Halfway River First Nation v. B.C.,

• Jurisdiction: British Columbia
• Judge: Southin, Finch and Huddart, JJ.A.
• Neutral Citation: 1999 BCCA 470
• Citation: (1999), 129 B.C.A.C. 32 (CA),1999 BCCA 470,178 DLR (4th) 666,[1999] 9 WWR 645,64 BCLR (3d) 206,129 BCAC 32,[1999] BCJ No 1880 (QL),[1999] 4 CNLR 1,178 D.L.R. (4th) 666,(1999), 129 BCAC 32 (CA),[1999] B.C.J. No 1880 (QL),129 B.C.A.C. 32
• Date: 12 August 1999
• Court: Court of Appeal (British Columbia)

Halfway River First Nation v. B.C. (1999), 129 B.C.A.C. 32 (CA);

    210 W.A.C. 32

MLB headnote and full text

Temp. Cite: [1999] B.C.A.C. TBEd. SE.017

Chief Bernie Metecheah, on his own behalf and on behalf of all other members of the Halfway River First Nation, and the Halfway River First Nation (petitioners/respondents) v. David Lawson, District Manager, Fort St. John Forest District and The Ministry of Forests (respondents/appellants) and Canadian Forest Products Ltd. (respondent/appellant)

(CA023526, CA023539; 1999 BCCA 470)

Indexed As: Halfway River First Nation v. British Columbia (Minister of Forests) et al.

British Columbia Court of Appeal

Southin, Finch and Huddart, JJ.A.

August 12, 1999.

Summary:

Canfor applied for a cutting permit to permit logging in a wilderness area. Canfor already held the timber harvesting licence for the area, which was Crown land adjacent to reserve lands granted to the petitioners. The District Manager of the forest district approved the application. The petitioners petitioned under the Judicial Review Pro­cedure Act to quash the decision to issue the cutting permit.

The British Columbia Supreme Court, in a decision reported at [1997] B.C.T.C. Uned. 946, allowed the petition and quashed the decision. The Ministry of Forests, the Dis­trict Manager and Canfor appealed.

The British Columbia Court of Appeal, Southin, J.A., dissenting in the result, dis­missed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias -Apprehension of - A Chambers judge heard a petition by a First Nation to quash a decision of a District Forest Manager to issue a cutting permit - The British Colum­bia Court of Appeal held that the Cham­bers judge erred in holding that the District Manager's conduct gave rise to a reason­able apprehension of bias - See paragraphs 67 to 75, 170.

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Pre­judgment of matter - The British Columbia Court of Appeal stated that the expression of a tentative or preliminary opinion on what the evidence showed in the investiga­tive stage did not necessarily amount to a reasonable apprehension of bias - See paragraphs 68, 170.

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Pre­judgment of matter - The British Columbia Court of Appeal stated that a misapprehen­sion of the law by an administrative officer did not necessarily demonstrate a failure by him to keep an open mind, or an unwil­lingness to decide the issues on the merits - See paragraphs 74, 170.

Administrative Law - Topic 2142.1

Natural justice - Administrative decisions or findings - Ruling in advance of sub­missions - A District Forest Manager issued a cutting permit respecting Crown wilderness adjacent to a reserve - The First Nation were descendants of signatories to 1900's Treaty 8, which preserved the signatories' right to hunt - Under the Treaty the First Nation claimed a right to hunt on the subject wilderness - A Cham­bers judge quashed the permit on judicial review - The British Columbia Court of Appeal affirmed that there was a breach of the duty of procedural fairness by reason of the Manager's failure to consult with and ascertain the First Nation's position before making his decision - This failure to consult adequately was a breach of the Crown's fiduciary responsibilities to abori­ginal peoples - See paragraphs 81 to 82, 179, 184.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - A District Forest Manager issued Canfor a cutting permit respecting Crown wilderness adjacent to a reserve - The First Nation were descendants of signatories to Treaty 8, which preserved the signatories' right to hunt - Under the Treaty, the First Nation claimed a right to hunt on the subject wilderness - A Chambers judge quashed the permit - The British Columbia Court of Appeal held that the judge erred in con­cluding that adequate notice to the First Nation was not given - The First Nation was well aware of Canfor's plans to log the wilderness and had time to submit and make representations - The notice was adequate in the context of the legislative scheme and the nature of the Manager's duties - See paragraphs 76 to 80, 170.

