McLeod Lake Indian Band v. West Moberly First Nations

2024 BCCA 187 McLeod Lake Indian Band v. West Moberly First Nations

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McLeod Lake Indian Band v. West Moberly First Nations, 2024 BCCA 187 Date: 20240509 Docket: CA49559 Between: McLeod Lake Indian Band and Chief Harley Chingee on his own behalf and on behalf of the Members of the McLeod Lake Indian Band Appellants (Applicants) And West Moberly First Nations Respondent (Petitioner) And Attorney General of British Columbia Respondent (Respondent) Before: The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Voith The Honourable Justice Skolrood On appeal from: An order of the Supreme Court of British Columbia, dated December 18, 2023 (West Moberly First Nations v. British Columbia (Attorney General), 2023 BCSC 2340, Vancouver Docket S237159). Oral Reasons for Judgment Counsel for the Appellants: T.F. Isaac T.R. Prince D. DiPardo Counsel for the Respondent, West Moberly First Nation: Counsel for the Respondent, Attorney General of British Columbia: A. Muter O.R. Pulleyblank A.D. Cochran A.D. Francis Place and Date of Hearing: Vancouver, British Columbia May 7, 2024 Place and Date of Judgment: Vancouver, British Columbia May 9, 2024 Summary: The McLeod Lake Indian Band ("MLIB") appeals an order dismissing its application to be added as a respondent to a judicial review proceeding commenced by West Moberly First Nations ("WMFN") in which WMFN challenges the adequacy of consultation

undertaken by the Province in respect of proposed forestry activities on lands within its claimed traditional territory. MLIB argues that the judicial review proceeding may adversely affect its exercise of Treaty Rights. MLIB submits that the judge erred in providing inadequate reasons and in finding that the disposition of WMFN's judicial review proceeding would not affect MLIB's direct interests. Held: Appeal dismissed. The impacts alleged by MLIB are speculative and indirect. While judicial review is an appropriate forum for determining the adequacy of consultation with First Nations, it is not a forum for resolving disputes about the nature and scope of Aboriginal rights, including competing claims between First Nations. Though succinct, the judge's reasons clearly affirmed this well-established principle. MLIB has failed to demonstrate any reversible error. [1] SKOLROOD J.A.: The McLeod Lake Indian Band, along with Chief Harley Chingee (together "MLIB") appeal from a decision of Justice Milman in the Supreme Court of British Columbia dated December 18, 2023, dismissing MLIB's application to be added as a respondent to a judicial review proceeding commenced by West Moberly First Nations ("WMFN") or alternatively, for leave to file a response and supporting affidavit. Justice Milman's reasons for judgment are indexed at 2023 BCSC 2340. [2] MLIB argues that the judicial

review proceeding may adversely impact the exercise of its Treaty Rights and thus the judge erred in refusing to add it as a party. [3] For the reasons that follow, I would dismiss the appeal. Background [4] The underlying judicial review proceeding was brought by WMFN. It was commenced by way of a petition filed on October 23, 2023, in which WMFN challenges the adequacy of consultation undertaken by the Province in relation to forestry activities proposed by Canadian Forest Products Ltd. ("Canfor"), as well as the Province's decision to issue a cutting permit and road permit to Canfor. [5] The judicial review proceeding concerns forestry activities located in the Treaty 8 area, portions of which are located in Northeastern BC. WMFN seeks a number of orders, including a declaration that it is entitled "to be consulted by British Columbia at the deep end of the constitutional spectrum with respect to the impacts to West Moberly Treaty Rights" contemplated through the proposed Canfor forestry activities. [6] WMFN alleges that the proposed forest activities are located in an area referred to as "Chuu Xaadeslii" which it describes as "a historically and culturally important region for West Moberly Members". [7] MLIB is a Treaty 8 First Nation with rights set out in the McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement dated September 30, 1999 (the "MLIB

