COURT OF APPEAL FOR BRITISH COLUMBIA

Transcription

1 Citation: Stoney Creek Indian Band et al. Date: v. Alcan Aluminum Limited 1999 BCCA 527 Docket: CA CA VI03365 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT Before: The Honourable Madam Justice Southin September 14, 1999 The Honourable Madam Justice Ryan The Honourable Mr. Justice Hall Vancouver, B.C. BETWEEN: CHIEF STANLEY THOMAS, on behalf of himself and representing each of the members of THE STONEY CREEK INDIAN BAND and THE STONEY CREEK INDIAN BAND AND: PLAINTIFFS (RESPONDENTS) ALCAN ALUMINUM LIMITED/ALCAN ALUMINUM LIMITEE AND: AND: AND: HER MAJESTY THE QUEEN IN RIGHT OF BRITISH COLUMBIA THE ATTORNEY GENERAL OF BRITISH COLUMBIA DEFENDANT (APPELLANT) DEFENDANT (RESPONDENT) INTERVENOR (APPELLANT) FIRST NATIONS SUMMIT, UNION OF BRITISH COLUMBIA INDIAN CHIEFS, SONGHEES INDIAN BAND, NANOOSE BAND, MALAHAT FIRST NATION, BEECHER BAY BAND, CARRIER SEKANI TRIBAL COUNCIL and GWA'SALA-NAKWAXDA'XW INDIAN BAND INTERVENORS

2 J.E. Gouge, Q.C. and K.B. Bergner R. Morahan and H. Slade, Q.C. Appearing for the Appellant Alcan Aluminim Limited/ Alcan Aluminium Limitee Appearing for the Respondent Chief Stanley Thomas and The Stoney Creek Indian Band L. Mandell, Q.C. Appearing for the Intervenor Union of B.C. Indian Chiefs T. Leadem and Appearing for the Appellant K. Kickbush The Attorney General of British Columbia R. Mogerman and Appearing for the Applicants M. Matilipi The Carrier Sekani Tribal Counsel and GWA'SALA-NAKWAXDA'WX Indian Band A. Pape Appearing for the Intervenor First Nations Summit R. Janes Appearing for the Applicants The Songhees First Nation Nanoose First Nation Beecher Bay Band and Malahat Indian Band [1] SOUTHIN, J.A.: These are appeals by the defendant below, Alcan Aluminum Limited, and by the Attorney General of British Columbia as intervenor, from this judgment bearing date the 22 nd October, 1998: THIS APPLICATION of the Defendant, Alcan Aluminum Limited/Alcan Aluminium Limitee ("Alcan"), coming on for hearing on July 21-24, 1997, November 17-19, 1997 and March 23, 1998, and upon reading the affidavits of David Zacks, Russ McKone, Claude Gelinas, Elizabeth Hardy, Leslie A. Holroyd, Michael Bruneau, Tara L. Campbell, Anne Clayton, Stanley Thomas, Sophie Thomas, Minnie Thomas, Alex Johnny, Geoffrey Thomas, Mary John and Linda Vanden Berg (x3), and upon hearing J. Gouge, Q.C. and Tara L. Campbell, of counsel for Alcan and Michael W.S. Frey and Sara Macdonald, of counsel for the Defendant, Her Majesty the Queen in Right of the Province of British Columbia and for the Intervenor, the Attorney General of British Columbia, and B. Rory B. Morahan, of counsel for the Plaintiffs, and upon judgment being reserved to this date: THIS COURT DECLARES that the Plaintiffs' claim for any damages which they may have suffered prior to April 4, 1994 is not barred by s. 3(2) of the Limitation Act R.S.B.C. 1996, c.266; THIS COURT FURTHER DECLARES that the Plaintiffs' claim for any damages which they may have suffered prior to April 4, 1966 is not barred by s. 8 of the Limitation Act R.S.B.C. 1996, c.266. [2] The question now to be resolved is whether a question which counsel for the appellant Alcan calls a limitation question, and counsel for

