IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: Giesbrecht v. British Columbia, 2018 BCSC 822 Chief Ronald Giesbrecht on his own behalf and on behalf of all members of the Kwikwetlem First Nation Date: Docket: S Registry: Vancouver Plaintiff And Her Majesty the Queen in Right of British Columbia, the Greater Vancouver Regional District, the British Columbia Housing Management Corporation, the Corporation of the City of Port Coquitlam, the Minister of Forests, Lands and Natural Resource Operations, and the Provincial Rental Housing Corporation Defendants Before: The Honourable Mr. Justice Affleck Reasons for Judgment Counsel for the Plaintiff: Counsel for the Province of British Columbia and the Minister of Forests, Lands and Natural Resource Operations: Counsel for the Greater Vancouver Regional District: Counsel for the British Columbia Housing Commission and the Provincial Rental Housing Corporation: Place and Date of Trial/Hearing: Place and Date of Judgment: K. Brooks T. Dickson E. Christie A. Cochran T. Isaac J. Enns P.G. Foy, Q.C. R. Glass Vancouver, B.C. March 5-7, 2018 Vancouver, B.C. May 17, 2018

2 Giesbrecht v. British Columbia Page 2 Table of Contents THE PLAINTIFF S APPLICATION... 3 THE NOTICE OF CIVIL CLAIM... 3 THE PROVINCE S RESPONSE TO CIVIL CLAIM... 9 THE RESPONSE TO CIVIL CLAIM OF THE GVRD THE RESPONSE TO CIVIL CLAIM OF B.C. HOUSING AND PRHC THE SUBMISSIONS OF THE PLAINTIFF A defence will be struck if it is plain and obvious it cannot succeed All material facts to support a conclusion of law must be pleaded Difficult questions of law may be decided on an application to strike The principles that support striking unmeritorious defences are particularly salient in aboriginal cases THE NATURE OF FEE SIMPLE AND ABORIGINAL TITLE THE SUBMISSIONS OF THE PROVINCE THE RELATIONSHIP BETWEEN ABORIGINAL TITLE AND FEE SIMPLE INTERESTS SUBMISSIONS OF THE GVRD SUBMISSIONS OF B.C. HOUSING AND PHRC DISCUSSION AND CONCLUSION... 28

3 Giesbrecht v. British Columbia Page 3 The Plaintiff s Application [1] The plaintiff applies pursuant to Rule 9-5(1)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, to strike portions of the response to civil claim of Her Majesty the Queen in Right of British Columbia and the Ministry of Forests, Lands and Natural Resources Operations (collectively the Province ), and the response to civil claim of the Greater Vancouver Regional District ( the GVRD ), which is now commonly referred to as Metro Vancouver. Both terms will be seen in these reasons. The Notice of Civil Claim [2] The plaintiff advances a claim for Aboriginal title over a claim area within the Coquitlam watershed. The claim area is delineated on two maps attached as schedules to the notice of civil claim. The claim area extends over what is described as the Riverview lands, Colony Farm (including the Forensic Psychiatric Institute lands), Port Coquitlam lands, and certain Provincial Crown lands. The notice of civil claim limits the claim area to those lands which are managed or owned by the named defendants and excludes the Lougheed Highway and privately held land. The phrase privately held land is not defined but may mean lands owned in fee simple by individuals or artificial legal persons such as companies or societies. The claim area does extend to the GVRD which describes itself as a non-crown innocent third party purchaser for value which, if accurate, is indistinguishable from a private landowner. [3] Part 3 of the notice of civil claim sets out the Legal Basis on which the plaintiff relies to assert the claim which reads in full: The legal basis upon which this claim is brought is based upon: Establishment of Aboriginal Title 1. The facts establish that Kwikwetlem holds Aboriginal title to the Claim LArea [sic], in particular: a. Kwikwetlem is a distinct Aboriginal people; b. Kwikwetlem occupied the Claim Area on the date that British Sovereignty was asserted; and

4 Giesbrecht v. British Columbia Page 4 c. Kwikwetlem s occupation of the Claim Area on the date of British Sovereignty was exclusive. Infringement of Aboriginal Title 2. The primary incidents of Aboriginal title are: a. the right to exclusive use and occupation of the land; b. the right to the full beneficial interest in the land; and c. the right to make decisions as to how the land will be used. 3. The Defendant s [sic] occupation of the Claim Area directly interferes with Kwikwetlem s right of exclusive occupation. 4. The Defendant s [sic] asserted right to control the land, including deciding who may access the land, how the land will be presently used and how the land will be used in the future directly conflicts with and denies Kwikwetlem s right to decide how the Claim Area will be used. 5. The Defendants have also denied Kwikwetlem any right or ability to realize any meaningful economic benefit from the Claim Area. 6. These interferences with Kwikwetlem s are significant because: a. they have occurred in the heart of Kwikwetlem s Territory; b. they involve large and valuable tracts of land; c. they involve lands that represent a very large portion of the reasonably available land in Kwikwetlem s Territory where it would or could be practical to exercise and enjoy the benefit of Aboriginal title; and d. they interfere with the enjoyment of Kwikwetlem s reserves. 7. As such the Defendants use, occupation and asserted control over the Claim Area is an unreasonable interference with Kwikwetlem s Aboriginal title. Infringement Unjustified 8. The Defendants bear the burden of demonstrating that these infringements are justified, however in this case there are a number of factors that make it impossible to satisfy this burden, including: a. the Defendants asserted their ownership, use and control of the land without adequate Crown consultation having first occurred with Kwikwetlem; b. the Defendants do not have a substantial and compelling reason for the infringements or, in the alternative, for continuing the infringement; c. the Defendant British Columbia, in infringing, continuing to infringe or in permitting the infringement did not act in a manner that was consistent with the fiduciary duty, in particular (without limitation):

