodied in s. 35(1) requires the Crown to ensure that its regulations are in keeping with that allocation of priority. The objective of this requirement is not to undermine Par- liament's ability and responsibility with respect to creating and administering overall conservation and manage-

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ment plans regarding the salmon fishery. The objective is rather to guarantee that those plans treat aboriginal peoples in a way ensuring that their rights are taken seriously.

82 Within the analysis of justification, there are further questions to be addressed, depending on the circumstances of the inquiry. These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented. The aboriginal peoples, with their history of conservation-consciousness and interdependence with natural resources, would surely be expected, at the least, to be informed regarding the determination of an appropriate scheme for the regulation of the fisheries.

83 We would not wish to set out an exhaustive list of the factors to be considered in the assessment of justification. Suffice it to say that recognition and affirmation requires sensitivity to and respect for the rights of aboriginal peoples on behalf of the government, courts and, indeed, all Canadians.

Application To This Case — Is The Net Length Restriction Valid?

84 The Court of Appeal below found that there was not sufficient evidence in this case to proceed with an analysis of s. 35(1) with respect to the right to fish for food. In reviewing the competing expert evidence, and recognizing that fish stock management is an uncertain science, it decided that the issues at stake in this appeal were not well adapted to being resolved at the appellate court level.

85 Before the trial, defence counsel advised the Crown of the intended aboriginal rights defence and that the defence would take the position that the Crown was required to prove, as part of its case, that the net length restriction was justifiable as a necessary and reasonable conservation measure. The trial judge found s. 35(1) to be inapplicable to the appellant's defence, based on his finding that no aboriginal right had been established. He therefore found it inappropriate to make findings of fact with respect to either an infringement of the aboriginal right to fish or the justification of such an infringement. He did, however, find that the evidence called by the appellant:

Casts some doubt as to whether the restriction was necessary as a conservation measure. More particularly, it suggests that there were more appropriate measures that could have been taken if necessary; measures that would not impose such a hardship on the Indians fishing for food. That case was not fully met by the Crown.

86 According to the Court of Appeal, the findings of fact were insufficient to lead to an acquittal. There was no more evidence before this court. We also would order a re-trial which would allow findings of fact according to the tests set out in these reasons.

87 The appellant would bear the burden of showing that the net length restriction constituted a prima facie infringement of the collective aboriginal right to fish for food. If an infringement were found, the onus would shift to the Crown which would have to demonstrate that the regulation is justifiable. To that end, the Crown would have to show that there is no underlying unconstitutional objective such as shifting more of the resource to a user group that ranks below the Musqueam. Further, it would have to show that the regulation sought to be imposed is required to accomplish the needed limitation. In trying to show that the restriction is necessary in the circumstances of the Fraser River fishery, the Crown could use facts pertaining to fishing by other Fraser River Indians.

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88 In conclusion, we would dismiss the appeal and the cross-appeal and affirm the Court of Appeal's setting aside of the conviction. We would accordingly affirm the order for a new trial on the questions of infringement and whether any infringement is nonetheless consistent with s. 35(1), in accordance with the interpretation set out here.

89 For the reasons given above, the constitutional question must be answered as follows:

90 Question: Is the net length restriction contained in the Musqueam Indian Band Indian Food Fishing Li- cence dated 30th March 1984, issued pursuant to the British Columbia Fishery (General) Regulations and the Fisheries Act, R.S.C. 1970, c. F-14, inconsistent with s. 35(1) of the Constitution Act, 1982?

91 Answer: This question will have to be sent back to trial to be answered according to the analysis set out in these reasons.

Appeal and cross-appeal dismissed; new trial ordered.

FN* McIntyre J. took no part in the judgment.

END OF DOCUMENT

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2011 CarswellBC 1238, 2011 BCCA 247, [2011] B.C.W.L.D. 5189, [2011] B.C.W.L.D. 5362, [2011] B.C.W.L.D. 5356, [2011] B.C.W.L.D. 5352, 18 B.C.L.R. (5th) 234, [2011] 9 W.W.R. 34, 333 D.L.R. (4th) 31, [2011] 3 C.N.L.R. 343, 306 B.C.A.C. 212, 316 W.A.C. 212, 26 Admin. L.R. (5th) 283, 202 A.C.W.S. (3d) 214

West Moberly First Nations v. British Columbia (Chief Inspector of Mines)

Chief Roland Willson on his own behalf and on behalf of the members of the West Moberly First Nations and the West Moberly First Nations (Respondents / Petitioners) and Her Majesty the Queen in Right of The Province of British Columbia as represented by Al Hoffman, Chief Inspector of Mines, Victor Koyanagi, Inspector of Mines, and Dale Morgan, District Manager, Peace Forest District (Appellants / Respondents) and First Coal Corporation (Respondent / Respondent) and Treaty 8 First Nations of Alberta, Grand Council of Treaty #3, and Attorney General of Alberta (Intervenors)

British Columbia Court of Appeal

Finch C.J.B.C., Garson, Hinkson JJ.A.

Heard: January 4-6, 2011 Judgment: May 25, 2011 Docket: Vancouver CA038048

Proceedings: reversing in part West Moberly First Nations v. British Columbia (Chief Inspector of Mines) (2010), 6 B.C.L.R. (5th) 94, [2010] 2 C.N.L.R. 354, [2010] 11 W.W.R. 752, 2010 BCSC 359, 2010 CarswellBC 651 (B.C. S.C.)

Counsel: K.J. Phillips, E.K. Christie for Appellant, Province of British Columbia

K.E. Clark, R. Robertson for Respondent, First Coal Corporation

C.G. Devlin, T.H. Thielmann for Respondent, West Moberly First Nations

R.M. Kyle for Intervenor, Treaty 8 First Nations of Alberta

K.M. Brooks for Intervenor, Grand Council of Treaty #3

Attorney General of Alberta, Intervenor — Written Submissions Only

Subject: Public; Constitutional; Civil Practice and Procedure

Aboriginal law --- Aboriginal rights to natural resources — Aboriginal rights — Hunting

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Applicants were First Nations who were beneficiaries of treaty 8, which provided them with right to hunt — Two amendments were issued to existing permit, allowing coal company to obtain bulk coal sample from lands, and approving advanced exploration program on same lands — Licence to cut was also issued — Applicants successfully applied for judicial review of all three decisions, and Crown was declared to be in breach of its duties to consult and accommodate — Province appealed — Appeal allowed in part — Judge did not err in considering specific location and species of applicants' hunting practices — Question to be answered was whether proposed activity would adversely affect existing hunting rights — It was clear that applicants had historically hunted caribou in area affected by bulk sampling and advanced exploration programs — Bulk sampling and advanced exploration programs would have had adverse impact on caribou in area and, consequently, on applicants' ability to hunt.

Aboriginal law --- Constitutional issues — Fiduciary duty of Crown

Applicants were First Nations who were beneficiaries of treaty 8, which provided them with right to hunt — Two amendments were issued to existing permit, as was license to cut — Applicants successfully applied for judicial review of all three decisions, and Crown was declared to be in breach of its duties to consult and accommodate — Province appealed — Appeal allowed in part — Judge did not err in holding that Crown failed to act honourably by delegating duty to consult and accommodate to ministry officials — In exercising its powers, ministry was bound by treaty and its true interpretation — Judge also did not attempt to redress past wrongs, nor did he err in considering future events — Historical context was essential to understanding seriousness of potential impacts on applicants' right to hunt, and whole thrust of applicants' position was forward looking — Judge was also correct to consider that consultation was not reasonable, but accommodation directed in paragraph 3 of order was set aside — There was no reasoned basis for rejecting applicants' position — Consultation process was entered into without understanding of what treaty meant.

Administrative law --- Prerogative remedies — Certiorari — Discretion of court to refuse certiorari — Miscel- laneous

Applicants were First Nations who were beneficiaries of treaty 8, which provided them with right to hunt — Two amendments were issued to existing permit, allowing coal company to obtain bulk coal sample from lands, and approving advanced exploration program on same lands — Licence to cut was also issued — Applicants successfully applied for judicial review of all three decisions, and Crown was declared to be in breach of its duties to consult and accommodate — Province appealed — Appeal allowed in part — There was no merit in argument that judicial review was inappropriate procedure for resolving issues — There was no question in this case about whether applicants' rights were proven, as treaty declared right to hunt — While there remained issues as to scope of right, that could have been largely decided by interpreting treaty, in its historical context, as matter of law.

The applicants were First Nations who were the beneficiaries of treaty 8, which provided them with the right to hunt. Two amendments were issued to the existing permit, which allowed a coal company to obtain bulk coal sample from the lands, and approved an advanced exploration program. In addition to the two amendments, a licence to cut was also issued.

The applicants successfully applied for judicial review of all three decisions. The Crown was declared to be in breach of its duties to consult and to accommodate. The province appealed.

Held: The appeal was allowed in part.

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Per Finch C.J.B.C.: The judge did not err in considering the specific location and species of the applicants' hunting practices. It was clear that the applicants had historically hunted caribou in the area affected by the bulk sampling and advanced exploration programs. The bulk sampling and advanced exploration programs would have had an adverse impact on the caribou in the area and, consequently, on the applicants' ability to hunt.

The judge did not err in holding that the Crown failed to act honourably by delegating the duty to consult and accommodate to the ministry officials. In exercising its powers, the ministry was bound by the treaty and its true interpretation.

The judge did not attempt to redress past wrongs, nor did he err in considering future events. The historical context was essential to understanding the seriousness of the potential impacts on the applicants' right to hunt, and the whole thrust of the applicants' position was forward looking.

The judge was also correct to consider that the consultation was not reasonable, but the accommodation directed in paragraph 3 of the order was set aside. There was no reasoned basis for rejecting the applicants' position. The consultation process was entered into without an understanding of what the treaty meant.

There was no merit in the argument that judicial review was an inappropriate procedure for resolving the issues. There was no question about whether the applicants' rights were proven, as the treaty declared the right to hunt.

Per Hinkson J.A. (concurring): The duty to accommodate should have only been concerned with addressing the potential adverse effects of the proposed Crown conduct, and not with remedying the harm caused by past events. The duty to accommodate did not oblige the Crown to accommodate the effects of prior impacts upon the treaty rights of the applicants. The emphasis placed by the judge upon the need for the rehabilitation of the caribou could not be considered as an accommodation that arose from the project proposed by the coal company. The judge erred in law by conflating his consideration of the Crown's duty to consult, with what he considered to be a reasonable accommodation of the applicants' rights.

Per Garson J.A. (dissenting): The judge erred when he characterized the treaty protected right as the right to hunt caribou. The treaty right in question was not a specific right to hunt the caribou herd, but rather, it afforded protection to the activity of hunting. The narrow characterization of the right led the judge to incorrectly find that the impact of the immediate permit approvals was significant and required more in the way of accommodation.

The judge erred in construing the Crown's duty to consult and accommodate so broadly. Implicit in the judge's conclusion about the scope and extent of the duty to consult and accommodate was a finding that the decision makers were bound to consider past wrongs, cumulative effects, and future development.

The judge also erred in finding that consultation was inadequate and that a specific form of accommodation was required. The decision makers acted reasonably and the consultation was more than adequate in fulfilling the Crown's duties. The consultation process was directly responsive to the concerns raised by the applicants, and significant accommodations were made to protect the existing caribou herd. The outcome was not unreasonable. Cases considered by Finch C.J.B.C.:

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2010 CarswellBC 2868, 2010 SCC 43, 11 Admin. L.R. (5th) 246, 96 R.P.R. (4th) 1, [2010] 11 W.W.R. 577, 9 B.C.L.R. (5th) 205, 54 C.E.L.R. (3d) 1, 293 B.C.A.C. 175, 496 W.A.C. 175 (S.C.C.) — distinguished

Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), [1999] 4 C.N.L.R. 1, 178 D.L.R. (4th) 666, (sub nom. Halfway River First Nation v. British Columbia (Minister of Forests)) 129 B.C.A.C. 32, (sub nom. Halfway River First Nation v. British Columbia (Minister of Forests)) 210 W.A.C. 32, 1999 CarswellBC 1821, 1999 BCCA 470, [1999] 9 W.W.R. 645, 64 B.C.L.R. (3d) 206 (B.C. C.A.) — referred to

Little Salmon/Carmacks First Nation v. Yukon (Director, Agriculture Branch, Department of Energy, Mines & Resources) (2010), 10 Admin. L.R. (5th) 163, (sub nom. Little Salmon/Carmacks First Nation v. Beck- man) 501 W.A.C. 1, (sub nom. Beckman v. Little Salmon/Carmacks) [2010] 3 S.C.R. 103, (sub nom. Little Salmon/Carmacks First Nation v. Beckman) 295 B.C.A.C. 1, (sub nom. Little Salmon/Carmacks First Na- tion v. Beckman) 408 N.R. 281, 55 C.E.L.R. (3d) 1, 2010 SCC 53, 2010 CarswellYukon 140, 2010 CarswellYukon 141, 97 R.P.R. (4th) 1, 326 D.L.R. (4th) 385, (sub nom. Beckman v. Little Salmon/Car- macks First Nation) [2011] 1 C.N.L.R. 12 (S.C.C.) — referred to

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004), 19 Admin. L.R. (4th) 165, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) 327 N.R. 133, 36 B.C.L.R. (4th) 370, 206 B.C.A.C. 132, 338 W.A.C. 132, 11 C.E.L.R. (3d) 49, [2005] 1 C.N.L.R. 366, 26 R.P.R. (4th) 50, 2004 CarswellBC 2654, 2004 CarswellBC 2655, 2004 SCC 74, 245 D.L.R. (4th) 193, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) [2004] 3 S.C.R. 550, [2005] 3 W.W.R. 403 (S.C.C.) — distinguished

Cases considered by Hinkson J.A.:

Carrier Sekani Tribal Council v. British Columbia (Utilities Commission) (2010), 325 D.L.R. (4th) 1, 406 N.R. 333, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council) [2010] 4 C.N.L.R. 250, (sub nom. Rio Tinto Alcon Inc. v. Carrier Sekani Tribal Council)) [2010] 2 S.C.R. 650, 2010 CarswellBC 2867, 2010 CarswellBC 2868, 2010 SCC 43, 11 Admin. L.R. (5th) 246, 96 R.P.R. (4th) 1, [2010] 11 W.W.R. 577, 9 B.C.L.R. (5th) 205, 54 C.E.L.R. (3d) 1, 293 B.C.A.C. 175, 496 W.A.C. 175 (S.C.C.) — considered

Cases considered by Garson J.A. (dissenting):

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Brown v. Sunshine Coast Forest District (District Manager) (2008), (sub nom. Klahoose First Nation v. Sunshine Coast Forest District (District Manager)) [2009] 1 C.N.L.R. 110, 2008 BCSC 1642, 2008 CarswellBC 2587 (B.C. S.C.) — considered

Lax Kw'alaams Indian Band v. Canada (Attorney General) (2009), 281 B.C.A.C. 88, 475 W.A.C. 88, 314 D.L.R. (4th) 385, 2009 BCCA 593, 2009 CarswellBC 3479, [2010] 1 C.N.L.R. 278 (B.C. C.A.) — considered

Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management) (2005), 28 R.P.R. (4th) 165, 37 B.C.L.R. (4th) 309, 209 B.C.A.C. 219, 345 W.A.C. 219, 2005 BCCA 128, 2005 CarswellBC 472, [2005] 6 W.W.R. 429, [2005] 2 C.N.L.R. 212, 251 D.L.R. (4th) 717 (B.C. C.A.) — referred to

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dun- smuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dun- smuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New

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Brunswick) 95 L.C.R. 65 (S.C.C.) — considered

R. v. Lefthand (2007), 2007 CarswellAlta 850, 2007 ABCA 206, [2007] 4 C.N.L.R. 281, 222 C.C.C. (3d) 129, [2007] 10 W.W.R. 1, 77 Alta. L.R. (4th) 203 (Alta. C.A.) — considered

R. v. Lefthand (2008), [2008] 1 S.C.R. x (note), 2008 CarswellAlta 195, 2008 CarswellAlta 196, (sub nom. R. v. Eagle Child) 454 A.R. 176 (note), (sub nom. R. v. Eagle Child) 385 N.R. 392 (note) (S.C.C.) — referred to

R. v. Powley (2003), 2003 CarswellOnt 3502, 2003 CarswellOnt 3503, 2003 SCC 43, 308 N.R. 201, 177 O.A.C. 201, 68 O.R. (3d) 255 (note), 230 D.L.R. (4th) 1, 177 C.C.C. (3d) 193, [2003] 2 S.C.R. 207, [2003] 4 C.N.L.R. 321, 5 C.E.L.R. (3d) 1, 110 C.R.R. (2d) 92 (S.C.C.) — considered

R. v. Sappier (2006), 355 N.R. 1, 274 D.L.R. (4th) 75, 2006 SCC 54, 2006 CarswellNB 676, 2006 CarswellNB 677, [2006] 2 S.C.R. 686, 50 R.P.R. (4th) 1, [2007] 1 C.N.L.R. 359, 799 A.P.R. 199, 214 C.C.C. (3d) 161, 309 N.B.R. (2d) 199 (S.C.C.) — considered

R. v. Vanderpeet (1996), [1996] 9 W.W.R. 1, 23 B.C.L.R. (3d) 1, 50 C.R. (4th) 1, (sub nom. R. v. Van der Peet) 137 D.L.R. (4th) 289, (sub nom. R. v. Van der Peet) 109 C.C.C. (3d) 1, (sub nom. R. v. Van der Peet) 200 N.R. 1, (sub nom. R. v. Van der Peet) 80 B.C.A.C. 81, (sub nom. R. v. Van der Peet) [1996] 2 S.C.R. 507, (sub nom. R. v. Van der Peet) [1996] 4 C.N.L.R. 177, (sub nom. R. v. Van der Peet) 130 W.A.C. 81, 1996 CarswellBC 2309, 1996 CarswellBC 2310 (S.C.C.) — referred to

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004), 19 Admin. L.R. (4th) 165, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) 327 N.R. 133, 36 B.C.L.R. (4th) 370, 206 B.C.A.C. 132, 338 W.A.C. 132, 11 C.E.L.R. (3d) 49, [2005] 1 C.N.L.R. 366, 26 R.P.R. (4th) 50, 2004 CarswellBC 2654, 2004 CarswellBC 2655, 2004 SCC 74, 245 D.L.R. (4th) 193, (sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) [2004] 3 S.C.R. 550, [2005] 3 W.W.R. 403 (S.C.C.) — considered

Wii'litswx v. British Columbia (Minister of Forests) (2008), 2008 BCSC 1620, [2009] 1 C.N.L.R. 359, 88 Admin. L.R. (4th) 109, 2008 CarswellBC 2530 (B.C. S.C.) — referred to

Xeni Gwet'in First Nations v. British Columbia (2007), (sub nom. Tsilhqot'in Nation v. British Columbia) [2008] 1 C.N.L.R. 112, 65 R.P.R. (4th) 1, 2007 BCSC 1700, 2007 CarswellBC 2741 (B.C. S.C.) — referred to

Statutes considered by Finch C.J.B.C.:

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11, reprinted R.S.C. 1985, App. II,

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No. 44

Generally — referred to

Forest and Range Practices Act, S.B.C. 2002, c. 69

Generally — referred to

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241

s. 5 — considered

s. 6 — considered

Mines Act, R.S.B.C. 1996, c. 293

Generally — referred to

Statutes considered by Garson J.A. (dissenting):

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11, reprinted R.S.C. 1985, App. II, No. 44

s. 35 — considered

s. 35(1) — considered

Environmental Assessment Act, S.B.C. 2002, c. 43

s. 8 — referred to

Treaties considered by Finch C.J.B.C.:

Treaty No. 3, 1873 (Between Her Majesty the Queen and the Saulteaux Tribe of the Ojibeway Indians), 1873

Generally — considered

Treaty No. 8, 1899

Generally — considered

Treaties considered by Hinkson J.A.:

Treaty No. 8, 1899

Generally — considered

Treaties considered by Garson J.A. (dissenting):

Treaty No. 8, 1899

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Generally — considered

Regulations considered by Garson J.A. (dissenting):

Environmental Assessment Act, S.B.C. 2002, c. 43

Reviewable Projects Regulation, B.C. Reg. 370/2002

Pt. 3 — referred to

APPEAL by province from judgment reported at West Moberly First Nations v. British Columbia (Chief Inspect- or of Mines) (2010), 6 B.C.L.R. (5th) 94, [2010] 2 C.N.L.R. 354, [2010] 11 W.W.R. 752, 2010 BCSC 359, 2010 CarswellBC 651 (B.C. S.C.), respecting finding that Crown was in breach of its duties to consult and accommodate.

