IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)

Transcription

1 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) File Number BETWEEN: AND The Minister of Forests and the Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia APPELLANTS (RESPONDENTS) Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation RESPONDENTS (APPELLANTS) AND BETWEEN: AND AND Weyerhaeuser Company Limited Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation APPELLANT (RESPONDENT) RESPONDENTS (APPELLANTS) Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Canada, Squamish Indian Band and Lax Kw'Alaams Indian Band, Haisla Nation, First Nations Summit, Dene Tha' First Nation, Tenimgyet, also known as Art Matthews, Gitxsan Hereditary Chief, Business Council of British Columbia, Aggregate Producers Association of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, Council of Forest Industries and Mining Association of British Columbia, British Columbia Cattlemen's Association INTERVENERS FACTUM OF THE INTERVENER DENE THA' FIRST NATION Filed on behalf of: The Intervener, Dene Tha' First Nation Name of firm: Name of lawyer: Address: Cook Roberts Robert C. Freedman 7th Floor, 1175 Douglas Street Victoria, British Columbia Phone Number: (250) rfreedrnanqcookroberts.bc.ca

2 The Minister of Forests, the Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia Paul Pearlman, Q.C. Fuller Pearlman & McNeil Broad Street Victoria, B.C. V8W 2A5 t: f: KATHRYN KICKBUSH Solicitor for the Appellants The Ministry of Forests and the Attorney General of British Columbia on behalf of Her Majesty The Queen in Right of the Province of British Columbia Weyerhaeuser Company Limited John J.L. Hunter Q.C. Hunter Voi th West Hastings Street Vancouver, B.C. V6C 1E5 t: f: Council of the Haida Nation and Guujaaw, on their own behalf and on behalf of all members of the Haida Nation Louise Mandell, Q.C. Michael Jackson, Q.C. Terri-Lynn Williams-Davidson Bruce Elwood Clarine Ostrove Cheryl Y. Sharvit EAGLE Beach Road, Semiahmoo Reserve Surrey, B.C. V3S 9R7 t: f: Attorney General of Manitoba Heather Leonoff, Q.C. Department of Justice Constitutional Law Branch Broadway Winnipeg, MB R3C 3L6 t: f: Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street Ottawa, Ontario K2P 0A2 t: f: Jeffrey W. Beedell Lang Michener O'Connor Street Ottawa, Ontario, KIP 6L2 t: f: Henry S. Brown Q.C. Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario, KIP 1C3 t: f: Henry S. Brown Q.C. Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario, KIP 1C3 t: f: gowlings.com

3 Attorney General of Alberta Stan Rutwind and Kurt Sandstorm Henry S. Brown Q.C. Department of Justice - Constitutional and Gowling Lafleur Henderson LLP Aboriginal Law Elgin Street 4th Floor Street Ottawa, Ontario, KIP 1C3 Edmonton, Alberta T5K 2E8 t: f: t: f: henry.brown@gowlings.com Attorney General of Ontario E. Ria Tzimas and Mark Crow Crown Law Office - Civil 720 Bay Street, gth Floor Toronto, Ontario M5G 2K1 t: f: Attorney General of Saskatchewan Graeme G. Mitchell, Q.C Scarth St., loth Floor P.O. Box 7129 Regina, Saskatchewan S4P 3V7 t: f: Attorney General of Nova Scotia Alexander MacBain Cameron Terminal Road P.O. Box 7, Stn. Central Halifax, N.S. B3J 2L6 t: f: CAMEROAM@GOV.NS.CA Attorney General of Canada Brian McLaughlin/Mitchell R. Taylor Department of Justice Howe Street Vancouver, B.C. V6Z 2S9 t: f: mitch.taylor@iustice.gc.ca Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester street Ottawa, Ontario K2P 0A2 t: f: Henry S. Brown Q.C. Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario, KIP 1C3 t: f: henrv.brown@gowlings.com Stephen J. Grace Maclaren Corlett Bank Street Ottawa, Ontario KIP 6B9 t: f: sgrace@macorlaw.com Graham R. Garton, Q.C. Department of Justice 234 Wellington Street East Tower, Room 1212 Ottawa, Ontario KIA OH8 t: f: g~arton@iustice.~c.ca

4 Attorney General of Quebec Sylvie Roussel Noel & Associks 11 1 Rue Champlain Hull, Quebec J8X 3R1 t: f: Squamish Indian Band and Lax Kw'alaams Indian Band Gregory McDade Q.C. Ratcliff and Company 221 West Esplanade Street Suite 500 North Vancouver, B.C. V7M 3J3 t: f: Haisla Nation Allan Donovan Donovan & Company 61h Floor - 73 Water Street Vancouver, B.C. V6B 1Al t: f: Brian A. Crane Q.C. Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario, KIP 1C3 t: f: Brian A. Crane Q.C. Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario, KIP lc3 t: f: First Nations Summit M. Hugh Braker Q.C. Braker & Company Park Royal West Vancouver, B.C. V7T 1A2 t: f: Tenimgyet, also known as Art Matthews, Gitxsan Hereditary Chief Robert J.M. Janes Cook Roberts 71h Floor Douglas Street Victoria, B.C. V8W 2E1 t: f: Henry S. Brown Q.C. Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario, KIP 1C3 t: f: Brian A. Crane Q.C. Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario, KIP 1C3 t: f: Brian. Crane@gowlin~s.com