Administrative Law - Topic 3204

Judicial review - General - Agencies or tribunals subject to review - A District Forest Manager issued a cutting permit respecting Crown wilderness adjacent to a reserve - The First Nation were descen­dants of signatories to 1900's Treaty 8, which preserved the signatories' right to hunt - The First Nation claimed a Treaty right to hunt on the subject wilderness, and petitioned under the Judicial Review Pro­cedure Act to quash the Manager's deci­sion - A Chambers judge quashed the permit - The British Columbia Court of Appeal, per Finch, J.A., stated that judicial review was a proper proceeding in which to consider the alleged infringement of Treaty rights - The Chambers judge who heard the petition on affidavit evidence did not err in her discretion not to order a trial - See paragraphs 51 to 57.

Administrative Law - Topic 5008

Judicial review - Certiorari - Scope of review - A District Forest Manager issued a cutting permit respecting Crown wilder­ness adjacent to a reserve - The First Nation were descendants of signatories to Treaty 8, which preserved the signatories' right to hunt - Under the Treaty the First Nation claimed a right to hunt on the subject wilderness - A Chambers judge quashed the permit - The British Columbia Court of Appeal, per Finch, J.A., held that interpreting Treaty 8, determining the scope of the parties' rights thereunder, and whether the First Nation's Treaty rights were infringed, were questions of law (the latter perhaps of mixed fact and law) - To the extent the Manager's decisions involved legal components, absent any privative clause, they were reviewable on the standard of correctness - See para­graphs 84 to 87.

Administrative Law - Topic 5424

Judicial review - Certiorari - Appeals - Function or powers of an appeal court - A Chambers judge heard a petition under the Judicial Review Procedure Act to quash a decision of a District Forest Manager to issue a cutting permit - The British Colum­bia Court of Appeal, per Finch, J.A., held that to the extent that the decision of the Chambers judge involved questions of fact, the Court of Appeal would intervene only if the decision was clearly wrong, i.e., not reasonably supported by the evidence - To the extent that her decision involved ques­tions of law, the Court of Appeal would intervene if it were shown that the Cham­bers judge misapprehended the law or applied the appropriate legal principles incorrectly - See paragraphs 58 to 60.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - A Dis­trict Forest Manager issued a cutting per­mit respecting Crown wilderness adjacent to a reserve - The First Nation were de­scendants of signatories to 1900's Treaty 8, which preserved their right to hunt - The First Nation claimed a Treaty right to hunt on the subject wilderness - A land claim possibly including the wilderness was also made - A Chambers judge quashed the permit on judicial review - The British Columbia Court of Appeal held that the judge applied the principles respecting fettering of discretion incorrectly - While the existing land claim was a consideration for the Manager, the government policy of not halting resource development while such a claim was pending, did not limit or impair the Manager's discretion, or its exercise - See paragraphs 61 to 66, 170.

Evidence - Topic 3801

Documentary evidence - Ancient docu­ments - General - The British Columbia Court of Appeal, per Finch, J.A., stated that the general rule in Canada governing the admissibility of ancient documents (over 300 years old), was that any docu­ment "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" - If there were suspicious circumstances surrounding the document's origins, the court would require proof of its execution as being in a similar manner as the execution of a simi­lar document of a more recent date - Doc­uments were considered to have been in "proper custody" when kept by someone in a place where the documents might reason­ably and naturally be expected to be found - See paragraph 117.

Evidence - Topic 3806

Documentary evidence - Ancient docu­ments - Affidavits - The Halfway River Nation were descendants of the Beaver people, who adhered to Treaty 8 in 1900 - The affidavit of an interpreter present at the Treaty's signing was sworn in 1937 at Ottawa - It appeared on its face to be executed in a manner consistent with the execution of modern affidavits - It was not entitled in any particular cause or matter - Its purpose could not be told from the document itself - Nothing indicated who was the document's custodian - The British Columbia Court of Appeal, per Finch, J.A., held that there was no indication of suspi­cious circumstances surrounding the docu­ment's origins - However, the evidence failed to prove that the affidavit was pro­duced from "proper custody" - The affida­vit was inadmissible as being improperly sworn - See paragraphs 115 to 120.

Fish and Game - Topic 801

Indian, Inuit and Métis rights - Right to hunt off reserves - A District Forest Man­ager issued a cutting permit respecting Crown wilderness adjacent to a reserve - The First Nation were descendants of signatories to 1900's Treaty 8, which preserved the signatories' right to hunt - Under the Treaty, the First Nation claimed the right to hunt on the subject wilderness - A Chambers judge quashed the permit on judicial review - The British Columbia Court of Appeal disagreed that "any" interference with the right to hunt consti­tuted a prima facie infringement of the First Nation's Treaty right - Thus, the issue of whether the infringement was justified did not arise - In this case, the scope of the First Nation's hunting right was yet to be determined - See paragraphs 186 to 193, 212 to 235.