Finch C.J.B.C.:

I. Introduction

1 The Province of British Columbia ("B.C.") appeals from the order of the Supreme Court of British Columbia pronounced 19 March 2010 declaring the Crown to be in breach of its duties to consult and accommodate the petitioners, West Moberly First Nations, who are Treaty 8 First Nations, concerning decisions made by government officials at the request of the respondent First Coal Corporation. Two of those decisions, made by officials in the Ministry of Energy, Mines and Petroleum Resources ("MEMPR") on 1 September 2009, and 14 September 2009, amended existing permits to allow First Coal to obtain a 50,000 tonne bulk sample of coal, and to engage in a 173 drill hole, five trench Advanced Exploration Program.

2 The petitioners say those two decisions were made without proper consideration of their right to hunt caribou in the affected area as part of their traditional seasonal round, and without making adequate provision for the protection and restoration of those caribou, described as the Burnt Pine caribou herd.

3 The order granted by the chambers judge is in the following terms:

THIS COURT DECLARES THAT:

1. The Respondent, Her Majesty the Queen in right of the Province of British Columbia, as represented by Al Hoffman, Chief Inspector of Mines, Victor Koyanagi, Inspector of Mines and Dale Morgan, Dis- trict Manager, Peace Forest District ("British Columbia") failed to consult adequately and meaningfully and failed to accommodate reasonably the Petitioners' hunting rights provided by Treaty No. 8 with respect to the Bulk Sample amendments and Advanced Exploration amendments to mining permit CX- 9-022 and with respect to Occupant Licences to Cut L48261 and L48269.

THIS COURT ORDERS THAT:

2. The effect of the issuing of the amendment of September 14, 2009 permitting the Advanced Explora- tion Program is stayed and the effect of the Occupant Licenses to Cut is suspended for 90 days from March 19, 2010;

3. Within the said 90 day period, British Columbia, in consultation with the Petitioners, will proceed

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expeditiously to put in place a reasonable, active plan for the protection and augmentation of the Burnt Pine caribou herd, taking into account the views of the Petitioners, as well as the reports of British Columbia's wildlife ecologists and biologists Dr. Dale Seip and Pierre Johnstone; ...

[Emphasis added.]

4 No stay was ordered in respect of the amended Bulk Sample Permit of 1 September 2009 but, as will appear below, it has not been acted upon.

5 The third decision challenged by the petitioners in the court below, made on 8 October 2009 by the Deputy Minister of the Ministry of Forests and Range ("MOFR"), permitted First Coal to cut and clear up to 41 hectares of woodlands to facilitate the Advanced Exploration Program. The learned chambers judge held that the Deputy Minister's decision was made in accordance with the relevant statutory powers granted to him (paras. 65-70 of the reasons), but he stayed action under that permit for 90 days as well. This aspect of his ruling is not in issue on appeal, and we need not address that decision further in these reasons.

6 On this appeal, as in the court below, B.C. acknowledges its duty to consult, and says that it was fulfilled. The Province says the learned chambers judge erred in interpreting the petitioners' Treaty 8 right to hunt as a "species specific right", and in holding that the petitioners' interests could only be accommodated in one specific way. It says the chambers judge also erred in holding the departmental officials to an unreasonable standard with regard to the scope of their delegated authority. They were not authorized to address all Aboriginal issues and concerns.

7 As a result, B.C. says the chambers judge erred in holding that the Crown's consultation and accommodation was unreasonable.

8 First Coal supports B.C.'s appeal against the judge's order. First Coal says the chambers judge erred in holding that the scope of the Crown's duty to consult included consideration of the cumulative effect of "past wrongs", and potential future developments, instead of focusing on the potential impact of the challenged permits. First Coal says further that the learned chambers judge erred in law by rejecting the plan put forward by First Coal, the Caribou Mitigation and Monitoring Plan ("CMMP"), as a reasonable form of accommodation.

9 Alternatively, First Coal says the chambers judge erred by imposing a "sanction" upon it, in the form of the 90-day stay directed by paragraph 2 of the order, when it had done nothing wrong.

10 B.C.'s appeal is also supported by the intervenor, the Attorney General of Alberta. It says the chambers judge misinterpreted the Treaty 8 right to hunt as species specific, and erred in deciding a public policy question, restoration of caribou, a matter within the authority of the other branches of government.

11 In response, the petitioners say the learned chambers judge made no reversible error. He correctly determined the nature and scope of the petitioners' Treaty 8 right to hunt. He correctly determined the seriousness of the impact that the mining exploration would have on that right. And he correctly held that the consultation process was unreasonable, and that the proposed accommodation did not honourably balance the rights and interests at stake.

12 The petitioners' position on this appeal is supported by two intervenors, Treaty 8 First Nations of Al- berta, and Grand Council of Treaty #3.

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13 The notice of appeal was filed in these proceedings on 16 April 2010. The 90-day period stipulated by the chambers judge's order for putting in place a plan for the protection and augmentation of the Burnt Pine caribou herd ended on 19 June 2010.

14 The Court was advised that during the 90-day period following the order there were discussions between the parties. B.C. and the petitioners agreed on the formation of a "knowledge team" and a "planning team" who were to recommend measures necessary to protect and augment the Burnt Pine caribou herd, and to restore the petitioners' treaty right to harvest caribou.

15 On 18 June 2010, B.C. adopted one option of the planning team's report, which, we were told, did not meet the petitioners' objectives.

16 On 25 June 2010, the petitioners issued a new petition (No. 10-2786 Victoria Registry) seeking a declaration that B.C. is in breach of the order made on 19 March 2010, the subject of this appeal, as well as various other relief including orders quashing the Bulk Sample Permit and Advanced Exploration Amending Permit, and an interim injunction against First Coal.

17 That petition was amended on 23 July 2010.

18 We are advised by counsel that they have agreed to hold proceedings under the new petition in abeyance pending the outcome of this appeal. Since the expiration of the 90-day stay period, the parties have conducted themselves by agreement, rather than by the terms of the order.

II. Background

A. The Petitioners

19 The West Moberly First Nations people are descendants of the Mountain Dunne-Za, also known as the Beaver Indians. The West Moberly First Nations' reserve is located at the westerly end of Moberly Lake. This area lies to the west of what is now Fort St. John, and roughly midway between Hudson's Hope and Chetwynd, B.C. To the southwest lies the town of Mackenzie, situated near the W.A.C. Bennett Dam at the southerly end of the Williston Reservoir (Lake).

20 The Beaver Indians of Fort St. John adhered to Treaty 8 in 1900. The Hudson Hope Band of Beaver Indi- ans adhered in 1914. The Hudson Hope Band separated into the West Moberly First Nations and the Halfway River First Nation in 1977.

21 First Coal's proposed coal exploration activities are located at the Goodrich Central South property area, which lies about 50 kilometres southwest of the West Moberly Lake 168A Reserve, and within what the petitioners consider to be a preferred traditional hunting area.

22 Historically, the Mountain Dunne-Za were hunters who followed game's seasonal migrations and redis- tributions based on their knowledge and understanding of animal behaviour. In their seasonal round, the Dunne- Za hunted ungulate species, including moose, deer, elk and caribou, in addition to birds and fish. Moose appears to have been the most important food source, but caribou hunting was important, especially in the spring. The animals were taken in large numbers when available, and the meat was preserved by drying. Dry meat was an important food source for the Mountain Dunne-Za year round.

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23 The Mountain Dunne-Za utilized all parts of the caribou, including the hide, internal organs, and bones. They used these materials to make clothing, bags, and a variety of tools and utensils.

24 It appears that after the Bennett Dam and Williston Reservoir were created the caribou population of this region declined significantly. The petitioners' people hold the view that the reservoir cut off traditional migration routes for the caribou, depriving them of what had formerly been important habitat.

25 The Mountain Dunne-Za valued the existence of all species, including caribou, and treated them and their habitat with respect. They knew where the caribou's calving grounds were, and where the winter and summer feeding grounds were located. The people felt and feel a deep connection to the land and all its resources, a connection they describe as spiritual. They regard the depopulation of the species they hunt as a serious threat to their culture, their identity and their way of life.

26 Since about the 1970s, the West Moberly elders have imposed a ban on their people's hunting of caribou. Where the caribou once existed in abundance, the Burnt Pine caribou herd, of concern in these proceedings, is said now to consist of 11 animals. The petitioners' people recognize that unless the herd is protected and restored it is no longer possible to hunt these animals without risk of its extirpation.

B. First Coal Corporation

27 First Coal is a federally incorporated company holding several provincial licences or tenures to explore for coal in an area near Chetwynd. The first Mines Act, R.S.B.C. 1996, c. 293, permit was issued to First Coal in June 2005. The exploration and sampling projects which are the subject of these proceedings are located within the petitioners' preferred traditional hunting ground.

28 The original Bulk Sample Permit authorized First Coal to extract 100,000 tonnes of coal. The original Exploration Permit authorized construction of the "Spine Road" which traversed the high ground in the exploration area, and passed through important winter caribou habitat.

29 The high ground is important winter caribou habitat because the ridges are windswept, reducing the depth of snow that caribou must dig through in order to uncover the ground lichen which is their source of food.

30 In May 2008, First Coal applied to amend the Bulk Sample Permit from 100,000 tonnes to 50,000 tonnes. The judge found that the main reason for seeking this reduction was economic. The amendment would cut in half the time required to obtain the sample, and thus reduce the associated cost accordingly.

31 In November 2008, First Coal applied to amend its Advanced Exploration Permit. The amendment would eliminate use of, and provide restoration of, the Spine Road. It would also allow for the drilling of 173 test holes, and the construction of a network of roads to provide access to the test hole sites.

32 The taking of the proposed bulk sample had two purposes. The first purpose was to test the quality and economic viability of the coal in the proposed mining area. A second purpose was to test a new technology for the mining of coal known as the "Addcar System".

33 The Addcar System is designed to replace both open pit mining, and underground mining by men. In the Addcar System, a series of trenches are dug at right angles to the coal seams on the mountainside. A "launch vehicle" is then positioned over the trench. The dimensions of the launch vehicle are not in evidence, but from the photographs it appears to be a large portable structure that contains a control room, a crew cabin, and a plat-

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form on which coal cars are placed and then "launched". A drilling machine also launched from the platform extracts coal from the underground tunnels it digs, and loads the coal into a car which follows the drilling machine into the tunnel. As each coal car is filled, a new car is added to the underground coal train, hence the name "Ad- dcar".

34 As this is new technology for First Coal, it wished to test it by removing the bulk sample.

35 At the time of the hearing below, it was anticipated that the bulk sample of 50,000 tonnes would have been completed by the time judgment was delivered, no interim injunction having been sought or granted. However, the new technology did not work as expected, the cutting head was returned to the United States, and the bulk sampling was deferred.

36 At the time of the hearing in this Court, the trenches have been dug but the bulk sample has not been extracted.

37 When First Coal became aware of the petitioners' opposition to the bulk sampling and exploration projects in June 2008, First Coal began developing plans to mitigate harm from the project and to monitor its effects upon the caribou. From 27 October 2008 to 1 May 2009, First Coal's Caribou Mitigation and Monitoring Plan went through five versions.

38 The CMMP is a report prepared by Aecom Canada Limited, a firm providing consulting services on wildlife biology and ecology. The plan provides information and opinion on the potential effects of First Coal's amended Bulk Sample and Advanced Exploration Programs. It provides background information on the Burnt Pine caribou herd and its seasonal habitats, and it addresses the potential impacts of First Coal's proposed activities on direct habitat loss, indirect habitat loss, and habitat fragmentation effects. The CMMP also provides advice on potential mitigation measures, and a plan for monitoring the effects of the sampling and exploration programs on the caribou herd.

39 The CMMP refers to (and may be regarded in part as a response to) the advice of two government experts: Dr. Dale Seip, a wildlife ecologist with the Province's Northern Interior Forest Region, and Pierre John- stone, an ecosystem biologist employed by the Province's Ministry of the Environment ("MOE"). They are referred to in para. 3 of the judge's order, and parts of their reports are referred to at paras. 22 and 23 of the reasons for judgment. Dr. Seip's report of 25 September 2008 included this:

It is also necessary to understand what the longer term implications are for these caribou. The Goodrich property encompasses most of the core caribou habitat on Mt. Stephenson. Mining over this entire area would destroy a major portion of the core winter range for this caribou herd. It is short-sighted and misleading to evaluate this proposal for bulk sampling without also considering the longer term consequences of more widespread mining activity occurring over the entire property.

[Emphasis added.]

C. The Consultation Process

40 The Aboriginal Relations Branch of MEMPR prepared a document reviewing developments and representations by various persons up to 20 July 2009. The document is titled "Considerations To Date". An appendix to that document is a "Consultation Log" which records a summary of communications among the four Treaty 8

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First Nations in the area, First Coal, and the three government ministries engaged in the process, MEMPR, MO- FR and MOE.

41 The "Considerations" document records that "MEMPR has proceeded with consultation towards the deeper end of the consultation spectrum". It records West Moberly First Nations' opposition to the Bulk Sample and Exploration Project. The Considerations document records that "operational mine activities are not under current consideration":

6.1.2 Operational Mine Activities Not Under Current Consideration

Pierre Johnstone, R.P.Bio. Ecosystem Biologist, MOE, provided comments on the CMMP on February 13, 2009 as follows:

It is reasonable to expect that mining beyond the Bulk Sample will occur in the future. Given this, assessment of impacts should include the full use scenario, where all available coal is mined; the additional assessments and/or mitigation that "may be required" (p.1) should be described. Furthermore, to more accurately characterize potential impacts to Caribou, FCC should consider potential impacts that could be expected if all their tenured property was developed, in the context of existing and proposed development in the region.

(see APPENDIX VI for complete comments)

A decision on the present application does not authorize full scale mining activity on the Central South Property. Any proposal to move towards an operating mine by FCC will be subject to further assessment and review through the Environmental Assessment (EA) process. Further mitigation and accommodation activities may be considered if the Central South Property is considered under the EA process for authorization to mine. The impacts of mining exploration and bulk sample activities are measured on the merits and impacts of the proposed activity alone and not potential future activities of greater impact. It is only through completion of the Bulk Sample process that FCC will be able to undertake their appropriate due diligence and consider whether to apply for further mine development.

[Italic emphasis in original.]

42 With respect to the cumulative effects of prior events, the Considerations document states:

Cumulative Impacts

WMFN links the decline of the caribou to a number of cumulative factors including habitat loss and fragmentation of habitat due to logging, industrial development and other impacts and in particular the construction of the WAC Bennett Dam and the creation and flooding of the Williston Reservoir.

MOE's Pierre Johnstone in his June 19, 2009 letter states, "the cumulative effects of any incremental increase to habitat alienation have not been analyzed to fully appreciate potential impacts."

MEMPR recognizes that the issue of cumulative impacts has been raised by WMFN and MOE, but it is beyond the scope of the review of this Project to fully assess cumulative impacts in the WMFN traditional territory. This Project has a relatively small footprint relative to other activities, and potentially impacts 0.69% of the caribou in the WMFN traditional territory. However, MEMPR is committed to facilitating and/or par-

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ticipating in land use planning and cumulative impact assessments through the Economic Benefits Com- pleted Agreements.

[Italic emphasis in original.]

43 The Considerations document records the petitioners' submissions, and the Crown's obligations flowing from the Constitution Act, 1982, and from Treaty 8. It refers to the petitioners' cultural connection to caribou, and the risk of potential extirpation of the Burnt Pine caribou herd.

