Date: 20080730
Docket: T-754-07
Citation: 2008 FC 928
Ottawa, Ontario, July 30,
2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN :
THE TZEACHTEN FIRST NATION,
THE SKOWKALE FRIST NATION, and
THE YAKWEAKWIOOSE FIRST NATION
Applicants
and
THE ATTORNEY GENERAL OF CANADA,
CANADA LANDS COMPANY LIMITED, and
CANADA LANDS COMPANY CLC LIMITED
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review brought by
the applicants pursuant to s. 18.1 of the Federal Courts Act, R.S.C.
1985, c. F-7 (the Act), as amended, respecting a decision taken by the Treasury
Board, to transfer substantially all of the land which remained in the federal
inventory from the former Canadian Forces Base at Chilliwack, British Columbia
(CFB Chilliwack) to Canada Lands Company CLC Limited (CLC).
[2]
The applicants are three communities of the Sto:lo
Nation who descend from the Chilliwack Tribe, a subgroup of the Sto:lo and a
part of the Coast Salish people. The applicants have Indian Reserves within the
municipal boundaries of the City of Chilliwack, close to the former CFB Chilliwack.
[3]
The respondent, CLC, is a wholly owned subsidiary of
Canada Lands Company Limited (CLCL). CLCL is a Crown corporation and agent of
the Crown, declared as such under the Government Corporations Operation Act,
R.S.C. 1985, c. G-4, effective September 16, 2003. CLCL reports to Parliament
through the Minister of Transport, Infrastructure and Communities. CLC
purchases properties at fair market value from the federal government and then
improves, manages or sells such properties with the goal of achieving optimal
financial and community value for both local communities and ultimately the
Crown, as its sole shareholder.
I. Background
[4]
The lands at the heart of the present application are
two parcels of former CFB Chilliwack known as the “Rifle Range” and “Promontory Heights” and referred to collectively as “Parcel C”. The lands are located
east of Vedder Road and bounded
on several sides by the Indian Reserve of the first applicant, Tzeachten First
Nation.
[5]
In the 1880s, the Province of British Columbia
transferred by statute to the Government of the Dominion of Canada, a tract of
land twenty miles in breadth on each side of a railway connecting the British
Columbia seaboard with the railway system which Canada was undertaking to build
(the Railway Belt). This tract included the Rifle Range and Promontory Heights. Subsequently, between
1892 and 1915 Canada issued
various Crown grants for these lands to private individuals.
[6]
In 1942 and 1943, Canada re-acquired a portion of these lands, including the Rifle Range and
Promontory Heights for the
purpose of establishing CFB Chilliwack.
[7]
In 1988 and 1997, thirteen Sto:lo communities,
including the applicants, submitted a Specific Claim pursuant to Canada’s Specific Claims policy. This
policy deals with claims related to the government’s administration of land and
other Indian assets and to the fulfillment of Indian Treaties, but not with
claims of Aboriginal title. In essence, the claim asserted that CFB Chilliwack
formed part of two Indian Reserves created in 1864, which were then unlawfully
reduced, and the excluded sections conveyed to Canada as part of the Railway Belt.
[8]
In July 1999, the Sto:lo Specific Claim was rejected by
Canada. The Sto:lo appealed
this decision to the Indian Claims Commission. In September 2003, the appeal
was placed in abeyance.
[9]
In 1995, Canada announced the pending closure of CFB Chilliwack.
[10] Also in 1995, eighteen Sto:lo communities, including the applicants,
filed a statement of intent to negotiate a treaty under the auspices of the
British Columbia Treaty Commission (the BCTC) with respect to traditional
territories which included all of CFB Chilliwack. In 2006, nine communities,
including the applicants, filed an amended statement of intent which also
included CFB Chilliwack. Negotiations continue, but no treaty has resulted thus
far.
[11] Between September 1995 and June 2000, Canada met with the applicants approximately twenty six times. No
agreement with respect to the former CFB Chilliwack lands was reached.
[12] In June 2000, a disposal strategy for the former CFB Chilliwack
lands put forward by Canada
(the 2000 Disposal Strategy) was approved by the Treasury Board (the 2000
Decision). The strategy provided as follows:
a)
transfer Parcel “A”, 62 hectares, to CLC;
b)
retain Parcels “B”, “C”, “E”, “F”, and “G” for a two-year period from
June 2000 to allow the Chief Federal Treaty Negotiator an opportunity to engage
in treaty land selection negotiations with the Sto:lo, and upon the conclusion
of those two years to return to Treasury Board to obtain the authority to
transfer to CLC any lands not selected for treaty purposes;
c)
protect Parcel “D” (known as the Wet Gap property) as a public nature
conservancy with the Department of National Defence (DND) leading discussions
and consultations with the City of Chilliwack and the Sto:lo and other
interested stakeholders to determine the best management arrangement and future
ownership to ensure such protection;
d)
to retain Parcel “H” with a change in administration to permit the RCMP
to use the parcel for training purposes; and
e)
have DND retain Parcel “I” consisting of a military cenotaph and an Area
Support unit for the Canadian Forces.
[13] The applicants and the Soowahlie brought an application to the Federal
Court to challenge the Treasury Board’s decision on July 14, 2000. The Attorney
General brought an application to convert the judicial review to a trial of
action which was dismissed by a prothonotary and then granted on appeal. The
applicants and the Soowahlie brought an appeal from that decision. While the
appeal was pending, CLC began the process of selling Parcel A. The applicants
brought an application for an interim stay. The application was dismissed, as
was an appeal. Following the decision of the Federal Court of Appeal, CLC
proceeded with selling Parcel A and the applicants and the Soowahlie
discontinued their proceedings.
