January 6, 2010 File No.: /14186 VIA

Transcription

1 Fasken Martineau DuMoulin LLP * Barristers and Solicitors Patent and Trade-mark Agents Burrard Street Vancouver, British Columbia, Canada V6C 0A Telephone Facsimile January 6, 2010 File No.: /14186 C.B. Johnson, Q.C. Direct Facsimile cjohnson@fasken.com VIA British Columbia Utilities Commission 6th floor, 900 Howe Street Box 250 Vancouver, B.C. V6Z 2N3 Attention: Erica M. Hamilton Commission Secretary Dear Sirs/Mesdames: Re: British Columbia Power and Hydro Authority Application re Acquisition from Teck Metals Ltd. of an Undivided One-third Interest in its Waneta Dam and Associated Assets Project No Enclosed is the electronic version of the Reply Submission of Teck Metals Ltd. to the Okanagan Nation Alliance December 22, 2009 Submission, as permitted by Order No. G , for filing in the above proceeding. Also enclosed is an electronic version of the Lax Kw'Alaams judgment referred to in the Reply Submission. Paper copies of the Reply Submission and the Lax Kw'Alaams judgment will be provided to the Commission by courier. Yours truly, FASKEN MARTINEAU DuMOULIN LLP Original signed by C.B. Johnson C.B. Johnson, Q.C. CBJ/vde Encl. cc: Registered Intervenors DM_VAN/ / * Fasken Martineau DuMoulin LLP is a limited liability partnership and includes law corporations.

2 BRITISH COLUMBIA UTILITIES COMMISSION IN THE MATTER OF THE UTILITIES COMMISSION ACT R.S.B.C. 1996, Chapter 473 and IN THE MATTER OF A FILING BY BRITISH COLUMBIA POWER AND HYDRO AUTHORITY REGARDING THE ACQUISITION FROM TECK METALS LTD. OF AN UNDIVIDED ONE-THIRD INTEREST IN THE WANETA DAM AND ASSOCIATED ASSETS REPLY SUBMISSIONS OF TECK METALS LTD. TO ONA REPLY SUBMISSION January 6, 2010 DM_VAN/ /

3 SUBMISSIONS OF TECK METALS LTD. A. INTRODUCTION 1. On December 22, 2009 the Okanagan Nation Alliance ( ONA ) filed submissions in reply ( ONA Reply ), in part, to the final submissions of Teck Metals Ltd. ( Teck ). By Order G dated December 30, 2009, the Commission admitted the ONA Reply and permitted Teck, among others, to file written submissions in response to the ONA Reply by January 6, These are Teck s submissions as permitted by the Order. B. REPLY SUBMISSION 2. Paragraphs 2 to 12 of the ONA Reply do not assert that a duty to consult arises because of any impact of the proposed acquisition of an undivided interest in the Waneta Assets by BC Hydro; rather the ONA assertions of a duty to consult relating to alleged lack of consultation and accommodation at the time of the original construction of the Waneta Dam in the 1950s. The position of the ONA can clearly be seen in paragraph 12 where the ONA Reply says In summary, in the present case, the duty to consult and accommodate arose at the time the Crown authorized the construction of the Waneta Dam, and in paragraph 6 where the ONA Reply says Consequently, there is no requirement for so called new adverse impacts to trigger the duty to consult and accommodate. 3. In paragraphs 2 to 12 of the ONA Reply, the ONA misconceive the decision of the Court of Appeal in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 ( CSTC ). The Court of Appeal did not conclude that a duty to consult would be triggered by an allegation of a past infringement. The Court of Appeal made it clear that it was open to the Commission to find that no duty to consult existed at all: [62] I do not say that the Commission would be bound to find a duty to consult here. The fault in the Commission s decision is in not entertaining the issue of consultation within the scope of a full hearing when the circumstances demanded an inquiry. I refer to the assumed facts, namely, that there is an infringement without consultation and on the unquestioned fact that B.C. Hydro, a Crown agent, takes advantage of the power produced by the infringement by signing the EPA. In my opinion, this is enough to clear any reasonable hurdle. As stated in Mikisew, at para. 55: DM_VAN/ /

