Tsawwassen Indian Band v. Irwin, docket 96-T-79

     96-T-79

BETWEEN:

         TSAWWASSEN INDIAN BAND and CHIEF SHARON BOWCOTT, suing on          her own behalf and on behalf of all other members of the TSAWWASSEN          INDIAN BAND

     Applicants

     - and -

         THE HONOURABLE RONALD IRWIN, MINISTER OF INDIAN

         AFFAIRS AND NORTHERN DEVELOPMENT

     Respondent.

     REASONS FOR ORDER

TEITELBAUM, J:

     On December 11, 1996, the applicants, the Tsawwassen Indian Band and Chief Sharon Bowcott, proceeding on her own behalf and on behalf of all other members of the Tsawwassen Indian Band filed into the Federal Court of Canada Registry a Notice of Motion for:

An Order pursuant to section 18.1(2) of the Federal Court Act R.S.C. 1985, c. F-7 granting the Extension of Time to the Applicants for bringing an Application for Judicial Review of Respondent's Decision dated August 29, 1996.

     According to the said Notice of Motion, the grounds for the making of the said request of an extension of time are:

a.      The Honourable Ronald Irwin, Minister of Indian Affairs and Northern Development ("Respondent") communicated to the Applicants by letter dated August 29, 1996 ("Screening Decision"), that the Respondent would not issue the Applicants a permit pursuant to the Indian Reserve Waste Disposal Regulations, C.R.C. 1978, c.960 ("IRWDR") and, further, that the Respondent considered itself prohibited by the Canadian Environmental Assessment Act, S.C. 1992, c.37, as amended, ("CEAA") from exercising any power or performing any duty or function that would permit the operation of the combined water/wastewater treatment facility ("Facility") on the Applicants' Reserve;

b.      Prior to the completion of the Facility, the Department of Indian Affairs and Northern Development ("DIAND") took the position that a CEAA assessment would not be required. DIAND also took the position that the Applicants needed a permit under the IRWDR to operate the Facility;

c.      The Respondent issued a news release dated August 30, 1996 ("News Release") indicating it was unable to issue a permit under IRWDR unless or until the Applicants negotiated compensation and/or mitigation measures with the Department of Fisheries and Oceans ("DFO"). The News Release also encouraged the Applicants to commence negotiations with DFO to come to a satisfactory resolution over issues relating to the Facility and the Screening Decision;

d.      The Applicants attempted to enter into negotiations with DFO in September 1996 with respect to the Facility and the Screening Decision;

e.      The Applicants prepared a compensation/mitigation proposal for DFO relating to the Facility and Screening Decision;

f.      In a letter dated September 24, 1996, DFO indicated that it refused to consider any compensation/mitigation proposals by the Applicants and DFO would not negotiate with the Applicants despite the Respondent's encouragement to do so in the News Release;

g.      In letters dated September 30, 1996 and October 3, 1996, the Applicants requested the Respondent to reconsider its Screening Decision in view of the refusal of DFO to negotiate with the Applicants;

h.      In a letter dated October 18, 1996, the Respondent indicated that it would not reconsider its Screening Decision;

i.      After taking legal advice, and consulting with Band members and business partners, the Applicants resolved to instruct counsel on the 19th day of November, 1996 to bring a Judicial Review Application;

j.      Copy of the resulting proposed Application for Judicial Review is attached as Appendix "A". Copy of the Affidavit of Chief Bowcott sworn on the 6th day of December, 1996, which will be filed in support of the proposed Application for Judicial Review is attached as Appendix "B";

k.      The decision of the Respondent, which the Applicants seek to have judicially reviewed, has prevented the Applicants from full utilization of the Facility, and thereby put at risk, not only the Facility itself, but the Applicants' investment in the Tsatsu Shores Project;

l.      In Summary,

(i)      there are meritorious grounds for the proposed Judicial Review;

(ii)      there is a reasonable explanation for the delay in bringing the proposed Application for Judicial Review;

(iii)      the harm to the Applicants of not extending the time for bringing the proposed Application will be great;

(iv)      the Respondent has encouraged the negotiations which resulted in the delay in bringing the Application; and

(v)      the Respondent will suffer no prejudice from the granting of the requested Order for the Extension of Time.

     Attached as Appendix "A" to the present Notice of Motion for an extension of time is a copy of the proposed Originating Notice of Motion which is to be filed in the event an extension of time is granted. As well, as Appendix "B" is the affidavit of Sharon Bowcott to be filed in the event the extension of time is granted.

     In support of the application for extension of time, the applicants have filed the affidavits of James I. Reynolds.