44 The document ends with a summary of the accommodation measures proposed respectively by West Moberly First Nations and by MEMPR:

Accommodation Measures proposed by WMFN

The following are drawn from statements from the Initial Submissions that could be considered as proposed accommodation measures.

• Accommodation should include rejection of FCC application;

• WMFN should be given the opportunity to participate in the decision making process;

• Consultation as a form of accommodation;

• Recovery of the Burnt-Pine Caribou herd; and

• Re-location of FCC activities.

Accommodation Measures Taken or Proposed by MEMPR

• Consultation at the higher end of the spectrum;

• Application of CMMP;

• Reduction of the Bulk Sample permit by 50%;

• Closures of the Spine Road;

• Use of ADDCAR system;

• Consideration of WMFN's extensive input including the Initial Submissions in the decision making process;

• Through promotion, facilitation and participation in planning processes flowing from the EBA [Economic Benefits Agreement] as well as through the Caribou Task Force, MEMPR will work towards addressing the issues of:

• cumulative impacts;

• a Caribou Recovery Plan;

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• land use planning; and

• the location of FCC and other companies' activities.

D. Rationale for MEMPR's Decisions

45 On 1 September 2009, the Chief Inspector of Mines, Al Hoffman, issued the amendment to Permit CX- 9-022, permitting First Coal to obtain the 50,000 tonne bulk sample from the "Goodrich Properties". On 14 September the Inspector of Mines, Victor Koyanagi, issued an amendment to the Exploration Permit authorizing First Coal's proposed drilling program.

46 The rationale for these amending decisions was dated 4 September 2009, and was sent to the petitioners by e-mail on 9 September 2009. The rationale records that in addition to West Moberly First Nations, other interested First Nations were Halfway River First Nation (HRFN), Saulteau First Nation (SFN) and Macleod Lake Indian Band (MLIB). The rationale includes the following:

3.0 Assessment of degree of impact

In assessing any potential impacts to aboriginal interests associated with the proposed activity, we have considered the following relevant factors:

• the project is located on a coal lease on Crown land;

• the project is located within core caribou habitat reorganized under the Forests and Range Act;

• the project is located within the Treaty 8 area;

• the availability of caribou and other ungulate species in the project area; and

• the project involves significant additional disturbance on a previously modified site.

The key concern expressed by First Nations, and WMFN in particular, was impacts to the Burnt-Pine Cari- bou Herd.

4.0 Approach to Consultation

In consideration of the legal framework set out in the Mikisew decision regarding consultation with Treaty First Nations and the degree of impact to Treaty rights, MEMPR has proceeded generally with consultation towards the low end of the consultation spectrum set out in the Haida decision. However, due to WMFN's level of concern regarding the potential impacts on the Burnt-Pine Caribou Herd, MEMPR has proceeded with consultation with WMFN on the issue of impacts to caribou towards the deeper end of the consultation spectrum.

5.0 Consultation and Accommodation Summary

MEMPR has been engaged with the four T8 FNs in discussions on the proposed project for over four years. The level of concern among the four T8 FNs has been mixed. The WMFN have voiced their opposition to the proposed project, primarily due to the potential impacts to the Burnt-Pine Caribou Herd. Both the MLIB

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and HRFN have a positive work relationship with FCC and have signed MOUs in support of the Project. Likewise, SFN has a positive work relationship with FCC and has entered into MOU negotiations with FCC.

...

5.3 Response to West Moberly First Nations' "Initial Submission"

In June 2009, MEMPR received a 90+ page confidential document from WMFN entitled "Initial Submis- sion: I want to eat Caribou before I die". WMFN identified issues with MEMPR's consultation process and requested that MEMPR respond to the Initial Submission in writing. MEMPR provided its response to WM- FN on July 20, 2009 and met with WMFN on August 5 and 12, 2009 to discuss issues raised in the Initial Submission.

Specifically, WMFN raised the crown's obligation to consult and the nature and constitutional protection of their rights under Treaty 8 (1899) with a focus on their defined right around hunting, trapping and fishing. MEMPR has recognized its obligations and carried out meaningful consultation towards the deeper end of the spectrum with WMFN on the issue of impacts to the Burnt-Pine Caribou Herd.

5.4 Accommodation Measures

The key interest related to this Project is the impact on the Burnt-Pine Caribou Herd. The following accommodation measures have been taken to reduce the impact of the Project on the Burnt-Pine Caribou Herd.

Caribou Mitigation and Monitoring Plan

FCC hired a wildlife consultant to prepare a Caribou Mitigation and Monitoring Plan (the CMMP) in response to concerns of the four T8 FNs. The purpose of the CMMP is to minimize the impact of the mining activities on the Burnt-Pine Caribou Herd during the advanced exploration and Bulk Sample programs. The CMMP also outlines mitigation measures to avoid or limit effects and monitoring programs designed to ensure that mining activities do not have a significant impact on the Burnt-Pine Caribou Herd, and to increase understanding of habitat use, distribution, movements and population dynamics of the Burnt-Pine Caribou Herd. th FCC presented the CMMP to the four T8 FNs and staff at MEMPR, MOFR, and MOE on January 20 , 2009. At that time FCC requested that the four T8 FNs and government staff review the CMMP and provide FCC with their comments.

...

As part of the CMMP, FCC established a Burnt-Pine Caribou Task Force. The purpose of the Task Force is to review monitoring results in the context of past and ongoing research on the Burnt-Pine Caribou Herd, and to discuss other ways in which FCC can assist in the recovery of the population. Membership on the Task Force has been offered to the four T8 FNs, MEMPR, MOE and MOFR.

Since January 20, 2009, the four T8 FNs and government staff have provided FCC with comments on the CMMP and it is currently in its 5th revision. The CMMP will continue to be reviewed based on comments by the four T8 FNs, MEMPR, MOE, MOFR.

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On April 30, 2009 a meeting was held in Fort St. John facilitated by FCC to explain the revisions to the CMMP and the Reclamation Plan. This meeting was attended by MEMPR, MOE, MOFR and the representatives from the four First Nations.

Amendment to Bulk Sample Permit Application

FCC initially applied for a 100,000 tonne Bulk Sample permit. To reduce the impact on the Burnt-Pine Cari- bou Herd, FCC has reduced their Bulk Sample permit to 50,000 tonnes. This will result in reduced impact by limiting the number of trenches to one instead of two, will result in approximately 50% waste rock and will reduce the traffic required to move the Bulk Sample.

Closure of Spine Road

Through discussions with MOE and MOFR, FCC recognized the significance of the wind-swept ridge to caribou. As the spine road is located on the wind-swept ridge, to minimize and limit impacts to the caribou, FCC agreed to discontinue use of and prohibit activities on the spine road (excepting reclamation as outlined in the CMMP).

47 Thus, the "rationale" expresses MEMPR's reasons for granting the amended Bulk Sample and Advanced Exploration Permits. This is the decision that was subjected to judicial review in the court below.

III. Reasons for Judgment

48 The learned chambers judge held that the consultation provided was not meaningful (para. 49). He held the petitioners were not given sufficient time to consider First Coal's project, and the CMMP.

49 He also held the Crown had failed to accommodate reasonably:

[51] ... I conclude that at least since June of 2009, when the West Moberly presented a detailed report of the danger to that herd and its relationship to their treaty protected right to hunt, the Crown's failure to put in place an active plan for the protection and rehabilitation of the Burnt Pine herd is a failure to accommodate reasonably.

[52] While First Coal's "Mitigation and Monitoring Plan" is a step in the direction of protecting critical caribou habitats, as the Crown itself stated in the "Considerations to Date" document of July 20, 2009, there is currently no rehabilitation program in effect for the Burnt Pine herd.

[53] I conclude that a balancing of the treaty rights of Native peoples with the rights of the public generally, including the development of resources for the benefit of the community as a whole, is not achieved if caribou herds in the affected territories are extirpated.

[54] Further, here the Crown has delegated its duty towards First Nations peoples to departmental officials. But in so doing it has not given those officials the authority to consider fully the First Nations concerns, nor the power to accommodate those concerns. The same July 20, 2009, document which states that the Ministry of Energy, Mines and Petroleum Resources recognizes that the cumulative impacts of First Coal's project upon West Moberly's traditional territory have been raised by both West Moberly and the Ministry of the Environment, states that it is "beyond the scope of this project to fully assess" those impacts.

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[55] The honour of the Crown is not satisfied if the Crown delegates its responsibilities to officials who respond to First Nations' concerns by saying the necessary assessment of proposed "taking up" of areas subject to treaty rights is beyond the scope of their authority.

[Emphasis added.]

50 The judge considered in some detail the CMMP and comments on it by the government experts, Dr. Seip and Mr. Johnstone. He concluded that because there was no recovery plan for the Burnt Pine caribou herd, as the Crown conceded, the CMMP could not be seen as a reasonable accommodation (para. 59).

51 The judge said the right to hunt had to be "meaningful", which included a right to hunt in its traditional territories:

[62] Nor can the suggestion that the Burnt Pine herd constitutes only a minor part of the hunting potential for the West Moberly prevail. As noted in para. 15 above, the Supreme Court of Canada has stated that a meaningful right to hunt means a right to hunt in "its" (here West Moberly's) traditional territories. The area impacted by the First Coal project includes a portion of West Moberly's traditional seasonal round of hunting caribou, and impacts not only hunting for food, but upon the use of caribou for other cultural and practical reasons. It is not an accommodation to say "hunt elsewhere".

[63] ... Thus, in the case at bar, the Court is required to take into account West Moberly's treaty protected right to hunt, including the traditional seasonal round, and the impact of these decisions upon that right. Here, I conclude that treaty protected right is the right is [sic] to hunt caribou in the traditional seasonal round in the territory effected [sic] by the First Coal Operation.

52 As to remedy, the judge held that quashing the amended permits would not strike the proper balance (para. 78). He held:

[78] The Court may quash a decision should it be found there has not been appropriate consultation or accommodation: Klahoose First Nation v. Sunshine Coast Forest District (District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R. 110, Kwikwetlem First Nation v. British Columba (Utilities Commission), 2009 BCCA 68, [2009] 9 W.W.R. 92. However, I conclude such an order in this case would not constitute a proper balancing of the rights of the petitioners with other First Nations, and the public, including First Coal.

[79] Rather, I conclude that a pragmatic and reasonable step is to stay the effect of the issuing of the amendment of September 14, 2009 permitting the Advanced Exploration Program, and to suspend the effect of the licence to cut, for a determined period to permit and to mandate a proper accommodation of West Moberly's concerns with respect to the Burnt Pine herd.

...

[82] When considering a constitutional right, it is open to the court rather than to stay the effect of the decisions pending proper accommodation, to stay the impugned decisions for a determined period and to give directions as to the accommodation which should be put in place within that time: see Platinex Inc. v. Kit- chenuhmaykoosib Inninuwug First Nation (2006), 272 D.L.R. (4th) 727, [2006] 4 C.N.L.R. 152, (Ont. S.C.J.), (Ont. S.C.J.).

[83] In the circumstances, I conclude that the stay which I have ordered should be in effect for 90 days from

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the date of these reasons.

IV. Treaty 8

53 The relevant provision of Treaty 8 is as follows:

[Emphasis added.]

54 With this text must be read the report of the Treaty Commissioners submitted to the Superintendent Gen- eral of Indian Affairs on 22 September 1899. The following extracts of the Commissioner's report are relevant:

There was expressed [by the Indians] at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges ...

Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make the hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.

We assured them that the treaty would not lead to any forced interference with their mode of life.

[Emphasis added.]

V. Issues on Appeal

55 The parties' submissions give rise to a number of issues.

A. Whether judicial review is the appropriate procedure in which to allege, and to seek a remedy for, the Crown's failure to consult and accommodate (the procedural issue).

B. Whether the judge erred in holding that the Crown failed to act honourably by delegating to Minis- terial officials the duty to consult, without also providing those officials with the power to consider fully, and to accommodate reasonably, the petitioners' concerns (the delegation issue).

C. Whether the judge erred in considering "past wrongs", or the cumulative effects of past events, that

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led to the depleted population of caribou in the Burnt Pine herd, and whether the judge erred in considering future events, namely the impact of a full mining operation in the area, rather than the exploration for which the amended permits were granted (the scope of consultation issue).

D. Whether the judge mischaracterized or misconstrued the petitioners' Treaty 8 right to hunt (the interpretation issue).

E. Whether, considering the results of the issues above, the learned chambers judge erred in holding that the Crown had failed to consult meaningfully and to accommodate reasonably, the petitioners' Treaty 8 right to hunt. This is the fundamental issue on appeal (the consultation issue).

F. Whether the judge erred in holding that only one method of accommodation was reasonable in the circumstances, namely, a plan to protect and augment the Burnt Pine caribou herd (the accommodation issue).

VI. The Parties' Positions

A. British Columbia

56 B.C. says the chambers judge erred in interpreting the petitioners' Treaty 8 hunting rights as a "species specific" right. B.C. says the error appears in this sentence in the judge's reasons at para. 63: "Here, I conclude that treaty protected right is the right is [sic] to hunt caribou in the traditional seasonal round in the territory effected [sic] by the First Coal Operation".

57 That is to say, B.C. says the judge erred in holding that the petitioners had a specific treaty right to hunt and harvest the Burnt Pine caribou herd. The court should not have had such a narrow focus. It will result in the "balkanization" of treaty rights. The hunting right in Treaty 8 is not so confined. It is a right to hunt anywhere in the petitioners' traditional Treaty 8 territories, and for such species as may be available. The treaty rights should not be restricted to a single species, nor to an unreasonably limited area of land.

58 Moreover, B.C. says the hunting right is subject to the Crown's right to take up such tracts of land as may be required for, inter alia, mining. So the hunting right does not exclude other land uses as provided for in the Treaty. The Province points out that the petitioners' people have not hunted caribou in the area of concern for almost 40 years.

59 The Province further contends that the chambers judge erred in holding that only a single specific accommodation was the appropriate outcome, and in evaluating the Crown's consultation process from that perspective. B.C. says that, if the consultation process is found to be insufficient, the question of accommodation should be referred back to the decision maker. B.C. says it was an error of law to order a specific accommodation, a matter in which the courts should not be involved.

60 Next, B.C. says the chambers judge erred by misapprehending the proper role of the court in reviewing the exercise of a statutory power of decision. B.C. says the chambers judge erred (at paras. 54 and 55 of the reasons) in saying that the Crown failed to provide its officials with authority sufficient to consider fully and to accommodate all concerns that might arise in the consultation process. B.C. says it is not reasonable to expect that a statutory decision maker, such as MEMPR, should have authority to address all Aboriginal concerns raised, even if those concerns raise issues outside the scope of the consultation process. Here MEMPR author-

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ized the amendment of two permits for sampling and exploration. B.C. says it is not realistic to expect Ministry officials to engage in an environmental review process, or an assessment of what was necessary to protect and restore this particular herd of caribou.

61 So B.C. says the judge erred in holding that its consultation and accommodation with the petitioners was unreasonable. The subject of the consultation was the impact of the permit amendments, and not a review of the petitioners' Treaty 8 rights generally, nor the historic decline of caribou.

62 B.C. asks that the order of 19 March 2010 be set aside in its entirety.

B. First Coal

63 First Coal supports B.C.'s position on the appeal.

64 In addition, First Coal says the chambers judge erred in assessing the scope of the Crown's duty to consult. First Coal says the judge erred in treating the scope of the duty to consult as including the cumulative effect of past wrongs suffered by the petitioners' people, and in considering the potential impact of a fully operational coal mine. Rather, the scope of the duty to consult was limited to the impact of the amended Sampling and Ex- ploration Permits that were challenged on this judicial review.

65 First Coal placed emphasis on the decision of the Supreme Court of Canada in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2010 SCC 43, [2010] 2 S.C.R. 650 (S.C.C.), a judgment pronounced on 28 October 2010, well after the chambers judge gave his reasons in this case.

66 First Coal says the chambers judge also erred in his decision as to what would constitute reasonable accommodation in the circumstances of this case. In particular, it says the chambers judge erred (at para. 51 of his reasons), by holding the Crown in breach of its duty to accommodate by failing to put in place "an active plan for the protection and rehabilitation of the Burnt Pine caribou herd". It says whether the Crown was in breach of its treaty obligations is a different question from whether it was in breach of its duty to consult and accommodate concerning the amended permits.

67 First Coal says the judge erred in law, and applied an unsupported standard, in rejecting First Coal's CM- MP and its other initiatives as a reasonable form of accommodation. The potential impacts of the sampling and exploration projects are limited, and the mitigation proposed was reasonable. MEMPR's decision (the "rationale") to grant the amended permits was reasonable, and the judge should not have substituted his view of the matter for that of the decision maker.

68 Finally, First Coal says the judge erred by ordering a 90-day stay of any activity under the two amended permits. First Coal says this amounted to a sanction upon it, with no logical connection to the rest of the remedy granted, and in spite of the fact that First Coal had acted reasonably throughout, and done everything that was expected of it.

C. The Intervenor - The Attorney General of Alberta

69 Alberta also supports B.C.'s position on this appeal. In its factum, Alberta agrees with the errors in the judgment identified by B.C. Alberta affirms that the judge erred in adopting a narrow characterization of the petitioners' Treaty 8 right to hunt, as one to hunt a specific species in a specific geographical area. It says judicial review is not the appropriate forum for addressing such an issue, which should be considered in the context of a

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trial.

70 Alberta says treaty interpretation is inappropriate in this case because the parties to the treaty, and in particular Canada, are not before the court.

71 Alberta says the focus should be on the reasonableness of the consultation process, rather than upon its outcome.

72 Alberta says B.C. was entitled to rely on the steps taken by First Coal, the proponent of the sampling and exploration projects, to mitigate and address the specific concerns raised by the petitioners.

73 Alberta further says that whether positive steps should be taken to implement a recovery plan for the Burnt Pine caribou herd is a public policy choice to be made by government, and is well beyond any remedy available to the petitioners on judicial review of the decision to amend the permits. Alberta says it is up the Crown, and to the statutory decision makers with delegated authority, to determine where the appropriate balance is to be struck. Courts should show a high degree of deference to the Crown when it has followed a reasonable process in balancing competing considerations.