4 - 2 - The duty to consult is, as stated in Haida Nation, triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the Crown's duty. [Emphasis added in original] Whether the EPA triggered a duty is for a hearing on the merits. The determining issue in CSTC was the Commission decision not to decide whether BC Hydro had a duty to consult; as quoted above the Court recognized that if the Commission had addressed the question of whether or not BC Hydro had a duty to consult in the circumstances the Commission could have found that there was no duty to consult. 4. In this proceeding it is clear that the Commission s approval of the Schedule of Expenditures will have absolutely no impact on any of the alleged rights and title of the ONA. 5. In reply to paragraph 15 of the ONA Reply, Teck incorporates by reference the Reply of BC Hydro dated December 23, 2009 at page 15, lines 14 to 25. In addition, in Lax Kw'Alaams Indian Band et al v. Minister of Forests & West Fraser Mills Ltd. et al, 2004 BCSC 420, the Court confirmed that successful overlapping claims precluded each competing group from being successful in proving aboriginal title: [108] I am of the opinion that the Manager was correct in concluding that competing claims do constitute an uncertainty in respect of the claim of the petitioners to aboriginal title to the area of the Cut Blocks. The Concise Oxford Dictionary of Current English includes noteworthy and important as definitions of significant. In my opinion, the competing claims to title are significant, and can only be resolved by agreement or by a trial [137] The petitioners submitted that Mr. Justice Tysoe found that the Lax Kw Alaams had a good prima facie case for aboriginal title regardless of the potential of overlapping claims. [138] Mr. Justice Tysoe s reasons said that a First Nation might have a good prima facie claim of aboriginal title in respect of some of the territory claimed by it, and not to other territory. He said that a determination whether there was exclusivity (that being a fundamental requirement for aboriginal title) should be addressed with care. He said that overlapping claims would preclude each competing group from being successful in proving original aboriginal title. [139] Mr. Justice Tysoe s ruling is at paragraph 86. He said this: I hold that each of the petitioning First Nations has established a prima facie infringement of aboriginal title or rights giving rise to a duty on the Minister to consult them prior to consenting to the change of control of Skeena. [140] Mr Justice Tysoe did not say that potentially overlapping claims are not of relevance. Notwithstanding that he did say that the presence of other aboriginal groups might not necessarily preclude a finding of exclusivity, he was DM_VAN/ /

5 - 3 - unequivocal in noting that successful overlapping claims would preclude each competing group from being successful in proving aboriginal title. [emphasis added] 6. In reply to paragraph 18 of the ONA Reply, the fact that aboriginal rights or title are claimed to an area on the boundary of a First Nation s claimed traditional territory is a relevant consideration on the strength of the claim. As Mr. Justice Vickers noted in Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 (referenced by ONA at footnote 19 of its December 17 submissions): [930] As one might expect, the struggle, if any, between different Aboriginal groups came at the margins of their territories, those areas of overlap that existed in the absence of defined and accepted boundaries. For Tsilhqot in people, the high mountains of the Cascade Range provided a natural barrier from any intrusive actions by others.[emphasis added] 7. In reply to paragraph 19 of the ONA Reply, section 35 of the Constitution Act, 1982, only recognizes and affirms rights existing in The point made by Teck in its December 17 submissions: 28. The only consistent claim to existing exercise of aboriginal rights is in relation to the sturgeon in the Columbia River below the dam. There is no evidence that any of the Sinixt, ONA, KNC or SIB regularly hunts, fish, trap or gather plants in the Waneta Dam area. The evidence filed in this hearing supports, at best, a limited claim to fish for sturgeon in the Columbia River. This means that the claim for aboriginal rights generally in the Waneta Dam area for each of the Sinixt, ONA, KNC and SIB is weak. is not answered by the ONA Reply because there is no evidence that hunting, fishing (except for sturgeon), trapping or gathering plants was an existing right exercised by the ONA near the Waneta Dam in DM_VAN/ /

6 - 4 - C. CONCLUSION 8. The ONA Reply to Teck s submissions is wrong in law and in fact and does not affect the merits of Teck s submissions. All of which is respectfully submitted. Original signed by Charles F. Willms Original signed by C.B. Johnson C. F. Willms C.B. Johnson, Q.C. Counsel for Teck Metals Ltd. January 6, 2010 DM_VAN/ /

7 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lax Kw'Alaams Indian Band et al v. Minister of Forests & West Fraser Mills Ltd. et al 2004 BCSC 420 Between: Date: Docket: L Registry: Vancouver The Lax Kw Alaams Indian Band, by Chief Councillor Gary Reece on his own behalf and on behalf of the members of the Lax Kw Alaams Indian Band and the Allied Tsimshian Tribes Association Petitioners And The Minister of Forests, and Her Majesty the Queen in right of the Province of British Columbia and West Fraser Mills Ltd. Respondents And Metlakatla First Nation and The Kitselas First Nation Intervenors Before: The Honourable Mr. Justice Shabbits Reasons for Judgment Counsel for the petitioners: Counsel for the respondents, Minister of Forests and HMTQ: Counsel for the respondent, West Fraser Mills Ltd.: G. McDade Q.C./M. Kirchner L. Mrozinski/P. Yearwood K. Clark

8 Fraser Mills Ltd. et al Page 2 Counsel for the intervenors, Metlakatla & Kitselas First Nations: Date and Place or Trial/Hearing: T.M. Rankin, Q.C. October 6-10, 15, 27 & 28, 2003 Prince Rupert & Vancouver, B.C.

