The Protection of Aboriginal Rights and Title through Injunction and Judicial Review

These materials were prepared by Allan Donovan of Donovan and Company, Vancouver, B.C. and Mariana Storoni, Law Student, Vancouver, B.C. for Continuing Legal Education, October 2004.

Introduction

First Nations in British Columbia enjoy constitutionally protected rights to land and natural resources. For some First Nations these rights are treaty based and may include constitutionally protected resource-use rights such as fishing, hunting and trapping. The courts have held that ancillary activities like the building of a hunting cabin may fall within the treaty promises.1 For non-treaty First Nations (the large majority in the Province) these rights may include the right to fish, hunt and gather, as well as a range of land rights of varying contents (including aboriginal title). This aboriginal title encompasses the right to choose to what uses the land will be put. Given the extent of First Nations' traditional territories, there is virtually no place in British Columbia that will not be affected by the assertion of aboriginal rights, aboriginal title or treaty rights.

On the other side of the coin, much of the Province's economy is based on the use of land and extraction of resources. This in turn requires the Crown, in its administrative and regulatory role, to make countless land and resource-use decisions on a regular basis.

At the points where First Nations' rights, government decisions and third-party interests meet, clashes of values and practical problems are certain to arise and competing legal rights will intersect. In the long run, either aboriginal rights and title litigation, or treaty negotiation are likely the most effective ways to deal with resource and land-use disputes in First Nations' territories. Neither of these routes, however, are workable when the conflict is one that must be resolved quickly.

In these circumstances, the first step is normally an attempt by the First Nation to resolve the problem consensually with government, the interested third party, or both. When this approach fails, First Nations may choose to address clashes involving their aboriginal rights and title or treaty rights by applying to the Supreme Court for injunctive relief or by commencing a judicial review of the government's decision. This paper will discuss the evidentiary requirements and track record of these two litigation options and comment on some strategic considerations to be kept in mind by all parties.

I.      Land and Resource-Use Decisions Affecting First Nations

Since the enactment of the Constitution Act, 1982, R.S.C. 1985, Appendix 11, c. 11, the courts have been called upon to give content to the protection of aboriginal and treaty rights entrenched in s. 35. In R. v. Sparrow, [1990] 1 S.C.R. 1075 [Sparrow], the Supreme Court of Canada held that any infringement of the aboriginal rights safeguarded by s. 35 must be justified. Consultation and compensation were flagged as important factors in determining whether the infringement could be justified.

In 1997, the Supreme Court of Canada held in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [Delgamuukw], that the constitutional protection set out in s. 35 extended to include a range of land-based rights including aboriginal title. Chief Justice Lamer, for the majority, defined aboriginal title as encompassing the right to exclusive use and occupation of the land (Delgamuukw, at para. 117). Aboriginal title land is held communally and aboriginal title includes the right of the aboriginal community to make decisions as to how the land will be used. Infringements of aboriginal title always require, at a minimum, consultation (Delgamuukw, at para. 168). Generally, the Court noted, the Crown's obligation will extend to something deeper than mere consultation. First Nations' consent may be required to render certain infringements lawful. Further, the Crown will generally be required to compensate First Nations for infringements of their aboriginal title.

Two years later, the B.C. Court of Appeal affirmed the Crown's duty of consultation with respect to infringements of treaty rights (Halfway River First Nation v. British Columbia (Minister of Forests) (1999), 64 B.C.L.R. (3d) 206 (C.A.), aff'g (1997), 39 B.C.L.R. (3d) 227 (S.C.) [Halfway]). Chief Justice Finch stated that the duty encompassed an obligation to ensure that the interests and concerns of aboriginal peoples are "demonstrably integrated into the proposed plan of action" (Halfway, at para. 160). In that case the Crown's granting of a cutting permit to Canfor in a traditional hunting ground and spiritual area of the Halfway River First Nation was seen to be an unjustified infringement of Treaty 8. Justice Dorgan of the B.C. Supreme Court had set the permit aside and her decision was upheld by the B.C. Court of Appeal.

Halfway firmly established the Crown's obligation to consult and accommodate with respect to treaty rights. The next critical question was whether these obligations would extend to protect the rights of non-treaty First Nations. In Haida Nation, infra, and Taku River Tlingit, infra, the B.C. Court of Appeal made it clear that the Crown owes a legally enforceable duty to consult in good faith and seek workable accommodations with aboriginal peoples before asserted rights and title are proven in Court or are recognized by the Crown (Haida Nation v. British Columbia (Minister of Forests) (2002), 5 B.C.L.R. (4th) 33 (C.A.), leave to appeal granted, [2002] S.C.C.A. No. 417 (QL); Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (2002), 98 B.C.L.R. (3d) 16 (C.A.), leave to appeal granted, [2002] S.C.C.A. No. 417 (QL) [Taku River Tlingit]). B.C., supported by Canada, six other provinces and eight industry-side groups, appealed to the Supreme Court of Canada. These appeals were heard on March 24 and 25, 2004 and the Court reserved its decision.

The injunction and judicial review options are discussed on the context of this jurisprudential context. The decision of the Supreme Court of Canada in Haida Nation and Taku River Tlingit will likely have a significant impact on the availability of injunctive or judicial review relief or both.