5 Business Council of British Columbia, Aggregate Producers Association of British Columbia, British Columbia Chamber of Commerce, Council of Forest Industries and Mining Association of British Columbia Charles F. Willms Fasken Martineau DuMoulin Georgia St. West Vancouver, B.C. V6E 3G2 t: f: British Columbia Cattlemen's Association Thomas Isaac McCarthy Tktrault LLP Suite Dunsmuir Street Vancouver, B.C. V7Y lk2 t: f: Jeffrey W. Beedell Lang Michener O'Connor Street Ottawa, Ontario, KIP 6L2 t: f: jbeedell 0langmichener.ca Gregory Tzemenakis McCarthy TCtrault LLP Elgin Street Ottawa, Ontario KIP 5K6 t: f: gtzemena0mccarthy.ca

6 TABLE OF CONTENTS PAGE PART I - STATEMENT OF FACTS PART I1 - ISSUES PART ARGUMENT I IV. v. VI. VII. VIII. A. B. C. D. E. Introduction Outline of Argument The Sparrow Case and the purpose of s. 35 The Existence of Treaties Requires Consultation and Accommodation The TransCanada Pipelines and Treaty Eight Grand Chief Halcrow Cases Is a Duty of Fair Dealing Sufficient to Discharge the Crown's Obligations? Is Injunctive Relief an Adequate Remedy? Guidelines for Consultation and Accommodation General Guiding Principles Description of Consultation and Accommodation When does the duty to consult and accommodate arise? What does the duty to consult entail? Specific Requirements for Accommodation PART IV - SUBMISSIONS ON COSTS PART V - ORDER SOUGHT PART VI - TABLE OF AUTHORITIES L:\RCF\26171\PLEADINGS\FACTUM - FILED VERSION WITH TOC.DOC

7 PART I - STATEMENT OF FACTS 1. The Dene Tha' First Nation ("Dene Tha") adopts the facts set out in the factum of the Respondents, the Haida Nation, and also relies on the following relevant facts. 2. Dene Tha' is a signatory to Treaty 8, located in the area of High Level, Alberta and has approximately 2,500 members. Dene Tha' is comprised of three communities: Assumption, Meander River and Bushe River. It has seven Reserves set apart for its use and benefit. Affidavit of Chief Stephen Didzena, sworn October 22,2003, para The ability of Dene Tha' to exercise its Treaty 8 rights to hunt, fish and trap is affected by the large presence of oil and gas, forestry, and other activities within its Traditional Territory and is contingent on its ability to be consulted effectively by the Province of Alberta ("Alberta"). Id., at para In both the Taku appeal as well as in the within appeal, Alberta takes the position, inter alia, that there is no constitutional or fiduciary duty to consult with First Nations until aboriginal treaty rights are proven or established, that until those rights are established there is neither an ex ante duty to consult nor even a duty to consult as part of a duty of fair dealing, and that the duty to consult, even in respect of the taking up of lands, was fulfilled by the negotiation of the treaty itself, the subsequent survey of reserves and the fulfillment of the treaty land entitlements in the treaty. Factum of Alberta Filed in Taku appeal, para. 4, 8; Factum of Alberta Filed in Haida appeal, para. 41,46,48, By Order of Mr. Justice Iacobucci dated November 24, 2003, Dene Tha' was granted leave to intervene in this appeal. PART I1 - ISSUES 6. Dene Tha's intervention in this appeal is directed to the following question: Does the Crown in Right of British Columbia owe a constitutional and fiduciary duty to consult with First Nations and to seek to accommodate their rights, prior to a final judicial determination of those rights? Dene Tha' submits that the Crown in Right of British Columbia owes fiduciary and constitutional duties to consult with First Nations and to seek to accommodate their rights whenever there is the potential that Crown action or decision making may infringe aboriginal rights, whether they take the form of aboriginal

8 rights, title or treaty rights. This duty is engaged prior to a First Nation's rights being judicially determined. PART I11 - ARGUMENT I. Introduction 7. Dene Tha' is the only First Nation participating in this appeal which has Treaty rights. It is submitted that this Court's decision on the timing and content of the Crown's duty to consult and to accommodate will have an effect on both treaty and non-treaty First Nations, particularly since this Court has made it clear that the Sparrow principles requiring the Crown to justify any infringement of aboriginal rights, including the duty to consult, apply with equal force in the treaty context and that the application of the Sparrow principles may, in fact, be even more important in the treaty context, particularly since "[tlhe rights guaranteed to Indians by treaties usually form an integral part of the consideration for the surrender of their lands." R. v. Badger, [I S.C.R. 77, at para. 73,77 and 82; R. v. Sparrow, [I S.C.R. 1075, pp Moreover, the duty to consult in the treaty context is raised by Alberta both in this appeal and in the Taku appeal, and Alberta takes the position that the duty to consult in the treaty context is minimal or even non-existent prior to proof or establishment of those rights. Dene Tha' Statement of Facts herein, at para It is submitted that any decision of this Court concerning the duty to consult and to seek workable accommodations should apply to both treaty and to non-treatyrights, since both are protected by s. 35(1) of the Constitution Act, In short, this Court should avoid creating a "constitutional patchwork quilt", in which it is provincial policv, rather than generally-applicable legal principles, that determines when, how, or even if provinces will consult with First Nations. 11. Outline of Argument 10. In arguing that the duty to consult must arise prior to a final judicial determination of rights, Dene Tha' will make the following submissions: (I) the need for early consultation has already been recognized by this Court in Sparrow, particularly when the purpose of s. 35 is taken into account; (2) the fact that the numbered Treaties already exist and are protected by s. 35 mandates constitutional and fiduciary consultation prior to proof; (3) a duty of fair dealing is not sufficient to discharge the Crown's obligations; and (4) injunctive relief is not an adequate, appropriate or practical remedy where s. 35 rights are L:\RCF\26177Vleadings\Faclu - Filed version.doc

