Paul v. British Columbia (Forest Appeals Commission), [2003]
2 S.C.R. 585, 2003 SCC 55
Attorney General of British Columbia
and Ministry of Forests Appellants
v.
Thomas Paul Respondent
and
Forest Appeals Commission,
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General for Saskatchewan,
Attorney General of Alberta and
First Nations Summit Interveners
Indexed as: Paul v. British Columbia (Forest
Appeals Commission)
Neutral citation: 2003 SCC 55.
File No.: 28974.
Hearing and judgment: June 11, 2003.
Reasons delivered: October 3, 2003.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major,
Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Division of powers — Indians —
Forestry — Whether province can constitutionally confer on administrative
tribunal power to determine questions of aboriginal rights and title as they
arise in course of tribunal’s duties — Constitution Act, 1867, s. 91(24) —
Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159,
s. 96 — Constitution Act, 1982, s. 35 .
Administrative law — Forest Appeals Commission —
Jurisdiction — Aboriginal rights — Whether Forest Practices Code confers on
Commission power to decide existence of aboriginal rights or title — Forest
Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, s. 96.
Administrative law — Boards and tribunals —
Jurisdiction — Constitutional issues — Powers of administrative tribunals to
determine questions of constitutional law — Appropriate test.
The B.C. Ministry of Forestry seized four logs in the
possession of P, a registered Indian, who planned to use the wood to build a
deck on his home. P asserted that he had an aboriginal right to cut timber for
house modification and, accordingly, s. 96 of the Forest Practices Code,
a general prohibition against cutting Crown timber, did not apply to him. Both
the District Manager and the Administrative Review Panel agreed that P had
contravened s. 96. P appealed to the Forest Appeals Commission, which
decided, as a preliminary matter of jurisdiction, that it was able to hear and
determine the aboriginal rights issues in the appeal. The B.C. Supreme Court
concluded that the Legislature of B.C. had validly conferred on the Commission
the power to decide questions relating to aboriginal title and rights in the
course of its adjudicative function in relation to contraventions of the Code.
A majority of the Court of Appeal set aside the decision, holding that s.
91(24) of the Constitution Act, 1867 , which gives Parliament exclusive
power to legislate in relation to Indians, precluded the Legislature from
conferring jurisdiction on the Commission to determine questions of aboriginal
title and rights in the forestry context.
Held: The appeal should be allowed.
The province has legislative competence to endow an
administrative tribunal with capacity to consider a question of aboriginal
rights in the course of carrying out its valid provincial mandate. The parties
conceded that the Code is, in its entirety, valid provincial legislation in
relation to development, conservation and management of forestry resources in
the province, and there was no suggestion that, in operation, the law’s effects
on Indians are so significant as to reveal a pith and substance that is a
matter under exclusive federal competence. As a law of general application,
the Code applies ex proprio vigore to Indians, to the extent that it
does not touch on the “core of Indianness” and is not unjustifiably
inconsistent with s. 35 of the Constitution Act, 1982 . Under the
doctrine of incidental effects, it is constitutionally permissible for a
validly enacted provincial statute of general application to affect matters
coming within the exclusive jurisdiction of Parliament. While, through
operation of the doctrine of interjurisdictional immunity, the “core” of
Indianness is protected from provincial laws of general application, the
Commission’s enabling provisions do not attempt to supplement or amend the
constitutional and federal rules respecting aboriginal rights. The effect of
the Code is to prescribe that Indians charged under the Code will first raise
an aboriginal rights defence before the Commission, as opposed to before a
superior court judge. This effect has not been shown to have a substantial
impact upon Indians qua Indians. The doctrine of interjurisdictional
immunity relates to the exercise of legislative powers — that is, the power of
a province to apply its valid legislation that affects matters under federal
competence. The majority of the Court of Appeal erred in applying the doctrine
in the context of an adjudicative, not legislative, function. The conclusion
that a provincial board may adjudicate matters within federal legislative
competence fits comfortably within the general constitutional and judicial
architecture of Canada. In determining, incidentally, a question of aboriginal
rights, a provincially constituted board would be applying constitutional or
federal law in the same way as a provincial court, which is also a creature of
provincial legislation. Boards must take into account all applicable legal
rules, both federal and provincial, in applying their enabling legislation.
A determination by an administrative tribunal, such as
the Commission, is very different from both extinguishment of a right and
legislation in relation to Indians or aboriginal rights. First, and most
important, any adjudicator, whether a judge or a tribunal, does not create,
amend, or extinguish aboriginal rights. Second, the Commission’s decisions do
not constitute legally binding precedents, nor will their collective weight
over time amount to an authoritative body of common law. They could not be
declaratory of the validity of any law. Moreover, as for constitutional
determinations respecting s. 91(24) or s. 35 , the Commission’s
rulings would be reviewable, on a correctness basis, in a superior court on
judicial review.
To determine if a tribunal has the power to apply the
Constitution, including s. 35 of the Constitution Act, 1982 , the
essential question is whether the empowering legislation implicitly or
explicitly grants to the tribunal the jurisdiction to interpret or decide any
question of law. If it does, the tribunal will be presumed to have the
concomitant jurisdiction to interpret or decide the question at issue in light
of s. 35 or any other relevant constitutional provision. There is no
persuasive basis for distinguishing the power to determine s. 35 questions
from the power to determine other constitutional questions, and practical
considerations will not suffice generally to rebut the presumption that arises
from authority to decide questions of law. Here, the Commission has the power
to decide questions relating to aboriginal rights arising incidentally to
forestry matters and to hear P’s defence of his aboriginal right to harvest
logs for renovation of his home. Section 131(8) of the Code permits a party to
“make submissions as to facts, law and jurisdiction”. The Commission thus has
the power to determine questions of law and nothing in the Code provides a
clear implication to rebut the presumption that the Commission may decide
questions of aboriginal law. The nature of the appeal does not prohibit the
Commission from hearing a s. 35 argument. Even if the Administrative
Review Panel has no jurisdiction to determine a s. 35 question, the
Commission is not restricted to the issues considered by that board. Lastly,
any restriction on the Commission’s remedial powers is not determinative of its
jurisdiction to decide s. 35 issues, nor is the complexity of the
questions.
Cases Cited
Applied: Nova
Scotia (Workers’ Compensation Board) v. Martin,
[2003] 2 S.C.R. 504, 2003 SCC 54; referred to: Delgamuukw v.
British Columbia, [1997] 3 S.C.R. 1010; Cooper v. Canada (Human Rights
Commission), [1996] 3 S.C.R. 854; R. v. Sparrow, [1990]
1 S.C.R. 1075; Kitkatla Band v. British Columbia (Minister of
Small Business, Tourism and Culture), [2002] 2 S.C.R. 146,
2002 SCC 31; Reference re Firearms Act (Can.), [2000]
1 S.C.R. 783, 2000 SCC 31; Global Securities Corp. v.
British Columbia (Securities Commission), [2000] 1 S.C.R. 494,
2000 SCC 21; General Motors of Canada Ltd. v. City National
Leasing, [1989] 1 S.C.R. 641; Ordon Estate v. Grail,
[1998] 3 S.C.R. 437; Bell Canada v. Quebec (Commission de la santé
et de la sécurité du travail), [1988] 1 S.C.R. 749; Ontario
(Attorney General) v. Pembina Exploration Canada Ltd., [1989]
1 S.C.R. 206; Crevier v. Attorney General of Quebec, [1981]
2 S.C.R. 220; Dr. Q v. College of Physicians and Surgeons of
British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Krieger
v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65; Buhs v.
