Date: 20091119
Docket: A-480-08
Citation: 2009 FCA 337
CORAM: SEXTON
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
THE TZEACHTEN FIRST NATION,
THE SKOWKALE FIRST NATION, and
THE YAKWEAKWIOOSE FIRST NATION
Appellants
and
THE ATTORNEY GENERAL OF CANADA,
CANADA LANDS COMPANY LIMITED, and
CANADA LANDS COMPANY CLC
LIMITED
Respondents
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
The issue
in this case is whether the Crown had a duty, after 2000, to consult with the Tzeachten
First Nation, the Skowkale First Nation, and the Yakweakwioose First Nation (which
for simplicity I will refer to collectively as “the Tzeachten”) before deciding
to transfer certain land to Canada Lands Company CLC Limited (“CLC”) in 2003.
The land, referred to as the Rifle Range and Promontory Heights, is part of the site of former
CFB Chilliwack. Justice Tremblay-Lamer determined that no such duty arose, for
reasons reported as Tzeachten First Nation v. Canada (Attorney
General),
2008 FC 928. The
Tzeachten have appealed that judgment. They seek an order setting aside the
judgment, a declaration that the 2003 decision to transfer the land was invalid
or unlawful, and a declaration that the Crown has and continues to have a legal
obligation to consult with the Tzeachten and properly accommodate their
interests with respect to the Rifle Range and Promontory Heights.
Facts
[2]
The
Tzeachten are three communities of the Sto:lo Nation descended from the
Chilliwack Tribe, a subgroup of the Sto:lo Nation and a part of the Coast
Salish people. They have reserves within the municipal boundaries of Chilliwack, British Columbia. Their
evidence is that their reserves are too small to accommodate their needs for
housing and community infrastructure.
[3]
The Rifle
Range and Promontory
Heights comprise part of former CFB
Chilliwack and are adjacent to the Tzeachten First Nation reserve. The
Tzeachten assert an interest in the Rifle Range and Promontory Heights, and indeed on the entire area
formerly occupied by CFB Chilliwack, on two alternative bases.
[4]
The first
basis relates to the allegation of thirteen Sto:lo communities, including the
Tzeachten, that the land upon which CFB Chilliwack was located formed part of
two Indian Reserves, IR 13 and 14, created for them in 1864 under the authority
of James Douglas, then Governor of the Colony of British Columbia. They allege
that in 1868, British
Columbia
unlawfully removed land from IR 13 and 14 and then, in the 1880s, transferred
part of the removed land to Canada in connection with the
construction of the national railway. Between 1892 and 1915 Canada transferred
some of the land to private individuals and later reacquired some of the land,
including the Rifle Range and Promontory
Heights, to establish CFB Chilliwack.
In 1988 and 1997, the thirteen Sto:lo communities submitted a specific claim to
IR 13 and 14 pursuant to Canada’s Specific Claims Policy. In
July 1999, the Crown declined to recommend this claim for negotiation under the
Specific Claims Policy because, in their view, the legal steps required to
create the two reserves were never completed by Governor Douglas or by his successor,
Frederick Seymour, who did not assent to the creation of the reserves. That
decision was appealed to the Indian Claims Commission. In September of 2003,
the appeal was placed in abeyance, where it remains pending the conclusion of
litigation involving the Douglas Reserve claims.
[5]
The second
basis relates to the assertion of a claim by eighteen communities of the Sto:lo
Nation (including the Tzeachten) to unextinguished Aboriginal title to an area
that includes the former CFB Chilliwack land. In 1995, those eighteen Sto:lo
communities filed a statement of intent to negotiate a treaty under the
auspices of the British Columbia Treaty Commission. The treaty has not been
concluded. The treaty negotiations include discussions about additional reserve
land.
[6]
In 1995,
the Crown announced its intention to close CFB Chilliwack. Between September of
1995 and June of 2000, there were approximately 26 meetings between
representatives of the Crown and representatives of the Tzeachten. A partial summary
of those meetings is provided by Justice Tremblay-Lamer at paragraphs 57 to 61
of her reasons:
|
¶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.
|
[7]
The position
of the Tzeachten throughout the period of the meetings and discussions referred
to above was that they have a pressing need for additional land for housing and
other community purposes, they have an unresolved specific claim as well as an
unresolved claim of Aboriginal title to the CFB Chilliwack lands, and that
restoring the CFB Chilliwack lands to them would be the only just and
appropriate resolution of their specific claim. According to the affidavit of
Chief Joseph Leonard Hall sworn June 14, 2007, the Tzeachten considered none of
the Crown’s proposals to be meaningful responses to their claims.