9 concerned. In the final section of this factum, guidelines will be suggested for how the duty to consult and to seek to accommodate aboriginal rights may operate in practice The Spawow Case and the purpose of s While First Nations do not have a veto over decisions made by the Provinces in the course of managing Crown lands and resources pursuant to ss. 92(5) and 92(A) of the Constitution Act, 1867, it is submitted that such decisions must be tempered by the duty to consult and to seek to accommodate aboriginal and treaty rights. This Court has established that there are limits to how and when provinces can exercise that jurisdiction when aboriginal and treaty rights may be implicated. 12. In the Sparrow case, which offered this Court its first opportunity to deal with s. 35 rights, it was emphasized that s. 35(1) envisages challenges to governmental power and decision making: S. 35(1) suggests that while regulation affecting aboriginal rights is not precluded, such regulation must be enacted according to a valid objective. Our histow has shown, unfortunatelv all too well, that Canada's aboriginal peoples are justified in worrying about government obiectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal - rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy obiectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification. The way in which a legislative obiective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulaton, impact on an existing aboriginal right may be scrutinized so as to ensure recornition and affirmation. (emphasis added) This Court also held in Sparrow that "Jtlhe government is required to bear the burden of iustifyinp any legislation that has some negative effect on any aboriginal right protected under s. 35(1)." (emphasis added) (at p ) It was in light of these comments in Sparrow that this Court set out as a requirement for satisfying the test of justification that the Crown, inter alia, consult with First Nations. 13. Sparrow is fonvard-looking and focuses on ensuring recornition and affirmation of aboriginal and treaty rights. There is nothing therein to suggest that the Crown's constitutional and fiduciary duties only arise if an aboriginal right is judicially determined. As the Sparrow decision already makes clear, the honour of the Crown is engaged where decisions will have some negative effect on the exercise of aboriginal and treaty rights, given potential threats to the existence of those rights. The fonvard-looking nature of the duty to consult has been recognized in a number of decisions, where the potential for L:\RC~6177\PleadingsYFacactm - Filed version.doc

10 infringement is the focus of courts, rather than an expost facto assessment of whether an infringement can be justified. Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 178 D.L.R. (4th) 666 (B.C.C.A.), para. 180,185; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2002] 1 C.N.L.R. 169 (F.C.T.D.), para ; Saaniclzton Marina Ltd. v. Cluxton (1989), 57 D.L.R. (4th) 161 (B.C.C.A.) at p By arguing, as Alberta does, that there is no consultation required until prior proof of aboriginal and treaty rights, and by arguing, as the Attorney-General of British Columbia does, that the duty to consult only becomes constitutional or fiduciary after rights are judicially determined, those provinces seek to minimize their obligations. This has the effect of diminishing the importance of s. 35 and ignoring the unique position of First Nations within Canada, including the promises that have been made to them by the Crown. The argument also ignores the solemn promises made in treaties and essentially says that First Nations have, at best, minimal protection of their rights, with little beyond the sort of procedural protections that are afforded to any person affected by Crown decisions through administrative law remedies. As Finch J.A. (as he then was) said in Halfway River at para. 127 in respect of Treaty 8: "[tlhe fiduciary duties of the Crown are, if anything, more obvious when it has reduced its solemn promises to writing." (emphasis added) 15. Moreover, an after-the-fact approach to consultation ignores the requirement that aboriginal and treaty rights be minimally impaired and it ignores the requirement that, after conservation, aboriginal and treaty rights must be given priority over non-aboriginal uses of the land. More generally, if the provinces operate from the premise that there are few or even no obligations to consult and justify infringements until after proof of the right, even though decisions are being made prior to proof, such an approach would fail to give proper guidance to Crown decision makers, as required by this court in R. v. Adams. IV. R. v. Adam [I S.C.R. 101 at para. 54. Cases identifying minimal impairment requirement: Sparrow, supra at pp and 1119, Badger, supra at para. 97; R. v. Van der Peet, [I S.C.R. 507 at para. 138 and R. v. Gladstone, [I S.C.R. 723, at para Cases discussing priority doctrine: Jackv. The Queen, [I S.C.R. 294 at p. 3 13; and Sparrow, supra at pp , The Existence of Treaties Requires Consultation and Accommodation 16. This Court has held, inter alia, that treaties are agreements of a sacred nature, that treaties must be interpreted in a manner that upholds the honour of the Crown (which is always at stake), and that treaty rights are to be interpreted not as "frozen rights", but in a manner that permits their evolution. Moreover, this and other Courts have already held that the Crown has a constitutional and fiduciary duty to consult with Treaty First Nations without requiring those First Nations to have their rights judicially determined. L:\RCR26177\Pleadings\Factu - Filed version.doc