74 Here Alberta says B.C. made a difficult policy decision with respect to the Burnt Pine caribou herd and that if the public does not like the policy decision, the appropriate remedy is the "ballot box" not judicial review.

D. West Moberly First Nations

75 The petitioners say there are two over-arching issues. The first is the nature and scope of the Treaty 8 hunting right guaranteed to the First Nations. The second is the reasonableness of the relief ordered by the chambers judge.

76 As to the nature and scope of the treaty right to hunt, the petitioners say the statutory decision maker was wrong. The petitioners' right to harvest caribou and other game is rooted in the "traditional seasonal round" of the Mountain Dunne-Za. To ignore this as the petitioners say MEMPR did, was to misapprehend the nature and scope of the duty to consult.

77 The standard of review as to the nature and scope of the duty to consult is correctness. The statutory decision maker got it wrong, and the chambers judge got it right. The judge had proper regard for the text of Treaty 8 and for the Crown's oral promises to the First Nations peoples.

78 The petitioners say the appropriate standard of review for assessing the consultation process actually engaged in by the Crown, and the results of that process, is reasonableness. Here the petitioners say the consultation process engaged in by MEMPR, and the mitigation and accommodation measures it adopted from the CM- MP, were unreasonable. The petitioners rely on the opinions of the experts in the MOFR and the MOE. Both said that the proposed exploration activity, even with the mitigation proposed in the CMMP, will result in unac- ceptable adverse impacts to the caribou. It will destroy core winter habitat for caribou, and that is incompatible with recovery of the Burnt Pine herd.

79 The petitioners maintain the preservation of a resource is necessary for the continuing treaty rights to exploit that resource. It is appropriate to consider the cumulative impacts. The petitioners say this case is distinguishable from Rio Tinto.

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80 MEMPR's decision to issue the amended permits failed to consider the petitioners' right to hunt caribou according to the traditional seasonal round. B.C., and MEMPR, have mistakenly miscategorized the petitioners' existing treaty right, as an asserted but unproven and potential Aboriginal right. The treaty right exists, and includes the right to its meaningful exercise.

81 It was an error of law for MEMPR to so mischaracterize the treaty right, and the consultation and accommodation were therefore unreasonable.

82 As to the content of the duty to consult and accommodate, the petitioners say that MEMPR did not, but the chambers judge did, adequately assess the seriousness of the potential adverse effects of MEMPR's decisions on the affected treaty right.

83 The seriousness of the impact must take into account its effects on the First Nations peoples. One cannot assess those effects without considering the history of the relationship between the Crown and the First Nations. The historic decline of the caribou is also a relevant concern, because the impact of the proposed exploration will be felt on the herd in its depleted condition. The new adverse impacts distinguish this case from Rio Tinto.

84 The consultation process was not reasonable, nor was the proposed accommodation. The judge was right to exercise his discretion as he did in ordering a specific form of accommodation.

E. The Intervenor - Treaty 8 First Nations of Alberta

85 This organization represents 24 Treaty 8 First Nations in Alberta. Each member of those First Nations is a descendant from the original signatories to Treaty 8, or adherents thereto.

86 Treaty 8 First Nations of Alberta supports the position of the West Moberly First Nations on this appeal. It says that consultation and accommodation must be meaningful. It says the statutory powers conferred on the decision maker, such as MEMPR, cannot limit the scope of consultation which the Crown has a duty to afford. If the officials in question do not have requisite authority, the Crown must engage other government representatives who do have capacity to address all issues arising in the consultation process. The duty to consult and accommodate is not based on statute, but is rather a constitutional imperative.

F. The Intervenor - Grand Council of Treaty #3

87 The Grand Council of Treaty #3 ("GCT3") represents the Anishinaabe Nation, an Aboriginal signatory to Treaty #3.

88 The GCT3 also supports the position of the petitioners on this appeal. It says the harvesting rights promised in the 11 numbered treaties across Canada must be interpreted in the context of the circumstances of each First Nation having regard to the unique cultural, political, historical and geographical context of each numbered treaty and each Aboriginal people. In this case, GCT3 says the court below properly held the duty to consult and accommodate had to be informed by these considerations.

89 GCT3 also says the courts have broad remedial powers in cases where the duty to consult and accommodate is called into question, including the power to make orders that provide a reasonable level of specificity as to how the consultation and accommodation is to be carried out. This approach to remedies is consistent with upholding the rule of law and allows for the orderly and informed development of the law of consultation and accommodation. It is also consistent with the balanced approach to remedies encouraged by courts in other duty

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to consult cases.

90 GCT3 points out the framework for judicial supervision of statutory decision makers is set out in the Ju- dicial Review Procedure Act, R.S.B.C. 1996, c. 241, and referred specifically to sections 5 and 6 of that Act.

91 GCT3 affirms that consideration of cumulative impacts is important. It says First Coal confuses the question of consultation with respect to past infringements with the assessment of past land uses in order fully to appreciate the significance and effect of proposed land use. It says that if half the land had already been appropriated, the impact of new development on what remained would be much greater than if there had been no previous development. The extent of past land use renders the impact of the proposed land use more significant. It says this approach is consistent with Little Salmon/Carmacks First Nation v. Yukon (Director, Agriculture Branch, Department of Energy, Mines & Resources), 2010 SCC 53, [2010] 3 S.C.R. 103 (S.C.C.).

VII. Analysis

A. The Procedural Issue

92 The appellants and intervenor Attorney General for Alberta have raised the question whether judicial review is the appropriate procedure in which to allege, and remedy, the Crown's failure to consult and accommodate.

93 In oral submissions, B.C. suggested that judicial review was not the correct means by which to determine the scope of the treaty right to hunt. Counsel for the Province said that because the petition for judicial review was to be decided on affidavit evidence, the process provided too limited a basis on which to assess or define the scope of the treaty right. Counsel said that procedure was inappropriate for a specific finding on the scope of the treaty right, because the evidence was insufficient, and there was no cross-examination on any of the affidavits.

94 The intervenor Attorney General of Alberta supports this position, but adds to it. Alberta says that "[q]uestions about asserted rights are best left to be dealt with in the context of a trial where full evidence is comprehensively reviewed and considered" (intervenor's factum at para. 5). Alberta points to both Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 (S.C.C.), and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 (S.C.C.), as cases where issues of asserted rights were severed from judicial review applications and referred to the trial list.

95 Moreover, Alberta says that for a decision on whether the Treaty is to be interpreted as ensuring a First Nations' right to hunt a specific species "into the future", there would have to be a "full trial of the historical issues, based on a fulsome evidentiary record" (intervenor's factum at para. 12). Here, not all the proper parties were before the Court. In particular, Canada was not a party to the process, and since it was a party to Treaty 8, it should be heard in any case involving the treaty's interpretation.

96 I see no merit in the argument that judicial review was an inappropriate procedure for resolving the issues in this case. I note at the outset that no party took this position in the court below, and no party below suggested that Canada should be added as a party.

97 In any event, the matter has now been put beyond question by the decision of the Supreme Court of Canada in Beckman where the Court said:

[47] The parties in this case proceeded by way of an ordinary application for judicial review. Such a proced-

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ure was perfectly capable of taking into account the constitutional dimension of the rights asserted by the First Nation. There is no need to invent a new "constitutional remedy". Administrative law is flexible enough to give full weight to the constitutional interests of the First Nation. Moreover, the impact of an administrative decision on the interest of an Aboriginal community, whether or not that interest is entrenched in a s. 35 right, would be relevant as a matter of procedural fairness, just as the impact of a decision on any other community or individual (including Larry Paulsen) may be relevant.

98 In my respectful view, Alberta's reliance on Haida and Taku is misplaced. Those were both cases about the existence of Aboriginal rights asserted by First Nations, but as yet unproven. There is no such question in this case, because Treaty 8 declares the right. While there remain issues as to the scope of the right, that is to be largely decided by interpreting the Treaty, in its historical context, as a matter of law.

99 I would not give effect to the assertion that judicial review was not the proper way of proceeding to resolve the questions in issue in this case.

B. The Delegation Issue

100 The appellants assert that the judge erred in holding that the Crown failed to act honourably by delegating to ministry officials the duty to consult and accommodate, without also providing those officials with the necessary powers to consider fully, and to accommodate reasonably, the petitioners' concerns.

101 This issue arises from what the chambers judge said at paras. 54 and 55 of his reasons, which I repeat here for convenience:

102 The "cumulative impacts of First Coal's project" referred to in para. 54 is a reference to the passage in the "Considerations" document under the heading "Cumulative Impacts" quoted above at para. 42.

103 B.C. contends that in so holding the chambers judge was effectively saying that a statutory decision maker, such as MEMPR, must be empowered to address all concerns raised by First Nations, or else the honour of the Crown will not be upheld. B.C. says that to demand such authority in a statutory decision maker would compel it to go beyond its statutory mandate. It points to Taku and says that the petitioners' Treaty 8 concerns lay outside the ambit of the consultation process required for the approval of the amended Bulk Sampling and Advanced Exploration Permits. B.C. says such concerns "could only be the subject of later negotiations with the government", and that it was unreasonable to expect MEMPR to address them.

104 The Attorney General for Alberta supports B.C. in this position. Alberta expresses the argument in its

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factum in this way:

33. The Justice erred in finding that it is not sufficient for a statutory decision maker to focus on mitigation efforts that are within his or her statutory authority. Is not dishonourable for a statutory decision maker to decline to address concerns that are "out of scope" or beyond the decision maker's statutory mandate. His approach effectively requires a Crown decision maker to enlist other Crown ministries and decision makers if the concerns of the First Nation are beyond his or her statutory authority and power to consider or address. This approach is contrary to Carrier Sekani, and to administrative principles generally.

34. With respect, the Justice went beyond reviewing the specific decisions before him and, instead, considered broader wildlife management issues that were the responsibility of other government decision makers, despite a court proceeding that was limited to the judicial review of specific administrative decisions.

105 And further:

37. Statutory decision makers have no inherent jurisdiction. When broad concerns are raised, that require remedial powers that fall outside the confines of their statutory authorities and jurisdiction, they are simply not the proper forum for such concerns to be raised or considered. In this case, the Ministries charged with making the challenged decisions were not the proper forum to raise broad wildlife management concerns related to overall caribou management policy.

106 With respect, I do not consider this position to be tenable. MEMPR was not limited by its statutory mandate, so far as its duty and power to consult were concerned. It is a well established principle that statutory decision makers are required to respect legal and constitutional limits. The Crown's duty to consult lies upstream of the statutory mandate of decision makers: see Beckman at para. 48 and Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, 64 B.C.L.R. (3d) 206 (B.C. C.A.) at para. 177.

107 In other words, in exercising its powers in this case, MEMPR was bound by, and had to take cogniz- ance of, Treaty 8 and its true interpretation. B.C. says that such a view of the decision maker's position is unreasonable. With respect, I disagree. There is nothing in the legislation creating and governing MEMPR that would prevent that body from consulting whatever resources were required in order to make a properly informed decision. A statutory decision maker may well require the assistance or advice of others with relevant expertise, whether from other government ministries, or from outside consultants.

108 In this case, MEMPR appears to have relied, at least in large part, on the CMMP prepared by Aecom, the consultant retained by First Coal. MEMPR was entitled to consider the opinions of First Coal's consultant, but it was not limited to so doing. I would not give effect to this ground of appeal.

C. The Scope of the Duty to Consult

109 The appellants, and First Coal in particular, assert that the judge erred in considering "past wrongs", or the cumulative effect of past events, that led to the depleted population of the Burnt Pine caribou herd; and erred as well in considering future events, namely the potential impact of a full mining operation, rather than simply the exploration programs authorized by the amended permits.

110 First Coal submits that the chambers judge erred in determining the scope of the Crown's duty to con-

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sult. It says the consultation should have been limited, as it was by MEMPR, to the immediate adverse impacts of the two Amended Permits for the Bulk Sampling and Advanced Exploration Programs, and whatever steps might be necessary to address and accommodate those impacts.

111 Instead, First Coal says the chambers judge embarked on a consideration of the historical decline of the Burnt Pine caribou herd, and in so doing purported to redress "past wrongs". In particular, First Coal says the chambers judge erred in considering the petitioners' submissions concerning the construction of the W.A.C. Bennett and Peace Canyon Dams in the 1960s and 1970s, and the creation of the Williston Reservoir.

112 First Coal says the effect of these considerations on the chambers judge's decision is evident from his holding that the Crown failed to put in place a plan for the protection and rehabilitation of the Burnt Pine herd.

113 Such focus on, and attempts to remedy, events in the past is, in First Coal's submission, contrary to the decision of the Supreme Court of Canada in Rio Tinto (at paras. 45 to 54). First Coal says that the order to rehabilitate or augment the Burnt Pine caribou herd is a remedy for prior events, which have no causal connection to any adverse impacts that the Amended Exploration Permits might give rise to.

114 First Coal also contends that the chambers judge erred in holding that the duty to consult included an obligation to consider the potential adverse impacts of a full mining operation that might follow the exploration programs. The "longer term implications ... [of mining] over this entire area" are referred to in Dr. Seip's comments of 25 September 2008, quoted at para. 22 of the reasons for judgment, and in the petitioners' response to a letter from MEMPR of 8 August 2009 in which the Ministry said "further stages of development would not be considered in the permit amendment decisions", referred to at para. 34 of the reasons.

115 In his analysis, the chambers judge referred again to the reports of Dr. Seip and Pierre Johnstone in which Dr. Seip expressed a view that the Bulk Sampling and Exploration Programs would cause habitat destruction "incompatible with efforts to recover the populations" (reasons para. 57), and Pierre Johnstone is quoted as saying that "mine development" in the habitat area would be inconsistent with maintaining or increasing the number of caribou (reasons para. 58).

116 To deal first with the "past wrongs" submission, and the requirement that a causal relationship be shown between the government's decision and the risk of an adverse impact, I consider that Rio Tinto is distinguishable on its facts from the present case. There the Court addressed an argument that energy purchase agreements (EPAs) made in 2007 between Alcan and B.C. Hydro would trigger the duty to consult, because the EPAs were part of a larger hydroelectric project initiated some 40 or 50 years earlier on which the First Nations peoples had not been consulted. The Utilities Commission found that the 2007 EPA would not have any adverse effect on the Nechako River and its fishery (see Rio Tinto at para. 77). The First Nations peoples argued that even if the 2007 EPA would have no impact, or inconsequential effects, the duty to consult was nevertheless triggered. The Court rejected this argument. It said in part:

[45] The third element of a duty to consult is the possibility that the Crown conduct may affect the Abori- ginal claim or right. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, including previous breaches of the duty to consult, do not suffice.

...

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[49] The question is whether there is a claim or right that potentially may be adversely impacted by the current government conduct or decision in question. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right....

...

[53] I cannot accept this view of the duty to consult. Haida Nation negates such a broad approach. It grounded the duty to consult in the need to preserve Aboriginal rights and claims pending resolution. It confines the duty to consult to adverse impacts flowing from the specific Crown proposal at issue — not to larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration.

...

[83] In my view, the Commission was correct in concluding that an underlying infringement in and of itself would not constitute an adverse impact giving rise to a duty to consult.

[Italic emphasis in original; underline emphasis added.]

117 I do not understand Rio Tinto to be authority for saying that when the "current decision under consideration" will havean adverse impact on a First Nations right, as in this case, that what has gone before is irrelevant. Here, the exploration and sampling projects will have an adverse impact on the petitioners' treaty right, and the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners' treaty right to hunt.

118 The amended permits authorized activity in an area of fragile caribou habitat. Caribou have been an important part of the petitioners' ancestors' way of life and cultural identity, and the petitioners' people would like to preserve them. There remain only 11 animals in the Burnt Pine herd, but experts consider there to be at least the possibility of the herd's restoration and rehabilitation. The petitioners' people have done what they could on their own to preserve the herd, by banning their people from hunting caribou for the last 40 years.

119 To take those matters into consideration as within the scope of the duty to consult, is not to attempt the redress of past wrongs. Rather, it is simply to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs.

120 I would not give effect to this branch of First Coal's submission.

121 First Coal's second contention on the scope of the duty to consult is that it must be limited to the impact of the amended exploration permits, and must exclude consideration of whatever effects a full mining operation might have.

122 It is correct that the consultation in this case must be directed at the Bulk Sampling and Advanced Ex- ploration Permits and their impact. However, the result of this consultation will necessarily determine not only what constitutes reasonable accommodation for the exploration permits, but will also affect subsequent events if the exploration proceeds.

123 On my reading of the chambers judge's reasons, it does not appear that he gave much, if any, weight to

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the potential impact of a full mining operation as a relevant factor in the Crown's duty to consult. However, the whole thrust of the petitioners' position was forward looking. It wanted to preserve not only those few animals remaining in the Burnt Pine caribou herd, but to augment and restore the herd to a condition in which it might once again be hunted. If that position were to be given meaningful consideration in the consultation process, I do not see how one could ignore at least the possibility of a full mining operation, if it were shown to be justified by the exploration programs. That was the whole object of the Bulk Sampling and Advanced Exploration Pro- grams.

124 There does not appear to be any evidence contrary to the opinion of Pierre Johnstone that mine development in this area "would be inconsistent with maintaining or increasing Woodland Caribou numbers". Similarly Dr. Seip's view that "it is short-sighted and misleading to evaluate this proposal for bulk sampling without also considering the longer term consequences of more widespread mining activity occurring over the entire property" (quoted above at para. 39), is not contradicted by the evidence.

125 I am therefore respectfully of the view that to the extent the chambers judge considered future impacts, beyond the immediate consequences of the exploration permits, as coming within the scope of the duty to consult, he committed no error. And, to the extent that MEMPR failed to consider the impact of a full mining operation in the area of concern, it failed to provide meaningful consultation.

126 I would not give effect to these grounds of appeal.

D. The Interpretation Issue (The Petitioners' Treaty 8 Right to Hunt)

127 B.C. accepts that the statutory decision maker was obliged to consider the nature and scope of the petitioners' treaty right to hunt in the consultation process, but B.C. says that due consideration was given to that right. B.C. says the chambers judge erred in interpreting that right as a specific right to hunt caribou in its traditional area as part of its seasonal round.