Board of Education of Humboldt Rural School Division No. 47 (2002),
217 Sask. R. 222, 2002 SKCA 41; Adler v. Ontario, [1996]
3 S.C.R. 609; Canada (Deputy Minister of National Revenue) v.
Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998]
1 S.C.R. 982; Westcoast Energy Inc. v. Canada (National Energy
Board), [1998] 1 S.C.R. 322; Canadian Pacific Ltd. v. Matsqui
Indian Band, [1995] 1 S.C.R. 3; Douglas/Kwantlen Faculty Assn.
v. Douglas College, [1990] 3 S.C.R. 570; Four B Manufacturing
Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; R.
v. Francis, [1988] 1 S.C.R. 1025; C.U.P.E. v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; Ermineskin
Cree Nation v. Canada (2001), 297 A.R. 226, 2001 ABQB 760; Canada
(Director of Investigation and Research) v. Southam Inc., [1997]
1 S.C.R. 748; R. v. 974649 Ontario Inc.,
[2001] 3 S.C.R. 575, 2001 SCC 81; R. v. Hynes, [2001]
3 S.C.R. 623, 2001 SCC 82; Tétreault-Gadoury v. Canada
(Employment and Immigration Commission), [1991] 2 S.C.R. 22; Mills
v. The Queen, [1986] 1 S.C.R. 863; Dupras v. Mason (1994),
99 B.C.L.R. (2d) 266; McKenzie v. Mason (1992), 72 B.C.L.R. (2d)
53, leave to appeal refused, [1993] 1 S.C.R. vii; British Columbia Chicken
Marketing Board v. British Columbia Marketing Board (2002), 216 D.L.R.
(4th) 587, 2002 BCCA 473.
Statutes and Regulations Cited
Bill 69, Forest and Range
Practices Amendment Act, 2003, 4th Sess., 37th Parl., British Columbia,
2003 (date of first reading, May 29, 2003).
Canadian Charter of Rights and Freedoms,
ss. 11 , 24(1) .
Constitution Act, 1867, ss. 91(24) , 92A(1) (b), 96 .
Constitution Act, 1982, ss. 35 , 52 .
Forest and Range Practices Act, S.B.C. 2002, c. 69 [not yet in force], ss. 77, 80, 82.
Forest Practices Code of
British Columbia Act, R.S.B.C. 1996, c. 159,
ss. 96, 130 to 141, 131(8).
Indian Act, R.S.C. 1985, c. I-5, s. 88 .
Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 92.1.
Workers Compensation Act, R.S.B.C. 1996, c. 492.
Workers’ Compensation Act, S.N.S. 1994-95, c. 10, s. 48.
Authors Cited
British Columbia. Debates of
the Legislative Assembly, vol. 16, No. 7, 4th Sess.,
37th Parl., May 29, 2003, p. 7108.
Hogg, Peter W. Constitutional
Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell,
1992 (updated 2002, release 1).
APPEAL from a judgment of the British Columbia Court
of Appeal (2001), 201 D.L.R. (4th) 251, 154 B.C.A.C. 254, 252 W.A.C. 254, 89
B.C.L.R. (3d) 210, 38 C.E.L.R. (N.S.) 149, [2001] 7 W.W.R. 105, [2001] 4
C.N.L.R. 210, [2001] B.C.J. No. 1227 (QL), 2001 BCCA 411, supplementary
reasons (2001), 206 D.L.R. (4th) 320, 40 C.E.L.R. (N.S.) 169, [2001] B.C.J.
No. 2237 (QL), 2001 BCCA 644, allowing an appeal from a judgment of the
British Columbia Supreme Court (1999), 179 D.L.R. (4th) 351, 31 C.E.L.R. (N.S.)
141, [2000] 1 C.N.L.R. 176, [1999] B.C.J. No. 2129 (QL). Appeal allowed.
Timothy P. Leadem, Q.C., and Kathryn Kickbush, for the appellants.
M. Hugh G. Braker, Q.C., and Robert C. Freedman, for the
respondent.
T. Murray Rankin, Q.C., and Mark G. Underhill, for the
intervener the Forest Appeals Commission.
Mitchell R. Taylor
and Peter Southey, for the intervener the Attorney General of
Canada.
Michel Y. Hélie, for the intervener the Attorney General of Ontario.
Written submissions only by Pierre-Christian Labeau,
for the intervener the Attorney General of Quebec.
Written submissions only by Gabriel Bourgeois,
Q.C., for the intervener the Attorney General of New Brunswick.
Holly D. Penner, for the intervener the Attorney General of Manitoba.
Written submissions only by P. Mitch McAdam,
for the intervener the Attorney General for Saskatchewan.
Written submissions only by Kurt J. W. Sandstrom,
for the intervener the Attorney General of Alberta.
Arthur C. Pape and Jean Teillet, for the intervener the First Nations
Summit.
The judgment of the Court was delivered by
Bastarache J. —
I. Overview
1
These are the reasons following the decision of the Court on June 11,
2003 to allow the appeal. In August 1995, an official in the British Columbia
Ministry of Forestry seized four logs in the possession of Thomas Paul, a
registered Indian. Mr. Paul had cut three trees and found the fourth, and
planned to use the wood to build a deck on his home. Mr. Paul asserted that he
had an aboriginal right to cut timber for house modification, and accordingly
that s. 96 of the Forest Practices Code of British Columbia Act,
R.S.B.C. 1996, c. 159 (“Code”), a general prohibition against cutting Crown
timber, did not apply to him. Both the District Manager and the Administrative
Review Panel agreed that Mr. Paul had contravened s. 96. Mr. Paul then
appealed to the Forest Appeals Commission (“Commission”). No one disputes
these facts.
2
The issue in dispute is whether the Commission has jurisdiction to hear
Mr. Paul’s defence that he cut the trees and possessed the logs in the exercise
of his aboriginal rights. To this point, Mr. Paul has asserted his right but
never attempted to prove it. The issue is not whether provincial legislation
can override an aboriginal right recognized and affirmed by s. 35 of the Constitution
Act, 1982 . As the submissions by the parties and the interveners show, the
question is of great significance both to aboriginal persons and to provincial
governments, which enable administrative tribunals to address a vast diversity
of issues that may encompass s. 35 rights.
3
The Commission had decided, as a preliminary matter of jurisdiction,
that it was able to hear and determine the aboriginal rights issues in the
appeal. In the Supreme Court of British Columbia, Mr. Paul moved, under the Judicial
Review Procedure Act, R.S.B.C. 1996, c. 241, for an order for certiorari
quashing the preliminary decision of the Commission and an order of prohibition
preventing the Commission from considering and determining questions relative
to his aboriginal rights. Pitfield J., the chambers judge, concluded that the
Legislature of British Columbia had validly conferred on the Commission the
power to decide questions relating to aboriginal title and rights in the course
of its adjudicative function in relation to contraventions of the Code: (1999),
179 D.L.R. (4th) 351. A majority of the Court of Appeal allowed the appeal:
(2001), 89 B.C.L.R. (3d) 210, 2001 BCCA 411. Lambert J.A. concluded that s.