     This matter came up for hearing on December 16, 1996 and was adjourned to January 13, 1996, at which time it did not proceed.

     On January 29, 1997, Fraser for Life Communications Society (Society) and Joan Green on her own behalf and on behalf of other members of the Tsawwassen Homeowners Association (THA) filed into the Federal Court Registry an application pursuant to Federal Court Rules 5, 1602(3) and 1716 requesting an Order joining the THA and the Society as respondents to the application of the Band and Bowcott for extension of time to bring a judicial review application of the August 29, 1996 decision or in the alternative, to grant THA and the Society intervenor status.

     After hearing the parties on the Application for Party or Intervenor status, I granted the THA and the Society intervenor status with the right to make submissions and with the right to file an appeal from my decision regarding the extension of time application.

     As I have stated, the applicants filed two affidavits of James I. Reynolds, a solicitor, in support of the applicants' application for extension of time, one dated December 11, 1996 and one dated December 16, 1996.

     Although both of Mr. Reynolds affidavits are very extensive, I believe it necessary to reproduce the statements contained in the two affidavits to better understand the reason for the application for extension of time.

2.      On December 18, 1993, the Applicants voted to designate an area of its Reserve No. O ("Reserve"), located within the municipality of Delta, BC, to be leased for development purposes. On June 23, 1994, the Governor-General-in-Council, pursuant to section 48 of the Indian Act, R.S.C. 1985, c. I-5, accepted the designation.

3.      By lease dated November 1, 1994, the Federal Crown leased part of the designated Reserve lands to Tsatsu Development Corporation, a corporation controlled by the Applicants. The lease permits the construction of leasehold condominium units. It was assigned by Tsatsu Development Corporation on June 27, 1995 to Tsatsu Shores Development Ltd., a corporation in which the Applicants has 50% interest. Tsatsu Shores Development Ltd. has constructed the first phase of the condominium development, known as Tsatsu Shores. The first phase was completed in August 1996 and consists of 86 units; if other phases of Tsatsu Shores are constructed, the development will comprise approximately 320 units. I have been informed by Chief Bowcott that the Tsatsu Shores Development is a critical part of the Applicant's economic development in order that it might improve the economic and social conditions of its members.

4.      Between January and June 1995, the Applicants negotiated with Delta in an attempt to obtain municipal services for Tsatsu Shores. I have been informed by Chief Bowcott that those negotiations were not successful, because Delta insisted, as a condition of providing the services, that the Applicants give Delta the power to control the form and density of the Development and all future development on the Applicants' reserve. The Applicants were not prepared to agree to transfer the control of land use on the Reserve to Delta.

5.      On June 5, 1995, the Applicants chose to proceed with construction of the first phase of Tsatsu Shores Development and, in response to Delta's refusal to provide services, decided that it would develop its own water and waste treatment facility ("Facility").

6.      The Applicants retained Stanley Associates Engineering Ltd. to design the Facility to treat groundwater supplied from wells located on the Reserve to make the water fit for human consumption and also to treat and dispose of sewage. The Facility was to service the needs of Tsatsu Shores, other development on the reserve and the members of the First Nation.

7.      The Facility was constructed on lands located within the Reserve and became operational by August 31, 1996, the closing date for the sale of several units of Tsatsu Shores.

8.      Prior to completion of construction of the Facility, the Department of Indian Affairs and Northern Development ("DIAND") took the position that a Canadian Environmental Assessment Act ("CEAA") assessment would not be required for the construction of the Facility. However, DIAND also took the position that a permit would be required under the Indian Reserve Waste Disposal Regulations, C.R.C. 1978, c. 960 (the "IRWDR") to operate the plant and that the Minister had an obligation to conduct a CEAA assessment prior to the issuance of such a permit.

9.      In a letter dated August 29, 1996, Thomas Howe, Area Manager - West, Lands and rust Services, BC Region, DIAND informed the Applicants that, pursuant to the CEAA assessment, DIAND was unable to issue a permit pursuant to the IRWDR and, further, that DIAND was prohibited by CEAA from exercising any power or performing any duty or function that would permit the Facility to operate on the Reserve ("Screening Decision"). Attached and marked as Exhibit "A" to my Affidavit is a copy of the Screening Decision.

10.      In addition to the Screening Decision, the Respondent issued a news release dated August 30, 1996 ("News Release") wherein the Respondent stated that until or unless the Applicants were able to negotiate compensation and/or mitigation to satisfy the Department of Fisheries and Oceans ("DFO") over concerns about the siting of the Facility, DIAND was unable to issue a permit under the IRWDR. In addition, DIAND encouraged the Applicants to commence negotiations with DFO to come to a satisfactory resolution of issues related to the Facility. Attached and marked as Exhibit "B" to my Affidavit is a copy of the News Release.

