Fraser-Fort George (Regional District) v. Chingee

2025 BCCA 437 Fraser-Fort George (Regional District) v. Chingee

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Fraser-Fort George (Regional District) v. Chingee, 2025 BCCA 437 Date: 20251210 Dockets: CA50160; CA50168 Docket: CA50160 Between: Regional District of Fraser-Fort George Appellant (Plaintiff) And Bernard Dale Chingee Respondent (Defendant) And Attorney General of British Columbia Respondent (Pursuant to the Constitutional Question Act) And McLeod Lake Indian Band Intervener - and - Docket: CA50168 Between: Attorney General of British Columbia Appellant (Pursuant to the Constitutional Question Act) And Regional District of Fraser-Fort George Respondent (Plaintiff) And Bernard Dale Chingee Respondent (Defendant) And McLeod Lake Indian Band Intervener Before: The Honourable Justice Riley The Honourable Justice Edelmann The Honourable Justice Mayer On appeal from: An order of the Supreme Court of British Columbia, dated September 4, 2024 (Fraser-Fort George (Regional District) v. Chingee, 2024 BCSC 1611, Prince George Docket S1854025). Counsel for the Regional District of Fraser-Fort George: J.W. Locke T.W. Haughian Counsel for the Attorney General of British Columbia: C. Robb L.M. DeForrest Counsel for the Respondent, Bernard Dale Chingee: J. Woodward, K.C. E.B. Krindle O.L. Stewart Counsel for the Intervener, McLeod Lake Indian Band: S. Ennis-Brown Place and Date of Hearing: Vancouver, British Columbia September 9-10, 2025 Place and

Date of Judgment: Vancouver, British Columbia December 10, 2025 Written Reasons by: The Honourable Justice Riley Concurred in by: The Honourable Justice Edelmann The Honourable Justice Mayer Summary: The respondent, Mr. Chingee, a member of the McLeod Lake Indian Band ("MLIB"), elected to receive land in severalty under a treaty adhesion agreement between the MLIB, British Columbia, and Canada, as a result of which he was given title in fee simple with respect to a property adjacent to Summit Lake. The appellant, Regional District of Fraser-Fort George ("Regional District"), later commenced an action against Mr. Chingee, claiming that his use of the property to operate a commercial campground violated provincial and municipal land use laws. In defending the claim, Mr. Chingee asserted that the property was a treaty entitlement, and that the land use laws infringed his chosen manner of exercising treaty rights under s. 35 of the Constitution Act, 1982. The Regional District applied for summary judgment, contending that Mr. Chingee was barred from reliance on a treaty rights defence on the basis of stare decisis, issue estoppel, abuse of process, and collateral attack. The Regional District's position was based on: (i) a prior decision of this Court holding that lands granted under the Adhesion Agreement would not be reserve land subject to Canada's jurisdiction under s. 91(24)

of the Constitution Act, 1867, and (ii) a settlement agreement and consent dismissal order in respect of the prior litigation. The chambers judge dismissed the Regional District's application for summary judgment, essentially on the basis that Mr. Chingee's treaty rights defence raised a triable issue that could not be summarily rejected. Held: Appeals dismissed. The prior litigation did not definitively foreclose the possibility that the land might retain treaty right status, which continues to be a triable issue. The judge correctly applied the test for issue estoppel and made no reviewable errors in concluding that Mr. Chingee was not seeking to relitigate an issue that arose in and was resolved by the prior proceedings. Given this, there was no reviewable error in his conclusion that the treaty rights defence was not an abuse of process or collateral attack. Table of Contents Paragraph Range Introduction [1] - [6] Facts [7] - [44] Treaty No. 8 [7] - [8] The Adhesion Agreement [9] - [10] Mr. Chingee's Election to Receive Lands in Severalty [11] - [13] The Chingee Proceedings [14] - [23] The Settlement Agreement and Consent Dismissal Order [24] - [32] Mr. Chingee's Use of the Property [33] - [34] The Current Litigation [35] - [44] The Chambers Judge's Reasons [45] - [56] Stare Decisis [47] Res Judicata and Issue Estoppel [48] - [51] Collateral Attack and Abuse of Process [52]

- [53] Fulfillment of Treaty Rights [54] - [56] On Appeal [57] - [66] MLIB's Position [60] - [62] Caution in Summarily Deciding Novel Points of Law [63] - [66] (1) Stare Decisis [67] - [80] Legal Parameters of Vertical Stare Decisis [67] - [70] Applying the Principle of Vertical Stare Decisis in this Case [71] - [80] (2) Issue Estoppel [81] - [114] Legal Principles [81] - [87] Issue Estoppel in this Case [88] - [114] The Pleadings and Written Arguments in the Chingee Proceedings [96] - [102] The Surrounding Documents Pertaining to the Settlement Agreement [103] - [105] The Terms of the Settlement Agreement [106] - [114] (3) Abuse of Process and Collateral Attack [115] - [120] Conclusion [121] - [124] Reasons for Judgment of the Honourable Justice Riley: Introduction [1] This is an appeal from the dismissal of an application for summary judgment, in connection with a claim brought by the appellant, Regional District of Fraser-Fort George (the "Regional District"), against the respondent, Mr. Chingee, seeking remedies for Mr. Chingee's alleged breaches of zoning and land use laws. [2] Mr. Chingee is a member of the McLeod Lake Indian Band ("MLIB"). He elected to receive land in severalty under the McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement (the "Adhesion Agreement"), as a result of which he was granted title in fee simple to a property adjacent to

Summit Lake (the "Property") within the Regional District. In its action against Mr. Chingee, the Regional District alleges that his use of the Property to operate a commercial campground and boat launch violates provincial and municipal zoning and land use laws. Mr. Chingee's sole defence to the action is that the Property is a treaty entitlement and that the zoning and land use laws unjustifiably infringe his treaty rights as protected by s. 35(1) of the Constitution Act, 1982. [3] Because Mr. Chingee's defence raised constitutional issues, British Columbia asserted its right to become a party to the action under the Constitutional Question Act, R.S.B.C. 1996, c. 68 [CQA]. [4] The Regional District, supported by British Columbia, applied for summary judgment, on the basis that Mr. Chingee's treaty rights defence was bound to fail because it involved an inappropriate attempt to relitigate issues resolved in a prior proceeding, such that Mr. Chingee's defence was barred by the doctrines of vertical stare decisis, res judicata and issue estoppel, abuse of process, and collateral attack. The previous case relied upon by the Regional District to advance these arguments is this Court's decision in Chingee v. Canada (Attorney General), 2005 BCCA 446 [Chingee (CA)], holding that lands granted in severalty under the Adhesion Agreement did not constitute "lands reserved for Indians"

within the exclusive legislative jurisdiction of Canada under s. 91(24) of the Constitution Act, 1867. By implication, this meant that these severalty lands would fall within the legislative jurisdiction of British Columbia under s. 92(13). [5] The chambers judge dismissed the application for summary judgment. He found that: (i) stare decisis did not apply because Mr. Chingee's treaty rights defence was not a matter conclusively determined in Chingee (CA), either expressly or by necessary implication of the decision; (ii) issue estoppel did not apply because the legal basis for Mr. Chingee's treaty rights defence was not ruled upon or otherwise resolved in the prior litigation; (iii) in this context, it was not an abuse of process for Mr. Chingee to raise the treaty rights defence in the Regional District's action against him; and (iv) it was at least arguable that the grant of land in severalty to Mr. Chingee under the Adhesion Agreement did not mean his treaty entitlement has been "fully realized" or "spent". The chambers judge effectively determined that the availability of a treaty rights defence was a triable issue. [6] Both the Regional District and British Columbia appeal. They argue that the chambers judge erred in failing to hold that Mr. Chingee's Treaty rights defence was barred by stare decisis, issue estoppel, or abuse of process. Success on any one of these

grounds would mean that Mr. Chingee's Treaty rights defence is bound to fail, entitling the Regional District to summary judgment on its claim. Facts Treaty No. 8 [7] In 1899, Canada entered into Treaty No. 8 with multiple First Nations. Under its terms, the Crown undertook to set aside reserve lands, not to exceed a total of one square mile per family of five, for those who elected to reside on reserves. For individuals and families who elected to live apart from reserve lands, the Crown was to provide "land in severalty" of 160 acres for every eligible individual. Severalty lands were to be granted with a proviso that they could not be alienated without the consent of the Governor General in Council of Canada. [8] Since 1899, Canada has entered into agreements with other First Nations who have agreed to adhere to the terms of Treaty No.

8. These are commonly called "adhesion agreements". The Adhesion Agreement [9] On 27 March 2000, Canada, British Columbia, and MLIB entered into the Adhesion Agreement, in which MLIB adhered to the terms of Treaty No.