5 Giesbrecht v. British Columbia Page 5 i. It did not provide for compensation or other meaningful accommodation; ii. iii. It did not attempt to minimize the infringement; and It failed to ensure that the cumulative limitations or infringements of Kwikwetlem s Aboriginal title were not such as to significantly deprive Kwikwetlem of the meaningful enjoyment of its Aboriginal title. Unjustifiable Breach of Section 15 Rights 9. The members of Kwikwetlem, individually and as a collective of individuals, are entitled to the protection of section 15 of the Canadian Charter of Rights and Freedoms, and, in particular, are entitled not to be subject to discrimination on the basis of race, national or ethnic origin or analogous ground (the Section 15 Rights ). 10. By failing to provide a similar or equivalent means of identifying, recording and registering Aboriginal title by means of an effective administrative process in comparison to that provided for other common law interests in land similar to fee simple, the Crown has drawn a distinction based on a prohibited ground given that: a. Aboriginal title is a right enjoyed exclusively by Aboriginal peoples; and b. the other rights are enjoyed predominantly by non-aboriginal people or companies. 11. The distinction perpetuates a stereotype of Aboriginal peoples in that it relegates one of their most important legal rights that is highly analogous to fee simple or similar common law rights to a substantially lesser protection so suggesting or reinforcing the stereotypes that: a. Aboriginal peoples did not and do not have land rights; b. Aboriginal peoples land rights are less worthy or [sic] protection or are not capable of being identified and recognized by the state; c. Aboriginal peoples did not have rights that allowed them to enjoy the economic benefit of their lands or make decisions about the uses to which their lands should be put; and d. the doctrine of terra nullius applied to the traditional territories of Aboriginal peoples. 12. This breach of the Section 15 Rights of Kwikwetlem and its members cannot be justified in a free and democratic society in that: a. British Columbia continues to use, occupy and assert control over lands subject to asserted Aboriginal title without determining the existence, scope and extent of the Aboriginal title in that land; b. British Columbia continues to make decisions that will have a significant adverse effect on Aboriginal title and, in fact, may

6 Giesbrecht v. British Columbia Page 6 amount to an appropriation of such lands, even when it is aware of the assertion of such title; c. British Columbia has not provided any non-judicial means for determining whether and how much compensation should be paid for such lands; d. The court system does not provide an adequate alternative remedy, in that: i. It is too expensive and the costs associated with pursuing claim [sic] will generally exceed the value of the claim; ii. iii. iv. Effective interim relief is practically unavailable; Summary processes are not available or are of extremely limited availability for the determination of these issues; The court process is too slow to allow determinations to be made before irreparable damage is done; and v. The court system has limited remedial powers, especially where third party interests have been created or may be created as a result of Crown decisions. Breach of the Honour of the Crown 13. The Honour of the Crown is always at stake in dealings between the Crown and Aboriginal peoples in situations where the Aboriginal interests, especially Aboriginal title, are or may reasonably be at stake. 14. The Crown is under a legal duty to negotiate in good faith to resolve claims to ancestral lands. 15. In the case of Kwikwetlem, it is inconsistent with the Honour of the Crown for British Columbia to assert the right to use, occupy, own and make decisions about land that is reasonably subject to a claim of asserted Aboriginal title without taking immediate steps to: a. determine in a fair and transparent process whether or not the claimed Aboriginal title exists; b. determine where the claimed Aboriginal title exists; c. determine the overall extent of Kwikwetlem s Aboriginal title; and d. determinethe [sic] extent of its obligations to protect that Aboriginal title or to avoid infringing that title. 16. This obligation arises in the context of Kwikwetlem because: a. Kwikwetlem s Territory has been heavily developed or otherwise rendered unsuitable for the practical exercise of Aboriginal title without the substantial displacement or disruption of third parties;