11.      Accordingly, in response to the News Release and discussions with DIAND officials, the Applicants attempted to enter into negotiations with DFO to resolve outstanding issues with respect to the Facility and the Screening Decision. It was decided by the Applicants that resolution by negotiation would be preferable to expensive and adversarial litigation and, for this reason, no Application was made at tha t time for Judicial Review although the Applicants reserved this option if negotiations were not successful.

12.      In particular, the Applicants sought the agreement of DFO to a compensation and/or mitigation proposal which had been prepared with the assistance of environmental consultants.

13.      In a letter dated September 24, 1996, DFO refused to consider any proposals by the Applicants and refused to enter into negotiations. Attached and marked as Exhibit "C" to my Affidavit is a copy of the DFO letter dated September 24, 1996.

14.      In letters dated September 30, 1996 and October 3, 1996, the Applicants wrote to DIAND requesting that the Minister reconsider his Screening Decision in view of the fact that DFO refused to negotiate a resolution of the issues relating to the Facility and the Screening Decision. Attached and marked as Exhibits "D" and "E" to my Affidavit are copies of the letters dated September 30, 1996 and October 3, 1996.

15.      In a letter dated October 18, 1996, DIAND advised that it would not reconsider its Screening Decision. The Applicants were thus required to again consider the option of seeking an Application for Judicial Review. Attached and marked as Exhibit "F" to my Affidavit is a copy of the DIAND letter dated October 18, 1996.

16.      In view of the fact that DFO would not participate in negotiations, the Applicants instructed our offices to bring an Application for Judicial Review of the Respondent's Screening Decision on November 19, 1996.

17.      I have been informed by Chief Bowcott that the Respondent's Screening Decision has prevented the Applicants from full utilization of the Facility, and thereby put at risk, not only the Facility itself, but the Applicants' investment in the Tsatsu Shores Project.

18.      I have been informed by Chief Bowcott that the Applicants will suffer harm if they are not granted an Extension of Time to bring an Application of Judicial Review of the Respondent's Screening Decision.

19.      I have been informed by Chief Bowcott that the Applicants have suffered further harm and economic losses due to the fact that DFO did not participate in negotiations as encouraged by the Respondent and this delayed the Applicants in bringing a Judicial Review Application.

20.      I am unaware of any harm that the Respondent may suffer as a result of the Federal Court Trial Division granting an Extension of Time to the Applicants.

         (Affidavit of December 11, 1996)

2. Attached as Exhibit "A" to my Affidavit is a document titled "Community Description" prepared by the Provincial Government and publicly available on the web site maintained by the Provincial Ministry of Aboriginal Affairs. The information shown on Exhibit "A" is to my knowledge substantially accurate. I am advised by Chief Bowcott that the Respondent has never required that permits be applied for under the Indian Reserve Waste Regulations for any of the many septic tanks on the Tsawwassen Reserve, even though the Respondent, through his officials, has been well aware of the existence of these septic tanks. I am further informed by Chief Bowcott that to her knowledge the Respondent Minister has never required a permit under these Regulations for the disposal or storage of on-reserve generated sewage for any reserve in British Columbia. I have practised as a solicitor for various Indian Bands in British Columbia and Alberta for over 15 years, and I can confirm Chief Bowcott's knowledge is the same as my own in this regard.

3.      In paragraph 16 of my Affidavit of December 11, 1996, I state that the Applicants instructed us on November 19, 1996 to bring an Application for Judicial Review of the Respondent's Screening Decision. That was the date on which I received the instructions. The Chief and Council of the Applicant Band resolved, on November 13, 1996, to instruct my firm to bring the proposed Application for Judicial Review. Attached as Exhibit "B" is a copy of the letter I received on November 19, 1996 advising me of the Band Council's resolution.

4.      The Tsatsu Shores project, out of which this litigation arises, has been the source of considerable controversy. The municipal government of Delta, in which municipality the Band's reserve is located, has attempted to prevent the project from going ahead by refusing to supply municipal services to it. The Applicants were forced to sue the Corporation of Delta in the Supreme Court of British Columbia to obtain an order to restrain Delta from withdrawing fire protection services to the Project. Mr. Justice Vickers of the Supreme Court of British Columbia granted an order prohibiting Delta from withdrawing fire protection services until September 30, 1997. The Applicants have appealed that Order to the British Columbia Court of Appeal with a view to obtaining an order that Delta is under a duty to provide fire protection services to the Tsatsu Shores Project on an indefinite basis. That appeal is scheduled to be heard in June of 1997. Attached as Exhibit "C" to my Affidavit is a copy of the Reasons for Judgment of Mr. Justice Vickers.