[8]
Chief Hall
also deposes that the Tzeachten tabled a proposal, based on their position that
the CFB Chilliwack land had originally been set aside for them as IR 13 and 14,
that the Crown buy the CFB Chilliwack land from them at fair market value. Chief
Hall stated that after that proposal was made, Canada essentially ended the discussions. Chief
Hall does not say when that proposal was made, but it appears from the
affidavit of Paul Gono, who represented the Crown in most of the meetings with the
Tzeachten, that it occurred at a meeting in late 1999 .
[9]
In the
spring of 2000, a submission was made to the Treasury Board (I assume by either
Public Works and Government Services Canada or the Department of National
Defence (“DND”)) relating to the disposition of the former CFB Chilliwack land.
In the proposal, the land was divided into parcels designated A through I. The Rifle
Range and Promontory Heights were designated
Parcel C. The proposal was as follows:
a. Parcel A would be transferred
immediately to CLC, with the intention that it be improved or sold.
b. Parcels B, C, E, F and G would
be retained 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 Nation, and upon the conclusion of those two years
to return to the Treasury Board to obtain the authority to transfer to CLC any
lands not selected for treaty purposes.
c. Parcel D would be protected as
a nature conservancy.
d. Parcel H would be used by the
Royal Canadian Mounted Police for training purposes.
e. Parcel I would be retained by DND
for a military cenotaph and area support unit for the Canadian Forces.
[10]
In May of
2000, the Tzeachten and Soowahlie (another Sto:lo community) also made a
submission to the Treasury Board, consisting of a detailed study setting out
the importance to them of the CFB Chilliwack land, and a plan for its
development, including band housing, band infrastructure, and some commercial
and mixed use for revenue generation.
[11]
On June
16, 2000, an Order in Council (P.C. 2000-925) was made to authorize the
transfer of Parcel A to CLC. On the same date, the Treasury Board informed the Tzeachten
and Soowahlie that their submission had been considered, but the Treasury Board
had decided to accept the Crown proposal. With specific reference to item (b)
of the proposal (referring to Parcels B, C, E, F and G), the letter says this:
|
Finally,
approximately two-thirds of the site will be retained in the federal
inventory for two years to permit further discussion with the Sto:Lo Nation
on possible land selection under the treaty process.
|
[12]
After the
June 2000 discussions, the Chief Federal Negotiator for the Sto:lo treaty negotiations,
Mr. Robin Dodson, indicated an interest in discussing the held back lands with
the Sto:lo treaty negotiator, Mr. David Joe, in the context of a set-off in the
final treaty settlement. Mr. Joe advised Mr. Dodson that he had no mandate
to discuss these lands as a set-off since they were subject to a specific
reserve interest (referring to the specific claims of the Tzeachten to IR 13
and 14). Mr. Joe also advised the Crown negotiator to contact the Sto:lo
communities with an interest in the CFB Chilliwack lands directly with a view
to resolving the specific claims.
[13]
No further
discussions occurred, and no agreement was reached between the Crown and the
Tzeachten with respect to the disposition of any of the former CFB Chilliwack
land.
[14]
In July of
2000, the Tzeachten and Soowahlie commenced an application in the Federal Court
for judicial review of the decision to transfer Parcel A to CLC. Meanwhile, CLC
began selling parts of Parcel A. The Tzeachten and Soowahlie moved for an order
staying any further transfers pending the disposition of their application, but
their motion was dismissed by the Federal Court and their appeal to this Court
was dismissed. The Federal Court proceeding was discontinued.
[15]
On June 7,
2002, Mr. Dodson informed Mr. Joe that that the Minister of National Defence
was about to return to the Treasury Board to seek additional instructions on
the disposition of the held back portions of the former CFB Chilliwack land. Mr.
Dodson indicated that Indian and Northern Affairs Canada (“INAC”) would advise
the Minister that it had no interest in acquiring any of that land for possible
use in treaties.