9 Fraser Mills Ltd. et al Page 3 Nature of Application [1] This is an application brought pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c.241, for an order setting aside the issuance of a cutting permit, and other authorities, which authorizes West Fraser Mills Ltd. ( West Fraser ) to harvest Crown timber, including culturally modified trees, ( CMTs ), from cut blocks 35-1 and 36-6, (the Cut Blocks ), within an area of land described in a timber licence held by West Fraser, ( TL 0955 ). [2] The petitioners apply for the following orders: (a) a declaration that Her Majesty the Queen in Right of the Province of British Columbia (the Crown ) has an enforceable legal and equitable duty to consult and to seek an accommodation with the petitioners in respect of their aboriginal rights and title, prior to granting approvals to West Fraser to harvest timber within the area of TL 0955 and, in particular, the Cut Blocks; (b) a declaration that the Crown has not adequately consulted with the petitioners in respect of the logging of the Cut Blocks;

10 Fraser Mills Ltd. et al Page 4 (c) a declaration that the Crown has not adequately accommodated the petitioners in respect of the logging of the Cut Blocks; (d) a declaration that the Crown has not adequately consulted with or accommodated the petitioners in respect of the decision of December 20, 2002 to extend TL 0955; (e) a declaration that the Rationale Decision, (the Rationale ), made by the Acting District Manager of the Ministry of Forests (the Manager ), dated May 30, 2003, recommending the issuance of a cutting permit in favour of West Fraser, was wrong in law and in fact, in finding that the petitioners do not have a prima facie case of aboriginal title requiring accommodation, and in finding that their aboriginal rights would not be infringed; (f) a final order in the nature of certiorari quashing the authorizations granted by the Ministry of Forests to West Fraser in respect to the Cut Blocks.

11 Fraser Mills Ltd. et al Page 5 The Issue for Determination [3] The Rationale was made on May 30, 2003, by Lisa Hanna, ( Ms. Hanna ), as Acting District Manager, of Kalum Forest District. It related to West Fraser s application for the issuance of a cutting permit to permit it to log portions of the Cutting Blocks. The Rationale concluded with this: Final Determination Based on my review of the nature of the claims advanced and the impact of the cutting permit application on those claims, I am satisfied that in the granting of a cutting permit under the circumstances set out above, the Crown has met its duty to consult and seek workable accommodations with the three First Nations at issue. [4] Ms. Hanna s reference to the three First Nations was a reference to the petitioners and the intervenors [5] The issue for determination is whether the Crown has fulfilled a constitutional duty to the petitioners to consult with the petitioners and to accommodate their interests in respect of the decisions to extend TL 0955 and to recommend the issuance of a cutting permit in favour of West Fraser permitting it to harvest timber within the Cut Blocks.

12 Fraser Mills Ltd. et al Page 6 Conclusions [6] I am, for the reasons that follow, of the opinion that the application must be dismissed. [7] The approval of an application for authorization to harvest Crown timber routinely involves many considerations. [8] The petitioners and the intervenors claim aboriginal rights and aboriginal title to an area of land that includes the Cut Blocks. There was a constitutional duty upon the Crown to consult with them and to seek an accommodation of their interests before it authorized the harvesting of timber within the Cut Blocks. [9] When considering aboriginal claims, the Manager was required to reconcile constitutionally protected claims to aboriginal title and aboriginal rights on the one hand, with the public interest, both aboriginal and non-aboriginal, in the economic prosperity of the province, on the other. [10] The Manager concluded that the goal of West Fraser to harvest timber from the area of the Cut Blocks was a compelling and substantial objective related to the public interest. In my opinion, the evidence on this application supports that conclusion. The aboriginal claims identified in

13 Fraser Mills Ltd. et al Page 7 the evidence, including those of the petitioners, the intervenors, and others, are so extensive that the conclusion that the economic prosperity of the province will be adversely affected unless timber is harvested from Crown lands that are the subject of aboriginal claims is inescapable. West Fraser provided compelling evidence that the harvesting of timber from the Cut Blocks within TL 0955 was of importance to its milling operations and the local economy. [11] The Manager purported to balance the interests of West Fraser in harvesting timber within the Cut Blocks against the interests of the First Nations. [12] The Manager concluded that she was permitting an amount and kind of logging within the Cut Blocks that was economically feasible to West Fraser. That was a determination within the area of her expertise. In my opinion, it was not a patently unreasonable decision. [13] The Manager concluded that the Rationale accommodated the petitioners interests. That determination was not within the area of her expertise. However, in my opinion, that was a reasonable decision. [14] The Manager concluded that the Crown had fulfilled its constitutional duty to consult with the petitioners and to

14 Fraser Mills Ltd. et al Page 8 seek an accommodation of their interests. In my opinion, that conclusion was correct in law. [15] The process of consultation was extensive. In my opinion, the evidence demonstrates that the Crown consulted the petitioners in good faith with the intention of substantially addressing their concerns. The consultative process identified the nature and extent of the aboriginal claims, and the nature and extent of the proposed logging. The petitioners were heard, and their views were considered. I do not see that there was any purpose or need for further consultation. [16] The petitioners preferred that no logging take place within TL They did not consent to West Fraser s plan for logging within the Cut Blocks. However, the authorization implemented measures to accommodate the aboriginal interests. In my opinion, the evidence establishes that those measures integrated the petitioners concerns into the plan for logging to the extent reasonably possible, and reasonably protected the petitioners interests pending a final determination of the scope of the aboriginal rights and title. [17] The petitioners advanced other reasons why the Manager s decision ought to be quashed. I am of the opinion that there