[14] On June 26, 2002, DND wrote to the applicants and advised them that
in accordance with the 2000 Disposal Strategy, DND was preparing to return to
the Treasury Board for further direction regarding the disposal of the
remainder of the Chilliwack
lands.
[15] On August 8, 2003, DND informed the applicants that the Federal
Government had authorized the sale of the remainder of the surplus lands from
CFB Chilliwack to CLC.
[16] Substantially all of the remaining CFB Chilliwack lands, including
the Rifle Range and Promontory Heights were conveyed to CLC on March 31,
2004.
[17] In early May of 2004, representatives of the Chilliwack School District informed the applicants
that the School District was planning to acquire land from CLC to construct a
new secondary school on a parcel of the CFB Chilliwack lands. The applicants
wrote to CLC enquiring into the status of the lands and seeking consultation
with CLC before any land was transferred. CLC confirmed it was contemplating
the sale and indicated that regional representatives of CLC would be “in direct
contact with Sto:lo Nation in advance of any further attention to the subject
property”.
[18] CLC informed the applicants on December 14, 2004 that it would not
consult on any matter relating to the CFB Chilliwack lands and indicated that
it understood that “the Treasury Board was satisfied with the extensive
consultation that had occurred prior to the approval of the transfer”. The
applicants’ counsel subsequently wrote to the Treasury Board and DND seeking
information and consultation, which did not occur.
[19] CLC transferred approximately 14 acres of the Rifle Range land to
the Chilliwack School District on March 1, 2005. Subsequently
1.77 acres of the same parcel were transferred to the City of Chilliwack to serve as a park buffer for
the school on October 31 or November 15 of the same year.
[20] On March 23, 2005, the Department of Justice advised that Canada would not enter into any
consultation with the applicants concerning the transfer of CFB Chilliwack to
CLC.
II. Issues
[21] This application raises the following issues:
(1)
Did Canada fulfill the duty to consult?
(2)
Does this Court have jurisdiction over the
respondent, CLC?
(3)
Is a duty to consult owed by the respondent,
CLC, to the applicants? If so, was it fulfilled?
(4)
What remedies are available?
III. The
standard of review
[22]
The parties to the present application made no
submissions with respect to the standard of review. In light of the Supreme
Court of Canada’s decision in Dunsmuir v. New
Brunswick, 2008 SCC 9, at para. 62, the first step
in determining the appropriate standard of review to be applied is to ascertain
whether the jurisprudence has already determined to a satisfactory degree the
deference to be accorded with regard to that particular category of question.
[23] In Ka’a’Gee Tu First Nation v. Canada (Attorney General), 2007 FC 763, 315
F.T.R. 178 at paras. 91-93, my colleague Justice Edmond Blanchard, following
the general principles espoused in Haida Nation v. British Columbia (Minister of
Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at
paras. 61-63, indicated that a question as to the existence and content of the
duty to consult and accommodate is a question of law reviewable on the standard
of correctness and further that a question as to whether the Crown discharged
this duty to consult and accommodate is reviewable on the standard of
reasonableness.
[24] Accordingly, when it falls to determine whether the duty to consult
is owed and the content of that duty, no deference will be afforded. However,
where a determination as to whether that duty was discharged is required, the
analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] […] whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at para. 47).
IV. Analysis
1) Did Canada fulfill the duty to consult?
A) General Principles
[25]
“The fundamental objective of the modern law of
aboriginal and treaty rights is the reconciliation of aboriginal peoples and
non-aboriginal peoples and their respective claims, interests and ambitions” (Mikisew
Cree First Nation v. Canada (Minister of Canadian Heritage,
2005 SCC 69, [2005] 3 S.C.R. 388 at para. 1). Reconciliation involves looking
both to the future and to the past. Its aim is the creation of healthy and
mutually beneficial relationships between Aboriginal and non-Aboriginal
peoples, and the redress of historical grievances which will constitute the
basis of those new relationships.
[26]
The duty to consult and accommodate is part of the
process of fair dealing and reconciliation (Haida Nation, above, at
para. 32). With the affirmation of Aboriginal rights enshrined in s. 35(1) of
the Constitution Act, 1982, Parliament recognized the existing
rights of Aboriginal peoples who had exercised de facto control of land
and resources prior to the Crown’s assertion of sovereignty. Accordingly, the
Crown has a duty of honourable dealing towards Aboriginal peoples from which
flows that process of reconciliation (Haida Nation, above, at
para. 32; Taku River Tlingit First Nation v. British Columbia (Project Assessment
Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at
para. 24).
[27]
The duty to consult arises “when the Crown has
knowledge, real or constructive, of the potential existence of the Aboriginal right
or title and contemplates conduct that might adversely affect it” (Haida
Nation, above, at para. 35; see Taku, above, at para. 25). In the
present case, the parties do not dispute that a duty to consult arose and was
owed by Canada to the
applicants. Rather, the point of contention between the parties is the scope
and content of that duty in this particular case.
B) The Scope and Content of the Duty to Consult
[28]
The scope and content of the duty to consult is “proportionate to a
preliminary assessment of the strength of the case supporting the existence of
the right or title, and to the seriousness of the potentially adverse effect upon
the right or title claimed” (Haida Nation, above, at para. 39; Taku,
above, at para. 29).