[16]
On June
26, 2002, DND wrote to the Tzeachten about the held back land. That letter
reads in relevant part as follows:
|
The two-year hold period
has now expired and INAC has recently advised that they will not be acquiring
any of the former CFB Chilliwack lands for treaty settlement purposes. This
same decision was provided to Mr. Dave Joe, Sto:lo Nation Chief Negotiator
from Mr. Robin Dobson [sic], the Chief Federal Negotiator on 7 June 2002.
With
this letter I wish to advise that the Department of National Defence is now
preparing to return to the Treasury Board of Ministers, in accordance with
the June 2000 disposal plan, for further direction regarding the disposal of
the remainder of the Chilliwack
lands.
|
[17]
On August
8, 2003, the DND informed the Tzeachten that the Crown had authorized the sale
of the remainder of the held back land to CLC. That transfer was completed on
March 31, 2004. By the time of the commencement of the proceedings leading to
his appeal, CLC had sold 14 acres of the Rifle Range to the Chilliwack School District.
[18]
From the
perspective of the Tzeachten, the transfer of the Rifle Range and Promontory
Heights to CLC removed that land from the federal inventory potentially
available to settle either the Sto:lo treaty or the Tzeachten specific claims.
Because they considered those particular parcels of land to be among the best
possible choice for any expansion of their current reserves, especially the
Tzeachten First Nation reserve that is adjacent to the Rifle Range and Promontory Heights, they see the
transfer as a substantial and possibly permanent loss. The position of the Tzeachten
is that the Crown was obliged to engage in further consultations with them
after 2000 and before dealing with any of the land that was subject to the two-year
hold period.
[19]
The
Tzeachten commenced an application for judicial review to seek a declaration
that the 2003 decision to transfer that land to CLC was unlawful, a declaration
that the Treasury Board, the Minister of National Defence, CLC and its parent
corporation, Canada Lands Company Limited (“Canada Lands”), had a legal
obligation to consult with the Tzeachten before selling or developing the Rifle
Range and Promontory Heights, and an order in the nature of mandamus directing
the Minister, Canada Lands and CLC to consult with the Tzeachten and
accommodate their interests. The Tzeachten did not assert any claim in respect
of 14 acres within the Rifle Range land that had been sold to the Chilliwack School District.
[20]
The
application for judicial review was dismissed by Justice Tremblay-Lamer, for
reasons that she explained at length. I summarize her principal conclusions as
follows:
a. The Tzeachten have a
moderately strong Aboriginal claim to the Rifle Range and Promontory Heights, and the Crown’s
transfer of that land represents an infringement of their potential Aboriginal
title. However, the damage is compensable, monetarily or otherwise, in the
course of treaty negotiations. In these circumstances, there was a duty to
consult that was more than minimal, requiring good faith consultation and a
process addressing the concerns of the Tzeachten.
b. The 2003 authorization of the
transfer of the Rifle Range and Promontory Heights put into effect the disposal
strategy for the former CFB Chilliwack land that was adopted in 2000.
Accordingly, the relevant period for the purposes of determining whether Canada
fulfilled its duty to consult is between 1995 when the closure of CFB
Chilliwack was announced and 2003 when the transfer of the Rifle Range and Promontory Heights was authorized.
c. From 1995 to 2000, Canada
engaged in significant consultation with the Tzeachten which at times rose to
the level of deep consultation (referring to Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004
SCC 73, at paragraph 44). During those consultations, Canada attempted to address the concerns of the
Tzeachten by tabling various proposals that would either see portions of the
land retained by the Crown, or have the Tzeachten co-manage a portion of the
lands. These were good faith attempts by Canada to harmonize conflicting
interests and move toward reconciliation (referring to Haida Nation, paragraphs
45 to 49, and Taku River Tlingit First Nation v. British Columbia (Project
Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74, at paragraph 25).
d. The Tzeachten participated in
the discussions in good faith, and their unwillingness to compromise what they
perceived to be their strong legal claims was not unreasonable. They fulfilled
their reciprocal duty, as described in Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470 at paragraph
161.
e. In spite of the good faith
efforts on both sides, no agreement was reached. However, that does not
indicate that the Crown breached any duty to consult or failed to act honourably.
The law does not require parties to agree.
