Yahey v. British Columbia

2020 BCSC 278 Yahey v. British Columbia

THE SUPREME COURT OF BRITISH COLUMBIA Citation: Yahey v. British Columbia, 2020 BCSC 278 Date: 20200227 Docket: S151727 Registry: Vancouver Between: Marvin Yahey on his own behalf and on behalf of all other Blueberry River First Nations beneficiaries of Treaty No. 8 and the Blueberry River First Nations Plaintiffs And Her Majesty the Queen in Right of the Province of British Columbia Defendant Before: The Honourable Madam Justice Burke Reasons for Judgment (s. 35(1) and Court Hearing Fees) Counsel for the Plaintiff: F. Matthew Kirchner Maegen Giltrow Counsel for the Defendant: Richard Williams Jacqueline D. Hughes Timothy Pritchard J. Kim (AS) Place and Date of Hearing: Vancouver, B.C. October 7 - 8, 2019 Place and Date of Judgment: Vancouver, B.C. February 27, 2020 I. Introduction [1] This application arises in the context of an action brought by the Blueberry River First Nations ("Blueberry") against Her Majesty the Queen in Right of the Province of British Columbia ("Crown") alleging infringements of their rights under Treaty 8 from the cumulative impacts of a variety of Crown authorized activities occurring in their traditional territory. The background to this matter is set out in Yahey v. British Columba, 2017 BCSC 899. [2] In this application, Blueberry seeks to be relieved from paying the daily hearing fees prescribed by the Supreme Court Civil Rules [Rules] and set out

in Appendix C, Schedule 1, at Item 10 for the duration of the trial of the underlying action. [3] In accordance with the Rules, the plaintiff who files the Notice of Trial is responsible for paying daily court hearing fees. Schedule 1 in Appendix C of the Rules sets out the fees payable to the Crown. Items 8-10 in the Schedule 1 table provide as follows: Item Description Fee ($) Hearings 8 For resetting a trial or hearing 200 9 For each day spent in whole or in part at a hearing, unless the attendance on that day is for reasons for decision only, payable by the party who files the notice of application, appointment or other document by which the hearing was set, unless the court orders payment by another party For the first 3 days: 0 For each of the 4th to 10th days: 500 For each day over 10: 800 10 For each day spent in whole or in part at trial, unless the attendance on that day is for judgment only, payable by the party who files the notice of trial, unless the court orders payment by another party (Emphasis added) For the first 3 days: 0 For each of the 4th to 10th days: 500 For each day over 10: 800 [4] The underlying trial is currently set for 160 days. For Blueberry, that means paying over $120,000 in hearing fees to the Crown. [5] Rule 20-5(1) provides for a waiver of fees in certain circumstances: Rule 20-5 ̶ PERSONS WHO ARE NOT REQUIRED TO PAY FEES Court may order

that no fees are payable (1) If the court, on application made in accordance with subrule (3) before or after the start of a proceeding, finds that a person (a) receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, or (b) cannot, without undue hardship, afford to pay the fees under Schedule 1 of Appendix C in relation to the proceeding, the court may order that no fees are payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding unless the court considers that the claim or defence (c) discloses no reasonable claim or defence, as the case may be, (d) is scandalous, frivolous or vexatious, or (e) is otherwise an abuse of the process of the court. [6] Rule 20-5(3) provides that an individual seeking a waiver from the fees must make an application to the court supported with an affidavit attaching either a financial statement or proof of benefits. [7] There are therefore two possible avenues provided by the Rules and Appendix C for a party seeking relief from the obligation to pay the hearing fees: (1) an application for waiver of fees under R. 20-5(1) based on receipt of benefits or undue hardship; or (2) an application for an order under Schedule 1 of Appendix C, Item 10 that another party pay the fees. In addition, an individual could raise a challenge to the

constitutionality of the fees. [8] Blueberry seeks an order under Appendix C, Schedule 1, Item 10 of the Rules that the Crown defendant pay the daily hearing fees; or, in the alternative, a constitutional exemption from paying the hearing fees based on s. 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [s. 35(1)]; or, if necessary, a declaration that the hearing fees are constitutionally inapplicable under s. 52(1) of the Constitution Act, 1982 [s. 52(1)] to the extent they are inconsistent with s. 35(1). They do not seek a waiver of fees based on undue hardship under Rule 20-5(1). [9] Blueberry argues that being required to pay hearing fees in their circumstances is inconsistent with s. 35(1) and the objective of reconciliation. Blueberry argues that it is neither honourable nor constitutional for the Crown to charge Indigenous peoples seeking to enforce their s. 35(1) rights - and the Crown's solemn commitments in respect of those rights - substantial daily hearing fees simply to access the court for this purpose. [10] The Crown opposes the relief sought, relying in particular on a recent case concerning the Medicare Protection Act, R.S.B.C. 1996, c. 286, in which the plaintiffs' application to be relieved from payment of the hearing fees was denied (Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCSC

