William v. British Columbia

2003BCSC0735 In the Supreme Court of British Columbia Citation: William et al. v. British Columbia et al., 2003 BCSC 735 Date: 20030512 Docket: 90 0913 Registry: Victoria Between: ROGER WILLIAM, oN HIS OWN BEHALF AND ON BEHALF OF ALL OTHER MEMBERS OF THE XENI GWET'IN FIRST NATIONS

GOVERNMENT AND ON BEHALF OF ALL OTHER MEMBERS OF THE TSILQHOT'IN NATION Plaintiff And her majesty the queen in right of the province of british columbia, the regiOnal manager of the cariboo forest region, and the attorney general of canada Defendants Before: The Honourable Mr. Justice Vickers Ruling Counsel for the Plaintiff D.M. Rosenberg P.M. Hutchings Counsel for the Defendants, Province of British Columbia and Regional Manager of the Cariboo Forest Region T.P. Leadem Q.C. K.J. Tyler R.G. Penner Counsel for the Defendant, The Attorney General of Canada B. McLaughlin Date and Place of Trial/Hearing: April 22 & 23, 2003 Victoria, B.C. [1] This is a motion for particulars by the defendants, British Columbia and the Regional Manager of the Cariboo Forest District (collectively "HMQBC"). The plaintiff opposes the motion. The defendant Canada takes no position. This motion is a consequence of my earlier ruling allowing the plaintiff to amend the statement of claim and dismissing a motion brought by HMQBC for an order striking out the statement of claim under Rule 19 (24)(a) and (d) of the Rules of Court, see: William v. B.C. (H.M.T.Q.) et al, 2003 BCSC 249. [2] In opposing the motion for leave to amend the statement of claim, counsel for HMQBC argued it was necessary for the plaintiff to plead specific infringements of title. With respect to forestry activities, he said the

plaintiff was required to plead that specific licences or authorizations have been issued or will be issued. In addition, he argued the plaintiff had to identify which specific facts are alleged to amount to a breach of fiduciary duty. In granting leave to amend the statement of claim I said, at paragraph 37, that "if British Columbia requires particulars of any plea before filing its defence, the first step is to make a request that the plaintiff supply such particulars." A similar reference to particulars is found at paragraph 61. [3] On 5 March, 2003, HMQBC issued a demand for particulars to the plaintiff in connection with the amended statement of claim (the "First Demand"). On 14 March, 2003, the plaintiff issued a reply to the First Demand (the "First Reply). On 18 March and 2 April, 2003, HMQBC identified what counsel considered certain deficiencies in the First Reply and provided a list of these to the plaintiff. On 2 April, 2003, HMQBC provided the plaintiff with a new demand for further and better particulars containing 31 discrete questions based on the First Demand and taking into account the First Reply (the "Second Demand"). On 15 April, 2003 the plaintiffs delivered a reply to the Second Demand (the "Second Reply"). [4] It is the position of HMQBC that a number of the answers provided in the Second Reply fail to comply with the requirements of the Rules of Court.

Accordingly, this is an application for further and better particulars made pursuant to Rule 19(16) of the Rules of Court in connection with the answers set out in the Second Reply. [5] In the course of argument, counsel for the plaintiff indicated he was prepared to address certain of the defendant's requests by further amendments to the statement of claim. With respect to those parts of the Second Demand which remain opposed, the position of the plaintiff can be summarized as follows: (a) they call for evidence; (b) they call for legal opinion; (c) they are unnecessary to define the issues and enable the defendant to plead; (d) the answers to the demands are in the sole possession of HMQBC; (e) they call for facts that are not currently within the knowledge of the plaintiff; (f) they call for facts that are not relevant to the plaintiff's pleadings; and (g) it would be oppressive or unreasonable to make such an order. [6] There is no real dispute about the legal principles to be applied on an application for particulars. The various functions served by particulars are well-established in the jurisprudence: (a) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved; (b) to prevent the other side from being taken by surprise at the trial; (c) to enable the other side to know what evidence they ought