[29]
The duty to consult can be conceptualized as existing
along a spectrum. The particular scope and content of that duty are determined
by multiple factors including the prima facie strength of the claim, the
significance of the right and potential infringement, and the nature of the potential
damage to the claimed right or title. Where the claim to title is weak,
the Aboriginal right limited, or the potential for infringement minor, the
content of the duty may only be “to give notice, disclose information,
and discuss any issues raised in response to the notice” (Haida Nation, above,
at para. 43). Conversely, where there is a strong prima facie case for
the claim, the right and potential infringement is of high significance to the
Aboriginal peoples concerned and the risk of non-compensable damage is high,
deep consultation may be required (Haida Nation, above, at para. 44). This
deep consultation may include “the opportunity to make submissions for
consideration, formal participation in the decision-making process, and
provision of written reasons to show that Aboriginal concerns were considered
and to reveal the impact they had on the decision” (Haida Nation, above,
at para. 44).
[30]
Each case must be approached individually and flexibly
given that “the level of consultation required may change as the process goes
on and new information comes to light” (Haida Nation, above, at para.
45). The guiding principle is maintaining the honour of the Crown and effecting
reconciliation between the Crown and Aboriginal peoples. Before a settlement is
reached, the Crown is bound by its honour to balance societal and
Aboriginal interests in decisions affecting their potential claims (Haida Nation, above, at para. 45).
i) The preliminary assessment of the strength
of the case
[31]
Given that the present case involves a claim of title, it is useful to
review the law regarding the establishment of Aboriginal title in Canada. In
the case of R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R.
220 at paras. 55-57, the Supreme Court of Canada dealt briefly with the central
principles:
55 (. . .) To establish
title, claimants must prove "exclusive" pre-sovereignty
"occupation" of the land by their forebears: per Lamer C.J.,
at para. 143.
56 "Occupation"
means "physical occupation". This "may be established in a
variety of ways, ranging from the construction of dwellings through cultivation
and enclosure of fields to regular use of definite tracts of land for hunting,
fishing or otherwise exploiting its resources": Delgamuukw, per
Lamer C.J., at para. 149.
57 "Exclusive"
occupation flows from the definition of aboriginal title as "the right to
exclusive use and occupation of land": Delgamuukw, per Lamer C.J.,
at para. 155 (emphasis in original). It is consistent with the concept of title
to land at common law. Exclusive occupation means "the intention and
capacity to retain exclusive control", and is not negated by occasional
acts of trespass or the presence of other aboriginal groups with consent (Delgamuukw,
at para. 156, citing McNeil, at p. 204). Shared exclusivity may result in joint
title [page247] (para. 158). Non-exclusive occupation may establish aboriginal
rights "short of title" (para. 159).
[32]
Pursuant to Marshall, above, at paras. 58 and 59, occasional
entry and use will not suffice and seasonal use of the lands for hunting and
fishing or for other resource harvesting will typically translate into the
existence of an aboriginal right to the resource not aboriginal title. I would
add that Aboriginal peoples may be capable of proving exclusive occupation even
if other groups entered and used the lands in question, if such access was
granted upon request (Delgamuukw v. British Columbia), [1997] 3 S.C.R.
1010, 153 D.L.R. (4th) 193 at para. 156).
[33]
The applicants submit that they have a strong prima facie case
for Aboriginal title to the Rifle Range and Promontory Heights. The evidence of
the applicants’ Aboriginal title is of three types: (1) oral history evidence
in affidavit form of the activities of the Chilliwack Tribe of the Sto:lo Nation,
(2) evidence relating to their Specific Claim to reserve lands, and (3) a
report containing archeological analysis of past activity of the Chilliwack
Tribe in the vicinity of CFB Chilliwack.
[34]
The oral history evidence indicated that before the 1920s, when it was
diverted, the Chilliwack River ran through the Rifle Range and Promontory Heights
areas. The people of the Chilliwack Tribe used the river as a main
transportation route for travel to and from a main village site and also for
trading purposes. They fished salmon from the river, and hunted and gathered
food from the surrounding area, including the Rifle Range and Promontory
Heights. Finally, long before the river was diverted, the Chilliwack erected
and maintained a look-out on Promontory Heights to protect their community from
invading tribes who used the river to conduct raids.
[35]
The evidence from their Specific Claim to reserve lands indicated that
in 1864, William McColl was sent into the Fraser Valley by Governor James
Douglas to survey and lay out reserves for the Sto:lo People. However, these
reserves were subsequently reduced and the excluded territory made available
for settlement by Joseph Trutch, Chief Commissioner of Land and Works under
Governor Frederick Seymour. Governor Douglas’ instruction to McColl were
transcribed as follows:
Mr. McColl will mark out with
corner and intermediate posts whatsoever land the Indians claim as theirs and
at any village where the quantity of Land demanded by the Indians is not equal
to ten acres for each family Mr. McColl will enlarge the Reserve to that
extent.
These lands included the Rifle
Range and Promontory Heights areas.
[36]
The archeological evidence resulted as part of the process by which CFB Chilliwack
was decommissioned. During this process, DND commissioned a comprehensive study
of the Base lands, which included an archeological overview assessment.
[37]
The overview revealed the following pertinent information:
a)
The CFB Chilliwack lands are within the traditional territories of the
Soowahlie and Tzeachten bands. (p.79 Applicant’s Record (AR) vol. 1)
b)
One expert opined that although the Chilliwack people migrated to some
degree, occupation of the area in the vicinity of Promontory Heights was
ongoing for a considerable period before the final move above Vedder Crossing.