8. To implement the Adhesion Agreement, British Columbia passed the McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement Act, S.B.C. 2000, c. 8 [Adhesion Agreement Act]. [10] For present purposes, the key provisions of the Adhesion Agreement can be summarized as follows: (a) Article 2.1 provided that MLIB "joins in the cession made by Treaty No. 8 and agrees to adhere to the terms thereof in consideration of the undertakings made therein and may exercise the rights set out in Treaty No. 8 throughout the Treaty No. 8 Area". (b) Article 4 dealt with reserve lands. Article 4.1.1 provided that British Columbia would transfer the administration, control, and benefit of proposed reserve lands to Canada. Article 4.4 set out MLIB's total reserve entitlement, based on the number of MLIB members as of 1 May 1998. (c) Article 7.2 gave MLIB the option to purchase specified additional lands in fee simple from British Columbia at market value. Article 7.2.5 provided that any such fee simple lands purchased by MLIB were not intended to be reserve lands under the jurisdiction of Canada under s. 91(24) of the Constitution Act, 1867 or the Indian Act, R.S.C. 1985, c. I-5. Article 7.2.6 stated that MLIB would not, without British Columbia's consent, deal with the fee simple lands in such a way that would cause them to become reserve lands. (d) Article 8.2 gave any individual

MLIB member who preferred to live apart from the existing MLIB reserves or proposed reserve lands the option to select up to 160 acres of land in severalty. Article 8.3 specified that the process for individuals to elect to receive land in severalty or to be counted towards MLIB's reserve land entitlement was set out in an appendix to the Adhesion Agreement. Article 8.4 provided that within two months of executing the Adhesion Agreement, Canada and British Columbia would enter into negotiations with each individual who elected land in severalty. Where the land selected by an individual was determined to be "suitable and open for selection", British Columbia was required under Article 8.5 to "convey" the selected land to the individual, "with a proviso as to non-alienation without the consent of the Governor General in Council". (e) Article 8.6 provided that MLIB's reserve entitlement as set out in Article 4.4.2 would be reduced by 128 acres for every individual member who elected to receive land in severalty. (f) Article 8.7 stated that Canada and British Columbia were required to obtain a "release and indemnity" from an individual who elected to receive land in severalty. Article 8.8 stated that Canada was required to provide a release to British Columbia for land granted to an individual member in severalty. (g) Article 8.9 stated that: This Agreement does not prejudice and

will not be interpreted in any manner to prejudice the position that each of the Parties may take, or the position that any Individual may take, in relation to the form of conveyance of land in severalty or the status of such lands, including, without limitation, the constitutional or reserve status of such lands. Mr. Chingee's Election to Receive Lands in Severalty [11] Mr. Chingee and other members of his family elected to receive lands in severalty under the Adhesion Agreement. In June 2000, Canada, British Columbia, and legal representatives for the Chingees entered into negotiations as contemplated in Article 8.4. [12] In letters dated 26 and 28 November 2001, the authorized delegate of British Columbia notified the legal representative for the Chingees that British Columbia would: (i) determine which lands were "suitable and open for selection" as contemplated in Article 8.5 of the Adhesion Agreement, (ii) require individual electors to submit applications for severalty land entitlement, and (iii) transfer suitable lands to individual electors by way of a Crown grant in fee simple, subject to all local, provincial, and federal legislation and regulations. [13] The Chingees took issue with British Columbia's stated position and, as explained below, commenced litigation to challenge its lawfulness. The Chingee Proceedings [14] On 11 January 2002, Mr. Chingee and other

members of his family who had elected to receive land in severalty filed a petition in the Supreme Court of British Columbia, seeking judicial review of the Ministerial decisions reflected in the letters of 26 and 28 November 2001. [15] The relief sought in the original petition included an order quashing the Minister's decision, and directing the Minister to reconsider based on the propositions that: (a) British Columbia had no jurisdiction to determine what lands were available for selection under the Adhesion Agreement without due consultation with individual electors, and (b) British Columbia could not impose conditions on the selection of lands that are inconsistent with Treaty No. 8 and the Adhesion Agreement. Among other things, the petition took issue with the Minister's requirement for individual electors to accept severalty lands subject to provincial laws, and to relinquish any assertion that severalty land would be reserve lands as contemplated in s. 91(24) of the Constitution Act, 1867. [16] The petition asserted that the Minister's "decision", as reflected in the above-noted negotiation correspondence, was legally void because it was: (a) "contrary to the terms of Treaty 8 which is constitutionally protected under s. 35 of the Constitution Act, 1982", (b) beyond the jurisdiction granted to the Minister under the Adhesion Agreement Act, and (c) "ultra vires the

constitutional powers of the Province". [17] The Attorney General of Canada was later added as a party, and the petition was converted to an action. [18] In their subsequently filed statement of claim, the Chingees repeated their challenge to British Columbia's position concerning the terms for severalty land selection under the Adhesion Agreement. They sought declaratory relief comparable to the reconsideration directions sought in the original petition, along with a declaration that the lands made available for severalty selection under the Adhesion Agreement constitute reserve lands within the meaning of s. 91(24) of the Constitution Act, 1867. [19] The claim proceeded by way of a summary trial before Justice Cohen. The arguments at the summary trial focused on the question of "whether the lands selected by the plaintiffs, in fulfilment of their severalty land entitlement, are lands falling within the meaning of s. 91(24) of the Constitution Act, 1867": Chingee v. British Columbia (Attorney General), 2002 BCSC 1568 [Chingee (SC)] at para.

9. On the one hand, the Chingees argued that lands taken in severalty under the Adhesion Agreement would be reserve lands under the exclusive jurisdiction of Canada as provided for in s. 91(24): Chingee (SC) at para. 10(viii). On the other hand, Canada and British Columbia argued that land taken in severalty would be "fee simple lands" subject to provincial jurisdiction under s. 92(13): Chingee (SC) at para. 10(ix). [20] In his reasons for judgment on the summary trial application, Cohen J. considered the historical background of Treaty No. 8, the history of Treaty No. 8 lands in British Columbia, the relevant terms of the Adhesion Agreement, and the principles of treaty interpretation. He concluded that although the lands selected by the Chingees under the Adhesion Agreement were "outside the reserve system governed by Canada under the Indian Act", the selected lands nonetheless fell within Canada's jurisdiction under s. 91(24): Chingee (SC) at para.

65. He held that "both governments together can, and must, fulfil their contractual and Treaty obligations by creating a mechanism to convey the severalty lands to the plaintiffs as s. 91(24) lands", and issued a declaration that "the lands which have been provided by British Columbia, pursuant to Article 8.4 of the [Adhesion Agreement] are 'lands reserved for Indians' within the meaning of s. 91(24) of the Constitution Act, 1867": Chingee (SC) at paras. 93-94. [21] Canada and British Columbia both appealed. Canada's appeal ultimately proceeded to a hearing in this Court, with British Columbia's appeal held in abeyance pending the outcome. [22] On 13 September 2005, this Court allowed Canada's appeal. In reasons given by Justice Southin, the Court held that lands taken "in severalty" under the Adhesion Agreement were not within the jurisdiction of Canada under s. 91(24): Chingee (CA) at para.

31. Justice Southin reached this conclusion based on an assessment of the policy objective of "enfranchisement" which she found to underlie the severalty land provision in Treaty No. 8, together with an assessment of the concept of "severalty" as ownership of "private enclosed property", as opposed to property held collectively: Chingee (CA) at paras. 14, 21. The Court's entered order contains a declaration that: "Lands in severalty conveyed pursuant to the McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement are not within the legislative jurisdiction of Canada". [23] On 30 March 2006, the Supreme Court of Canada dismissed an application by the Chingees for leave to appeal. The Settlement Agreement and Consent Dismissal Order [24] While the Chingee litigation was ongoing, the parties continued to negotiate terms by which the Chingees would receive lands in severalty under the Adhesion Agreement. [25] On 4 July 2005, British Columbia's representative sent a letter to Mr. Chingee's representative, enclosing an Offer of Crown Grant for land in severalty. [26] The enclosed Offer of Crown Grant dated 1 April 2005 (the "Offer of Crown Grant") outlined "terms and conditions" on which the grant would be issued. These included a number of "preconditions", one of which was that Mr. Chingee would have to sign a settlement agreement. It also included a list of additional

"terms" to which Mr. Chingee would agree by accepting the offer. Term 2 was that Mr. Chingee: (a) had inspected the land and was fully aware of its condition, (b) had knowledge of all regional and municipal bylaws regulating the development and use of the land, and (c) had no right to occupy or use the land until the Crown Grant was issued. [27] The 4 July 2005 cover letter included the following statements of British Columbia's position with respect to what acceptance of the Crown Grant would entail: Additionally, these lands were specifically agreed to be subject to all provincial land use and occupancy laws that might now, or in the future, apply to these lands, irrespective of the outcome of the litigation which is presently being undertaken regarding the status of land in severalty. In other words, even if the status of land issue is determined in such a way that provincial laws do not or will not apply to the land in severalty, your clients nevertheless agree to accept and abide by all such land use and occupancy laws that may apply to the Summit Lake area and to these two parcels in particular, both now and in the future. Draft language specific to these two parcels in this regard is being developed for inclusion in to the Settlement Agreements of Bernie Chingee and Justin Chingee, together with a covenant that will be registered against the land upon granting of the