15 Fraser Mills Ltd. et al Page 9 is no other reason to quash the authorizations permitting the logging. Standard of Review [18] In Halfway River First Nation v. British Columbia (Ministry of Forests) 1999 BCCA 470, Finch J.A. (as he then was) was considering a claim that under a treaty the petitioners had a traditional right to hunt on Crown land adjacent to a reserve. He wrote for the majority of the Court of Appeal this at paras 85 87: With respect, interpreting the treaty, deciding on the scope and interplay of the rights granted by it to both the petitioners and the Crown, and determining whether the petitioners rights under the treaty were infringed, are all questions of law, although the last question may be one of mixed fact and law. Even though he has a fiduciary duty, the District Manager had no special expertise in deciding any of these issues, and as I understand the legislation, he has no authority to decide questions of general law such as these. To the extent that his decisions involve legal components, in the absence of any preclusive clause, they are reviewable on the standard of correctness: see Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 at para. 63; Zurich Insurance Company v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; and University of British Columbia v. Berg, [1993] 2 S.C.R Moreover, as an agent of the Crown bound by a fiduciary duty to the petitioners arising from the treaty in issue, the District Manager could not be seen as an impartial arbitrator in resolving issues arising under that treaty. To accord his decision

16 Fraser Mills Ltd. et al Page 10 on such questions the deference afforded by the patently unreasonable standard would, in effect, allow him to be the judge in his own cause. As I consider these issues, characterized in the chambers judge s reasons as aboriginal issues, to be questions of law, the test applied to the District Manager s decision is that of correctness. Similarly, of course, the standard of correctness applies to her conclusions. In other words, the question for us is whether she erred in law. In Gitxsan First Nation v. British Columbia (Minister of Forests) 2002 BCSC 1701, Mr. Justice Tysoe discussed the standard of review applicable by the court in reviewing a ministerial decision that resulted in a prima facie infringement of aboriginal title or rights. He wrote this at paras 65 and 66: In my view, these submissions confuse the standard of review to be applied when considering a decision made by a minister and the fulfilment of a constitutional duty which must be satisfied before a minister makes a decision. This case deals with the fulfilment of the constitutional duty. The issue is whether the constitutional prerequisite to the decision was satisfied and it is not a question of applying a standard of review to the decision. In Suresh, the standard of review was being applied to the Minister s decision which was required to conform with the Constitution, and it did not involve a separate and distinct constitutional duty. In any event, even if it is a question of the standard of review to be applied to a consideration of the Minister s decision, the Court of Appeal decided in Halfway River that the issues of the nature before me are questions of law and that the test to be applied to the decision is that of

17 Fraser Mills Ltd. et al Page 11 correctness. Finch J.A. (as he then was) held at para. 86 that if the government official was afforded the deference entailed in the patently unreasonable standard of review, he would be the judge in his own cause. The circumstances of Halfway River are much closer to the present situation than the Suresh circumstances, and I consider Halfway River to be binding on me in this regard. I also note that while the applicability of a standard of review was not discussed in Taku River or Haida Nation, no deference was afforded to the government official in either of those cases. [19] The issue on this application is wider than the issue that was before Mr. Justice Tysoe in Gitxsan First Nation. The Crown s consultation with the petitioners occurred before the Manager made her decision. In fact, it was West Fraser s conclusion that it had fulfilled its obligation to consult with the petitioners that prompted it to apply for the issuance of a cutting permit. The issue in respect of consultation is whether the constitutional prerequisite of consultation was satisfied before the Manager made her decision. But it is the decision itself that addresses the Crown s obligation to accommodate the interests claimed by the petitioners. The review of whether the Crown satisfied the obligation to accommodate must involve a review of the Rationale. [20] Both the determination as to whether the Crown fulfilled its prerequisite constitutional duty of consultation and the

18 Fraser Mills Ltd. et al Page 12 review of the Rationale to determine whether the Crown fulfilled its constitutional duty to accommodate claimed interests involve the same standard of review. It is that of correctness. That is because it is a matter of law as to whether the Crown has met its constitutional duty to the petitioners to consult and to accommodate. [21] The petitioners submit that the Rationale contains errors of law and errors of fact. They submit that since the standard of review is correctness, any error within the Rationale must result in the authorization to log being quashed. In my opinion, even if the Rationale contains error, it does not necessarily follow that the authorization to log must be quashed. The Manager must be correct in her conclusion that the Crown fulfilled its constitutional duty to the petitioners to consult and to accommodate, but that conclusion may be correct even if the Rationale contains other error. [22] The petitioners submit that because the standard of correctness is of application, the standards of reasonableness and patently unreasonableness have no place within this review. In my opinion, the standards of patent unreasonableness and reasonableness are of application to some of what was decided with the Rationale.