Adhesion Agreement"). Schedule "A" to the MLIB Adhesion Agreement is entitled "Claimed Traditional Territory". Canfor's proposed forestry activities are intended to take place within MLIB's Claimed Traditional Territory, a fact acknowledged by the Province. [8] The Province further acknowledges that it has a duty to consult MLIB in connection with the proposed Canfor forestry activities and has in fact done so. MLIB has indicated that it is satisfied with the adequacy of the consultation and it supports the issuance of permits to Canfor. [9] MLIB disputes that WMFN has rights in connection with Chuu Xaadesli. It alleges that WMFN has asserted rights that have gradually and increasingly encroached into MLIB's claimed Traditional Territory, culminating in the claims underlying the judicial review petition. [10] WMFN did not name MLIB as a respondent to its petition. On December 5, 2023, MLIB filed a notice of application in the Supreme Court seeking to be added as a respondent, or, alternatively, permitting it to file and serve a response to the petition and supporting affidavits. [11] MLIB's application was brought pursuant to Rules 6-2(7)(b)(i), (ii) and/or 6-2(7)(c)(ii) of the Supreme Court Civil Rules, BC Reg 168/2009, which state: (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10), (b) order that a person be added

or substituted as a party if (i) that person ought to have been joined as a party, or (ii) that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and (c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with (ii) the subject matter of the proceeding that, in the opinion of the court, it would be just and convenient to determine as between the person and that party. [12] MLIB's alternative relief was sought pursuant to Rule 16-1(3) and (4) which deal with petition proceedings: (3) Unless these Supreme Court Civil Rules otherwise provide or the court otherwise orders, a copy of the filed petition and of each filed affidavit in support must be served by personal service on all persons whose interests may be affected by the order sought. (4) A person who has been served with a copy of a filed petition under subrule (3) of this rule must, if the person wishes to receive notice of the time and date of the hearing of the petition, do the following: (a) file a response to petition in accordance with subrule (5); (b) file, with the response to petition, all affidavits that have not already been filed and on which the person intends to rely at the hearing of the petition; [13] MLIB alleged in its

notice of application that it has an interest in the subject of the judicial review proceeding because if WMFN is granted the relief it seeks in its petition, MLIB will suffer harm, specifically: a) It will interfere with the MLIB Applicants' meaningful exercise of Treaty Rights in the Acknowledged MLIB Traditional Territory; b) It will provide judicial sanction for WMFN's increasing encroachment into the Acknowledged MLIB Traditional Territory without WMFN having established the requisite historical connection to that territory as alleged by WMFN or at all; and c) It will distort the constitutional duties of British Columbia in respect of MLIB's protected Treaty Rights within the Acknowledged MLIB Traditional Territory such that Crown consultation with WMFN would be the expense of MLIB's established rights. The Judge's Reasons [14] The judge rendered oral reasons for judgment at the conclusion of the hearing of MLIB's application. The reasons are succinct and it is worth reproducing the operative paragraphs in their entirety: [3] The concern raised by McLeod Lake is that the court will be called upon in the judicial review application to assess the nature and extent of the duty that was owed to West Moberly in the context of the permit that was granted. McLeod Lake is concerned that if the court were to acknowledge the need for in‑depth consultations with West Moberly, such an

acknowledgement would come potentially at the expense of McLeod Lake's own claim to the same territory. [4] The application is opposed by the current parties to the judicial review proceeding, i.e., West Moberly and the Attorney General of British Columbia. They both cite authority of this and the Federal Court suggesting that the relief sought here ought not to be granted on the basis that the issue raised is not one that is properly addressed in the context of the judicial review application. Those authorities are Gitga'at First Nation v. British Columbia (Environment), 2015 BCSC 1703 and We Wai Kai First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2023 FC 1259. [5] I agree with the application respondents that the authorities that have been cited are on point and militate against granting the application. In particular, I am concerned, as were the judges in those cases, about the prospect of the issues that are proposed to be raised derailing the judicial review application and taking the court well off course in its determination of the issues that are properly before it. [6] I am not persuaded that the cases can be distinguished in the manner that McLeod Lake suggests, namely, on the basis that in Gitga'at, the applicant had not established clear title, whereas in this case McLeod Lake has. That is not the point. The affected lands are subject to overlapping