91(24) of the Constitution Act, 1867 , which gives Parliament exclusive
power to legislate in relation to Indians, precluded the Legislature from
conferring jurisdiction on the Commission to determine questions of aboriginal
title and rights in the forestry context. Huddart J.A., dissenting, held that
an administrative decision maker must be able to decide questions of aboriginal
rights necessary to the exercise of its statutory authority. Specifically, she
held that the Commission had capacity to hear and decide the issues in relation
to Mr. Paul’s aboriginal rights.
4
In the hearing before this Court, all parties conceded the general
validity of the Code and of the Legislature’s power to create the Commission.
The Code, a law of general application, is clearly legislation in relation to
the development, conservation and management of forestry resources in the
province under s. 92A(1) (b) of the Constitution Act, 1867 .
Within the Code, ss. 130 to 141 regulate the appeals process for all persons,
rather than singling out Indians or any other group.
5
There are two prongs to the respondent’s challenge to the jurisdiction
of the Commission. The first is that the Legislature of British Columbia
cannot give the Commission the power to adjudicate questions relating to
aboriginal rights, on the basis that doing so would encroach on the federal
power under s. 91(24) . This is the constitutional argument. The majority of
the Court of Appeal had also determined, as an alternative approach, that the
Code ran afoul of the doctrine of interjurisdictional immunity. The Court of
Appeal reasoned that, since the existence and extent of aboriginal title and
aboriginal rights come within the essential core of “Indianness” (Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010), a law granting quasi-judicial
jurisdiction to determine matters of aboriginal title and aboriginal rights
intrudes upon the core of Indianness and is therefore inapplicable to Indians.
Furthermore, held the majority, s. 88 of the Indian Act, R.S.C. 1985, c.
I-5 , which makes provincial laws of general application apply to Indians, fails
to invigorate the relevant portions of the Code, since s. 88 incorporates laws
respecting Indians, not land.
6
With respect, I think that the majority of the Court of Appeal
misunderstood the scope of the doctrine of interjurisdictional immunity. The
doctrine relates to the exercise of legislative powers, that is, the power of a
province to apply its valid legislation that affects matters under federal
competence. As the parties conceded, the Code is constitutional. The majority
of the Court of Appeal applied the doctrine in the context of an adjudicative,
not legislative, function. The effect of the Code is not to alter the
substance of any federal rule or aboriginal right, but rather to prescribe that
Indians charged under the Code will first raise an aboriginal rights defence
before the Commission, as opposed to before a superior court judge. This
effect has not been shown to have a substantial impact upon Indians qua
Indians. There is therefore no need to consider s. 88 ; the Code applies ex
proprio vigore.
7
The second prong of Mr. Paul’s challenge deals with the Commission’s
statutory jurisdiction. The respondent argued that the enabling provisions of
the Code were insufficient to empower the Commission to decide the existence of
aboriginal rights or title. Mr. Paul argues that the Legislature would need to
confer the power to determine such questions, even ones arising incidentally to
forestry matters, upon the Commission expressly. I note that the appellants
agree with the respondent that the particular provisions of the Code fail to
confer such power on the Commission. Only the Commission itself, intervening,
believes it has been so empowered. Since the majority of the Court of Appeal
believed that granting the Commission power to determine questions of
aboriginal law would be unconstitutional, it did not examine the statutory
interpretation question in detail. Nevertheless, the majority believed that
practical considerations militated against a finding that the Code conferred
jurisdiction on the Commission. In his brief concurring reasons, Donald J.A.
referred to Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R.
854, as authority for the importance of practical considerations in seeking out
implied jurisdiction (paras. 92-109). This prong of the challenge is the
administrative law question of interpretation of a tribunal’s enabling statute.
8
The facts in this appeal and in Nova Scotia (Workers’ Compensation
Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, released concurrently,
have given this Court the opportunity to reappraise the law respecting the
jurisdiction of administrative tribunals to apply the Constitution. The
correct approach in a constitutional case such as the present appeal is the
same as that in Martin, which concerns the Canadian Charter of Rights
and Freedoms . That approach is to determine whether the tribunal is
empowered to decide questions of law. If so, the judge must verify whether
there is a clear implication arising from the statutory scheme that the power
to decide questions of law was meant to exclude the legal issues under review.
In this case, s. 131(8) of the Code permits a party to “make submissions as to
facts, law and jurisdiction”. It is therefore clear that the Commission has
power to determine questions of law. The Commission is not restricted to the
issues considered by the Administrative Review Panel, the decision maker
appealed from. Any restriction on the Commission’s remedial powers is not
determinative, nor is the complexity of the questions. Nothing in the Code
provides a clear implication to rebut the presumption that the Commission may
decide questions of aboriginal law.
II. Analysis
9
My analysis follows the two prongs of the challenge to the Commission’s
jurisdiction identified above. In the first part, the division of powers
discussion, the question is whether the Legislature of British Columbia is
constitutionally capable of conferring on an administrative tribunal the power
to determine questions of aboriginal right and title as they arise in the
course of the tribunal’s duties. In the second part, I will consider the
extent of the power actually conferred on the Commission in this case. I turn
first to the doctrines relevant to determining the Legislature’s powers in
endowing administrative tribunals to adjudicate questions relative to
aboriginal rights.
A. Division of Powers: Can the
Province Empower the Commission to Hear and Determine Section 35 Questions?
(1) The Scope of the Constitutional
Challenge
10
It is important to indicate precisely which provisions of the Code are
under discussion at this point. The challenge is to the notion that ss. 130 to
141, which provide that a person may appeal the decision of the Administrative
Review Panel to the Commission, permit the Commission to hear and rule upon a
defence of aboriginal rights. In contrast, there is no challenge to the
substantive prohibition, which appears in s. 96(1):
96 (1) A person must not cut, remove,
damage or destroy Crown timber unless authorized to do so
. . .
Nor, I should
note, do the appellants take the position that s. 96(1) would prevail in a
conflict with a demonstrated aboriginal right affirmed by s. 35 of the Constitution
Act, 1982 . Once an aboriginal right is proven, s. 96(1) would be of no
effect to the extent that it was inconsistent with that right, unless that
inconsistency could be justified according to the test in R. v. Sparrow,
[1990] 1 S.C.R. 1075. On this, there is no dispute.
(2) The Validity and Application of the Code
11
As I noted above, at the hearing the parties conceded that the Code is
in its entirety valid provincial legislation. In any case, it is clear to me
that the Code is legislation in relation to development, conservation and
management of forestry resources in the province, under s. 92A(1) (b) of
the Constitution Act, 1867 . There was no argument made that the entire
Code, or that portion treating appeals before the Commission, has as its true
meaning, essential character, or core matters relating to Indians and lands
reserved for the Indians (s. 91(24)) or to any other federal head of power.
More specifically, there was no suggestion that, in operation, the law’s
effects on Indians are so significant as to reveal a pith and substance that is
a matter under exclusive federal competence: Kitkatla Band v. British
Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R.
146, 2002 SCC 31, at para. 54; Reference re Firearms Act (Can.), [2000] 1
S.C.R. 783, 2000 SCC 31, at para. 18.