19 Fraser Mills Ltd. et al Page 13 [23] For example, the petitioners and West Fraser made separate proposals as to the amount of timber and species of timber within the Cut Blocks that West Fraser should be authorized to harvest. The expressed concern of West Fraser was that it be authorized to harvest timber of a quantity and of a kind that made the harvesting of timber economic. [24] The Manager said that she was authorizing the cutting of timber that was feasible, in my view, for West Fraser. [25] The question as to what comprises an economic unit for the harvesting of timber is not one of law. It is a question of fact that involves estimates, uncertainties and opinion. It does not involve a legal component. That determination cannot be reviewed on a standard of correctness. [26] The Manager has special expertise in respect of the matter as to what amount of logging and what kind of logging is economically feasible. In my opinion, that determination is one in respect of which the Manager must be accorded a degree of deference. The standard of review of findings of fact within the special expertise of the manager is that of patent unreasonableness. [27] The meaning of patent unreasonableness was discussed by Mr. Justice Cory in The Attorney General of Canada v. Public

20 Fraser Mills Ltd. et al Page 14 Service Alliance of Canada, [1993] 1 S.C.R. 941, where he said this at p. 963: It is said that it is difficult to know what patently unreasonable means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary patently, an adverb, is defined as openly, evidently, clearly. Unreasonable is defined as not having the faculty of reason, irrational. Not acting in accordance with reason or good sense. Thus, based on the dictionary definition of the words patently unreasonable, it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test. [28] The petitioners were concerned that sufficient wooded areas and CMTs be preserved to satisfy traditional uses and cultural and educational purposes. The question as to what wooded areas and CMTs must be preserved to satisfy traditional uses and cultural and educational purposes is also not one of law. It does not involve a legal component. It is a question of fact that involves the assessment of direct evidence and circumstantial evidence and opinion evidence. However, it is not a matter in respect of which the Manager has special expertise. The only reason why it was the Manager who made

21 Fraser Mills Ltd. et al Page 15 the determination was because it was an application for a cutting permit that raised the issue, and the Manager had the responsibility to decide whether the cutting permit should be authorized. There is no reason to defer to the Manager s determination. In my opinion, when reviewing findings of fact outside the special expertise of the Manager, the standard of review is reasonableness, and the court may substitute its own view of reasonableness for that of the Manager. Admissibility of Further Evidence [29] In Brouwer v. British Columbia (Minister of Energy, Mines and Petroleum Resources), [2000] B.C.S.C Mr. Justice Drossos said this at paragraphs 43 to 45: The general rule regarding what contents of an affidavit are admissible in support of a petition for judicial review was set out in Broda v. Edmonton (City) (1989), 102 A.R. 255, 259 (Q.B.) where the court states: The general principle is that the record that goes before the court hearing an application for judicial review should essentially be the material that was before the Commission. Hollinrake J.A., in citing Justice Braidwood s lower court decision, adheres to this general principle. At para. 31 of Morlacci (C.A.) Braidwood J. is quoted as stating the following: My purpose is not to consider the matter anew nor to second guess the inspectors of new material. My jurisdiction is to review their

22 Fraser Mills Ltd. et al Page 16 decision on the basis of the material they had before them. However, recent jurisprudence has provided authority for the proposition that an applicant for judicial review is not necessarily confined to putting before the court that material which formed the original record before the tribunal. [30] In Westbank First Nation v. British Columbia (Labour Relations Board) (1997), B.C.J. No. 2410, Vancouver Registry No. A970705, Mr. Justice Tysoe said this at paragraph 38: With respect, I agree with the submission of the Petitioners that the Court may consider the additional evidence. An administrative tribunal either has jurisdiction or it does not. It cannot gain jurisdiction, when it has none, because it has an incomplete or inaccurate understanding of the facts relating to the issue of jurisdiction. The authorities support the proposition that facts extrinsic to the record may be put forward to demonstrate an excess of jurisdiction: see In re McEwen, [1941] S.C.R. 542 (S.C.C.) and Battaglia v. Workmen s Compensation Board (1960), 32 W.W.R. 1 (B.C.C.A.). [31] I am of the opinion that in deciding whether a constitutional duty has been fulfilled, the court can consider evidence additional to that on which the approval for the cutting permit was made. All of the parties to this application, including the intervenors, filed material for consideration that was not before Ms. Hanna. In my opinion, the further material, if otherwise admissible, must be considered.

23 Fraser Mills Ltd. et al Page 17 Procedural Issues [32] The petitioners submitted that the Manager erred by not receiving evidence by way of oral histories from their elders, and that they did not have an opportunity of responding to West Fraser s final submissions to the Manager. [33] The Manager was not making a final determination as to aboriginal rights or aboriginal title. She was making a preliminary assessment of the petitioners claims and concerns with a view to having them integrated into any plan of logging that she authorized. There had been extensive consultation with the petitioners. The Manager was aware of the petitioners concerns and claims. [34] In my opinion, the Manager was not required to conduct hearings at which viva voce evidence would be received. Her duty was to ensure that the petitioners had been afforded a full opportunity of identifying their interests and claims and of expressing their concerns. I agree with the respondents submission that it would have been inappropriate for the Manager to have made decisions relating to the admissibility of evidence and the credibility of witnesses. Those decisions should be made at trial.