3 the Attorney General of British Columbia calls a constitutional question, and which might, in truth, be called a limitation question depending upon a constitutional question in part, was suitable for resolution in a summary way. [3] The appellant Alcan says the appeal should be allowed and the questions posed, which are the same as the questions below, answered in its favour. The respondents say the appeal should be adjourned until certain factual issues are resolved. The Attorney General of British Columbia, as I understand counsel appearing for him, says the appeal should be allowed because the constitutional issue ought never to have been addressed on a record as deficient as he avers this record is. [4] The application of the appellant had been brought on 19 th March, 1997, "for an order pursuant to Rule 18A of the Rules of the Court for judgment on the issues set out in Schedule "A" attached hereto". [5] Schedule "A" was in these terms: [1] Is the Plaintiffs' claim for any damages which they may have suffered prior to April 4, 1994 barred by s. 3(1) of the Limitation Act R.S.B.C. 1979, c. 236? [2] Is the Plaintiffs' claim for any damages which they may have suffered prior to April 4, 1966 barred by s. 8 of the Limitation Act R.S.B.C. 1979, c.236? [6] Those portions of Rule 18A relevant to these proceedings are: (1) A party may apply to the court for judgment, either on an issue or generally, in any of the following: (a) an action in which a defence has been filed; *** (11) On the hearing of the application, the court may (a) grant judgment in favour of any party, either on an issue or generally, unless (i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application. [7] The learned judge, as will appear, acceded to the submission of the appellant that Rule 18A could properly be invoked in this case over the objection of the respondents. As the learned judge put it: [6] Apart from the limitation period issues raised by Alcan in this application, there are two other issues or groups of issues raised by the plaintiffs. One concerns the appropriateness of summary trial proceedings for determining the extent to which, if at all, the claims against Alcan for damages are barred by the provisions of the Act. The plaintiffs contend that summary trial proceedings are not appropriate for determination of the

4 limitation period issues. The Province takes no position on this question. [8] What this action is about is shown by the pleadings. [9] In the statement of claim, the respondents pleaded that the Stoney Creek Indian Reserve No. 1 was allotted to them by Commissioner O'Reilly on 29 th August, I digress to remark that anyone who is interested in knowing what that refers to may read my judgment in Mt. Currie v. Attorney General (British Columbia) (1991), 54 B.C.L.R [10] The respondents then pleaded as against the appellant: 9. The Stoney Creek Indian Reserve #1 and other Indian Reserves herein enumerated were lands set aside solely for the use and benefit of the Stoney Creek Indian Band and its members, past, present and future. 10. In 1911, a trail, which existed at the time of the allotment of the Stoney Creek Indian Reserve #1, on the said Reserve became a wagon road and followed the course of Stoney Creek through the Reserve. 11. On or before February 24, 1951, the Defendant, Alcan, caused a road construction crew to trespass on the Stoney Creek Indian Reserve, for the purposes of constructing a road, which road is now called the Kenney Dam Road. 12. On or before February 24, 1951, the Defendant, Alcan, constructed the said Kenney Dam Road, the majority of construction which took place on the Stoney Creek Indian Reserve and was not on lands that were within existing roads, trails or paths, and/or not along the course of the wagon road aforesaid, but were on lands which were set aside solely for the use and benefit of the Plaintiffs, and each of them. 13. From February 24, 1951 to this day, the Defendant, Alcan, without the consent of the majority of electors of the Band and/or the Governor in Council, acting on behalf of Her Majesty the Queen in Right of Canada, did trespass or in the alternative did cause trespasses by others, in contravention of the Indian Act, R.S.C R.S.C. 98, S.C Chapter 29, 1052 R.S.C. 149, 1970 R.S.C. I-6, and all amendments thereto. 14. The Defendant, Alcan, caused agricultural fields and/or gardens to be destroyed, residences and buildings to be demolished, all of which fields, gardens, residences and buildings were on the Stoney Creek Indian Reserve and were the property of the Stoney Creek Indian Band and/or its members and each of them, on land held by Her Majesty the Queen in Right of Canada for the benefit of the said Plaintiff. Such damage and destruction was without the consent of the majority of the electors for the Stoney Creek Indian Band and/or the Governor in Council, acting on behalf of Her Majesty the Queen in Right of Canada. 15. The Defendant, Alcan, had no lawful authority to trespass on the Stoney Creek Indian Reserve and continue to trespass to this day. 16. The Defendant Alcan, alienated land from the Reserve #1 for the purposes of the road and prevented the Plaintiffs and each of them from using or enjoying this land which was Indian Reserve.

