British Columbia (Minister of Forests) v. Okanagan Indian Band et al., (2001) 161 B.C.A.C. 13 (CA)

• Judge: Prowse, Donald and Newbury, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 12, 2001
• Jurisdiction: British Columbia
• Citations: (2001), 161 B.C.A.C. 13 (CA);2001 BCCA 647

B.C. v. Okanagan Indian Band (2001), 161 B.C.A.C. 13 (CA);

    263 W.A.C. 13

MLB headnote and full text

Temp. Cite: [2001] B.C.A.C. TBEd. NO.016

Her Majesty The Queen in Right of the Province of British Columbia as represented by the Minister of Forests (petitioner/respondent) v. Chief Ronnie Jules, in his personal capacity and as representative of the Adams Lake Band, Chief Stuart Lee, in his personal capacity and as representative of the Spallumcheen Indian Band, Chief Arthur Manuel, in his personal capacity and as representative of the Neskonlith Indian Band, and David Anthony Nordquist, in his personal capacity and as representative of the Adams Lake Indian Band, the Spallumcheen Indian Band and the Neskonlith Indian Band and all other persons engaged in the cutting, damaging or destroying of Crown Timber at Timber Sale Licence A38029, Block 2 (respondents/appellants)

(CA027594)

Her Majesty The Queen in Right of the Province of British Columbia as represented by the Minister of Forests (petitioner/respondent) v. Chief Dan Wilson, in his personal capacity and as representative of the Okanagan Indian Band and all other persons engaged in the cutting, damaging or destroying of Crown Timber at Timber Sale Licence A57614 (respondents/appellants)

(CA027595) (2001 BCCA 647)

Indexed As: British Columbia (Minister of Forests) v. Okanagan Indian Band et al.

British Columbia Court of Appeal

Prowse, Donald and Newbury, JJ.A.

November 5, 2001.

Summary:

Several Indian bands logged on Crown property near Harper Lake and Browns Creek, claiming aboriginal title with a right to log. The Ministry of Forests issued stop work orders under the Forest Practices Code of British Columbia Act, which the bands declined to observe. The Crown sought to enforce the stop work orders to prevent the bands from logging. The bands filed a notice of constitutional question challenging the constitutionality of ss. 96 and 123 of the Forest Practices Code on the basis that they failed to accommodate the respondents' aboriginal title to the subject lands and their consequent right to log. The Crown applied for an interlocutory order pursuant to s. 147 of the Code to enforce the stop work orders. In the alternative, the Crown sought an interlocutory equitable injunction restraining the bands from carrying out logging activ­ities. The Crown also sought an order pre­serving the timber already cut.

The British Columbia Supreme Court, in a decision reported in 25 B.C.T.C. 161, granted the Crown a statutory injunction under s. 147 of the Code. In the alternative, the court granted an interlocutory equitable injunction. The court also granted an order under rule 46 preserving the cut timber pending the hearing. The bands appealed, with leave. (Meanwhile, the Supreme Court, in a deci­sion reported in 25 B.C.T.C. 177, granted an order respecting removal of the logs by the Indians pending the disposition of the mat­ter).

The British Columbia Court of Appeal, in a decision reported in 138 B.C.A.C. 146; 226 W.A.C. 146, dismissed the appeals.

The Crown applied under rule 52(11)(d) of the Rules of Court to have the matter remitted to the trial list for determination. The bands argued that the matter ought to be determined summarily as a petition and that the application should be dismissed since they were without funds to defend the pro­ceeding through to trial. Alternatively, they argued it should go to the trial list only on the condition that the Crown pay their costs of trial. They relied on: the court's inherent jurisdiction, the court's power to impose terms or conditions as part of the exercise of its discretion, their right to access to justice to defend their constitutional rights, s. 35 of the Constitution Act (the Crown had a fiduciary obligation not to bring this appli­cation under rule 52(11)(d) or they should fund the litigation), and s. 15 of the Charter (denial of equality before the law).

The British Columbia Supreme Court, in a decision reported at [2000] B.C.T.C. 548, allowed the Crown's application and referred the matters to the trial list to be determined. The court concluded that the question whether the impugned sections were uncon­stitutional or constitutionally invalid and the appropriate remedy appeared very much fact driven in the circumstances. Evidence of the right, the infringement and whether that infringement was justified was necessary to determine that question. The court rejected the bands' request that its trial costs be paid in advance. The issue of liability was very much in dispute and the trial costs would be substantial. To order the payment of trial costs would require prejudging the case on the merits. Although the court had a limited discretion in appropriate circumstances to award interim costs, this case fell far outside that area. The bands appealed.