7 Giesbrecht v. British Columbia Page 7 b. There is very little usable land in the hands of the Crown or other governmental agencies; c. Kwikwetlem is highly disadvantaged in being able to defend its rights in court given that (1) it has a very small population; (2) its reserves are of limited economic value; and (3) it is economically impoverished; d. Kwikwetlem has been denied access to treaty negotiations under the auspices of the BC Treaty Commission; and e. Any decision to put the Claim Area or allow the Claim Area to be put to a use inconsistent with Kwikwetlem s Aboriginal title is likely to have a significant adverse effect on the amount of land available to Kwikwetlem. [4] The relief sought in Part 2 of the notice of civil claim reads: 1. A declaration that the Plaintiffs [sic] have existing Aboriginal title to the Claim Area, or portions thereof in which the evidence establishes there exists Aboriginal title. 2. A declaration that management of the Riverview Lands unjustifiably infringes the Plaintiff s Aboriginal title. 3. A declaration that the creation of the Colony Farm Regional Park and operation and management of Colony Farm unjustifiably infringes the Plaintiff s Aboriginal title. 4. A declaration that the operation and management of the Forensic Psychiatric Institute and the BCBC Lands unjustifiably infringes the Plaintiff s Aboriginal title. 5. A declaration that the designation and management of the Coquitlam River Wildlife Management Area unjustifiably infringes the Plaintiff s Aboriginal title. 6. A declaration that the use and management of the other Provincial Crown Lands unjustifiably infringes the Plaintiff s Aboriginal title. 7. A declaration that the creation, operation and management of Gates Park unjustifiably infringes the Plaintiff s Aboriginal title. 8. A declaration that the use and management of the Port Coquitlam Lands, or portions thereof unjustifiably infringes the Plaintiff s Aboriginal title. 9. A declaration that any grant, patent or certificate of indefeasible title held in respect of any of these lands either be: a. Cancelled; or b. Transferred to the Kwikwetlem. 10. An order that the Defendants account for any benefit they have received flowing from or as a result of the Plaintiff s Aboriginal title in the Claim Area;

8 Giesbrecht v. British Columbia Page An order that the Defendants disgorge any such benefit received. 12. Damages, including equitable damages, arising from the unjustifiable infringement of the Plaintiff s Aboriginal title. 13. An order that British Columbia consult with Kwikwetlem with respect to the creation of effective means to: a. Allow a First Nation to record and register lands held pursuant to Aboriginal title; b. Allow a First Nation to record and register interests in lands granted by or created by the First Nation in lands held pursuant to Aboriginal title; c. Allow the First Nation a means to implement decisions it makes in respect of the use of lands held pursuant to Aboriginal title; d. Allow the First Nation a means of enjoying the economic benefits conferred by Aboriginal title. 14. An order that if, after one year, Kwikwetlem and British Columbia are unable to agree upon an effective means to provide for the matters set out in the previous paragraph, either party will be at liberty to apply to the court in these proceedings for a further order addressing this matter. 15. A declaration that British Columbia has breached the Section 15 rights of the members of the Kwikwetlem First Nation by: a. Failing to establish effective administrative means to recognize, protect and if necessary adjudicate the existence, scope and extent of Aboriginal title; b. Failing to establish effective administrative means to provide compensation for government decisions that injuriously affect or appropriate Aboriginal title. 16. A declaration that British Columbia has breached the Honour of the Crown by: a. Failing to establish effective administrative means to recognize, protect and if necessary adjudicate the existence, scope and extent of Aboriginal title of the Kwikwetlem prior to making decisions that could have a significant adverse effect on or unjustifiably infringe the Aboriginal title of the Kwikwetlem; b. Failing to establish effective administrative means to provide compensation for government decisions that injuriously affect or appropriate Aboriginal title of the Kwikwetlem prior to making decisions that could have a significant adverse effect on or unjustifiably infringe the Aboriginal title of the Kwikwetlem. 17. Pre- and post- judgment interest in respect to any damages.

9 Giesbrecht v. British Columbia Page 9 The Province s Response to Civil Claim [5] The Province admits: a) the plaintiff First Nation is an aboriginal people within the meaning of s. 35 of the Constitution Act 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11; b) Ronald Giesbrecht is a member of that First Nation and is its elected Chief; c) the Province is the registered owner in fee simple of the Colony Farm Forensic Psychiatric Institute lands; d) the defendant Minister of Forests, Lands and Natural Resource Operations is responsible for the designation and management of the Coquitlam River Wildlife Management Area, which is part of the claim area; e) the defendant Provincial Rental Housing Corporation is incorporated pursuant to the Business Corporations Act, S.B.C. 2002, c. 57; is a corporate Crown agent and is the registered owner in fee simple of the Riverview lands; f) the defendant British Columbia Housing Management Corporation is established by provincial order in council and manages the Riverview lands; g) the GVRD is a regional government for member municipalities including the City of Coquitlam and is the registered owner in determinable fee simple of the Colony Farm Regional Park, and h) the defendant the Corporation of the City of Port Coquitlam owns and maintains various parcels of land including: i. Gates Park;