5.      In addition to the litigation referred to in the above paragraph, the Department of Fisheries and Oceans has charged the Applicant Chief Sharon Bowcott with an offence under the Fisheries Act of causing a harmful alteration to fish habitat as a result of the siting of the Facility which is the subject of the Screening Decision.

6.      As a result of the litigation referred to in paragraphs 4 and 5, the Project and consequently the Band has sustained very heavy legal expenses and adverse publicity affecting marketing of units in the Project. Although the Applicants, on my advice, have intended to bring the proposed Application for Judicial Review from the outset, that is, from the time o first learning of the Respondent's Screening Decision on August 30, 1996, they had hoped they would be able to resolve the Respondent's environmental concerns by entering into negotiations with the Department of Fisheries and Oceans, as they had been requested to do by the Respondent. As I stated in paragraph 11 of my Affidavit of December 11, 1996, the Applicants decided that resolution by negotiation would be preferable to expensive and adversarial litigation, and for this reason, no application for Judicial Review was made at that time, though the Applicants, on my advice, intended to invoke this option if and when negotiations failed. The Applicants were concerned that the publicity arising from an Application for Judicial Review would have a further adverse impact on marketing of units.

7.      When I received instructions from the Applicant Band on November 19, 1996 to proceed with the proposed Application for Judicial Review, I had further discussion with representatives of the Applicant Band on the basis for the proposed Application, considered the legal issues involved, and prepared drafts of some of the material to support the Application. I also had discussions with the Band regarding payment of legal fees.

8.      By Thursday, December 5, 1996, I had received the information required to finalize the Application, we had considered the issues involved, and the Applicants and I had made mutually satisfactory arrangements regarding payment and securing payment of my firm's legal fees. Accordingly, I requested my partner, Mr. Lewis Harvey, to proceed with the proposed Application for Judicial Review. I am informed by Mr. Harvey, and verily believe to be true, the facts as hereinafter set out in paragraphs 9 to 11.

9.      Mr. Harvey proceeded to prepare the final materials for the proposed Application for Judicial Review. On Friday December 6, 1996 he prepared a draft of the Originating Notice of Motion and also prepared and arranged to have sworn the Affidavit of Chief Bowcott, which is attached as Appendix "B" to the within Notice of Motion. On Saturday, December 7, 1996, Mr. Harvey finalized the Originating Notice of Motion, a copy of which is attached as Appendix "A" to the within Notice of Motion.

10.      On Monday, December 9,1 996, Mr. Harvey began a three day hearing before the Chief Justice of the Supreme Court of British Columbia involving a complex minority shareholder oppression and winding up application. Nevertheless, he arranged to file the Affidavit and Originating Notice of Motion at the Federal Court Registry. The Registry refused to accept the material and advised that a separate motion must first be filed to obtain an order extending the time under s. 18.1(2) of the Federal Court Act. On returning from Court that day, Mr. Harvey learned of the problem and made arrangements to have materials prepared for a motion for an order extending time.

11.      On Tuesday, December 10, 1996, Ms. Tracy Fleck, an associate lawyer employed by Davis & Company, acting on Mr. Harvey's instructions, prepared draft materials for a motion seeking an Order extending time pursuant to s. 18.1(2) of the Federal Court Act. Late in the afternoon of Tuesday, December 10, 1996, after returning from Court, Mr. Harvey advised Mr. Mitch Taylor, of the Department of Justice, that he would be filing the motion seeking the extension of time. Also, on Tuesday, December 10, 1996, Mr. Harvey provided Mr. Taylor with a copy of the proposed Originating Notice of Motion so as to enable Mr. Taylor to obtain timely instructions. Mr. Harvey then left instructions with myself and Ms. Fleck for revision of the draft materials Ms. Fleck had prepared.

12.      On Wednesday December 11, 1996, th emotion material were revised in accordance with Mr. Harvey's instructions and the finalized materials were then filed at the Federal Court Registry on Wednesday, December 11, 1996.

         (Affidavit of December 16, 1996)

     After a reading of these two affidavits, one is able to better understand why the applicants believe they should be granted an extension of time to file an application for judicial review of a decision of the Department of Indian Affairs and Northern Development (DIAND) dated August 29, 1996.