to be prepared with and to prepare for trial; (d) to limit the generality of the pleadings; (e) to limit and decide the issues to be tried, and as to which discovery is required; and (f) to tie the hands of the party so that he cannot without leave go into any matters not included. Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 at para. 15 (C.A.); G.W.L. Properties v. W.R. Grace & Co. (1993), 14 C.P.C. (3d) 97 at 1000 (B.C.S.C.). [7] Counsel for HMQBC acknowledges that the delivery of further and better particulars is primarily discretionary and depends on the facts of each case: G.W.L. Properties v. W.R. Grace & Co., supra. It is the position of HMQBC that the word "necessary" in Rule 19(11) is not limited merely to those particulars that define the issues and enable the defendant to plead. Counsel for HMQBC points out that this is only one of the functions of particulars as set out by the Court of Appeal in Cansulex, supra. As noted recently by Macaulay, J. in Kimpton v. Canada (Attorney General), [2002] B.C.J. No. 87 (S.C.), at paragraph 25: As pointed out at para. 16 of the decision, courts are encouraged to do anything that can be done to require the parties to bring forward the real issues for consideration so as to avoid surprise. See also G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada, [1993] B.C.J. No. 1062 at 3 (S.C.) and Nesbitt v. Wintemute, (1978) 8 B.C.L.R.

286 to similar effect. Kimpton contended that the majority judgment in the earlier Court of Appeal decision in Big Bay Timber Ltd. v. Arkinstall Logging Co. Ltd. (1978), 88 D.L.R. (3d) 494 at p. 496, limited "necessary" to that which enabled a defendant to plead and to prevent surprise at trial but I am not persuaded that was intended. In any event, I prefer the more expansive statement of the functions of particulars found in the later decision of Cansulex. I also observe that in that case, the court described Big Bay as illustrating only that particulars are intended to delineate the issues between the parties. (emphasis added) [8] At the heart of HMQBC's demand lie the differing views the parties to this action take of what must be proven to succeed in a claim for aboriginal rights and title. Reference is made to these views in my earlier ruling in William, supra at paras. 49 and 50: British Columbia takes the view that the claim area is a vast expanse of land on which on-the-ground infringements may have occurred in smaller, discrete areas. The plaintiff, on the other hand, intends to prove that infringement by logging activities in a small discrete area of the land has an impact on the environment and the wildlife in the entire land area. Conversely, British Columbia says the correct approach is to identify these infringements and the specific areas in which they occurred

and then proceed to deal with title and rights issues on this basis. In support of this approach, the Province relies on Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539. The plaintiff says that to deal with rights and title issues in this piecemeal fashion is not required by Cheslatta, and makes little sense in the context of the proceedings. The plaintiff points out that Cheslatta deals with rights, and may or may not be applicable to title. The plaintiff maintains that it is entitled to make a claim in relation to a larger area, particularly where, as here, that area is the heartland of a larger territory that has been decimated by logging activity. To deal with the claim in the manner proposed by British Columbia would likely defeat the very purpose of the claim: that is, to preserve this heartland. It does not make sense, in the plaintiff's submission, to wait for actual on-the-ground conflict that would force the plaintiff to choose between allowing interference in the claim area, and acts of civil disobedience. [9] The argument advanced by HMQBC in William, supra, was renewed on this motion. In advancing the proposition that aboriginal title and rights were tied to specific infringement of discrete parts of the land, counsel said the following: It's tied to land and it's tied to an ascertainable definable infringement on that parcel of land, thereby giving ...