128 The nature and scope of the petitioners' right to hunt must be understood as the petitioners' ancestors, and as the Crown's treaty makers, would have understood that right when the treaty was made or adhered to. That understanding is to be derived from the language used in the treaty, informed by the report of the Commis- sioners, quoted above at para. 54.

129 In examining the nature and scope of the petitioners' right to hunt, it must be remembered that it is not merely a right asserted and as yet unproven, as in cases of Aboriginal rights claims in non-treaty cases. Here the right relied on is an existing right agreed to by the Crown and recorded in a Treaty. While there may be disagreement over the limits on or the scope of the right, consultation must begin from the premise that the First Nations are entitled to what they have been granted by the Treaty.

130 The Treaty 8 right to hunt is not merely a right to hunt for food. The Crown's promises included representations that:

(a) the same means of earning a livelihood would continue after the Treaty as existed before it, and that the Indians would be expected to continue to make use of them;

(b) they would be as free to hunt and fish after the Treaty as they would be if they never entered into it; and

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S.C.R. 771 (S.C.C.) at para. 39).

131 These promises have been affirmed in previous Treaty 8 cases.

132 In Badger, the Supreme Court of Canada held at para. 52 that treaties relating to indigenous peoples should be construed liberally, "... and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians ... the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid, modern rules of construction".

133 On this appeal, B.C. relies on the words in the Treaty that limit the right to pursue hunting, et cetera, "... saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading, or other purposes".

134 Just as the right to hunt must be understood as the treaty makers would have understood it, so too must "taking up" and "mining" be understood in the same way. As the Supreme Court of Canada said in Badger at para. 55:

Since the Treaty No. 8 lands were not well suited to agriculture, the government expected little settlement in the area. The Commissioners, cited in Daniel, at p. 81, indicated that "it is safe to say that so long as the fur- bearing animals remain, the great bulk of the Indians will continue to hunt and to trap". The promise that this livelihood would not be affected was repeated to all the bands who signed the Treaty. Although it was expected that some white prospectors might stake claims in the north, this was not expected to have an impact on the Indians' hunting rights. For example, one commissioner, cited in René Fumoleau, O.M.I., As Long as this Land Shall Last, at p. 90, stated:

[Emphasis added.]

135 I interject to point out that "some white prospectors [who] might stake claims", to the understanding of those making the Treaty, would have been prospectors using pack animals and working with hand tools. That understanding of mining bears no resemblance whatever to the Exploration and Bulk Sampling Projects at issue here, involving as they do road building, excavations, tunnelling, and the use of large vehicles, equipment and structures.

136 In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 (S.C.C.), the Supreme Court of Canada expanded upon what it had said in Badger:

47 . . .

Badger recorded that a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity. Continuity respects traditional patterns of activity and occupation. The Crown promised that the Indians' rights to hunt, fish and trap would continue "after the treaty as existed before it" (p. 5). This promise is not honoured by dispatching the Mikisew to territories far from their traditional hunting grounds and traplines.

48 . . .

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The "meaningful right to hunt" is not ascertained on a treaty-wide basis (all 840,000 square kilometres of it) but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so today. If the time comes that in the case of a particular Treaty 8 First Nation "no meaningful right to hunt" remains over its traditional territories, the significance of the oral promise that "the same means of earning a livelihood would continue after the treaty as existed before it" would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response.

[Italic emphasis in original; underline emphasis added.]

137 It is clear from the above passages that, while specific species and locations of hunting are not enumerated in Treaty 8, it guarantees a "continuity in traditional patterns of economic activity" and respect for "traditional patterns of activity and occupation". The focus of the analysis then is those traditional patterns.

138 The result in Mikisew is instructive on this point. That case involved the construction of a winter road in Wood Buffalo National Park that ran through the Mikisew First Nation Reserve. The road corridor occupied approximately 23 square kilometres and traversed the traplines of approximately 14 Mikisew families that resided in the area. The federal and provincial Crowns argued that while 23 square kilometres were "taken up" there remained a meaningful right to hunt in the 840,000 square kilometres covered by Treaty 8. The Federal Court of Appeal in the decision below held that rights to hunt, fish and trap were only infringed "where the Crown has taken up land in bad faith or has taken up so much land that no meaningful right to hunt remains". In rejecting these arguments Mr. Justice Binnie said the following at para. 44:

The Draft Environmental Assessment Report acknowledged the road could potentially result in a diminution in quantity of the Mikisew harvest of wildlife, as fewer furbearers (including fisher, muskrat, marten, wolverine and lynx) will be caught in their traps. Second, in qualitative terms, the more lucrative or rare species of furbearers may decline in population. Other potential impacts include fragmentation of wildlife habitat, disruption of migration patterns, loss of vegetation, increased poaching because of easier motor vehicle access to the area and increased wildlife mortality due to motor vehicle collisions. While Haida Nation was decided after the release of the Federal Court of Appeal reasons in this case, it is apparent that the proposed road will adversely affect the existing Mikisew hunting and trapping rights, and therefore that the "trigger" to the duty to consult identified in Haida Nation is satisfied.

139 The question to be answered is whether the proposed activity will adversely affect existing hunting rights. In this case it is clear that the petitioners have historically hunted caribou in the area affected by the Bulk Sampling and Advanced Exploration Programs. Since the 1970s West Moberly elders have imposed a ban on hunting caribou because of diminishing numbers, but it is hoped that hunting may resume in the future. It is also clear from the evidence of Pierre Johnstone and Dr. Seip that the Bulk Sampling and Advanced Exploration Pro- grams as well as any full mining operation will have an adverse impact on caribou in the area and consequently the petitioners' ability to hunt. Therefore, the duty to consult has been engaged.

140 The chambers judge did not err in considering the specific location and species of the petitioners' hunting practices.

E. The Consultation Issue

141 The question then is whether the consultation process was reasonable. A reasonable process is one that

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recognizes and gives full consideration to the rights of Aboriginal peoples, and also recognizes and respects the rights and interests of the broader community.

142 The record of the consultation process in this case, summarized in the document "Considerations To Date" prepared by MEMPR as of 20 July 2009, the appended Consultation Log (para. 40 above), and in MEM- PR's "Rationale" dated 4 September 2009, details the consideration given to the concerns raised by the petitioners.

143 The essence of the petitioners' position (see para. 44 above) was that First Coal's application for the Bulk Sampling and Advanced Exploration Permits should be rejected, and their proposed mining activities relocated to another area where the habitat for the Burnt Pine caribou herd would not be affected; and, further that a plan should be put in place for the recovery of the Burnt Pine caribou herd.

144 This position is, of course, completely irreconcilable with the projects proposed by First Coal. To be considered reasonable, I think the consultation process, and hence the "Rationale", would have to provide an explanation to the petitioners that, not only had their position been fully considered, but that there were persuasive reasons why the course of action the petitioners proposed was either not necessary, was impractical, or was otherwise unreasonable. Without a reasoned basis for rejecting the petitioners' position, there cannot be said to have been a meaningful consultation.

145 In Mikisew, the Court said:

...

64 The duty here has both informational and response components. In this case, given that the Crown is pro- posing to build a fairly minor winter road on surrendered lands where the Mikisew hunting, fishing and trapping rights are expressly subject to the "taking up" limitation, I believe the Crown's duty lies at the lower end of the spectrum. The Crown was required to provide notice to the Mikisew and to engage directly with them (and not, as seems to have been the case here, as an afterthought to a general public consultation with Park users). This engagement ought to have included the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights. The Crown did not discharge this obligation when it unilaterally declared the road realignment would be shifted from the reserve itself to a track along its boundary. I agree on this point with what Finch J.A. (now C.J.B.C.) said in Halfway River First Nation at paras. 159-60.

The fact that adequate notice of an intended decision may have been given does not mean that the requirement for adequate consultation has also been met.

The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal

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peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.]

[Italic and underline emphasis in original.]

146 In my respectful view, the Considerations document and the Rationale do not meet this test. MEMPR effectively accepted First Coal's CMMP as a satisfactory response to the petitioners' position. However, the CM- MP does not explain why the petitioners' position that the Exploration Permits should be cancelled, First Coal's activities relocated, and the Burnt Pine caribou herd restored, was rejected. It does not address why the petitioners' position was unnecessary, impractical, or otherwise unreasonable. Rather, the CMMP proceeds on the footing that the Bulk Sampling and Advanced Exploration Programs should proceed, and then proposes measures to minimize or mitigate whatever adverse effects those programs will have. It contains proposals to monitor the impact of the projects on the Burnt Pine caribou herd and to "discuss" ways in which First Coal can assist in recovery of the caribou population.

147 The decision reached by MEMPR based on the CMMP and the position put forward by the petitioners are as two ships passing in the night. There was no real engagement of the petitioners' position. It was not a position that could be dismissed out of hand, supported as it was by the expert opinions of the government's own biologists, Dr. Seip and Pierre Johnstone.

148 If the petitioners' position were to be addressed head on, and a careful consideration given to whether the exploration programs should be cancelled, First Coal's activities relocated, and the Burnt Pine caribou herd restored, it may be that MEMPR could give a persuasive explanation as to why such steps were unnecessary, impractical, or otherwise unreasonable. The consultation process does not mandate success for the First Nations interest. It should, however, provide a satisfactory, reasoned explanation as to why their position was not accepted.

149 The consultation in this case does not do that. I think the reason is apparent. MEMPR never considered the possibility that the petitioners' position might have to be preferred. It based its concept of consultation on the premise that the exploration projects should proceed and that some sort of mitigation plan would suffice. However, to commence consultation on that basis does not recognize the full range of possible outcomes, and amounts to nothing more than an opportunity for the First Nations "to blow off steam".

150 Effectively, MEMPR regarded the petitioners' Treaty 8 right to hunt as subject to, or inferior to, the Crown's right to take up land for mining or other purposes. There are at least two problems with this approach. First, it is inconsistent with what First Nations peoples were told when the Treaty was signed or adhered to. They were given to understand that they would be as free to make their livelihood by hunting and fishing after the Treaty as before, and that the Treaty would not lead to "forced interference with their mode of life". Second, the concept of mining, as understood by the treaty makers would never have included the possibility that areas of important ungulate habitat would be destroyed by road building, excavations, trenching, the transport of heavy equipment and excavated materials, and the installation of an "Addcar system".

151 When MEMPR entered into the consultation process without a full and clear understanding of what the Treaty meant, the process could not be either reasonable or meaningful. A consultation that proceeds on a misunderstanding of the Treaty, or a mischaracterization of the rights that the Treaty protects, is a consultation based on an error of law, and cannot therefore be considered reasonable.

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152 These are different reasons than those given by the chambers judge for holding that the consultation was not meaningful. He gave two reasons for reaching his conclusion. He said first that the Crown was too slow to advise the petitioners as to the potential adverse effects of the exploration program, by not providing them with a "substantial assessment" until August 2009, about only one month before the rationale was settled upon (reasons at para. 50). Second, the judge said MEMPR responded to the petitioners' concerns about potential extirpation of the Burnt Pine caribou herd with something approaching "standard form referral letters" (reasons at para. 51).

153 I consider that both of these reasons are correct, but the underlying explanation for MEMPR's slow and superficial response is, as I have attempted to explain above, a failure to understand or appreciate the basis of the petitioners' objection, grounded in a constitutionally protected treaty right.

154 I am therefore of the opinion that the chambers judge was correct to consider that the consultation was not meaningful and was therefore not reasonable.

F. The Accommodation Issue

155 The appellants assert that the judge erred in holding that only one method of accommodation was reasonable in the circumstances, namely a plan to protect and augment the Burnt Pine caribou herd.

156 This ground of appeal challenges para. 3 of the judge's order which, to repeat, was:

3. Within the said 90 day period, British Columbia, in consultation with the Petitioners, will proceed expeditiously to put in place a reasonable, active plan for the protection and augmentation of the Burnt Pine caribou herd, taking into account the views of the Petitioners, as well as the reports of British Columbia's wildlife ecologists and biologists Dr. Dale Seip and Pierre Johnstone ...

157 This part of the order is supported specifically by this sentence in the judge's reasons for judgment at para. 63:

Here, I conclude that treaty protected right is the right is [sic] to hunt caribou in the traditional seasonal round in the territory effected [sic] by the First Coal Operation.

158 B.C. says the chambers judge erred in restricting the petitioners' treaty right to hunt to a single species, caribou, or to a specific geographical location. It says an order directing a specific accommodation is contrary to earlier decisions in this Court. It says the predetermination of the only acceptable accommodation coloured the judge's consideration of whether the consultation was meaningful and reasonable.

159 B.C. says the judge's focus on a single herd of caribou, as opposed to restoration of caribou generally, will result in the "balkanization" of treaty rights, or the "micro-application" of the treaty right. It says this is not a remedy sought in the petition.

160 First Coal supports B.C.'s position on this issue. Alberta says whether steps should be taken to implement a recovery plan for the Burnt Pine caribou herd is a public policy issue for decision by government, and not the courts.

161 The petitioners say the accommodation directed by the judge was within his discretion, and it is supported in this by the intervenor, Grand Council of Treaty #3. Counsel referred us to the Judicial Review Procedure

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Act, and the remedial powers granted by ss. 5 and 6:

Powers to direct tribunal to reconsider

5 (1) On an application for judicial review in relation to the exercise, refusal to exercise, or purported exercise of a statutory power of decision, the court may direct the tribunal whose act or omission is the subject matter of the application to reconsider and determine, either generally or in respect of a specified matter, the whole or any part of a matter to which the application relates.

(2) In giving a direction under subsection (1), the court must

(a) advise the tribunal of its reasons, and

(b) give it any directions that the court thinks appropriate for the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.

Effect of direction

6 In reconsidering a matter referred back to it under section 5, the tribunal must have regard to the court's reasons for giving the direction and to the court's directions.

162 I must say I would not interpret the judge's statement in the sentence quoted from para. 63 of his reasons as the appellants do. I do not understand the judge to be saying that the petitioners' right to hunt is the right to hunt caribou, and only caribou, in the affected area. Such an interpretation ignores the rest of the judge's reasons. I understand the sentence to mean simply that the petitioners' Treaty 8 right to hunt includes the right to hunt caribou as part of the seasonal round, and that it is that part of the Treaty 8 right that is in issue in this case.

163 Having said that, it is not in my respectful view necessary to reach a final conclusion on whether the judge erred in declaring a specific form of accommodation. The Judicial Review Procedure Act would appear to grant a sufficiently broad discretion to make such an order but this, and other courts, have shown a reluctance to do so, so as not to impair further consultation.

164 For the reasons expressed above, I have concluded that the judge was correct in holding that the consultation process was not meaningful, although for somewhat more expansive reasons than he gave on that issue. For that reason, it seems to me the proper remedy is to remit the matter for further consultation between the parties, having regard for what the scope of the consultation ought properly to include.

165 I make no further comment on the ambit of a judge's discretion to give specific directions as provided for in ss. 5 and 6 of the Judicial Review Procedure Act. However, it is preferable in this case that the specific direction be set aside so that the parties may resume consultation as indicated, and unfettered.

VIII. Conclusion

166 I would affirm the judge's declaration in para. 1 of the order that the Crown failed to consult adequately and meaningfully, and failed to accommodate reasonably the petitioners' hunting rights as provided by Treaty 8.

167 I would direct that implementation of, or action under the Amended Bulk Sampling Permit and the Ad- vanced Exploration Permit be stayed pending meaningful consultation conducted in accordance with these reas-

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ons.

168 I would set aside the accommodation directed in para. 3 of the order, without prejudice to the giving of such directions for accommodation following further consultation between the parties, as may appear appropriate.

Hinkson J.A.:

169 I have had the privilege of reading the draft reasons for judgment of Chief Justice Finch, and agree with his disposition of the issues on this appeal described at para. 55 of those draft reasons, and with his reasons for that disposition with one exception regarding the last ground of appeal. While I agree with Chief Justice Finch that the accommodation directed in para. 3 of the order below should be set aside; my reasons for setting aside that paragraph of the order differ from his, with respect to what was described in that paragraph as "the protection and augmentation of the Burnt Pine caribou herd".

170 The chambers judge found that the respondent West Moberly's harvesting practice included a traditional seasonal round, which meant that hunters travelled to particular preferred areas within the treaty territory during specific times of the year, including the area impacted by the First Coal mining operation. The West Moberly traditionally hunted for bison, moose, deer, mountain sheep, and caribou. The bison in the Treaty 8 areas became extinct in the nineteenth century.

171 The population of caribou in the area of First Coal's operations has been decimated. In his affidavit of October 19, 2009, Chief Willson swore:

Caribou numbers have been reduced to such as [sic] extent in West Moberly preferred Treaty territory that the woodland caribou are a threatened species under the federal Species at Risk Act. Ever since I came of age to hunt, I have never been able to hunt caribou in West Moberly's preferred Treaty area. West Moberly members have not hunted caribou since the 1970's, when caribou became scarce, as our Elders put a moratorium on all our members, including myself, hunting caribou because their numbers are so few.

172 Not unlike the bison before them, the Burnt Pine caribou herd, is now approaching extirpation, having been reduced to an estimated population of only 11.

Discussion

173 At paras. 14-15 of his reasons, the chambers judge made reference to two decisions of the Supreme Court of Canada that have particular relevance to the rights of the West Moberly that are in issue:

With respect to Treaty No. 8, the Supreme Court of Canada stated in R. v. Badger, [1996] 1 S.C.R. 771, [1996] 4 W.W.R. 457, at para. 55 and 56:

Since the Treaty No. 8 lands were not well suited to agriculture, the government expected little settlement in the area. The Commissioners, cited in Daniel, at p. 81, indicated that "it is safe to say that so long as the fur-bearing animals remain, the great bulk of the Indians will continue to hunt and to trap." The promise that this livelihood would not be affected was repeated to all the bands who signed the Treaty. Although it was expected that some white prospectors might stake claims in the north, this was not expected to have an impact on the Indians' hunting rights. For example, one commissioner, cited in

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René Furmoleau, O.M.I., As Long As This Land Shall Last, at p. 90, stated:

We are just making peace between Whites and Indians - for them to treat each other well. And we do not want to change your hunting. If Whites should prospect, stake claims, that will not harm anyone.