5 17. On or before June 12, 1954, the Defendant, Alcan, purported to transfer the said road to Her Majesty the Queen in Right of the Province of British Columbia. *** 21. From 1954 to this date, Her Majesty the Queen in Right of the Province of British Columbia has jointly with Alcan Canada Ltd. Trespassed, or in the alternative caused trespasses by others on the Stoney Creek Indian Reserve by using roads which are still Indian Reserve Lands as defined by the Indian Act. 22. On or before 1954 to this date, the Defendants, and each of them, consented to the use of the roads which trespassed on the Indian Reserve Lands. One of the uses was for the purposes of transferring logs for private individuals. 23. The Defendants, and each of them, caused and continued to cause trespass and damages to the members of the Stoney Creek Indian Band by reason of the nuisance and interference with their daily life, the particulars of which are as follows: [1] regular and heavy traffic through the Indian Village; [2] danger to the inhabitants of the Indian Village; [3] dust and dirt as a result of the traffic on the residences and private property of the members of the Indian Band; and [4] loss of privacy by reason of trespass Thus, as against the appellant, there are several disparate allegations of trespass. I need not quote those pleas against the Queen in behoof of British Columbia. [11] The prayer for relief claims against both defendants essentially damages, including punitive damages. [12] By its statement of defence, the appellant pleaded: 6. The Reserve was established for the use and benefit of the Band on July 29, 1938 by British Columbia Order in Council #1036, pursuant to the Indian Affairs Settlement Act S.B.C. 1919, c. 32 and article 13 of the Terms of Union, The relevant terms of Order in Council #1036, and the ensuing conveyance of the Reserve from Her Majesty the Queen in Right of British Colombia ("the Province") to Canada, were:...it shall at all times be lawful for... [the Province]... or for any person or persons acting by [the Province's]... authority, to resume any part of... [the Reserve]... which it may be deemed necessary to resume for making of roads ***... all travelled streets, roads, trails and other highways existing over or through the... [Reserve]... at the date hereof shall be excepted from this grant. 7. On December 29, 1950, an agreement in writing ("the 1950 Agreement") was entered into between Alcan and the

6 Province, pursuant to which the Province granted Alcan certain rights, including the right to build, maintain and operate an hydro-electric project. One element of the project was the construction of a dam ("the Kenney Dam") to the south and west of the Reserve. In order to gain access for the construction and maintenance of the Kenney Dam and related facilities, Alcan was obliged to construct a road to the Kenney Dam from Vanderhoof. The road so constructed is that referred to in the Statement of Claim as the "Kenney Dam Road". A portion of the Kenney Dam Road crosses the Reserve. 8. There was at all material times a public highway or trail across the Reserve. The Kenney Dam Road follows and improves the previously-existing public right of way. 9. By the act of constructing (or authorising Alcan to construct) the Kenney Dam Road, the Province (as it was entitled to do by the provisions quoted in para. 6, above) resumed the portion of the Reserve crossed by the Kenney Dam Road. Alternatively, Alcan resumed that portion of the Reserve on behalf of the Province under the authority to build the road granted to Alcan by the Province. 10. Alcan completed construction of the Kenney Dam Road in or about September, Alcan does not know what is meant by the phrase "purported to transfer the said road" in paragraph 17 of the Statement of Claim. Alcan never held or claimed any title or interest in any of the lands on which the Kenney Dam Road was constructed. To the best of Alcan's knowledge, information and belief (then and now), they are, and were at all material times, Crown lands, the property of Canada within the boundaries of the Reserve and the property of the Province elsewhere. 12. Since 1954, Alcan has had no role in, and has undertaken no activity relating to, the improvement or maintenance of the Kenney Dam Road. Since that date, Alcan has made no more or different use o the Kenney Dam Road than any other member of the public. 13. At all material times, Alcan believed honestly and reasonably that it was properly authorised by all necessary legal process to construct he Kenney Dam Road as and where it did. Since completion of the Kenney Dam Road, Alcan has used the Kenney Dam Road in the honest and reasonable belief that it was a public highway, available for use by Alcan (and other members of the public) in the same way as any other public highway. 14. Prior to 1994, the Plaintiffs took no steps to alert Alcan or other members of the public that the Kenney Dam Road was, or was alleged to be, anything other than an ordinary public highway. [13] In their reply, the respondents did not deny the right of resumption alleged in the statement of defence but claimed there was no resumption. They made assertions of fact and law going to the applicability of the Limitation Act, 1975, thus:

7 1. In reply to paragraph 7 of the Statement of Defence, the Plaintiffs and each of them state that the Defendant Alcan Aluminum Limited at no point ever obtained permission from the Defendant Her Majesty the Queen in Right of the Province of British Columbia to gave access for the construction and maintenance of the Kenney Dam and related facilities, despite the requirement to do so by the Defendant Her Majesty the Queen in Right of British Columbia. 2. In reply to paragraph 9 of the Statement of Defence, the Plaintiffs state that the Defendant Alcan Limited at no point was authorized to construct he said road by the Defendant Her Majesty the Queen in Right of British Columbia. 3. In further reply to paragraph 9 of the Statement of Defence, the Plaintiffs state that there was no resumption of the road on behalf of the Province by Alcan Aluminum Limited but in fact, Alcan Aluminum Limited became a constructive or implied trustee of he said lands (along with the Defendant Her Majesty the Queen in Right of British Columbia). 4. In reply to paragraph 19 of the Statement of Defence the Plaintiffs say that the Statute of Limitation R.S.B.C. Chapter 236 cannot apply to "Indians" and "lands reserved or Indians" as such topics are within the exclusion jurisdiction of Her Majesty the Queen in Right of Canada pursuant to 91(24) of the Constitution Act. 5. In reply to paragraph 9 of the said Statements of Defence the Plaintiffs say that Section 88 of the Indian Act does not referentially incorporate the Limitation Act R.S.B.C. Chapter In reply to paragraph 19 of the Defendant's Statement of Defence, the Plaintiffs state that the claim against the Defendant Alcan Aluminum Limited is not statute barred pursuant 3(1) of the Limitation Act, R.S.B.C c.236 and amendments thereto because the Plaintiffs fall within the category of persons defined by ss 3(a), 3(b), and 3(j) of the said Limitation Act. 7. The Plaintiffs further state in response to paragraph 19 of the said Statement of Claim that any running of time with respect to a limitation period is postponed pursuant to s. 6(1) of the said Limitation Act as a result of: (a) Fraud, equitable fraud or fraudulent breach of trust to which the Defendants, Alcan Aluminum Limited and Her Majesty the Queen in Right of British Columbia, were parties or privy, being trustees under the constructive trust. (b) The present action is for the recovery of property from the said constructive trustees. (c) The Plaintiffs were never fully aware of the facts of the said fraudulent breach of trust conversion and other acts of the trustee until 1993 when certain investigations were made by the Plaintiffs. 8. In further response to paragraph 19 of the said Statement of Defence, the Plaintiffs state that the further running of time with respect to the limitation period is further postponed as a result of: (a) Fraud on the part of the Defendant Alcan Aluminum Limited.