II.      The Comparative Evidentiary Requirements

When the Crown either consults and accommodates inadequately or fails to consult and accommodate at all before authorizing a third party to conduct land or resource-based activities that will adversely affect aboriginal rights and title, First Nations are left with few options to protect their interests. They may passively watch the infringement of their rights proceed; they can turn to extra-judicial avenues such as publicity campaigns, boycotts or road blockades; or they can litigate. When a First Nation chooses to litigate a threshold issue is whether to proceed by way of action coupled with an application for an injunction, or by way of a petition for judicial review.

A.      Injunction

An injunction is an equitable judicial remedy issued in order to prohibit a party from doing or continuing to do a certain activity. Injunctions can also be mandatory—requiring a party to undertake certain conduct (Redland Bricks Ltd. v. Morris, [1970] A.C. 652 (H.L.) in Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441). The remedy of injunction can be granted as an interlocutory order or a final order.

The principles developed by the courts for the granting of injunctions are well established. An applicant must meet the test set out in RJR-Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 [RJR-MacDonald]:

1. there must a serious question to be tried;
2. without an injunction, irreparable harm will ensue; and
3. the balance of convenience must favour the granting of the injunction.

The first stage of the test requires a consideration of the merits of the case to ensure it is a serious one. The threshold for establishing a triable issue is low (RJR-MacDonald, at para. 49). In order to proceed to the second stage of the test, the Court must simply be satisfied that the application is "neither vexatious nor frivolous" (RJR-MacDonald, at para. 50).

The second stage, the requirement for irreparable harm, reflects the equitable nature of the injunction remedy. Where the legal remedy of damages will not suffice, equity may intervene to provide this alternative or supplementary remedy (Jamie Cassels, Remedies: The Law of Damages (Toronto: Irwin Law, 2000), Part Two, Chapter Seven, Section C (QL)). An injunction application, either interlocutory or final, will be denied if an award of damages would provide adequate compensation for the harm.

The third stage of the test involves a consideration of the balance of convenience. The Court must weigh the effect on the applicant if the injunction is denied and the effect on the respondent if it is granted, in order to determine where the balance of convenience lies. The interests of the public at large may also be factored in at the balance of convenience stage.

B.      Judicial Review

An alternative route is for the First Nation to seek judicial review of the governmental decision pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. Judicial review applications are brought by way of petition (Judicial Review Procedure Act, s. 2). Evidence is presented by way of affidavit. Judicial review is available to quash decisions that have been made in violation of the basic rules of administrative fairness. Judicial review may also be used to determine whether the statutory decision-maker has made a reversible error of fact or law (including failure to adhere to constitutional requirements).

In a judicial review, the Court is called upon to approach the review of the decision of the statutory decision-maker with the appropriate degree of curial deference. The Court will weigh a series of factors to determine what level of deference the government decision-maker should receive (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226). The varying degree of deference corresponds with the range of standards of review: from correctness (minimum deference), to reasonableness and to patent unreasonableness (maximum deference).

In Halfway, the B.C. Supreme Court and Court of Appeal set out the different standards of review that are applicable to different issues arising in the context of aboriginal law. At trial, Justice Dorgan held that courts will give deference to the government decision-maker (in this case, the District Manager) if the question at issue is within the decision-maker's jurisdiction. For example, the Court will owe no deference if the matter at issue is not within the jurisdiction of the decision-maker, and will apply a standard of correctness. Specifically, Justice Dorgan found that the interpretation of aboriginal and treaty rights is not within the jurisdiction of a District Manager (Halfway, B.C.S.C. at paras. 57-59). If the District Manager makes a mistake in these matters the courts will step in and correct him.

Further, it is important to keep in mind that judicial review is a discretionary remedy. As such, it is subject to time-based equitable defences such as laches. Judicial review may, therefore, be denied on discretionary grounds if the Court considers that there has been undue delay in commencing the judicial review proceedings or there has been other conduct by the petitioner that could be characterized as "unclean hands" (David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) Part Four, Chapter 20, Section B (QL)).

In addition to the above considerations, petitioners of judicial review need to be aware of evidentiary issues regarding the access to documents. Kelly Lake illustrates one of such difficulties. In the course of this judicial review, the Saulteau First Nation applied pursuant to s. 17 of the Judicial Review Procedure Act for production of the record before the two decision-makers. The record was necessary in order to assess whether the decision-makers had fulfilled their duty to consult. Justice Taylor denied the application and held that:

[t]he process of judicial review is not a trial de novo. It is confined to those matters within the record as defined under the Judicial Review Procedure Act. The attack in this case is jurisdictional, and concerned consultation. The degree of consultation undertaken was well within the knowledge of the applicants, and access to the files had been provided. The petitioners had not made any further request to review Ministry files (Kelly Lake Cree Nation v. Canada (Ministry of Energy and Mines) (22 September 1998), Vancouver No. A982279 (B.C.S.C.) at 3).