Crown Grants. We will, of course, be discussing this further at our upcoming meeting on July 8, 2005. In the meantime, I wish to ensure that your clients are fully aware that acceptance of the Crown Grant Offers for these two Summit Lake parcels is conditional on acceptance of all land use and occupancy laws that may apply to this Summit Lake area and to these two parcels in particular. Transfer of lands to your clients will be conditional on completion and signing of a Settlement Agreement which will contain this requirement. [28] On 18 July 2005, Mr. Chingee's representative signed the enclosed form accepting the Offer of Crown Grant. [29] The next formal steps in the process did not occur until some four years later. In March 2009: (i) the parties entered a "Settlement Agreement", (ii) British Columbia issued a Crown Grant conveying the Property to Mr. Chingee in fee simple, and (iii) the parties obtained a "Consent Dismissal Order" dismissing the remainder of the action in the Supreme Court of British Columbia "as if determined on the merits". [30] The Settlement Agreement was dated 13 March 2009. It provided that Mr. Chingee "has elected to take land in severalty as set out in Treaty No. 8 and article 8.0 of the Adhesion Agreement and agrees to accept the Land in Severalty in accordance with this Agreement" in "full and final settlement" of his "Claim". The term "Claim"

was defined to include "all of the facts, matters and issues arising from or relating to, directly or indirectly, [Mr. Chingee]'s claim to reserve land or land in severalty under Treaty No. 8 and the Adhesion Agreement", including (a) mineral resources, (b) the provisos, exceptions, and conditions as contained in the Crown Grant, and (c) the "issues raised" in the Chingee litigation. [31] On 25 March 2009, a Crown Grant was issued in Mr. Chingee's name, granting him a fee simple estate in the Property. It was subject to: (a) any water licence granted under the Water Act or other enactment; (b) any subsisting grants or rights acquired by any individual under the Mineral Tenure Act, Coal Act, Petroleum and Natural Gas Act, and any other enactment of like effect; (c) the proviso as to non-alienation without consent of the Governor General in Council, as required under Article 8.5 of the Adhesion Agreement and Treaty No. 8; and (d) a reservation of British Columbia's rights under s. 50 of the Land Act, R.S.B.C. 1996, c. 245. [32] On 1 April 2009, a Consent Dismissal Order was entered in the Supreme Court of British Columbia. It provided that the "remainder of this action not judicially determined" by Chingee (CA) is "hereby dismissed as if determined on the merits". Mr. Chingee's Use of the Property [33] The facts relating to Mr. Chingee's use of the Property as alleged in the

Regional District's notice of civil claim are not disputed by Mr. Chingee. In short: (a) The Property is within Electoral Area "G" of the Regional District. This geographic area is subject to local zoning and land use bylaws, including: (i) Regional District Bylaw No. 2892, 2014 (the "Zoning Bylaw"), (ii) Building Bylaw No. 1561 (the "Building Bylaw"), and (iii) the Crooked River Parsnip Official Community Plan ("OCP"), all enacted by the Regional District under the authority of the Local Government Act, R.S.B.C. 2015, c. 1. (b) The Zoning Bylaw prohibits the use of land, buildings, and structures unless specifically authorized. The Zoning Bylaw also provides that no person is permitted to construct, erect, move, enlarge, or alter any building or structure in contravention of the bylaws. (c) On 15 May 2014, the Regional District issued a three-year temporary use permit, authorizing Mr. Chingee's use of the Property as a commercial campground, with overnight campsites and a boat launch. (d) Mr. Chingee did not apply for a renewal of the temporary use permit. Since 15 May 2017, Mr. Chingee's use of the Property has not been authorized or permitted under the Zoning Bylaw. (e) Under the Building Bylaw, approval must be obtained for any construction or alteration of buildings. Mr. Chingee's erection or alteration of buildings on the Property was not authorized under the Building

Bylaw. The Regional District has issued stop work orders with which Mr. Chingee has not complied. (f) Under the combined operation of the OCP and ss. 488 and 489 of the Local Government Act, a development permit is required before any work can be done within a designated development permit area. Mr. Chingee's Property falls within the Summit Lake Development Permit Area. [34] In 2014, Mr. Chingee applied for permanent rezoning of the Property and for an amendment of the OCP to permit his use of the Property as a commercial campground. The application was unsuccessful. The Regional District alleges, and Mr. Chingee does not dispute, that since that time work has been done on the Property without a development permit. The Current Litigation [35] On 26 June 2018, the Regional District filed a notice of civil claim against Mr. Chingee seeking an order declaring that his use of the Property is in violation of the above-noted bylaws, the OCP, and the Local Government Act. The Regional District also sought orders (a) restraining Mr. Chingee from using or occupying the Property and structures erected on it in contravention of these laws, (b) directing Mr. Chingee to remove all buildings and structures erected or altered in contravention of these laws, (c) permitting the Regional District to remove all non-compliant buildings, structures, equipment, machinery, vehicles, trailers, tents,

and campers used or connected with the non-permitted use of the Property if Mr. Chingee failed to do so, and (d) authorizing the Regional District to remediate the Property should Mr. Chingee fail to do so, with the costs to be borne by Mr. Chingee. [36] On 19 October 2018, Mr. Chingee filed a response to civil claim. He admitted many of the facts alleged in the claim, but denied the Property was "within the authority and jurisdiction" of the Regional District. He denied that there was "any legal effect" to the Regional District's designation of the lands as falling within the Summit Lake Development Permit Area. He asserted that the Property was "severalty lands" granted to him under Article 8.5 of the Adhesion Agreement, such that it was a "treaty entitlement" pursuant to Treaty No. 8 and the Adhesion Agreement. He further asserted that the zoning and land use laws invoked by the Regional District "unlawfully and unjustifiably infringe" his "treaty entitlements, contrary to constitutional law". Mr. Chingee further asserted that the impugned laws meaningfully diminish his "treaty entitlements" and cannot be justified under the test in R. v. Sparrow, [1990] 1 S.C.R. 1075 and R. v. Badger, [1996] 1 S.C.R. 771. [37] Because Mr. Chingee's defence raised constitutional issues, he was required to serve notice on British Columbia under s. 8(2)(a) of the CQA, and British Columbia then

exercised its right to join the proceedings as a party under s. 8(6). [38] On 15 March 2023, Mr. Chingee filed an application for dismissal of the Regional District's claim by way of a summary trial under Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. On 20 June 2023, Justice Church adjourned Mr. Chingee's summary trial generally, giving two essential reasons why the matter was not suitable for summary trial at that time. The first was that the Regional District and British Columbia were unprepared to make arguments on infringement and justification should she find that a treaty right existed, and in her view analyzing the existence of a treaty right separately from these issues would result in undesirable litigation in slices: Fraser-Fort George (Regional District) v. Chingee, 2023 BCSC 1377 at paras. 16-24 [unreported]. The second was that the parties had recently learned that MLIB was considering whether to intervene in the proceedings: at para.

25. Justice Church expressly made no determination as to whether the matter might be suitable for summary trial in the future, although she did express the view that there may be a need for both affidavit and viva voce evidence with respect to some of the issues: at para. 27. [39] On 7 November 2023, MLIB filed an application to intervene in the Supreme Court proceedings. By order dated 26 February 2024, Justice Maisonville granted MLIB leave to intervene. [40] Meanwhile, on 15 January 2024, the Regional District filed an application for summary judgment against Mr. Chingee under Rule 9-6. The application was brought on the basis of what the Regional District referred to as a "narrow issue of law" pertaining to the operation of provincial legislation (namely the aforementioned zoning and land use laws) to the Property. The Regional District asserted in its application that "[i]ssues of law can be decided under [Rule] 9-6 if there is no real dispute about the material facts and the issue of law is well settled by authoritative jurisprudence". The Regional District took the position that Mr. Chingee's defence to the claim stood no chance of success and ought to be summarily dismissed on the basis of "stare decisis, res judicata, collateral attack, abuse of process, or the nature of fee simple conveyance". [41] In its application response, British Columbia supported the Regional