Commissioner Laird told the Indians that the promises made to them were to be similar to those made with other Indians who had agreed to a treaty. Accordingly, it is significant that the earlier promises also contemplated a limited interference with Indians' hunting and fishing practices.

Further, in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, the Court held that given the Crown's oral promises, Treaty No. 8 protects the right to exercise meaningfully traditional hunting practices. The unanimous Court stated at para. 48:

The "meaningful right to hunt" is not ascertained on a treaty-wide basis (all 840,000 square kilometres of it) but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so today. If the time comes that in the case of a particular Treaty 8 First Nation "no meaningful right to hunt" remains over its traditional territories, the significance of the oral promise that "the same means of earning a livelihood would continue after the treaty as existed before it" would clearly be in question, and a potential action for treaty infringement, including the demand for a Spar- row justification, would be a legitimate First Nation response. [Emphasis in original.]

174 I accept, as did the chambers judge, the submission of the West Moberly that the appropriate standard of review in consultation cases for the Crown's assessment of the extent of its duty to consult is correctness, and that the appropriate standard of review for assessing the process adopted for a particular consultation and the results of that process is that of reasonableness.

175 The Crown properly conceded that in the circumstances it had a duty to consult meaningfully with West Moberly and accepted that it was required to accommodate the interests of West Moberly in a reasonable manner after balancing the interests of West Moberly with the interests of other First Nations and of the public. The scope of the required consultation must be considered before the extent of the necessary accommodation can be addressed.

176 Here, there was consultation between First Coal and West Moberly respecting the concerns raised by West Moberly, the MOE and the MOFR about the Burnt Pine caribou herd. At paras. 51 and 52 of his reasons, the chambers judge found:

... The prime concern of the West Moberly is the real potential for the extirpation of the Burnt Pine caribou herd. I conclude that at least since June of 2009, when the West Moberly presented a detailed report of the danger to that herd and its relationship to their treaty protected right to hunt, the Crown's failure to put in place an active plan for the protection and rehabilitation of the Burnt Pine herdis a failure to accommodate reasonably.

While First Coal's "Mitigation and Monitoring Plan" is a step in the direction of protecting critical caribou habitats, as the Crown itself stated in the "Considerations to Date" document of July 20, 2009, there is currently no rehabilitation program in effect for the Burnt Pine herd.

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[Emphasis added.]

177 As I have indicated above, the Burnt Pine caribou herd has been so decimated that the West Moberly have refrained from hunting its members for some 40 years. The project proposed by First Coal has been pursued only since June of 2005. In Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2010 SCC 43, [2010] 2 S.C.R. 650 (S.C.C.), at para. 79, the Supreme Court of Canada confirmed that a duty to consult a First Nation arises when there is:

(a) knowledge, actual or constructive, by the Crown of a potential Aboriginal claim or right,

(b) contemplated Crown conduct, and

178 In explaining factor (c) above, the Court stated that the potential adverse effect on an Aboriginal right must be causally linked to current Crown conduct, and not past events. At para. 49 the Court stated:

The question is whether there is a claim or right that potentially may be adversely impacted by the current government conduct or decision in question. Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right. This is not to say that there is no remedy for past and continuing breaches, including previous failures to consult. As noted in Haida Nation, a breach of the duty to consult may be remedied in various ways, including the awarding of damages. To trigger a fresh duty of consultation - the matter which is here at issue - a contemplated Crown action must put current claims and rights in jeopardy.

[Italic emphasis in original; underline emphasis added.]

179 In applying these factors, the Court went on to state at para. 83:

In my view, the Commission was correct in concluding that an underlying infringement in and of itself would not constitute an adverse impact giving rise to a duty to consult. As discussed above, the constitutional foundation of consultation articulated in Haida Nation is the potential for adverse impacts on Aboriginal interests of state-authorized developments. Consultation centres on how the resource is to be developed in a way that prevents irreversible harm to existing Aboriginal interests. Both parties must meet in good faith, in a balanced manner that reflects the honour of the Crown, to discuss development with a view to accommodation of the conflicting interests. Such a conversation is impossible where the resource has long since been altered and the present government conduct or decision does not have any further impact on the resource. The issue then is not consultation about the further development of the resource, but negotiation about compensation for its alteration without having properly consulted in the past.

180 What these passages demonstrate is that for the duty to consult to be triggered, the Crown's current proposed conduct must itself be causally linked to the potential adverse consequence affecting the Aboriginal right. It follows that where this test is met, the duty to accommodate should only be concerned with addressing the potential adverse affects of the current proposed Crown conduct, and not with remedying harm caused by past events. That is not to say, as the Court in Rio Tinto noted at para. 49 above, that past harms are without remedy, only that those harms are not properly addressed by way of consultation and accommodation undertaken in con-

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nection with current Crown conduct.

181 While I fully agree with the Chief Justice that "the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners' treaty right to hunt", I do not understand that the duty to accommodate, as explained in Rio Tinto, obliges the Crown to accommodate the effects of prior impacts upon the treaty rights of the West Moberly. Accommodation with respect to the prior decimation of the Burnt Pine caribou herd from events prior to the First Coal project is not required vis a vis the First Coal Project. Certainly the loss of the large numbers of caribou in the area in general, and the decimation of the Burnt Pine caribou herd in particular should inform the scope of the necessary consultation process, but cannot, in my view, justify an obligation on the part of the Crown to restore or augment the number of ungulates that have been reduced as a result of activities or events prior to 2005 when First Coal began seeking approval for its project.

182 The need for the rehabilitation of the Burnt Pine caribou herd arose from events prior to the 1970s when the herd was all but extirpated. The emphasis placed by the chambers judge upon the need for the rehabilitation of the Burnt Pine caribou herd cannot, in my view, be considered as an accommodation that arises from the project proposed by First Coal, and thus cannot be the basis for the order granted by the chambers judge. The protection of what remains of the Burnt Pine caribou herd is an appropriate matter to be considered when the accommodation of the treaty rights of the West Moberly is addressed.

183 At para. 59, the chambers judge concluded:

Because, as the Crown concedes, no recovery plan for the caribou is in place, I conclude this cannot be seen as a reasonable accommodation of West Moberly's concerns.

184 In my view, the chambers judge erred in law by conflating his consideration of the Crown's duty to consult with the West Moberly with what he considered to be a reasonable accommodation of the rights of the West Moberly. In terms of the Burnt Pine caribou herd, the consultation that the Crown needed to engage in with the West Moberly could properly include an historic perspective recognizing the depletion of the Burnt Pine caribou herd, but the need for rehabilitation and the increase of the herd were not appropriate accommodations arising from First Coal's proposed project.

185 I would therefore set aside the accommodation directed in para. 3 of the order of the chambers judge, as would the Chief Justice, but would do so because the requirement that the Crown put in place a reasonable, active plan for more than the protection of the Burnt Pine caribou herd goes beyond the scope of the duty of reasonable accommodation.

Garson J.A. (dissenting):

186 I have had the privilege of reading in draft form the reasons for judgment of the Chief Justice and the concurring reasons of Justice Hinkson. For the reasons that follow, and with the greatest respect, I reach a somewhat different conclusion than my colleagues and I would allow the appeal and dismiss the petition.

187 In his reasons for judgment, the Chief Justice has set out the facts and issues under appeal. I agree with the Chief Justice's reasons in respect to the first and second issues namely, whether judicial review is the appropriate procedure and whether the Crown improperly delegated duties to Ministerial assistants.

188 The Chief Justice described the fundamental issue on this appeal, as whether the Crown adequately

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consulted with the petitioners. I adopt for my analysis of this issue the framework generally set out in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 (S.C.C.):

• Did the Crown have a duty to consult, and if indicated, to accommodate West Moberly First Nations' ("WMFN") interests in hunting caribou?

• What was the scope and extent of that duty to consult and to accommodate WMFN?

• Did the Crown fulfill its duty to consult and to accommodate in this case?

Standard of Review

189 Before turning to the substantive analysis, I will briefly describe the standard by which the court should review the decisions of the statutory decision makers.

190 At para. 10 of his reasons, the chambers judge described the standard of review to be applied to his review of the statutory decision makers' decisions:

The appropriate standard of review for the Crown's assessment of the extent of its duty to consult is correctness. The appropriate standard of review for assessing the consultation process, including any accommodation measures, is that of reasonableness. The parties do not differ on these standards of review.

191 WMFN submits that the chambers judge correctly articulated the applicable standards of review. The First Nation says that both the consultation process and the result of that process were unreasonable in this case. I do not understand the other parties to disagree with the position of WMFN as to the applicability of the reasonableness standard. As this question is an important one to my analysis, I will elaborate on the application of this standard.

192 In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 (S.C.C.), at paras. 61-63, the Court explained the bifurcated standard to be applied to consultation decisions:

On questions of law, a decision-maker must generally be correct: for example, Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003 SCC 55. On questions of fact or mixed fact and law, on the other hand, a reviewing body may owe a degree of deference to the decision-maker. The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Paul, supra. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.

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The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action "viewed as a whole, ac- commodates the collective aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness. As stated in Nikal, supra, at para. 110, "in ... information and consultation the concept of reasonableness must come into play .... So long as every reasonable effort is made to inform and to consult, such efforts would suffice." The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty.

[Emphasis added.]

193 I agree with the dicta of Grauer J. in Brown v. Sunshine Coast Forest District (District Manager), 2008 BCSC 1642, [2009] 1 C.N.L.R. 110 (B.C. S.C.), where he summarized and applied Haida Nation at para. 34:

As mandated in the Haida case, supra, the extent of the duty to consult or accommodate is a question of law to be judged on the standard of correctness, although it is capable of becoming an issue of mixed law and fact to the extent that the appropriate standard becomes that of reasonableness. The adequacy of the consultation process is governed by a standard of reasonableness.

[Italic emphasis in original; underline emphasis added.]

194 In Little Salmon/Carmacks First Nation v. Yukon (Director, Agriculture Branch, Department of Energy, Mines & Resources), 2010 SCC 53, [2010] 3 S.C.R. 103 (S.C.C.), the Court appeared to adopt a higher standard of review in assessing the adequacy of consultation (at para. 48):

In exercising his discretion under the Yukon Lands Act and the Territorial Lands (Yukon) Act, the Director was required to respect legal and constitutional limits. In establishing those limits no deference is owed to the Director. The standard of review in that respect, including the adequacy of the consultation, is correctness. A decision maker who proceeds on the basis of inadequate consultation errs in law. Within the limits established by the law and the Constitution, however, the Director's decision should be reviewed on a standard of reasonableness: New Brunswick (Board of Management) v. Dunsmuir 2008 SCC 9, [2008] 1 S.C.R. 190, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. In other words, if there was adequate consultation, did the Director's decision to approve the Paulsen grant, having regard to all the relevant considerations, fall within the range of reasonable outcomes?

[Emphasis added.]

195 In my view, Beckman's adoption of a higher standard was attributable to the fact that the case concerned the construction of a modern, comprehensive treaty; a precise document negotiated by sophisticated and well resourced parties. In that case, the Crown argued that the treaty was a complete code and there was no obligation to consult beyond the treaty itself. I would therefore distinguish Beckman.

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196 Thus, I would apply a reasonableness standard to the question of the adequacy of the consultation where the historical treaty does not provide the degree of specificity necessary to ascertain the "correct" process.

197 As was held in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2010 SCC 43, [2010] 2 S.C.R. 650 (S.C.C.), at para. 74, "[c]onsultation itself is not a question of law, but a distinct constitutional process requiring powers to effect compromise and do whatever is necessary to achieve reconciliation of divergent Crown and Aboriginal interests". Compromise is a difficult, if not impossible, thing to assess on a correctness standard.

198 In summary, the Crown's determination of the scope and extent of its duty to consult must be assessed on a correctness standard. But the third Taku question, as to the adequacy of the consultation and the outcome of the process, must be assessed on a reasonableness standard as those questions are either questions of fact or mixed fact and law. The consultation process must also meet the administrative law standards of procedural fairness.

Did the Crown have a duty to consult and, if indicated, to accommodate WMFN's interests in hunting caribou?

199 Chief Justice McLachlin said in Taku at para. 25, "The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them."

200 McLachlin C.J. went on to describe the constituent elements of this test in Rio Tinto at para. 31: (1) the Crown's knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

201 In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 (S.C.C.) at para. 34, Binnie J., speaking for the Court, applied the Taku test to a treaty right. He framed the question of the adequacy of consultation in slightly different language when he said:

In the case of a treaty the Crown, as a party, will always have notice of its contents. The question in each case will therefore be to determine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult. ...

[Emphasis added.]

202 Under s. 35 of the Constitution Act, 1982, treaty rights have the same constitutional status as Aboriginal rights: Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, 64 B.C.L.R. (3d) 206 (B.C. C.A.), at para. 127.

203 In this case, the Crown accepted that it had a duty to consult arising from the applications for mining permits made by First Coal. In the July 20, 2009, "Considerations to Date" document, prepared by the Ministry of Energy Mines and Petroleum Resources (MEMPR) as part of its consultation with WMFN, the statutory decision maker described the "Impact of the Project on Aboriginal Interests" in the following way:

The four T8 FNs have treaty rights within the Central South Property. More specifically they have the right to use the land to support their way of life and their usual vocations of hunting, trapping and fishing. The potential habitat destruction, displacement from core ranges, and increased access leading to disturbance,

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poaching and excessive predation could potentially impact the Burnt-Pine Caribou Herd. However, there is no projected impact on the four T8 FNs hunting rights of other species such as moose, elk and deer.

204 In the same document the statutory decision maker recorded that MEMPR had proceeded with consultation towards the deeper end of the consultation spectrum in recognition of WMFN's stated interest in hunting caribou.

205 Thus, the first of the Taku questions may be answered affirmatively. The treaty right at issue, the right to use the land to support WMFN's way of life and usual vocation of hunting, was assumed by the Crown, for the purposes of consultation, to include the Burnt Pine caribou herd.

What was the scope and extent of the duty to consult and to accommodate WMFN?

206 In this case, the second Taku question involves an examination of the following:

(i) the degree to which the treaty right to hunt would be adversely affected by the impact on the specific herd;

(ii) in assessing the degree to which the treaty right to hunt would be impacted, are past wrongs, cumulative effects and potential future impacts of an operational mine (if developed) relevant, or should the consultation be confined to adverse impacts directly attributable to the permits in question; and,

(iii) in assessing the degree to which the treaty right to hunt would be impacted, should the Treaty be interpreted in its historical context only, or should the correct interpretation include a modern context.

207 In responding to issues raised by WMFN in the consultation process, the statutory decision makers considered these questions either implicitly or explicitly. In their decisions they described their interpretation of the treaty right in question in relation to the permits being applied for.

(i) The degree to which the treaty right to hunt would be adversely affected by the impact on the specific herd

208 The chambers judge found at para. 63 that the "Treaty protected right is the right ... to hunt caribou in the traditional seasonal round in the territory [affected] by the First Coal Operation".

209 The Crown argues that the "right" is a general right to hunt. The Crown maintains that this right is not species nor herd specific.

210 Treaty 8 describes the right in general terms. It provides:

And Her Majesty the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered ...

211 The Crown argues that the judge erred in narrowly focussing his analysis on this one herd of caribou. In its factum, the Crown submits that it is an error to declare a treaty right to "a microcosm of hunting rights". Rather the Crown says a proper interpretation of treaty rights should involve a "macro-level" analysis. In support of this argument the Crown says that the following facts are important:

a) WMFN is a sub-group of the original collective that adhered to Treaty 8 in 1910;

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b) WMFN's ancestors hunted a wide variety of ungulates, including bison, moose and caribou, when and where available;

c) WMFN do not now and have not, since at least the early 1970s hunted caribou at all;

d) WMFN do not follow a traditional seasonal round due to participation in the regional economy;

d) WMFN wish to hunt in a location that is convenient to their current lifestyle, given their participation in the regional economy; and

e) WMFN are only one of several Treaty 8 First Nations with interests in the area in question.

212 The Crown argues in this appeal that all the consultation between the Crown, First Coal and WMFN was "for nought, as the only accommodation, in the Court's eyes, at the chambers hearing, that could make the outcome, and therefore the process itself, reasonable, was a Burnt Pine caribou herd augmentation plan". The Crown contends that the chambers judge erred in focussing on the result rather than the process.

213 WMFN says, in reliance on Mikisew, that the Court must look not only at the broad contours of the treaty right, the "right to pursue their usual vocation of hunting" but also the rights necessarily included for its meaningful exercise. They argue that the chambers judge "did not find that Treaty No. 8 provides a blanket of protection over any and every species within the Treaty territory. Instead, he found that for [WMFN's] harvesting rights to be meaningful, they must necessarily include the right to hunt according to the traditional seasonal round".

214 There has been some judicial commentary, in both treaty rights cases and Aboriginal rights cases, on this question of whether hunting, fishing, and trapping rights pertain to a specific species. I recognize that in this case the asserted treaty right is alleged to include a specific herd, as there are other caribou herds which would be unaffected by the granting of approval for First Coal's applications for mining permits, but it is convenient to compare the analysis of cases concerning alleged "species specific" rights to the rights asserted here by WMFN.

215 In R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 (S.C.C.), the accused, a Metis, was charged with hunting a moose without a license. He claimed that he had an Aboriginal right to hunt for food. At para. 20, the Court characterized the relevant right not as the right "...to hunt moosebut to hunt for food in the designated territory" (emphasis in original).

216 In R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686 (S.C.C.) at para. 21, Aboriginal rights were described as generally founded upon practices, customs, or traditions rather than a right to a particular species or resource. Although in some cases the practice, by its very nature, will refer only to one species as was found in Lax Kw'alaams Indian Band v. Canada (Attorney General), 2009 BCCA 593, [2010] 1 C.N.L.R. 278 (B.C. C.A.), at paras. 35 and 38 (trade in eulachon grease) and in R. v. Gladstone, [1996] 2 S.C.R. 723 (S.C.C.) (sale of herring spawn on kelp).