While Justice Taylor focuses on the consultation aspect of the judicial review, administrative law issues may be difficult to assess when the Crown has held back documents. It might be challenging, for example, for First Nations to prove that decision-makers took erroneous considerations into account or failed to take all proper considerations into account without reviewing the government file. It may be difficult to make out a reasonable apprehension of bias without the benefit of knowing what documents or evidence the decision-maker actually created or considered.2 Given that the record available through judicial review may be limited, First Nations should, time permitting, consider employing the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, to obtain the materials that might not otherwise be produced.

A further issue worth noting in the context of judicial review is the presentation of new evidence. In her concurring judgment in Halfway, Huddart J.A. ruled that judicial review is not the time to adduce new evidence. Specifically, she stated that "a first nation should not be permitted to provide evidence on judicial review it has had an appropriate opportunity to provide to the decision-maker, to support a petition asserting a failure to respect a treaty right" (Halfway, at para. 182). Given this potential restriction, First Nations who are engaging in a consultation process with the government may wish to put all the evidence available to them before the decision-maker. If some evidence is withheld at the consultation stage and the issue eventually comes before the Court in a judicial review, the First Nation may be unable to present that evidence as part of the record.

As a final consideration, the Court may, on its own motion or that of a party, convert the proceeding or part of it to a trial pursuant to B.C. Supreme Court Rule 52(11)(d) or s. 18.4(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.4(2). Such an application by the Crown was successful in Kelly Lake and Taku River Tlingit First Nation v. Tulsequah Chief Mine Project, [1999] B.C.J. No. 984 (QL) (S.C.), leave to appeal refused (1999), 128 B.C.A.C. 120 [Taku River Tlingit No. 2].

The Kelly Lake case involved Treaty 8 and aboriginal rights. The Crown successfully applied to sever off the portion of the judicial review requiring a determination of the existence of aboriginal rights to be heard by way of trial. Justice Taylor held that the establishment of aboriginal rights is a matter of enormous complexity and thus not a matter for summary disposition (Kelly Lake Cree Nation v. Canada (Ministry of Energy and Mines), [1998] B.C.J. No. 3207 (QL) (S.C.)). The issue of treaty rights could be dealt with on a summary basis but the determination of aboriginal rights was severed and referred to the trial list.

Similarly, in Taku River Tlingit No. 2, the Crown applied for an order that issues requiring proof of aboriginal rights or title be severed from the application for judicial review and be referred to the trial list. Justice Kirkpatrick allowed the Crown's application and held that given the complexities of the issues raised, the evidence required to establish aboriginal rights and title could not be properly assessed without the benefit of a trial.

The conversion of judicial review summary proceedings into a trial can be an effective approach for the Crown. If the First Nation cannot afford the costs of litigation, the issue will, in effect, have been dealt with successfully from the Crown's standpoint. If the First Nation has the necessary resources to proceed to trial, the issue will likely be largely moot long before the trial can occur. The First Nation may, of course, apply for an injunction pending trial, but given the track record discussed above this application would almost certainly fail.

III.      The Track Record of Each Approach

A.      The injunction option

Between 1985 and May 1990, the injunction was the primary legal mechanism relied on in aboriginal rights litigation in B.C. to stop land and resource-based activities authorized by the Crown. There were a number of successful injunction applications during this period.3 Since the 1990 Supreme Court of Canada's decision in Sparrow, however, First Nations have been consistently unsuccessful in obtaining injunctions to stop government-authorized development of land or resources.

Since 1990, First Nations in B.C. have brought at least 26 injunction applications to stop land and resource-based activities on their traditional territories.4 Out of the 26 applications reviewed for this paper, First Nations were unsuccessful in all except two.5 These two applications were limited in time (Musqueam, supra) and scope (Snuneymuxw, supra). Of the 24 failed applications, two were denied at the first stage of the injunction test (serious question to be tried).6 Seven applications were dismissed at the irreparable harm stage of the test.7 Most applications (13) were denied at the third stage of the injunction test, the balance of convenience.8 Finally, two applications were dismissed on other grounds.9

1.      Serious Question to be Tried

Typically, the First Nation can clear this hurdle, but not always. With respect to the first stage of the test, the B.C. Supreme Court held in Wilps, for example, that there was no fair question to be tried. In that case, the Gutginuxs (a House of the Gitxsan people) had applied for an interim injunction restraining Skeena from harvesting timber on a particular site. MacKenzie J. held that the cutting permit was valid and complied with any duty with respect to aboriginal rights, and thus denied the injunction.

2.      Irreparable Harm

More First Nations trip on the second hurdle—establishing irreparable harm. The Courts' reasons for dismissing application injunctions on the second stage of the test shed some light on the "irreparable harm" requirement.

In Kitkatla (F.C.), the Band sought an injunction to stop a trial commercial roe-herring fishery in Kitkatla Inlet for the year 2000. The Band claimed an aboriginal right to fish for herring in the Inlet and the commercial fishery had occurred before the Band fished. The application was brought, therefore, because in previous years Band members were not able to catch sufficient herring after the commercial fishery occurred. The Federal Court, Trial Division found that the "failure to meet the needs of the Kitkatla people one more time" did not constitute irreparable harm (at para. 20).