24 Fraser Mills Ltd. et al Page 18 [35] On May 15, 2003, West Fraser responded to the petitioners harvesting proposal. West Fraser concluded the petitioners proposal would not be economic to West Fraser. The Manager forwarded West Fraser s response to the petitioners on May 27, She delivered the Rationale on May 30, Although the petitioners submit that they ought to have been afforded the opportunity of replying to West Fraser s response, by then the issue for the Manager had been clarified and narrowed. It was the balancing of the identified competing interests in the Cut Blocks. The Manager was well aware of what the petitioners concerns and interests were, and of their desire to limit or avoid the harvesting of timber in the Cut Blocks. There had been an extensive dialogue between the parties. The petitioners did not necessarily have to have the last word. Of overriding importance is that nothing remained to be said. The petitioners had been earlier provided with the information necessary to permit them to express their interests and concerns. The Manager made her decision at the end of the process. [36] I am of the opinion that there are no procedural issues that should result in the Manager s decision being quashed and returned to her for reconsideration.

25 Fraser Mills Ltd. et al Page 19 The Rationale [37] At the outset of the Rationale, Ms. Hanna said this: In considering this application in light of the Crown s fiduciary duty, I have taken into account a considerable body of evidence, provided by the Bands in meetings and otherwise and generated by the Crown, regarding aboriginal interests in the cutting permit areas. In addition, I have considered West Fraser s submissions as well as various proposals by my own staff and the Bands. Through this review, the Crown seeks to reconcile the existence of prima facie aboriginal interests with immediate and long term public objectives, forest industry interests, and perhaps more importantly, the vigor of the local economy. [38] Ms. Hanna then applied these tests for aboriginal rights and title: Although I lack jurisdiction to legally determine aboriginal rights and title, I must nonetheless endeavour to assess whether a First Nation has a prima facie claim to these rights. For jurisdictional and institutional reasons, this prima facie claim will not be based on an extensive analysis of the merits of the claims of a First Nation. The assessment of unproven aboriginal rights is essentially a general assessment of the claims and representations made by a First Nation, and identifying, on the face of these claims and on review of information reasonably available, whether the First Nation has at least a reasonable possibility to prove these rights at law. Although no legal determination of aboriginal rights is made (or could be made), this assessment requires an appreciation of the tests developed by the courts for the establishment of aboriginal rights and title keeping in mind that this is a highly complex and rapidly evolving area of the law. I have set out below the legal tests for the proof of aboriginal

26 Fraser Mills Ltd. et al Page 20 rights and title that I have considered in this determination. These are developed in greater detail in the Provincial Consultation Policy. 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. The time for identification of this is the time of first contact. Aboriginal rights fall along a spectrum with respect to their degree of connection with the land. Aboriginal title is simply one manifestation of a broader-based conception of aboriginal rights. At the one end, there are those aboriginal rights that are practices, customs and traditions that are integral to the distinctive aboriginal culture of the group claiming the right. However, the occupation and use of the land where the activity is taking place is not sufficient to support a claim of title to the land. In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity. At the other end, in order to establish a claim to aboriginal title, the aboriginal group asserting the claim must establish that it occupied exclusively the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title. In British Columbia, this has been found to be Exclusivity would be demonstrated by the intention and capacity to retain exclusive control. The First Nation must also demonstrate a substantial connection (although not necessarily unbroken) with the land since the time of sovereignty. The aboriginal perspective must be taken into account alongside the perspective of the common law. Even where an aboriginal right exists on a tract of land to which the aboriginal people in question do not have title, that right may well be site specific, with the result that it can be exercised only upon that specific tract of land. For example, if an aboriginal people demonstrates that hunting on

27 Fraser Mills Ltd. et al Page 21 a specific tract of land was an integral part of their distinctive culture the, even if the right exists apart from title to that tract of land, the aboriginal right to hunt is nonetheless defined as, and limited to, the right to hunt on the specific tract of land. Because aboriginal rights can vary with respect to their degree of connection with the lad, some aboriginal groups may be unable to make out a claim to title, but will nevertheless possess aboriginal rights that are recognized and affirmed by s. 35(1), including site-specific rights to engage in particular activities. An example given of when this may occur is aboriginal peoples who have varied the location of their settlements with the season and changing circumstances. [39] The petitioners submit that the Manager erred in law in concluding in order to establish aboriginal title a First Nation must demonstrate a substantial connection with the land since the time of sovereignty. They agree that the Manager otherwise correctly summarized the law. [40] Ms. Hanna arrived at the following conclusions in respect of prima facie claims: Based on the representations made by the First Nations, and my review of the historical evidence, it appears that each of the three First Nations have a good to strong prima facie claim to a traditional right to harvest cedar and berries and to hunt in the vicinity of the cut blocks. However, in terms of the rights claim, I struggle with the notion that an approval of the cutting permit would infringe on an aboriginal right, assuming such a right was proven. As I have indicated, during the April 29 th consultation meeting, I endeavoured to understand from Chief Councillor Reece and the other members of the Band the impact of harvesting on their traditional harvesting