12
As a law of general application, the Code applies ex proprio vigore
to Indians, to the extent that it does not touch on the “core of Indianness”
and is not unjustifiably inconsistent with s. 35 of the Constitution Act,
1982 . There is no need to consider whether s. 88 of the Indian Act
would revive the statute and render it applicable.
13
In the classic federalism cases, the vires of legislation is
challenged: Reference re Firearms Act (Can.), supra; Global
Securities Corp. v. British Columbia (Securities Commission), [2000] 1
S.C.R. 494, 2000 SCC 21. Here the question is the relationship between valid
provincial legislation and matters under the federal competence to legislate
under s. 91(24).
(3) Incidental Effects
14
The doctrine of incidental effects holds that where there is a valid
provincial law of general application, the provincial law applies if its
effects upon matters within federal legislative competence are “merely
incidental, irrelevant for constitutional purposes”: P. W. Hogg, Constitutional
Law of Canada (loose-leaf ed.), vol. 1, at p. 15-8, quoted in Global
Securities, supra, at para. 22. See also General Motors of
Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 670. In
other words, as Iacobucci and Major JJ. put it in Ordon Estate v. Grail,
[1998] 3 S.C.R. 437, at para. 81, “it is constitutionally permissible for a
validly enacted provincial statute of general application to affect matters
coming within the exclusive jurisdiction of Parliament”. Since all relevant
provisions of the Code are valid provincial legislation, it follows that by
virtue of the doctrine of incidental effects, any impact of the Code upon
aboriginals is irrelevant for classification purposes. It remains to be seen,
however, whether the law’s application to specific factual contexts can be put
in issue.
(4) Interjurisdictional Immunity
15
The doctrine of interjurisdictional immunity is engaged when a provincial
statute trenches, either in its entirety or in its application to specific
factual contexts, upon a head of exclusive federal power. The doctrine
provides that, where the general language of a provincial statute can be read
to trench upon exclusive federal power in its application to specific factual
contexts, the statute must be read down so as not to apply to those situations:
Grail, supra, at para. 81. The doctrine has limited the
application of a provincial statute to a matter of exclusive federal power in
numerous contexts. For example, in Grail, a provincial statute of
general application was found to have the effect of regulating indirectly an
issue of maritime negligence law. The provincial statute had the effect of
supplementing existing rules of federal maritime negligence law in such a
manner that the provincial law effectively altered rules within the exclusive
competence of Parliament. Accordingly, the provincial statute of general
application was read down so as not to apply to a maritime negligence action.
In Bell Canada v. Quebec (Commission de la santé et de la sécurité du
travail), [1988] 1 S.C.R. 749, this Court held that a provincial
occupational health and safety statute was inapplicable to a federal
undertaking. More relevant, for present purposes, in Delgamuukw, supra,
at para. 181, Lamer C.J. held that s. 91(24) protects a “core” of Indianness
from provincial laws of general application, through operation of the doctrine
of interjurisdictional immunity. See also Kitkatla Band, supra,
at para. 75: in that case it was not established that the impugned provisions
affected “the essential and distinctive core values of Indianness”, and thus
they did not “engage the federal power over native affairs and First Nations in
Canada”.
16
The question, then, is whether, in a valid law of general application,
provisions that empower a provincially constituted administrative tribunal to
hear and rule upon arguments relating to aboriginal rights as they arise in
execution of its provincial mandate trench upon the core of Indianness. If so,
those provisions will be inapplicable to Indians.
(5) Application: Adjudication Versus
Legislation
17
Lambert J.A., in the British Columbia Court of Appeal, concluded that
such provisions would touch the core of Indianness. The doctrine of
interjurisdictional immunity would, accordingly, render those enabling
provisions inapplicable to questions of aboriginal law. It is helpful to
review the heart of his reasoning on this point, at para. 72:
The existence and extent of aboriginal title and aboriginal rights has
been held in Delgamuukw to come within the essential core of
Indianness. That being so, I cannot imagine that a law granting quasi‑judicial
jurisdiction to determine matters of aboriginal title and aboriginal rights
could be anything other than equally and co‑extensively within the core
of Indianness. As such it fulfils the conditions for application of the
principle of interjurisdictional immunity . . . .
18
This short passage reveals the fundamental error in the analysis of the
majority of the Court of Appeal. It equates legislation respecting the “existence
and extent of aboriginal title and aboriginal rights” (a legislative or
regulatory function) with legislation enabling a board “to determine
matters of aboriginal title and aboriginal rights” (an adjudicative function)
(emphasis added). The respondent made the same error, stating in his factum
that “the province’s power to enact the jurisdiction-granting sections of the
Code cannot extend to matters that are not within the province’s
legislative competence” (respondent’s factum, at para. 105).
19
Legislation that triggers the doctrine of interjurisdictional immunity
purports to regulate indirectly matters within exclusive federal competence,
that is, to alter rights and obligations. Such inapplicable legislation may
purport to “supplement” existing federal rules, as in Grail, supra.
It may purport to “regulate” the essential parts of federal undertakings, as in
Bell, supra. To my knowledge, none of the authorities applying
the doctrine of interjurisdictional immunity has done so in respect of an adjudicative
function. The function at issue in this appeal is one of identifying where
existing aboriginal rights affirmed by s. 35 of the Constitution Act, 1982
prevail over provisions in the Code. The Commission’s enabling provisions do
not attempt to supplement or amend the constitutional and federal rules
respecting aboriginal rights. Indeed, the question is whether the legislature
may empower the Commission to take cognizance of existing constitutional rights
and rights under federal rules, not to alter or supplant them. In my view, as
I shall explain, there is no reason under the Constitution that the legislature
may not so empower the Commission.
20
The respondent cites Professor Hogg’s discussion of the rationale for
the conferral upon Parliament by the founders of Confederation of legislative
power over Indians. Professor Hogg writes that the main reason “seems to have
been a concern for the protection of the Indians against local settlers” (Hogg,
supra, at p. 27-2). Once adjudicative and legislative functions are
separated, however, it becomes clear that neither s. 91(24) itself nor
Professor Hogg’s discussion refers to adjudication. The passage is therefore
unhelpful in this context.
21
The conclusion that a provincial board may adjudicate matters within
federal legislative competence fits comfortably within the general
constitutional and judicial architecture of Canada. In determining,
incidentally, a question of aboriginal rights, a provincially constituted board
would be applying constitutional or federal law in the same way as a provincial
court, which of course is also a creature of provincial legislation. At the
hearing all parties agreed that a provincial court may determine s. 35
issues. I believe that Ontario (Attorney General) v. Pembina Exploration
Canada Ltd., [1989] 1 S.C.R. 206, is helpful. It stands for the
proposition that legislative and adjudicative competence are not coterminous.
In that case, this Court concluded that a small claims court, a provincially
constituted inferior court, was competent to hear a case of admiralty law.
Admiralty law, of course, falls within exclusive federal competence. The Court
noted that, within the unitary court system in Canada, provincially constituted
inferior and superior courts apply federal as well as provincial laws. There
are procedural and structural differences between provincially created courts
and administrative tribunals, including the judicial independence requirements
bearing upon them. Nevertheless, I believe that, analogous to the result in Pembina,
supra, the division of powers does not preclude a validly constituted
provincial administrative tribunal, legislatively empowered to do so, from
determining questions of constitutional and federal law arising in the course
of its work.
