Cowichan Tribes v. Canada (Attorney General)

2020 BCSC 1498 Cowichan Tribes v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 1498 Date: 20201007 Docket: 14-1027 Registry: Victoria Between: Cowichan Tribes Squtxulenuhw, also known as William C. Seymour Sr., Stz'uminus First Nation, Thỏlmen, also known as John Elliott, Penelakut Tribe, Suliisuluq, also known as Earl Jack, Halalt First Nation, and Sulsimutstun, also known as James Thomas, on their own behalf and on behalf of all other descendants of the Cowichan Nation Plaintiffs And: The Attorney General of Canada, Her Majesty the Queen in right of the Province of British Columbia, the City of Richmond, the Vancouver Fraser Port Authority, the Musqueam Indian Band and the Tsawwassen First Nation Defendants Before: The Honourable Madam Justice Young Ruling on Plaintiffs' Application for Production of Documents from Canada Counsel for the Plaintiffs: M. D. Boulton and M. A. Berlin Counsel for the Defendant the Attorney General of Canada: L.M.G. Nevens and B. C. Marleau Counsel for the Defendant the Musqueam Indian Band: M. L. Macaulay, A.M.J. Wilson and T. A. Arsenault Place and Dates of Trial/Hearing: Victoria, B.C. September 15 and 16, 2020 Place and Date of Judgment: Victoria, B.C. October 7, 2020 [1] In this Aboriginal title and rights case, after over 130 days of trial, the plaintiffs have brought an application to require the Attorney General

of Canada ("Canada") to produce internal notes and memoranda from the Department of Fisheries and Oceans Canada ("DFO"). The plaintiffs plead that the Cowichan Nation has a site‑specific Aboriginal right to fish the south arm of the Fraser River ("South Arm") for food purposes. The plaintiffs submit that the disclosure sought is material to their infringement claim, Canada's justification defence and the defences of the other defendants. [2] On May 8, 2020, the plaintiffs made a demand for documents pursuant to Rule 7-1(10) and (11) of the Supreme Court Civil Rules, B.C. Regulation 168/2009 (the "Rules") for the following classes of documents (whether handwritten or typed) for the period of 2006 to present: a) Notes from meetings (or calls) between DFO, Musqueam Indian Band ("MIB"), Tsawwassen First Nation ("TFN") and/or any other First Nations where the plaintiffs' requests to fish the South Arm, the plaintiffs' South Arm fishing plans, and/or the plaintiffs' fishing activities in the South Arm are discussed; b) Notes from meetings (or calls) between DFO, MIB and/or TFN where any of the alleged threats, protests and incidents involving MIB, TFN, and/or the plaintiff fishers are discussed; c) Internal notes from DFO meetings (or calls) where the plaintiffs' requests to fish the South Arm, the plaintiffs' South Arm fishing plans, and/or the plaintiffs' fishing activities in the

South Arm are discussed; and d) Internal notes from DFO meetings (or calls) where any of the alleged threats, protests and incidents involving MIB, TFN, and/or the plaintiff fishers are discussed. (collectively, the "Demanded Notes") [3] The plaintiffs apply for an order under Rule 7-1(14) that Canada list and produce the Demanded Notes. Canada and MIB object to producing the Demanded Notes on the basis of relevance and proportionality. Position of the Plaintiffs [4] The plaintiffs make several arguments in support of their application for disclosure of the Demanded Notes. [5] The plaintiffs submit that the Demanded Notes are material and relevant. They say that Canada has already produced similar documents and Canada has requested that the plaintiffs produce directly analogous documents. While it is not possible for the plaintiffs to say how they will use the Demanded Notes prior to reading them, the plaintiffs submit that the Demanded Notes could be used to prove or disprove a material fact in this litigation. The plaintiffs say that they need only demonstrate an "air of reality" between the Demanded Notes and the issues in this action. [6] Specifically, the plaintiffs submit that the Demanded Notes will show that: a) in practice, DFO had and has no policies or processes in place (or has failed or refused to implement policies and processes) for meaningfully consulting and