claims. McLeod Lake's application is answered by the premise upon which the Province first embarked upon consultations with West Moberly in the first place, which was that West Moberly was making a claim to the affected lands. The consultation that proceeded from there was based on that premise and not on any recognition that West Moberly had established title, and certainly not in a manner that came at the expense of McLeod Lake's own claim to those same lands. [7] The application appears to be advanced on the faulty premise that Crown consultation is a finite resource that can only be allocated in limited measures. It seems to me that the Province, having decided to consult with both First Nations, can be called upon to justify the nature of the consultation that was engaged in at the behest of either one or the other. [8] The decision that this court will be called upon to make in the judicial review application will not affect the interests of McLeod Lake. Therefore, on that basis, its application to become a party or to file material to show the historical development of West Moberly's claim and the territorial extent of it, is ill-founded. What McLeod Lake seeks to raise is not something that this court ought to be addressing in the context of this particular proceeding. Issues on Appeal [15] MLIB submits that the judge erred in: a) failing to give any, or adequate,

reasons for concluding that the decision of the court in WMFN's judicial review proceeding will not affect the interests of MLIB; b) finding that the decision in the judicial review proceeding will not affect the interests of MLIB; c) failing to consider that the Court will be required to assess the depth of consultation owed to WMFN by assessing the strength of WMFN's claims in respect of the area in issue; d) Failing to recognize that the cases cited at para. 4 of the reasons for judgment are distinguishable; and e) Misapprehending the basis upon which MLIB's application was advanced. [16] In my view, these alleged errors can properly be distilled into two issues: a) Are the reasons of the judge sufficient?; and b) Did the judge make a reversible error in declining to add MLIB as a respondent to WMFN's judicial review proceeding? Discussion Standard of Review [17] The decision whether to add a party to a proceeding is discretionary and entitled to significant deference. The Court may intervene only if the chambers judge misdirected themselves, erred in law or principle, failed to give weight, or sufficient weight to relevant considerations, or if the result is so plainly wrong on the facts as to result in an injustice: 0848052 B.C. Ltd. v. 0782484 B.C. Ltd., 2023 BCCA 95 at para. 16, citing Madadi v. Nichols, 2021 BCCA 10 at para.

41. Adequacy of the Judge's Reasons [18] MLIB submits that the judge failed to address the likely impact on it if WMFN's judicial review application is successful, specifically the fact that the decision "might negatively impact" MLIB by virtue of the fact that there is the "potential" for findings that "could" interfere with its exercise of Treaty Rights within the MLIB Traditional Territory, provide judicial sanction for WMFN's increasing encroachment into MLIB Traditional Territory and grant WMFN consultation rights at the expense of MLIB's established rights (MLIB Factum at para. 29). [19] In my respectful view, the potential impacts identified by MLIB are, at best, speculative and indirect and do not form the basis for an order of the type MLIB sought before the judge. Further, I am satisfied that the judge's reasons adequately dealt with the arguments and issues advanced by MLIB and properly set out the basis for denying the application. [20] As this Court held in Zhao v. Fang, 2022 BCCA 227, there is no free-standing right of appeal based on the sufficiency of a chambers judge's reasons. Appellate intervention is only justified "where the reasons, when considered along with the record, do not permit meaningful appellate review". This occurs where the reasons are both "inadequate and inscrutable": at para.

22. See also R. v. G.F., 2021 SCC 20 at paras. 70, 79. [21] While the judge's reasons, as noted, are succinct, he accurately identified the concerns raised by MLIB that formed the basis for its application, Specifically, in para. 3 of his reasons, he noted MLIB's concern that acknowledgement of a requirement for deep consultation with WMFN "would come potentially at the expense of McLeod Lake's own claim to the same territory". At para. 6 of his reasons, he observed that the Province's consultation with WMFN was not carried out "in a manner that came at the expense of McLeod Lake's own claim to those same lands". In his concluding paragraph, para. 8, the judge made it clear that "[t]he decision that this court will be called upon to make in the judicial review application will not affect the interests of McLeod Lake". [22] Perhaps most significantly, the judge observed that MLIB's application was "advanced on the faulty premise that Crown consultation is a finite resource that can only be allocated in limited measures" (at para. 7). As I understand the judge's reasons, he was essentially saying that the application was based upon a misapprehension of the nature, scope, and focus of the judicial review proceeding. As I will return to below, it is my view that the judge did not err in denying the relief sought by MLIB. For the purposes of the first issue on appeal, I am satisfied