22
I do not agree with the respondent that the conclusion in Pembina
that a provincially constituted court could determine questions of federal law
implies, a contrario, that a provincially constituted administrative
tribunal cannot do so. First, while I need not decide this point, it is
arguable that La Forest J.’s reference to “courts of inferior jurisdiction”
naturally includes an adjudicative tribunal such as the Commission. Such a
conclusion follows perhaps even more readily from the French version, “tribunaux
d’instance inférieure” (Pembina, supra, at p. 225). Second,
even if the statement in Pembina does not embrace the Commission, La
Forest J. was speaking of the jurisdiction of a small claims court, and I do
not think he can be taken to have been pronouncing, by implication, on broader
questions. Third, the constitutional protection of judicial review of
administrative tribunals, derived from s. 96 of the Constitution Act, 1867 ,
integrates administrative tribunals into the unitary system of justice: Crevier
v. Attorney General of Quebec, [1981] 2 S.C.R. 220. By performing judicial
review of the decisions of administrative tribunals, superior courts play an
important role in assuring respect for the rule of law (Dr. Q v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC
19, at para. 21). While there are distinctions between administrative tribunals
and courts, both are part of the system of justice. Viewed properly, then, the
system of justice encompasses the ordinary courts, federal courts, statutory
provincial courts and administrative tribunals. It is therefore incoherent to
distinguish administrative tribunals from provincial courts for the purpose of
deciding which subjects they may consider on the basis that only the latter are
part of the unitary system of justice.
23
The conclusion sought by the respondent would pose intractable
difficulties for administrative tribunals in the execution of their tasks. A
provincially constituted board cannot respect the division of powers under the Constitution
Act, 1867 if it is unable to take into account the boundary between
provincial and federal powers. For example, in Krieger v. Law Society of
Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65, the Law Society could only stay
within the limits of its jurisdiction to review a prosecutor’s ethical breach
if it considered federal law relating to prosecutorial discretion. Indeed, a
multitude of administrative tribunals, both provincial and federal, routinely
make determinations respecting matters within the competence of the other
legislator. Provincial boards may have an express statutory mandate to
pronounce upon federal legislation: Labour Relations Act, 1995, S.O.
1995, c. 1, Sch. A, s. 92.1; Workers’ Compensation Act, S.N.S. 1994-95,
c. 10, s. 48; Workers Compensation Act, R.S.B.C. 1996, c. 492 (enabling
legislation of provincial boards directing them to interpret and apply federal
income tax, pension and employment insurance legislation). Alternatively, the
necessity to consider a question of constitutional or federal law may simply
arise in the course of a primary determination: Buhs v. Board of Education
of Humboldt Rural School Division No. 47 (2002), 217 Sask. R. 222, 2002
SKCA 41, at para. 31 (municipal tax Board of Revision could hear assessment
appeal on ground that property subject to aboriginal title). In short, in
applying their enabling legislation, boards must take into account all
applicable legal rules, both federal and provincial. I therefore decline to
accept the respondent’s argument and its logical extension that the practices
just described are constitutionally impermissible.
24
Further reasons persuade me to reject the respondent’s general position
that questions relating to aboriginal rights are untouchable by a provincially
created tribunal by virtue of their falling within federal legislative
competence. It is necessary to examine side by side two provisions in the
Constitution. The one on which the respondent relies heavily is s. 91(24),
which empowers Parliament to legislate in relation to “Indians, and Land
reserved for the Indians”. The other is s. 35 of the Constitution Act, 1982 .
Unless otherwise specified, such as official language rights in the Charter
particular to New Brunswick, every right in the Constitution Act, 1982
applies to every province as well as to the federal government. Section 35
therefore applies to both provinces and the federal government. It is also
established that one part of the Constitution cannot abrogate another: Adler
v. Ontario, [1996] 3 S.C.R. 609. By virtue of s. 35 , then, laws of the
province of British Columbia that conflict with protected aboriginal rights do
not apply so as to limit those rights, unless the limitation is justifiable
according to the test in Sparrow, supra. I find it difficult to
think that the Province cannot, when administering a provincial regulatory
scheme, attempt to respect its constitutional obligation by empowering an
administrative tribunal to hear a defence of aboriginal rights.
25
Sparrow stands for the proposition that government regulation,
including provincial regulation, may, by legislation, infringe an aboriginal
right if that infringement is justified. Though this is not the basis of the
Commission’s jurisdiction, where legislation justifiably infringing rights is
possible, surely adjudication by the Commission, which simply takes existing
rights into account, must be permissible. This conclusion follows from the
distinction between legislation and adjudication and the nature of their impact
upon rights.
26
I rely considerably on this distinction. I wish, therefore, to address
an argument made by the respondent that, in practical terms in the aboriginal
rights context, the two are insufficiently distinguishable.
27
The respondent submits that, in deciding a question arising from a
defence of aboriginal right, the Commission will necessarily turn to matters at
the core of s. 91(24). In his view, the Commission would determine not only
the scope and content of the claimed right, but also perhaps the respondent’s
relationship to his First Nation, the times at which the claimed right can be
practised, and the limits on the right, if any, and how the right can be
exercised and by whom. He notes that the Commission might be required to
determine whether the aboriginal right at issue had been extinguished. Then he
argues that a determination by a provincial decision maker that a right has
been extinguished is as much an extinguishment of an aboriginal right as
provincial legislation attempting to extinguish that right directly. The
respondent’s argument, in essence, is that adjudication respecting aboriginal
rights is tantamount to legislation respecting them.
28
I wish to reiterate a point acknowledged by the respondent himself,
namely that a province lacks the constitutional capacity to extinguish
aboriginal rights and aboriginal title. This is because the clear and plain
intent necessary to extinguish an aboriginal right would make a law one in
relation to Indians and Indian lands and thus ultra vires the province: Delgamuukw,
supra, at para. 180. I will now explain why, in two important respects,
a determination by an administrative tribunal, such as the Commission, is very
different from both the extinguishment of a right and legislation in relation
to Indians or aboriginal rights.
29
First, and most important, any adjudicator, whether a judge or a
tribunal, does not create, amend or extinguish aboriginal rights. Rather, on
the basis of the evidence, a judicial or administrative decision maker may
recognize the continued existence of an aboriginal right, including its content
and scope, or observe that the right has been properly extinguished by a
competent legislative authority. Of course the decision maker may also
conclude on the evidence that the aboriginal right simply has not been proven
at all.
30
Admittedly, within the administrative state, the line between
adjudication and legislation is sometimes blurred. Administrative tribunals
that develop and implement policy while adjudicating disputes, such as the
Competition Tribunal and a provincial Securities Commission, come to mind.
Indeed, this Court’s standard of review jurisprudence is sensitive to the
deference that may be appropriate where an expert tribunal is simultaneously
adjudicating and developing policy, which may sometimes be viewed as a legislative
function: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc.,
[2001] 2 S.C.R. 100, 2001 SCC 36, at para. 28; Pushpanathan v. Canada
(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para.
48. There is, however, a crucial distinction between a board that has been
empowered by valid legislation to make policy within an area that is intra
vires the enabling legislator, and a provincial board that is called upon,
in executing its mandate, to answer incidentally a legal question relating to
the Constitution or to federal law. No one has suggested that the Legislature
has the constitutional power to enable a board to determine questions of
aboriginal law on the basis of policy considerations favourable to the Province.