accommodating the plaintiffs' right to fish the South Arm and their South Arm fishing requests, plans and activities; b) there is no rational connection between DFO's infringement of the plaintiffs' right to fish the South Arm and the alleged compelling and substantial legislative objectives Canada relies on in its pleadings; and c) the infringement of the plaintiffs' right to fish the South Arm has unjustifiably occurred in furtherance of DFO's objectives of appeasing MIB and TFN and maintaining the unconstitutional status quo in the South Arm by whatever means are most convenient to DFO in the circumstances. [7] The plaintiffs submit that the Demanded Notes would be used to prove DFO's knowledge of the plaintiffs' request to fish the South Arm for food, as well as a long list of other facts, mostly related to DFO's knowledge of the plaintiffs' requests and asserted rights. [8] The Lands and Governance Director for Cowichan Tribes, Mr. Larry George, testified that he was advised repeatedly over the years from 2006 to 2019 that low‑level DFO employees lacked the authority to grant approvals. Through the Demanded Notes, the plaintiffs seek to explore whether those employees passed on their requests to decision-makers. [9] One of the alleged facts the plaintiffs seek to establish is that DFO had a long-standing policy requiring the plaintiffs to obtain the permission of MIB

and/or TFN to fish in and around the Fraser River. This policy is described in a memorandum dated September 13, 1990 from DFO that Canada has already produced. [10] The plaintiffs allege that MIB and/or TFN have threatened to protest the plaintiffs' South Arm fisheries. The plaintiffs say that DFO had knowledge of that and relied on those threats in determining that the plaintiffs must enter into a protocol with MIB and TFN. Canada produced meeting notes of discussions between representatives of MIB and DFO about the protests dated August 10, 2012. The plaintiffs say that these notes fall within the category of documents that they are seeking on this application, and that in producing the notes Canada has acknowledged the relevance of the additional documents the plaintiffs seek. [11] The plaintiffs say that the knowledge of the Crown is relevant to Canada's justification defence, relying on the Supreme Court of Canada decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida]. In Haida, the Court held that the government's duty to consult and accommodate is grounded in the principle of the honour of the Crown. The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge of the potential existence of the Aboriginal right and contemplates conduct that might adversely affect

it. The scope of the duty is proportionate to a preliminary assessment of the strength of the claim and to the seriousness of the potentially adverse effect upon the right claimed. The Crown has a duty to engage in a meaningful process of good faith consultation. [12] The plaintiffs submit that consultation begins with the strength of claim analysis which determines the scope of the Crown's duty to consult. The plaintiffs say that what DFO knew about the plaintiffs' historic use claims is relevant to determining the scope of consultation that Canada was required to undertake, and that this analysis is necessary to determine whether any infringement of the plaintiffs' right was justified. [13] In responding to a submission by Canada, the plaintiffs say that it is not true that only decision letters are relevant, and emphasize the importance of DFO's knowledge. The plaintiffs submit that if DFO staff have knowledge of the plaintiffs' claims and requests, and DFO ignores them, that is evidence of infringement, and also goes to the issue of whether infringement was justified. [14] Further, the plaintiffs accuse Canada of misrepresenting its intentions when it promised the plaintiffs that it would assess their strength of claim submission and then failed to do so. The plaintiffs say this conduct is not consistent with the honour of the Crown. The plaintiffs say the Demanded Notes

