% AND: FACTUM OF THE INTERVENOR COUNCIL OF FOREST INDUSTRIES. No. CA Vancouver Registry COURT OF APPEAL BETWEEN:

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1 No. CA Vancouver Registry COURT OF APPEAL BETWEEN: AND: CHIEF COUNCILLOR MATHEW HILL, also known as Tha-lathatk, on his own behalf and on behalf of all other members of the Kitkatla Band, and KITKATLA BAND PLAINTIFFS (APPELLANTS) % AND: THE MINISTEROF FORESTS, THEREGlONALorDlSTRlCTMANAGEROFTHE NORTH COAST FOREST DISTRICT, THE MINISTER OF SMALL BUSINESS, TOURISM AND CULTURE, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCEOF BRITISH COLUMBlAand INTERNATIONAL FOREST PRODUCTS LIMITED COUNCIL OF FOREST INDUSTRIES DEFENDANTS (RESPONDENTS) INTERVENOR FACTUM OF THE INTERVENOR COUNCIL OF FOREST INDUSTRIES

2 Solicitors for Intervenor: Russell & DuMoulin Barristers & Solicitors West Georgia Street Vancouver, BC V6E 3G2 Telephone: COUNSEL CHRISTOPHER HARVEY, Q.C. Solicitors for PlaintiffsIAppellants: Woodward & Company Barristers B Solicitors 957 Fort Street Victoria. BC V8V 3K3 Telephone: COUNSEL E.J. (JACK) WOODWARD Solicitors for DefendantsJRespondents: Fuller Pearlman Barristers & Solicitors Broad Street Victoria, BC V8W 2A5 Telephone: COUNSEL PAUL J. PEARLMAN, Q.C. Solicitors for DefendanURespondent: International Forest Products Limited Ladner Downs Barristers & Solicitors Burrard Street Vancouver, BC V7X IT2 Telephone: COUNSEL PATRICK G. FOY, Q.C.

3 INDEX PART l PART II PART Ill PART IV FACTS ISSUE ARGUMENT LIST OF AUTHORITIES

4 PART I FACTS Introduction 1. This is an appeal by the Plaintiffs (Appellants) seeking an interlocutory injunction to restrain logging by the Defendant (Respondent) International Forest Products Limited ("Interfor"). By order of the Honourable Mr. Justice Hollinrake on June 30, the Counsel of Forest Industries ("COFI") was granted intervenor status. COFl submits that the appeal should be dismissed and the interlocutory injunction should be refused. Position with res~ect to A~~ellant's Statement of Facts 2. As intervenor, COFl takes no position with respect to the specific allegations in the Statement of Facts of the Appellants' Factum, except to observe that the Plaintiffs assert as facts matters which were not found to be facts by the judge below, and which are very much in contention. COFl also submits that the following facts, which were before the court below, are relevant. 3. The total direct employment of the forest industry in British Columbia in 1997 was 97,250 with total direct and indirect employment of Affidavit of Marlie Beets sworn June 17, 1998, para 10, Ex. "F", Appeal Book Vol. I, p. 109

5 Affidavit of Marlie Beets sworn June 18, 1998, A.B. Vol. I, p In some areas of the province of British Columbia, it is relatively easy to identify aboriginal groups who claim an interest in or title to or rights over areas of Crown land that comprise the provincial timber supply areas ("TSAs"). There are other areas of the province where it is more difficult to determine which aboriginal group or groups claims an interest in, title to or aboriginal rights over specific areas. COFl members attempt to identify appropriate aboriginal groups to involve in exchange of information in accordance with government direction provided under the Forest Act and regulations passed thereunder and other government policiesand guidelines related to claims of aboriginal rights. Affidavit of Marlie Beets sworn June 17, 1998, paras 8 and 9, A.B. Vol. I, pp

6 PART II ISSUES ON APPEAL The issue on which COFl wishes to offer submissions is: Whether the judgment of the Supreme Court of Canada in Delgamuukw v. The Queen has changed the law governing interlocutory injunctions in the province of British Columbia with respect to claims of aboriginal title.

