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Court and Tribunal Decisions - Canada
Court of Appeal for British Columbia (Southin, Hall, Lowry JJ)
7 March 2005
2005 BCCA 128; (2005) ACWSJ 3900, 137 ACWS (3d) 664
Aboriginal rights and title — sale of land — duty to consult and accommodate Aboriginal peoples claiming interest in land — duty of third parties
The Musqueam Indian Band (‘Musqueam’) claimed that the University of British Columbia Golf Course (‘golf course’) was one of the few remaining parcels of Crown land located in their traditional territory that could be available for treaty settlement processes.
The Musqueam argued that a decision by Land and Water British Columbia (‘LWBC’) and the Minister of Sustainable Resource Management to sell the golf course to the University of British Columbia (‘UBC’) had been made without good faith consultation or accommodation regarding the Musqueam’s asserted Aboriginal rights and title.
The Musqueam sought various orders in the Supreme Court of British Columbia, including that the decisions of LWBC and the Minister regarding the sale of the golf course and an Order-in-Council of the Lieutenant Governor in Council (‘Order-in-Council’) authorising the sale be quashed. The Musqueam also sought orders effectively prohibiting LWBC and the Minister from proceeding with the sale until there had been good faith consultation and workable accommodation.
The Supreme Court of British Columbia refused to make the orders sought, and the Musqueam appealed the decision.
1. UBC has no role to play in the process of consultation or accommodation between the Crown and the Appellant. The UBC did not, therefore, owe any duties of consultation and accommodation to the Appellant: [78], [101], Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 applied (per Hall J, Lowry J concurring).
2. Where the Crown has conceded a prima facie case for Aboriginal title, potential infringement of the duty to consult will have significant consequences, and sale of property to a third party is likely to prevent future proof of connection to the land, the affected group is entitled to a meaningful consultation process in order that avenues of accommodation can be explored. In this case, LWBC owed a duty of consultation to the Musqueam which tended to the more expansive end of the spectrum: [93], [94]. Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 applied (per Hall J, Lowry J agreeing).
3. In this case, the Crown’s consultation process was flawed, even providing for an appropriate measure of deference to government efforts to consult. The consultation was left until a too advanced stage in the proposed sale transaction, when the sale was virtually concluded. While there is no obligation on parties to agree after due consultation, a decent regard must be had for transparent and informed discussion. Legitimate time constraints may exist in some cases, but such urgency was not readily apparent in the present case: [95], [96], [98], [103]. Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 followed (per Hall J, Lowry J agreeing).
4. The operation of the Order-in-Council should be suspended for two years to afford LWBC and the Appellant proper opportunity for consultation with a view to reaching some modus vivendi on appropriate accommodation. At the expiration of such period, any party to the negotiations should be at liberty to bring proceedings in the Supreme Court of British Columbia. If no agreement is reached, it is clearly possible that some order could be made affecting title to the lands and UBC could be called upon to honour its undertaking to hold the lands subject to future directions of a court of competent jurisdiction: [101], [102], [103] (per Hall J, Lowry J agreeing).
5. Having regard to the nature and location of the lands in question, this case may involve a situation where financial compensation could be found to be an appropriate measure of accommodation. An interim accommodation measure may be to make arrangements involving land being set aside to be dealt with in a treaty process. However, the negotiation of possible accommodation measures should be left to the parties, who should not be limited from engaging in the broadest consideration of appropriate arrangements: [98]–[100] (per Hall J).
6. The disposition of the appeal does not require any comment be made regarding appropriate forms of interim accommodation. These questions are best left entirely to the parties unfettered by judicial commentary: [104]–[105] (per Lowry J).
7. In this case, it is not necessary to answer the question of whether there was adequate consultation. There has been a failure to accommodate: [24] (per Southin J).
8. In the absence of any pressing countervailing public necessity for the disposition, the honour of the Crown requires that the powers of sale in the Order-in-Council not be exercised to dispose of lands claimed by an Aboriginal band when, if the power is exercised, there may be little, if any, public land left available to be granted to the Aboriginal band as part of a treaty settlement. The evidence does not establish any pressing present need for the University to obtain title to the Golf Course lands: [66]–[70] (per Southin J).
9. The University should be ordered, if the lands have been conveyed to it and the purchase price paid, to re-convey the lands to the Crown and repay the purchase price. While treaty negotiations are pending, the Minister should be restrained, until further order, from exercising the powers conferred upon him by the Order-in-Council. If some pressing public necessity does arise, the Minister may apply to vary or discharge the injunction. The Musqueam do not possess a veto: [71]–[72] (per Southin J).