will show the extent of the misrepresentation. [15] Finally, the plaintiffs submit that their demand for documents is proportionate relative to the cost and the importance of the Demanded Notes for the litigation. Position of Canada [16] Canada says the Demanded Notes are irrelevant to whether the plaintiffs can establish an Aboriginal right to fish. Canada submits that the legal tests for infringement and justification do not require an analysis of internal meeting notes and calls, or notes of meetings and calls with non-plaintiff First Nations. Objective evidence is required to examine government's actions, decisions and their effects. Canada submits that the extensive request for internal notes and memoranda over a period of 14 years is disproportionate to any value they may have. [17] Canada submits that expanding the scope of relevance this far would turn the trial into an unwieldy commission of inquiry into 14 years of internal DFO discussions. This would not assist the Court in determining the issues at trial and would ultimately be detrimental to all parties in the form of wasted time and cost. [18] Canada relies on the decision in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494 [Ahousaht 2009]. In that case, Justice Garson discussed the framework for analyzing an Aboriginal rights claim and found that the justification analysis focuses on

the steps taken by Canada, both legislative and operational, that it says justify the infringement. Canada emphasizes the word "steps" and submits that the focus should be on the actions of the Crown and not the knowledge of the Crown. Relying on R. v. Gladstone, [1996] S.C.R. 723 [Gladstone] Justice Garson found that it was not necessary to examine each component of Canada's regulatory regime individually to determine whether it infringes the plaintiff's Aboriginal right. She found that the components of the regime operate in a comprehensive and integrated manner, and that it is the overall impact on the plaintiff's right that is important: Ahousaht 2009 at para. 762. [19] Canada also relies on Ahousaht Indian Band and Nation v. Canada (Attorney General), 2015 BCSC 2313 [Ahousaht 2015]. In that case, Justice Humphries considered whether DFO had waived solicitor-client privilege over redacted information in a Ministerial briefing note about a long-term offer that DFO made to the plaintiffs. Both parties relied on Gladstone regarding the principles that are relevant to the justification stage of an Aboriginal rights trial. The plaintiffs argued that there is a subjective element to the Gladstone analysis that requires an inquiry into what the Minister considered in arriving at allocation, including what the Minister was told about the nature of the plaintiffs' rights, whether

the Minister correctly interpreted that right, the factors she considered and how she considered them. The plaintiffs said they were entitled to the legal advice the Minister considered in order to understand how the Minister arrived at the allocation in the long-term offer. By contrast, Canada argued that there was no subjective element at play. The Court need not concern itself with the internal analysis that the Minister engaged in. Gladstone emphasizes that the important issue is what the government actually did, including the process it followed, its actions and the ultimate allocation: Ahousaht 2015, para. 46. [20] Justice Humphries was unable to see how the Minister's state of mind when signing the briefing note was relevant in the context of the application. She agreed that Gladstone emphasizes government actions and not internal thought processes. Justice Humphries was not persuaded that the workings of the Minister's mind mattered given that the parameters of the decision were set out and analyzed in the briefing note. At para. 68, she wrote, "If the plaintiffs' view is that they must understand the Minister's reasoning process in deciding to approve the detailed proposal set out in the briefing note, I agree with Canada that process, actions, and decisions are the key under Gladstone." On this application, Canada submits that the same principles apply, and that it is

DFO's decisions and the implications of those decisions that are at issue. [21] Canada also relies on the decision in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2018 BCSC 633 [Ahousaht 2018]. In that case, when discussing priority, Canada submitted that the plaintiffs improperly imported a subjective element into the decision in arguing that the knowledge of DFO personnel, specifically the Minister, should guide the analysis of whether infringement was justified. Canada argued that the issue was not what the Minister knew and understood, but rather that the test is objective. The Court should consider the actions and outcome, and the test is reasonableness, not whether there was some other course of action that might impair the right less: Ahousaht 2018 at para. 826. [22] Justice Humphries accepted Canada's position on the issue of the necessity to apply an objective test to a consideration of decisions made by government: Ahousaht 2018 at para.