     What is most important to note from Mr. Reynolds' December 11, 1996 affidavit is the fact that the DIAND took the position that a Canadian Environmental Assessment Act assessment would not be required for the construction of the applicants' water and waste treatment facility (Facility) but that a permit would be required under the Indian Reserve Waste Disposal Regulations, C.R.C. 1978, c. 960 (the IRWDR) to operate the Facility and that the minister had an obligation to conduct a CEAA assessment before issuing such a permit (paragraph 8). In a decision dated August 29, 1996, the DIAND informed the applicants that pursuant to the CEAA assessment DIAND could not issue a permit that would permit the Facility to operate (paragraph 9).

     It is this decision that is the subject matter of the application for judicial review.

     Pursuant to section 18.1 of the Federal Court Act, an application for judicial review shall be made within thirty (30) days after the time the decision was first communicated to the applicants or within such further time as a judge of the Federal Court, Trial Division, may allow:

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.

     The applicants failed to file their application within the legal delay of thirty days of receiving the August 29, 1996 decision because the applicants were of the belief, wrongly I believe, that the matter of the issuance of a permit could be resolved by negotiation rather than court proceedings.

     In paragraph 11 of the December 11, 1996 affidavit, Mr. Reynolds states that the applicants believed negotiation was the proper method to be used as a result of a news release and discussions with DIAND officials.

     After a time, the issue of the issuance of a permit could not be resolved and in a letter dated September 24, 1996, the Department of Fisheries and Oceans (DFO) refused to consider any proposals.

     Still no application for judicial review is commenced by the applicants. It was on November 13, 1996 that the Chief and council of the applicants' band resolved to instruct their legal counsel to bring the proposed application for judicial review (paragraph 3, affidavit dated December 16, 1996).

     It is interesting to note that Mr. Reynolds states in paragraph 6 of his December 16, 1996 affidavit that the applicants, on his advice, had intended to bring an application for judicial review "from the outset" that is from the August 29, 1996 decision but failed to do so because they attempted to resolve the issues by negotiation.

     It was not until December 11, 1996 that the applicants filed their application with the Court, that is, approximately one month after receiving instructions to proceed from the applicants (see paragraphs 7, 8, 9, 10 and 11 for the reasons for this delay).

Analysis

     From a reading of the two affidavits filed by Mr. Reynolds on behalf of the applicants, aside from the statement made by Mr. Reynolds in paragraph 6 of the December 16, 1996 affidavit, there is no evidence that the applicants had the intention to file an application for judicial review of the August 30, 1996 decision.

     The respondent does not object nor does the respondent consent to the application for extension of time.

     I take this to mean that the respondent will not be caused any prejudice if the application for extension of time is granted.

     In the case of Maple Lodge Farms Ltd. and the Minister of National Revenue and The Attorney General of Canada, 96-T-69 unreported, F.C.T.D., March 7, 1997, a case very similar to the one before me, the Associate Chief Justice, at page 4, states:

The principles which apply to cases of this nature have been set out by the Federal Court of Appeal in Grewal v. Canada, [1985] 2 F.C. 263. In that case, the Court held that there is no need for an applicant who is seeking an extension of time to demonstrate "special" reasons. Rather, consideration should be given to the reasons for the delay and whether the applicant has an arguable case. Most significantly, however, is whether the interests of justice will best be served by granting the extension. As stated in Grewal at p. 272:

The underlying consideration, however, which as it seems to me, must be borne in mind in dealing with any application of his kind, is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension.

The extension is appropriate here. Maple Lodge has an arguable case and the respondent would not be prejudiced if the Court were to grant the remedy sought. The Minister's main argument is that the applicant is unable to demonstrate any justifiable reason for the delay and has not shown a continuing intention to bring an application for judicial review. But it was always that Maple Lodge did not agree with, and was not prepared to acquiesce to, the department's Requirement of July 9, 1996. It gave explicit instructions to its corporate solicitor to negotiate with Revenue Canada in order to limit the scope and effect of the Requirement. Thereafter, the parties corresponded by telephone and through letters and finally held a meeting in order to reach some alternative solution. When negotiations proved unsuccessful Maple Lodge brought, or attempted to bring, its application for judicial review.

     As in the Maple Lodge Farms Ltd. case (supra), the present applicants did not agree with the decision of the respondent and was not prepared to accept the decision of August 30, 1996. The applicants commenced negotiations to resolve all issues almost immediately and held meetings in order to reach some alternative solution and when this did not happen, the applicants instructed their counsel to proceed with an application for judicial review.

     I am satisfied that it is in the interest of justice that the applicants be given an opportunity to proceed by way of judicial review particularly because the respondents make no objection and do not say they will suffer any prejudice.

     The application for an extension of time to file an application for judicial review is allowed. The applicants shall file and serve their application for judicial review within 15 days of today's date.

                         "MAX M. TEITELBAUM"                                  J U D G E

OTTAWA

April 4th, 1997