31
Second, while both provincially constituted courts and provincially
constituted tribunals may consider the Constitution and federal laws, there is
nevertheless one important distinction between them that the respondent
overlooked. Unlike the judgments of a court, the Commission’s decisions do not
constitute legally binding precedents, nor will their collective weight over
time amount to an authoritative body of common law. They could not be
declaratory of the validity of any law. Moreover, as constitutional
determinations respecting s. 91(24) or s. 35 , the Commission’s rulings would be
reviewable, on a correctness basis, in a superior court on judicial review: Westcoast
Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322, at
para. 40; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R.
3, at para. 23; Douglas/Kwantlen Faculty Assn. v. Douglas College,
[1990] 3 S.C.R. 570. To avoid judicial review, the Commission would have to
identify, interpret, and apply correctly the relevant constitutional and
federal rules and judicial precedents. As a result of the contrast between the
general application of a provincial law by a court and the specific,
non-binding effect of a board’s particular decision, there is a substantial
difference.
(6) The Present Role of the Commission and the
Core of Indianness
32
The preceding point brings me to consider the role of the Commission in
this case. Recall that the general prohibition against cutting Crown timber
appears in s. 96(1) of the Code, and is not attacked in this appeal. The
question, then, is not whether that prohibition unjustifiably infringes an
aboriginal right. The question is whether provisions that would enable the
Commission to hear a defence of aboriginal right are unconstitutional. I have
already noted that the determinations of the Commission respecting aboriginal
rights would be reviewable on a correctness standard. Provincial officials
cannot initiate any inquiry into aboriginal rights before the Commission. Instead,
a question of aboriginal law will arise only when a respondent raises an
aboriginal right before the Commission in seeking relief from a general
prohibition or other regulatory provision in the Code. I do not see how, by
raising a defence of aboriginal right, a respondent should be able to alter the
primary jurisdiction of the Commission or halt its proceedings. The nature of
a particular defence should be seen as secondary to the Commission’s primary
jurisdiction. A person accused of violating the Code should not be able to
oust the Commission’s jurisdiction relating to forestry simply by raising a
particular defence and thereby highlighting a constitutional dimension of the
main issue. In any event, constitutional law doctrines aside, I think it would
be most convenient for aboriginal persons to seek the relief afforded by their
constitutionally protected rights as early as possible within the mechanisms of
the administrative and judicial apparatus.
33
The respondent has failed to grasp the distinction between adjudication
by a provincially created tribunal, on the one hand, and limits on regulation
by a province of a matter under federal competence, on the other. Taking this
distinction into account, I cannot see how the ability to hear a defence based
on s. 35 would constitute an indirect intrusion on the defining elements of
“Indianness”. The “core” of Indianness has not been exhaustively defined. It
encompasses the whole range of aboriginal rights that are protected by s. 35(1):
Delgamuukw, supra, at para. 178. For present purposes, it is
perhaps more easily defined negatively than positively. The core has been held
not to include labour relations (Four B Manufacturing Ltd. v. United Garment
Workers of America, [1980] 1 S.C.R. 1031) and highway traffic regulation on
reserves (R. v. Francis, [1988] 1 S.C.R. 1025). On the evidence adduced
in Kitkatla Band, supra, at para. 70, the status or capacity of
Indians was found not to be impaired by the impugned Heritage Conservation
Act, R.S.B.C. 1996, c. 187. Given that these substantive matters were held
not to go to the core of Indianness, I cannot see how the procedural question
in this appeal can. The respondent has failed to demonstrate that the
procedural right to raise at first instance a defence of aboriginal rights in a
superior court, as opposed to before a provincially constituted tribunal, such
as the Commission, goes to the core of Indianness.
34
I conclude, therefore, primarily on the basis that adjudication is
distinct from legislation, that the Legislature of British Columbia has the
constitutional power to enable the Commission to determine questions relative
to aboriginal rights as they arise in the execution of its valid provincial
mandate respecting forestry. I turn now to the question of whether the
provisions of the Code in force at the time of this appeal’s events actually
gave such a power to the Commission.
(7) The Disguised Claim of Bias
35
There was much discussion in the written and oral submissions concerning
the unsuitability of any organ created by the Province of British Columbia
hearing an argument relating to s. 35 rights. The concern, evidently, is that
the significant number of aboriginal land claims in the Province assure that
the interests of the Province are adverse to those of aboriginal persons. As I
understand it, this argument is not one of constitutional law. It finds no
place within the doctrine that has accreted around the division of powers. It
strikes me more as an administrative law argument respecting the Commission’s
impartiality. The constitutional determination made here says nothing either
way about the impartiality of the Commission, and does not preclude a
fact-specific argument being raised in the future in the context of a
particular constituted board and its practice: C.U.P.E. v. Ontario (Minister
of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, at paras. 44 and 197; Matsqui,
supra, at pp. 67-72. In short, the potential bias argument is
irrelevant to the constitutional division of powers issue.
B. Statutory Interpretation: Does the Code
Empower the Commission to Hear and Decide Section 35 Questions?
(1) Are Section 35 Questions Distinct From
Other Constitutional Matters?
36
As a preliminary issue, I note that there is no basis for requiring an
express empowerment that an administrative tribunal be able to apply s. 35 of
the Constitution Act, 1982 . There is no persuasive basis for
distinguishing the power to determine s. 35 questions from the power to determine
other constitutional questions, such as the division of powers under the Constitution
Act, 1867 or a right under the Charter . Section 35 is not, any more
than the Charter , “some holy grail which only judicial initiates of the
superior courts may touch” (Cooper, supra, at para. 70, per
McLachlin J. (as she then was), dissenting). This Court has rejected the
theory that Indian reserves are federal “enclaves” from which provincial laws
are excluded: Hogg, supra, at p. 27-10, discussing Francis, supra;
Four B, supra. Similarly, aboriginal rights do not constitute an
enclave that excludes a provincially created administrative tribunal from
ruling, at first instance, on the border between those aboriginal rights and a
provincial law of general application. The arguments that s. 35 rights are
qualitatively different — that they are more complex, and require greater
expertise in relation to the evidence adduced — have little merit. As Moen J.
noted in Ermineskin Cree Nation v. Canada (2001), 297 A.R. 226, 2001
ABQB 760, at para. 51, in determining that a Human Rights Tribunal had
jurisdiction to consider a s. 35 argument:
[T]here is no principled basis for distinguishing Charter
questions from s. 35 questions in the context of the Tribunal’s jurisdiction to
consider constitutional questions. In either case, the decision‑maker is
simply applying the tests set out in the case law to determine if the
particular right claimed is protected by the Constitution. In either
case, if the applicant is successful, the result is a declaration of invalidity
or a refusal to apply only the particular statute or provision before the
decision‑maker.
To the extent
that aboriginal rights are unwritten, communal or subject to extinguishment,
and thus a factual inquiry is required, it is worth noting that administrative
tribunals, like courts, have fact-finding functions. Boards are not
necessarily in an inferior position to undertake such tasks. Indeed, the more
relaxed evidentiary rules of administrative tribunals may in fact be more
conducive than a superior court to the airing of an aboriginal rights claim.