833. She found that the Court must look at the actual process and allocations when deciding whether government has appropriately taken into account the existence and importance of the Aboriginal right. It is not useful to consider what the Court may or may not know about the inner workings of the Minister's mind. It is government's actions that must ultimately be considered, not what individuals knew or thought. [23] Canada submits that it has already produced internal DFO records of relevant decisions, including briefing notes, memoranda and decisions set out in emails and letters. Canada says it has also produced agendas and meeting minutes from meetings involving DFO and the plaintiffs and meetings involving DFO and non‑plaintiff First Nations. Canada says that DFO has produced its policies, Aboriginal food fishing licenses issued to the plaintiffs, MIB and TFN for the South Arm of the Fraser River, as well as allocation information. Extensive correspondence between DFO and the plaintiffs has been disclosed. [24] Canada submits that the plaintiffs have cast the relevance net too broadly, and that producing the Demanded Notes would require an extensive review or re‑review of thousands of notes, hard drives and emails. [25] Canada relies on Addison v. Whitefox Technologies Ltd., 2014 BCSC 633 [Addison] where Master Muir held that the applicant must demonstrate a connection between the documents sought and the issues beyond a "mere possibility", citing Przybysz v Crowe, 2011 BCSC 731 [Przybysz] at para.

45. She noted that no evidence tied the documents sought to the issues in the action. [26] Canada submits that the plaintiffs are seeking disclosure of documents related to a dispute between the plaintiffs and MIB over fishing in the South Arm of the Fraser River, and yet there is no pleading that raises this dispute. [27] Counsel for the plaintiffs asserts that the infringement of the plaintiffs' food fishing right has unjustifiably occurred in furtherance of DFO's objectives of appeasing MIB and TFN and maintaining the unconstitutional status quo in the South Arm by whatever means are most convenient to DFO in the circumstances. Canada says that this is a theory raised by plaintiffs' counsel that lacks a foundation in the pleadings. Canada says that the plaintiffs have gone beyond arguing that Canada not met the burden of establishing justification, and are instead putting forward an alternative theory as to the objectives of DFO decision-makers. Canada says that this raises an issue of trial fairness as Canada no longer knows the case to be met. [28] Canada strongly objects to the serious allegations made by counsel for the plaintiffs that DFO was lying to the plaintiffs and not readily producing documents that are relevant and helpful to the plaintiffs' case. Position of MIB [29] MIB challenges the relevance of the Demanded Notes. MIB submits that the plaintiffs have not

pleaded threats, protests and incidents involving MIB and the plaintiff fishers. The relevance of evidence is tested by reference to what is in issue. The notice of civil claim, which in this case has undergone significant amendments, defines what is in issue. [30] MIB submits that despite four amendments to the notice of civil claim, and one amendment to the reply to responses to civil claim, the plaintiffs have not pleaded that DFO's alleged infringement occurred as a result of the theory that the plaintiffs now seek to advance, namely in furtherance of DFO's objective of appeasing MIB and TFN and maintaining the unconstitutional status quo in the South Arm by whatever means are most convenient to DFO in the circumstances. [31] MIB says that even if alleged threats, protests or incidents are of some marginal relevance, the plaintiffs should have applied for production of the Demanded Notes before Larry George gave his evidence, as Mr. George testified at length on these matters. To produce the Demanded Notes now would unfairly deny MIB the ability to cross-examine Mr. George on these documents. Analysis [32] The plaintiffs' application for disclosure is brought under Rule 7-1(1), (10) and (11) of the Supreme Court Civil Rules. The Rules must be interpreted in accordance with their objective, which is to secure the just, speedy and inexpensive determination of every proceeding

on its merits: Rule 1-3(1) and (2); Przybysz at para. 23. [33] The burden is on the applicant to satisfy the Court that the Demanded Notes relate to any or all matters in question in the action. A matter in question in the action must be tied to the pleadings. The applicant must demonstrate a connection between the Demanded Notes and the issues beyond mere speculation or mere possibility: Przybysz at para. 45; Addison at para.