(p. 81, AR vol. 1)
c)
However, the reserves incorporated were all within the region of later Chilliwack
occupancy, while the early village sites on the upper portion of the river were
excluded. (p. 85, AR vol. 1)
d)
One expert has suggested that the movement of the Chilliwack downriver
was in part precipitated by the establishment of the Hudson’s Bay Company Fort
Langley in 1827 which resulted in fewer attacks from the coast and served as an
inducement to trade. (p. 85, AR vol. 1)
e)
The Chilliwack settlement pattern was semi-sedentary. Villages were
inhabited from November to March, after which time most people moved to hunting
camps, fishing stations and plant gathering or other resource sites for the
duration of the spring and summer. (p. 82, AR vol. 1)
f)
The Chilliwack used the full seasonal and spatial range of resources
available in their territories through fishing hunting, and gathering
activities. (p. 83, AR vol. 1)
g)
The Chilliwack erected a defensive site used to anticipate raiding
parties or approaching visitors, on the north bank of the river on a high rocky
ridge (which may be the look-point described in Mr. Robert’s affidavit). (p.
85, AR vol. 1)
[38]
The respondent, CLC, submits that proof of Aboriginal title, of
pre-sovereignty exclusive use and occupation of the land, is not a simple
matter. While I agree with this statement, I note that the determination of the
applicants’ title claim to the lands in question is not the focus of this
judicial review. In the present case, the analysis requires that the Court
engage in a preliminary assessment of the applicants’ claim in order to
determine the content of the duty to consult.
[39]
The applicants have put forth evidence of pre-sovereignty use and
occupation. The oral history evidence depicts the applicants’ use of the river
for transportation and as a source of food, as well as the use of the
surrounding area for gathering activities and a look-out point. The evidence
from their Specific Claim to reserve lands, which emanates from a period of time
after the assertion of sovereignty in the region, indicates the lands which the
applicants claimed as their own at that time, but not necessarily the
exclusivity of pre-sovereignty occupation. The archeological evidence is
consistent with the oral history evidence in that it supports the applicants’
use and occupation of the lands in question during the relevant period, albeit
in a semi-sedentary or seasonal fashion. In sum, the evidence is of a people
using the panoply of resources available to them in a specific geographical
region in a manner consistent with seasonal changes in the local resource base.
[40]
The lacuna in the applicants’ title claim is with respect to the regularity
and exclusivity of their use and occupation. As indicated above,
seasonal hunting and fishing in a particular area will typically translate into
hunting or fishing rights, not aboriginal title (Marshall, above, at
para. 58). Further, the fact that a portion of the territory claimed was
underwater and used as a transportation and trading route makes the exclusive
occupation of this particular portion all the more difficult to prove. At the
same time, the existence of the look-out tower and the oral history evidence of
its use in guarding against raids are suggestive of at least an intention if
not a capacity to keep unwanted parties out of their territory.
[41]
The evidence of the applicants’ claim is inconclusive. That the
applicants historically used the lands in question, I believe, is strongly
established by the material before the Court; however, that they occupied these
lands with sufficient regularity and exclusivity is not clear. Accordingly,
upon a preliminary assessment, I would qualify the strength of the applicants’
claim of Aboriginal title over the lands in question as one of moderate
strength.
ii) The seriousness of the potentially adverse effect
[42]
The Supreme Court has suggested that the significance of the right
claimed and potential infringement to the Aboriginal peoples concerned as well
as the risk of non-compensable damage are particularly relevant when analyzing
the seriousness of the potentially adverse effect upon the title claim (Haida
Nation, above, at para. 44).
[43]
The cases of Musqueam Indian Band v. Canada, 2008 FCA 214, [2008]
F.C.J. No. 919 (QL) (Downtown Offices) and Musqueam Indian Band v. Canada
(Governor in Council), 2004 FC 579, [2004] 4 F.C.R. 391 (Garden City)
are instructive on this issue. These cases are helpful to the extent that they
deal with qualifying the nature of the harm to a claimed Aboriginal right or
title.
[44]
In Downtown Offices, Justice Sexton highlighted the fact that the
dispute in that case revolved around the disposition by the federal government
of two offices to Larco Investments Limited. The buildings were situated on two
acres of property in downtown Vancouver over which the applicants claimed
title. Of importance was the fact that the use of the property upon disposition
to Larco would not change. This was contrasted with the case of Garden City
where Justice Phelan found that the Musqueam not only claimed an interest in
the land, but that the land had unique importance to the Musqueam (Downtown
Offices, above, at para. 55, Garden City, above, at para. 16) and
that the use and the character of the properties could change as a result of
the transaction (Downtown Offices, above, at para. 56).
[45]
The applicants assert that the issuance of fee simple grants constitutes
a serious infringement on their title. In affidavit evidence, Chief Hall of the
Tzeachten First Nation, affirmed that his community has a pressing need for
land to provide housing to its growing membership and to meet the social and
economic needs of present and future generations. He affirmed that the current
Tzeachten reserve is approximately 700 acres in size, with approximately 670
acres subject to certificates of possession through which individual Band
members hold a possessory interest. The remaining 30 acres is almost all taken
up with a cemetery, sports field, and small commercial development. He
emphasized problems of overcrowding and deterioration of housing stock on the
reserve and lack of additional land for community services such as elders’
facilities, day care, health care and recreational facilities, lack of space
for economic development and no timber or other natural resource that can be
developed to support the community. The Rifle Range and Promontory Heights are
immediately adjacent to the Tzeachten Reserve and thus are uniquely suited to
the expansion of the community.