District's position. [42] In an application response filed on 28 March 2024, Mr. Chingee opposed summary judgment. He disputed the Regional District's position on the legal effect of Chingee (CA), and the Regional District's interpretation of the Settlement Agreement and the Consent Dismissal Order. Mr. Chingee asserted that his defence was not barred by stare decisis, because his position did not turn on whether the Property fell under the legislative jurisdiction of British Columbia under s. 92(13) of the Constitution Act, 1867, but rather on the proposition that the zoning and land use bylaws unjustifiably infringed his "treaty entitlements" as guaranteed by s. 35(1) of the Constitution Act, 1982. Mr. Chingee further asserted that the doctrines of res judicata, collateral attack, and abuse of process did not bar his defence because he was not seeking to relitigate what had previously been decided in Chingee (CA) or resolved in the subsequent Settlement Agreement. Finally, he submitted that the "fee simple" status of the Property was "not clear", but even if it was, his Property was still a "treaty entitlement". [43] MLIB filed a written submission outlining its position but did not file an application response. It did not attend the hearing of the summary judgment application. MLIB's written submission urged the court to exercise restraint by avoiding any general statements

of law about the constitutional status of fee simple property in connection with land grants made under the Adhesion Agreement. [44] The Regional District's summary dismissal application was heard between 6 and 9 May 2024. On 4 September 2024, the chambers judge gave written reasons, indexed as Fraser-Fort George (Regional District) v. Chingee, 2024 BCSC 1611 ("Reasons"), dismissing the application. The Chambers Judge's Reasons [45] The chambers judge considered whether Mr. Chingee's defence had no prospect of success based on: (i) stare decisis, given what had been decided in Chingee (CA); (ii) res judicata or issue estoppel, arising from Chingee (CA), the Settlement Agreement, and the Consent Dismissal Order in respect of the prior litigation; (iii) the doctrines of collateral attack or abuse of process, again arising from the prior litigation; or (iv) the theory that conveyance of the Property by way of a Crown Grant in fee simple meant that Mr. Chingee's asserted treaty rights had been "fulfilled or effectively 'spent'": Reasons at para. 41. [46] The chambers judge instructed himself that the purpose of summary judgment under Rule 9-6 is to "prevent claims or defences that have no prospect of success from proceeding to trial", or to "weed out meritless claims or defences at an early stage of litigation": Reasons at para. 43, citing Canada (Attorney General). v. Lameman, 2008 SCC 14 at para.

10. The judge also agreed with the Regional District's submission that Behn v. Moulton Contracting Ltd., 2013 SCC 26, was a "precedent" for the use of "summary judgment procedures" in circumstances where the assertion of a treaty rights defence amounts to an abuse of process: Reasons at para.

45. Stare Decisis [47] With regard to the principle of stare decisis, the chambers judge took guidance from R. v. Dingwall, 2023 BCCA 16, explaining how the scope of the rule has "expanded" beyond the traditional approach under which lower courts were bound by only the "ratio decidendi" of a case. Under this modern approach, the weight given to an authority decreases as one moves from its ratio toward "a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative": Reasons at para. 47, citing Dingwall at para. 31, which in turn cites R. v. Henry, 2005 SCC 76 at para.

57. In the chambers judge's view, Chingee (CA) did not decide the issue "at the heart of Mr. Chingee's defence", which is whether, despite it not being within the legislative jurisdiction of Canada under s. 91(24) of the Constitution Act, 1867, the Property continues to be a "treaty entitlement" protected by s. 35 of the Constitution Act, 1982. Thus, Chingee (CA) did not bar Mr. Chingee from defending the Regional District's action against him on the basis that the zoning and land use laws unjustifiably infringed his "preferred means" of exercising his treaty rights: Reasons at paras. 48-51. Res Judicata and Issue Estoppel [48] The chambers judge rejected the argument that Mr. Chingee's defence was barred by res judicata or issue estoppel. The judge determined that the proper doctrine to consider was issue estoppel, which as explained in Cliffs Over Maple Bay (Re), 2011 BCCA 180 at para. 31, bars a party from relitigating: (i) the same issue or question, (ii) determined in a prior decision that was final, (iii) arising out of litigation involving the same parties or their privies: Reasons at paras. 53-54. The judge accepted that he had to look beyond Chingee (CA) to determine the matters that were conclusively resolved by the Consent Dismissal Order. This required the judge to consider the pleadings and arguments in the prior proceedings, the terms of the Settlement Agreement,

and the terms of the Consent Dismissal Order itself: Reasons at para. 52. [49] The chambers judge focused his analysis on the first criterion, that is, whether Mr. Chingee's defence in the current action raised the "same question" that had been conclusively resolved against him in the prior litigation: Reasons at para. 56. [50] In the chambers judge's view, Chingee (CA) conclusively resolved Mr. Chingee's contention that land in severalty fell within federal jurisdiction: Reasons at para.

62. Although Mr. Chingee's argument in the prior litigation cited s. 35(1) of the Constitution Act, 1867, this was in support of his ultimate position that land granted in severalty fell under the exclusive legislative jurisdiction of Canada: Reasons at paras. 58-62. By contrast, the "discrete argument now advanced" by Mr. Chingee was that "irrespective of which government has jurisdiction" over such lands, they nonetheless continued to be treaty entitlements protected under s. 35(1) of the Constitution Act, 1982: Reasons at para.

62. The chambers judge therefore rejected the argument of the Regional District and British Columbia that the Consent Dismissal Order decided the issue raised in Mr. Chingee's defence to the current action: Reasons at para. 63. [51] The chambers judge also considered the effect of the Settlement Agreement and "surrounding documentation". The 5 July 2004 cover letter indicated that in accepting the Crown Grant, Mr. Chingee would be accepting that the Property would be "subject to all provincial land use and occupancy laws". However, the accompanying Crown Grant contained no express statement to this effect; it merely contained a clause requiring that a settlement agreement be executed as a condition precedent. When the Settlement Agreement was executed some four years later, it did not expressly provide that the Property would be subject to land use and occupancy laws. In fact, the Settlement Agreement contained a clause stating that no representation, warranty, or collateral agreement would affect it, and an entire agreement clause. On this basis, the chambers judge agreed with Mr. Chingee that if the intent of the Settlement Agreement was to require his use of the Property to comply with "all provincial laws and regulations" and "municipal land use laws", such a term "could easily have been included". Given the passage of some four years between the receipt of the cover letter and the Settlement Agreement, the judge gave "almost no weight" to the letter. He concluded that the omission of the additional "requirements" referenced in the cover letter was "deliberate": Reasons at para.

72. Collateral Attack and Abuse of Process [52] The chambers judge accepted the Regional District's submission that abuse of process as described in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 [C.U.P.E.] can arise from inappropriate relitigation that does not fit within the narrower confines of res judicata and issue estoppel: Reasons at para. 76, citing C.U.P.E. at para.

37. However, the chambers judge also observed that the doctrine of abuse of process cannot countenance unfairness, such that even relitigation of previously decided issues "may be permitted" when "fairness dictates" that the original decision should not be binding in a different context: Reasons at para. 77, citing C.U.P.E. at para. 52. [53] Applying those principles, the chambers judge determined that abuse of process "does not apply" because Mr. Chingee was not seeking to "re-litigate issues previously decided against him". The judge also reasoned that "denying Mr. Chingee an opportunity to have his s. 35(1) defences heard on the merits" would create "significant unfairness" that the doctrine of abuse of process seeks to prevent: Reasons at para.

78. Fulfillment of Treaty Rights [54] The chambers judge was not prepared to grant summary judgment on the basis that Mr. Chingee's treaty entitlement was "fulfilled" or "spent" by British Columbia's transfer of the Property to Mr. Chingee in fee simple, such that it was no longer open to him to raise a treaty rights defence to the Regional District's action. In the judge's view, there were "triable issues" with respect to the characterization of the land granted in severalty under the Adhesion Agreement, the individual or collective nature of rights conferred by Treaty No. 8, and the scope of the protection afforded to Mr. Chingee under s. 35 of the Constitution Act, 1982. The judge held that these issues were "not suitable for summary disposition" and that Mr. Chingee should be "permitted to develop his defence at trial": Reasons at paras. 84-85. [55] The chambers judge also endorsed Church J.'s conclusion that Mr. Chingee's s. 35 defence ought to be considered "in whole and not in pieces", concluding that "[a] trial is necessary to assess the merits of the defence": Reasons at paras. 86-87. [56] Finally, the chambers judge was mindful of MLIB's "plea for judicial restraint", accepting the submission that it would be "imprudent" to summarily pronounce upon the merits of Mr. Chingee's s. 35 defence, which raised "important legal questions, deserving of thorough consideration

on a robust evidentiary record": Reasons at paras. 88-89. On Appeal [57] Both the Regional District and British Columbia argue that the chambers judge erred in concluding that Mr. Chingee's defence to the claim was not barred by issue estoppel, or, failing that, was not some other form of improper relitigation amounting to an abuse of process. [58] British Columbia also argues that the chambers judge erred holding that the doctrine of stare decisis did not preclude Mr. Chingee from advancing a treaty rights defence to the Regional District's claim. [59] I intend to address these three grounds of appeal in the order that they were decided by the chambers judge. However, before doing so, I will comment briefly on two other matters. The first is the position advanced by the intervener, MLIB. The second is the availability of summary judgment under Rule 9-6 in cases that raise novel questions of law. MLIB's Position [60] MLIB asserts that it has a direct interest in the appeal, because it concerns the interpretation and application of the Adhesion Agreement which MLIB negotiated with British Columbia. In addition to providing for MLIB reserve lands totalling some 20,000 hectares, Article 7 of the Adhesion Agreement gave MLIB the option to acquire an additional 99 hectares of land in fee simple. MLIB exercised that option and acquired and continues to hold these fee simple lands.