8 (b) Deceit on the part of the Defendant Alcan Aluminum Limited. (c) Concealing of material facts related to the cause of action that have been willfully concealed by the Defendant Alcan Aluminum Limited. (d) Breach of trust alleged in paragraphs 3(a) above and the Statement of Claim. 9 In further response to paragraph 19 of the Statement of Defence the Plaintiff members of the Stoney Creek Indian Band say that many of their members are minors and the running of all limitation periods are postponed. 10. The Plaintiffs in further general response to paragraph 19 state that the Plaintiff's did not know the identity of the Defendant an did not have within their means or knowledge material facts and did not take appropriate advice until the year 1993, at which point the said limitation date should commence. 11. In further reply to the limitation defence, the Plaintiffs state that the limitation period can only commence from the year of 1993 at which time the Plaintiffs became fully aware of all facts on which they could take appropriate advice showing that the action had reasonable prospects of success. [14] The interesting question of whether the Crown Provincial has a right of resumption in reserve land arising out of the Order-in-Council of 1938 has never in this Province been authoritatively determined. At least, that is my opinion. My judgment in Mt. Currie was a dissenting judgment and, therefore, within the rules of stare decisis has no binding effect whatever, not even upon myself. [15] When this appeal first came to the notice of the Court some months ago, our colleague, Madam Justice Huddart, raised with counsel the question of the possible applicability of the Limitation Act of James I. On 24 th August, 1999, the appellant delivered an amended statement of defence in which it pleaded that act. As yet, the respondents have not filed their amended reply, but Mr. Morahan informs us that that will indeed be done. Whether the appellant is entitled to the benefit of the Act of 1623 may give rise to quite different questions from those arising under the statute of as to that, I cannot say. [16] In May 1997, the present respondents gave notice of a Constitutional Question thus: The Plaintiffs, Chief Stanley Thomas on behalf of himself and representing each of the members of the Stoney Creek Indian Band, and the Stoney creek Indian Band, hereby give notice that the Plaintiffs will seek a declaration that the Limitation Act, R.S.B.C. is not applicable to Indian people or Indian Lands by reason of 91(24) of the Constitution Act and by reason that Section 88 of the Indian Act does not referentially incorporate the Limitation Act. The matter will be argued on the 2 nd day of June, 1997, at 10:00 o'clock in the forenoon, in the Supreme Court of British Columbia, at 250 George Street, Prince George, British Columbia. The particulars of the argument are as follows:

9 [a] The Provincial Government has no jurisdiction over the exclusive domain as defined in Section 91(24) of the Constitution Act. [b] Section 91(24) of the Constitution Act grants authority to the Federal government to legislate over all matters affecting the welfare and civil rights of Indian people. [c] Section 91(24) of the Constitution Act gives authority to the Federal government to legislate over all matters involving land reserved for Indians. [d] The Limitation Act, R.S.B.C. purports to establish an ultimate limitation period of thirty years. [e] The Limitation Act, R.S.B.C. purports to define the civil rights of Indian people as it relates to lands reserved for Indians. [f] The Limitation Act purports to limit the claim for compensation for the use of Indian lands. [g] Therefore the Limitation Act and all its sections including specifically, Section 8(1)(c) is unconstitutional and cannot affect the civil rights of Indians or Indian land. [h] Section 88 of the Indian Act does not incorporate the Limitation Act, R.S.B.C. into Federal law. [i] There are two conflicts between the Limitation Act and other legislation: (i) There is a conflict with Section 15 of the Charter of Rights; (ii) There is a conflict in that the Indian Act creates an exclusive framework for the disposition of Indian lands and compensation therefrom and the Limitation Act purports to, in effect deprive Indian people of compensation for the use of Indian land. [j] By reason of the conflict said Section 88 does not referentially incorporate. [k] That as a consequence, the Limitation Act and in particular, Section 8(1)(c) of the Limitation Act, R.S.B.C. cannot apply to Indians or Indians land. [17] At the outset of his reasons for judgment, the learned judge, having referred to the positions of the parties in part said: [10] Counsel were invited to consider preparing an agreed upon statement of facts for purposes of this summary trial. A memorandum filed in response to the request reads as follows (in part): Discussions between counsel for Alcan and counsel for Stoney Creek Indian Band (excluding Crown Counsel) have resulted in the following Admission of Fact: 1. Between 1948 and 1951 the Defendant, Alcan Aluminum Limited built Kenney Dam Road on the Stoney Creek Indian Reserve.