In Heiltsuk, the aboriginal Nation sought an order prohibiting any approvals or permits regarding a fish hatchery that was built on their territory. The Heiltsuk argued that their right to self-govern and the ability to veto uses of the land which do not accord with their philosophy would be infringed by the operation of the hatchery by Omega. The Court rejected Heiltsuk's argument and found that there was no evidence that the construction and operation of the hatchery would cause irreparable harm. The assessment here was primarily a factual one. There was no evidence that the Heiltsuk's right to fish and hunt would be affected, or that the licences of occupation would prevent the Heiltsuk from being able to establish a new village site. The hatchery was a land-based facility and the licences of occupation over the 0.08 square kilometres were for a fixed duration. Most of the land on which the hatchery was located had been a contaminated industrial site that Omega cleaned up.

Nanoose is perhaps the high water mark from the Crown's perspective, in judicial reluctance to find irreparable harm. In that case, the Nanoose Indian Band had commenced judicial review of the decision by the Minister of Small Business Tourism and Culture to issue a permit allowing development on land. The Band also brought an injunction application to stop development on land that contained an Indian burial ground. In refusing the injunctive relief, Justice Hutchinson held that "damages can be assessed if, in fact, aboriginal rights have at the end of the day been interfered with" (at para. 82). It may be argued that this decision undervalues the cultural significance of sacred sites to First Nation communities. As Justice Phelan put it in Musqueam (F.C.), at para. 48, it is not safe to assume that "sending a government cheque" will always suffice. Certain infringements of asserted aboriginal rights and title cannot be quantified in monetary terms.

Some have argued that if one of the tests for justification of the infringement of aboriginal title is whether compensation has been paid, then the payment of compensation should suffice and "this would seem to be a textbook case for denying an injunction" (John J.L. Hunter, "The Impact of the Delgamuukw Decision on the Use of Injunctions by Aboriginal Rights Claimants" (Paper presented to the Continuing Legal Education Conference on Litigating Aboriginal Title, January 8, 1999) at 5.2.20). In our view this reasoning is unsound. The fact that aboriginal rights and title have an economic component that requires compensation if infringed does not mean that compensation will adequately address all infringements. Paving over an aboriginal gravesite would give rise to a compensation claim. It does not follow, however, that money could ever address the First Nation's loss.

Another factor that has been found to weigh against First Nation applicants on the second stage of the injunction test is delay. In Siska No. 2, Sigurdson J. of the B.C. Supreme Court held that delay in seeking injunctive relief is a factor to be considered in assessing the extent of harm that the First Nation will suffer if the application is dismissed.

In summary, irreparable harm is a serious hurdle for the First Nation applicant to cross. Many injunction applications have foundered here. Those that have not have almost always failed at the third stage: balance of convenience.

3.      Balance of Convenience

The courts have made it clear that a pivotal factor in determining where this balance lies, in constitutional cases, is the public interest (Lax Kw'alaams, supra). The case law since Sparrow dictates that the public interest will tip the balance against granting the injunction when, for example, the work stoppage may result in a potential loss of employment for the citizens of the province (Siska No. 1, Tlowitsis) or the industry is a significant component of the region's economy (Lax Kw'alaams). The Courts have found the balance of convenience to favour the refusal of injunction applications when the halt to the activity may result in substantial economic loss to the company, especially when the work is nearing completion.10 Additional considerations are whether the First Nation was consulted (Siska No. 2) and the integrity of the environmental assessment process is at stake (Tsay Keh Dene).

Another factor that Courts have taken into account in the third stage of the injunction test is the ability of the First Nation applicant to provide an undertaking for damages (Siska No. 1, Siska No. 2, Tlowitsis). An undertaking would permit the resource company to recover damages if the applicant obtains an injunction but is eventually unsuccessful in establishing its case. Such an undertaking is ordinarily required under B.C. Supreme Court Rule 45(6) subject to the Court's discretion to dispense with it. The Court's discretion is particularly warranted in aboriginal cases, where applicants are often impoverished. In fact, the Court dispensed with this requirement in Snuneymuxw, where it found that the Snuneymuxw First Nation did not have the financial ability to provide a meaningful undertaking.

Finally, some courts have introduced in aboriginal cases a requirement of "uniqueness" into the injunction test. The First Nation requesting an injunction must show that there is something unique about the lands over which the relief is sought to apply (Wiigyet, Chemainus). This approach raises the spectre of death by a thousand cuts where a First Nation's "non-unique" lands are eroded through a long process of dispositions by the Crown and resource development.

4.      Inadequacy of the Injunction Test

While First Nations in B.C. were successful in most injunction applications brought before Sparrow, all but two of the injunctions applied for since then have been denied.11 John Hunter has suggested three general factors that may explain the Courts' apparent reluctance to issue injunctions to prevent land and resource-based activities from proceeding in areas where aboriginal rights and/or title have been asserted (John J.L. Hunter, "Advancing Aboriginal Title Claims after Delgamuukw: The Role of the Injunction" (Paper presented to the Continuing Legal Education Conference on Litigating Aboriginal Title, June 2000) at 11):

1. the realization that injunctions issued in aboriginal rights cases are likely to be in place for a very long time due to the lengthy trials required to resolve aboriginal claims on their merits;
2. the increasing consideration of the public interest in assessing the balance of convenience; and
3. the increasing understanding of the nature and scope of aboriginal rights.