10 Giesbrecht v. British Columbia Page 10 ii. iii. Nacht Park; Sitka Spruce Park; and iv. lands adjacent to Coquitlam Indian reserve number two known as South Shaughnessy lots. [6] At Part 3 of its response to civil claim, the Province pleads the legal basis for resisting the plaintiff's claim as follows: a) the Province acknowledges it has a legally enforceable obligation to consult with First Nations regarding unproven claims and aboriginal rights and title and First Nations are required to participate in consultation processes ; b) the Province does not admit that the plaintiff has established the facts necessary to prove Aboriginal title to the claim area, and c) in para. 4:... if the ancestors to the Plaintiffs [sic] ever held Aboriginal title to areas within the Claimed Lands, the co-existence of that title is inconsistent with and displaced by the estate of any fee simple land owner. The Province says that the legal and beneficial interests held by the Defendants in fee simple were lawfully granted and remain valid to their full force and effect in accordance with the provisions of the Land Title Act, RSBC 1996, c [7] It is the above para. 4 of Part 3 of the Province s response to civil claim that the plaintiff submits ought to be struck. [8] The Province does not allege extinguishment in its response to civil claim but the plaintiff made a demand for particulars which mentions extinguishment. The demand was apparently intended to tie the Province to a definition of displacement and reads: 17. With respect to paragraph 4 in Part 3: In further response to the whole of Part 3 of the NOCC, and in the alternative, the Province says that if the ancestors to the

11 Giesbrecht v. British Columbia Page 11 Plaintiffs ever had aboriginal title to areas within the Claimed Lands, the co-existence of that title is inconsistent with and displaced by the estate of any fee simple land owner. The Province says that the legal and beneficial interests held by the Defendants in fee simple were lawfully granted and remain valid to their full force and effect in accordance with the provisions of the Land Title Act, RSBC 1996, c a. Define what is meant by displaced. b. Clarify whether the Province alleges any displacement has the effect of extinguishing Aboriginal title. c. Clarify whether the Province alleges there is a difference between extinguishment displacement of Aboriginal title. d. Provide particulars as to what legislation and/or authority was applied to displace KFN of their Aboriginal title for each grant alleged to have displaced Aboriginal title. e. For each grant described above, provide particulars as to who specifically formed the intention to extinguish Aboriginal title, and how that intention was made plain and clear. [9] The Province s responses to the demand read: Part 3: a. Define what is meant by "displaced". RESPONSE: Without restricting the ordinary meaning of the word, the Province says that displaced means to take the place of; to oust from its place and occupy it instead. b. Clarify whether the Province alleges any displacement has the effect of extinguishing Aboriginal title. RESPONSE: This demand is objectionable in that it calls for legal argument rather than material facts and is not necessary to plead or define the issues c. Clarify whether the Province alleges there is a difference between extinguishment displacement of Aboriginal title. RESPONSE: This demand is objectionable in that it calls for legal argument rather than material facts and is not necessary to plead or define the issues. d. Provide particulars as to what legislation and/or authority was applied to displace KFN of their Aboriginal title for each grant alleged to have "displaced" Aboriginal title. RESPONSE: The particulars with respect to the Crown Grants for the Claimed Lands provided in the Response and above in this Response to the Demand for Particulars #15 and 16 are the extent of the particulars known to the Province at this time.

12 Giesbrecht v. British Columbia Page 12 e. For each grant described above, provide particulars as to who specifically formed the intention to extinguish Aboriginal title, and how that intention was made plain and clear. RESPONSE: This demand is objectionable in that it calls for evidence and legal argument rather than material facts. The Response to Civil Claim of the GVRD [10] In its response to civil claim, the GVRD adopts the response to civil claim of the Province and at Part 1 of its response to civil claim at paras. 38, 40 and 41, it pleads the following: 38. The Claim Area includes privately held land, including the Park Lands, which are held in fee simple or similar interest and are inconsistent with the Kwikwetlem s assertion of Aboriginal title. 40. In the alternative, if the Kwikwetlem had Aboriginal title in respect of the Park Lands or any portion of the Park Lands or any other portion of the Claim Area in which GVRD has legal or beneficial interest, which is not admitted but specifically denied, the Defendant pleads that Parliament extinguished such Aboriginal title prior to April 17, 1982 and that Parliament had the clear and plain intention to do so, including, but not limited to, by means of the granting of fee simple title, absolute fee title, or similar interest in respect of such lands prior to April 17, To the extent that Aboriginal title ever existed in respect of the Park Lands (which is specifically denied), such Aboriginal title was displaced by the fee simple title or similar interest granted in respect of such lands. In particular, the determinable fee simple title that GVRD holds in respect of all of the Park Lands was lawfully granted and remains valid. [11] It is those paragraphs that the plaintiff submits ought to be struck from the response to civil claim of the GVRD. The Response to Civil Claim of B.C. Housing and PRHC [12] The defendants described in the notice of civil claim as the British Columbia Housing Management Corporation and the Provincial Rental Housing Corporation have filed a joint response to civil claim in which they point out that their correct names are respectively British Columbia Housing Management Commission (hereafter B.C. Housing ) and Provincial Rental Housing Corporation (hereafter PRHC ). The plaintiff does not apply to strike any portion of those defendants joint