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12 21. This Court has made it clear that the rights of hunting, fishing, and trapping are at the core of Treaty 8. These are precisely the kinds of interests that s. 35 of the Constitution Act, 1982 is meant to protect. Section 35 is meant, inter alia, to enable aboriginal peoples to survive as distinct communities and it "reflects a new promise: a constitutional commitment to protecting practices that were historically important features of particular aboriginal communities." R. v. Powley, 2003 SCC 33 at para. 13,45; see also reasons of McLachlin J. (as she then was) in her dissentingreasons in Van der Peet, supra at para If Alberta is correct and Treaty 8 rights must be "proven" prior to any consultation being required, one must raise the question of exactly what the Treaty 8 First Nations were getting in return for surrendering vast portions of their territory. If Alberta is correct, rather than being guaranteed the right to hunt, fish and trap as consideration for surrendering certain rights to their lands, what the Treaty 8 First Nations would have received is merely the chance to prove the right to hunt, fish and trap. That position cannot be correct. 23. It is submitted that another flaw in the approach being advocated by the appellants and their supporting interveners is that it fails to allow for the effective exercise of aboriginal and especially treaty rights by First Nations in the face of the desire of the Crown and third parties to exploit various resources on the lands. The recent decision of the majority of this Court in Doucet-Boudreau v. Nova Scotia (Minister of Education), pertaining to urgency in the face of continuous cultural erosion is apposite, mutadis mutandis. If the Crown is allowed to wait until aboriginal and treaty rights are proven in court, there may well be nothing left. The promise of s. 35 would essentially be a hollow one if that were to take place. Doucet-Boudreau v. Nova Scotia (Minister ofeducation), 2003 SCC 62 at para The potential for erosion of rights is particularly apparent in the argument advanced by Alberta in the case at bar, at para. 46,48,51 and 52 of its factum. There, it is boldly asserted that "there is no duty to consult in areas that are the subject of treaty as there is no infringement of a treaty right," "that a taking up or occupying of lands means that there is no infringement of a right and there is no need to justify under the Sparrow test" and that "the duty to consult was fulfilled by the negotiation of the treaty itself, the subsequent survey of reserves and the fulfillment of the treaty land entitlement in the treaty." As noted earlier, Alberta also takes the position that there is no ex ante duty to consult nor is there even a duty of fair L:\RCN6177\Pleadings\Facmm - Filed version.doc

13 dealing absent proof of treaty rights. Under this approach, the promises made in Treaty 8 are of no legal significance whatsoever. 25. If that position is correct, then Alberta and presumably other provinces with similar rights to take up lands in the numbered treaties, have what amounts to an unfettered ability to exercise that power to the point where there will be no ability of Treaty First Nations to hunt, fish and trap, irrespective of the degree to which those First Nations rely on the land for sustenance and for their very survival. The position of Alberta appears to be that the taking up of lands can be done without any need to consult and justify such decisions. 26. For the Crown to be able effectively to gut the promises made in Treaty 8 by taking up the whole area in which a First Nation can exercise its treaty rights would be a remarkable and undesirable result. It is for this reason that the courts have held that the Crown must justify an infringement of treaty rights and must consult with First Nations even where, as in the case of Treaty 8, the treaty provides for a power to regulate or take up land. As Professor Macklem has noted with respect to the "lands taken up" powers in Treaty 9: "The grant of authority to 'take up' lands, either for listed or unlisted purposes, is subject to the Crown's overarching fiduciary obligation to exercise its discretion in accordance with the interests of Aboriginal peoples... " Badger, supra at para 37,73, 82; Halfway River, supra, at para. 134, 160, 167; Mikisew, supra at para. 39, 85, 86, 157; P. Macklem "The Impact of Treaty 9 on Natural Resource Development in Northern Ontario" in M. Asch ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: U.B.C. Press, 1997) 99 at p It is submitted that any argument or approach which calls for consultation after aboriginal or treaty rights are proven in a court (or, in certain cases, in a tribunal setting following this Court's decision in Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55) dishonours the Crown and does not respect the solemn promises made in treaties like Treaty 8. V. The TransCanada Pipelines and Treaty Einht Grand Chief Halcrow Cases 28. In TransCanada Pipelines v. Beardmore (Township) (2000), 186 D.L.R. (4") 403 (Ont. C.A.), which is relied on by the appellants and a number of their supporting interveners for the proposition that rights must be judicially determined before consultation is required, Borins J.A. said that before consultation is required, a First Nation must show a violation of an existing aboriginal or treaty right (at L:\RCF\26177\Pleadings\Factum - Filed version.doc