Another way to frame it is that the pervasiveness of existing infringements of aboriginal rights and title in B.C. has made it difficult for the Courts to call a halt. The dependency of B.C.'s resource-based economy on infringing aboriginal rights and title makes the consequences of injunctive relief severe. Thus the "balance of convenience" stage becomes a powerful backstep for the Crown and industry.

It may be argued that the Courts' strict application of the three-pronged injunction test formulated in RJR-Macdonald does not adequately address the concerns of First Nations that are suffering continuous unjustified infringements of their aboriginal rights and title. The Supreme Court of Canada has emphasized that aboriginal rights and title are sui generis (of their own kind) (Sparrow at para. 68, Delgamuukw at para. 111). It is, therefore, well established that common law property concepts should not be automatically applied to aboriginal rights and title. The sui generis nature of aboriginal rights and title requires such adjustments, for example, as the relaxation of rules of evidence when requiring proof of aboriginal title over a territory (Delgamuukw at para.80). Perhaps the injunction test ought to be fine-tuned to better suit the unique issues that arise in aboriginal law cases.

The Attorney General of Ontario made this point before the Supreme Court of Canada in the Haida Nation, appeal (Factum of the Intervenor the Attorney General of Ontario at para. 38):

It is open to the courts to contextualize the RJR-MacDonald test to take account of unique aboriginal interests. As noted above, the nature of what constitutes irreparable harm in the aboriginal law context may well be different from other legal contexts, including the Charter context. In addition, when assessing the balance of convenience there are a number of factors unique to the aboriginal law area that could potentially be taken into account. These include the relative situations of the parties and the recognition of the substantive promise of s. 35.

This argument was made in an attempt to convince the Supreme Court of Canada that the injunction could be an adequate remedy and there was no need, therefore, for the more creative remedies developed in and Taku River Tlingit in the context of judicial review. It remains to be seen whether the Crown will make this argument in an actual injunction application. As long as the Courts continue to apply the standard three-part injunction test without, as Ontario puts it, "contextualizing," interlocutory injunctions will offer little if any assistance to First Nation litigants.

B.      The Judicial Review Route

Since Sparrow, First Nations in B.C. have brought at least 19 petitions for judicial review.12 First Nations were successful in seven instances13 and partly successful in one.14 The majority of these petitions, however, (11) were unsuccessful.15 While First Nations have, since 1990, been considerably more successful in judicial review proceedings than in injunction applications, courts appear to have become more reluctant to grant judicial review petitions since the Taku River Tlingit and Haida Nation decisions were handed down in 2002.

In its two landmark decisions, the B.C. Court of Appeal made it clear that the duty to consult with aboriginal peoples can be engaged, absent a proven aboriginal right, in cases where an aboriginal right prima facie appears to exist. The Court defined this duty as a free-standing legally enforceable obligation to consult in good faith and seek workable accommodations with aboriginal peoples with regard to reconciling the differing interests between aboriginal title and rights, and the public interest (Haida Nation, at para. 29). The Court also found that, in certain circumstances, a duty to consult and to accommodate can extend to third party corporations (Haida Nation, at para. 60).

As discussed above, however, First Nations applying for judicial review of decisions concerning land and resource-based activities in their territories have been less successful since the Crown's duty to consult was articulated in 2002.16

In initial success, in Gitxsan, the Court found that the Crown had breached its duty to consult but nonetheless refused to quash the impugned decision. In that case, the Gitxsan, Lax Kw'alaams, Metlakatla and Gitanyow Nations claimed a territory of northwestern B.C. that included Skeena Cellulose's timber licence area. Pursuant to s. 54 of the Forest Act, R.S.B.C 1996, c. 157, the Minister of Forests consented to the change of control of Skeena to NBBC Timber. All four First Nations filed petitions seeking judicial review of the Province's decision. Tysoe J. ruled that the petitioning First Nations were not provided with all necessary information in a timely way, or at all, prior to the Minister's decision (Gitxsan, at para. 88). Further, he found that the Crown did not undertake the consultation with a genuine intention of substantially addressing the concerns of the First Nations.

He concluded, therefore, that the Minister had not satisfied his duty of consultation and accommodation to the First Nations before he made his decision.

Despite his findings, however, Justice Tysoe did not quash the Minister's decision to transfer the timber licence. Justice Tysoe's remedy was to exhort the parties to negotiate, with the liberty of Gitxsan to re-apply if the Minister did not fulfil its duty to consult.

Now that the obligation of the Crown to consult and seek workable accommodations with aboriginal peoples is well established, a next generation issue is what level of consultation and accommodation will be sufficient to fulfill that duty. In the Saulteau and Lax Kw'alaams No. 2 decisions, the Court concluded that the Crown had adequately consulted the affected First Nations before granting permits to conduct resource-based activities in their territories. In particular, Justice Shabbits held that "[t]he petitioners were heard, and their views were considered. I do not see that there was any purpose or need for further consultation" (Lax Kw'alaams No. 2, at para. 15).