[46]
The respondent, CLC submits that the sale involves no fresh
infringement. The infringement, if any, occurred a century ago when the federal
Crown issued grants of the lands that now comprise Parcel C. With title gone in
the eyes of provincial law, the land itself was irreversibly changed and a
further sale of Parcel C involves only a perpetuation of the infringement that
has been outstanding since the creation of the Railway Belt.
[47]
With respect, I disagree. While, if the applicants do indeed have a
valid title claim, an infringement can be said to have occurred when the lands
were originally conveyed to private landowners, when the lands were re-acquired
by the federal Crown, a unique situation was created whereby the Crown was in a
position, to a certain extent, to address that alleged original infringement.
Once lands are passed to third parties, the Crown’s ability to preserve any
rights or title that an Aboriginal group may have is curtailed. Should title
subsequently be proven, the government response could be more limited, and in
some cases restricted to the provision of compensation.
[48]
It is true that given that the applicants have not used the land in over
a century, the sale to CLC does not entail a loss of any right which they had
been previously enjoying. However, downplaying the infringement by suggesting
that it forms part of a long history of previous infringement is not consistent
with the honour of the Crown which requires reconciliation.
[49]
In my opinion the present circumstances can be distinguished from those
of Downtown Offices, in that, in all likelihood, the character of the
land will change once it is developed and sold by CLC. In Downtown Offices,
the land in question was already the site of an office building and would
continue to be so. In the present case we are dealing with a relatively
undeveloped piece of land capable of serving multiple interests.
[50]
I accept that given the land and financial constraints bearing upon the
applicants, the decision to convey the land in question represented an
infringement of their potential Aboriginal title. However, based on the record,
I am of the view that the damage is compensable. I note that Chief Hall admits
in his affidavit that the applicants tabled a counter-offer during the
negotiations which proposed that Canada acquire the CFB Chilliwack lands from
the Sto:lo based on a fair market valuation of the lands. This casts doubt upon
the unique importance of the land beyond a propriety interest, to the
applicants.
[51]
Accordingly, as with the strength of the claim, the seriousness
of the potentially adverse affect of infringement presents a complex picture.
With the decommissioning of CFB Chilliwack, the government was in a unique
position to address the applicants’ historical claim and present need for land.
However, given that the nature of the applicants’ interest in the land does not
appear to be based on its unique importance, any present infringement may be
compensated, monetarily or otherwise, over the course of treaty negotiations.
iii) The Scope and Content of the Duty to Consult in the Present Case
[52]
Based on the foregoing, I am of the view that the Crown’s duty to
consult is more than minimal and lies between the two extremes of the
spectrum. Accordingly, in order to fulfill that duty in the present case, something
beyond merely giving “notice, disclos[ing] information, and discuss[ing] any
issues raised in response to the notice” was required (Haida Nation, above,
at para. 43). What was required in the present case was good faith consultation
and a process aimed at addressing the applicants’ concerns.
C) Did Canada Fulfill the Duty to Consult?
[53]
As a preliminary matter, it is necessary to address the applicants’
argument that the 2003 authorization to transfer the remaining CFB Chilliwack
lands to CLC was a separate decision from the 2000 Decision authorizing the
Disposal Strategy. They argue that the circumstances which triggered the
federal government’s duty to consult and accommodate in the present case were
those surrounding the Treasury Board authorization in 2003 to transfer the
remaining lands to CLC. They attempt to distinguish between the authorizations
given in 2000 and 2003 on the basis that, unlike in 2000, the 2003
authorization disposed of the remaining lands forever from Canada’s
perspective. This distinction is of some importance to the applicants’
arguments given that no consultation occurred between the 2000 decision and the
2003 transfer authorization beyond the provision of notice. This is in contrast
to the approximately twenty-six meetings held between Canada and the applicants
before the 2000 Disposal Strategy was approved.
[54]
I agree with the respondent, CLC that the applicants’ submissions on
this point represent “an artificially compartmentalized approach to the facts”.
The transfer authorization which took place in 2003 was simply the
operationalization or finalization of the Disposal Strategy approved in 2000 by
the Treasury Board. Despite the applicants’ arguments to the contrary, the 2000
and 2003 authorizations were essentially two stages of the same decision. There
was no change in the context and no new information which arose between the
relevant dates which would require an additional round of consultation.
Accordingly, the relevant period for the purposes of determining whether Canada
fulfilled its duty to consult is between 1995 when closure of the CFB
Chilliwack was announced and 2003 when the Treasury Board authorized the
transfer of the remaining CFB Chilliwack lands to CLC.
[55] From 1995 to 2000, Canada engaged in significant consultation with
the applicants which at times rose to the level of deep consultation, such as
when they were permitted to make submissions directly to the Treasury Board (Haida
Nation, above, at para. 44). For example, in 1996 the
applicants met with the President of the Treasury Board regarding CFB
Chilliwack. Further, the applicants prepared a report dated May 17, 2000
entitled “Re-use Strategy for CFB Chilliwack” which set out the applicants’
plans for how the Base should be used and submitted it to the Treasury Board.
Additionally, in October 1999, Canada provided the applicants with a copy of a draft submission to the
Treasury Board regarding the lands in question, seeking their comments and
input.