the Province an opportunity to lead evidence by way of justification of that infringement. So that's what our theory is in terms of how you go about proving aboriginal title. Now, where did we come up with that theory? We came up with that theory because we read the cases and we followed the jurisprudence ... laid out by the Supreme Court of Canada in cases such as Delgamuukw and Gladstone and Van der Peet and Sparrow, the landmark decisions all drove us into construing our case in that fashion. And we found solace for that position in the decision of our Court of Appeal in Cheslatta. The underpinnings of all of those cases have to deal with the reconciliation of Crown sovereignty with the assertion of the aboriginal right or title in question. That's the key to understanding the position of Cheslatta. It's also the key to understanding the analysis of aboriginal title and rights, the four-stage analysis In my view, such rights cannot be properly defined separately from the limitation of those rights. The latter are needed to refine and ultimately define the former. [10] The position of HMQBC is clear. Aboriginal rights cannot be properly defined separately from the limitation of those rights. This position is the foundation of the demand for particulars now before the court. [11] In its Second Demand, HMQBC refers to 31 numbered Demands. [12] In Demand #1, HMQBC seeks

"unambiguous particulars of the differences between the Xeni Gwet'in as an Aboriginal group and the Tsilhqot'in as an Aboriginal group sufficient to enable the British Columbia Defendants to know to whom the Plaintiff is referring in his distinct statements concerning the two groups." [13] HMQBC notes that paragraphs 2, 3 and 4 of the statement of claim refer to both the Tsilhqot'in Nation and the Xeni Gwet'in. Paragraph 2 asserts that "the Tsilhqot'on Nation is an aboriginal group itself comprised of several aboriginal groups including the Xeni Gwet'in. [14] Demand #2 is for the plaintiff to "[p]rovide unambiguous particulars of who the Plaintiff says are members of the Tsilhqot'in Nation Aboriginal group sufficient to enable the British Columbia Defendants to know to whom the Plaintiff is referring in his distinct statements concerning the Tsilhqot'in, including particulars of the basis upon which persons who are not members of the Xeni Gwet'in, the Tl'etinqot't'in Government Office (Anaham Indian Band); the Yunesitin (Stone Indian Band); the Tsi del del (Alexis Creek Band); the Esdilagh (Alexandria Indian Band); or the Tl'esqox (Toosey Indian Band) are claimed by the Plaintiff to be members of the Tsilhqot'in Nation." [15] These first two demands cannot succeed because they call for evidence. What constitutes aboriginal groups, their entitlement and their existence at common

law is a matter to be decided after hearing all of the evidence at trial. Oregon Jack Creek Indian Band v. Canadian National Railway Co., [1989] B.C.J. No 211 (C.A.), aff'd [1989] 2 S.C.R. 1069. [16] Demands #3 and #4 relate to the pleas set out in paragraphs 6, 21 and 22 of the statement of claim. My understanding is that these paragraphs will be amended to assert claims in the alternative. HMQBC also seeks particulars of decisions that the Regional Manager of the Cariboo Forest Region has made or is authorized to make with respect to forest development activities in the claim area. In my view, the pleadings place in issue all forest licences, past and present. The plaintiff is not required to provide a detailed list of those licences because that is evidence and not material fact. In addition, it is evidence that is within the knowledge of HMTQBC. For these reasons I do not propose to order the delivery of the particulars demanded. [17] In reaching that decision it will be apparent that I do not consider an on the ground examination of each forest licence to be an appropriate way to proceed with this action. The pleadings assert that the issuance of forest licences anywhere in the claim area is an interference with, and thus an infringement of, aboriginal rights and title to the whole area. An examination of what was involved in the issue of specific licences in past decades

could lead to a trial that would never end. That cannot be what was envisioned by the Supreme Court of Canada. The plaintiff is entitled to advance the claim as he sees fit. One of the issues the court will be asked to decide, after hearing the whole of the evidence, is whether the issuing of certain forest licences constitutes an infringement of title or rights to an area greater than that referred to in an individual licence. The licences in issue are matters of evidence, revealed in the discovery process, either by examination for discovery or by way of interrogatories. Whether the plaintiff will succeed or fail in this claim will be determined at the end of the trial, and will rest on whether he is able to prove the claims he asserts. [18] Demand #5 is as follows: With respect to Paragraphs 8, 9, 13, and 14 of the Statement of Claim, references are made to "contact" and "the time of contact". (a) Do all of these references refer to the same event? (b) What does the Plaintiff say that event, or those events, was or were? (c) On what date or dates does the Plaintiff say that event, or those events, occurred? [19] HMQBC seeks a statement from the plaintiff of the event which the the plaintiff says constitutes contact for the purpose of determining whether or not the practice claimed as an aboriginal right was integral to the culture of the group which the plaintiff purports to