Issues on appeal
[21]
There are
four grounds of appeal stated in the Tzeachten memorandum of fact and law. They
are discussed separately below.
Did
the Federal Court err in treating the 2003 decision to transfer lands as the
second stage of an earlier discussion and therefore one that did not require
further consultation?
[22]
Justice
Tremblay-Lamer conceived the 2000 disposal strategy as a decision made by the
Crown that, given the negotiations between 1995 and 2000, the Crown could reasonably
be expected to implement in accordance with its terms. The disposal strategy
called for a two-year hold period for a large part of former CFB Chilliwack,
including the Rifle Range and Promontory Heights, and contemplated that the
land subject to the two-year hold period would be removed from the federal
inventory unless, within that two-year period, there was an indication that the
land was required for the settlement of a Sto:lo treaty.
[23]
This
understanding of the facts is consistent with all of the evidence on the
record. In my view it was reasonably open to Justice Tremblay-Lamer to
conclude, as she did, that the 2003 disposal decision could not be separated
from the adoption in 2000 of the disposal strategy, and that the extent and
quality of the consultations between the Crown and the Tzeachten had to be
assessed on that basis. I would therefore reject this ground of appeal.
Did the failure to reach an agreement relieve
the Crown of its duty to accommodate the Tzeachten?
[24]
This ground
of appeal, as I understand it, is closely connected to the previous one. The
Tzeachten argues that the Crown was not free to implement the 2000 disposal strategy
in relation to the Rifle Range and Promontory Heights without continuing to consult
with the Tzeachten. More specifically, the position of the Tzeachten is that
the honour of the Crown precluded the Crown from removing the Rifle Range and Promontory Heights from its inventory
after the two-year hold period without further consultation with the Tzeachten.
In support of this argument, the Tzeachten rely on the following factors: (1) the
Tzeachten have a moderately strong Aboriginal title claim to the Rifle Range
and Promontory Heights as well as an unresolved specific claim to IR 13 and 14,
(2) the Rifle Range and Promontory Heights are adjacent to the current
Tzeachten First Nation reserve, which would give it a unique value as potential
Tzeachten reserve land, and (3) the Crown had demonstrated its willingness over
a period of years to table a number of proposals for the use and management of the
Rifle Range and Promontory Heights that could have saved it from permanently
being removed from inventory of land that could form part of an eventual
settlement of the Tzeachten claims.
[25]
Given
Justice Tremblay-Lamer’s understanding of the facts, which in my view is
unimpeachable, it seems to me that the question is what, if anything, the Crown
was required to do during the two-year hold period. The answer to that question
depends mainly on the stated purpose of the hold period, which was to keep the
land available for a two-year period for the purpose of settling the Sto:lo
treaty.
[26]
The
Tzeachten point out that a two year period is not a realistic time frame for
concluding an Aboriginal treaty. I agree. However, the terms of the two-year
hold period did not necessarily require that the Sto:lo treaty be concluded
within the two years. It contemplated only that the land be selected for treaty
purposes. I take that to mean that the land would continue to be held back as
long as sufficient progress was made in the negotiation of the Sto:lo treaty
that INAC would be in a position to indicate that the land might be required to
settle that treaty.
[27]
However,
the Tzeachten took no steps after 2000 to move the treaty negotiations forward
in relation to the Rifle Range and Promontory Heights. On the contrary, the record
indicates that the Sto:lo treaty negotiator told the Chief Federal Negotiator
that he had no mandate to discuss the Rifle Range and Promontory Heights in the
context of the treaty negotiations, apparently because the Tzeachten wanted
their specific claim to IR 13 and 14 resolved first. The record discloses no change
in that situation by 2003.
[28]
The
Tzeachten were aware of the existence and purpose of the two-year hold period,
and must have been aware that no steps had been taken to include the Rifle Range
and Promontory Heights in the treaty
negotiations. All parties knew that the Crown and the Tzeachten had engaged in
many years of negotiations without success, and the Tzeachten had consistently
rejected every Crown proposal relating to the Rifle Range and Promontory Heights because of its strongly held
belief in the strength of its specific claim.