[56]
During the period of consultation, Canada attempted to address Aboriginal
concerns in the various proposals tabled that would either see portions of the
lands in question retained by the Crown, or have the applicants co-manage a
portion of those lands. These policy changes were consistent with the Supreme
Court of Canada’s ruling in Haida Nation, above, at para. 46,
that “[m]eaningful consultation may oblige the Crown to make changes to its
proposed action based on information obtained through consultations” (see and Taku,
above, at para. 25). In my view these were attempts made by Canada “to
harmonize conflicting interests and move further down the path of
reconciliation” (Haida Nation, above, at para. 49).
[57] During 1996 and 1997, consultations between the applicants and Canada were focused on two proposals. The
first involved Canada
continuing to own the Base but its management/administration would fall jointly
to CLC and the applicants while their Specific Claim was resolved and/or land
selection under the BCTP occurred. The second proposal involved 25% of the Base
being disposed of to CLC and of the remaining 75%, approximately half would be
managed by a trust controlled equally by CLC and the applicants and the
remainder would continue to be held by Canada.
[58] No agreement was reached moving forward with the first proposal and
the second was eventually rejected by the applicants as they would not accept a
transfer of any portion of the CFB Chilliwack to CLC.
[59] From late 1997 onwards, two major options were discussed. The first
option being that 60% of the lands would be retained for possible treaty land
selection with the remaining lands transferred to CLC. The applicants rejected
this proposal as they were of the view that since they owned all the lands,
they should be compensated for lands they were giving up. The second option
involved a transfer of lands to be identified by the applicants to the
Department of Indian Affairs and Northern Development, which would then be
leased back to them for a period of between 4-9 years with the applicants
subsequently obtaining the lands at the conclusion of any treaty. The remaining
lands not identified by the applicants would be transferred to CLC for
disposal. An agreement could not be reached on this proposal.
[60] In 1998, the discussions focused on another two options. Pursuant to
the first proposal the applicants would select lands within the Base and DND
lands outside, but near the Base that would accommodate their various needs,
which would ultimately be transferred to them. The second option envisioned a
joint venture arrangement between CLC and the applicants. The idea put forward
by Canada was that part or all
of the Base would be transferred to a CLC/applicants joint venture which would
be outside the treaty process, and the joint venture would proceed to develop
the lands transferred.
[61] The applicants rejected the first option and while they were
interested in the second option, they wished to have a portion of the Base excluded
from the joint venture and transferred to them. The exclusion of land from the
joint venture was a concern to CLC since, depending on the amount of land
excluded, the joint venture might no longer be financially viable. The
applicants indicated that they would bring the joint venture proposal to the
Chief’s Council on November 16, 1998 to seek directions, but never returned
with an answer and the option lapsed.
[62] After these final two major proposals, negotiations on the fate of
the lands in question essentially ceased. As indicated previously, the
applicants submitted a land use plan for the Base to the Treasury Board in May
of 2000. In June 2000, the applicants received notice that a Disposal Strategy
had been approved by the Treasury Board according to which one third of the
remaining CFB Chilliwack lands were to be held back for a period of two years to
allow the Chief Federal Treaty Negotiator an opportunity to engage in treaty
land selection negotiations with the Sto:lo.
[63] After this date the applicants were provided with notice of
impending action to be taken concerning the lands including when DND was
returning to the Treasury Board for instructions regarding the remaining CFB
Chilliwack lands and when the sale of those lands to CLC was imminent.
[64] However, one attempt in 2000 was made to further negotiations. The
federal government offered to discuss the remaining CFB Chilliwack lands with
the Sto:lo treaty negotiator in the context of a set-off in the final treaty
settlement; however, the negotiator indicated he had no mandate to discuss
these lands as a set-off and advised the federal government to contact the
communities with an interest in the CFB Chilliwack lands directly. This did not
occur.
[65]
The respondents submit that the actions of the
applicants over the course of negotiations is indicative of a failure on their
part to fulfill their reciprocal obligation to carry out their end of the
consultation (R. v. Douglas, 2007 BCCA 265, 278 D.L.R. (4th) 653 at
para. 45). It is established that Aboriginals “must not frustrate the
Crown's reasonable good faith attempts, nor should they take unreasonable
positions to thwart government from making decisions or acting in cases where,
despite meaningful consultation, agreement is not reached” (Haida Nation,
above, at para. 42).
[66]
For instance, during a meeting of September 12, 1997, Chief Steven Point, on behalf of the applicants, reiterated the position that the
applicants wanted all the land returned to them with the lands to be held until
conclusion of the treaty process. Further, according to the applicants, the report
submitted on May 17, 2000 to the Treasury Board regarding their proposed land
use strategy for the Base was premised on the following assumption: “Our plan
is premised firstly on the fact of the lands being within the Douglas Reserve
[the subject of the Specific Claim] and is based on our ownership of the
lands”. (p. 480, Applicants’ Record, vol. 2). Thus, the applicants’ position
over the course of the consultation period did not change.
[67]
With respect, I disagree with the respondents’
characterization of the applicants’ behaviour. It is true that the applicants
believed over the course of negotiations, and believe to this day, that they
have Aboriginal title over the lands at the heart of this dispute. This is not
a “position” that is required to change in order to fulfill any reciprocal duty
on their part. Indeed, it is because of this belief that they have engaged in
the BCTC and also because of their belief in their Douglas Reserve claim that
they have participated in the Specific Claims process.