10 For the purposes of the Summary Trial Application, Alcan states that they do not admit the following facts, however, is content that the Court should assume them to be true for the purposes of the Summary Trial Application. 1. Alcan had no authority to construct Kenney Dam Road and specifically failed to comply with the provisions of the Indian Act. 2. Alcan did not have the consent of the federal government, the provincial government or any agent or representative of each of them. 3. The road is still built on Stoney Creek Indian Reserve which is on unsurrendered Indian Reserve land. 4. Between 1948 and 1951 on the construction of Kenney Dam Road, Alcan destroyed the improvements in the path of the construction of the road. 5. That the land on which the road was built remains Indian Reserve land. 6. The land on which the road was built was within the traditional territory of the Stoney Creek Indian Band and has been used from time immemorial for the use and benefit of the Stoney Creek Indian Band, its members and ancestors thereof. 7. That since 1951 Alcan has made use of the Kenney Dam Road for its own purposes. 8. That the land on which the road was built contained barns, chicken houses and other improvements owned by the Stoney Creek Indian Band. [11] Counsel for the plaintiffs does not support the suggestion that certain facts be assumed for purposes only of the issues raised on this summary trial application, with the implication that those same facts may be challenged when remaining issues are dealt with in later proceedings. The doctrine of judicial notice aside, facts that are not admitted must ordinarily be established by evidence. Where the relevant facts are not in dispute, Supreme Court Rule 34 permits the setting down of a point of law for hearing prior to trial. Application under Rule 18A for judgment on an issue on assumed facts represents a somewhat awkward compromise and does involve the possibility of inconsistent findings of fact at a later stage of the segmented trial. This procedural issue was considered in Steyns v. Manitoba Public Insurance Corp (1995), 7 B.C.L.R. (3d) 106 (C.A.), where Finch J.A., delivering the judgment of the court, noted that Rule 18A has frequently been used to decide limitation issues on the assumption that the cause of action could be established and he added that sometimes it will be appropriate to use Rule 18A to decide a question of law on assumed facts and sometimes not (at para. 46). In that case, he found it necessary to order a conventional trial on limited factual issues. In the present case, I am of the view that without reliance upon assumed facts there is sufficient factual underpinning for a consideration of the constitutional

11 challenge to the applicability of those provisions of the Act which would bar the plaintiffs' claim for relief. [18] The learned judge then set out the contents of certain affidavits filed by the plaintiffs below, but having done so, he did not expressly make therefrom any findings of material fact, using that phrase in its pleading sense. [19] Thereafter, the learned judge turned to addressing "defining the constitutional issue raised under the Constitution Act, 1867". [20] Having done so, he proceeded to address the constitutional question as he defined it and held, in effect, that the Limitation Act, 1975, could not be invoked by the appellant against the respondents for reasons I need not set out. He therefore made no findings on any of the material facts which, on the pleadings in this cause, are in contention. [21] At a pre-hearing conference in this appeal heard before me last week, I put this question to counsel for the appellant: [1] SOUTHIN, J.A.: My colleagues and I are all of the view that this is a case of some considerable importance. It may be (we do not know) that there have been other occasions in the history of British Columbia since reserves were established (and I will not say when that is, because even that is a matter I think of legal dispute) upon which persons have entered upon reserve lands without any leave or licence so to do. Therefore, it is possible that there are many other First Nations tribes or bands, or whatever is the correct word, whose rights might be affected as well as many other persons who are alleged to have done those things which they ought not to have done. [2] It appears from a reading of the learned trial judge's reasons that there have been perhaps no true findings of fact in this case at all. At present my own view is, although my colleagues might after hearing you all hold a different view, that in a case of this importance to many other persons than the actual litigants (and I have in mind too that since the Crown is one of the parties, every citizen of British Columbia is affected by a judgment of this kind), it would not be right to decide it wholly on assumed facts. [3] Therefore, Mr. Gouge, I have a question for you. What I want to know is whether Alcan for all purposes of this action admits, or if it does not admit, does it concede that the learned judge below found as a fact a finding which decides the point for all purposes of this action that Alcan in or about the year 1951 did commit the tort of trespass quare clausum fregit by building on the reserve the Kenney Dam Road without the leave and licence of any person with lawful authority to give such leave and licence? [4] MR. GOUGE: The answer to your Ladyship's question is "No". [22] We have heard counsel today on whether the learned judge did find as a fact that Alcan did trespass. Mr. Gouge maintains the position he took at the pre-hearing conference.