28. There needs to be evidence to tie the documents sought to the issues in the action. [34] Below, I will address the plaintiffs' argument as to how the Demanded Notes are relevant to issues in the proceedings. Broadly speaking, the plaintiffs' relevance argument falls into three categories: knowledge and objectives of the Crown; lack of response to the plaintiffs' strength of claim submission; and competing claims of other First Nations. I will then address issues of proportionality. Relevance Knowledge and Objectives of the Crown [35] I adopt the rulings of Humphries J. in both Ahousaht 2015 and Ahousaht 2018 that at the justification stage, the Court should apply an objective test when considering the reasonableness of government's actions and decisions. A subjective analysis of the inner workings of the Minister's mind or DFO employees' minds is of little probative value. The focus should be on the process that government followed, and its actions and decisions, rather than on what individuals knew or thought. [36] The plaintiffs submit that the Demanded Notes will show there is no rational connection between DFO's infringement of the food fishing rights and the alleged compelling and substantial legislative objectives Canada relies on its pleadings. I am not certain why the Demanded Notes are necessary to prove this point. Again, the process and decisions of DFO will

illustrate whether or not there is a rational connection. [37] The plaintiffs emphasize that the Demanded Notes will be used to prove or disprove DFO's knowledge of the plaintiffs' request to fish the South Arm for food. I find that in fact the plaintiffs' documents themselves can establish real or constructive knowledge of the Crown as numerous letters were sent annually from the plaintiffs to DFO. [38] The plaintiffs submit the Demanded Notes will show that in practice DFO has had no policies or processes in place for meaningful consultation and accommodation of the plaintiffs in relation to their food fishing right and their South Arm fishing requests, plans and activities. This is speculation. Canada has produced documents outlining their policies and processes. The official decisions included in the letters to the plaintiffs will show if these policies were actually followed. [39] I do not accept the plaintiffs' argument that the Demanded Notes should be produced because they might be similar to documents that Canada already produced. I agree with Canada's submission that this is not the test for relevance. Lack of response to strength of claim assessment [40] Cowichan Nation Alliance and Cowichan Tribes have repeatedly asked DFO to change their communal licenses to include the entirety of the South Arm of the Fraser River downstream from a line drawn due north and due

south from the easternmost point of Annacis Island. [41] In January 2011, Cowichan Nation Alliance sent DFO an expert report prepared by Dr. Kenneth Brealey, historical geographer and cartographer, and a DVD copy of an affidavit of Dr. Barbara Lane, anthropologist, providing their opinions regarding the Cowichan peoples long-term use and occupancy of the Fraser River delta. DFO responded on February 9, 2012 dismissing the request, saying that the request for a permanent land-based fishing area was more appropriately dealt with through the British Columbia treaty commission process. On May 8, 2012, Cowichan Nation Alliance wrote to DFO and clarified that they were not seeking a land-based fishing area from DFO, but rather a permanent area change to their communal licenses to include the entirety of the South Arm. DFO eventually told the Cowichan Nation Alliance that it was conducting a strength of claim assessment in respect of their asserted Aboriginal right to fish the South Arm. [42] Despite repeated indications by DFO that it would prepare a strength of claim assessment in response to requests to do so by the plaintiffs and by plaintiffs' legal counsel, no such assessment was ever conducted regarding the plaintiffs' claimed food fishing right. Instead, the Department of Justice prepared a legal opinion for DFO which Canada asserted solicitor-client privilege over. The

plaintiffs were unaware of this until 2018. The plaintiffs say that if DFO continually misrepresented to the plaintiffs that it would conduct a strength of claim assessment, this goes to the issue of justification, including whether DFO's actions were consistent with the honour of the Crown. [43] Understandably, the plaintiffs are concerned about why they were led to believe that DFO was considering their submission only to find out seven years later that, not only was it not being considered, but that any answer to it was privileged. Those facts speak for themselves and related supporting documents have already been produced. I am not satisfied that 14 years of internal memoranda will further add to the point. Competing claims of other First Nations [44] I have reviewed the fourth amended notice of civil claim filed September 12, 2019 and the plaintiffs' replies to seven demands for particulars from Canada. There is no reference in the pleadings or any of the replies to demands for particulars about DFO demanding a protocol between First Nations or about alleged threats or protester incidents involving MIB, TFN and/or the plaintiffs. If the protocol demand or the protests are at issue in these proceedings, I would have expected to see those facts particularized in response to the fourth demand for particulars. [45] The issue is raised, however, in Canada's amended response to