The British Columbia Court of Appeal allowed the appeal on the costs issue, but dismissed the appeal from the ruling that the proceedings be remitted to the trial list.

Civil Rights - Topic 8310

Canadian Charter of Rights and Freedoms - General - Right of access to courts - The provincial Crown petitioned to prevent Indian bands from logging Crown lands - The bands, claiming aboriginal title with logging rights, challenged the constitu­tionality of certain provincial legislation - The bands argued that the province should pay their legal fees, relying on, inter alia, their right to access to justice - The Brit­ish Columbia Court of Appeal affirmed that remitting proceedings to the trial list did not deny the bands access to justice, giving rise to a right to fund­ing by the province - Access to justice meant a gov­ernment duty to make courts and judges available to all, not an obligation to fund a private litigant unable to pay for legal representation in a civil suit - See para­graphs 24 to 28.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdic­tion) - The provincial Crown peti­tioned to prevent Indian bands from log­ging Crown lands - The bands, claiming aboriginal title with logging rights, chal­lenged the consti­tutionality of certain provincial legislation - The bands argued that if the matter was referred to the trial list, the province should pay their legal fees - The British Columbia Court of Appeal held that where no breach of the Charter was shown or threatened and where no "fund" or "pro­gram" was estab­lished, courts of law did not have jurisdic­tion to order the Crown to defray legal fees or to retain counsel - See paragraphs 30 to 36.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - The provin­cial Crown petitioned to prevent Indian bands from logging Crown lands - The bands, claiming aboriginal title with log­ging rights, challenged the constitutionality of certain provincial legislation - The bands argued that should the matter be referred to the trial list, the province should pay their legal fees, relying on, inter alia, the Constitution Act, s. 35 (i.e., the Crown had a fiduciary obligation not to apply under rule 52(11)(d) or it should fund the litigation) - The British Columbia Court of Appeal held that there was noth­ing in the circumstances of this case that would give rise to a "fiduciary expecta­tion" of funding - See paragraph 29.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The provincial Crown petitioned to pre­vent Indian bands from logging Crown lands - The bands, claiming aboriginal title with logging rights, challenged the consti­tutionality of certain provincial leg­islation -The bands argued that if the matter was referred to the trial list, the province should pay their legal fees - The British Columbia Court of Appeal held that the right to access to justice did not ensure such funding, but only a duty on govern­ment to make courts and judges available to all persons; it did not include an obliga­tion to fund a private litigant unable to pay for legal representation in a civil suit - Neither did the province owe any fiduciary duty to the bands to provide such funding - See paragraphs 24 to 29.

Indians, Inuit and Métis - Topic 506

Rights - General - Constitution Act, 1982, s. 35 - Interpretation - The provincial Crown petitioned to prevent Indian bands from logging Crown lands - The bands, claiming aboriginal title with logging rights, challenged the constitutionality of certain provincial legislation - The bands argued that should the matter be referred to the trial list, the province should pay their legal fees, relying on, inter alia, the Con­stitution Act, s. 35 - The British Col­umbia Court of Appeal held that s. 35 did not place an affirmative obligation on the provincial Crown or the courts to provide for the funding of the legal fees of an aboriginal band in attempting to prove an asserted right and the infringement thereof, even in defence to a proceeding brought by government - See paragraph 29.

Practice - Topic 5209

Trials - General - Trial of issues directed by court - Petition referred to trial list - The provincial Crown petitioned to prevent Indian bands from logging Crown lands - The bands, claiming aboriginal title with logging rights, challenged the constitu­tionality of certain provincial legislation - The Crown applied to have its petition referred to the trial list - The British Columbia Court of Appeal affirmed that the trial judge did not err in remitting these proceedings to the trial list - See para­­graphs 38 to 39.

Practice - Topic 7883

Costs - Funding before judgment - When available - The provincial Crown peti­­tioned to prevent Indian bands from log­ging Crown lands - The bands, claiming aborig­inal title with logging rights, chal­lenged the constitutionality of certain provincial legislation - The bands argued that if the matter was referred to the trial list, the province should pay their legal fees and disbursements - The British Columbia Court of Appeal held that the bands had no constitutional right to pro­vincially-funded legal fees, nor did the courts have jurisdic­tion to order same - The court held, how­ever, that the "test case" nature of these proceedings, and their public importance, made this case excep­tional and special - The court ordered the Crown to pay the bands' "legal costs" (taxable costs described in rule 57), ac­cording to certain guidelines - See para­graphs 24 to 39.