13 Giesbrecht v. British Columbia Page 13 response to civil claim, nevertheless, B.C. Housing and PRHC made submissions opposing the plaintiff's application. The Submissions of the Plaintiff [13] What follows in paras. 13 through 44 is an abbreviated recital of the salient arguments made by the plaintiff without comment on their validity. A defence will be struck if it is plain and obvious it cannot succeed [14] Rule 9-5(1)(a) provides that the whole or any part of a pleading may be struck on the ground that it discloses no reasonable defence. [15] A defence will be struck only if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable defence or it has no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42. All material facts to support a conclusion of law must be pleaded [16] An application under Rule 9-5(1)(a) is to be conducted on the basis that the material (and non-speculative) facts set out in the pleading are true. This principle is related to the requirements under the Rules that the pleadings actually set out the material facts relied upon: Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R [17] Conclusions of law in a pleading that are not supported by the pleaded facts will be struck: Rule 3-7(9); see also Young v. Borzoni, 2007 BCCA 16 at para. 20. [18] A party is not entitled to rely on the possibility that new facts may turn up as the case progresses. It is incumbent on the party to plead all of the facts upon which the claim is being made: Imperial Tobacco at para. 22. Difficult questions of law may be decided on an application to strike [19] Difficult questions of law, even if they are complex or novel, "may well be decided under this Rule if on a proper analysis of the law it is plain and obvious that the claim cannot succeed : Greater Vancouver Regional District v. British Columbia (Attorney General), 2011 BCCA 345 at para. 29.

14 Giesbrecht v. British Columbia Page 14 [20] In Imperial Tobacco, the Supreme Court of Canada referred to the Rule permitting the striking of unmeritorious pleadings (in that instance a Third Party Notice) as follows: [19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial. [20] This promotes two goods -- efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be -- on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties' respective positions on those issues and the merits of the case. The principles that support striking unmeritorious defences are particularly salient in aboriginal cases [21] It is incumbent on the legal system to address reconciliation by processing Aboriginal claims in the most fair and expeditious manner possible. This is made plain by the conclusions and recommendations of the Truth and Reconciliation Commission of Canada s recent Summary of the Commission s Final Report, as well as the United Nations Declaration on the Rights of Indigenous Peoples. [22] There is no merit to the defences the plaintiff seeks to strike because it is settled law that the defendants cannot meet the test to establish extinguishment of Aboriginal title over the claim area; displacement of such title is not a defence at law and, through a number of cases, described below, the Supreme Court of Canada has laid down a legal framework governing this action, to address conflicts between the assertion of Aboriginal title to land and the assertion by others of grants of title in fee simple to the same land. [23] In R. v. Sparrow, [1990] 1 S.C.R. 1075, the Court held that, to establish a right protected by s. 35(1) of the Charter of Rights and Freedoms, a First Nation

15 Giesbrecht v. British Columbia Page 15 must prove that such a right exists, and, if the Crown alleges extinguishment, it must prove the asserted aboriginal right was lawfully extinguished before 1982 (when s. 35(1) of the Charter came into force). If extinguishment is not proven, the First Nation must prove, at least prima facie, an infringement of that right by the Crown which, if proven, the Crown must then demonstrate was justified. [24] To demonstrate lawful extinguishment, the Crown must satisfy the court that it had the clear and plain legislative intent to extinguish the aboriginal right which intent cannot be demonstrated in this instance both because no such intent is found in the relevant legislation, and because the Crown cannot rely on provincial legislation when the province has no legislative competence to extinguish Aboriginal title (see Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010). [25] In Sparrow, Delgamuukw and Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, the Court confirmed that when Aboriginal title to land is proven, the Crown s assumed beneficial interest is erased thereby giving the appropriate First Nation full beneficial ownership. Thereafter, the Crown may encroach on the land only when it can demonstrate such encroachment is justified. [26] Fee simple grants of title over aboriginal lands are not void but they can be attenuated, particularly when the fee simple interest is held by the Crown as is the case with the claim area. The GVRD is, in effect, a Crown agency. [27] The introduction by the Province of the defence of displacement is a disguised attempt to revive an argument rejected by the Supreme Court of Canada in Sparrow to avoid the rigours of establishing extinguishment. [28] The application to strike portions of the defendants pleadings is intended to focus this large and complex proceeding on matters that are actually in issue not on questions that have been definitively decided against the impugned defences. This approach will enhance the prospect of reconciliation by avoiding timeconsuming and expensive side trips into defences with no reasonable prospect of success.

16 Giesbrecht v. British Columbia Page 16 [29] The grants of fee simple title over the claim area to the Province and the GVRD were grants from the Crown colony of British Columbia in the 1860s, the province of British Columbia from 1874 until 1992 and the Dominion of Canada in 1893 and [30] To ensure the pleadings of extinguishment and displacement allege the material facts to support those defences (even though they have no merit), the plaintiff served an extensive demand for particulars, many of which the Province and the GVRD declined to answer on the basis they called for legal argument. [31] Demand 7 and the response of Metro Vancouver read: Demand 7: With respect to paragraph 38 of Part 3, provide particulars as to how fee simple or similar interests in the Claim Area are inconsistent with KFN s assertion of Aboriginal title. Response: This demand is refused as the request is in the nature of legal argument and is not necessary for the Plaintiffs (sic) to plead or to define the issues. [32] Demand 8(c) and the response of Metro Vancouver read: Demand 8(c): Provide particulars as to who specifically formed the intention to extinguish Aboriginal title and how that intention was made clear and plain. Response: To the extent that the Kwikwetlem ever had Aboriginal title in respect of the lands referred to in response to Demand 8(a.), above (which is not admitted and is specifically denied), the Imperial Crown formed an intention to extinguish such Aboriginal title to the extent that the Colony of British Columbia granted absolute fee simple title to the parcels of land particularized in paragraph 14 of the Response. Following British Columbia entering Confederation in 1871, Parliament formed the intention to extinguish Aboriginal title over any parcels of land referred to in response to Demand 8(a.), if any, over which Aboriginal title then existed and was not extinguished. The balance of this demand is refused as the information requested is in the nature of legal argument and/or evidence and is not necessary for the Plaintiffs (sic) to plead or to define the issues. [33] Demands 9 (b) through (e) and the responses of Metro Vancouver read: Demand 9(b): Clarify whether any displacement has the effect of extinguishing Aboriginal title. Response: Metro Vancouver pleads and relies on both extinguishment of Aboriginal title and displacement of Aboriginal title. This balance of the demand is refused as the information requested is in the nature of legal