that the judge's reasons adequately set out the basis for reaching this conclusion. [23] I would therefore not accede to the first ground of appeal. Impact of the Judicial Review Proceeding on MLIB's Interests [24] The central substantive issue on the appeal is whether the judge erred in finding that MLIB's interests would not be directly impacted by a decision rendered in the WMFN judicial review proceeding and further erred in dismissing MLIB's application to be joined as a party, or alternatively, to be permitted to file a response to the petition and supporting affidavits. [25] In Alexis v. Duncan, 2015 BCCA 135, Justice Goepel discussed the principles governing the addition of parties pursuant to R. 6-2(7): [15] Rule 6-2(7)(b) is concerned with remedying defects in the proceedings as they stood prior to the application to add a party. It has a narrow application. Under R. 6-2(7)(b) the court must decide if the person ought to have been joined as a party or the person's participation in the proceeding is necessary to ensure that all matters may be effectually adjudicated: see Enterprise Realty Ltd. v. Barnes Lake Cattle Co. Ltd. (1979), 13 B.C.L.R. 293 (C.A.). The discretion to add a party under R. 6-2(7)(b) exists if one of the conditions in subsections (i) and (ii) is established: Enterprise Realty Ltd. at 296. However, "if neither of the prerequisite conditions is

established then there is no discretion in the chambers Judge and he must refuse the application": Enterprise Realty Ltd. at 296. [16] The predecessor to R. 6-2(7)(c) was added to the Rules in 1980 shortly after and presumably to counter the narrow interpretation adopted in Enterprise Realty. I note that the broad interpretation considered but rejected in Enterprise Realty Ltd. by this Court was "that parties should be added if, after balancing the interests of all the parties, existing and prospective, it is just and convenient to do so": Enterprise Realty Ltd. at 296. [17] Under R. 6-2(7)(c) the court can order a person be added as a party if there exists, between the person sought to be added and any party to the proceeding, "a question or issue relating to or connected with the relief claimed in the proceeding or the subject matter of the proceeding" and, "if in the opinion of the court, it would be just and convenient to do so" (emphasis added). The decision as to whether to add a party under R. 6-2(7)(c) is discretionary. It is up to the presiding judge to determine whether or not joinder of the new defendant is just and convenient in any particular case: see e.g., Letvad v. Fenwick, 2000 BCCA 630... See also: Smithe Residences Ltd. v. 4 Corners Properties Ltd., 2020 BCCA 227 at para. 49; Byrd v. Cariboo (Regional District), 2016 BCCA 69 at para. 36. [26] As I have

already observed, on MLIB's own formulation of the concerns underlying its application, the potential impacts identified are at best speculative and indirect. [27] In my respectful view, MLIB's application, and this appeal, are premised on a misapprehension of the nature and scope of WMFN's judicial review proceeding. [28] Judicial review is a mechanism by which the courts assess the validity of government action. Given the supervisory nature of the role played by the reviewing court, the record on which the review is conducted generally consists of the documents and information that were before the decision maker, although the record may be supplemented in certain limited circumstances to permit the court to discharge its supervisory function: British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310 at para. 25. [29] Courts are also generally reluctant to permit new issues to be raised on judicial review that were not before the administrative decision-maker: The Owners, Strata Plan VR 1120 v. Civil Resolution Tribunal, 2022 BCCA 189 at paras. 45-46, citing Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 at para.

