The Supreme Court of Canada's Decision in Paul:
A Win or a Loss for First Nations?

The Paul decision: provincial adjudicative tribunals can make aboriginal rights determinations

On October 3, 2003, the Supreme Court of Canada rendered its decision in Paul v. British Columbia (Forest Appeals Commission). The case involved the ability of the provincial government to allow forestry tribunals to make decisions in relation to aboriginal rights (including title).

Thomas Paul is a member of the Ahousaht Band. In 1994, Mr. Paul obtained permission from the Chief and Council of the Ahousaht Band to cut down some trees to use in making a deck for his house. The logs were discovered and seized by Forest Service Officers. Mr. Paul asserted that he had cut the trees and possessed the logs in exercise of his aboriginal rights. The Officers arranged for Mr. Paul to attend an "Opportunity to be Heard" hearing before the District Manager. At the hearing, the District Manager found that Mr. Paul had contravened the Forest Practices Code and the Forest Act.

Mr. Paul attended two more hearings, one before the Administrative Review Panel and one before the Forest Appeals Commission. Paul raised the issue of jurisdiction before both bodies. In other words, the question was whether a provincially appointed tribunal had the jurisdiction to make decisions with respect to aboriginal rights. The Forest Appeals Commission believed that it did have the jurisdiction to make such decisions. Proceedings were adjourned, however, to enable the parties to bring the issue before the Supreme Court of British Columbia.

The Supreme Court of British Columbia concluded that the Legislature had conferred on the Forest Appeals Commission, but not on the District Manager or an Administrative Review Panel, the power to decide questions of aboriginal title and aboriginal rights in the course of its judicial function in relation to contraventions of the Forest Practices Code, and that the Legislature had the constitutional capacity to do so.

Mr. Paul appealed to the British Columbia Court of Appeal. The central issue on appeal was whether British Columbia could give provincial tribunals the right to decide questions of aboriginal title and aboriginal rights. The Constitution, Justice Lambert noted, provides that the federal government has the exclusive jurisdiction to make laws in relation to Indians and land reserved for Indians. The question of the applicability of provincial legislation to Indians and land reserved for Indians thus arose. This issue often centers around s. 88 of the Indian Act, which states:

88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act.

The question is, therefore, whether s. 88 of the Indian Act allows a provincial law to apply to Indians despite s. 91(24) of the Constitution Act, 1867, which provides that only the federal Parliament has the jurisdiction to make decisions with respect to Indians and land reserved for Indians.

The interaction between s. 88 and provincial legislation was an issue of key importance in this decision. Justice Lambert concluded that the provincial Legislature does not have the capacity to grant tribunals the power to make decisions with respect to aboriginal rights and title. Justice Donald was in agreement with Justice Lambert. The trial judge's decision was, therefore, reversed by the majority of the Court of Appeal.

Justice Huddart, in dissent, would have upheld the decision of the trial judge. She concluded that the provincial government was not precluded from granting authority to tribunals to make decisions with respect to aboriginal rights in the course of applying forest legislation. Her position with respect to s. 88 was that it "enables provincial laws of general application to apply to and in respect of Indians, including those laws that impair the status or capacity of Indians, subject to treaty provisions and other federal legislation."

Further, Justice Huddart noted that Mr. Paul's only defence to the charges against him was to show that he had an aboriginal right to the logs he harvested. If the provincial tribunal had no jurisdiction to consider Mr. Paul's defence, then Paul would have to prove the aboriginal right in Court. Thus, Justice Huddart concluded, the majority approach would leave Paul no closer to the return of his logs than he was in 1994. Indeed, Paul would have to turn to a lengthy and costly trial in Court to prove his aboriginal right in order to obtain the return of his logs.

Justice Huddart concluded that the better approach was to hold that a provincial decision-maker not only may, but must, comply with the law of the land as set out in s. 35 of the Constitution Act, 1982, which recognizes and affirms aboriginal and treaty rights.

The decision of the majority of the Court of Appeal was appealed to the Supreme Court of Canada, which agreed with Justice Huddart's dissenting reasons. In a unanimous judgment, the Supreme Court of Canada held that the province has legislative authority to confer on an administrative tribunal the capacity to consider a question of aboriginal rights. The Court said that, as a law of general application, the Code applies to Indians, to the extent that it does not touch on the "core" of exclusive federal jurisdiction and is not inconsistent with s. 35 of the Constitution Act, 1982.

Further, the Court explained that the provincial legislation that conferred adjudicative powers to tribunals (the Code) did not attempt to supplement or amend the constitutional and federal rules respecting aboriginal rights. The Code would prescribe that Indians charged with an offence could raise an aboriginal rights defence before the tribunal rather than before the Court. Since this power would not allow the tribunal to extinguish aboriginal rights, and the tribunal's decisions would not constitute legally binding precedents, the Court concluded that the tribunal should not be prevented from merely hearing an aboriginal rights argument.

It is unclear at this point whether the Paul decision will assist or undermine the assertion of aboriginal rights in British Columbia. Some may welcome this decision as requiring British Columbia to stop dodging its positive Constitutional obligation to recognize and affirm aboriginal rights. Others may see it as conferring on the Province and its tribunals too much power to make aboriginal rights determinations.

On balance the Supreme Court of Canada's decision seems to be a helpful one. Administrative decision makers should have to comply with the Constitution Act and "recognize and affirm" aboriginal and treaty rights. If, in doing so, they fall into error, a reading of past cases such as Halfway River First Nation v. British Columbia makes it clear that decisions made by adjudicative tribunals on issues of aboriginal law will be subject to a strict standard of review by the Courts.

In any case, it is reasonable to expect, from a reading of past cases such as Halfway River, that decisions made by adjudicative tribunals on issues of aboriginal law will be subject to a strict standard of review by the Courts.