Similarly, in Musqueam (B.C.), the Court also found that the Crown had fulfilled its duty to consult. In that case, an agreement of sale had been made, despite the Musqueam Indian Band's objections, between LWBC and the University of British Columbia in respect of lands within Musqueam territory. LWBC offered a compensation package comprised mainly of a one-time payment of $550,000. Musqueam countered with a four part proposal. It would purchase the land for $10 million (to be paid after 10 years or at the conclusion of a treaty), the sale of an additional parcel of land would be deferred, LWBC would assist Musqueam in obtaining a forest tenure and Musqueam would be provided with an annual amount of firewood in perpetuity. Justice Warren held that in the particular circumstances of the case the "duty of consultation and accommodation at the interim stage was met when, after a series of meetings, LWBC made an offer to Musqueam resting primarily on reasonable economic compensation" (Musqueam (B.C.) at para. 72). Warren J.'s decision is currently under appeal. The Court of Appeal has heard Musqueam's appeal and has reserved its decision pending the decision of the Supreme Court of Canada in Haida Nation and Taku River Tlingit.

IV.      The Potential Impact of a Favourable Decision

If First Nations are successful, against the odds, in addressing all the evidentiary and tactical hurdles in a judicial review petition or an injunction application, the next question becomes: what is the effect of such a favourable ruling by the Court?

An injunction would immediately stop all development and activity on the land over which aboriginal rights and title are asserted. In Pasco, for example, the Canadian National Railway Company was restrained from conducting any further work in connection with a twin track system until the trial or other disposition of the action.

In contrast, a successful judicial review petition would not necessarily have such an effect. The Court may exhort the parties to resume the negotiations, as in Gitxsan. This remedy ultimately resulted, in that case, in a Forestry/Range Interim Measures Agreement between the Minister of Forests and the Lax Kw'alaams Indian Band and Allied Tsimshian Tribes Association in October 2003 (British Columbia, Forestry/Range Interim Measures Agreement, online: Ministry of Forests ). Under that agreement, the First Nations were awarded $6.85 million and 650,000 cubic metres of timber over a five-year period.

Alternatively, the matters will likely be remitted back to the decision-maker for reconsideration on the basis of certain guiding principles. The decision-maker will then reconsider the approval of the land or resource permit and may later decide to reissue the permit. The Taku River Tlingit case serves as an example of this situation.

In that case, Redfern Resources Ltd. had proposed to re-open the Tulsequah Chief Mine and planned the construction of an access road that would go across the traditional territory of the Taku River Tlingit First Nation. Although the Tlingit participated in a Project Review Committee and asserted their aboriginal rights and concerns, the project was nonetheless approved by the Minister of Environment, Lands and Parks and the Minister of Energy and Mines. The First Nation brought a petition to set aside the Ministers' decision to issue the Project Approval Certificate.

Justice Kirkpatrick's decision to allow the petition was upheld by the B.C. Court of Appeal, which remitted the Certificate back to the Ministers for reconsideration. Rowles J.A. (Huddart J.A. concurring) directed the Ministers to revisit the question of the issuance of the Project Approval Certificate, bearing in mind the reasons for judgment in Taku River Tlingit and the decisions of the Supreme Court of Canada concerning the Crown's constitutional and fiduciary obligations to aboriginal peoples.

In December 2002, the Ministers reissued the Project Approval Certificate to Redfern Resources Ltd. The Certificate states that all documents prescribed by the Court of Appeal were considered and that the Province had consulted with the Tlingit (British Columbia, Project Approval Certificate M02-01, online: Environmental Assessment Office ). The question remains, however, whether the extent of the consultation process undertaken after the Court of Appeal's decision was actually adequate.

For judicial review to be truly meaningful, the Ministries asked to reconsider decisions regarding land or resource-based permits must actually take into account the interests and concerns of affected First Nations. Merely stating that the principles and jurisprudence referred to by the Court have been considered should not suffice.

V.      Conclusion

For First Nations, judicial review offers a more flexible and attainable remedy than injunctive relief. There is, however, a clear risk that the benefits of a successful judicial review may be ephemeral. The jurisprudence makes it clear that the injunction test currently used by the Courts is ill-suited to the unique nature of aboriginal claims. A change in this hard line is needed before the Crown's duty to consult and accommodate is enforceable, in reality, by First Nations. In the meantime, First Nations may wish to think beyond the immediate skirmishes.

In the longer term greater certainty may only be achievable when aboriginal rights and title are determined through litigation or comprehensive negotiations and when treaty breaches are addressed in a systematic and cumulative way. As Justice Southin put it in Halfway, the question to be resolved is not whether the infringement of aboriginal rights and title or treaty rights by the Crown is justified, but whether those rights have been "ly impaired." If they have, the Crown must make them right:

In my opinion the issue is not whether there is an infringement and justification within the Sparrow test, but whether the Crown has so conducted itself since 1900 as to be in breach of the Treaty.

...

If the Crown has so conducted itself that it has committed a breach of its obligations under the Treaty to the respondents, and, perhaps, other First Nations who are also Beaver Indians, then it is right that the Crown should answer for that wrong and pay up. The paying up will be done by all the taxpayers of British Columbia (Halfway, supra at paras. 224, 234).