17 Giesbrecht v. British Columbia Page 17 argument and is not necessary for the Plaintiffs (sic) to plead or to define the issues. Demand 9(c): Clarify the difference between the extinguishment of Aboriginal title plead in paragraph 40 of Part 3, and displacement of Aboriginal title. Response: This demand is refused as the information requested is in the nature of legal argument and is not necessary for the Plaintiffs (sic) to plead or to define the issues. Demand 9(d): Provide particulars as to what legislation and/or authority was applied to displace KFN of their Aboriginal title for each grant alleged to have displaced Aboriginal title. Response: To the extent that the Kwikwetlem ever had Aboriginal title in respect of the lands referred to in response to Demand 8(a.), above (which is not admitted and is specifically denied), the granting of fee simple and similar interests in respect of such lands, including by the Colony of British Columbia, the Province of British Columbia, and Canada, displaced such Aboriginal title. Demand 9(e): For each grant described above, provide particulars as to who specifically formed the intention to extinguish Aboriginal title, and how that intention was made plain and clear. Response: This demand is answered in response to Demand 8(c.), above. [34] The plaintiff s application for an order that the Province and Metro Vancouver provide further and better particulars was dismissed by Justice Skolrood in Giesbrecht v. British Columbia, 2017 BCSC 1920 (referred to herein as Giesbrecht #1 ). Therefore, the merits of the defences the plaintiff seeks to strike ought to be assessed as they now read without amendment. The Nature of Fee Simple and Aboriginal Title [35] Section 109 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) provides that title to lands in the provinces that came into Confederation in 1867 is subject to any trusts existing in respect thereof, and to an Interest of the other than that of the Province in the same. In St. Catherines Milling and Lumber Co. v. Ontario (Attorney General), (1887) 13 S.C.R. 577 and later in Delgamuukw, the title to the land of Aboriginal people constituted such a trust which burdens the title of the Crown unless lawfully removed. [36] In Tsilhqot in at para. 70, the Supreme Court of Canada held:

18 Giesbrecht v. British Columbia Page 18 The content of the Crown's underlying title is what is left when Aboriginal title is subtracted from it: s. 109 of the Constitution Act, 1867; Delgamuukw. As we have seen, Delgamuukw establishes that Aboriginal title gives "the right to exclusive use and occupation of the land... for a variety of purposes", not confined to traditional or "distinctive" uses (para. 117). In other words, Aboriginal title is a beneficial interest in the land: Guerin, at p In simple terms, the title holders have the right to the benefits associated with the land - - to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal title land. [37] At para. 73 in Tsilhqot'in there is the following: Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land. [38] A grant of fee simple title is not absolute. It is subject to the governance powers of Canada, the Province and local governments. There is no reason why the governance powers of First Nations could not equally continue in respect of fee simple lands. [39] Aboriginal land rights may be affected by Crown action only by extinguishment or infringement and in Tsilhqot'in at paras. 10 to 14 there is the following: In 1973, the Supreme Court of Canada ushered in the modern era of Aboriginal land law by ruling that Aboriginal land rights survived European settlement and remain valid to the present unless extinguished by treaty or otherwise: Calder v. Attorney General of British Columbia, [1973] S.C.R Although the majority in Calder divided on whether title had been extinguished, its affirmation of Aboriginal rights to land led the Government of Canada to begin treaty negotiations with First Nations without treaties - mainly in British Columbia - resuming a policy that had been abandoned in the 1920s: P. W. Hogg, "The Constitutional Basis of Aboriginal Rights", M. Morellato, ed., in Aboriginal Law Since Delgamuukw (2009), 3. Almost a decade after Calder, the enactment of s. 35 of the Constitution Act, 1982 "recognized and affirmed" existing Aboriginal rights, although it took some time for the meaning of this section to be fully fleshed out. In Guerin v. The Queen, [1984] 2 S.C.R. 335, this Court confirmed the potential for Aboriginal title in ancestral lands. The actual dispute concerned government conduct with respect to reserve lands. The Court held that the government had breached a fiduciary duty to the Musqueam Indian Band. In a concurring opinion, Justice Dickson (later Chief Justice) addressed the