12 [23] For his part, counsel for the respondents says in his written submission on the point: 14. Since the Learned Trial Judge did not rely on assumed fact, it must be decided whether he found that there was a trespass when he did not explicitly state that. It is submitted that Alcan admitted that they constructed the road on the Stony Creek Indian Reserve, and they provided no evidence of a lawful authority to alienate that land. Further there was the uncontradicted affidavit evidence wherein there was no "notice" given to the Band members of the construction. Given the affidavits there is an inescapable conclusion that there was a trespass on Indian Reserve land with disastrous consequences. 15. Because the Learned Trial Judge specifically stated that he did not rely on assumed fact, the Appeal Court has to find that because he failed to refer to a factual finding required for the disposition of the matter that he did not make that finding. It is submitted that this Court should not exercise its appellate function in that way because the evidence given on the point was clear and uncontracticted. *** 23. It is therefore submitted that the Judgment was not based on assumed fact but upon facts found which was a sufficient basis to deal with the issue brought by a section 18A application. 24. It is submitted that the issue estoppel may apply. The determination there has been an implicit finding of fact that there was a trespass will also determine the issue of estoppel. 25. It is submitted that the reasoning of MacDonald, J.A. in Evans (supra) would lead to the conclusion that if there is no evidence at the Summary Trial suggesting that there was not a trespass that there would be no reason to find that a trespass did not occur. Based on the evidence available, it was uncontradicted. 26. It is therefore submitted that the Judgment was one based on fact and not assumed fact, and there was no reason to find that the Trial Judge was in error. [24] I take these passages and Mr. Morahan's submission here today to mean that on the evidence the court made a finding of fact that in the year 1951 Alcan did indeed commit the tort of trespass, that is to say, it entered upon the lands of the plaintiffs without any leave or licence from someone with lawful authority to grant such leave or licence. [25] That Alcan did work on the Kenney Dam Road is undisputed, but whether there was a trespass quare clausum fregit as against the plaintiffs, here the respondents, is a question which requires a determination of a number of what to me, at least, are subtle questions of fact and law. [26] For instance, the question of whether the Crown Provincial had a right of resumption at any time after the establishing of the Stoney Creek Reserve, whenever that was, and, if so, whether it exercised that right of resumption, was not addressed at all in the court below, nor was anything addressed on the questions of postponement raised in the reply.

13 [27] I conclude that, save for the fact that there is a Stoney Creek Reserve No. 1, that Alcan, or someone on its behalf, did work on the Kenney Dam Road, and that that road is within the geographical limits of the said reserve, which is not the same thing as saying it is reserve land, no material facts were either admitted by the parties or found by the judge. [28] We heard Mr. Gouge, Mr. Morahan, and Mr. Leadem, on whether the learned judge was, on the state of the record, properly in a position to proceed as he did. We indicated to counsel for the intervenors other than the Attorney General that we did not think they had any status to be heard on this branch of the case and we did not find it necessary to hear them. [29] Mr. Gouge relies on certain judgments of this Court, particularly Steyns and Bell Pole for the proposition that Rule 18A can be used to decide limitation defences in advance of other issues. He said this: Litigants conduct their cases in reliance upon such direction from the court. If this division of the court holds a different view, it should not reach a different conclusion on that ground alone. Rather, in the absence of some principled ground for distinguishing the earlier cases, it should allow the litigants to follow the practice previously approved by the court. [30] In my opinion, the chief reason, although not the only reason, for concluding that this is not a case for so proceeding is that this case raises a constitutional issue, not merely a limitation issue. [31] As Dickson J. put it in Northern Telecom v. Communication Workers of Canada et al (1979), 98 D.L.R. (3d) 1 at 19: I am inclined toward the view that, in the absence of the vital constitutional facts, this court would be ill advised to assay to resolve the constitutional issue which lurks in the question upon which leave to appeal has been granted. One must keep in mind that it is not merely the private interests of the two parties before the court that are involved in a constitutional case. [32] Rule 18A provides for a form of trial. The essence of trials in our common law system is that the judge shall, on admissible evidence, determine all the material facts and those facts determine the legal rights of the parties. [33] To decide a question of law without the court addressing the material facts as pleaded by the litigants and determining which of them do and do not exist is sometimes to embark on a dangerous enterprise. If whatever Alcan did, it did it with lawful authority, the constitutional question will never arise. [34] It may be - I do not say that it is, but it may be - that the critical constitutional question in this case is not that addressed by the judge, but a question of the existence or non-existence of a right of resumption under the Order-in-Council of 1938.