14 para. 120). It is submitted that a requirement to show a violation of an existing aboriginal or treaty right is not synonymous with a requirement to prove a right in a court-like setting. See, for example, Factum of A.G.B.C. para. 113; Factum of Alberta, para. 44; 29. In the Halfiay River case, Huddart J.A. discussed the need for a First Nation to set out its rights at the first available opportunity and the need for the decision maker to take those rights into account in carrying out the duty to consult, at para. 180: Because only the First Nation will have information about the scope of their use of the land, and of the importance of the use of the land to their culture and identity, if the Sparrow guidelines are to organize the review of an administrative decision it makes good sense to require the First Nation to establish the scope of the right, at the first opportunity, to the decision-maker himself during the consultation he is required to undertake, so that he might satisfy his obligation to act constitutionallv. It is only upon ascertaining the full scope of the right that an administrative decision-maker can weigh that right against the interests of the various proposed users and determine whether the proposed uses are compatible. This characterization is crucial to an assessment of whether a particular treaty or aboriginal right has been, or will be infringed. (emphasis added) 30. It is submitted that the approach of Borins J.A. in TransCanada case can be reconciled with the approach taken by Huddart J.A. in Halfway River. First Nations are required to show or to establish their rights and the potential for a violation or infringement of those rights early in any decision-making process, so that a decision maker can ascertain the full scope of those rights and take those rights into account during a consultation process, and thereby "act constitutionally." The requirement is to provide sufficient information about the right and its potential infringement to the decision maker, and not to prove or otherwise have the right judicially determined before a decision maker will have constitutional obligations to carry out. 31. Alberta relies on Treaty Eight Grand Chief Halcrow v. Canada (Attorney General), 2003 FCT 782 at para. 44 of its factum to argue that there is no consultation required until treaty rights are proven. In that case, a number of Treaty 6, 7, and 8 First Nation applicants argued that certain Regulations concerning the holding of elections and referenda contravened s. 35 aboriginal and treaty rights because they were drafted and passed into law without full and meaningful consultation first being conducted with the applicants. Dawson J. makes it clear, at para. 34, that "none of Treaty 6,7, or 8 was before the Court, and no specific provision of those treaties was relied upon by the applicants to assert that a treaty right had been infringed." Since the applicants did not base their arguments on rights found within a L:\RCFQGI 77\Pleadings\Factu - Filed version.doc

15 treaty, it is submitted that this case cannot stand for the proposition that anv treatyright, even if found in the very wording of the treaty, requires proof before consultation arises. VI. Is a Duty of Fair Dealing Sufficient to Discharge the Crown's Obligations? 32. This Court has held that one of the reasons for imposing fiduciary obligations lies in "its utility in the promotion and preservation of desired social behaviour and institutions." Among the "desired behaviour" in the context of s. 35 is that the Crown will act honourably and that aboriginal rights and title will be reconciled with Crown sovereignty. These principles have been established to take into account the special place of First Nations within Canada and to deal with the unique relationship, history and culture of First Nations within Canada. Lac Minerals v. International Corona Resources Ltd., [I S.C.R. 574, at p. 672; Reference re: Secession of Quebec, [I S.C.R. 217 at para It is submitted that the administrative law duty of "fair dealing" which is put forward by the Attorney General of British Columbia in this appeal and in the Taku appeal, which is said to be neither constitutional nor fiduciary in nature, fails to recognize the unique legal duties that the courts have already said are owed to First Nations, duties which distinguish First Nations from ordinary citizens who may be affected by Crown decisions. In particular, this and other Courts have already said that there are both procedural and substantive duties within s. 35, which form part of the reconciliation that is required by that constitutional provision. The substantive duties within s. 35 therefore distinguish the tasks facing the Crown in the context of s. 35 from the procedural obligations contained within an administrative law "duty of fair dealing." 34. For example, this Court has said that s. 35 rights are both procedural and substantive. To reflect this fact, this Court has placed a number of obligations on the Crown in the context of s. 35, such as requiring that First Nations' aboriginal and treaty rights be given priority, after conservation, over nonaboriginal uses; ensuring that aboriginal and treaty rights are impaired to the least possible extent and ensuring that the aboriginal perspective is taken into account. This Court has also recognized that in the treaty context, the aboriginal perspective may lead to different resource management techniques and other courts have said that the existence of treaty rights may require alternative measures to be employed. As a result, while the consultation required by s. 35 does not mandate a particular outcome, it does require a,decision maker to take into account a number of factors which would not ordinarily be required in apurely administrative law context. L:UiCN6177\Pleadings\Factu - Filed version.doc