28 Fraser Mills Ltd. et al Page 22 rights and opportunities. Clearly the harvesting of this area will not impact on their ability to harvest berries or bark or timber. Those opportunities continue to exist potentially within the cut blocks in question, and in adjacent areas. In the end, I am not convinced that approval of the cutting permit will infringe these aboriginal rights. While the harvesting of the cut block areas likely constitute an infringement of title, assuming such title was proven, I find it difficult to conclude that the evidence before me demonstrates that any of the First Nations have a strong prima facie claim of aboriginal title to the cut block areas. On the evidence before me, it is my view that significant uncertainties exist including questions in regard to exclusive use and competing claims to title; ability to exclude others (especially in light of the unique geography of the area); the status of the house system at the time of sovereignty; whether seasonal occupation of nearby village sites is sufficient to support a claim of title to the cut block lands; and the extent to which any of the First Nations have maintained a substantial connection with the areas proposed for harvesting. I realize that Mr. Justice Mazcko of the British Columbia Supreme Court noted that, [h]ere, the petitioners have shown a strong prima facie case for aboriginal title. Treaty negotiations are at stage four and the CMTs are strong evidence of occupation of the land. However, on the evidence before me, I find I cannot reach the same conclusion as Mr. Justice Mazcko for the purposes of my decision. If I am wrong, I believe that Mr. Justice Mazcko could perhaps only have been referring to a strong prima facie case for aboriginal title somewhere in the general area of the cut block, as opposed to the entire Statement of Intent area subject to treaty negotiations; or that he could have meant to suggest that all areas which contain the presence of CMTs are subject to a strong prima facie claim of title. Having said this, I am also cognizant of the fact that even proven aboriginal title is not absolute, and that in this case the Crown and West Fraser have taken significant steps to consult with three First Nations and seek workable accommodations of their interests.

29 Fraser Mills Ltd. et al Page 23 [41] The petitioners submit that the Manager erred in concluding that they did not have a strong prima facie claim of aboriginal title to the area of land that includes the Cut Blocks. [42] Ms. Hanna s determination that the Crown met its duty to consult and seek workable accommodation with the three First Nations related to these accommodations: In light of my conclusions on the prima facie claims, I have set out below what I believe to be workable offers of accommodation. These address the interests of the First Nations, on the one hand, and the objectives of the Crown and West Fraser in forestry and economic development in the public interest, both aboriginal and non-aboriginal, on the other hand. West Fraser has proposed the following as a means of addressing the interests of the Lax Kw alaams, Metlakatla and Kitselas Bands in the cut block areas: 1. Make arrangements with Millennia to make its reports and records available to any of the Three First Nations who request them, to assist in title or rights claims; 2. Conduct dendrochronological sampling on 100 of the CMTs [as required under the SAP] that will be removed by the harvesting. This will provide evidence of the time when the cultural modification took place; 3. Make the results of the dendrochronological sampling available to any of the Three First Nations who request it, and will seek to hire band members from the Three First Nations to assist in the dendrochronological sampling;

30 Fraser Mills Ltd. et al Page Except out an additional 30 per cent of CMTs above the proposal put forward by West Fraser earlier last year; 5. Encourage its a) harvesting, and, b) planting contractors to: hire qualified members of the three First Nations to perform the harvesting and planting, and will indicate in its request for tenders that the selection of the contractor may be determined in part by its preparedness to hire qualified members of the three First Nations; 6. Require its a) harvesting, and, b) planting contractors to: offer a minimum of three trainee positions to be filled by members of the three First Nations; and, 7. Upon their request, will work with the three First Nations to assist them in a commercially reasonable manner in the harvesting and sale of any timber that they may be granted by the Ministry of Forests as part of the accommodation. In addition to the offer by West Fraser Mills Ltd., the Ministry of Forests, in its consultations with the three First Nations, has offered to take the following actions for the purpose of reasonably accommodating the interest of these First Nations: 1. A deferral of forest operations in the areas outside of the proposed cut blocks, but entirely within the timber licence, until a formal interim protection measure is in place, or until an agreement-in-principle has been achieved with the Tsimshian First Nation, (whichever comes first). This amounts to a deferral of seventy-eight percent of the merchantable timber in the timber licence. This ensures that a large volume of red cedar groves and existing CMTs are preserved for the traditional uses of these First Nations, and for cultural preservation; 2. The Ministry of Forests, as part of an ongoing strategy to provide First Nations with greater