civil claim filed October 3, 2019. At para. 59, Canada pleads that if the plaintiff First Nations can prove a prima facie infringement, then the infringement was and is justified as having occurred in furtherance of Canada's pursuit of compelling and substantial legislative objectives, including provision of opportunities and allocations to other First Nations to harvest fish for food, social and ceremonial purposes, including those First Nations further upstream. [46] The plaintiffs submit that Canada and DFO have repeatedly told the plaintiffs that DFO must consult with other First Nations about the plaintiffs' South Arm fishing requests, plans and activities and consider the impact on other First Nations. Canada and DFO have repeatedly relied on the alleged need for further consultation with other First Nations as at least a partial explanation for their delay in responding to the plaintiffs' South Arm fishing requests. [47] The plaintiffs take the position that DFO does not need to consult with other First Nations about the plaintiffs' South Arm food fishing requests, plans and activities. The plaintiffs submit that DFO should share information about the South Arm fishing plans and activities of other First Nations with the plaintiffs, which DFO has refused to do. [48] Whether or not DFO has been consulting with MIB, TFN and other First Nations and the contents of such

consultation are directly relevant to these matters if Canada takes any position that the facts or content of such consultation form part of its justification of infringement of the plaintiffs' asserted right. [49] To this Canada asserts that they have produced briefing notes which include the rationale for their decisions. They have produced all of DFO's internal briefing notes and other records of decisions about the plaintiffs' fishing access to the Fraser River which included information DFO obtained from consultation with other Indigenous groups that was considered and relied on by DFO decision-makers. They have produced all of the letters and emails exchanged between Canada and other Indigenous groups regarding consultation on the plaintiffs' requests to fish in the Fraser River which include the position of those other groups, as well as related agendas and meeting minutes. [50] Whether or not Canada fairly balances the demands the plaintiffs, MIB and TFN is an issue in this action. If the plaintiffs can prove that Canada arbitrarily preferred one First Nation over another, then that may be relevant to the Court's assessment of the conduct of the Crown. If Canada gives preferential treatment to First Nations resident on the Fraser River over the plaintiffs who have not yet proven their claim then that again may be relevant to Canada's justification claim. [51] Canada has

disclosed numerous documents where DFO has insisted on the First Nations working collaboratively. There are letters disclosed already in which DFO has requested that the plaintiffs obtain permission from MIB to fish in MIB territory. [52] I conclude that the Crown's consultation with other First Nations over the plaintiffs' request for South Arm fishing opportunities is at issue but that the relevant documents have been disclosed. I am not satisfied that further disclosure of internal notes and memoranda is necessary. [53] In conclusion, I find that information about what the DFO knew about the plaintiffs' claim and fishing requests has already been established with the plaintiffs' documents. Further, it is not necessary for the Court to know the inner thoughts of DFO employees. With respect to justification and infringement, I will focus on the objective evidence of the actions and decisions of the Crown, including the actions the DFO took as articulated in their records of decisions. The lack of response to the plaintiffs' strength of claim submission speaks for itself. I am not satisfied that it requires further documentation. DFO's consultation with other First Nations is relevant but I accept Canada's evidence that they have produced letters, briefing notes and records of decisions concerning decisions about the plaintiffs' fishing access in the Fraser River, including

information DFO obtained in its consultation with other Indigenous groups that was relied on by DFO decision-makers. That is satisfactory disclosure and internal notes and memoranda are not required. Proportionality [54] Little needs to be said about proportionality. I accept Canada's submission that it would be a massive undertaking to disclose 14 years of internal notes and memoranda of minimal probative value. I therefore conclude that the requested disclosure is disproportionate. "B. M. Young, J." The Honourable Madam Justice Young