represent at and before that event occurred, and the date upon which the Plaintiff says that event occurred. Counsel for the plaintiff says that the test for what constitutes first contact is a question of mixed fact and law and has yet to be decided. [20] I conclude that in relation to the plaintiff's claim for aboriginal rights, the defendants are entitled to know the approximate date of first contact relied upon by the plaintiff. An essential part of court's analysis of the claim for aboriginal rights will be a determination of whether the right alleged was integral to the culture of the group before first contact. While this analysis may require a consideration of the historical record and legal argument to decide "first contact" as a matter of law, the approximate date the plaintiff will rely upon in advancing the claim for aboriginal rights is a material fact the defendants are entitled to know. There will be an order that the plaintiff comply with this demand. [21] Demand # 6 refers to paragraph 15 of the statement of claim, in which the plaintiff alleges that British Columbia has recognized the aboriginal right of the Xeni Gwet'in to trap. Here, HMQBC seeks particulars of the "material facts the Plaintiff [relies on] to say that the defendant British Columbia has recognized the aboriginal right of the Xeni Gwet'in to engage in Trapping Activities, other than the

issuance of Trapping Licence #0504T003". [22] The plaintiff says the existence of an aboriginal right does not depend on recognition by the Crown. While this may be true, it is the plaintiff who has pleaded recognition of the right to trap as material to this claim for an aboriginal right. I understand the paragraph is not intended to raise a plea of estoppel. On it face it may be an entirely unnecessary plea. It appears to me, however, that the demand is one for evidence the plaintiff will rely upon to prove what the plaintiff pleads as a material fact, namely, recognition. As Demand #6 seeks evidence, there will be no order with respect to this demand. [23] Demands # 7, 8, 9, and 10 seek particulars of paragraphs 16, 20, 21 and 22 and paragraph (c) of the prayer for relief of the statement of claim. These demands require the plaintiff to provide particulars of past, present and proposed forest licences and authorizations for forest development activities and particulars of interests in forest resources that the plaintiff says are proposed to be granted in the claim area. [24] For the reasons set out in paragraphs 15 and 16 of these reasons, I consider that demand is to be for evidence and not material facts. Accordingly, the requests of HMQBC relating to these demands are dismissed. [25] Demand #11 refers to paragraph 17 of the statement of claim and seeks particulars "of any

fiduciary obligations on the part of British Columbia or the Regional Manager, other than the duty to consult referred to in Paragraph 24 of the Statement of Claim, which the Plaintiff alleges and upon which he relies in this action." Counsel for the plaintiff has advised there are none, and accordingly a formal answer to that effect will suffice. [26] Demands #12 and 13 relate to the plea in paragraph 17 that British Columbia has denied its fiduciary duty to the plaintiff. My understanding is that this paragraph and other paragraphs linked to a denial of duty will be amended to reflect a positive assertion that British Columbia has failed to deal with the claim area as a fiduciary. When this amendment is made, no particulars will be required. [27] Demands #14 to #21 relate to paragraph 17 of the statement of claim. They are demands seeking particulars of forest licences, authorizations and forest development activities in the claim area. For the reasons already given, these are demands for evidence and accordingly, they are dismissed. [28] I should also say that Demands #14 to #21 are demands for evidence that is within the knowledge of HMQBC. For this reason as well, the demand for particulars is not appropriate. See Cominco Ltd. v. Westinghouse Canada Ltd. et al (1978), 6 B.C.L.R. 25 (S.C.); Dillingham Corp. v. Finning Tractor & Equipment Co., [1983] B.C.J. No. 1098 (S.C.);