37
One difficulty with the argument about complexity is that it is
difficult to draw the line between simple questions of aboriginal law, that
boards like the Commission should be able to hear, and complex questions. In
the hearing, counsel for the appellants was unable to provide a principled and
convincing way to distinguish aboriginal law questions simple enough and
therefore appropriate for the Commission from those that, in her view, were
not. A member of the Court asked counsel for the appellants whether the
Commission would be able to determine whether a person charged with an
infraction was an Indian for the purposes of applying a superior court’s
declaration delineating an aboriginal right. Counsel replied that that would
simply be a factual determination and well within the Commission’s competency.
She had no response, however, to the rejoinder that even ostensibly “factual”
questions of aboriginal status can routinely engage more complex questions of
s. 35 and federal aboriginal rights. The nature of the question (fact, mixed
fact and law, or law) assists in determining the standard of review for
decisions by administrative tribunals: Canada (Director of Investigation and
Research) v. Southam Inc., [1997] 1 S.C.R. 748. Such distinctions are not
watertight enough, however, to serve as the basis for determining a board’s
jurisdiction to hear and decide a question. A further unconvincing argument
was that aboriginal rights are, today, complicated and in a state of flux, but
that in the future, when they have been settled, it may be appropriate for
administrative tribunals to consider them. Again, such lines are not easily
enough drawn for that to be the judicial test. The Attorney General of British
Columbia presented no workable way of taking from administrative tribunals the
complicated aboriginal law issues and leaving with them the simpler aboriginal
law issues that they could resolve speedily and satisfactorily, in the best
interests of all concerned.
38
I conclude, therefore, that there is no principled basis for distinguishing
s. 35 rights from other constitutional questions.
(2) The Appropriate Test: the Power to
Determine Questions of Law
39
The facts and arguments in this appeal and those in Martin, supra,
have presented this Court with an opportunity to review its jurisprudence on
the power of administrative tribunals to determine questions of constitutional
law. As Gonthier J. notes in Martin, at para. 34, the principle of
constitutional supremacy in s. 52 of the Constitution Act, 1982 leads to
a presumption that all legal decisions will take into account the supreme law
of the land. “In other words”, as he writes, “the power to decide a question
of law is the power to decide by applying only valid laws” (para. 36). One
could modify that statement for the present appeal by saying that the power of
an administrative board to apply valid laws is the power to apply valid laws
only to those factual situations to which they are constitutionally applicable,
or to the extent that they do not run afoul of s. 35 rights. This Court’s
decision in Cooper, supra, has too easily been taken as
suggesting that practical considerations relating to a tribunal may readily
overcome this presumption. I am of the view that the approach set out in Martin,
in the context of determining a tribunal’s power to apply the Charter ,
is also the approach to be taken in determining a tribunal’s power to apply s.
35 of the Constitution Act, 1982 . The essential question is whether the
empowering legislation implicitly or explicitly grants to the tribunal the
jurisdiction to interpret or decide any question of law. If it does, the
tribunal will be presumed to have the concomitant jurisdiction to interpret or
decide that question in light of s. 35 or any other relevant constitutional provision.
Practical considerations will generally not suffice to rebut the presumption
that arises from authority to decide questions of law. This is not to say,
however, that practical considerations cannot be taken into consideration in
determining what is the most appropriate way of handling a particular dispute
where more than one option is available.
40
The parties spent some time discussing the relationship between a
tribunal’s remedial powers and its jurisdiction to hear particular categories
of legal questions. The appellants referred the Court to R. v. 974649
Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 (“Dunedin”), and R.
v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82. In those cases, this Court
articulated a functional and structural approach for determining whether an
inferior court is a “court of competent jurisdiction” for the purposes of
granting a remedy under s. 24(1) of the Charter . It was suggested in
the hearing that the test in Dunedin gives credit to the view that
remedial powers are a central feature to determine jurisdiction, that Dunedin
and Hynes can be read broadly as indicating that there are distinctions
between particular subject matters of constitutional law, and that implied
jurisdiction to consider general questions of law may include only certain
questions concerning the constitutional validity of the tribunal’s enabling
statute. I cannot accept these points. First, this Court has already
recognized that the power to find a statutory provision of no effect, by virtue
of s. 52(1) of the Constitution Act, 1982 , is distinct from the remedial
power to invoke s. 24(1) of the Charter : Tétreault-Gadoury v. Canada
(Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 31. In
other words, an inferior court’s remedial powers are not determinative of its
jurisdiction to hear and determine constitutional issues. In any case, s. 35
is part of the Constitution Act, 1982 , but not of the Charter .
Accordingly, there is no issue whatsoever of remedies under s. 24(1) , and the
Commission’s remedial powers are not before us in the present appeal. Second,
this Court’s decisions in Dunedin and Hynes dealt, in two
different contexts, with the same question: Was there a “court of competent
jurisdiction” for the purposes of s. 24(1) of the Charter ? In Dunedin,
supra, at para. 73, McLachlin C.J. held that, where there is no express
legislative intention to grant jurisdiction, jurisdiction may nonetheless be
implied from the structure of the tribunal’s enabling legislation, the powers
conferred on the tribunal, the function it performs, and its overall context.
The inquiry in those cases, and prior ones, such as Mills v. The Queen,
[1986] 1 S.C.R. 863, arises from the term “court of competent jurisdiction” in
s. 24(1) . The test developed for applying that term should not, in my view, be
taken as suggesting that, outside that unique context, there will be lines
drawn between the kinds of constitutional questions that a tribunal is able to
hear.
(3) Application of the Test
(a) The Statutory Scheme
41
In my view, it is clear that the statutory mandate given to the
Commission by the Code requires the Commission to determine questions of law.
Consider s. 131(8):
131 . . .
(8) A party may
. . .
(d) make submissions as to facts, law and
jurisdiction.
The provision
providing for an appeal is also revealing:
141 (1) The minister or a party to the
appeal before the commission may, within 3 weeks after being given the decision
of the commission and by application to the Supreme Court, appeal the decision
of the commission on a question of law or jurisdiction.
These provisions
make it impossible, in my reading of the Code, to sustain the argument that the
Commission, an adjudicative body, determines purely factual matters. Moreover,
the Commission’s past decisions reveal that it has, in the conduct of its
mandate, been determining legal questions including, for example, the
availability of protections guaranteed by s. 11 of the Charter ;
application of the principle of double jeopardy; availability of the defences
of due diligence, estoppel and officially induced error; and application of the
principle de minimis non curat lex.
42
I note, in passing, that the Forest and Range Practices Act,
S.B.C. 2002, c. 69, s. 77, introduced amendments providing the Minister the
power to require the holder of an agreement to remedy or mitigate “a potential,
unjustifiable infringement of an aboriginal right, including aboriginal
title”. The Minister’s order would be appealable to the Commission (ss. 80 and
82). The Commission noted in its factum (at para. 46), “[a]ccordingly, despite
the Province’s position in this Court that the Commission is incapable of
dealing with ‘aboriginal rights issues’, the Legislative Assembly has seen fit
very recently to bring those very same issues before the Commission.” Those
amendments are not in force. Indeed, on May 29, 2003, the Legislative Assembly
gave First Reading to Bill 69, the Forest and Range Practices Amendment Act,
2003 (Debates of the Legislative Assembly, vol. 16, No. 7, 4th
Sess., 37th Parl., p. 7108), which would amend s. 77 (ss. 36 and 39 of Bill
69). It would be inappropriate to rely on s. 77, and it is unnecessary to do
so for my analysis.