1493 [Cambie Surgeries S.C.] and Cambie Surgeries Corporation v. British Columbia (Attorney General), 2018 BCCA 385 [Cambie Surgeries C.A.]). II. Background [11] The background as to how the underlying action has proceeded through the court is as follows. [12] Blueberry filed a Notice of Civil Claim in March 2015. As part of that claim, Blueberry has twice sought to enjoin the Crown from authorizing any activities that would infringe their treaty rights pending trial. Blueberry first sought a limited injunction to restrain certain forestry activities. The court dismissed that application reasoning it was not in the public interest to deal with a hold on activities on a piecemeal, project-by-project basis (Yahey v. British Columbia, 2015 BCSC 1302). Blueberry then sought to enjoin the Crown from allowing a broader array of further industrial development, including oil and gas development, processing, and transportation, as well as logging. This Court dismissed that broader injunction application, and held that the issues raised needed to be dealt with and tested at trial (Yahey v. British Columbia, 2017 BCSC 899). [13] Blueberry also sought to judicially review the Crown's decision to enter into a long term royalty agreement with an oil and gas company. The court dismissed that application. In so doing, it referenced the comprehensive nature of the claims advanced in the

underlying action, and concluded that the issues raised were not "separate and discrete and amenable to determination in a separate judicial review proceeding" (Blueberry River First Nations v. British Columbia (Natural Gas Development), 2017 BCSC 540). [14] This procedural history demonstrates that the courts have repeatedly told Blueberry that to enforce its treaty rights, it must proceed to trial. [15] In the meantime, the plaintiffs in Cambie Surgeries brought an application to have the defendant in that case (the Province) pay the daily hearing fees under Appendix C; or have the fees set aside as unconstitutional under ss. 92(14) and 96 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 [Constitution Act, 1867] to the extent that they applied to prima facie meritorious constitutional challenges to government actions. One of the arguments made by the plaintiffs in that case was that they were not participating in the litigation voluntarily, but as a result of the Province's actions. [16] In August 2017, Justice Steeves issued his reasons for judgment in Cambie Surgeries S.C. dismissing the plaintiffs' application. On the question of when a court should order "payment by another party" of the hearing fees, Steeves J. concluded at paras. 17-18 that the voluntariness of a litigant was not determinative. The court stated that a

more appropriate application of the phrase "unless the court orders payment by another party" in Appendix C is for cases where there are reasons to award advance costs. The plaintiffs appealed on the issue of the constitutionality of the hearing fees. [17] In late 2017, Blueberry sought an order to stay its obligation to pay hearing fees pending the appeal of Cambie Surgeries S.C. In February 2018, this Court granted that stay in reasons indexed as 2018 BCSC 278. [18] In February 2018, Blueberry sought leave to intervene in the appeal of Cambie Surgeries S.C. The Crown opposed Blueberry's proposed intervention pointing out that allowing it to make arguments regarding s. 35(1) would raise new issues in the appeal. The Court of Appeal denied Blueberry's application for leave to intervene as the appeal would not address the question of the constitutionality of hearing fees with regard to s. 35(1). Smith J.A. said, at para. 14 of the intervention decision, that the s. 35(1) context "raises distinct obligations on the part of the Crown that are not owed to other Canadians." [19] Blueberry's treaty infringement trial was originally set to begin on March 26, 2018 and was estimated at that point to take over 100 days. It was adjourned in the spring of 2018 for six months and again in the fall of 2018 to allow the parties to pursue negotiations. [20] On October 19, 2018 the Court of

Appeal released its decision in Cambie Surgeries C.A., dismissing the appeal. The Court of Appeal found that the hearing fees regime was constitutional and there was no principled reason to exempt the plaintiffs from paying the required amounts. [21] Despite the two separate adjournments of approximately six months each, Blueberry and the Crown were unable to negotiate a resolution of the issues. On May 29, 2019 Blueberry's trial commenced. [22] On July 17, 2019, Blueberry issued a Notice of Constitutional Question and on July 18, 2019 Blueberry filed this Notice of Application. On August 7, 2019, the Crown advised the Court that, pending of the resolution of the constitutional question, an agreement had been reached to suspend the collection of daily hearing fees until the disposition of the application. [23] On October 7 and 8, 2019, this Court heard Blueberry's application to be relieved from paying hearing fees. At the time the application was heard, the estimate of hearing fees due was approximately $82,000, based on 108 days of trial. Since then, additional days have been added, most of which were at the Crown's request. As noted earlier, the current anticipated number of trial days is 160, which would result in hearing fees payable by Blueberry to the Crown in the range of $120,000. III. Issues [24] This application raises two main issues: a) Are the hearing fees set out