[68]
The reciprocal duty incumbent upon Aboriginal peoples
was elaborated upon in Halfway River First Nation v. British Columbia
(Ministry of Forests), 1999 BCCA 470, 178 D.L.R. (4th) 666 at
para. 161 as a duty to:
(. . . ) express
their interests and concerns once they have had an opportunity to consider the
information provided by the Crown, and to consult in good faith by whatever
means are available to them. They cannot frustrate the consultation process by
refusing to meet or participate, or by imposing unreasonable conditions (. . .)
(See also R. v. Douglas, above)
[69]
I am aware of some reticence on the part of the Sto:lo
Nation to participate early on in the process. For example, a letter dated July
16, 1996 was sent by CLC at the behest of the Treasury Board, to the applicants
with the purpose of receiving comments on their terms of reference for the CFB
Chilliwack re-use strategy. The response of Chief Steven Point was
that they were not prepared to participate in a process that will in any way
diminish or otherwise impair their Aboriginal rights. (pp. 98-103, CLC Record vol.
2).
[70]
However, aside from some initial hesitation, there is
no evidence in the record that the applicants refused to meet or participate,
or imposed unreasonable conditions in the negotiations. They expressed their concerns
to the respondents, made suggestions over the course of consultations,
including that a portion of the lands be hived off and handed over to them just
as a portion was planned on being hived off and conveyed to CLC. I see no
conditions put forth in negotiations which I am able to characterize as
unreasonable. They submitted their own land use strategy to the Treasury Board
and there were approximately 26 meetings in which the applicants participated.
[71]
In spite of good faith attempts made by the parties
involved, as sometimes occurs in negotiations, no agreement was reached. The
duty to consult does not include a duty to agree (Haida Nation,
above, at para. 42). What is required is conduct consistent with the process of
reconciliation. On the evidence before me, I see a “commitment (. . .) to a
meaningful process of consultation”, on the part of both Canada and the
applicants (Haida Nation, above, at para. 42), informed by the spirit of compromise that is inherent in the reconciliation
process (Taku, above, at para. 2).
[72]
The consultation “process does not give
Aboriginal groups a veto over what can be done with land pending final proof of
the claim” (Haida Nation, above, at para. 48) and at some point a
government decision will have to be made. By 2000 it appears
that both the Crown and the applicants’ positions had crystallized.
[73]
The process, in my view, was consistent with the
maintenance of the Crown’s honour. Particularly, the 2000 Disposal Strategy
represented an interim compromise which balanced both the interests of the
applicants in preserving some land pending final resolution of their claim and
that of the Crown to develop surplus federal lands. According to the strategy, one
third of the remaining CFB Chilliwack lands was to be held back for a period of
two years to allow the Chief Federal Treaty Negotiator an opportunity to
engage in treaty land selection negotiations with the Sto:lo. The applicants
contend that two years is insufficient time to conclude treaty negotiations and
emphasize that the first treaty to result from the BCTC process was ratified by
the Tsawwassen First Nation in 2007, after 14 years of negotiation.
[74]
Negotiations with the Crown concerning the lands in question began
essentially in 1995, and while there was some debate as to when the government
was actually prepared to sell the CFB-Chilliwack lands, on the facts, the
hold-back was in effect for more than two years. This was a reasonable time
period for negotiations to proceed; the finalization of a treaty was not what was
required. I would add that between receiving notice of the 2000 Disposal
Strategy and notice that DND would be returning to the Treasury Board for
directions in 2002, the applicants appear to have made no attempts to continue
negotiations with respect to the lands.
[75] Based on the foregoing, I conclude that Canada fully discharged its obligation to consult in the present case. I
am of the view that Canada’s conduct was entirely consistent with maintaining
the honour of the Crown in the present case and attempted to balance
societal and Aboriginal interests in a manner consistent with Haida Nation, above, at para. 45. The process engaged in by Canada, including the proposals tabled and
the breadth and depth of the consultations carried out, falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir, above, at para. 47).
2) Does
this Court have jurisdiction over the respondent CLC?
[76] The applicants argue that CLC is an agent of the Crown and thus bound
by the honour of the Crown to consult with the applicants when it disposes of
property on behalf of the government of Canada in which they have claimed an interest. The respondent, CLC,
challenges the Court’s jurisdiction on this judicial review to direct it to
consult with the applicants, or otherwise enjoin it from disposing of Parcel C
as it sees fit, and contests the applicants’ characterization of CLC as a Crown
agent.
[77] In support of their argument that this Court has jurisdiction over
CLC, the applicants refer to the decision of my colleague Justice Michael
Phelan in Musqueam Indian Band v. Canada (Governor in Council), 2004 FC
1564, 135 A.C.W.S. (3d) 362, where an application was made by CLCL and CLC to
be removed as respondents in that application on the grounds that they were not
a “federal board, commission or other tribunal” within the meaning of s. 2 and
therefore, beyond the Court’s jurisdiction under ss. 18 and 18.1 of the Act. In
dismissing the application Justice Phelan noted the following at para. 32:
While these
respondents [CLCL and CLC] have many characteristics of a private corporation,
there are aspects of its organization and mandate that have a significant
government component. The parent company is a Crown agent; the subsidiary acts
as agent for the parent or on its behalf. Both respondents have the same
policies and these policies are in line with government policies. CLCL, as
parent company, reports to Parliament through a Minister and complies with
federal Crown objectives. The sources of both respondents' mandates are the
federal Crown.
[78] However, this case is not dispositive of the matter before me. The
context in which the preceding paragraph was written was a motion to strike
CLCL and CLC as respondents, and thus the applicable legal principle was
whether the judicial review, including the question of jurisdiction over the
parties, was “bereft of any possibility of success”. Thus, the issue of the
Court’s jurisdiction was not ultimately determined.