1. The issue in this appeal is whether Her Majesty the Queen in right of British Columbia, represented here by the respondents other than the respondent, University of British Columbia, by agreeing to convey certain lands adjacent to but not within the City of Vancouver, known as the University Golf Course, to the University, has breached the duty to consult and accommodate the appellant, and, if so, what remedy should be given for that breach.
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66. With some hesitation I pose the issue here thus: Does the honour of the Crown require that the powers of sale exercised in the impugned Order-in-Council not be exercised to dispose of lands claimed by an aboriginal band when, if the power is exercised, there may be little, if any, public land left available to be granted to the aboriginal band as part of a treaty settlement? To put it another way, is it a breach of the duty to ‘accommodate’ to do what the Crown proposes to do in this case?
67 My answer to that question is ‘yes’ in the absence of any pressing countervailing public necessity for the disposition in issue.
68. That the University of British Columbia, of whose convocation I am a member, is generally accepted to be an institution of great public importance, I accept. But I do not accept that the evidence establishes any pressing present need for the University to obtain title to these lands. The lands are leased to a third party until 2015. Thus, the University cannot develop those lands now, for instance, by constructing a new library. If the purpose of the disposition is to enable the University to make use of the revenue due by the present lessee to the lessor, the Government of British Columbia can easily enough pay that revenue to the University. Thus, this case bears no resemblance on its facts to the Taku [Taku River Tlingit First Nation v British Columbia (Project Assessment Director) 2004 SCC 84] case in which a private business had invested years of time and millions of dollars in seeking to develop a mine. It is well known that such developments not only bring employment to many, but also put revenue into the provincial coffers.
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70. For these reasons, I would allow the appeal.
71. The appellant being entitled to a remedy, the question is, how should it be framed? My tentative view (and had I not been differing from my colleagues I should have wished further argument on the proper remedy) is that the University should be ordered, if the lands have been conveyed to it, to re-convey the lands to the Crown and if the purchase price has been paid, the purchase price should be repaid, and the Minister should be restrained during the pendency of treaty negotiations or until further order from exercising the powers conferred upon him by Order-in-Council No. 0131/03.
72. By saying ‘or further order’, I have in mind that if some pressing public necessity does arise, the Minister may apply to vary or discharge the injunction, which I decline to describe either as interlocutory or permanent. By making this order, I am not giving the appellant a veto, something which by its nature would prevent, absent the consent of the appellant, any development, no matter what the public necessity might be.
73. I also have in mind that if either the appellant or the Crown were to announce that under no circumstances will it negotiate for a treaty, the appellant will be forced to commence an action to establish its aboriginal title, whatever that may be. It will then have the right in common with everyone who claims title to lands to apply for an interlocutory injunction in aid of the pending action. If that should happen, then there would be the irony that the appellant is right back to 1987 when the issue of Musqueam title first arose in the Supreme Court of British Columbia.
74. As I have said, I would allow the appeal. Costs to the appellant against the Minister of Sustainable Resource Management only.
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78. At the time this appeal was argued in September 2004, the Supreme Court of Canada had not yet released its decisions in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida] and Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 [Taku], both of which were subsequently delivered on 18 November 2004. Following the release of these decisions, counsel for the appellant, respondents and intervener made further submissions to this Court. It seems clear that as a result of the decision of the Supreme Court of Canada in Haida, it cannot be successfully asserted by the appellant that the respondent UBC owed it any duties of consultation and accommodation, although the extent of the Province’s duty to consult with and accommodate the interests of the appellant remains a contested issue.
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81. Aside from considerations relating to the treaty process, it seems to me that what is at issue here is a question of aboriginal title to these lands. Although in its petition, the appellant claimed both aboriginal right and title, in effect the Musqueam are here claiming a right relating to the land itself and not merely a right to practice customary uses of the land.
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89. In the court below, LWBC conceded that the appellant had established a prima facie case for aboriginal title to the lands in question. Because of the existence of that prima facie case, there was no issue in the court below regarding whether the Province had a duty to consult with the appellant and seek to reach some accommodation of the appellant’s interest. The learned chambers judge found that the Province had failed in its duty to consult and seek accommodation prior to entering into the agreement of purchase and sale with UBC, and indeed, in its factum, the Crown does not take issue with the finding that it failed to consult prior to entering the sale negotiation, although the Crown notes that the decision of this Court that recognized such a duty, Haida Nation v British Columbia (Minister of Forests), (2002), 99 BCLR (3d) 209, 2002 BCCA 147, was decided late in the sale process.