7 PART Ill ARGUMENT Introduction 5. COFl submits that the decision of the Supreme Court of Canada in Delgamuukw v. The Queen. [I S.C.R. 1010, 153 D.L.R. (4th) 193, has not changed the law governing applications for interlocutory injunctions in the province of British Columbia with respect to claims of aboriginal title. COFl further submits that the Delgamuukw decision does not change the manner in which a judge should exercise his or her discretion in deciding whether to grant an interlocutory injunction. Analysis of Delqamuukw and earlier decisions A. ABORIGINAL TITLE AND RIGHTS IN B.C. 6. In Calder v. Attorney Generalof British Columbia (1973), 34 D.L.R. (3d) 145 (S.C.C.), the Court had before it the question of whether or not aboriginal title had been extinguished in the province of British Columbia in the colonial period, that is, prior to The Court divided 3:3 on the issue of colonial extinguishment, but did not divide on aboriginal title, which was succinctly described by Judson J. at p.156: "Although I think it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians LlTGlCOUOOl

8 were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they are asserting is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was 'dependant on the good will of the Sovereign'." 7. In 1982, the Constitution Act of Canada was amended to add Section 35 which provides, in part: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." 8. In R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C.), the Supreme Court of Canada affirmed at p.404: "It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title to such lands vested in the Crown." 9. Sparrow did not deal with aboriginal title, it dealt with aboriginal rights. The Court said that if the aboriginal peoples could prove that an aboriginal right existed, then certain questions had to be asked to determine whether or not there was a prima facie infringement. (at p.411): "First is the limitation unreasonable? Secondly, does the regulation impose undue hardship? Thirdly, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation."

9 10. The Court held that if a prima facie infringement was proved that this infringement could be justified by the Crown under a two-part justification test -- first, whether there was a valid legislative objective and, second, if there was a valid legislative objective, was the honour of the Crown maintained. 11. The Court further refined the definition of aboriginal rights in Van der feet v. The Queen (1996) 137 D.L.R. (4th) 289 (S.C.C.), where the Court held at p.310: "In light of the suggestion of Soarrow, m, and the purposes underlying Section 35(1), the following test should be used to identify whether an applicant has established an aboriginal right protected by Section 35(1): In order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right." B. DELGAMUUKW: TRIAL AND THE COURT OF APPEAL 12. The trial judge in Delgamuukw, McEachern, C.J.S.C., after hearing over 350 days of evidence, decided the issue that had been left undecided in Calder, that is, he decided that aboriginal interests in land had been extinguished in the colonial period. He further held that the Crown owed fiduciary duties to the aboriginal peoples arising out of the extinguishment of aboriginal interests in land. There is no significant distinction between the way McEachern, C.J.S.C. described aboriginal interests in land and the way the Supreme Court of Canada in Calder described aboriginal title. They were essentially the same.

10 13. On appeal to the Court of Appeal of British Columbia, the plaintiffs, the province of British Columbia and the government of Canada, all submitted to the Court that the Chief Justice had erred in determining that aboriginal interests in land were extinguished in the colonial period. The Court of Appeal accepted the submissions of the parties and reversed thejudgment of McEachern, C.J.S.C. with respect to the issue of extinguishment. 14. No party appealed the issue of extinguishment in the colonial period to the Supreme Court of Canada. The Plaintiffs appealed the dismissal by the Court of Appeal of their claims to ownership and jurisdiction of the land and the finding by the Court of Appeal that the Plaintiffs had non-exclusive aboriginal rights to the land. The Province cross-appealed on post-confederation extinguishment. This set the stage for the Supreme Couri of Canada decision. C. SUPREME COURT DECISION IN DELGAMUUKW 15. The claims of the Plaintiffs for ownership and jurisdiction over the territory that had been advanced at trial and in the B.C. Court of Appeal were withdrawn by the Plaintiffs in the Supreme Court of Canada and the Plaintiffs asserted instead claims of "aboriginal title" and "selfgovernment". The Supreme Court of Canada ordered a new trial on the issues of aboriginal title and self-government, holding that the record did not allow the Court to reach conclusions with respect to aboriginal title and self-government.