14 [35] As counsel for the Attorney General of British Columbia pointed out, what is at issue in this action may affect many persons in British Columbia other than the respondents and the appellant Alcan. [36] In my opinion, counsel for the respondents, the plaintiffs below, was right in the objection which he made in the court below, as set out by the learned trial judge, to the learned trial judge proceeding to hear and determine the application before him and he has not ceased to be right because, as matters turned out, he would like to uphold the result. [37] It is not, in my opinion, in the broad public interest with which this Court must always be concerned, that a profoundly important question of constitutional law should be decided without the vital facts, both those inter partes and constitutional. As this action now stands, the learned judge below has decided one part only of the issues arising under the Limitation Act, 1975, and, because it was not raised before him, nothing relating to the Limitation Act of 1623 which, at least on one view of the English Law Act of 1858 was part of the law of British Columbia before British Columbia joined Canada. [38] That being so, I would allow this appeal on the grounds, first, that the court was unable on the whole of the evidence before it to find the facts necessary, to quote the words of subrule 11(a); secondly, because the learned judge did not, in fact, find the facts necessary to decide the issues; and, thirdly, because it was, in light of the constitutional implications of this case, unjust to come to the conclusion which the appellant sought. I take the word "unjust" in subrule 11 to be a word of broad meaning which properly entitles the Court to take into account the interests not only of the litigants actually before it but, in a matter of this kind, the interests of other persons as well. [39] The judgment below is set aside with the result that all the questions arising on the pleadings in this action as they now stand or will stand with such amendments, if any, and additions thereto as may hereafter take place, are at large. [40] RYAN, J.A.: I agree. [41] HALL, J.A.: I agree with the result reached by my colleague presiding and with the reasons she has expressed based on the grounds relating to the inability to find facts and the making of findings of fact. I expressly would not want to be thought to have assented to that passage of her judgment wherein she comments as follows:... and, thirdly, because it was, in light of the constitutional implications of this case, unjust to come to the conclusion which the appellant sought. I take the word "unjust" in subrule 11 to be a word of broad meaning which properly entitles the Court to take into account the interests not only of the litigants actually before it but, in a matter of this kind, the interests of other persons as well.

15 [42] I thought when I was a trial judge and I continue to believe now that I am on this Court that Rule 18A is a very beneficial and useful rule that can and should be used as often as feasible to expedite litigation and to reduce the costs thereof. I do not consider that it should be in any way abridged or limited relative to any class of litigation. As I said, I concur in the disposition of this case by my colleague presiding. [43] SOUTHIN, J.A.: The appeal will be allowed accordingly. I suggest to counsel that they should retrieve from the registry for future use all of these books of authorities which have been prepared at vast expense. (Submissions on Costs) [44] SOUTHIN, J.A.: We are all of the view that the respondents to the appeal, the Stoney Creek Indian Band, should have their costs of this appeal against the Appellant Alcan Aluminum Limited. "The Honourable Madam Justice Southin" "The Honourable Mr. Justice Hall"