at Item 10 of Schedule 1 in Appendix C when applied to Blueberry in the circumstances of this trial inconsistent with s. 35(1), the principle of the honour of the Crown and the objective of reconciliation? b) If so, what is the appropriate remedy? Is Blueberry entitled to: i. a constitutional exemption from payment of the daily court hearing fees in this action based on s. 35(1)? ii. a declaration of inapplicability under s. 52(1)? iii. an order under Appendix C, Schedule 1, Item 10 requiring the defendant Province to pay the daily hearing fees? IV. Positions of the Parties Blueberry's Position [25] Blueberry argues that the Province's power under s. 92(14) of the Constitution Act, 1867 to legislate regarding the administration of justice in British Columbia must be exercised in a manner that upholds the honour of the Crown, promotes the objective of reconciliation, and is consistent with the recognition and protection of Aboriginal and treaty rights by s. 35(1). Blueberry argues it is contrary to the commitment in s. 35(1) for the Crown to charge Indigenous plaintiffs substantial fees simply to access the court for the purpose of enforcing their constitutionally protected Aboriginal and treaty rights. [26] In addition, Blueberry argues that s. 35(1) rights are unique, and so is the relationship between the Crown and Indigenous peoples. Section 35(1) serves to protect

Aboriginal and treaty rights, and to reconcile the assertion of Canadian sovereignty with the pre-existence of Indigenous societies. [27] While consultation and negotiation is the primary method of reconciliation, Blueberry notes that the courts also play an essential role in reconciliation. It says that challenging government action that infringes Aboriginal rights in court is a core aspect of the commitment in s. 35(1) and that without litigation, reconciliation would stall. As courts are a necessary pillar in achieving reconciliation, charging a fee to Indigenous plaintiffs to access the court when seeking to have their rights upheld and enforced is unfair and contrary to the objectives of s. 35(1). [28] Blueberry says that neither Cambie Surgeries S.C nor Cambie Surgeries C.A. dealt with the s. 35(1) issue they raise in this application. Blueberry says the fact that the Court of Appeal refused to grant them intervener status in Cambie Surgeries C.A. shows that it did not intend to, nor did it, address the implications of the hearing fee regime as it pertains to s. 35(1) and did not consider the impacts of the fee regime from an Indigenous perspective. Similarly, the issue was not before the Supreme Court of Canada (S.C.C.) in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 [Trial Lawyers] which dealt with financial hardship;

nor was this issue before the S.C.C. in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, which dealt with whether the Band had a constitutional right to legal fees funded by the Crown. [29] Blueberry argues that hearing fees disproportionately burden Indigenous peoples, given the complexity and length of Aboriginal and treaty rights claims. They say hearing fees should not penalize Indigenous litigants for the resulting lengthy trials: see Trial Lawyers at para. 61. [30] Blueberry asks this Court to exercise its discretion under Appendix C to order the Crown to pay the hearing fees. It says this discretion is built into the wording of Appendix C and, having regard to the constitutional issues raised, ought to be used in this case. In the alternative, Blueberry seeks a constitutional exemption and/or a declaration of constitutional inapplicability. The Crown's Position [31] By way of context, the Crown points out that it does not charge hearing fees to generate revenue. The amount collected from hearing fees accounts for only a small portion of the total cost of administering and supporting trials and hearings in the British Columbia Supreme Court. As held in Trial Lawyers, charging hearing fees is an attempt to partially offset the cost of administering the justice system and to encourage efficient trials, thereby increasing overall access to

justice. The Province's power to legislate under s. 92(14) of the Constitution Act, 1867 is constrained by s. 96 of the Constitution Act, 1867, and, relying on Trial Lawyers, the Crown argues hearing fees are constitutional and applicable unless a litigant can establish financial undue hardship. [32] The Crown argues that Blueberry's application is premised on the proposition that the honour of the Crown confers a form of preferential access to justice on s. 35(1) litigants. This position, the Crown maintains, cannot be reconciled with well-settled jurisprudence. The Crown points to the S.C.C.'s dicta in R. v. Van der Peet, [1996] 2 S.C.R. 507 [Van der Peet] and Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55 [Paul] that claims brought in respect of s. 35(1) rights are of equal importance and significance to Charter and other constitutional claims. The Crown submits that to grant Blueberry the relief they seek the court must have a principled reason to depart from the established jurisprudence. [33] Second, the Crown argues that the principles animating s. 35(1) do not establish a basis for a claim to excuse Blueberry from paying hearing fees. It says the S.C.C. rejected similar arguments in Okanagan Indian Band. In Okanagan Indian Band the S.C.C. upheld a decision by the British Columbia Court of Appeal which found that s. 35(1) did not place an affirmative