90. Ultimately, the chambers judge went on to find that after the appellant commenced the petition proceedings, consultations did occur in a bona fide manner. In his reasons, the chambers judge wrote that between April 2003 and the time of the hearing in chambers, LWBC and the Musqueam had discussions further to those they had had prior to the filing of the petition. On 25 August 2003, LWBC tabled a proposal that provided, inter alia, for the sale to the land to UBC; for Musqueam to receive $550 000; for Musqueam to receive five per cent of any revenue received by LWBC for any modification of the covenant that required the land be used as a golf course; and for one truckload of timber per year for two years for use as longhouse firewood. Musqueam’s counter-proposal of 22 September 2003 provided that the Musqueam would buy the golf course for $10 million, which it would pay on the earlier of ten years or the conclusion of the treaty; Musqueam would agree to maintain the covenant restricting the use of the land to a golf course for a long-term period; Musqueam would receive a logging truckload of timber for longhouse firewood; and LWBC would assist Musqueam access a forest tenure licence. LWBC’s counter-proposal of 30 October 2003 again had as its core the sale of the Golf Course Land to UBC but, inter alia, slightly increased the amount of wood available to Musqueam.
91. The judge held that at the stage at which matters stood relating to the claim of aboriginal title, the duty of consultation and accommodation would amount to a duty to formulate a ‘practical interim compromise’. He found that an offer of economic compensation, which was the core of the LWBC offer, met the duty imposed upon the agents of the Province and, accordingly, he dismissed the petition. In my view, if the chambers judge had had the benefit of the judgments in the cases of Haida and Taku, he would not have reached the conclusion he did.
92. We now have the benefit of these judgments of the Supreme Court of Canada. I have found helpful the analysis set forth in these cases. What I take from these judgments is the principle that the duty of government to consult and in appropriate cases to accommodate ‘is part of a process of fair dealing and reconciliation’ with an affected First Nation where aboriginal rights or title are in play. The honour of the Crown mandates such an approach. There is a legal duty cast on government to consult prior to an aboriginal group proving its claim, which duty is conditioned and informed by the nature and strength of any claims of the First Nation advancing such claims. ...
94. In my view, the duty owed to the Musqueam by LWBC in this case tended to the more expansive end of the spectrum. The Crown conceded the Musqueam had a prima facie case for title over the Golf Course Land, and the report of the archaeological firm noted that the Musqueam had the strongest case of the bands in the area. Potential infringement is of significance to the Musqueam in light of their concerns about their land base. If the land is sold to a third party, there will likely be no opportunity for the Musqueam to prove their connection to this land again. The Musqueam were therefore entitled to a meaningful consultation process in order that avenues of accommodation could be explored.
95. In light of my view of the consultation required in this situation, I consider that the consultation process was flawed. If this was only a case where notice was required, the consultation may have been sufficient. However, in the present case, I consider the consultation was left until a too advanced stage in the proposed sale transaction. As McLachlin CJ observed in Haida, there is ultimately no obligation on parties to agree after due consultation but in my view a decent regard must be had for transparent and informed discussion. Of course, legitimate time constraints may exist in some cases where the luxury of stately progress towards a business decision does not exist, but such urgency was not readily apparent in the present case. These lands have been used as a public golf course for a long time, and the status quo is not about to change having regard to the extant lease arrangements. The Musqueam should have had the benefit of an earlier consultation process as opposed to a series of counter-offers following the decision by LWBC to proceed with the sale.
96. I note that McLachlin CJ suggested there should be some measure of deference when a court considers the adequacy of the government’s efforts to consult with an aboriginal group, and that administrative law principles suggest a standard of reasonableness would be used by the court when the question is not a purely legal question. She also observed that what is required is not perfection, but reasonableness in any consultation process followed by the Crown. However, even providing an appropriate measure of deference, for the reasons set out above, the Province in my view did not adequately consult with the Musqueam regarding the sale of the Golf Course Land.
97. McLachlin CJ also elaborated in Haida on the accommodation that may be required if the consultation process suggests Crown policy should be amended. The core of accommodation is the balancing of interests and the reaching of a compromise until such time as claimed rights to property are finally resolved. In relatively undeveloped areas of the province, I should think accommodation might take a multiplicity of forms such as a sharing of mineral or timber resources. One could also envisage employment agreements or land transfers and the like. This is a developing area of the law and it is too early to be at all categorical about the ambit of appropriate accommodative solutions that have to work not only for First Nations people but for all of the populace having a broad regard to the public interest.
98. I should think there is a fair probability that some species of economic compensation would be likely found to be appropriate for a claim involving infringement of aboriginal title relating to land of the type of this long-established public golf course located in the built up area of a large metropolis. However, with that said, it is only fair that the consultation process seeking to find proper accommodation should be open, transparent and timely. As I have said, that could not be said to have occurred here because the consultation came too late and was to a degree time constrained because the sale was virtually concluded before any real consultation occurred.