16 For references regarding doctrine of priority and minimal impairment, see para. 15 of this factum. For requirement to take aboriginal perspective into account, see Sparrow, supra at p ; Van der Peet, supra at para. 42, Delgamuukw, v. British Columbia, [I S.C.R at para For possible need for different resource management techniques, see R. v. Marshall (No. 2), [I S.C.R. 533 at para. 44. For possible need for alternative measures see R. v. Noel, [I C.N.L.R. 78 (N.W.T.T.C.) at pp In addition, other decisions have provided for a number of affirmative duties on the Crown in the context of s. 35 consultation. For example, the Crown has been required to provide full information to First Nations on an ongoing basis and not simply wait for such information to be requested and the Crown has been required to provide information concerning the specifics of a proposed plan of action and how that decision will affect aboriginal and treaty rights. This is not simply akin to a duty to disclose information or documents; the Crown is required to initiate consultation and information disclosure and explain the potential consequences of a proposed course of action. Again, these are not normally requirements within a purely administrative law context. R. v. Jack (1995), 131 D.L.R. (4") 165 (B.C.C.A.), at para. 77; R. v. Sampson, 131 D.L.R. (4') 192 (B.C.C.A.), at para. 107 and 109; Halfway River, supra at para. 69 and 160; Gitxsan and other First Nations v. British Columbia (Minister of Forests) (2003), 10 B.C.L.R. (4th) 126 (S.C.) at para. 81, 87-92, Finally, the administrative duty of "fair dealing" also fails to take into account that different means of dealing with aboriginal and treaty rights may be required precisely because they have received constitutional protection in s. 35. As McLachlin J. (as she then was) makes clear in Van der Peet, at para. 242 (dissenting in the result, but not on this point): To constitute a right under s. 35(1) of the Constitution Act, 1982, the right must be of constitutional significance. A right of constitutional significance may loosely be defined as a right which has priority over ordinary legal principles. It is a maxim which sets the boundaries within which the law must operate. (emphasis added) VII. Is In-junctive Relief an Adequate Remedy? 37. In the decision below, Lambert J.A. held, at para , that although interlocutory injunctions can be a valuable interim tool to help resolve issues concerning aboriginal rights and title, they are not always the most suitable mechanism for balancing competing interests. This position has been challenged by various parties in both this appeal and in the Taku appeal. Factum of A.G.B.C. filed in the Haida appeal, para. 45; Factum of Weyerhaeuser filed in the Haida appeal, para ,54-55; Factum of A.G. Alberta Filed in Taku appeal, para. 6,41,57-60,61; Factum of Business Council of B.C. Filed in Taku appeal, para. 10,37-38; Factum of A.G. Canada filed in Taku appeal, para. 66; Factum of A.G. Canada filed in Haida factum, para L:\RCN6177\PLEADINGS\FACTUM - FILED VERSlON.DOC

17 38. There are several reasons why the interlocutory injunction process may not be suitable for resolving disputes involving aboriginal and treaty rights. Some of these reasons relate to the nature of injunctive relief in general, while others relate to the particular context of aboriginal rights. 39. The main deficiencies with injunctive relief, particularly for First Nations, are that it is very difficult to obtain and it is an inadequate remedy for achieving the reconciliation mandated by s. 35. As John Hunter, Q.C., counsel for Weyerhaeuser in the within appeal, notes: "[slince Sparrow, there have been at least a dozen injunction applications brought by Aboriginal claimants to stop resource activity on claimed lands. None has been successful." (emphasis added) As litigation to resolve aboriginal issues can take several years, courts are often reluctant to grant an injunction that could be in place for such a long period of time. As Hunter also notes, "the length of time that such an order is likely to be in place provides a significant disincentive to the grant of the order." (at p ) John Hunter, Q.C., "Advancing Aboriginal Title Claims After Delgamuukw - The Role of the Injunction" in Litigating Aboriginal Title (CLE: June, 2002) at p Injunctions are, of course, litigation-based remedies. Rule 45(2) of the British Columbia Rules of Court states: "An application for an interlocutory injunction may be made before commencement of a proceeding and the injunction may be granted on terms providing for the commencement of the proceeding." (emphasis added) Even though there are instances in which injunctions will be granted without there being a lis between the parties, it is submitted that this rule contemplates that litigation has been, or will be commenced, and "generally an injunction is a remedy ancillary to a cause of action..." It is submitted that forcing First Nations to seek injunctive relief, and to commence a legal proceeding, is contrary to this Court's often-stated view that negotiation is preferable to litigation. It should also be noted that litigation is often prohibitively expensive for First Nations to undertake. Adler, Coleman Clearing Cop (Trustee of) v. Roddy Diprima Ltd. (1996), 28 B.C.L.R. (3d) 181 (S.C.) at para. 7; also see Brotherhood of Maintenance of Way Employees Canadian Pac$ic System Federatian v. Canadian Pacific Ltd., [I S.C.R. 495; Delgamuukw, supra, para. 186,207; British Columbia (Minister offorests) v. Okanagan Indian Band, 2003 SCC 71, at para. 47, Sparrow, supra at p. 1105; Marshal (No. 2), supra at para It is submitted that the question of how aboriginal rights may be reconciled with Crown sovereignty is not the kind of issue that is suitable for resolution on an injunction application. As noted earlier, reconciliation in the context of s. 35 is fonvard-looking, and it is based on the premise that aboriginal and treaty rights ought to be "recognized and affirmed" and that there must exist a means of exercising those rights. The balancing that must be done in the context of s. 35, which contemplates various aboriginal and non-aboriginal uses of the land, is directed to such purposes. In contrast, an L:\RCFYZG177\PLEADINGS\FACTUM - FILED VERSION.DOC