[29]
There is
no doubt that the Crown could at any time have decided to extend the hold
period beyond the two years stipulated in the 2000 disposal strategy. However,
given the circumstances, it would in my view be unreasonable to require the Crown
to extend the hold period in order to undertake further consultations with the
Tzeachten. I agree with Justice Tremblay-Lamer that, with respect to the
adoption and implementation of the 2000 disposal strategy, the Crown’s duty to
consult had been met by June of 2000 when the disposal strategy was adopted and
that no further duty to consult arose after 2000 when the Crown implemented the
disposal strategy in accordance with its terms.
Did
the Federal Court err in applying from injunction law the tests of “uniqueness”
and “compensability” in determining the extent of the duty to consult?
[30]
This
ground of appeal is focussed on Justice Tremblay-Lamer’s conclusion that the Tzeachten’s
loss of the Rifle Range and Promontory Heights would be compensable
(see paragraphs 42 to 51 of her reasons). In my view, there is no merit to this
ground of appeal.
[31]
As I
understand Justice Tremblay-Lamer’s reasons, she was not applying the law of
injunctions when she considered the question of compensability. She was
applying the principle from Haida Nation (at paragraph 44) that it is
relevant, when assessing the seriousness of the potentially adverse effect of a
decision on an Aboriginal title claim, to consider whether the adverse effect
is compensable in money, or whether it is not compensable in money because the
subject of the claim is unique in some substantial way relating to an
unrecognized Aboriginal claim. I see no error in her analysis of that issue.
[32]
The
Tzeachten are understandably concerned that, despite the conclusion of Justice
Tremblay-Lamer that the transfer of the Rifle Range and Promontory Heights is a
compensable loss, the Crown will take the contrary position in the context of
treaty negotiations or in proceedings relating to the unresolved specific claim
to IR 13 and 14. However, the Crown conceded in argument, correctly in my view,
that the decision in this case does not dispose of any claim the Tzeachten may
assert for compensation based on its claim to IR 13 and 14 or its claim to
Aboriginal title. Therefore, the matter of compensation remains open to
negotiation or litigation in relation to either of those claims.
Did
the Federal Court err in failing to consider the effect of the assertion of
Cabinet privilege over the 2003 decision, in assessing whether that was a decision
that required consultation?
[33]
In my view
this ground of appeal is not properly raised. The Tzeachten did not take steps
to challenge the assertion of Cabinet privilege, nor did they seek to cross
examine the deponents of any of Canada’s
affidavit.
The position of Canada Lands and CLC
[34]
Canada
Lands is a Crown corporation and, by virtue of the Government Corporations
Operation Act, R.S.C. 1985, c. G-4, an agent of the Crown. CLC is a wholly
owned subsidiary of Canada Lands. There is no statute designating CLC as an
agent of the Crown. However, the Tzeachten argued in the Federal Court that CLC
is an agent of the Crown and was a proper respondent because of its mandate to
receive and dispose of the land in issue.
[35]
Both
corporations were named as respondents in Federal Court proceedings. They did
not seek to be removed as respondents. However, they argued in the Federal
Court that, because CLC is not a “federal board, commission or other tribunal”
as defined in the Federal Courts Act, R.S.C. 1985, c. F-7, the Federal
Court has no jurisdiction to make an order against it pursuant to section 18.1
of the Federal Courts Act. Justice Tremblay-Lamer accepted that argument,
and the point was not contested in this appeal. Justice Tremblay-Lamer declined
to determine whether CLC was an agent of the Crown.
[36]
Despite
their success on the question of jurisdiction of the Federal Court, Canada
Lands and CLC made written and oral submissions on the merits of the appeal. All
but one of the arguments of Canada
Lands and CLC cover the same ground
as the Crown arguments. The exception was the alternative argument of Canada Lands and CLC that no duty to
consult ever arose in relation to the former CFB Chilliwack lands. This
argument is not consistent with Canada’s
position that it had a duty to consult but had discharged that duty, and for
that reason it is not an argument that should be entertained in this appeal. In
my view, none of the arguments of CLC and Canada Lands assisted the Court in resolving this
appeal.
Conclusion
[37]
For these
reasons, I would dismiss this appeal. I would award costs to the Attorney
General of Canada but not to the other respondents.
“K.
Sharlow”
“I.
agree.
J. Edgar Sexton J.A.”
“I
agree.
C. Michael Ryer J.A.”
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