Cases Noticed:

British Columbia (Minister of Forests) v. Westbank, [1999] B.C.J. No. 2161, refd to. [para. 1].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (1999), 37 C.P.C.(4th) 224 (S.C.), affd. (2000), 138 B.C.A.C. 146; 226 W.A.C. 146; 187 D.L.R.(4th) 664 (C.A.), refd to. [para. 2].

Redfearn v. Elkford (District) (1999), 130 B.C.A.C. 257; 211 W.A.C. 257; 37 C.P.C.(4th) 141 (C.A.), consd. [para. 8].

Fullerton v. Matsqui (District) (1992), 14 B.C.A.C. 153; 26 W.A.C. 153; 12 C.P.C.(3d) 310 (C.A.), refd to. [para. 8].

Law Society of British Columbia v. Mangat, [1999] S.C.C.A. No. 43, refd to. [para. 9].

Ridley Terminals v. Minette Bay Ship Docking Ltd. (1990), 45 B.C.L.R.(2d) 367 (C.A.), refd to. [para. 10].

British Columbia (Minister of Forests) v. Westbank First Nation et al. (1999), 23 B.C.T.C. 86 (S.C.), refd to. [para. 11].

Organ et al. v. Barnett et al. (1992), 11 O.R.(3d) 210 (Gen. Div.), refd to. [para. 14].

Jones v. Coxeter (1743), 26 E.R. 642, refd to. [para. 14].

Stiles v. Workers Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), refd to. [para. 15].

Chippewas of Nawash First Nations v. Canada (Minister of Indian and Northern Affairs), [1997] 1 C.N.L.R. 1; 116 F.T.R. 37 (T.D.), affd. (1999), 251 N.R. 200 (F.C.A.), refd to. [para. 18].

Ardoch Algonquin First Nation v. Ontario - see Perry et al. v. Ontario.

Perry et al. v. Ontario (1997), 100 O.A.C. 370; 148 D.L.R.(4th) 96 (C.A.), refd to. [para. 19].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 21].

Wolff (Rudolph) & Co. and Noranda Inc. v. Canada, [1990] 1 S.C.R. 695; 106 N.R. 1; 39 O.A.C. 1, refd to. [para. 21].

Eldridge et al. v. British Columbia (Attor­ney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 22].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93; 31 B.C.L.R.(2d) 273; 53 D.L.R.(4th) 1, refd to. [para. 25].

British Columbia Government Employees' Union v. British Columbia (Attorney General) (1985), 65 B.C.L.R. 113; 20 D.L.R.(4th) 399 (C.A.), refd to. [para. 25].

Carten (John) Personal Law Corp. et al. v. British Columbia (Attorney General) et al. (1997), 98 B.C.A.C. 1; 161 W.A.C. 1; 40 B.C.L.R.(3d) 181 (C.A.), consd. [para. 27].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), consd. [para. 30].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, consd. [para. 3].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 32].

Canada (Attorney General) v. Stewart, J., and Savard (1996), 74 B.C.A.C. 81; 121 W.A.C. 81; 106 C.C.C.(3d) 130 (Yuk. C.A.), consd. [para. 34].

Auckland Harbour Board v. R., [1924] A.C. 318 (P.C.), refd to. [para. 35].

Dietrich v. R. (1992), 109 A.L.R. 385 (H.C.), refd to. [para. 35].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353, refd to. [para. 36].

Brown v. Black Top Cabs Ltd. et al. (1997), 97 B.C.A.C. 59; 157 W.A.C. 59; 43 B.C.L.R.(3d) 76 (C.A.), refd to. [para. 37].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289; 109 C.C.C.(3d) 1; 50 C.R.(4th) 1, refd to. [para. 37].

Spracklin v. Kichton (2001), 294 A.R. 44 (Q.B.), refd to. [para. 39].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 57(1) [para. 10].

Counsel:

M.L. Mandell, Q.C., and R.M. Mogerman, for the appellants;

T.P. Leadem, Q.C., and R.J.M. Fyfe, for the respondent.

This appeal was heard before Prowse, Donald and Newbury, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on September 12, 2001. The decision of the court was delivered by Newbury, J.A., on November 5, 2001.