Any ruling of the court pronouncing on the nature of lands acquired in fee simple under the Adhesion Agreement could therefore have implications for the legal status of the lands MLIB holds in fee simple. [61] In the course of the hearing, reference was also made to the non-alienation proviso applicable to severalty land grants under the Adhesion Agreement. Recall that Article 8.5 says that any land granted in severalty to an individual MLIB member must be subject to a proviso that the land cannot be transferred without approval of the Governor General in Council. There was some suggestion at the hearing that this could engage the interests of MLIB, directly or indirectly, to the extent that MLIB may have some residual interest in the land, as implied by the non-alienation proviso. Nothing that I say here should be interpreted as pronouncing on that question. It is merely raised as an acknowledgment that any ruling on the nature of severalty land grants, including the nature of any interest reflected in the non-alienation proviso, could impact, directly or indirectly, on the interests of MLIB. [62] MLIB urges the Court to exercise restraint, by not deciding anything more than necessary to resolve the appeal, and by not saying any more than necessary to explain the result. Counsel cites Stoney Creek Indian Band v. Alcan Aluminum Limited, 1999 BCCA 527 at paras. 21, 30, and 31,

in which Justice Southin held that, in deciding upon the appropriateness of a summary trial in a case with constitutional implications, courts may be mindful of not only the interests of the litigants, but also the interests of others who may be affected by the Court's determination of the issues raised. I agree that the potential impact on individuals who are not parties to a particular proceeding is one of many reasons why courts should generally avoid pronouncing on points that need not be decided in order to resolve the live issues in the proceeding. Caution in Summarily Deciding Novel Points of Law [63] A chambers judge who is satisfied that the only "genuine issue" in a case is a "question of law" is empowered by Rule 9-6(5)(c) to "determine the question and pronounce judgment accordingly". However, a chambers judge should be "cautious" about summarily deciding "novel" points of law: L.D. (Guardian ad litem of) v. Provincial Health Services Authority, 2012 BCCA 491 at paras. 19-20. This is because cases involving novel legal questions ought not to be decided without a "proper factual foundation on which to explore, develop and apply" the law: L.D. at para. 19; see also Aubichon v. Grafton, 2022 BCCA 77 at paras. 26-27. [64] In this case, the chambers judge accepted that "there is no dispute that the issues framed by the Regional District are questions of law, suitable for determination pursuant to [Rule] 9-6(5)(c)": Reasons at para.

44. However, the judge went on to find that all four branches of the Regional District's application for summary dismissal called for the determination of a point of law that was far from settled. More specifically, while the chambers judge had no difficulty accepting that the legal principles governing stare decisis, issue estoppel, collateral attack and abuse of process are well settled, he found that the legal character of lands granted in severalty under the treaty process is not. [65] This Court held conclusively in Chingee (CA) that lands granted in severalty under the Adhesion Agreement were not reserve lands under the legislative jurisdiction of Canada in s. 91(24) of the Constitution Act, 1867. From this one might reasonably deduce that such severalty lands are within the legislative jurisdiction of British Columbia under s. 92(13). However, as explained in more detail below, the question of whether lands granted in severalty under the Adhesion Agreement are imbued with some continuing character or status as treaty lands of a sort that could ground a treaty rights infringement argument under s. 35 of the Constitution Act, 1867 is not settled. [66] This novel question of law is engaged to a greater or lesser extent upon the application of each of the grounds of dismissal invoked by the appellants (stare decisis, issue estoppel, collateral attack and abuse of process).

It seems to me that the chambers judge might have declined to decide the application for summary judgment on this basis alone. However, the judge did not do so, and this was not the basis on which the appeal was argued. It is thus necessary to consider the specific grounds of appeal advanced by the appellants and resisted by the respondent. (1) Stare Decisis Legal Parameters of Vertical Stare Decisis [67] Under the principle of vertical stare decisis, higher court decisions are binding on lower courts, subject to several "narrow" exceptions discussed below: Dingwall at paras. 31-32; Henry at para. 57; Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 42; Carter v. Canada (Attorney General), 2015 SCC 5 at para.

44. The term "stare decisis" basically means "standing by things that have been decided". Vertical stare decisis is "fundamental for guaranteeing certainty in the law": R. v. Comeau, 2018 SCC 15 at para. 26. [68] The binding effect of a case may extend beyond what might be characterized as its dispositive ratio decidendi, to include that which is "obviously intended for guidance" and which therefore "should be accepted as authoritative": Henry at para.

57. The term "ratio decidendi" means "the reason for deciding". This can be contrasted with mere "commentary, examples or exposition", intended to be "helpful" and "persuasive", but not "binding": Henry at para. 57. [69] Where vertical stare decisis applies, the court must follow binding precedent unless there is a basis for departing from it. A binding precedent "may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate": Bedford at para.

42. These are "narrow" exceptions: Comeau at para. 41. [70] A trial court's application of stare decisis is a question of law, for which the standard of review is correctness: College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224 at para. 74, applying Air Canada Pilots Association v. Kelly, 2012 FCA 209 at para.

40. Applying the Principle of Vertical Stare Decisis in this Case [71] The chambers judge accepted that he was "bound by the decision and central findings" in Chingee (CA) but concluded that it "did not decide the issue which is at the heart of Mr. Chingee's defence": Reasons at paras. 47-48. He reasoned that Chingee (CA) involved two essential findings, namely that lands taken in severalty under the treaty process: (i) would constitute "private enclosed property" as opposed to "property held in common" with other MLIB members, and (ii) would not be within the legislative jurisdiction of Canada. Further, the "obvious corollary" of the second proposition was that lands granted in severalty under the treaty process would fall within the legislative jurisdiction of British Columbia: Reasons at paras. 49-50. In the chambers judge's view, none of these legal conclusions precluded Mr. Chingee from arguing that the Property was and continues to be a treaty entitlement, and that the land use laws the Regional District seeks to enforce against him unjustifiably infringe his chosen manner of exercising these rights under s. 35(1) of the Constitution Act, 1982. As the judge put it, Chingee (CA) is "silent on the issue of applicability of s. 35(1)": Reasons at para. 50. [72] British Columbia argues that the chambers judge erroneously applied an antiquated and narrow conception of stare

decisis by focusing on the ratio decidendi of Chingee (CA). In British Columbia's submission, the binding effect of the decision extended beyond the Court's finding that lands granted in severalty under the treaty process are not under the legislative jurisdiction of Canada. That conclusion rested largely on the Court's recognition that severalty lands are, by their nature, lands owned individually and not collectively. British Columbia argues that this legal characterization of severalty lands, which the chambers judge was bound to apply, is fatal to Mr. Chingee's treaty rights defence. Ownership of land in severalty is an individual right, whereas s. 35 rights are by their very nature collective. [73] Mr. Chingee takes issue with the notion that the collective nature of s. 35 treaty rights precludes him from raising a treaty rights infringement defence to a legal action brought against him. He says that the law in this area is "unsettled", making it inappropriate to dismiss his defence on a motion for summary judgment. In support of this position, Mr. Chingee cites Behn and Goodswimmer v. Canada (Attorney General), 2017 ABCA 365. [74] In Behn, the Court upheld the summary dismissal of a treaty rights defence that had been raised by individual members of a First Nations group, and in doing so the Court questioned whether the defendants as individuals had standing to assert a

treaty rights defence. The Court found that the defence was an inappropriate collateral attack on the validity of the plaintiff's legally-issued timber harvesting licence. On the standing question, the Court left room for future development of the law. Commenting on positions advanced by some of the interveners, Justice LeBel, for the Court, left open the possibility that, "despite the critical importance of the collective aspect of Aboriginal and treaty rights, rights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour": Behn at para. 35. [75] In Goodswimmer, the Alberta Court of Appeal upheld the summary dismissal of a claim brought by an Indian Band, seeking additional land entitlements beyond those allotted in a prior settlement of litigation concerning the Band's Treaty No. 8 lands. One of the reasons for dismissing the claim was that it was duplicative of issues that had been conclusively resolved in the settlement of the prior litigation. The Court rejected an argument that the Band did not have authority to negotiate and resolve individual entitlements to severalty land under Treaty No. 8, reasoning that treaty rights -- including the right to elect severalty lands as part of the treaty process -- were collective and not individual rights. However, in doing so, the Court

acknowledged its ruling in Waquan v. Canada (Attorney General), 2017 ABCA 279, which left open the possibility that, despite the collective nature of treaty rights, individual Band members may have standing to assert "individual rights to land in severalty" arising from Treaty No. 8: Goodswimmer at para. 83, citing Waquan at para. 36. [76] It is important to remember that the chambers judge did not invoke the "significant developments in the law" exception to stare decisis. The chambers judge considered himself bound by Chingee (CA), but found that it "did not decide the issue which is at the heart of Mr. Chingee's defence", because the decision was "silent" on the applicability of s. 35(1): Reasons at paras. 48, 50. [77] British Columbia says the chambers judge erred in this respect, because s. 35(1) rights are collective in nature, and Chingee (CA) ruled conclusively that severalty lands are held individually, not collectively. However, I do not agree that Chingee (CA)'s characterization of the nature of severalty lands definitively ruled out the possibility that severalty land grants under the treaty process might retain at least some characteristics reflective of a treaty entitlement. [78] Both Treaty No. 8 and the Adhesion Agreement provide that severalty land grants to individuals are to include a non-alienation proviso. The grant of title issued to Mr. Chingee contained

a caveat precluding him from transferring title without the approval of the Governor General in Council. In Chingee (CA), Southin J.A. did not consider this feature of severalty land grants relevant to the specific issue before the Court -- which was whether those lands fell under either federal or provincial legislative jurisdiction -- because "whatever label" was given to this supervisory jurisdiction over alienation, it was "a jurisdiction of the Crown both in right of a province and in right of Canada": Chingee (CA) at para.