217 In the context of treaty rights, R. v. Lefthand, 2007 ABCA 206, [2007] 4 C.N.L.R. 281 (Alta. C.A.), leave to appeal ref'd [2008] 1 S.C.R. x (note) (S.C.C.), Slatter J.A. proposed a functional approach to the right to hunt at para. 88:

... A rule that no longer protects its very objective is obsolete. The modern test should be functional: it should focus on the "for food" aspect of the "right to hunt". The focus should be on (a) ensuring that there is

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some suitable, ample, and reasonably accessible source of food available at all times of the year, especially at, but not limited to, a subsistence level, and (b) recognizing that the right to hunt for food is a communal, multi-generational right that must be protected in the long term, and thus must be managed.

And at para. 91:

Likewise, seasonal and species limitations may be justified, depending on the extent of the precise aboriginal right in question... Being able to hunt and fish "year round" just means that there will always be food available, not that there is a right to harvest every species at all times. Many aboriginal people had seasonal diets: fish at some times, eggs at others, berries at others, mammals at others, birds at others, etc... For example, a ban on hunting mountain goats is justified if there is evidence that there are ample mule deer around to meet the aboriginal need for food.

218 I conclude from these authorities, and from the language of the Treaty itself, quoted above, that the treaty right in question is not a specific right to hunt the Burnt Pine caribou herd, but rather that it affords protection to the activity of hunting. Thus, in my respectful opinion, the chambers judge erred when he characterized the treaty protected right as the right to hunt caribou.

219 In this case, one of the statutory decision makers, Mr. Hans Anderssen, of MEMPR, in correspondence that predated his September 4, 2009 Rationale for Decision, characterized WMFN's right as the right "to maintain a meaningful right to hunt wildlife generally within their traditional territory". In his August 8, 2009 letter, he provided a thorough explanation of the basis for his conclusion that the treaty right in question was not species specific. After referring to the cases of Xeni Gwet'in First Nations v. British Columbia, 2007 BCSC 1700, [2008] 1 C.N.L.R. 112 (B.C. S.C.) [William], Powley, Sappier, Gray and Mikisew he concluded that:

As set out in the Mikisew case, when there are established Treaty rights, the content of the Crown's duty to consult is to be determined by "the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult" (at para. 34). In accordance with our understanding of the nature of the Treaty 8 right to hunt, and the Crown's right to take up lands for mining purposes, we have assessed the potential impact of the proposed activity on the treaty right by considering whether the WMFN will have a meaningful right to hunt wildlife generally within WMFN's traditional territory, which may include any caribou that occur in that area. We acknowledge that the exploration and bulk sample activities as originally proposed had the potential to significantly impact the Burnt-Pine Caribou herd, a herd which has been identified as threatened under the federal Species at Risk Act. However, in light of the fact that the WMFN are able to maintain a meaningful right to hunt wildlife generally within their traditional territory such as deer, moose and elk, and the fact that there are nine other herds of Caribou within WMFN's traditional territory (totalling 1599 animals), we do not consider that WMFN's treaty right to hunt will be infringed by the approval of the proposed mining activity. The scope of consultation required in these circumstances would appear to be in the low to moderate range.

However, given the significance of this herd, WMFN's concerns regarding this herd and the impacts to its established treaty right to hunt, and the information received from biologists within MOE and MOFR regarding the severity of the potential impacts to the herd, MEMPR has engaged at the deeper end of the Haida consultation spectrum. MEMPR has worked closely with the proponent, First Coal Corporation, in making significant changes to the original proposed activity to impact the Burnt-Pine Caribou habitat as little as possible.

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[Emphasis in original.]

220 In his October 8, 2009, Rationale for Approval for Occupant Licenses to Cut, the statutory decision maker, Mr. Dale Morgan of the Ministry of Forests and Range (MOFR) described the treaty right in question in a similar way. He wrote, "I would summarize my opinion; on the right to hunt as the right is 'global' in nature and does not imply that there is a right to a specific animal or species."

221 There is undisputed evidence of the importance to WMFN of caribou, for a variety of purposes.

222 According to Mikisew at para. 34, the statutory decision makers were obliged to consider the degree to which the conduct contemplated by the Crown might adversely affect WMFN's treaty right to hunt. As I concluded above, the right in question is a general right to hunt. That bundle of rights includes the right to participate in various hunting activities and the right to hunt many species. The impact of the contemplated Crown permits on this treaty right may have been minor, modest, significant, serious, or none at all. In assessing the degree to which the permits, if granted, might impact the general right to hunt, it was entirely appropriate for the statutory decision makers to have taken into account, as they did, the abundance of other ungulates, the proportion of caribou territory impacted by the contemplated permits, and the presence of other larger herds of caribou in the area.

223 The chambers judge concluded that the Crown failed to reasonably accommodate WMFN's "prime concern about the violation of its treaty right to hunt caribou" (reasons at para. 64). This narrow characterization of the right in question led the chambers judge to find that the impact of the immediate permit approvals was significant and required more in the way of accommodation. In my view, inclusion of rights to a particular species or herd within the right to hunt does not translate into an absolute guarantee to hunt that species or herd. The statutory decision makers properly considered the impact of First Coal's proposed activities on the Burnt Pine caribou herd within the broader context of the Treaty 8 right to hunt.

(ii) Past wrongs, cumulative effects, and future impacts

224 Is it appropriate to consider past wrongs, cumulative effects, or future impacts on the Aboriginal right in question or should the consultation focus only on the effect of the particular decision?

225 The chambers judge described the threatened state of the Burnt Pine caribou herd in the following passage:

[17] The evidence discloses that the caribou were a source of food, and that caribou hide, bone, and antlers were important to the manufacturing of a number of items both for cultural and practical reasons. However, the evidence also discloses that due to the decline in the caribou population, which the petitioners claim is the result of incremental development in the area, including the construction of the WAC Bennett and Peace Cannon Dams in the 1960s and 1970s, and the creation of large lakes behind those dams, West Moberly's right to carry on their traditional harvesting practice has been diminished.

[18] In particular, the petitioners say that the population of caribou in the area of First Coal's operations has been decimated. They point to the fact that the relevant southern mountain population of caribou has been listed, pursuant to the Species at Risk Act, S.C. 2002, c. 29, as "threatened". The material filed shows the specific herd, the Burnt-Pine herd, has been reduced to a population of 11.

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226 And at para. 22 of his reasons for judgment, the chambers judge considered the comments of a wildlife ecologist, Dr. Dale Seip, who noted the potential for the complete eradication of the Burnt Pine herd if the project one day became an operational mine. In a September 25, 2008 letter, Dr. Seip said:

227 There were three decisions under review by the chambers judge: the amendment to the existing permit to reduce the bulk sample from 100,000 to 50,000; the amendment to the existing permit approving a 173 drill hole, five trench, advanced exploration program; and the associated licences to cut and clear up to 41 hectares of land to facilitate the advanced exploration (and to replace the "spine road" that was being reclaimed).

228 First Coal notes in its factum that "[w]hile there are many permits and stages a proponent such as First Coal must go through before advancing to the stage of an operating mine, the current decisions ... are the only decisions for which the potential adverse impact can be considered." The thrust of First Coal's submission is that the remedy ordered by the chambers judge responds to WMFN's demand that the Crown implement a plan to both preserve and augment the herd, but that that remedy is essentially redressing past wrongs and cumulative impacts. Similarly any consideration of the impact of a future mine are, according to First Coal, outside the scope of considerations of these statutory decision makers. First Coal notes that before a permit is granted for an operational mine there will be a full environmental review: see Environmental Assessment Act, S.B.C. 2002, c. 43, s. 8 and Reviewable Project Regulations, B.C. Reg. 370/2002, Part 3 - Mine Mine Projects. First Coal em- phasizes that the decision makers were mandated to consider three very limited permit applications, one of which actually reduced the impact of First Coal's activities from what was first contemplated under the application.

229 Mr. Devlin for WMFN contended in oral argument that the statutory decision makers erred in holding that cumulative impacts were not relevant. He argues that the cumulative impacts of development in WMFN's treaty protected hunting areas have resulted in fragmentation and decimation of the Burnt Pine caribou herd. He says that the present state of the herd was a proper consideration for the decision makers. In other words, as I understand the First Nations' argument, the permits are part of an incremental process that has resulted in the present, threatened state of the herd, and that incremental context was something the statutory decision makers were obliged to consider. The grant of these permits, it is argued, might be the tipping point in terms of the life of the herd and possible extirpation of the herd is a new adverse impact which expands the scope of the duty to consult.

230 The decision makers and their advisors responded to WMFN's concerns regarding a possible full mining operation and cumulative impacts to the herd.

231 In his August 8, 2009 letter to WMFN, Mr. Anderssen of MEMPR stated:

It is only if the exploration stage is successful in delineating an economic resource that a decision is made by the company to proceed to a Mines Act mine application (and if the project exceeds a certain threshold an Environmental Assessment Certificate would be required). MEMPR is committed to consulting with the WMFN should that occur and accommodate where appropriate.

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232 In the "Considerations to Date" document dated July 20, 2009, Mr. Anderssen responded to WMFN's initial submission titled "I Want To Eat Caribou Before I Die". He noted:

A decision on the present application does not authorize full scale mining activity on the Central South Property. Any proposal to move towards an operating mine by [First Coal] will be subject to further assessment and review through the Environmental Assessment (EA) process. ... The impacts of the mining exploration and bulk sample activities are measured on the merits and impacts of the proposed activity alone and not potential future activities of greater impact.

233 Mr. Anderssen recognized the fragile state of the Burnt Pine caribou herd in the same document where he commented that even without further development, and quite apart from further development, the herd required a recovery plan.

234 While he acknowledged that the issue of cumulative impacts had been raised by WMFN, Mr. An- derssen declined to consider such impacts. He noted that cumulative impacts were "beyond the scope of the review" he was conducting, that the project had a "relatively small footprint" when compared to other activities in WMFN's traditional territory, and that WMFN's right to hunt caribou would "not be significantly reduced" by First Coal's proposed activities. Finally, Mr. Anderssen stated that the appropriate venue for assessing cumulative impacts was the Economic Benefits Agreement ("EBA") process, which MEMPR was "committed to facilitating and/or participating in".

235 In Rio Tinto the question of past wrongs and cumulative impacts was considered by the Court under the rubric of the first Taku question - whether a duty to consult arises. (Because in this case the appellants acknowledge that a duty to consult does arise, this question becomes more relevant to the second Taku question concerning the scope and extent of the duty.)

236 Rio Tinto involved an application for approval of the sale of excess power generated by a hydro electric dam. The dam, which was constructed in the 1950s had diverted water from the Nechako River. The diversion impacted the First Nations' fishery in that river. The First Nations were not consulted at the time. Those same First Nations sought consultation within the 2007 process to approve the sale of excess power produced by the dam. The Chief Justice speaking for the Supreme Court of Canada held at para. 49:

And at paras. 53-54 she continued:

... [Haida Nation] confines the duty to consult to adverse impacts flowing from the specific Crown proposal at issue - not to larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights of the current decision under consideration.

The argument for a broader duty to consult invokes the logic of the fruit of the poisoned tree - an evidentiary doctrine that holds that past wrongs preclude the Crown from subsequently benefiting from them. Thus, it is suggested that the failure to consult with the CSTC First Nations on the initial dam and water diversion project prevents any further development of that resource without consulting on the entirety of the

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resource and its management. Yet, as Haida Nation pointed out, the failure to consult gives rise to a variety of remedies, including damages. An order compelling consultation is only appropriate where the proposed Crown conduct, immediate or prospective, may adversely impact on established or claimed rights. Absent this, other remedies may be more appropriate.

237 Rio Tinto is distinguishable from this case because in Rio Tinto there was a finding that the sale of excess power would have no adverse effect on the Nechako River fishery. Here, there is a link between the adverse impacts under review and the "past wrongs". However, Rio Tinto is applicable for the more general proposition that there must be a causative relationship between the proposed government conduct and the alleged threat to the species from that conduct. It is fair to say that decisions, such as those under review in this case, are not made in a vacuum. Their impact on Aboriginal rights will necessarily depend on what happened in the past and what will likely happen in the future. Here it could not be ignored that this caribou herd was fragile and vulnerable to any further incursions by development in its habitat. Thus, although past impacts were not specifically "reeled" into the consultation process, neither could the result of past incursions into caribou habitat be ignored.

238 However, Mr. Devlin, for WMFN, noted in his oral submissions that this is not a "taking up" case because the land had already been taken up for mining purposes. As I understood his submissions, he meant that the taking up occurred when the original mining permits were granted in 2005. He said that WMFN were not contesting the original permits. This statement belies the contention that the statutory decision makers ought to have taken into account the fact that earlier Crown authorized activity had, at least in part, caused the present decimated state of the Burnt Pine caribou herd, thus the need for an augmentation or recovery plan to restore the health of the herd. The need for a recovery plan arose from past development and, thus, would not be a consequence of the permits under consideration.

239 In my view the statutory decision makers could not, and did not, ignore the fragile threatened state of the Burnt Pine caribou herd in defining the scope and extent of consultations. Those consultations proceeded on the basis that further incursions into the habitat of the caribou might result in extirpation of the herd. The decision makers drew the line at implementing a recovery plan because the need for recovery did not emanate from, or was not causally related to, the permits sought. I am of the view that the decision makers were correct in their understanding of this aspect of the scope and extent of the Crown's consultation obligations. Similarly, consideration of the impact of a possible full-scale mining operation on the herd would be the subject of a full environmental review, and was beyond the scope of these decision makers' mandate (Rio Tinto at para. 53).

240 Practically speaking the decision makers did not have an application for a full mining operation before them. Since its inception in 2005, the project scope had shifted from a small, open-pit concept to a combined, trenching/underground system. Subsequent exploration would utilize an experimental technology that might or might not prove viable. Based on this background, it was certainly possible that the nature of the project would change once again, or that development might not proceed beyond the exploration phase at all. It was not wrong for the decision makers to limit their inquiry to the adverse effects of the permits under review, and decline to consider possible future scenarios on a hypothetical basis.

(iii) Historical or modern Treaty interpretation and taking up provisions of the Treaty

241 I conclude from my review of the authorities on this point that the promises made under Treaty 8 must be interpreted within their historical context. But it is only logical to consider the degree to which government action adversely impacts those promises in light of modern realities. The manner in which the First Nations

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treaty rights are exercised is not frozen in time: R. v. Vanderpeet, [1996] 2 S.C.R. 507 (S.C.C.) at para. 132. Nor can an assessment of the degree to which government conduct impacts the exercise of those rights ignore the modern day economic and cultural environment.

242 The objective of the numbered treaties, and Treaty 8 specifically, was to facilitate the settlement and development of the West. However, it is clear that for the Indians the guarantee that hunting, fishing and trapping rights would continue was the essential element which led to their signing: R. v. Badger [1996 Carswel- lAlta 587 (S.C.C.)] at para. 39.

243 In recognition of this objective, Treaty 8 recites: "the said Indians have been notified and informed by Her Majesty's said Commission that it is Her desire to open for settlement, immigration, trade, travel, mining, lumbering and such other purposes as to Her Majesty may seem meet". The First Nations own oral histories indicate their understanding that some land would be taken up and occupied in a way which precluded hunting when it was put to a visible use that was incompatible with hunting: R. v. Badger at para. 58.

244 In Mikisew, Binnie J. describes an "uneasy tension between the First Nations essential demand that they continue to be as free to live off the land after the treaty as before and the Crown's expectation of increasing numbers of non-Aboriginal people moving into the surrendered territory" (at para. 25).

245 While the treaty guaranteed certain rights, it did not promise continuity of nineteenth century patterns of land use (Mikisew at para. 27):

... none of the parties in 1899 expected that Treaty 8 constituted a finished land use blueprint. Treaty 8 signalled the advancing dawn of a period of transition. The key, as the Commissioners pointed out, was to "explain the relations" that would govern future interaction "and thus prevent any trouble"...

246 The actual balancing of these competing interests, informed by a correct understanding of the interpretation of the Treaty, is part of the task of the statutory decision makers.

247 In the "Considerations to Date" document, Mr. Anderssen provided his interpretation of Treaty 8. He said:

Treaty 8 sets out the right of the signatory First Nations "to pursue their usual vocation of hunting, trapping and fishing through the tract surrendered ..." Aboriginal rights and title to lands were surrendered in exchange for these Treaty rights and other benefits set out in the treaty (such as entitlement to specified quantum of land for reserves). Treaty 8 rights to hunt, trap and fish are subject to express limitations set out in Treaty 8. Specifically, these rights are "subject to such regulations as may from time to time be made by the government of the country...". In addition, the Crown maintained the authority to take up land "from time to time for settlement, mining, lumbering, trading or other purposes." [Emphasis in original.]

248 In Mikisew, the Crown took an unreasonable position that express limitations to the Treaty 8 right to hunt removed its duty to consult as it related to a particular taking up. Here, the statutory decision makers acknowledged the importance of caribou to WMFN and, in light of this, they approached consultation toward the deeper end of the spectrum. The fact that the "taking up" had already occurred and the decimated state of the Burnt Pine caribou herd was not causally related to the permits under consideration did not prevent MEMPR from engaging directly with WMFN to address their concerns.

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249 The statutory decision makers were entitled to, and did, balance the competing interests in the context of a modern culture and environment. In my view this is a correct interpretation of the Treaty in question. This interpretation informed the consultations and the statutory decision makers' assessment of the adequacy of consultation. iv. Conclusion on the second Taku question

250 The second Taku question - as to the scope and extent of the duty to consult and to accommodate WM- FN - was was in my view considered correctly by the statutory decision makers. They correctly interpreted the Treaty in respect to the important factors: the contours of the right to hunt; the context in which the Treaty was signed and in which it operates today; and the relevance of past Crown conduct and future potential development.