obligation on the government to provide funding for legal fees of Indigenous groups advancing s. 35(1) claims. Similarly, the Crown points out that in Xeni Gwet'in First Nations v. British Columbia, 2002 BCCA 434 the Court of Appeal concluded that the honour of the Crown, and its fiduciary duty towards Indigenous peoples, did not result in a positive obligation on government to fund Indigenous litigants. Relying on Canada v. Stoney Band, 2005 FCA 15 [Stoney Band], the Province argues that the honour of the Crown does not affect the Crown's litigation conduct. Finally, The Crown adds that since hearing fees are recoverable as a disbursement on an assessment of costs, Blueberry is effectively seeking an order for advance costs. [34] Third, the Crown argues there is no basis for a waiver of the hearing fees under R. 20-5(1) or for an order that the Province pay the hearing fees under Appendix C. The Crown argues that R. 20-5(1) as amended post-Trial Lawyers clearly meets the constitutional standard set in that case. The Court of Appeal recently affirmed in Cambie Surgeries C.A. and Ma v. Zhao, 2019 BCCA 248 that by establishing undue hardship as the threshold at which a waiver of hearing fees will be granted, Rule 20-5(1) meets the constitutional measure established in Trial Lawyers. The Crown further argues that Blueberry's reliance on the discretionary language in Appendix C is

an attempt to circumvent the test for waiver of fees set out in R. 20-5(1), and that the court ought not exercise its discretionary powers unless doing so is necessary. [35] On the issue of remedy, the Crown points out that the jurisprudence (R. v. Ferguson, 2008 SCC 6 [Ferguson]; R. v. Seaboyer, [1991] 2 S.C.R. 577 [Seaboyer]) cautions against use of a constitutional exemption as a stand-alone remedy and against making constitutional decisions without a proper factual foundation. The Crown says there is a lack of evidence before the court that hearing fees place a burden on Indigenous litigants. V. application of the legal principles (a) Are the Hearing Fees Set Out at Item 10 of Schedule 1 in Appendix C When Applied to Blueberry in the Circumstances of this Trial Inconsistent with s. 35(1), the Principle of the Honour of the Crown and the Objective of Reconciliation? [36] Determination of the issues raised in this application requires an examination of Blueberry's position that the Crown's power to legislate hearing fees under s. 92(14) is constrained by its commitments and obligations under s. 35(1) in the context of Aboriginal and treaty rights litigation. Blueberry says this argument is not an attempt to apply the honour of the Crown to the Crown's litigation conduct as in Stoney Band. Nor is it an attempt to have the Crown cover their legal fees or fund s. 35(1)

litigation more generally. Rather, it is an argument that the Crown, as the defendant in this s. 35(1) treaty rights claim, cannot charge the plaintiff First Nations substantial fees for access to the court to seek to enforce the Crown's own treaty obligations. This, Blueberry argues, is inconsistent with the honour of the Crown and the Crown's duties under s. 35(1) to promote reconciliation. Section 35(1) and the Constitutional Framework [37] Section 35(1) of the Constitution Act, 1982 recognizes and affirms Aboriginal and treaty rights. As the S.C.C. confirmed in R. v. Sparrow, [1990] 1 S.C.R. 1075, s. 35(1) represents a "solemn commitment" to Aboriginal peoples and a "promise" of rights recognition. In particular, at 1105-1106 the S.C.C. noted: It is clear, then, that s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. The strong representations of native associations and other groups concerned with the welfare of Canada's aboriginal peoples made the adoption of s. 35(1) possible and it is important to note that the provision applies to the Indians, the Inuit and the Metis. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. It also affords aboriginal peoples

constitutional protection against provincial legislative power. In our opinion, the significance of s. 35(1) extends beyond these fundamental effects. Professor Lyon in "An Essay on Constitutional Interpretation" (1988), 26 Osgoode Hall L.J. 95 at 100, says the following about s. 35(1): ... the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown. [38] As has been articulated in a number of S.C.C. judgements following Sparrow, the interpretation of s. 35(1) must be informed by the principle of the honour of the Crown, the "ultimate purpose" of which is the reconciliation of pre-existing Indigenous societies with the assertion of Crown sovereignty (Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 at paras. 21-28; Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 [Manitoba Métis] at para. 66; Mikisew Cree Fist Nation v. Canada, 2005 SCC 69 [Mikisew 2005] at para. 1). [39] As the S.C.C. noted in Mikisew 2005, the relationship between Indigenous peoples and the Crown is set against a backdrop of grievances

and misunderstandings (Mikisew 2005). Reconciliation involves addressing the past and fostering positive long-term relationships (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at para. 10). It is intended to promote constructive and mutually respectful relationships, and to prevent the recurrence of harm. A key goal presented by the s. 35(1) jurisprudence is to encourage the reconciliation of the respective claims and interests of Indigenous peoples and non-Indigenous Canadians. Reconciliation is our shared responsibility and the path forward. [40] Reconciliation takes place both inside and outside the courtroom. While consultation and negotiation are the primary methods of reconciliation, courts also have a role to play. The parties will not always be able to resolve the issues, and courts will be called on to determine rights and the attaching obligations. The constitutional protection given to s. 35(1) rights, and the difficult historical relationship between the Crown and Indigenous peoples, require the courts to play an active role to ensure a fair process (Kent Roach, Constitutional Remedies in Canada (2 ed.) (Toronto: Carswell, 2019) (Release No. 34, October 29) [Constitutional Remedies] at 15.150). [41] In the Aboriginal context, when considering statutes or rules that may bar, prevent or impede Indigenous peoples' ability to pursue their claims,