11 16. The Court in Delgamuukw dealt with three issues: (a) (b) (c) the content of aboriginal title; the legal test for the proof of title; and whether aboriginal title as a right in land mandates a modified approach to the test of justification set out in Sparrow. (a) Content of Aboriginal Title 17. Aboriginal title is more than a bundle of aboriginal rights (such as hunting and fishing in the traditional manner). Aboriginal title is a sui generis right in land, and to uses and activities thereon. 18. The Court held that aboriginal title was not tantamount to an inalienable fee simple norwas it simply a bundle of rights to engage in aboriginal rights activities. The Court said at paragraph "Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive culture of aboriginal societies. Those activities do not constitute the right per se; rather they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group's aboriginal title." 19. The Courl also said, in paragraph 131: "If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, they must surrender those lands and convert them into non-title lands todo so."

12 (b) Proof of Title 20. In order to prove aboriginal title, a group must show: (i) the land was occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty there is a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty that occupation was exclusive. 21. With respect to a connection with the land, and the Sparrow and Van derpeet requirement that rights must be of central significance to the band's distinctive culture, the Court said at paragraph 151: "However, in the case of title, it would seem clear that any land that is occupied presovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants. As a result, I do not think it is necessary to include explicitly this element as part of the test for aboriginal title. 22. The Plaintiffs assert (at paras ) that the judge below erred in assessing their case for an injunction, because Delgamuukw has changed the rules respecting the admissibilityof evidence of aboriginal rights. This is incorrect. The Supreme Court of Canada has set out guidelines with respect to the assessment of evidence at a trial to determine whether aboriginal rights exist. Lamer C.J.C. specifically dealt with "findings of fact made at trial" and the obligations of "trial courts" (see, e.g., paras. 78, 80, 82). Delgamuukw does not alter the way in which a chambers judge must approach evidence on an application for an interlocutory injunction.

13 (c) Modified Justification Test 23. The Court unanimously held that: "The development of agriculture, forestry, mining and hydro electric power, the general economic development of the interior of British Columbia, protection of the environment of endangered species, the building of infrastructure and the settlement of foreign populations to support their aims, are the kinds of objectives that are consistent with this purpose and in principle can justify the infringement of aboriginal title." 24. The government may act pursuant to proper legislative objectives, and the Supreme Court of Canada makes it very clear that resource and economic development are proper purposes. 25. In the justificatory analysis, the Court discussed an increased level of consultation required by the government which might "require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands." 26. At paras. 40 through 47 of their factum, the Plaintiffs maintain that Delgamuukw "requires the Court to consider whether there has been meaningful consultation with the aboriginal consultation with the aboriginal group affected by the activity sought to be enjoined". It must be repeated that the comments from Delgamuukw relied on by the Plaintiffs arose in the context of adjudication of the underlying right and determination of the appropriate remedy. The Supreme Court in Delgamuukw described a duty to consult when discussing when and how infringement of aboriginal title may be justified. This analysis assumed that an aboriginal right or title in question

14 has been established. A judge hearing an interlocutory injunction application is not engaged in these final determinations. Delgamuukw does not change the law in this respect. 27. The Court in Delgamuukwalso said (at para 169) that compensation would be payable by the Crown if aboriginal title was infringed. Interestingly, the Court did not suggest that the infringement could be restrained if the Crown could not satisfy the justificatory analysis. It has always been a defence to an interlocutory injunction application to show that damages are an adequate remedy. A.G.B.C. v. Wale(1986),9B.C.L.R. (2d)333(C.A.)atpp The Court discussed self-government briefly, relying on its judgment in Pamajewon and stated "that rights to self-government, if they exist, cannot be framed in excessively general terms". The Court confirmed that that kind of a claim is not cognizable under Section 35. D. EFFECT OF JUDGMENT 29. It has been asserted that aboriginal title, if proved, will be a significant bar to the ability of the Province to grant resource tenure in British Columbia without payment of compensation and a level of consultation commensurate with the title being infringed. What is in issue here is the extent to which the availability of compensation for infringement will allow harvesting under resource tenures without fear of injunctive relief being granted to a claimant aboriginal group who seeks to prevent the harvesting.