19 Giesbrecht v. British Columbia Page 19 theory underlying Aboriginal title. He held that the Crown acquired radical or underlying title to all the land in British Columbia at the time of sovereignty. However, this title was burdened by the "pre-existing legal right" of Aboriginal people based on their use and occupation of the land prior to European arrival (pp ). Dickson J. characterized this Aboriginal interest in the land as "an independent legal interest" (at p. 385), which gives rise to a sui generis fiduciary duty on the part of the Crown. In 1990, this Court held that s. 35 of the Constitution Act, 1982 constitutionally protected all Aboriginal rights that had not been extinguished prior to April 17, 1982, and imposed a fiduciary duty on the Crown with respect to those rights: R. v. Sparrow, [1990] 1 S.C.R The Court held that under s. 35, legislation can infringe rights protected by s. 35 only if it passes a two-step justification analysis: the legislation must further a "compelling and substantial" purpose and account for the "priority" of the infringed Aboriginal interest under the fiduciary obligation imposed on the Crown (at pp ). The principles developed in Calder, Guerin and Sparrow were consolidated and applied in the context of a claim for Aboriginal title in Delgamuukw v. British Columbia, [1997] 3 S.C.R This Court confirmed the sui generis nature of the rights and obligations to which the Crown's relationship with Aboriginal peoples gives rise, and stated that what makes Aboriginal title unique is that it arises from possession before the assertion of British sovereignty, as distinguished from other estates such as fee simple that arise afterward. The dual perspectives of the common law and of the Aboriginal group bear equal weight in evaluating a claim for Aboriginal title. [40] Extinguishment must be established by the application of well-settled principles. It was possible only before Thereafter, Aboriginal title has been constitutionally protected. Prior to 1982 extinguishment was possible only if the clear intent to extinguish was found in legislation and only if the legislative body purporting to extinguish had the constitutional authority to do so. That authority was found in the Parliament of Canada. [41] It is plain and obvious that Metro Vancouver cannot meet the test for extinguishment. It does not even allege a statutory basis for extinguishment and there is no statute enacted by Parliament that clearly and plainly authorizes extinguishment of the plaintiff's title to the claim area. [42] In Metro Vancouver's response to para. 8(c) of the plaintiff's demand for particulars it essentially refused to identify the statutory basis for the alleged extinguishment and the granting of title in fee simple is said to be done by the

20 Giesbrecht v. British Columbia Page 20 Colony, although no such material fact is pled in Metro Vancouver's response to civil claim [emphasis by the plaintiff]. [43] Dominion grants of title in fee simple within the claim area are pleaded in defence of the plaintiff's claim but none address the potential existence of Aboriginal title. Silence cannot amount to anything like a clear and plain intention to extinguish it. [44] Although both the Province and Metro Vancouver plead that the plaintiff s Aboriginal title, if it existed, has been displaced by the estates of fee simple land owners the jurisprudence makes clear that only extinguishment or infringement are available to the defendants to challenge the plaintiff s title to the claim area. Displacement is a doctrine unknown to the law and therefore unavailable as a defence. The Submissions of the Province [45] What follows in paras. 46 through 59 is an abbreviated recital of the salient arguments made by the Province without comment on their validity. [46] For the plaintiff to succeed on its present application, it is not sufficient for it to show that the Province s challenged defences are weak, unlikely to succeed, or novel. In fact, novelty weighs in favour of permitting the defence to go forward to trial. [47] The questions raised by the impugned defences are currently before this Court in The Council of the Haida Nation versus British Columbia, Vancouver Registry No. L [ Haida"], Cowichan Tribes v. Canada (Attorney General), Victoria Registry No. S [ Cowichan Tribes ], and Ignace v. British Columbia, Kamloops Registry No. S [48] In Haida, Cowichan Tribes and in the present matter, judges have observed that the issues of whether the rights to exclusive possession conferred by both

21 Giesbrecht v. British Columbia Page 21 Aboriginal title and fee simple title can coexist is a novel one. Reference is made to the reasons in Giesbrecht #1 where Skolrood J. wrote at para. 23 With respect to the demands set out in paragraphs 17 (b) and (c), I am satisfied that the Province has set out its position, and the underlying material facts, with sufficient clarity that no further particulars are required. While the concept of displacement may be novel, whether it is valid, is an issue for trial. Given the definition of displacement offered by the Province and its statement as to the effect of fee simple ownership, I am not satisfied that [the plaintiff] requires additional clarification at this time in order to prepare its case. [49] Not only is the determination of the answer to the question of whether fee simple title and Aboriginal title can coexist on the same lands unsuitable for summary determination on the present application, before even considering that question, the trial judge would first need to conclude that the plaintiff enjoyed Aboriginal title to the claim area at the time of the assertion of Imperial sovereignty. Without first reaching that conclusion, the alternative defence of displacement would not arise. [50] Restraint in deciding constitutional issues that not need to be decided in a particular proceeding has been recommended by the Supreme Court of Canada in many cases. For example, in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at para. 9, there is the following: The policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen. Early in this century, Viscount Haldane in John Deere Plow Co. v. Wharton, [1915] A.C. 330, at p. 339, stated that the abstract logical definition of the scope of constitutional provisions is not only "impracticable, but is certain, if attempted, to cause embarrassment and possible injustice in future cases". [51] The concept of displacement cannot properly be considered without resort to evidence which is not admissible on an application pursuant to Rule 9-5(1)(a). The Province pleads that to address the plaintiff's claim to Aboriginal title, the trial judge will need to consider evidence of the impact of Colonial, Federal and Provincial grants of land in fee simple in particular: i. In 1863, the Colony of British Columbia sold District Lot 23 to John Brough, and District Lot 170 to George Francis Clark.