reconciliation must weigh heavily in the balance (Manitoba Métis at para. 141). In Manitoba Métis, the weight of reconciliation resulted in a decision that statutory limitation periods should not bar the Plaintiffs' claim for declaratory relief. [42] Courts are a necessarily pillar in the process of reconciliation. A regime that requires Indigenous plaintiffs to pay Crown defendants simply to access the court - a forum for reconciliation - is contrary to the objectives of s. 35(1). More specifically, charging significant hearing fees to Indigenous peoples who seek to uphold and protect their rights in the court undermines the Crown-Indigenous relationship, and risks exacerbating rifts, not healing them. [43] If, as the courts have repeatedly said, reconciliation is about dealing with tensions between sovereignties, and trying to find a way forward that respects the claims and interests of Indigenous peoples and non-Indigenous people, then charging the party that is coming to the court to do the work of reconciliation, goes against the very spirit of the concept. This Court finds that charging hearing fees to Indigenous peoples who must proceed to trial to seek to protect their s. 35(1) Aboriginal and/or treaty rights and pursue allegations of infringements of those rights is inconsistent with s. 35, the principle of the honour of the Crown and the objective of reconciliation.

Here, reconciliation and the honour of the Crown weigh heavily in favour of absolving Blueberry of the need to pay hearing fees. Rights protected by s. 35(1) are unique [44] Aboriginal and treaty rights protected by s. 35(1) are unique. They are different in nature and serve a different function than Charter rights held by all Canadians. This was articulated and recognized by the S.C.C. in Van der Peet, at para. 19: Although equal in importance and significance to the rights enshrined in the Charter, aboriginal rights must be viewed differently from Charter rights because they are rights held only by aboriginal members of Canadian society. They arise from the fact that aboriginal people are aboriginal. [Emphasis in original] [45] This was further explained at para. 31: More specifically, what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. [46] The Crown, however, relies on three propositions to argue

well settled jurisprudence establishes there is no reason to differentiate litigants relying on s. 35(1) from those raising Charter rights. It says: a) the S.C.C. has held that s. 35(1) and Charter rights are of equal importance and significance; b) section 35(1) and Charter litigants are equally entitled to access the courts; and, therefore, c) the Cambie Surgeries decisions, which dealt with constitutional issues and declined to order the Province to pay the plaintiffs' hearing fees, provide a full answer on the constitutionality of hearing fees in relation to s. 35(1). [47] This takes the proposition stated in Cambie Surgeries too far. Neither Cambie Surgeries decision answers the s. 35(1) question at issue. Cambie Surgeries concerned a Charter claim and not a s. 35(1) claim. Indeed Blueberry was denied leave to intervene in the appeal on the basis it had a different interest under s. 35(1) and its intervention would risk bringing a new issue in the appeal. [48] The disparate cases woven together by the Crown do not support the conclusion it seeks to advance. The linkage is weak. None of the cases relied on dealt with s. 35(1) in the context of hearing fees, or considered the impacts on Crown-Indigenous relations, the honour of the Crown, or reconciliation more broadly from charging such fees. This is the first case to consider the constitutionality of hearing fees from that

perspective. [49] The Crown relies on Van der Peet to argue that if the findings of Cambie Surgeries C.A. apply to Charter litigants, they necessarily apply to s. 35(1) litigants. Van der Peet does not necessarily stand for that proposition. While Aboriginal rights and Charter rights are equal in importance, the S.C.C. in Van der Peet emphasized that rights protected by s. 35(1) must be considered separate and distinct from Charter rights because of the unique history of Indigenous peoples in Canada. Aboriginal and treaty rights exist and are recognized and affirmed in s. 35(1) because of the pre-existence of Indigenous societies. Charter rights do not have this historical basis, nor do they engage the same kind of relationship with the Crown. [50] The Crown also cites Paul for the proposition that there is no principled basis for distinguishing s. 35(1) issues from other constitutional questions. The Crown, however, is conflating the concept of interjurisdictional immunity with s.

35. In Paul, the court was concerned with whether the Forest Appeals Commission, a statutorily created provincial administrative tribunal, had jurisdiction to engage with s. 35(1) issues. In that context, the S.C.C. concluded there was no basis for requiring an express empowerment that an administrative tribunal have jurisdiction to engage with s. 35(1) issues. The S.C.C. noted there was no persuasive basis for distinguishing who has the power to determine s. 35(1) questions and who has the power to determine other constitutional questions such as compliance with the Charter or the division of powers under the Constitution Act, 1867. [51] This comparison of s. 35(1) rights and Charter rights should not be taken out of its jurisdictional context and Paul does not stand for the proposition that s. 35(1) questions are equal to other constitutional questions for all purposes. This would be inconsistent with the S.C.C. jurisprudence set out above acknowledging the unique nature of s. 35(1) Aboriginal and treaty rights. As Blueberry notes, they are not seeking a hierarchical view of rights, but rather a recognition that s. 35(1) rights are unique and fundamentally different from Charter rights in their source and purpose. [52] Accordingly, this Court does not agree with the Crown's argument that recognizing the uniqueness of s. 35(1) rights, and relieving litigants who seek to