Neptune Bulk Terminals (Canada) Ltd. v. Kilborn Engineering Pacific Ltd., [1994] B.C.J. No. 75 (S.C. Master). [29] Demand #22 relates to paragraph 17(b) of the statement of claim. Here particulars are sought concerning what the plaintiff will rely on to say that the claim area was included in the Williams Lake Timber Supply Area. This too is a demand for evidence. It is evidence the plaintiff intends to call to prove a material fact, namely, that the territory is included in the Williams Lake TSA. Accordingly, this demand is dismissed. [30] Demands #23 and 24 relate to paragraph 18 of the statement of claim, and become unnecessary when the proposed amendments to paragraph 18 are made. [31] Demand #25 relates to paragraph 20 of the statement of claim. HMQBC seeks particulars respecting cutting permits referred to by the plaintiff. The plaintiff intends to amend this paragraph to include the words, "within the Brittany and Trapline Territory" after the words "cutting permits" in the last line. This should obviate the need for particulars. If I am wrong in this assumption then I conclude this is a demand for evidence. For the reasons already given, the demand is dismissed. [32] Demand #26 relates to paragraphs 21, 22 and 25 and paragraph (l) of the prayer for relief. Particulars are sought regarding: ... how British Columbia is alleged to have breached its alleged fiduciary duties

to the Tsilhqot'in and the Xeni Gwet'in in respect of activities which may or may not occur in the future including: (a) Forest Licences it is considering issuing (para. 21); (b) Forest Licences it may be considering issuing (para. 21); (c) Any proposed Authorizations (para 22); none of which have been particularized by the Plaintiffs. [33] My understanding is that the plaintiff is not alleging a breach of fiduciary duty in respect of potential future actions. Thus, no particulars are required. The plaintiff should formally advise the defendants that no such allegation is being made. [34] Demand #27 relates to paragraph 25. This demand for particulars is again concerned with future events. As noted above, my understanding is that the plaintiff is not alleging a breach of fiduciary obligation in respect of some potential future event and thus that no particulars are required. Again, the plaintiff should formally advise the defendants that no such allegation is being made. [35] Demand #28 is in respect of the allegations made in Paragraphs 20 and 27 of the statement of claim. HMTQBC seeks to know whether the Plaintiff says that "the passage of Regulation 92/97 unjustifiably infringed the aboriginal title of the Tsilhqot'in Nation and the aboriginal rights of the Xeni Gwet'in". The plaintiff says this is a matter of legal argument. It is true the outcome of the issue raised by the

pleading is a matter of legal argument. However, the defendants are entitled to know whether it is alleged that the passage of the regulation unjustifiably infringed the aboriginal title of the Tsilhqot'in Nation and the aboriginal rights of the Xeni Gwet'in. This is a material fact, and the plaintiff is thus required to provide that particular. [36] I understand Demand #29 is resolved. [37] Demands #30 and 31 relate to paragraph 27 of the statement of claim and are concerned with discretions conferred by the Forest Act, R.S.B.C. 1996, c.

157. I understand these demands will be satisfied by a formal response stating, "all discretions that relate to forestry activities in the claim areas" or words to that effect. The plaintiff should provide the defendants with such a response. [38] In summary: (a) demands numbered 1-4, 6-10, 14-22, and 25 are dismissed; (b) demands numbered 5 and 28 are allowed and the plaintiff shall provide the particulars requested; (c) the plaintiff shall provide a formal response, as outlined in these reasons, to demands numbered 11, 26-27, and 30-31; (d) the plaintiff shall amend demands numbered 12-13 as outlined in these reasons; and (e) no changes are necessary with respect to demands numbered 23-24 and 29. "D.H. Vickers, J." The Honourable Mr. Justice D.H. Vickers