(b) The Nature of an Appeal to the Commission
43
The respondent Mr. Paul made an argument based on the Commission’s role
within the forestry administrative scheme. He submitted that the Commission is
an appeal board without power to deal with a dispute de novo.
Therefore, he submits, the Commission’s jurisdiction is limited in the same way
as that of the District Manager and Administrative Review Panel. These bodies
were found, by the chambers judge, to have no jurisdiction to determine whether
a s. 35 right could be invoked. It is unnecessary for the purposes of this
appeal to pronounce upon the jurisdiction of the District Manager and the
Administrative Review Panel. Assuming for argument’s sake, however, that
Pitfield J. was correct, I reject the respondent’s argument that it would
necessarily follow that the Commission could not have a broader jurisdiction than
the two decision makers below. In support of his position, the respondent
referred to two cases, Dupras v. Mason (1994), 99 B.C.L.R. (2d) 266
(C.A.), and McKenzie v. Mason (1992), 72 B.C.L.R. (2d) 53 (C.A.), leave
to appeal refused, [1993] 1 S.C.R. vii. Both relate to the right of appeal to
the Supreme Court of British Columbia from a decision of the Chief Gold
Commissioner under provincial mining legislation. Both involved Rule 49 of the
British Columbia Supreme Court Rules. The Court of Appeal in both cases
held that the right of appeal did not permit a trial de novo.
44
I wish in no respect to comment on the validity of those decisions in
their proper context or on the interpretation of Rule 49. Those cases,
however, dealt with an appeal from an administrative scheme to a superior
court. It was on precisely that basis that the Court of Appeal in British
Columbia Chicken Marketing Board v. British Columbia Marketing Board
(2002), 216 D.L.R. (4th) 587, 2002 BCCA 473, recently distinguished Dupras.
The issue there was a statutory appeal from the Chicken Marketing Board to the
Marketing Board. The former was not an adjudicative body. In contrast, the
Marketing Board almost always conducted hearings with witnesses, sworn
testimony and oral submissions; provided the opportunity for parties to be
represented by counsel; and gave reasons for its decisions. The Court of
Appeal held that the statutory appeal to the Marketing Board was a full hearing
on the merits, there being no suggestion that significant deference was owed to
the lower board. The chambers judge had erred in applying Dupras, an
appeal from a specialized statutory office to a superior court, not an appeal
within an administrative scheme to a specialized appeal board. The Marketing
Board was not a generalist court, but a specialized tribunal expected to use
its expertise. That expertise would be squandered if the Marketing Board were
bound to defer to the lower board and restrict its inquiry to the grounds
before the lower board (paras. 11-14). I note that in the case of an appeal
from a tribunal to a superior court, as opposed to an appeal within an
administrative scheme, the reviewing judge will follow the pragmatic and
functional approach to determine the appropriate standard of review: Dr. Q,
supra, at para. 25. This Court’s decision in Tétreault-Gadoury,
supra, is another relevant example. In that case, again within an
administrative scheme, only the umpire was expressly given powers to determine
questions of law. This Court held that it was the umpire, who sat on appeal
from the Board of Referees, who had the power to consider constitutional
questions. La Forest J. noted that where the litigant has the possibility of
an administrative appeal before a body with the power to consider
constitutional arguments, the need for determination of the constitutional
issue by the tribunal of original jurisdiction is clearly less (p. 36). That
conclusion would have been impossible if, as a general proposition, an appeals
tribunal could not consider issues not raised below. I see no basis for
prohibiting the Commission from hearing a s. 35 argument on the basis of the
nature of the appeal.
45
I conclude, therefore, that the Commission has the power to decide
questions relating to aboriginal rights arising incidentally to forestry
matters. No argument was made that the Legislature has expressly or by clear
implication arising from the statutory scheme withdrawn from the Commission the
power to determine related questions under s. 35 that will presumptively attend
the power to determine questions of law. The Commission therefore has the
power to hear and decide the incidental issues relating to Mr. Paul’s defence
of aboriginal rights.
III. Conclusion
46
For the reasons given above, I would allow the appeal. The province of
British Columbia has legislative competence to endow an administrative tribunal
with the capacity to consider a question of aboriginal rights in the course of
carrying out its valid provincial mandate. More specifically, the Commission,
by virtue of its power to determine legal questions, is competent to hear Mr.
Paul’s defence of his aboriginal right to harvest logs for renovation of his home.
47
My conclusions mean that the Commission has jurisdiction to continue
hearing all aspects of the matter of Mr. Paul’s four seized logs. Unless he
moves in the Supreme Court of British Columbia for a declaration respecting his
aboriginal rights, Mr. Paul must present the evidence of his ancestral right to
the Commission. As yet he has merely asserted his defence. If he is
unsatisfied with the Commission’s determination of the relationship between his
s. 35 rights and the prohibition against cutting trees in s. 96 of the Code, he
can move for judicial review in the Supreme Court of British Columbia. The
standard of review for the Commission’s determinations concerning aboriginal
law will be correctness.
48
The Attorney General of British Columbia and the Ministry of Forests,
who are successful respecting the Province’s legislative capacity but
unsuccessful respecting the scope of the Commission’s actual power, did not
seek costs. The respondent, Mr. Paul, sought costs, but has been
unsuccessful. Only the Commission, a party intervener, succeeded fully in this
appeal. The Commission did not seek costs in this Court, but did request an
order setting aside the costs award against it in the court below. In my view,
this request should be granted, and accordingly the costs award in the Court of
Appeal is set aside.
49
I would answer the constitutional questions as follows:
1. Can ss. 130 to 141 of the Forest
Practices Code of British Columbia, S.B.C. 1994, c. 41, constitutionally
apply ex proprio vigore to confer upon the Forest Appeals
Commission jurisdiction to decide questions of law in respect of aboriginal
rights or aboriginal title?
Answer: Yes. As a law of
general application, the Forest Practices Code of British Columbia
applies ex proprio vigore to Indians, to the extent that it does not
touch on the “core of Indianness” and is not unjustifiably inconsistent with s.
35 of the Constitution Act, 1982 .
2. If the answer is “no”, do the impugned
provisions nonetheless apply to confer this jurisdiction by virtue of s. 88 of
the Indian Act, R.S.C. 1985, c. I-5 ?
Answer: It is
not necessary to answer this question.
Appeal allowed.
Solicitor for the appellants: Attorney General of
British Columbia, Victoria.
Solicitors for the respondent: Braker &
Company, Port Alberni, British Columbia.
Solicitors for the intervener the Forest Appeals
Commission: Arvay Finlay, Victoria.
Solicitor for the intervener the Attorney General
of Canada: Attorney General of Canada, Vancouver.
Solicitor for the intervener the Attorney General
of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General
of Quebec: Attorney General of Quebec, Sainte-Foy.
Solicitor for the intervener the Attorney General
of New Brunswick: Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General
of Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General
for Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General
of Alberta: Attorney General of Alberta, Edmonton.
Solicitors for the intervener the First Nations
Summit: Pape & Salter, Vancouver.