Fish and Game - Topic 848

Indian, Inuit and Métis rights - Right to hunt for food - On non-reserve lands - [See Fish and Game - Topic 801 ].

Fish and Game - Topic 850

Indian, Inuit and Métis rights - Right to hunt for food - Crown lands, unoccupied - [See Fish and Game - Topic 801 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See Administrative Law - Topic 2142.1 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - Interpretation - The British Columbia Court of Appeal, per Finch, J.A., referred to the principles of Treaty interpretation - See paragraphs 88 to 91.

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - Evidence - A District Forest Manager issued a cutting permit respecting Crown wilderness adja­cent to a reserve - The First Nation were descendants of signatories to 1900's Treaty 8, which preserved the signatories' right to hunt - Under the Treaty, the First Nation claimed the right to hunt on the subject wilderness - A Chambers judge quashed the permit on judicial review - The British Columbia Court of Appeal, per Finch, J.A., affirmed that extrinsic evidence was admis­sible to explain the "context" in which Treaty 8 was signed - See paragraphs 105 to 109.

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement of right - Requirement of consultation - [See Administrative Law - Topic 2142.1 ].

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263; 70 D.L.R.(4th) 385; [1990] 3 C.N.L.R. 160; [1990] 4 W.W.R. 410; 46 B.C.L.R.(2d) 1, refd to. [paras. 6, 213].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 11].

R. v. Horse; R. v. Standingwater, [1988] 1 S.C.R. 187; 82 N.R. 206; 65 Sask.R. 176, refd to. [para. 17].

Koopman v. Ostergaard (1995), 12 B.C.L.R.(3d) 154 (S.C.), refd to. [para. 29].

Chetwynd Environmental Society v. British Columbia (1995), 13 B.C.L.R.(3d) 338 (S.C.), refd to. [para. 29].

Placer Development Ltd. v. Skyline Explo­rations Ltd. (1985), 67 B.C.L.R. 367 (C.A.), refd to. [para. 59].

Colliers Macaulay Nichols Inc. v. Clark, [1989] B.C.J. No. 2445 (C.A.), refd to. [para. 59].

Orangeville Raceway Ltd. v. Wood Gundy Inc. et al. (1995), 59 B.C.A.C. 241; 98 W.A.C. 241; 6 B.C.L.R.(3d) 391 (C.A.), refd to. [para. 59].

Rootman Estate v. Public Trustee (B.C.) (1998), 115 B.C.A.C. 281; 189 W.A.C. 281 (C.A.), refd to. [para. 59].

Maple Lodge Farms Ltd. v. Canada (Min­ister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 62].

Davison et al. v. Maple Ridge (District) (1991), 4 B.C.A.C. 233; 9 W.A.C. 233; 60 B.C.L.R.(2d) 24 (C.A.), refd to. [para. 62].

T(C) v. Langley School District No. 35 (1985), 65 B.C.L.R. 197 (C.A.), refd to. [para. 62].

Clare v. Thompson (1983), 83 B.C.L.R.(2d) 263 (C.A.), refd to. [para. 62].

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 67].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271; 4 Admin. L.R.(2d) 121, refd to. [para. 67].

Emcom Services Inc. v. British Columbia (Council of Human Rights) (1991), 49 Admin. L.R. 220 (B.C.S.C.), refd to. [para. 68].

Robert and United Metallurgists of America, Local 4589 v. Bombardier - M.L.W. Ltd. and Brody, [1980] 1 S.C.R. 905; 32 N.R. 426, refd to. [para. 68].

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 85].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 85].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658; 13 Admin. L.R.(2d) 1, refd to. [para. 85].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 85].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 88].

R. v. Sutherland, Wilson et al. and Canada (Attorney General), [1980] 2 S.C.R. 451; 35 N.R. 361; 7 Man.R.(2d) 359, refd to. [para. 88].

R. v. Taylor (1981), 34 O.R.(2d) 360 (C.A.), refd to. [para. 88].

R. v. Bartleman (1984), 55 B.C.L.R. 78 (C.A.), refd to. [para. 88].

Nowegijick v. Minister of National Rev­enue et al., [1983] 1 S.C.R. 29; 46 N.R. 41; 83 D.T.C. 5041; 144 D.L.R.(3d) 193, refd to. [para. 88].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 88].

