Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., 2002 SCC 31

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Binnie Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 28, 2002
• Jurisdiction: Canada (Federal)
• Citations: 2002 SCC 31;(2002), 165 B.C.A.C. 1 (SCC);210 DLR (4th) 577;[2002] SCJ No 33 (QL);286 NR 131;[2002] 2 SCR 146;[2002] 2 CNLR 143;[2002] 6 WWR 1;1 BCLR (4th) 1;165 BCAC 1

Kitkatla Indian Band v. B.C. (2002), 165 B.C.A.C. 1 (SCC);

    270 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] B.C.A.C. TBEd. MR.102

Chief Councillor Mathew Hill, also known as Tha-lathatk, on his own behalf and on behalf of all other members of the Kitkatla Band, and Kitkatla Band (appellants) v. The Minister of Small Business, Tourism and Culture, the Attorney General for the Province of British Columbia and International Forest Products Limited (respondents) and the Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick, the Attorney General of Manitoba, the Attorney General for Alberta, the Council of Forest Industries and the Truck Loggers Association (interveners)

(27801; 2002 SCC 31)

Indexed As: Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al.

Supreme Court of Canada

McLachlin, C.J.C., Gonthier,  Iacobucci, Major, Binnie  Arbour and LeBel, JJ.

March 28, 2002.

Summary:

A logging company applied for a site alteration permit under s. 12 of the Heritage Conservation Act. The Minister of Small Business issued the permit, which authorized the cutting, felling, etc. of "culturally mod­ified trees" (CMTs). An Indian band applied for judicial review to set aside the permit, raising a number of administrative law argu­ments and challenged the constituionality of the sections of the Act which allowed for the alteration or destruction of native heritage property (ss. 12(2)(a), 13(2)(c) and 13(2)(d)).

The British Columbia Supreme Court,, in a decision reported [1998] B.C.T.C. Uned. E99, per Wilson, J., allowed the administra­tive law challenge and ordered the Minister to reconsider the part of its decision which affected the CMTs. The court dismissed the constitutional challenge. The Minister went through the reconsideration process. During this process, the Band asserted a claim of aboriginal rights in the continued existence of the CMTs. The Minister took the position that this issue fell outside the scope of the permit granting procedure and should be left to the courts. The Band petitioned for an order pro­hibiting the Minister from granting the site alteration permit.

The British Columbia Supreme Court, in a decision reported [1998] B.C.T.C. Uned. J33, per Wilson, J., dismissed the petition, ruling that the Minister lacked the power to decide the question of aboriginal rights in the per­mit process. In the end, the Minister issued a site alteration permit. The Indian Band appealed the judgments rendered by Wilson, J.

The British Columbia Court of Appeal, Prowse, J.A., dissenting, in a decision re­ported 132 B.C.A.C. 191; 215 W.A.C 191, dismissed both appeals. The Band appealed again. The following constitutional questions were stated for consideration:

"(1) Is s. 12(2)(a) in respect of the subject matter of s. 13(2)(c) and (d) of the Heri­tage Conservation Act in pith and sub­stance law in relation to Indians or Lands reserved for the Indians, or alternatively, is the law in relation to property, and, there­fore, within the exclusive legislative com­petence of the Province under s. 92(13) of the Constitution Act, 1867?

"(2) If the impugned provisions of the Heritage Conservation Act are within provincial jurisdiction under s. 92(13) of the Constitution Act, 1867 do they apply to the subject matter of s. 13(2)(c) and (d) of the Heritage Conservation Act?

"(3) If the impugned provisions do not apply to the appellants ex proprio vigore, do they nonetheless apply by virtue of s. 88 of the Indian Act?"

The Supreme Court of Canada dismissed the appeal. The court answered the constitu­tional questions as follows:

(1) "Section 12(2)(a) in respect of the subject matter in s. 13(2)(c) and (d) of the Heritage Conservation Act is in pith and substance law within the legislative com­petence of the Province under s. 92(13) of the Constitution Act, 1867."

(2) "Yes", and

(3) "No need to answer".

Constitutional Law - Topic 2950

Determination of validity of statutes or Acts - Pith and substance - General prin­ciples - The Supreme Court of Canada stated that the beginning of any division of powers analysis was a characterization of the impugned law to determine the head of power within which it falls (i.e., a pith and substance analysis) - A pith and substance analysis looks at both the purpose of the legislation as well as its effect - "First, to determine the purpose of the legislation, the Court may look at both intrinsic evi­dence, such as purpose clauses, or extrinsic evidence, such as Hansard or the minutes of parliamentary committees. Second, in looking at the effect of the legislation, the Court may consider both its legal effect and its practical effect. In other words, the Court looks to see, first, what effect flows directly from the provisions of the statute itself; then, second, what 'side' effects flow from the application of the statute which are not direct effects of the provi­sions of the statute itself" - See paragraphs 52 to 54.

Constitutional Law - Topic 2950

Determination of validity of statutes or Acts - Pith and substance - General prin­ciples - The Supreme Court of Canada stated that the beginning of any division of powers analysis was a characterization of the impugned law to determine the head of power within which it falls (i.e., a pith and substance analysis) - The court stated that the appropriate approach to the pith and substance analysis where only part of an Act is challenged, rather than the Act as a whole, is to look first to the chal­lenged provisions - The court restated a three part test (originally stated by Dick­son, C.J.C., in 1989 in General Motors v. City National Leasing) for determining the pith and substance of an impugned provi­sion: "(1) Do the impugned provisions intrude into a federal head of power, and to what extent?; (2) If the impugned pro­visions intrude into a federal head of power, are they nevertheless part of a valid provincial legislative scheme? (3) If the impugned provisions are part of a valid provincial legislative scheme, are they sufficiently integrated with the scheme?" - See para­graph 58.