23. That reluctance is particularly apt when it is a new party that seeks to join the judicial review proceeding to raise new issues. [30] Further, while judicial review is an available and appropriate mechanism to review the adequacy of consultation with First Nations, it is not a forum to resolve underlying disputes about the nature and scope of rights, including competing claims between First Nations. Put another way, as the judge acknowledged, a duty to consult may arise as a result of asserted, as distinct from established, rights: Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215 at paras. 12-13; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 at para. 2. [31] It is well established that Aboriginal rights must be "proven by tested evidence; they cannot be established as an incident of administrative law proceedings that centre on the adequacy of consultation and accommodation": Ktunaxa Nation v. British Columbia, 2017 SCC 54 at para. 84. [32] These principles support the judge's finding that the Province's consultation with WMFN was premised upon WMFN's asserted rights "and not on any recognition that [WMFN] had established title, and certainly not in a manner that came at the expense of [MLIB's] own claim to those same lands" (RFJ at para. 6). [33] MLIB submits that in applying to be

added as a respondent to the WMFN judicial review proceeding, it is not seeking a determination of competing rights. Rather, it is concerned that a judge hearing the judicial review will, of necessity, have to address the strength of WMFN's claim of Aboriginal rights in order to determine the depth of consultation owed by the Crown. MLIB notes, as I have alluded to, that WMFN seeks a declaration that it is entitled to consultation at the deep end of the constitutional spectrum (see para. 5 above). [34] MLIB cites Haida Nation v. BC (Minister of Forests), 2004 SCC 73 at para. 39 where the Court stated: the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. [35] MLIB submits in undertaking that preliminary assessment, the judge may make findings or observations that might prejudice the exercise of its Treaty Rights. [36] Respectfully, this is not sufficient to satisfy the test for being added as a respondent to the judicial review proceeding. As I have already stated, the potential impacts identified by MLIB do not rise above the level of speculative and indirect. Further, as Haida Nation makes clear, the assessment of the strength of the claim underpinning the duty to consult is preliminary, and I fail

to see how anything said by the judge would adversely impact MLIB in its exercise of its Treaty Rights or in respect of the competing claims of WMFN and MLIB. [37] In the circumstances, MLIB has not demonstrated that the judge erred in finding that "[t]he decision that this court will be called upon to make in the judicial review application will not affect the interests of [MLIB]" (RFJ at para. 8). [38] While this is sufficient to dispose of MLIB's appeal, I will briefly address MLIB's argument that the judge erred in relying on the decisions in Gitga'at First Nation v. British Columbia (Environment), 2015 BCSC 1703 and We Wai Kai First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2023 FC 1259. MLIB argues that both cases are distinguishable. [39] Specifically, MLIB submits that the courts in those cases dealt with applications to be added to judicial review proceedings on the basis of concerns that the reviewing court might make comments or a determination about Aboriginal Title or strength of title that could adversely impact the applicants' assertions to Title in a particular area. In both cases, the court stated that it would not be in a position to determine issues of relative strength of Aboriginal Title: We Wai Kei at paras. 49, 51; Gitga'at at paras.

34. In contrast, MLIB submits that this case does not involve issues of Aboriginal Title; rather it raises issues of the consultation required in connection with established rights on its part, and asserted rights by WMFN. [40] Respectfully, there is no merit to this ground of appeal. Gitga'at and We Wai Kei are not distinguishable on the basis advanced by MLIB. For example, Gitga'at involved a judicial review application brought by Gitga'at First Nation alleging that it was entitled to be consulted in connection with an LNG project proposed for Prince Rupert harbour. The basis for the application was the Gitga'at's claim of non-exclusive rights in the harbour. Two other First Nations applied to be added as respondents to the petition in order to assert the position that the Gitga'at in fact have no such claim. The judge dismissed the application, holding that the decision on judicial review "would not prejudice or undermine the strength of the applicants' ultimate claims, as any declarations made at the judicial review would not be a final determination on this issue" (at para. 32). This finding applies with equal force to the case at bar. [41] We Wai Kei involved an application for judicial review in the Federal Court of a decision by the Minister of Fisheries, Oceans and the Canadian Coast Guard refusing to reissue finfish aquaculture licences for 15 sites in the Discovery

