Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management) et al., 2005 BCCA 128

• Judge: Southin, Hall and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Monday March 07, 2005
• Jurisdiction: British Columbia
• Citations: 2005 BCCA 128;(2005), 209 B.C.A.C. 219 (CA)

Musqueam Indian Band v. B.C. (2005), 209 B.C.A.C. 219 (CA);

    345 W.A.C. 219

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. MR.028

Musqueam Indian Band (appellant/petitioner) v. The Minister of Sustainable Resource Management, Land and Water British Columbia Inc., University of British Columbia, and the Attorney General of the Province of British Columbia (respondents/respondents)

(CA031826; 2005 BCCA 128)

Indexed As: Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management) et al.

British Columbia Court of Appeal

Southin, Hall and Lowry, JJ.A.

March 7, 2005.

Summary:

The Musqueam Indian Band sought to quash an agreement entered into by Land and Water British Columbia Inc. and the Minister of Sustainable Resource Management (B.C.) (collectively, the Province) and the University of British Columbia (UBC) for the sale of Crown lands known as the University Golf Course. Musqueam sought to prevent the sale and to set aside an order in council authorizing the sale, so that the Province's fiduciary and constitutional duties to consult and seek accommodation of Musqueam's interests could be addressed. Musqueam alleged that these obligations extended to UBC as a party who was cooperating or dealing with the Province. The Province conceded that Musqueam had established a prima facie case for aboriginal title to the land.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 506, dismissed the petition. Musqueam appealed.

The British Columbia Court of Appeal allowed the appeal in part. The consultation on which the parties ultimately embarked was not conducted sufficiently free of unnecessary time constraints to afford a meaningful process of accommodation consistent with what the honour of the Crown required in the Crown's dealings with First Nations people. The court (Hall and Lowry, JJ.A.) ordered the suspension of the operation of the order in council authorizing the sale of the land for two years. The court dismissed Musqueam's appeal with respect to UBC, where UBC had no role to play in the process of consultation or accommodation between the Province and Musqueam.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Musqueam Indian Band sought to quash an agreement entered into by Land and Water British Columbia Inc. and the Minister of Sustainable Resource Management (B.C.) (collectively, the Province) and the University of British Columbia (UBC) for the sale of Crown lands known as the University Golf Course - Musqueam sought to prevent the sale and to set aside an order in council authorizing the sale, so that the Province's fiduciary and constitutional duties to consult and seek accommodation of Musqueam's interests could be addressed - Musqueam alleged that these obligations extended to UBC as a party who was cooperating or dealing with the Province - The Province conceded that Musqueam had established a prima facie case for aboriginal title to the land - The British Columbia Court of Appeal held that the consultation between the parties was not conducted sufficiently free of unnecessary time constraints to afford a meaningful process of accommodation consistent with what the honour of the Crown required in the Crown's dealings with First Nations people - The court (Hall and Lowry, JJ.A.) ordered the suspension of the order in council for two years - The court held that UBC had no role to play in the process of consultation or accommodation between the Province and Musqueam - See paragraphs 75 to 102.

Indians, Inuit and Métis - Topic 4

General - Duty owed to Indians by third parties - [See Indians, Inuit and Métis - Topic 3].

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al. (2004), 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 245 D.L.R.(4th) 33; 2004 SCC 73, refd to. [paras. 3, 78, 103].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al. (2004), 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [paras. 3, 78].

Calder v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 5].

Skeetchestn Indian Band v. Registrar of Land Titles (Kamloops) (2000), 143 B.C.A.C. 1; 235 W.A.C. 1; 80 B.C.L.R.(3d) 233; 2000 BCCA 525, refd to. [para. 6].

Cimolai v. Children's and Women's Health Centre of British Columbia (2003), 183 B.C.A.C. 279; 301 W.A.C. 279; 228 D.L.R.(4th) 420; 14 B.C.L.R.(4th) 199; 2003 BCCA 338, refd to. [para. 9].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al. (2002), 163 B.C.A.C. 164; 267 W.A.C. 164; 98 B.C.L.R.(3d) 16; 2002 BCCA 59, revd. (2004), 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 16].

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; 153 D.L.R.(4th) 193, refd to. [paras. 20, 82].

British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 8 B.C.A.C. 126; 17 W.A.C. 126; 54 B.C.L.R.(2d) 156; [1991] 4 C.N.L.R. 3 (C.A.), refd to. [para. 40].

Musqueam Holdings Ltd. et al. v. Assessor of Area No. 09 - Vancouver et al. (2000), 138 B.C.A.C. 309; 226 W.A.C. 309; 76 B.C.L.R.(3d) 323; 2000 BCCA 299, refd to. [para. 42].

Musqueam Indian Band et al. v. Glass et al., [2000] 2 S.C.R. 633; 261 N.R. 296; 2000 SCC 52, refd to. [para. 42].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 42].

Johnson v. M'Intosh, (1823), 21 U.S. (8 Wheat) 543, refd to. [para. 82].

Worcester v. State of Georgia (1832), 31 U.S. (6 Pet.) 515, refd to. [para. 82].

St. Catherine's Milling and Lumber Co. v. R. (1885), 10 O.R. 196 (Ch. D.), affd. (1886), 13 O.A.R. 148 (C.A.), affd. (1887), 13 S.C.R. 577, affd. (1888), 14 App. Cas. 46 (P.C.), refd to. [para. 83].

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, refd to. [para. 84].

United States of America v. Santa Fe Pacific Railroad Co. (1941), 314 U.S. 339, refd to. [para. 88].

Haida Nation v. British Columbia (Minister of Forests) et al. (2002), 164 B.C.A.C. 217; 268 W.A.C. 217; 99 B.C.L.R.(3d) 209; 2002 BCCA 147, refd to. [para. 89].

Authors and Works Noticed:

Canada, Report of the Royal Commission on Indian Affairs for the Province of British Columbia (1916), pp. 626, 685, 686 [para. 39].

Counsel:

M.A. Morellato and J.M. Spencer, for the appellant;

L.J. Mrozinski and P.E. Yearwood, for the respondents, other than the University;

J.P. Taylor, Q.C., and R.W. Sieg, for the respondent, University of British Columbia;

A.C. Pape, R.B. Salter and B.R. Zoe, for the intervenor, First Nations Summit.

This appeal was heard on September 21-23, 2004, at Vancouver, British Columbia, by Southin, Hall and Lowry, JJ.A., of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered on March 7, 2005, when the following opinions were filed:

Southin, J.A. - see paragraphs 1 to 74;

Hall, J.A. - see paragraphs 75 to 102;

Lowry, J.A. - see paragraphs 103 to 105.