22 Giesbrecht v. British Columbia Page 22 ii. iii. iv. In 1874, the Province sold District Lot 60 to Richard Clement Moody. In 1876, the Province sold District Lot 305 to John Ross Ford. In 1883 the Province transferred lands to Canada for the purposes of construction of the transcontinental Railway (the Railway Belt ). The Railway Belt included portions of the lands claimed by the Plaintiffs. v. Between 1883 and 1930 (when Canada transferred portions of the public lands within the Railway Belt back to the Province), Canada had jurisdiction to confirm Indian reserves and to make grants of interests in lands to various third parties without the knowledge or consent of the Province. vi. vii. Canada may be a necessary party for the determination of the effect of colonial grants of lands and of federal grants of lands which were within the Railway Belt between 1883 and In 1904, the Province purchased District Lots 23, 170, 60 and 305 from Edward Pohlman to build and operate a mental hospital. Pohlman had owned the land in absolute fee. viii. Various other First Nations assert claims of Aboriginal title or rights to all or portions of the lands claimed by the Plaintiffs, or have defined traditional territories which overlap with those lands or portions of them [52] In British Columbia (Director of Civil Forfeiture) v. Flynn, 2013 BCCA 91 Frankel J.A. for a unanimous court wrote the following at paras , which the Province urges ought to guide the outcome on the present application: A chambers judge hearing a motion to strike pleadings founded on a complex question of statutory interpretation is not obligated to come to a conclusion on the interpretation of the provisions in issue. This is reflected in the following passage from the judgment of Mr. Justice Tysoe in Minnes v. Minnes (1962), 32 W.W.R. 112 at 122 (B.C.C.A.), which was quoted with approval in Hunt v. Carey Canada Ltd., [1990] 2 S.C.R. 959 at 978: In my respectful view it is only in plain and obvious cases that recourse should be had to the summary process under O. 25, R. 4, and the power given by the Rule should be exercised only where the case is absolutely beyond doubt. So long as the statement of claim, as it stands or as it may be amended, discloses some question fit to be tried by a judge or jury, the mere fact that the case is weak or not likely to succeed is no ground for striking it out. If the action involves investigation of serious questions of law or questions of general importance, or if facts are to be known before rights are definitely decided, the Rule ought not to be applied. [Emphasis that of Frankel J.A.] Also apt is the following from the judgment of McLachlin J. (as she then was) in Victoria Grey Metro Trust Co. v. Fort Gary Trust Co. (1982), 30 B.C.L.R. (2d) 45 at 47 (S.C.):

23 Giesbrecht v. British Columbia Page 23 [I]t may be noted that it is only in the clearest cases that a pleading will be struck out as disclosing no reasonable claim; where there is doubt on either the facts or law, the matter should be allowed to proceed for determination at trial: Minnes v. Minnes (1962), 39 W.W.R. 112, 34 D.L.R. (2d) 497 (B.C.C.A.); B.C. Power Corp. v. A.G.B.C. (1962), 38 W.W.R. 577, 34 D.L.R. (2d) at 211 (B.C.C.A.). If there is any doubt, it should be resolved in favour of permitting the pleadings to stand: Winfield v. Interior Engr. Services Ltd. (1969), 68 W.W.R. 383, 4 D.L.R. (3d) 71 (B.C.S.C.). [Emphasis that of Frankel J.A.] While it was open to the chambers judge to have carried out the comprehensive analysis of the submissions of the parties necessary to resolve the statutory interpretation issue raised by Mr. Flynn, he was not required to do so. Rather, it was open to him, in the exercise of his discretion, to leave that matter to be decided at trial. That being so, this Court should not interfere with his decision. [53] In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Wilson J. for the Court wrote: The fact that a pleading reveals "an arguable, difficult or important point of law" cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society. The Relationship between Aboriginal Title and Fee Simple Interests [54] In Tsilhqot in, the Supreme Court of Canada was not called upon to decide whether Aboriginal title and fee simple title regarding the same land are capable of coexistence. The plaintiffs in Tsilhqot'in chose not to seek a declaration of Aboriginal title over land that was privately owned. In the present litigation that declaration will be before the court. [55] The plaintiff s submission that it is inconsistent with true reconciliation for this Court to allow meritless defences to go to trial, which defences the plaintiff characterizes as time-consuming and expensive side trips, is itself without merit. A central issue raised by the defences the plaintiff seeks to strike, namely whether Aboriginal title and private ownership of land are legally incompatible, is also a