25. This tells us that Chingee (CA) did not rule conclusively on all aspects of severalty land grants to individuals under the treaty process. [79] While the non-alienation proviso was not relevant to the specific issue before the Court in Chingee (CA), the same cannot be said about its potential significance to the question of whether land granted in severalty under the treaty process continues to have at least some characteristics of what Mr. Chingee describes as a "treaty entitlement". Although the Property was granted to Mr. Chingee in "fee simple", the certificate of title contains a non-alienation caveat which carries with it some supervisory responsibility over future transfers. This makes it arguable that the Property, though granted to Mr. Chingee in fee simple, may retain some sui generis characteristics attributable to its treaty status. [80] I conclude that the chambers judge reached the correct result in holding that Mr. Chingee's defence to the Regional District's claim is not "defeated" by the doctrine of vertical stare decisis. (2) Issue Estoppel Legal Principles [81] The doctrine of res judicata is described in considerable detail in Cliffs Over Maple Bay (Re). It is unnecessary to go far beyond Justice Newbury's reasons in Cliffs to identify the operative legal principles. The purpose of the res judicata doctrine is to prevent unjustified relitigation. This

serves the societal interest in "finality and conclusiveness of judicial decisions", and the individual interest in protection from "repeated suits and prosecutions for the same cause", both of which must be balanced against the countervailing interest of allowing litigants the otherwise untrammeled right "to have their cases decided on the merits": Cliffs at paras. 25-26. [82] Cause of action estoppel and issue estoppel are two specific manifestations of res judicata. Justice Newbury's reasons in Cliffs include a detailed discussion of the differences between the two, although it is unnecessary to recount those differences here. It was common ground that cause of action estoppel did not apply in this case. The prior proceeding involved a challenge by Mr. Chingee and other members of his family to the lawfulness of legal positions taken by British Columbia in the negotiation of severalty land grants. By contrast, the current proceeding is a claim brought by the Regional District against Mr. Chingee, alleging breaches of zoning and land use laws. Simply put, the causes of action are fundamentally different. Hence, the Regional District's summary judgment application relied upon the doctrine of issue estoppel. [83] The three essential elements of issue estoppel are that: (i) a party to the current litigation is seeking to litigate the same issue decided in prior litigation, (ii)

the decision in the prior litigation was final, and (iii) the prior ligation and the current litigation involve the same parties, or their privies: Cliffs at para. 31, citing Angle v. M.N.R., [1975] 2 S.C.R. 248 at 254. In this case, the argument before the chambers judge (and in this Court) was focused entirely on the first element, as the second and third elements were easily satisfied. [84] Even where the essential elements of estoppel are satisfied, there exists a residual discretion not to apply the doctrine to preclude a party from litigating an issue that was previously ruled upon in a different context, when it would be contrary to the interests of justice to do so: Cliffs at para. 42; Danyluk v. Ainsworth Technologies Ltd., 2001 SCC 44 at paras. 33, 67. [85] Issue estoppel is a legal doctrine, and its application is generally reviewable on a standard of correctness: Cliffs at para.

24. However, this general rule admits certain exceptions. [86] One exception arises where the court of first instance finds that the essential elements of estoppel are satisfied but exercises its discretion not to apply it. That discretionary decision is entitled to deference and will only be revisited based on a demonstrable error: Cliffs at para.

24. This exception is not engaged here, since the chambers judge found that the first essential element of issue estoppel was not met and therefore did not need to consider whether to invoke his residual discretion. [87] Another exception, which is engaged in this case, arises where the estoppel is said to flow from a consent dismissal. To determine the legal effect of the Consent Dismissal Order, the chambers judge was required to ascertain the "shared intention" of the parties, based on "ordinary principles of contractual interpretation": Greater Vancouver Water District v. SSBV Consultants Inc., 2015 BCSC 1349 at paras. 41-43; Spender (Guardian of) v. Spender, 1999 CanLII 6548 (B.C.S.C.) at para.

20. The chambers judge's interpretation of the Consent Dismissal Order is a question of mixed fact and law, which can only be revisited where the appellant shows a palpable and overriding error or extricable error of law: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at paras. 50-55. Issue Estoppel in this Case [88] The chambers judge accepted the submission of the Regional District and British Columbia that his issue estoppel analysis had to look beyond the decision in Chingee (CA), to also take into account the matters conclusively resolved in the Consent Dismissal Order. This required a consideration of the issues raised in the prior litigation as reflected in the pleadings and arguments, the Settlement Agreement and its "surrounding context", and the Consent Dismissal Order. [89] The chambers judge's conclusion was that the prior litigation did not pronounce upon or resolve the "discrete argument now advanced" by Mr. Chingee, that, "irrespective of which government has jurisdiction" over lands granted in severalty under the treaty process, these lands nonetheless continue to be treaty entitlements protected under s. 35(1) of the Constitution Act, 1982: Reasons at para.

62. The chambers judge thus rejected the argument that the Consent Dismissal Order, which disposed of "the remainder" of the action not determined in the Chingee litigation, resolved the issue Mr. Chingee had raised in his defence to the current action: Reasons at para. 63. [90] On appeal, both appellants argue that the chambers judge erred in reaching this conclusion. Their factums both asserted that the chambers judge's issue estoppel ruling involves a question of law reviewable on a standard of correctness. However, at the hearing both appellants conceded that, because the judge's analysis required an assessment of the shared intent of the parties as reflected in the Consent Dismissal Order using principles of contract interpretation, the proper standard of review is palpable and overriding error. [91] The appellants argue that the chambers judge made an extricable error of law in applying too narrow an approach to the question of whether the prior litigation determined the same issue that is raised in the subsequent litigation. Both appellants cite Cliffs for the proposition that the "same issue" requirement covers all matters of fact and law that are "necessarily bound up with the determination of that 'issue' in the prior proceeding": Danyluk at para. 54, cited in Cliffs at para. 32. [92] The appellants also rely on Spender, which considered issue estoppel in the context

of a consent dismissal. Justice Lander stated that estoppel applied to issues that were "expressly or implicitly the subject of the consent order", or could be "fairly regarded as having been disposed of ... on their merits, on admission, or by compromise ": Spender at para. 19, citing Reid v. Reid (1969), 68 W.W.R. 93 at 94. He went on to reason that because a consent dismissal order "will rarely state any detail", the court "can and must" look to the pleadings, written agreements or releases, and any relevant correspondence, to ascertain the "shared intention" of the parties as reflected in the order: Spender at para.

20. The approach taken in Greater Vancouver Water District is to the same effect. [93] That is precisely the approach the chambers judge followed in the case at bar. I see no extricable legal error in his statement of the legal test, or in the approach he took to interpreting the Consent Dismissal Order. [94] The chambers judge's conclusion that the Consent Dismissal Order did not contemplate a resolution of the issue that Mr. Chingee now seeks to raise is a finding of mixed fact and law. The judge's conclusion can only be revisited if shown to rest on some palpable or overriding error. It is not enough for the appellants to put forward different interpretations of the underlying documents, or to argue that the chambers judge ought to have placed more or less weight on some particular feature of the factual matrix. [95] Both appellants argue that the chambers judge committed palpable errors by failing to give effect to the Consent Dismissal Order, which expressly stated that "the remainder of this action not judicially determined by the Court of Appeal" was "dismissed as if determined on the merits" against the plaintiffs. The Consent Dismissal Order did not expressly set out what was included within the phrase "the remainder of this action", which as noted in Spender is not uncommon for such dismissal orders. To determine the scope of what was resolved, the chambers judge had

to ascertain the shared intent of the parties, based upon an examination of the entire context, including (i) the pleadings and written arguments in the Chingee proceedings, (ii) the correspondence leading up to the Settlement Agreement, and (iii) the terms of the Settlement Agreement itself. The appellants argue that the judge committed reviewable errors in his assessment of each of these elements. The Pleadings and Written Arguments in the Chingee Proceedings [96] The Regional District argues that the chambers judge committed a palpable error by failing to appreciate that the question of provincial legislative jurisdiction over severalty land grants had been raised in the pleadings and arguments in the prior proceedings. I do not agree that the chambers judge made that error. He accepted that this was a necessary corollary of the ruling in Chingee (CA) that severalty land grants were not within federal legislative jurisdiction. The judge found that this point was distinct from the issue Mr. Chingee sought to raise as a defence to the current action against him, which hinges on his ability to assert a s. 35(1) rights infringement in connection with his use of the Property. [97] Both appellants argue that the chambers judge failed to consider the pleadings and written submissions filed by the plaintiffs in the Chingee proceedings, which they say: (a) expressly put in issue the