advance these rights of the obligation to pay hearing fees, would somehow be establishing a preferential system of access to justice. [53] Section 35(1) rights also require a process of reconciliation; Charter rights do not. As noted in Haida Nation v. British Columbia 2004 SCC 73 at para. 32, "[r]econciliation is not a final legal remedy in the usual sense. Rather it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982." This jurisprudence makes clear that reconciliation is sought between Indigenous groups as societies originally established on this land and those that came later. While negotiation is preferable to resolve disputes, litigation is sometimes necessary to advance reconciliation. The outcome of a case can, as pointed out by Blueberry, clarify the path of reconciliation. [54] The charge of a substantial fee - which ultimately is for the Crown's own benefit - to access the court to seek to uphold a constitutionally protected treaty right is antithetical to the purpose of s. 35(1), the principle of honour of the Crown, and the objective of reconciliation. The fee creates an additional obstacle for Indigenous litigants whose claims often require long trials. [55] In Blueberry's situation, it has tried other judicial proceedings to protect its treaty rights from what it views as the cumulative impacts of various Crown authorized

activities occurring in its traditional territory. As detailed in the background above, Blueberry has sought two injunctions to stop forestry activities and other industrial development, and has also applied for judicial review of the Crown's decision to enter into a long term royalty agreement. The clear direction from these unsuccessful applications was to proceed to trial. [56] The requirement to prove rights through a trial, as opposed to through other kinds of challenges, such as judicial review, is clearly set out in the jurisprudence. In numerous cases including Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, at para. 11; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 [Ktunaxa] at para. 84; Prophet River First Nation v. British Columbia (Environment), 2017 BCCA 58 at paras. 1-37, courts have noted the need for proper evidence to be marshalled at trial in order to meet specific legal tests. [57] In addition, the policy rationale behind the fee of encouraging efficient trials and thereby increasing overall access to justice is not a primary concern in s. 35(1) cases. The various tests developed by the courts for proof of Aboriginal title and rights, the interpretation of historical treaties, the existence of an infringement or breach of an Aboriginal or treaty right, and justification of such often

require expert evidence, viva voce testimony, voluminous documentary records, and in-depth written and oral arguments (Ktunaxa at para. 84). While parties are encouraged to make efficient use of the court's time, it is unrealistic to expect that these complex trials can be conducted in the one to three day window for which no hearing fees would be required, or the four to 10 day window for which hearing fees would be $500 per day rather than $800. [58] Actions brought by Indigenous peoples seeking to prove Aboriginal or treaty rights and infringements to these rights often span hundreds of days, as reflected in the published records. For example, phase one of trial in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2009 BCSC 1494, wherein the plaintiffs sought to prove and obtain declarations of their Aboriginal rights to fish took 120 days; phase two of that trial dealing with infringement and justification took 150 days (Ahousaht Indian Band and Nation v. Canada (Attorney General), 2018 BCSC 633, see paras. 17 and 26). The Aboriginal title and rights trials in Delgamuukw v. British Columbia, [1997] 3 SCR 1010 and Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 each took over 300 days. More recently West Moberly First Nations v. British Columbia, 2017 BCSC 1700, a case brought by several First Nations seeking a declaration regarding the location of the

western boundary of the territory covered by Treaty 8 took approximately 60 days. [59] Because of the complexity and length of trials dealing with Aboriginal and treaty rights, it is reasonable to conclude that the burden of hearing fees disproportionately and unfairly affects Indigenous peoples. This is of particular import given that the responsibility for reconciliation is a joint responsibility between Indigenous peoples and the Crown. [60] The Crown argues that because daily hearing fees are recoverable by a successful plaintiff as a disbursement on an assessment of costs, Blueberry is effectively seeking an order for advance costs. That is not the case. Blueberry acknowledges that the Crown does not have a duty to fund the legal fees of s. 35(1) litigants or provide any advance costs except in the strict circumstances described by Okanagan Indian Band. Rather, it is apparent that requiring litigants who are pursuing cases dealing with s. 35(1) to pay a hearing fee is in effect an advance that is paid by Indigenous peoples. [61] The requirement to pay daily hearing fees creates inequality in litigation in these circumstances and is inconsistent with the shared responsibility for reconciliation which is the overarching objective of s. 35(1). The fees create unfairness, impose financial obstacles to litigation (which can become significant in long trials), and reinforce the