251 In his review of the decisions of the statutory decision makers, the chambers judge found, as noted above, that the treaty protected right was the right to hunt caribou in the territory affected by First Coal's operation. He did not otherwise explicitly address the question of the scope and extent of the duty to consult, and if indicated, accommodate. That is, he did not explicitly discuss the questions of whether past wrongs, cumulative effects and future impacts were matters that factored into the scope and extent of the duty to consult. But implicit in his conclusion, that the Crown's refusal to put in place a rehabilitation plan for the Burnt Pine caribou herd amounted to a failure to reasonably accommodate, is a finding that the statutory decision makers were bound to consider past wrongs, cumulative effects and future development, because the near extirpation of the herd that had occurred could not have been caused by the prospective granting of the permits in issue in this case. In my view, the chambers judge erred in construing the Crown's duty to consult and accommodate so broadly.

Did the Crown fulfill its duty to consult and accommodate in this case?

252 As noted at the outset of these reasons, the third question - whether the consultation and accommodation measures were adequate - should be reviewed on a standard of reasonableness. The reasonableness standard was defined in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para. 47. Bastarache and LeBel JJ. speaking for the majority held that the decision under review must fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law":

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

253 The chambers judge determined that the consultation in this case was not sufficiently meaningful and that the Crown's failure to put in place a protection and rehabilitation plan for the Burnt Pine caribou herd rendered the accommodation unreasonable.

254 Section 35(1) of the Constitution Act, 1982 dictates that "the Crown must act honourably, in accordance

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with its historical and future relationship with the Aboriginal peoples in question": Taku at para. 24.

255 The judgment in Mikisew reminds us that, "[t]he fundamental objective of the modern law of Aborigin- al and treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions" (at para. 1).

256 In Taku, the Chief Justice said (at para. 2):

... Where consultation is meaningful, there is no ultimate duty to reach agreement. Rather, accommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns. Compromise is inherent to the reconciliation process...

[See also Haida Nation at para. 50.]

257 And as Binnie J. noted in Beckman, at para. 84: "Somebody has to bring consultation to an end and to weigh up the respective interests ... The Director is the person with the delegated authority to make the decision whether to approve a grant ... The purpose of the consultation was to ensure that the Director's decision was properly informed" (emphasis in original).

258 In Taku the Supreme Court of Canada reviewed the consultation that had occurred in that case and found it adequate. I find it helpful to compare the consultation in Taku to that in the case at bar. (Recognizing that the Aboriginal right in that case was asserted, but yet unproven; I consider that this distinguishing feature is not particularly important because the Aboriginal rights claim in Taku was relatively strong and the potential negative impact of the contemplated Crown conduct was significant.)

259 The consultation process in Taku took place over three and one-half years. The First Nation was invited to, and did, participate in a committee to review the project at issue, the reopening of an abandoned mine. The project sponsor, Redfern, met several times with the First Nation to discuss the project and its concerns about the impact of the project. Redfern engaged an independent consultant to conduct archaeological and ethnographic studies to identify possible effects of the project. Financial assistance was provided to the First Nation to enable it to participate in meetings.

260 I note the following features of the consultation which took place in Taku:

• The process of project approval ended more hastily than it began. Nonetheless, the Court concluded that the consultation provided by the Province was adequate (para. 39);

• In the opinion of the decision maker, by the time the assessment was concluded, the positions of all the Project Committee members, including the affected First Nation, had crystallized (para. 41);

• The concerns of the First Nation were well understood and reflected in the Recommendations Report (para. 41);

• Mitigation strategies were adopted in the terms and conditions of certification (para. 44);

• Project approval certification was simply one stage in the process by which development moved forward. The First Nation would have further opportunity for input and accommodation at subsequent stages (paras.

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45-46);

• The Project Committee concluded that some outstanding First Nation concerns could be more effectively considered at later stages or at the broader stage of land use strategy planning (para. 46).

261 In my view, the consultation in the present case was comparable to that undertaken in Taku in all of the above-mentioned respects.

262 I turn now to examine the consultation that took place in this case in order to determine if that consultation was adequate, bearing in mind that it is not the task of this Court nor the court below to substitute its own view for that of the decision makers.

263 The evidentiary record that was before the chambers judge discloses an extensive record of consultation. As the chambers judge found, the Crown was entitled to delegate some of the procedural aspects of consultation to First Coal; however, the "ultimate legal responsibility for consultation and accommodation rests with the Crown" (Haida Nation at para. 53).

264 The consultation process was managed on behalf of First Coal by Debra Stokes, Director of Environ- ment for First Coal. Since about January 2008, she has devoted a "significant amount of [her] time" to working with First Nations in connection with the consultation process related to these applications. She consulted all Treaty 8 First Nations including WMFN. Ultimately she identified four First Nations with an interest in consultation concerning First Coal's applications. She deposed that of those four, two entered into memoranda of understanding to govern their ongoing relationship with First Coal and a third First Nation was engaged in negotiations in connection with such a memorandum. Those agreements included economic opportunities for the First Nations. Ms. Stokes indicated that to date WMFN had declined to enter into a memorandum. She said that she became aware of WMFN's opposition to the First Coal project because of concerns related to caribou on June 13, 2008. She noted that she was aware that caribou had much earlier been identified by First Coal as requiring special attention as it developed the project.

265 First Coal provided funding in Sept 2008 to purchase radio collars to help with the long term monitoring of the caribou. First Coal also retained an independent wildlife biologist to develop a detailed plan to address the concerns raised by WMFN over the potential impact of the project on the caribou. The first iteration of the Caribou Mitigation and Monitoring Plan ("CMMP") was developed in October 2008 and that document was subject to several revisions to address concerns of the Crown and WMFN before it was finalized on May 1, 2009. Ms. Stokes recounted the numerous meetings with WMFN. She also deposed to the fact that environmental site managers were on site 24 hours a day, 7 days a week during construction to monitor implementation of the CM- MP.

266 The mitigation and monitoring requirements under the CMMP include, but are not limited to the following:

• short term monitoring including an incidental observation program, a winter monthly aerial survey program, a series of ground tracking surveys, noise level monitoring, and monitoring of reclamation efforts;

• long-term caribou monitoring and research using GPS radio collars;

• reclamation of the areas affected by First Coal's mining activities with a particular focus on maximizing

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caribou foraging habitat and minimizing habitat for predators;

• avoidance of work in core range areas during seasons when caribou are present;

• immediate cessation of activities upon sight of caribou;

• increased security as well as access, use, and speed restrictions;

• education and awareness programs for employees and visitors; and

• establishment of a "Burnt-Pine Caribou Task Force" in conjunction with the local First Nations and reporting of results and suggestions to regulators.

267 The consultation record discloses that WMFN has been involved in consultation since about 2005 on the earlier First Coal Notices of Work related to the same project, not the subject of this judicial review. Of relevance to these particular permits, the Crown consultation record documents communications commencing on May 14, 2008, onward, involving all stakeholders, including WMFN, the Crown, and First Coal. In July 2008, the proposed ADDCAR system was explained to those interested stakeholders at a meeting. Wildlife biologists were an integral part of all the significant consultations. The reports of the Crown biologists were provided to WMFN, throughout the consultation process. In October 2008, First Coal committed to modifying the project to avoid the windswept areas so critical to the caribou. The Spine Road reclamation plan was discussed at numerous meetings. The Spine Road had been built in an area that was windswept.

268 In December 2008, WMFN complained about the lack of meaningful consultation.

269 In January 2009, a meeting was attended by representative of WMFN to discuss the first Draft CMMP.

270 In February 2009, WMFN expressed concerns about the lack of time they had been given to respond to the CMMP. Their legal counsel became involved on February 4, 2009. He explained WMFN's concerns about caribou habitat. In subsequent correspondence WMFN also expressed concern about the Spine Road work, done without permits.

271 In the ensuing months, numerous meetings were conducted and information was exchanged. On June 23, 2009, WMFN submitted their document "I want to Eat Caribou Before I Die", detailing the historical importance of caribou to the First Nations as well as the threat to the caribou posed by the First Coal project.

272 On July 20, 2009, MEMPR released its "Considerations to Date" document. In the covering letter to WMFN, Mr. Anderssen explained that the purpose of the document was to "provide ... the 'Considerations to Date' that represent the information that [MEMPR] is currently considering in regards to ... [the] proposed 50,000 tonne Bulk Sample application and the proposed 173 drill hole advanced exploration application ...". He also noted that Section 7.0 of the document responded to the issues raised by WMFN's initial submissions contained in the document, "I want to Eat Caribou Before I Die". Lastly he noted that a meeting was scheduled for August 5, 2009.

273 The document notes that MEMPR had been engaged in consultations with the four affected Treaty 8 First Nations for over four years. Six face-to-face consultation meetings had taken place between Sept 2008 and July 2009. After summarizing MEMPR's understanding of the importance of caribou as gleaned from WMFN's initial submissions, the document attempts to quantify the adverse effects of First Coal's applications on caribou

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generally and on WMFN's treaty right specifically. It notes that there are nine herds of caribou in WMFN's traditional territory, totalling approximately 1599 animals. The affected Burnt Pine Herd consists of 11 animals and represents 0.69% of the caribou population in WMFN's traditional territory. Based on this, the document concludes that "the opportunity for WMFN to hunt and trap caribou in their traditional territory will not be significantly reduced".

274 The document notes the possible extirpation of the Burnt Pine caribou herd, relying on the comments of Mr. Pierre Johnstone of the Ministry of Environment. Until recently, the Burnt Pine herd was considered to be part of the larger, Moberly Herd. In Mr. Johnstone's opinion, fragmentation of this sort "may be an early sign of extirpation". One of the accommodation measures sought by WMFN was a recovery plan for the Burnt Pine caribou herd. The "Considerations to Date" document states that it is generally recognized that even without further development, and regardless of whether mining activity occurs in the area, a recovery plan would be necessary to maintain or increase herd numbers. However, presumably for fiscally-related reasons, the Crown did not currently have a recovery plan in place for the Burnt Pine herd.

275 WMFN also requested that the Crown engage in land use planning. The document states that this request is met by the Economic Benefits Agreement, to which WMFN is a party, and for which extensive funding had been provided to WMFN. MEMPR's understanding was that the EBA provided a mechanism for addressing WMFN's concerns regarding cumulative impacts and efforts to recover caribou populations. First Coal's proposed "Caribou Task Force" was seen as another venue in which these issues could be addressed on an ongoing basis.

276 The document goes on to list the accommodation measures proposed by WMFN and the measures taken or proposed by MEMPR:

Accommodation Measures proposed by WMFN

The following are drawn from statements from the Initial Submissions that could be considered as proposed accommodation measures.

• Accommodation should include rejection of First Coal's application;

• WMFN should be given the opportunity to participate in the decision making process;

• Consultation as a form of accommodation;

• Recovery of the Burnt-Pine Caribou Herd; and

• Re-location of First Coal's activities.

Accommodation Measures Taken or Proposed by MEMPR

• Consultation at the higher end of the spectrum;

• Application of the CMMP;

• Reduction of the Bulk Sample permit by 50%;

• Closure of the Spine Road;

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• Use of ADDCAR system;

• Consideration of WMFN's extensive input including the Initial Submissions in the decision making process;

• Through promotion, facilitation and participation in planning processes flowing from the EBA as well as through the Caribou Task Force, MEMPR will work towards addressing the issues of:

• cumulative impacts;

• a Caribou Recovery Plan;

• land use planning; and

• the location of First Coal and other companies activities.

277 The "Considerations to Date" document contains no decisions by the lead Ministry, MEMPR, but it chronicles the consultation process, the technical information, and the positions so far taken by the Ministry and the First Nations in respect to the approval process and accommodations. It notes that WMFN proposed that First Coal's applications be rejected and that WMFN's input would be considered in the decision making process.

278 Meetings took place on August 5 and 12, 2009. A lengthy letter hand-delivered to the Ministry representatives, expresses the frustration of WMFN at what they saw as intransigence in the position of the Ministries involved. The letter illustrates that the consultation had come to the point where the positions of the parties had crystallized. On the one hand, the WMFN characterized their treaty right as specifically protecting the right to hunt the Burnt Pine caribou herd; they complained that the Ministry failed to examine impacts from prior activities; and, they expressed concern that, despite the Crown's recognition that the herd may face extirpation, there was no recovery plan in place. WMFN concluded that First Coal's applications should be rejected and its operation re-located, and that "a real recovery plan" should be implemented, as well as legal protection for the Burnt Pine caribou herd. On the other hand, the Ministry maintained that the scope and extent of consultations were limited and that WMFN's treaty right to hunt was not significantly impacted, as I have previously discussed.

279 In his affidavit, Chief Roland Willson describes the final consultation meeting of August 12, 2009:

94. We also voiced concerns that MEMPR had not told us how they would weigh our interests with the competing interest of others when making decisions on First Coal's proposed activities. We told them that they should give our interests and rights a lot of weight, given the fact that we have Treaty rights and First Coal has only interests. We also said that they were not giving proper weight to the honour of the Crown and the goal of reconciliation. We also asked MEMPR to think about the fact that the broader public interest supported preserving the habitat of endangered species such as caribou.

95. At this meeting of August 12, 2009, West Moberly representatives including myself encouraged MEM- PR to look at the bigger picture. We said that we were worried about the cumulative impacts of industrial development on our Treaty rights which had prevented us from hunting caribou in our preferred Treaty territory. We explained that the impacts of the proposed mining activities on our right were serious because of how few caribou were now left within our preferred Treaty territory.

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280 It was evident that by this time a decision had to be made. Dr. Dale Seip had described the CMMP as doing "an excellent job of attempting to reduce the environmental impacts of the bulk sample and exploration program on caribou". But he also concluded that "...if the government intended to conserve and rehabilitate this small caribou herd" granting the permits was "incompatible with efforts to recover the population". The statutory decision makers were thus faced with two incompatible positions. After years of consultation, in which the competing interests were fully explored, "[s]omebody [had] to bring consultation to an end and weigh up the respective interests" (Beckman at para. 84). The statutory decision makers did just that. They made their decisions to approve the permits on the basis of the generality of the treaty right in question, the limited impact of the proposed permits on that right, and the incorporation of accommodation and mitigation measures into the project.

281 The permits were issued shortly thereafter: the Bulk Sample permit, on September 1, 2009, the Ad- vanced Exploration Permit on September 14, 2009 and the Licences to Cut on October 13, 2009.

282 The Rationale for Decision on the first two permits was issued by Mr. Al Hoffman of MEMPR on Sept 4, 2009, and a Rationale for the Licences to Cut was issued by Mr. Dale Morgan of MOFR, on October 8, 2009.

283 The mining permit contained the following conditions:

Environmental Management Programs

(a) Caribou Mitigation and Monitoring Plan

(i) The Permittee shall implement and ensure all activities on the mine site adhere to, the AECOM Canada Ltd. report "First Coal Corporation, Caribou Mitigation and Monitoring Plan for the Bulk Sample and Advance Exploration 2009 / 2010 Program at the Central South Property", dated May 1, 2009 and the AECOM Canada Ltd. report "First Coal Corporation, Reclamation Plan for Existing Dis- turbance at the Central South Project Site", dated May 2009.

(ii) The Permittee shall continue to participate in the Peace Region Shared Stewardship Working Group.

(iii) If a species recovery plan for woodland caribou is developed and approved through the Committee on the Status of Endangered Wildlife in Canada, the conditions of this permit will be reviewed and revised as necessary to ensure compliance with the recovery plan.

284 Undoubtedly it would have been preferable for the MEMPR Rationale to do more than chronicle the background and considerations by explicitly describing the basis of the opinion. But notwithstanding the absence of an explicit explanation for the decision, it is apparent that MEMPR rejected the main accommodations requested by WMFN (rejection of the permits, implementation of a caribou recovery plan, and re-location of First Coal's activities) and, when read in conjunction with the "Considerations to Date" document, the reasons for rejecting the requested accommodations are clear - that the accommodation measures proposed by MEMPR were an adequate compromise, which attempted to balance the competing interests of WMFN, First Coal, and society at large.

285 The Ministry of Forests and Range Rationale provided a fuller explanation for the decision of Mr. Mor- gan, for that Ministry. Mr. Morgan noted that his authority was limited to adding (or not) conditions to the license to cut timber. He reviewed the question of the adequacy of consultation and accommodation. He reviewed the consultation record and concluded that consultation had been adequate to address WMFN's concerns. He

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noted that WMFN disputed the adequacy of consultation and objected to the project. In approving the permit he added the following conditions:

1. FCC must adhere to the Caribou Mitigation and Monitoring Plan during operations.

2. FCC must, to the extent practicable, limit their harvesting of timber to the amount required to safely conduct operations.

286 Overall, the consultation process was directly responsive to the concerns raised by WMFN, insofar as those concerns related to the permits under consideration. In light of WMFN's treaty protected right and particular interest in hunting caribou, significant accommodations were made to protect the existing caribou herd. It is true that the outcome of the consultation process was not that which WMFN desired. But it cannot be said that the outcome, given all the factors listed by the decision makers, was unreasonable.

287 It is not for a court on judicial review to mandate specific accommodation measures (Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2005 BCCA 128, 37 B.C.L.R. (4th) 309 (B.C. C.A.) at paras. 99-100, 104-105; Wii'litswx v. British Columbia (Minister of Forests), 2008 BCSC 1620, [2009] 1 C.N.L.R. 359 (B.C. S.C.) at para. 23) nor specific outcomes to the process. Provided that the Crown proceeds on a correct understanding of the scope and extent of the treaty rights and its duty to consult (as I say it did), and provided that consultation proceeds in a reasonably thorough, responsive fashion, a court ought not to interfere. In my view the decision makers acted reasonably and, as the foregoing description of the extent of the consultation illustrates, the consultation was more than adequate in fulfilling the Crown's duties. The consultation appears broadly similar to that which was found adequate in Taku. What is required is not perfection but reasonableness (Haida Nation at para. 62). I therefore conclude that the Crown has discharged its duty and that the chambers judge erred in finding that consultation was inadequate and that a specific form of accommodation was required.

288 I would allow the appeal and dismiss the petition.

Appeal allowed in part.

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