legal status of severalty land grants under the treaty process, (b) asserted that British Columbia could have no legislative authority over such severalty lands because of their treaty status, and (c) asserted that s. 35(1) of the Constitution Act, 1982 would apply to such severalty lands. [98] I do not agree that the chambers judge made any palpable or overriding error in his assessment of the pleadings and arguments in the prior litigation. The written arguments raising the points discussed above had to be assessed in light of the pleadings, which identified the issues raised and relief sought in the Chingee proceedings. The relief sought did not include orders or declarations that severalty lands would retain treaty status, or that recipients of severalty land grants would have the ability to assert s. 35(1) rights infringements in connection with their use of lands granted in severalty. [99] The chambers judge noted that the plaintiffs in the Chingee litigation made written submissions to the effect that lands granted in severalty "are existing constitutional Treaty rights within the meaning of section 35 of the Constitution Act, 1982, and are lands reserved for Indians within the meaning of s. 91(24) of the Constitution Act, 1867". However, the chambers judge noted that "[t]hereafter, the written submissions focussed almost exclusively on the s. 91(24) argument, seeking to

characterize the severalty lands as falling within federal jurisdiction". The judge viewed this as a different point from the one Mr. Chingee seeks to raise as a defence to the Regional District's current action against him, which is whether, regardless of which government has legislative jurisdiction over severalty lands, "they are nonetheless entitled to s. 35(1) protections": Reasons at paras. 61-62. [100] The chambers judge was not required to explicitly address each and every reference in the written submissions to s. 35(1) of the Constitution Act, 1982, or to the alleged treaty status of the severalty lands. His reasons reflect that he reviewed the written submissions and concluded that the arguments were advanced in aid of the specific relief sought in the prior litigation. In his view, those arguments did not expand the issues raised in the litigation to the point that they included, expressly or by implication, Mr. Chingee's ability to assert that the Property is a treaty entitlement. [101] Although I do not accept that the chambers judge erred in holding that nothing in Chingee (CA) barred Mr. Chingee's s. 35(1) defence as set out in his response to civil claim, I agree with the appellants that some of the assertions in Mr. Chingee's pleadings are, by necessary implication, inconsistent with this Court's prior decision. Division 2, paragraph 3 of Mr. Chingee's

response to civil claim pleads that his Property is not "within the authority and jurisdiction" of the Regional District due to its status as "severalty lands within the meaning of Treaty No. 8". Similarly, paragraph 9 contains an assertion denying that "there is any legal effect" to the Regional District's inclusion of the Property within in a particular development permit area. [102] To the extent that these pleadings could be interpreted as assertions that Mr. Chingee's Property is not within the legislative jurisdiction of British Columbia, they would appear to be inconsistent with this Court's holdings in Chingee (CA), and are therefore liable to be struck out under Rule 9-5(1), on a properly constituted application by the Regional District. However, the Regional District did not apply to strike specific aspects of Mr. Chingee's pleadings under Rule 9-5(1), but instead applied for summary judgment against Mr. Chingee under Rule 9-6 on the basis that Mr. Chingee's pleaded defence was bound to fail. The chambers judge dismissed that application, finding that Mr. Chingee's response to civil claim raised a "discrete argument" that the Property was a treaty entitlement, affording a basis for Mr. Chingee to assert a s. 35(1) treaty infringement defence. The Surrounding Documents Pertaining to the Settlement Agreement [103] In ascertaining the shared intent of the parties as

reflected in the Consent Dismissal Order, the chambers judge considered the terms of the Settlement Agreement, interpreted in light of the surrounding documents. This included the 4 July 2005 cover letter enclosing the Offer of Crown Grant. This letter included a specific assertion that transfer of the subject lands to Mr. Chingee would be "conditional on acceptance of all land use and occupancy laws that may apply" as reflected in a "Settlement Agreement" that was to include such a requirement. In his analysis, the chambers judge found it significant that the Settlement Agreement contained no such provision, and he concluded on his assessment of all the relevant evidence that this "omission" was "deliberate". [104] In its factum, the Regional District submits that this finding is tainted by palpable and overriding error, for four reasons, all of which I would construe as invitations to reweigh the evidence in a manner that would take this Court beyond its proper role in appellate review. In particular: (a) In the Regional District's submission, the chambers judge's inference that the omission was "deliberate" is inconsistent with the express intention of the parties in the Settlement Agreement to resolve "all matters and issues" arising, directly or indirectly, from the prior litigation. This submission is circular. The key question was not whether the parties formed a shared

intention to settle all the issues in the prior litigation, but rather the proper delineation of the matters and issues arising directly or indirectly from that litigation. The chambers judge ascertained the scope of what was intended to be settled, by interpreting the terms of the Settlement Agreement in the context of the surrounding documents. (b) The Regional District submits that an outcome which allows Mr. Chingee to "continue to assert" that his Property is "not subject to Provincial jurisdiction" as he did in the prior litigation "undermines the plain intent in the Settlement Agreement to conclusively settle the issues in that litigation". However, the chambers judge took the view that Mr. Chingee's defence in the current proceeding did not rest on the proposition that his Property is "not subject" to provincial jurisdiction. He found that Mr. Chingee's defence in the current action did not turn on the proposition that provincial laws do not apply per se, but rather on the "discrete argument" that the zoning and land use restrictions the Regional District seeks to enforce unjustifiably infringe Mr. Chingee's constitutionally protected treaty rights in relation to the Property. (c) In the Regional District's submission, there was "no evidence from any party" of any intent to exclude zoning and land use laws from the scope of the Settlement Agreement. While it may be true

that there was no direct evidence of such an intent, the chambers judge drew an inference, from all of the circumstances, that this was the shared intention of the parties. It was open to the judge to reach that conclusion. (d) The chambers judge's finding was based, at least in part, on Term 19.13 of the Settlement Agreement, which provided that: "[e]xcept to the extent provided herein, this Agreement is without prejudice to any rights under Treaty No. 8". The Regional District submits that the chambers judge failed to give proper consideration to the qualifying phrase "[e]xcept to the extent provided herein", intended to allow Mr. Chingee to assert any Treaty No. 8 rights, while carving out any claim to treaty rights "bound up with" the prior litigation and associated settlement. In the Regional District's submission, the purpose of Term 19.13 is to preserve Mr. Chingee's right to assert treaty rights not having any connection to the Property itself. With respect, this is nothing more than an attempt to re-argue the facts of the case on appeal. Merely presenting a competing interpretation of a particular term in the Settlement Agreement is not enough to show that the chambers judge's interpretation of the agreement as a whole was tainted by some palpable and overriding error. [105] I therefore would not give effect to the Regional District's argument that the chambers judge

made a palpable and overriding error in finding that the omission of any reference to Mr. Chingee's acceptance of zoning and land use laws from the Settlement Agreement was "deliberate". The Terms of the Settlement Agreement [106] The appellants argue that the chambers judge erred in failing to give effect to the Settlement Agreement's "release provision". I note that it was a term of the Adhesion Agreement that individuals electing to receive land in severalty would provide a release and indemnity to British Columbia with respect to the election. [107] In response to this point, counsel for Mr. Chingee argued that it should not be open to the courts to enforce a release that effectively disposes of constitutionally-protected rights. Counsel submitted that parties cannot, by private agreement, contract out of the Constitution. In my respectful view, this submission overlooks the essential role that negotiation of modern treaties which include the release of outstanding Aboriginal rights claims can and must play in pursuing the objective of reconciliation, as explained in Goodswimmer: [47] Canada and Alberta recognize the obligation and desirability of receiving, assessing, and negotiating outstanding aboriginal claims. The overall purpose of modern treaty negotiations was set out in Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para. 10, [2010] 3 SCR 103: 10 The

reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982. The modern treaties, including those at issue here, attempt to further the objective of reconciliation not only by addressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship between Aboriginal and non-Aboriginal communities. Thoughtful administration of the treaty will help manage, even if it fails to eliminate, some of the misunderstandings and grievances that have characterized the past. Alberta and Canada should accordingly be encouraged to accept and resolve outstanding claims by the aboriginal community. There is no principle of law that constitutionally based claims cannot be settled and released. Legal rules or approaches to the interpretations of settlement agreements should not be set in a way that acts as a disincentive to governments to settle such claims: Nunavut Tunngavik Inc. v Canada (Attorney General), 2014 NUCA 2 at paras. 75-7, 580 AR 75; Delgamuukw v British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010 at para. 186. [48] Important objectives of any settlement, and particularly any settlement aimed at reconciliation with respect to outstanding aboriginal claims, are certainty and finality. When Canada agreed to open negotiations in 1985, the Minister specifically noted that any settlement would have to include "a formal release in favour of Canada": reasons at para.