Islands of BC. The applicants were all former finfish aquaculture licence holders and included the First Nation that had asserted Aboriginal Title over the areas where a number of the aquaculture sites were located. The claim to Aboriginal Title had not been proven in court. Another First Nation, the Homalco First Nation ("Homalco") applied to be added as a party to the judicial review proceeding on the basis of its competing claim to Aboriginal rights and Title in the subject area. [42] Homalco's application was dismissed on the basis that it had not met its burden to show that the relief sought by the applicants in the judicial review proceeding "will directly affect their rights or prejudicially affect them in a direct way" (at para. 47). The Court said: [49] I am satisfied that Homalco's arguments fundamentally misunderstand the Court's role on a reasonableness review. On such a review, the Court is required to assess the reasonableness of the decision made - nothing more. The suggestion that the reviewing court might make comments or determinations about Aboriginal title or strength of title go well beyond the proper role of a reviewing court: Ka'a' Gee Tu First Nation v Canada (Attorney General), 2007 FC 763 at para 107; Ka'A' Gee Tu First Nation v Canada (Attorney General), 2012 FC 297 at para 118; Gitga'at First Nation v British Columbia (Environment), 2015 BCSC 1703 at

paras 32-33. [43] MLIB takes issue with the last sentence of this quote, again arguing that the judge on judicial review will have to assess the strength of WMFN's claim in order to determine the depth of consultation required. However, as I understand the decisions in both Gitga'at and We Wai Kai, the courts were making the point that the applicants would not be prejudiced given the nature and scope of the judicial review proceedings. These proceedings would not involve any final determinations of competing rights and title claims. [44] Further, I agree with the observations of the courts in both Gitga'at and We Wai Kei that the proposed joinder of additional parties to the judicial review would unduly and improperly transform and complicate the proceeding. As the Court said in Gitga'at at para. 33: I further agree with the Gitga'at that to add the applicants as respondents on the judicial review, such that they would be in a position to file substantial evidence as to not only their specific claims, but possibly claims of other First Nations, would go far beyond the permissible parameters of the judicial review, such that the review would descend into a complex and lengthy process where the parties would seek judicial determinations as to the ultimate merits of all the competing claims. As the Gitga'at submit, the judicial review is not the proper venue for such a

determination. See also: We Wai Kei at para. 53. [45] MLIB submits that it is not attempting to significantly expand the scope of the WMFN judicial review or the record. It says that it simply wishes to file a modest amount of evidence to bring its concerns to the attention of the judge hearing the judicial review. In my view, MLIB's involvement would not be so constrained. [46] While the proposed evidence, in the form of Chief Chingee's affidavit, is relatively brief, it raises issues that would inevitably expand the issues before the court and the evidentiary record. For example, Chief Chingee expresses his belief that WMFN had not historically claimed connections to certain of the lands in issue and he specifically disputes that WMFN can properly claim any Aboriginal rights with respect to those lands. [47] As WMFN submits, if that evidence was admitted into the judicial review record, it would be compelled to respond, thus adding a significant degree of complexity to what was intended to be a focussed judicial review proceeding dealing with specific forestry activities of Canfor. [48] In my view, the judge was entirely correct when he stated, at para. 8, that "[w]hat [MLIB] seeks to raise is not something that this court ought to be addressing in the context of this particular proceeding". MLIB has demonstrated no error in the judge's conclusion. [49] As a final point, the

judge's reasons deal with MLIB's application under Rule 6-2(7) but do not address the alternative relief sought under Rule 16-1(3). That relief was not addressed in any meaningful way in the parties' factums, although it was touched upon briefly in oral submissions. In my view, MLIB's request for this relief fails for similar reasons as the relief sought under Rule 6-2. MLIB has not established that its interests will be affected by the judicial review. Further, the evidence sought to be adduced by MLIB will unduly expand the issues and the evidentiary record. Accordingly, MLIB has not demonstrated any error on the part of the judge in dismissing this aspect of MLIB's application. Conclusion [50] I would therefore dismiss the appeal. [51] STROMBERG-STEIN J.A.: I agree. [52] VOITH J.A.: I agree. [53] STROMBERG-STEIN J.A.: The appeal is dismissed. "The Honourable Justice Skolrood"