Constitutional Law - Topic 6360

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Provincial laws of general application - The Heritage Conservation Act (B.C.), s. 12(2)(a), au­thorized the Minister of Small Business to issue permits allowing the alteration or destruction of certain types of native heri­tage property listed in ss. 13(2)(c) and 13(2)(d) (e.g., culturally modified trees) - The Supreme Court of Canada held that these provisions were valid prov­incial law under s. 92(13) of the Constitu­tion Act, 1867 (i.e., property and civil rights) - See paragraphs 1 to 78.

Constitutional Law - Topic 7300.5

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Heritage property protection - [See Con­stitutional Law - Topic 6360 ].

Indians, Inuit and Métis - Topic 6266

Government - What laws govern - Pro­vincial laws of general application - [See Constitutional Law - Topic 6360 ].

Land Regulation - Topic 2926

Land use control - Heritage protection - Statutory regulation - Ministerial permit to damage or alter heritage property - [See Constitutional Law - Topic 6360 ].

Cases Noticed:

R. v. Alphonse (W.), [1993] 5 W.W.R. 401; 29 B.C.A.C. 161; 48 W.A.C. 161; 80 B.C.L.R.(2d) 17 (C.A.), refd to. [para. 9].

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. 19].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 21].

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. 26].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 46].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481; 5 C.R.(4th) 253, refd to. [para. 52].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 54].

Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290, refd to. [para. 54].

Canadian National Transportation Ltd. and Canadian National Railway Co. v. Canada (Attorney General); Canadian Pacific Transport Co. and Pauley v. Canada (Attorney General), [1983] 2 S.C.R. 206; 49 N.R. 241; 49 A.R. 39, refd to. [para. 56].

Canada (Attorney General) v. Canadian National Transportation Ltd. - see Canadian National Transportation Ltd. and Canadian National Railway Co. v. Canada (Attorney General); Canadian Pacific Transport Co. and Pauley v. Canada (Attorney General).

City National Leasing v. General Motors of Canada Ltd., [1989] 1 S.C.R. 641; 93 N.R. 326; 32 O.A.C. 332, refd to. [para. 56].

MacDonald et al. v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; 7 N.R. 477; 66 D.L.R.(3d) 1, refd to. [para. 57].

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, refd to. [para. 66].

Four B Manufacturing Ltd. v. United Garment Workers of America and Ontario Labour Relations Board and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 67].

Natural Parents v. Superintendent of Child Welfare et al., [1976] 2 S.C.R. 751; 6 N.R. 491, refd to. [para. 67].

R. v. Moosehunter, [1981] 1 S.C.R. 282; 36 N.R. 437; 9 Sask.R. 149, refd to. [para. 67].

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495, refd to. [para. 67].

Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 72].

Ordon et al. v. Grail, [1998] 3 S.C.R. 437; 232 N.R. 201; 115 O.A.C. 1, refd to. [para. 77].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24), sect. 92(13) [para. 29].

Heritage Conservation Act, R.S.B.C. 1996, c. 187, sect. 8, sect. 12(1), sect. 12(2)(a), sect. 13(1), sect. 13(2)(c), sect. 13(2)(d), sect. 13(4) [para. 29].

Indian Act, R.S.C. 1985, c. I-5, sect. 88 [para. 29].

Counsel:

E. Jack Woodward, Patricia Hutchings and Christopher Devlin, for the appellants;

Paul J. Pearlman, Q.C., and Kathryn L. Kickbush, for the respondents, the Minister of Small Business, Tourism and Culture and the Attorney General for the Province of British Columbia;

Patrick G. Foy, Q.C., William K. McNaughton and Robert J.C. Deane, for the respondent, the International Forest Products Limited;

Gerald Donegan, Q.C., and Jennifer Chow, for the intervener, the Attorney General of Canada;

Lori Sterling and Daniel Guttman, for the intervener, the Attorney General for Ontario;

Pierre-Christian Labeau, for the intervener, the Attorney General of Quebec;

Gabriel Bourgeois, for the intervener, the Attorney General for New Brunswick;

Holly D. Penner, for the intervener, the Attorney General of Manitoba;

Stan H. Rutwind, for the intervener, the Attorney General for Alberta;

Charles F. Willms, for the intervener, the Council of Forest Industries (written submissions only);

Joan J.L. Hunter, Q.C., for the intervener, the Truck Loggers Association (written submissions only).

Solicitors of Record:

Woodward & Company, Victoria, British Columbia, for the appellants;

Fuller, Pearlman, McNeil, Victoria, British Columbia, for the respondents, the Minister of Small Business, Tourism and Culture and the Attorney General of British Columbia;

Borden Ladner Gervais, Victoria, British Columbia, for the respondent, International Forest Products Limited;

Department of Justice, Vancouver, British Columbia, for the intervener, the Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervener, the Attorney General for Ontario;

Ministry of Justice, Ste-Foy, Quebec, for the intervener, the Attorney General of Quebec;

Attorney General for New Brunswick, Fredericton, New Brunswick, for the intervener, the Attorney General for New Brunswick;

Department of Justice, Winnipeg, Mani­toba, for the intervener, the Attorney General of Manitoba;

Alberta Justice, Edmonton, Alberta, for the intervener, the Attorney General for Alberta;

Fasken Martineau DuMoulin LLP, Van­couver, British Columbia, for the inter­vener, the Council of Forest Industries;

Davis & Company, Vancouver, British Columbia, for the intervener, the Truck Loggers Association.

This appeal was heard on November 2, 2001, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official languages on March 28, 2002, by LeBel, J.