99. The appellant argues that the Province, presumably through LWBC, should have been required to seek to accommodate the appellant by developing land protection measures so that a bank of land could be made available for treaty purposes. I am not at present persuaded that the courts ought to become involved in such considerations. The treaty process, a process involving not only the Province but as well the federal government, appears to me to be an area discrete from litigation involving questions of aboriginal rights and title. I note that in Taku, the Supreme Court of Canada found that appropriate consultation and accommodation had occurred notwithstanding the position of the First Nation that any accommodation ought to be part of a treaty or a land claim agreement. I would not foreclose the possibility that some arrangements could be made relating to land being set aside to be dealt with in a treaty process as an interim accommodative measure in a controversy like the instant one, but I consider that any such arrangement should be left to a negotiating process between the consulting parties. The courts, required now to attempt to enunciate principles and pass judgment on disputes concerning aboriginal rights and title have sufficient to do without injecting themselves into treaty processes and negotiations.
100. While I have observed that having regard to the nature and location of these lands, this may well be a situation where financial compensation could be found to be an appropriate measure of accommodation, I would not wish to limit the parties from engaging in the broadest consideration of appropriate arrangements. I would note that this is not the only tract of land in the Lower Mainland that is Provincial property or property over which the Province has a measure of dominion. Having regard to the wish of the appellant to obtain in the future an enhanced land base and as well its desire to pursue a land settlement related to the treaty process it is engaged in, the parties should be afforded a wide field for consideration of appropriate accommodative solutions. To remedy what I view as the general deficiency in the original consultation process and to provide a full opportunity for meaningful discussion between the parties, I believe an order should be made that will be as efficacious as presently possible. As I noted, we are dealing here with an area of law, aboriginal title, which Lamer CJ referred to as not particularly developed. Courts will seek to fashion fair and appropriate remedies for individual cases conscious that as yet we do not have much guidance by way of precedent but, as in other fields, the common law will simply have to develop to meet new circumstances.
101. In order to afford LWBC and the appellant proper opportunity for consultation with a view to reaching some modus vivendi on appropriate accommodation, I would order the suspension of the operation of the Order in Council authorizing the sale for two years. That time frame should provide ample opportunity for the parties to seek to reach some agreement. I would direct that at the expiration of such period any party to the negotiations should be at liberty to bring on appropriate proceedings in the Supreme Court of British Columbia to address any issues that may be felt to require decision by the court. Based on what was said by the Supreme Court of Canada in Haida, UBC has no role to play in the process of consultation or accommodation between the Province and the appellant. I would therefore allow the appeal of the appellant concerning the respondent representatives of the Province of British Columbia in the terms I have indicated and I would dismiss the appeal of the appellant concerning the respondent UBC. I am in agreement with the disposition of costs proposed by Madam Justice Southin.
102. Before closing I should perhaps observe, out of an abundance of caution, that UBC has previously agreed to hold the lands subject to future directions of a court of competent jurisdiction. If agreement eludes the negotiating parties, it is clearly possible that some order could be made affecting title to the lands and UBC could be called upon to honour its undertaking. Of course, because these lands are under a long term lease to a golf course operator, I would not expect any alteration in the status quo over the near term.
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103. I have had the opportunity of reading in draft the judgments of Madam Justice Southin and Mr. Justice Hall. I agree that the appeal of the order dismissing the petition against the Crown (but not University of British Columbia) should be allowed for the reasons given by Mr. Justice Hall. Shortly put, I agree that the consultation on which the parties ultimately embarked was not conducted sufficiently free of unnecessary time constraints to afford a meaningful process of accommodation consistent with what the honour of the Crown requires in the Crown’s dealings with First Nations people as most recently mandated by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73. I also agree with the form of order Mr. Justice Hall proposes for the disposition of the appeal.
104. However, I do not wish to be taken to endorse what my colleague suggests may be appropriate forms of interim accommodation in this case. The disposition of the appeal does not require that any comment be made in that regard and, in my respectful view, what my colleague says in paragraphs 98–100 of his judgment might better be put to one side for now.
105. There is little in the decided cases from which assistance can be drawn with respect to the measure of interim accommodation that may be required in the circumstances that prevail in this case. Where, as here, no aboriginal title has been finally established, there my well be questions about whether and to what extent economic compensation or other forms of what might be said to be non-reversible accommodation are necessary or appropriate. Given the disposition of the appeal, I consider these and other related questions that were not directly addressed in argument before us are now best left entirely to the parties unfettered by judicial commentary.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/26.html