31 Fraser Mills Ltd. et al Page 25 economic involvement in the forest industry, will look favourably towards discussions with these First Nations for direct awards of tenure under Section 47.3 of the Forest Act, as well as revenue sharing; 3. As a start to the process of direct awards, the Ministry of Forests will award one thousand cubic metres of timber to each of these First Nations on the basis of cultural use permits; and, 4. The Ministry will work towards a negotiated CMT management agreement with the Lax Kw alaams for the Kalum Forest District. Further, I have carefully reviewed West Fraser s modified harvest proposal of March 27, 2003, and have decided that total area reserved should be expanded to include some areas that are consistent with the reserves proposed by the Lax Kw alaams, and also be feasible, in my view, for West Fraser. I have identified two areas that are adjacent to reserves already proposed by West Fraser on the northern portion of block 35-5 where significant CMTs can be preserved (approximately a further 60 CMTs). This will bring the additional preserved CMTs within the two cut blocks to 35 percent (noting that under the original logging plan a large quantity was already preserved in the WRP areas with the cut blocks). The changes must be made to the cutting permit before it will be issued. The Extension of the Timber Licence [43] The petitioners submit that they were neither consulted, nor were their interests accommodated, when TL 0955 was first issued. West Fraser purchased TL 0955 in It was a preexisting licence with an expiration date of December 31, There is no evidence on this application as to when it was

32 Fraser Mills Ltd. et al Page 26 that the licence was issued, nor under what circumstances. There is no evidentiary basis before me on which I could conclude that the petitioners are entitled to relief relating to the original issuance of TL [44] West Fraser submitted a revised Forest Development Plan on May 6, It related to a number of Timber Licences, including TL The Forest Development Plan was approved in respect of TL 0955 and the Cut Block areas by the Ministry of Forests on May 28, 1999 and August 22, [45] In approving the plan on May 28, 1999, the district manager noted that the Tsimshian First Nations had not responded to Ministry attempts to involve it in the consideration of the plan. [46] The Crown had attempted to involve the petitioners on a consultative process on several occasions. The Lax Kw Alaams Band Council and Mr. James Bryant, the President of the Allied Tsimshian Tribes, were warned by letter on August 28, 1997, that their non-participation in the planning approval process would not delay the process. They were invited to participate and assist in discussing the proposal and the existence of any aboriginal rights. They decided not to do so.

33 Fraser Mills Ltd. et al Page 27 [47] In Halfway River First Nation, Mr. Justice Finch wrote this at paragraphs 160 and 161 under the heading Adequate Meaningful Consultation : The Crown s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action: see R. v. Sampson (1995), 16 B.C.L.R. (3d) 226 at 251 (C.A.); R. v. Noel, [1995] 4 C.N.L.R. 78 (Y.T.T.C.) at 94-95; R. v. Jack (1995), 16 B.C.L.R. (3d) 201 at (C.A.); Eastmain Band v. Robinson (1992), 99 D.L.R. (4 th ) 16 at 27 (F.C.A.); and R. v. Nikal, supra. There is a reciprocal duty on aboriginal peoples to express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions: see Ryan et al v. Fort St. James Forest District (District Manager), [1994] B.C.J. No. 2642, (25 January, 1994) Smithers No. 7855, affirmed (1994), 40 B.C.A.C. 91. [48] The district manager concluded that the Forest Development Plan was unlikely to infringe upon aboriginal rights. [49] Even though the petitioners now submit that they were not consulted when the Forest Development Plan was approved, there was an obligation on them to identify their interests and to

34 Fraser Mills Ltd. et al Page 28 express their concerns. They chose not to participate in the process. I see no merit in their present submission that the subsequent cutting authorization ought to be quashed because of lack of consultation with them at the time of the approval of the Forest Development Plan. [50] The cutting permit was issued on April 2, It was later altered with the Rationale. [51] West Fraser submits that it was at the Forest Development Plan approval stage that aboriginal claims must be considered, and that the petitioners did not have a right to be consulted in respect of aboriginal claims, or have their interests accommodated, at the time that the cutting permit was issued. West Fraser submits that the issuance of the cutting permit was a purely administrative act that related to issues other than aboriginal claims. [52] However, it was not until February of 2002 that an archaeological impact assessment report revealed the existence of the CMTs within the Cut Blocks. It was the discovery of the existence of the CMTs that resulted in the petitioners becoming involved. They were unaware that the CMTs were there. The planning approval process had not involved a consideration of the CMTs.

35 Fraser Mills Ltd. et al Page 29 [53] On April 30, 2002, a site alteration permit authorizing West Fraser to log CMTs was issued under the Heritage Conservation Approval Act. [54] The petitioners sought a declaration that the site alteration permit be set aside because it was issued without consultation with them and because it was issued without accommodation of their interests. [55] Mr. Justice Maczko dismissed that petition in Lax Kw Alaams Indian Band v. British Columbia (Minister of Sustainable Resource Management) 2002 BCSC He concluded that he could not determine whether the Crown had made adequate accommodation with respect to the cutting permit that had been issued on April 2, He held that the petitioners are not entitled to require that a particular ministry or person must carry out the accommodation. He held that if an infringement of aboriginal rights occurs that it would be as a result of the issuance of the cutting permit. He held that the site alteration permit was a refusal to protect, and not a permit to cut. He made no determination as to whether accommodation was required only at the planning approval stage, which was when the Forest Development Plan was considered and approved, or whether it was also required at the time of the issuance of the cutting permit.