Saanichton Marina Ltd. et al. v. Tsawout Indian Band (1989), 36 B.C.L.R.(2d) 79 (C.A.), refd to. [para. 88].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81; [1990] 3 C.N.L.R. 46; [1990] 5 W.W.R. 97; 71 D.L.R.(4th) 193, refd to. [para. 88].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280; 56 C.C.C.(3d) 225; 70 D.L.R.(4th) 427, refd to. [paras. 88, 174].

Jacobs, Doe d. v. Phillips (1845), 8 Q.B. 158; 115 E.R. 835, refd to. [para. 117].

Thompson v. Bennett (1872), 22 U.C.C.P. 393 (C.A.), refd to. [para. 117].

R. v. Noel, [1995] 4 C.N.L.R. 78 (N.W.T. Terr. Ct.), refd to. [para. 132].

R. v. Sikyea, [1964] S.C.R. 642, refd to. [para. 133].

Daniels v. White, [1968] S.C.R. 517, refd to. [para. 133].

R. v. Sundown (J.) (1999), 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [paras. 134, 174].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161; 105 C.C.C.(3d) 481, refd to. [para. 153].

Semiahmoo Indian Band et al. v. Canada, [1998] 1 C.N.L.R. 250; 215 N.R. 241; 148 D.L.R.(4th) 523, refd to. [para. 154].

R. v. Sampson (I.J.) et al. (1995), 67 B.C.A.C. 180; 111 W.A.C. 180; 16 B.C.L.R.(3d) 226 (C.A.), refd to. [para. 160].

R. v. Jack (J.A.) et al. (1995), 67 B.C.A.C. 161; 111 W.A.C. 161; 16 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 160].

Eastmain Indian Band et al. v. Robinson et al. (1992), 147 N.R. 76; 99 D.L.R.(4th) 16 (F.C.A.), refd to. [para. 160].

Ryan et al. v. Fort St. James Forest Dis­trict (District Manager) et al. (1994), 40 B.C.A.C. 91; 65 W.A.C. 91 (C.A.), refd to. [paras. 161, 182].

R. v. Smith (1935), 2 W.W.R. 433 (Sask. C.A.), refd to. [para. 174].

R. v. Mousseau, [1980] 2 S.C.R. 89; 31 N.R. 620; 3 Man.R.(2d) 338, refd to. [para. 174].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 175].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 178].

Cheslatta Carrier Nation v. British Colum­bia (1998), 53 B.C.L.R.(3d) 1 (S.C.), refd to. [para. 178].

Saanichton Marina Ltd. v. Tsawout Indian Band (1988), 18 B.C.L.R.(2d) 217 (S.C.), affd. (1989), 36 B.C.L.R.(2d) 79 (C.A.), refd to. [para. 201].

Saanichton Marina Ltd. v. Claxton - see Saanichton Marina Ltd. v. Tsawout Indian Band.

British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R.(2d) 156 (C.A.), refd to. [para. 209].

Statutes Noticed:

Constitution Act, 1982, sect. 35(1) [para. 18].

Forest Act, R.S.B.C. 1979, c. 140, sect. 9 [para. 24]; sect. 10, sect. 12 [para. 25]; sect. 158(2) [para. 23].

Forest Act Regulations (B.C.), sect. 4(4) [para. 33].

Forest Practices Code of British Columbia Act, S.B.C. 1994, c. 41, Preamble [para. 28]; sect. 238, sect. 247 [para. 24].

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, sect. 2(a) [para. 52].

Ministry of Forests Act, R.S.B.C. 1979, c. 272, sect. 2(1) [para. 23].

Treaty 8, generally [para. 205]; para. 2 [para. 2].

Authors and Works Noticed:

Bowes, Gordon E., Peace River Chronicles (1963), p. 13 [para. 221].

Canada, Commissioners Report on treaty No. 8 (1899), generally [para. 110 et seq.].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan, W., The Law of Evidence in Canada (1992), p. 955 [para. 117].

Wigmore, John Henry, Evidence in Trials at Common Law, vol. 7 (1978), gen­erally [para. 120].

Counsel:

M.W.W. Frey and H.M. Groberman, Q.C., for the appellant, District Manager and Ministry of Forests;

S.B. Armstrong and J.M. Marks, for the appellant, Canadian Forest Products Ltd.;

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

This appeal was heard in Vancouver, British Columbia, on January 19 to 22, 1999, before Southin, Finch and Huddart, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on August 12, 1999, and the following opinions were filed:

Finch, J.A. - see paragraphs 1 to 169;

Huddart, J.A. - see paragraphs 170 to 193;

Southin, J.A., dissenting - see paragraphs 194 to 236.