15 30. The language used in Delgamuukw has been interpreted by some as opening the door to far reaching claims to aboriginal title for the whole of the province. However it seems clear that the Court was struggling to create a regime in which aboriginal claims will be respected (and compensation paid for infringement) while ensuring that the citizens of the province can continue to work and support their families and communities. 31. It is submitted that the Supreme Court of Canada did not intend to stop development such as forest harvesting in the province of British Columbia by its judgment. In fact, the judgment makes it clear that the province is entitled to continue to govern the province in accordance with its constitutional mandate. It is important to remember that the only portion of the Supreme Court of Canada judgment requiring consultation amounting to consent deals with the passing of provincial hunting and fishing regulations- those regulations which might conceivably affect hunting or fishing activity which could be said to be integral to the distinctive culture of an aboriginal group. Infringement of aboriginal title where that infringement does not amount to an infringement of a right that is integral to the distinctive culture of the aboriginal group will generally be compensable in damages, but not subject to aboriginal consent. There is no suggestion in the Supreme Court of Canada judgment of a veto or anything approaching a veto with respect to infringements which do not relate to the distinctive culture of aboriginal peoples. 32. The signal sent out by Delgamuukw is that the issue of aboriginal title is an issue between governments and the aboriginal peoples of Canada. There is no doubt that the provincial government will become involved where acts of the provincial government may have the effect of

16 infringing aboriginal title, but the Supreme Court of Canada judgment re-affirms that the primary responsibility with respect to aboriginal title rest with the federal government. 33. Non-governmental entities have no authority whatsoever to enter into agreements with aboriginal peoples dealing with aboriginal title. Those agreements must be entered into between aboriginal peoples and the federal government, with such participation of the provincial government as is necessary to carry into effect the promises in the treaty. There is nothing in Delgamuukw which requires or obligates those who have derived an interest in land from the Crown to deal with or negotiate in any way with aboriginal peoples. It has always been the sole constitutional responsibility of the Crown to treat with aboriginal peoples. E. CONCLUSION 34. The Delgamuukwjudgment stands for the proposition that when Crown tenure is granted, the tenure holder is entitled to assume that any failure of the government to do appropriate consultation with aboriginal peoples before granting the tenure will not result in an injunction. Once tenure is granted by the Crown, any infringement of aboriginal title becomes a compensation issue between the Crown and the aboriginal group. It is critical to the economy of the province, and consistent with Delgamuukw, that third parties can rely on Crown tenures once granted. Delgamuukw supports tenure security rather than tenure jeopardy.

17 35. In exercising his discretion to refuse the interlocutory injunction, Hutchison J. properly took into account the strength of the Appellants' claim to aboriginal title in determining the balance of convenience. He also properly took into account the economic effect thatan injunction would have reaching beyond the parties to the case. COFl respectfully submits that it is not only appropriate but necessary that the court take into account the economic interests of those who are not parties to the case and whose livelihood will be irreparably affected by the grant of any injunction suspending logging in any portion of the province. 36. Governments may have a duty to compensate aboriginal peoples for any infringement of aboriginal title which has taken place to date and may take place in the future. However, there is no right to compensation by third parties who rely on the forest industry for their livelihood. 37. To allow the appeal and grant the injunction sought based on the evidence adduced would run contrary to thefundamental underlying premise of the Delgamuukwjudgrnent. As the Supreme Court of Canada said in Delgamuukw: "Let us face it, we are all here to stay". When considering the issue of irreparable harm, this must require careful consideration of the interests of those who are not parties to the case, but whose ability to "stay" here may be significantly compromised by an injunction and the loss of livelihood. 38. In summary, Delgamuukw has not altered the law governing interlocutory injunction applications in cases where aboriginal title is asserted. The chambers judge was correctto dismiss the Plaintiffs application for an interlocutory injunction, and the appeal should be dismissed.

18 PART IV NATURE OF ORDER SOUGHT That the appeal be dismissed. ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated: Christopher Harvey, Q.C. Counsel for the Council of Forest Industries

19 LIST OF AUTHORITIES PAGE NUMBERS Calder v. Attorney General of British Columbia , 5 (1973), 34 D.L.R. (3d) 145 (S.C.C.) Delgamuukw v. The Queen (1997), 153 D.L.R. (4th) , 6, 7, 9, 10, 11, 12, 13, 14 R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C.) Van der Peet v. The Queen ,7 (1996) 137 D.L.R. (4th) 289 (S.C.C.) Constitution Act, Section A.G.B.C. v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.) at pp