Tr'ondëk Hwëch'in v. Yukon, (2007) 238 B.C.A.C. 123 (YukCA)

• Judge: Saunders, Smith and Thackray, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 30, 2006
• Jurisdiction: Yukon
• Citations: (2007), 238 B.C.A.C. 123 (YukCA);2007 YKCA 1

Tr'ondëk Hwëch'in v. Yukon (2007), 238 B.C.A.C. 123 (YukCA);

    393 W.A.C. 123

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. MR.025

Tr'ondëk Hwëch'in (appellant/plaintiff) v. Government of Yukon (respondent/defendant)

(YU00545; 2007 YKCA 1)

Indexed As: Tr'ondëk Hwëch'in v. Yukon

Yukon Court of Appeal

Saunders, Smith and Thackray, JJ.A.

March 12, 2007.

Summary:

In a Final Agreement on land claims between the Tr'ondëk Hwëch'in First Nation, the federal government and the Yukon government (Yukon), Yukon agreed to establish the Tombstone Territorial Park. Yukon purported to establish the Park by orders-in-council. One such order-in-council, OIC 2004/2002, withdrew the lands set aside for the Park from disposal to third parties. The First Nation sued for a declaration that OIC 2004/2002 was ultra vires and applied for a summary judgment. The First Nation also sued for declarations that several provisions of the order-in-council which formally established the Park, OIC 2004/203, were inconsistent with the Final Agreement. These claims were heard by way of summary trial.

The Yukon Supreme Court, in a decision reported [2005] Yukon Cases (SC) 48, dismissed the application for summary judgment and refused to make the other declarations sought. The First Nation appealed.

The Yukon Court of Appeal dismissed the appeal.

Indians, Inuit and Métis - Topic 5522

Lands - Land claim agreements - Interpretation - [See Practice - Topic 5667 ].

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - General - [See Practice - Topic 5653.1 and Practice - Topic 5667 ].

Practice - Topic 5653.1

Judgments and orders - Declaratory judgments - When available - Requirement of lis between parties - In a Final Agreement on land claims between the Tr'ondëk Hwëch'in First Nation, the federal government and the Yukon government (Yukon), Yukon agreed to establish the Tombstone Territorial Park - Yukon purported to establish the Park by orders-in-council - One such order-in-council, OIC 2004/2002, withdrew the lands set aside for the Park from disposal to third parties - The First Nation sued for a declaration that OIC 2004/2002 was ultra vires and applied under rule 18 of the Rules of Court (B.C., applicable to the Yukon) for a summary judgment - The trial judge dismissed the application because, in his view, there was no actual dispute between the parties and the declaration would serve no useful purpose - No one made a decision that affected the First Nation, nor had anyone taken steps to conduct or prohibit activities contrary to the First Nation's vision of the Park - The trial judge was not satisfied "beyond a doubt" as to the merits of the First Nation's application - The Yukon Court of Appeal upheld the decision where the trial judge properly applied the test for a summary judgment and properly exercised his discretion under rule 18(2), which discretion was supplemented by the discretion described in Solosky v. Canada (S.C.C.), to grant or withhold declaratory relief - See paragraphs 9 to 37.

Practice - Topic 5667

Judgments and orders - Declaratory judgments - Bars - Academic questions - In a Final Agreement on land claims between the Tr'ondëk Hwëch'in First Nation, the federal government and the Yukon government (Yukon), Yukon agreed to establish the Tombstone Territorial Park - Yukon purported to establish the Park by orders-in-council - One such order-in-council, OIC 2004/203, formally established the Park - The First Nation sued for declarations that several provisions of OIC 2004/203 were inconsistent with the Final Agreement - The provisions attacked dealt with (1) the Park's purpose, (2) permits authorizing visitor related development in the Park, (3) exclusion of mines and minerals from the land comprising the Park and (4) exclusion of water bodies and corresponding water rights form the lands comprising the Park - The trial judge refused to grant the declarations claimed - As for (1), (2) and (4), the claims were "hypothetical", not grounded in a factual dispute and not appropriate for declaratory relief - As for (3), the trial judge rejected the First Nation's argument that on a "correct" construction of the Final Agreement, the parties agreed that mines and minerals would form part of the Park - The Yukon Court of Appeal upheld the decision where there was no reason to interfere with the trial judge's exercise of the discretion to grant or withhold declaratory relief and where it was not shown that the trial judge erred in his interpretation of the Final Agreement - See paragraphs 38 to 70.

Practice - Topic 5667.1

Judgments and orders - Declaratory judgments - Bars - Uncertain factual underpinning - [See Practice - Topic 5667 ].

Practice - Topic 5705

Judgments and orders - Summary judgments - Requirement that question at issue be beyond doubt - [See Practice - Topic 5653.1 ].

Words and Phrases

Mines and minerals - The Yukon Court of Appeal discussed the meaning of the expression "mines and minerals" found in a Final Agreement on land claims between the Tr'ondëk Hwëch'in First Nation, the federal government and the Yukon government - See paragraphs 58 to 62.

Cases Noticed:

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745, consd. [para. 3].

Jones v. Stone, [1894] A.C. 122, refd to. [para. 26].

Codd v. Delap (1905), 92 L.T. 510, refd to. [para. 26].

Hughes v. Sharp (1969), 5 D.L.R.(3d) 760; 68 W.W.R.(N.S.) 706 (B.C.C.A.), refd to. [para. 26].

Progressive Construction Ltd. v. Newton (1980), 25 B.C.L.R. 330; 117 D.L.R.(3d) 591 (S.C.), refd to. [para. 26].

Montroyal Estates Ltd. v. D.J.C.A. Investments Ltd. (1984), 55 B.C.L.R. 137 (C.A.), consd. [para. 26].

May et al. v. Circumpacific Energy Corp. et al. (2004), 191 B.C.A.C. 300; 314 W.A.C. 300; 2004 YKCA 1, consd. [para. 29].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 30].

Statutes Noticed:

Lands Act Regulations (Yukon), Order Respecting the Withdrawal from Disposal of Certain Lands in Yukon (Tombstone Territorial Park, Yukon), OIC 2004/202, sect. 1, sect. 2 [para. 11].

Parks and Land Certainty Act Regulations (Yukon), Parks and Land Certainty Act, OIC 2004/203, sect. 4, sect. 5 [para. 52]; Schedule [para. 63].

Rules of Court (B.C.), Supreme Court Rules, rule 18(1), rule 18(2)(a) [para. 10].

Withdrawal from Disposal of Certain Lands in Yukon (Tombstone Territorial Park, Yukon), Order Respecting the - see Lands Act Regulations (Yukon), Order Respecting the Withdrawal from Disposal of Certain Lands in Yukon (Tombstone Territorial Park, Yukon).

Counsel:

S.L. Walsh, for the appellant;

P. Gawn and M. Leask, for the respondent.

This appeal was heard at Whitehorse, Yukon Territory, on May 30, 2006, by Saunders, Smith and Thackray, JJ.A., of the Yukon Court of Appeal. The decision of the Court of Appeal was delivered by Smith, J.A., at Vancouver, B.C., on March 12, 2007.