[79] Accordingly, it falls to this Court to make a determination on the
matter of its jurisdiction over CLC. The jurisdiction to grant remedies is limited
to “federal boards, commission or other tribunal” (s. 18(1) of the Act). Section
2 of the Act defines a “federal board, commission or other tribunal” as:
(. . .) any
body, person or persons having, exercising or purporting to exercise
jurisdiction or powers conferred by or under an Act of Parliament or by or
under an order made pursuant to a prerogative of the Crown, other than the Tax
Court of Canada or any of its judges, any such body constituted or established
by or under a law of a province or any such person or persons appointed under
or in accordance with a law of a province or under section 96 of the Constitution
Act, 1867;
[80] As stated by the Court in Larny Holdings Ltd. (c.o.b. Quickie
Convenience Stores) v. Canada (Minster of Health), [2003] 1 F.C. 541,
2002 FCT 750, at para. 26, quoting Brown and Evans, Judicial Review of
Administrative Action in Canada (Toronto: Canvasback Publishing, 1998,
loose-leaf edition), at para. 2:4310, “the source of (. . .) authority,
and not the nature of either the power exercised or the body exercising it, is
the primary determinant of whether it falls within the definition [found at
subsection 2(1) of the Act].
[81] The applicants argue that CLC’s authority to dispose of lands on
behalf of Canada derives from a
number of sources including CLC’s original mandate from Cabinet, the Treasury
Board Policy on the Disposal of Surplus Real Property (the Treasury
Board Policy) and the terms and conditions of transfer of properties
by the Treasury Board. These sources of authority in turn originate from a
prerogative of the Crown and the powers conferred on the Treasury Board and the
Governor in Council by s. 16 of the Federal Real Property and Federal
Immovables Act, S.C. 1991, c. 50.
[82] The Treasury Board Policy establishes the procedures
to be followed in the disposal of Crown land. It is issued
pursuant to the Financial Administration Act, R.S., c. F-10, subsections
7(1), 9(1.1), and 9(2), and the Federal Real Property and Federal Immovables
Act, subsection 16(4). Of particular relevance to CLC, the Treasury
Board Policy at “Appendix B – Components of the Strategic
Disposal Process” indicates that:
The custodial
department should also prepare a disposal strategy and recommendation, seeking
approval of the disposal strategy from the appropriate authority. For sales to
the CLC, this document should also identify principles for future development,
as appropriate, and state the conditions or limitations to be imposed on the
proposed redevelopment plan, if necessary. (p. 97, CLC Record, vol. 1)
[83] The Federal Real Property and
Immovables Act, which governs the acquisition, administration and
disposition of real property and immovables by the Government of Canada, sets
out, at s.16, the authority for the disposition or lease of federal real
property in the following manner:
|
16. (1) Despite any regulations made
under subsection (2), the Governor in Council may, on the recommendation of
the Treasury Board, in accordance with any terms and subject to any
conditions and restrictions that the Governor in Council considers advisable,
(a) authorize the disposition or lease of
federal real property or federal immovables for which disposition or lease
there is no provision in or under any other Act;
(. . .)
|
16. (1) Par dérogation aux règlements
d’application du paragraphe (2), le gouverneur en conseil peut, sur la
recommandation du Conseil du Trésor et sous réserve des conditions et
restrictions que lui-même juge indiquées :
a) autoriser la disposition ou la location
d’immeubles fédéraux ou de biens réels fédéraux dans les cas qui ne sont pas
déjà prévus sous le régime d’une autre loi;
(. . .)
|
[84] Accordingly,
while both the Treasury Board Policy establishing the
process for disposal of Crown land, and the authority to dispose of that
land with Governor in Council approval are set out in the statutes noted above,
it cannot be said that either are what confer power and
jurisdiction on CLC. While it was these authorities that permitted Canada to sell lands to CLC, they are not
what gave CLC the authority to be on the other side of that transaction. There
is no conferral of jurisdiction or powers which flow through these instruments
to CLC. To the contrary, the source of CLC’s jurisdiction and powers are its
own articles of incorporation. If and when CLC should decide to dispose of the
lands in question it requires no further approval of the Governor in Council,
nor is it subject to the Treasury Board Policy.
[85] Finally, I conclude that CLC’s mandate, which as Justice Phelan
indicated, has its source in the federal Crown, cannot be construed as a source
of power or jurisdiction pursuant to s. 2 of the Act. The mandate is described
in the document entitled “Canada Lands Company Limited, Corporate Plan Summary,
2003-2004 to 2007-2008” in section 2.1 (p. 63, CLC Record vol. 1) and states
that CLC shares the same purpose or principal goal in its policy mandate as its
parent company which was laid out by the government in 1995 and reconfirmed in
2001. It indicates that “[CLC] also maintains a commitment to environmental
sustainability in its projects, respects heritage considerations and remains
sensitive to First Nations land claims issues”. The fact that CLC
adheres broadly to these guiding principles can in no way be interpreted as a
conferral of powers or jurisdiction.
[86] Thus, I am unable to conclude that this Court has jurisdiction over
CLC. In such circumstances, I do not find it necessary to decide if CLC is an
agent of the Crown bound by its honour to consult with the applicants.
[87]
For these reasons, the present application for
judicial review is dismissed with costs.
JUDGMENT
THIS COURT
ORDERS that the present application for
judicial review is dismissed with costs.
“Danièle Tremblay-Lamer”
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