200. During the negotiations, it was agreed that releases were a necessary component of any settlement: reasons at paras. 215, 216-7, 219, 222. As counsel pointed out, the only thing that Canada got from the Settlement Agreement was the release, and repose from further claims. [108] Keeping in mind that the Adhesion Agreement made express provision for the execution of a release in connection with severalty land grants, I agree with the appellants that it was an important aspect of the treaty negotiation and resolution process. However, that did not absolve the chambers judge of the responsibility to ascertain the "shared intention" of the parties as to the scope of their mutual intentions in settling their prior litigation, in accordance with the approach described in cases such as Spender and Greater Vancouver Water District. [109] The appellants say the chambers judge erred in placing undue emphasis on the absence of any express reference within the terms of the release to the issue now raised by Mr. Chingee. They submit that release provisions are by their nature general, because they are intended to include all future manifestations of litigation arising out of the dispute between the parties, as a function of the allocation of risk inherent in such an arrangement. As stated in Goodswimmer at para. 57, "[t]he parties are entitled to rely on very general release wording in

order to avoid the risk of missing something if the claims are all listed". [110] In Goodswimmer, a chambers judge found that general language intended to release the Crown (defendants) from any future liability in connection with the allotment of reserve lands under a Treaty No. 8 settlement agreement was sufficient to cover a subsequent claim. In upholding that decision, the appeal court rejected the argument that the release did not cover the particular issues raised in the subsequent action merely because those issues were not explicitly listed: Goodswimmer at paras. 56-67. [111] Of course, the outcome in Goodswimmer turned on the chambers judge's assessment of the scope of the release, placed up against the issues raised in the subsequent litigation. In that context, the appeal court found no reviewable error in the chambers judge's interpretation and application of the release provision: Goodswimmer at para. 67. [112] British Columbia also cites Spender at para. 42, arguing that "a release from 'any and all actions, claims and demands' demonstrates the parties' intentions to finally dispose of all issues between them". However, the outcome in Spender underscores that such a release constitutes a compromise "on an issue then in dispute between the parties", such that a release secured by one party was not broad enough to bar the plaintiff's claim against another, where

there was nothing in the "order, release, or correspondence" indicating an intention to settle the "merits of the third party claim", or otherwise resolve the issues of "fact, liability, or non-liability": Spender at paras. 46-47, 49. [113] Returning to the facts of this case, the release is found in Terms 2.4 and 8.4 of the Settlement Agreement. In particular: (a) Term 2.4 states that the "Severalty Recipient" agrees to accept lands in severalty in "full and final settlement of the Claim". (b) Term 8.4 spells out the scope of the release to British Columbia in more detail. It states among other things that the Severalty Recipient agrees to "forever release" British Columbia and all of its representatives from any "cause of action, suit, claim or demand whatsoever, whether known or unknown, and whether in law, in equity or otherwise", and not to assert any such action, with respect to "the Claim", or any decision of the Governor in Council regarding a future request for approval to alienate the lands granted in severalty. (c) The term "Claim" is defined to include "all of the facts, matters and issues arising from or relating to, directly or indirectly, the Severalty Recipient's claim to reserve land or land in severalty under Treaty No. 8 and the Adhesion Agreement". The definition of "Claim" also expressly includes (i) mineral resources, (ii) the provisos, exceptions and

conditions as contained in the Crown Grant, and (iii) the "issues raised" in the Chingee litigation. [114] The chambers judge found it significant that the scope of this release was not expressly stated to include the acceptance of zoning and land use laws, even though this concept had been addressed in the covering letter sent some four years before the Settlement Agreement was executed. The judge concluded, on his assessment of the terms of the Settlement Agreement interpreted in light of the factual matrix, that this omission was deliberate. It was open to the chambers judge to make that finding, which in my view was critical to his conclusion that the shared intention of the parties did not include an intent to forestall Mr. Chingee from arguing that specific zoning and land use laws constitute an unjustifiable infringement of his use of the Property as a "treaty entitlement" protected by s. 35(1) of the Constitution Act, 1867. (3) Abuse of Process and Collateral Attack [115] The chambers judge acknowledged that the doctrines of abuse of process and collateral attack may be invoked to prevent relitigation that does not meet the "strict requirements" of res judicata: Reasons at para. 76, citing C.U.P.E. at para.

37. However, the chambers judge held that abuse of process did not apply to Mr. Chingee's claim because "he does not seek to re-litigate issues previously decided against him": Reasons at para.

78. In other words, because Mr. Chingee's defence did not involve any attempt to "re-litigate" issues decided against him, his defence was not an abuse of process. [116] The Regional District argues that the chambers judge erred in failing to appreciate that Mr. Chingee's effort to raise a s. 35(1) defence to the current action amounts to an inappropriate "collateral attack" on the Consent Dismissal Order. The Regional District submits that Mr. Chingee's s. 35(1) defence is an effort to "circumvent the mutually understood implications and conditions" of the Settlement Agreement and the Consent Dismissal Order. I would not give effect to this argument. It is fundamentally inconsistent with the chambers judge's finding that the "shared intent" of the parties as reflected in the Consent Dismissal Order did not include any mutual agreement for Mr. Chingee to forego the argument that the zoning and land use laws unjustifiably infringe his use of the Property as a "treaty entitlement" protected by s. 35(1). [117] The Regional District relies on M.K. v. British Columbia (Attorney General), 2020 BCCA 261 at para. 34, holding that, "where a party could have raised a constitutional issue in previous litigation but did not, a subsequent attempt to do so in fresh proceedings is impermissible". This is because, "disappointed litigants who have had an opportunity to raise a constitutional

issue in previous litigation and have exhausted their appeal rights should not expect 'more judicial time and attention to pursue their grievance and to attempt to undermine the legitimacy of [the previous order] that is beyond further direct challenge'": M.K. at para. 34, citing Carpenter Fishing Corp. v. Canada, 2002 BCCA 611 at para. 16. [118] The distinguishing feature in M.K. was that the appellant in that case, having obtained a child support order that was varied on appeal, commenced a separate action challenging the constitutionality of the statutory provisions on which the original support order was based. In other words, in the second action the appellant raised a constitutional issue in an effort to undermine the legitimacy or effect of the prior support order. This approach was understandably viewed as a collateral attack on the original order. [119] The Regional District also relies on Behn. In my view, Behn is not a case of abusive re-litigation, but rather a case in which treaty rights were inappropriately raised as an after-the-fact attempt to justify unlawful "self help" remedies. The defendants sought to defend their erection of an illegal blockade by relying on treaty rights, when they had made no effort to challenge the plaintiff's legally-issued timber license by due process of law. The Supreme Court of Canada upheld an order striking the treaty rights defence, on the basis that it constituted an abuse of the court's process. Writing for the Court, Justice LeBel explained that allowing the treaty rights defence to proceed in these circumstances "would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.": Behn at para.

42. In my respectful view, no useful comparison can be drawn between the facts of that case and the circumstances and legal issues at play in the case at bar. [120] The chambers judge went on to find that even if Mr. Chingee's defence involved some form of relitigation, this would not be an appropriate case on which to apply the doctrine of abuse of process, because denying Mr. Chingee the opportunity to have his s. 35(1) defence heard on the merits would create the very kind of "significant unfairness that the doctrine aims to prevent": Reasons at para.

78. This was clearly an alternative finding, the chambers judge having determined that Mr. Chingee's defence did not involve any relitigation of issues previously determined or resolved between the parties. In any event, no basis has been shown to interfere with the chambers judge's exercise of discretion in making this alterative finding. Conclusion [121] The chambers judge did not commit any reviewable error in dismissing the Regional District's application for summary judgment. More specifically, the chambers judge made no error in finding that Mr. Chingee's s. 35(1) defence raises a triable issue that is not barred by the doctrines of stare decisis, issue estoppel, abuse of process, or collateral attack. [122] I accept that it is a necessary implication of this Court's decision in Chingee (CA) that Mr. Chingee's Property, being a severalty land grant under the Adhesion Agreement, is subject to the jurisdiction of British Columbia under its exclusive legislative responsibility over "property and civil rights" in s. 92(13) of the Constitution Act, 1867. However, Chingee (CA) did not conclusively resolve all issues concerning the status of severalty land grants under the treaty process. [123] In particular, Chingee (CA) did not resolve the question of whether a severalty land grant under the treaty process constitutes a "treaty entitlement" that would allow an individual

holding title to such property in fee simple to argue that the requirements of a particular statute (or municipal bylaw) under the legislative jurisdiction of the province represent an unjustifiable intrusion on treaty rights protected by s. 35(1) of the Constitution Act, 1867. Nor, on the chambers judge's findings, did the parties have a shared intention to resolve that issue through the consent dismissal of the remainder of the proceedings in the prior litigation. This continues to be a triable issue, which could not have been properly and fairly determined by way of an application for summary judgment under Rule 9-6. [124] I would dismiss the appeals. "The Honourable Justice Riley" I AGREE: "The Honourable Justice Edelmann" I AGREE: "The Honourable Justice Mayer"