18 injunction-based remedy is essentially "winner take all." In other words, the balancing that is done in the final stage of an injunction application determines who ultimately prevails in the application, and does not seek to balance competing uses of the land as part of the remedy itself. In short, the test for injunctive relief simply does not address the relevant questions about infringement and justification in the context of s. 35. RJR-Macdonald Inc. v. Attorney General of Canada, [I S.C.R at pp As a final point, it is not at all clear that injunctive relief is available to First Nations to restrain the Crown, or its agents, from making decisions which have the effect of infringing aboriginal and treaty rights. On an injunction application, First Nations are likely to be met with the argument that an injunction would not lie either against the Crown, or against agents of the Crown, based on the common law and on the wording of federal and provincial Crown proceedings legislation. This argument has been raised by the Attorney General for British Columbia in a number of cases. See, for example, In the Matter of CCAA and Skeena Cellulose et al., 2002 BCSC 597, at par. 12; Volansky v. British Columbia (Minister of Transportation), 2002 BCSC 580; and Gleneagles Concerned Parents Committee Society v. British Columbia Ferry Corp, 2001 BCSC 296 for instances in which the Attorney General for British Columbia has raised the argument that injunctions are unavailable against the Crown and Crown agents. See also Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 1 l(2) and Crown Liability and Proceedings Act, R.S.C. 1985, c. C- 50, s. 22(1); Grand Council of Crees v. The Queen (Can.), [I F.C. 599 (C.A.); and Peter Hogg Liability of the Crown, Third ed. (Toronto: 2000 Thomson Canada Limited), at pp While there is an exception to this rule where a Crown servant is acting unlawfully (such as where an action is unauthorized by statute), this raises the question of whether or not an injunction, as opposed to declaratory relief, would be available where a First Nation frames its application on the basis that acrown servant is acting unlawfully by failing to consult or to otherwise properly seek to accommodate or consider the aboriginal right at stake. See: Te'Mexw Treaty Assn. v. W.L.C. Developments Ltd. (1998), 163 D.L.R. (4') 180 (B.C.S.C.), at para. 6-9 VIII. Guidelines for Consultation and Accommodation 44. It is Dene Tha's position, as noted earlier, that the Crown owes a constitutional and fiduciary duty to consult with First Nations and to seek to accommodate their rights, prior to a final judicial determination of those rights. It is submitted that if this Court upholds the decision of the British Columbia Court of Appeal in the Court below, it may wish to give guidance to Crown decision makers and to First Nations and third parties on how this duty is to be fulfilled. Indeed, this would be consistent with the guidance that L:\RCF\26177\PLEADINGS\FACTUM - FILED VERSION.DOC

19 this court has provided in Sparrow, Gladstone, Badger and Delgamuukw concerning how the Crown may justify infringements of aboriginal and treaty rights. Gladstone, supra at para. 64; Sparrow, supra at pp ; Delgamuukw, supra at para ; Badger, supra at para A. General Guiding Principles 45. The obligations of the Crown in the context of s. 35 are both procedural and substantive. In Gladstone, Lamer C.J., for the majority, held at para. 62: The right is at once both procedural and substantive; at the stage of justification the government must demonstrate both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest of aboriginal rights holders in the fishery. (emphasis added) See also Dene Tha' factum, para Decision makers must also bear in mind that both the cultural economic concerns of First Nations are at stake, a point which this Court recognized in Delgamuukw, where it held that aboriginal title contains an "inescapable economic component." Reasons of Lambert J.A. in this appeal, at para 48; Delgamuukw, supra, at para While consultation and accommodation do not mandate a specific outcome, a decision maker must take into account the doctrines of minimal impairment of aboriginal and treaty rights, the aboriginal priority in resource allocation, the aboriginal perspective of the right, and the decision that is ultimately reached must recognize that the honour of the Crown is at stake and that aboriginal or treatyrights must be reconciled with Crown sovereignty. Furthermore, First Nations must be provided sufficient capacity to engage in consultation, to ensure that they have the resources to engage in meaningful consultation. Dene Tha' Factum, para, 15, Any consultation that takes place must be meaningful, conducted in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. Delgarnuukw, supra, para. 168; Halfway River, supra at para. 160, 191, Mikisew Cree, supra at para 157, Ln short, the fact that there are competing demands on the lands involving the Crown, First Nations and third parties ought to be faced squarely and up front. Consultation and accommodation should be forward-looking and every attempt should be made to find means of dealing with potential conflicts, rather L:\RCtU6177\PLEADINGS\FACTUM - FILED VERSION.DOC