This approach to addressing infringements of treaty rights is equally applicable to aboriginal rights and title. While we recognize that this approach is beyond the financial means of many First Nations, its appeal lies in the opportunity to resolve these issues on a more comprehensive basis.

 

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1. R. v. Sundown, [1999] 1 S.C.R. 393.
2. In Halfway, supra, the statutory decision-maker sent a startling internal e-mail mocking both the treaty language and the Chief of the First Nation (attached). This type of document may be relevant to the fairness of the consultation process and to questions of administrative law but might not be available without full documentary disclosure by the Crown.
3. See, e.g.:MacMillan Bloedel Ltd. v. Mullin (1985), 61 B.C.L.R. 145 (C.A.); Hunt v. Halcan Log Services Ltd. (1986), 15 B.C.L.R. (2d) 165 (S.C.); Jules v. Harper Ranch Ltd., [1989] 3 C.N.L.R. 67 (B.C.S.C.), review denied (1991), 81 D.L.R. (4th) 323; McLeod Lake Indian Band v. British Columbia (1988), 33 B.C.L.R. (2d) 378 (S.C.), aff’d [1989], 4 C.N.L.R. 98 (B.C.C.A.); Pasco v. Canadian National Railway Co. (1985), 69 B.C.L.R. 76 (S.C.), aff’d [1986], 1 C.N.L.R. 34 (B.C.C.A.) [Pasco]; Saanichton Marine Ltd. v. Tsawout Indian Band (1987), 18 B.C.L.R. (2d) 217 (S.C.), aff’d (1989), 36 B.C.L.R. (2d) 79 (C.A.); Westar Timber Ltd. v. Gitksan Wet’suwet’en Tribal Council (1989), 37 B.C.L.R. (2d) 352 (C.A.).
4. Chemainus First Nation v. British Columbia Assets and Lands Corp., [1999] 3 C.N.L.R. 8 (B.C.S.C.) [Chemainus]; Cheslatta Carrier Nation v. British Columbia (Environmental Assessment Act, Project Assessment Director) (1998), 53 B.C.L.R. (3d) 1 (S.C.) [Cheslatta]; Chief Stewart Cameron v. HMTQ et al (4 November 1998), Vancouver No. C985538 (B.C.S.C.) [Chief Stewart Cameron]; Heiltsuk Nation v. British Columbia (Minister of Sustainable Resource Development) (2003), 19 B.C.L.R. (4th) 107 (S.C.) [Heiltsuk]; House of Wiigyet v. Kispiox District (District Manager) (1991), 51 B.C.L.R. (2d) 73 (S.C.) [Wiigyet]; Kitkatla Band v. British Columbia (Minister of Forests) (1998), 56 B.C.L.R. (3d) 144 (C.A.) [Kitkatla (B.C.C.A.)]; Kitkatla Band v. Canada (Minister of Fisheries and Oceans) (2000), 181 F.T.R. 172 (T.D.), aff’d 258 N.R. 129 (F.C.A.) [Kitkatla (F.C.)]; Lax Kw’alaams Indian Band v. British Columbia (Minister of Forests), 2004 BCCA 306 [Lax Kw’alaams]; Malahat Indian Band v. British Columbia (Minister of Environment, Lands and Parks), [1998] B.C.J. No. 2798 (QL) (S.C.) [Malahat]; Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2004 BCSC 506 [Musqueam( B.C.)]; Musqueam Indian Band v. Canada (Governor in Council), 2004 FC 579 [Musqueam (F.C)]; Nanoose Indian Band v. British Columbia, [1995] B.C.J. No. 3059 (QL) (S.C.) [Nanoose]; Neskonlith Band v. Canada (Attorney General) (1997), 136 F.T.R. 202 (T.D.) [Neskonlith]; Old Massett Village Council v. Canada, [1996] F.C.J. No. 985 (QL) (F.C.T.D.) [Old Massett]; Ryan v. British Columbia (Minister of Forests - District Manager), [1994] B.C.J. No. 2642 (QL) (S.C.) [Ryan]; Siska Indian Band v. British Columbia (Minister of Forests) (No. 1) (1998), 62 B.C.L.R. (3d) 133 (S.C.) [Siska No. 1]; Siska Indian Band v. British Columbia (Minister of Forests) (No. 2), [1999] B.C.J. No. 2354 (QL) (S.C.) [Siska No. 2]; Skeena Cellulose Inc. (Re) (2002), 34 C.B.R. (4th) 298 (S.C.) [Skeena]; Snuneymuxw First Nation v. British Columbia (2004), 26 B.C.L.R. (4th) 360 (S.C.) [Snuneymuxw]; Soowahlie Indian Band v. Canada (Attorney General), 2001 FCT 1334, aff’d 2001 FCA 387 [Soowahlie]; Te'Mexw Treaty Assn. v. W.L.C. Developments Ltd., [1999] 1 C.N.L.R. 249 (B.C.S.C.) [Te’Mexw]; Tlowitsis-Mumtagila Band v. MacMillan Bloedel Ltd. (1990), 53 