idea that the promise in s. 35 still comes with strings attached. The court can draw a legitimate distinction for Indigenous peoples in these circumstances based on the Crown's unique obligation to Aboriginal people, and the unique status of Aboriginal and treaty rights in the Constitution Act, 1982. How this distinction ought to be made is discussed below with regard to remedy. (b) What is the appropriate remedy? (i) Constitutional Exemption [62] One of the Crown's key points in this application is that Blueberry has adduced no authority in support of their claim for a constitutional exemption. The Crown argues the weight of authority militates against the use of constitutional exemptions as a stand-alone remedy: Ferguson; Seaboyer. [63] However, jurisprudence dealing with Indigenous issues is complex and must take into account unique considerations as compared to Charter jurisprudence. As set out by Professor Kent Roach in Constitutional Remedies at paras. 15.10-15.20: Remedies for violations of Aboriginal rights raise distinct issues about Aboriginal self-determination and the honour of the Crown in its dealings with Aboriginal rights. Remedies for violations of Aboriginal rights are relatively unexplored by courts and commentators compared to remedies for the violation of Charter rights. The length and costs of litigating Aboriginal claims means that final decisions on the

merits are often not reached and all of the parties have incentives to resolve the dispute in a consensual manner. Pre-trial remedies whether requests for interlocutory injunctions and/or remedies for breach of the duty to consult have played a more important role in the Aboriginal rights context than in relation to other constitutional rights. [64] As the S.C.C. noted in Ferguson, a leading case on constitutional exemptions, section 52(1) of the Constitution Act, 1982 provides a remedy for legislation that, in purpose or effect, violates any part of the constitution: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [65] The court in Ferguson discusses the nature of a s. 52(1) remedy at paras. 64 and 65: [64] The highly discretionary language in s. 24(1), "such remedy as the court considers appropriate and just in the circumstances", is appropriate for control of unconstitutional acts. By contrast, s. 52(1) targets the unconstitutionality of laws in a direct non‑discretionary way: laws are of no force or effect to the extent that they are unconstitutional. [65] The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of

their inconsistency, not left on the books subject to discretionary case‑by‑case remedies: see Osborne, per Wilson J. In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole: Vriend; Sharpe [66] The thrust of Blueberry's argument is that the hearing fees set out at Item 10 of Schedule 1 in Appendix C should not apply to them because the fee is inconsistent with s. 35(1) and the principles that animate it. Among the orders Blueberry seeks is "a constitutional exemption based on section 35(1) of the Constitution Act, 1982 from paying court hearing fees in this proceeding and, if necessary, the declaration of constitutional inapplicability under s. 52 of the Constitution Act, 1982 of the court hearing fees in this Action" (Notice of Application filed July 18, 2019 at para. 3). [67] As pointed out by the Crown, the S.C.C. has disapproved of the use of stand-alone constitutional exemptions on the basis that they intrude into the legislative sphere and undermine the rule of law. The S.C.C. has, instead, indicated a preference for declarations of invalidity or suspended declarations of invalidity: Ferguson; Trial Lawyers; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. [68] The S.C.C. at para. 50 of Ferguson noted that

when considering alternatives to striking down legislation, such as reading in, severance or constitutional exemption, courts must consider whether the alternative being considered represents a lesser intrusion into the legislative sphere than striking down. The S.C.C. noted that "[c]ourts must thus be guided by respect for the role of Parliament, as well as respect for the purposes of the Charter" (at para. 50). In the s. 35(1) context, this principle would demand respect for the purposes of the Constitution more generally. [69] In Ferguson the S.C.C. found two further rule of law concerns. By granting constitutional exemptions, therefore leaving unconstitutional laws on the books, courts would impact the certainty, accessibility, intelligibility, clarity and predictability of the law and would deprive legislatures of the guidance needed to craft constitutionally compliant legislation from the beginning (at paras. 69-73). [70] Ferguson does not, however, say that stand-alone constitutional exemptions are never available. That case arose in the context of mandatory minimum sentences, which is a very different situation than the issue before this Court. The S.C.C. in Ferguson was primarily concerned that any remedy other than striking down would involve importing judicial discretion into legislation that was specifically enacted to remove judicial discretion (at paras. 55-56).

That is not the case here. Blueberry's application arises in the context of trial judges having discretion to waive fees for undue hardship under R. 20-5, and to order another party to pay under Appendix C. This distinguishes the present case from Ferguson. [71] The Crown also argues that constitutional exemptions are only available as a temporary remedy for successful Charter cases following a suspended declaration of invalidity. While cases like Carter v. Canada (Attorney General), 2015 SCC 5 and Corbiere certainly show that constitutional exemptions may accompany suspended declarations of invalidity, the jurisprudence does not say this is the only time this remedy is available. [72] The S.C.C. has, however, directed the least intrusive remedy be granted. If a constitutional defect can be remedied without striking down the law, the Court must consider all remedies short of striking down. (ii) Reading down as a functional alternative to constitutional exemption [73] Blueberry has sought a declaration of "constitutional inapplicability under s. 52." This Court understands this to be a request for a "reading down" of the impugned provision. [74] As the late Professor Hogg noted, reading down involves "giving a statute a narrow interpretation in order to avoid a constitutional problem that would arise if the statute were given a broad interpretation" (Peter Hogg, Constitutional