20 than simply waiting for the courts or tribunals to determine, expost facto, whether an infringement can be justified by the Crown. B. Description of Consultation and Accommodation 49. It is submitted that these general guiding principles give rise to a number of specific duties and obligations on both the Crown and First Nations. As a preliminary point, it is necessary to set out what Dene Tha' means when it refers to the terms "consultation" and "accommodation". 50. While recognizing that neither consultation nor accommodation can be defined in a way which will give more than general guidance, it is submitted that "c~nsultation'~, in the context of s. 35, means a dialogue that occurs between the decision maker and the affected First Nation before the decision maker selects a course of action. In other words, this dialogue must ensure that there is a real opportunity for the First Nation to have input into the proposed course of action before irrevocable decisions are made. It is further submitted that early aboriginal involvement would also be of benefit to third party resource users, before those resource users commit substantial time and money to particular project. Halfway River, para Two descriptions of the content of consultation are particularly helpful in this context. The first description, relating to a process of consultation between the Government of New Zealand and the Maori, reads in this way: Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed, [and] should enhance the quality of policy proposals... ***...genuine consultation means a process that involves... Gathering information to test policy proposals Putting forward proposals that are not yet finalized Informing Maori opinion on those proposals Informing Maori of all relevant information upon which those proposals are based Not promoting but listening with an open mind to what the Maori have to say Being prepared to alter the original proposal Providing, feedback both during the consultation process and after the decision-process (emphasis added) L:\RCW6177\PLEADINGS\FACTUM - FILED VERSION.DOC

21 New Zealand Ministry of Justice, A Guide for Consultation with Maori, at p. 1 of Executive Summary, and section2.2 The second description of consultation, involving the United States Bureau of Land Management and Native American Tribes, reads in this way: Consultation is incomplete, and largely pointless, unless it is directed toward the identification of mutually acceptable solutions...it is the goal of the consultation process to identify both the resource management concerns and the strategies for addressing them, through an interactive dialogue with appropriate Native American communities. (emphasis added) US. Bureau of Land Management, H General Procedural Guidance for Native American Consultation, at p As these descriptions of consultation make clear, consultation must take the form of a dialogue, in which information is discussed and shared prior to a decision being made. It cannot simply consist of a First Nation providing information and waiting to see whether or not its views are properly considered and accommodated. Such consultation would be nothing more than an opportunity to be heard. Rather, consultation must be an interactive, ongoing process, in which options and alternatives are tested and potentially integrated prior to a final decision being made. 53. Whereas consultation relates to a particular procedure or process to be followed in the course of making a decision, it is submitted that accommodation connotes modifying an impending decision or course of action in order to avoid infringing aboriginal or treaty rights or to minimize any potential infringement. On this view, consultation is a process, whereas accommodation is outcome-based. As seen in the definitions above, consultation and accommodation principles often overlap. While consultation and accommodation cannot mandate any particular outcome, it is submitted that within any consultation and accommodation process must lie the possibility that a decision maker may change a particular course of action after receiving aboriginal input, before the decision is made. 54. The decision maker must be prepared to test various options and proposals and be prepared to amend a course of action in light of the information received. This is especially important in the treaty context, where the right already exists. As this Court said in Marshall (No.2) (Motion for Reconsideration), at para. 44: "the concerns and proposals of the native communities must be taken into account, and this might lead to different techniques of conservation and management in respect of the exercise of la1 treaty right." (emphasis added) Also of note is the decision of Halifax J. of the Northwest Territories Territorial Court in Noel, supra, where, in the context of a Treaty 8 hunting right, it was made

22 clear that other available alternatives must be considered and not rejected out of hand, to ensure that aboriginal rights are interfered with in the least intrusive manner. Noel, supra at pp C. When does the duty to consult and accommodate arise? 55. It is submitted that any consultation process must begin by requiring the Crown to give adequate notice of an intended decision or course of action to any First Nation whose aboriginal or treaty rights might be affected by a decision. For their part, First Nations must put the Crown on notice about the areas (Traditional Territories) in which they expect to be consulted. The next question is that of when the Crown has a duty to consult and to seek to accommodate the aboriginal right at stake. 56. It is submitted that a workable threshold for requiring consultation, where Crown decision makers may have guidance without the need to engage in what is essentially a court or tribunal type of hearing, is for the First Nation to outline, in writing, its rights or interests regarding a particular application or pending approval, including any concerns related to the potential infringement of those rights or interests. To adopt an analogy from the law of injunctive relief, a decision maker "must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question" respecting a potential infringement of the right or interest at stake. This threshold is a low one. In the Treaty 8 context, the requirement for "sufficient information" would be met by raising one or more of the rights contained in the Treaty itself and providing information concerning the potential infringement of those rights. American Cyaninzid Co. v. Ethicon Ltd., [I9751 A.C. 396 (H.L.) at pp , cited, with approval in RJR- Macdonald lnc, supra at pp This kind of approach has already been adopted in Consultation Agreements and Memoranda of Understanding between a number of First Nations, including DeneThaY, and the Crown in Right of British Columbia as represented by the Minister of Energy and Mines and the Oil and Gas Commission, concerning oil and gas activity referrals in the Traditional Territories of those First Nations (including the Traditional Territory of the Dene Tha' First Nation located in British Columbia). Those Agreements and Memoranda of Understanding do not require proof or judicial determination of rights prior to consultation being required, nor do they require the decision maker to engage in a time-consuming inquiry directed at determining whether the rights exist. Agreement Dated December 4, 2003 Between Dene Tha' First Nation and Her Majesty the Queen in Right of the Province ofbritish Columbia, as represented by the Minister of Energy and Mines and the Oil and Gas Commission D. What does the duty to consult entail? L:\RCF\26177\PLEADmGSWACTUM - FILED VERSION.DOC