B.C.L.R. (2d) 69 (C.A.) [Tlowitsis]; Tsay Keh Dene Band v. British Columbia (Minister of Environment, Lands and Parks) (1997), 24 C.E.L.R. (N.S.) 66 (B.C.S.C.) [Tsay Keh Dene]; Westbank First Nation v. British Columbia, [1997] 2 C.N.L.R. 221 (B.C.S.C.) [Westbank]; Wilps Gutginuxs v. British Columbia (District Manager) (1995), 17 B.C.L.R. (3d) 77 (S.C.) [Wilps]; Yale Indian Band v. Lower Fraser Fishing Authority, [1993] 1 C.N.L.R. 182 (B.C.S.C.) [Yale]. It should be noted that in some of these cases the applicants proceeded with injunction applications in the context of judicial review: Heiltsuk, supra, Kitkatla (F.C.), Musqueam (F.C.), supra, Nanoose, supra, Neskonlith, supra, Skeena, supra.
5. Musqueam (F.C.), supra, Snuneymuxw, supra.
6. Ryan, supra, Wilps, supra.
7. Heiltsuk, supra, Kitkatla (F.C.), supra, Musqueam (B.C.), supra, Neskonlith, supra, Old Massett, supra, Soowahlie, supra, Te’Mexw, supra.
8. Chemainus,supra, Chief Stewart Cameron, supra, Kitkatla B.C.C.A., supra, Lax Kw’alaams, supra, Nanoose, supra, Siska No. 1, supra, Siska No. 2, supra, Skeena, supra, Tlowitsis, supra, Tsay Keh Dene, supra, Westbank, supra, Wiigyet, supra, Yale, supra.
9. Cheslatta, supra: project nearly completed; Malahat, supra: Crown Proceeding Act, s. 11. In Malahat, supra, the Court held that the proceedings should have been commenced by way of petition for judicial review.
10. Kitkatla B.C.C.A., supra, Nanoose, supra, Siska No. 1, supra, Siska No. 2, supra, Skeena, supra, Tlowitsis, supra, Westbank, supra.
11. Out of the 26 injunction applications reviewed for this paper and referred to above
12. Blueberry River Indian Band v. British Columbia (Ministry of Employment and Investment), [1997] B.C.J. No. 2864 (QL) (S.C.) [Blueberry]; British Columbia (Minister of Forests) v. Westbank First Nation, [2001] 1 C.N.L.R. 261 (B.C.S.C.) [Westbank No. 2]; Cheslatta, supra; Gitxsan First Nation v. British Columbia (Minister of Forests) (2002), 10 B.C.L.R. (4th) 126 (S.C.) [Gitxsan]; Haida Nation, 2004 BCSC 1243 (Haida Nation No. 2); Halfway, supra; Heiltsuk, supra; Kelly Lake Cree Nation v. Canada (Ministry of Energy and Mines), [1999] 3 C.N.L.R. 126 (B.C.S.C.) [Kelly Lake]; Kitkatla Band v. British Columbia (Ministry of Small Business, Tourism and Culture) (1998), 61 B.C.L.R. (3d) 71 (S.C.), aff’d (2000), 72 B.C.L.R. (3d) 247 (C.A.), aff’d [2002], 2 S.C.R. 146 [Kitkatla No. 2]; Klahoose First Nation v. British Columbia (Minister of Forests) (1995), 13 B.C.L.R. (3d) 59 (S.C.), aff’d (1996), 18 B.C.L.R. (3d) 194 (C.A.), leave to appeal dismissed, [1996] S.C.C.A. No. 263 (QL) [Klahoose]; Lax Kw’alaams Indian Band v. British Columbia (Minister of Forests), 2004 BCSC 420 [Lax Kw’alaams No. 2]; Musqueam (B.C.), supra; Nanoose, supra; Neskonlith Band v. Canada (Attorney General) (1997), 138 F.T.R. 81 (T.D.) [Neskonlith No. 2]; Saulteau First Nation v. British Columbia (Oil and Gas Commission) (2004), 11 Admin. L.R. (4th) 210 (B.C.S.C.), aff’d 2004 BCCA 286 [Saulteau]; Taku River Tlingit, supra; Tsawwassen Indian Band v. Canada (Minister of Finance) (1998), 145 F.T.R. 1 (T.D.), aff’d (2001), 201 F.T.R. 137 (C.A.) [Tsawwassen]; Wilps, supra.

13. Blueberry, supra, Gitxsan, supra, Haida Nation, supra, Halfway, supra, Taku River Tlingit, supra, Westbank No. 2, supra; Haida Nation No. 2, supra.
14. Kitkatla No. 2, supra.
15. Cheslatta, supra, Heiltsuk, supra, Kelly Lake, supra, Klahoose, supra, Lax Kw’alaams No. 2, supra, Musqueam (B.C.), supra, Nanoose, supra, Neskonlith No. 2, supra, Saulteau, supra, Tsawwassen, supra, Wilps, supra.
16. Heiltsuk, supra, Lax Kw’alaams No. 2, supra, Musqueam (B.C.), supra, Saulteau, supra. It should be noted that the Gitxsan First Nation was granted a judicial review petition in 2002: Gitxsan, supra.