Law of Canada, 5th ed. (Toronto: Carswell, 2019) ch. 40.1(g)). The remedy of reading down often involves a declaration that a law is of no force or effect in so far as, or to the extent of, its inconsistency with a section of the Charter or the Constitution. [75] As noted by Professor Roach in Constitutional Remedies at 14.950, the remedy of "reading down" may provide a functional alternative to granting a constitutional exemption. Professor Roach goes on at 15.1560 to note: The remedies in these cases [R. v. Sundown, [1999] 1 S.C.R. 393 and Mitchell v. M.N.R., 2001 SCC 33] achieved some of the purposes of constitutional exemptions in preserving laws that were constitutional in the vast majority of their applications, but did so in a manner that avoided some of the uncertainty caused by constitutional exemptions. In other words, these cases can be seen more as a reading down of laws to ensure that they do not apply to those exercising Aboriginal or treaty rights. Such an approach can provide a more global remedy for all Aboriginal people exercising their rights and may thus escape some of the court's disapproval of the use of constitutional exemptions. [Emphasis added.] [76] Generally speaking, courts will read down a law so as to make it not applicable to a certain class of people. This is what occurred in R. v. Appulonappa, 2015 SCC 59, where the S.C.C. found that s. 117 of

the Immigration and Refugee Protection Act, SC 2001, c 27 which made it an offence to "organize, induce, aid or abet" the coming into Canada of people in contravention of that act was overbroad and therefore inconsistent with the Charter. The S.C.C. concluded the appropriate remedy was to read down s. 117 as "not applicable to persons who give humanitarian, mutual or family assistance" (at para. 85). [77] Another example of reading down that had the effect of a constitutional exemption is Victoria (City) v. Adams, 2009 BCCA 563. In that case, the court read down city bylaws that individually were constitutional, but when applied together violated homeless individuals' s. 7 Charter rights. The court declared that the bylaws violate s. 7 of the Charter and are "inoperative" insofar and only insofar as they apply to prevent homeless people from erecting temporary overnight shelter in parks when the number of homeless people exceeds the number of available shelter beds in the City of Victoria. [78] As stated above, this Court finds that the hearing fees provisions are inconsistent with s. 35(1) to the extent that they require Indigenous peoples who are seeking to uphold or protect their s. 35(1) Aboriginal and/or treaty rights against alleged infringements, and who are required to do so through a trial, to pay daily hearing fees to the Crown as defendant in those actions. [79] The

Court concludes that the remedy of reading down is appropriate in this case. Reading down the hearing fees provisions in the way outlined below provides remedial precision as it prevents the unconstitutional effects of these provisions to a clearly defined class of litigants. It is also appropriate in the circumstances as it minimally intrudes into the role of the legislature compared with other s. 52(1) remedies. The hearing fee provisions, which have been found to be constitutional in other circumstances remain on the books, only minimally changed with regards to their applicability to a certain class of litigants. [80] Further, given that R. 20-5(1) and Item 10 of Schedule 1 in Appendix C already give courts discretion to waive hearing fees in certain circumstances or order another party to pay, this remedy does not import discretion where the legislature intended none, which was one of the concerns in Ferguson and Seaboyer. [81] Finally, the hearing fees provisions are a stand-alone scheme within the Rules. Reading down these provisions as suggested does not affect the remainder of the legislative scheme. [82] Accordingly, this Court finds that Item 10 of Schedule 1 in Appendix C is unconstitutional and of no force or effect insofar as it requires Indigenous peoples who are seeking to uphold or protect their s. 35(1) Aboriginal and/or treaty rights from alleged

infringements, and who are required to do so through a trial, to pay daily hearing fees to the Crown as defendant in that action to access the BC Supreme Court. (iii) Order Another Party to Pay under Appendix C [83] In light of my decision to read down the hearing fees in Item 10 of Schedule 1 in Appendix C, it is not strictly necessary to deal with Blueberry's request that the court exercise its discretion under Item 10 to order the Crown to pay the hearing fees in this case. However, in the event I am wrong to read down the fee schedule in the manner declared, I would exercise my discretion under Appendix C to order the Crown to pay. [84] The Crown argues that the court's exercise of discretion under Appendix C to order another party to pay is circumscribed by R. 20-5(1), and can only be exercised in situations where the applicant has provided evidence of undue hardship. The Crown also submits that Blueberry should not be allowed to "circumvent" R. 20-5(1) by way of a novel exercise of discretion or jurisdiction under Appendix C. I do not accept that the court's discretion to order another party to pay under Appendix C can only be exercised in situations where an individual would be entitled to a waiver of fees under R. 20-5(1). Neither the language nor structure of R. 20-5 and Appendix C support this view, nor do the cases that have considered the hearing fee regime. [85]

Rule 20-5 deals with "persons who are not required to pay fees." Such individuals fall into two categories: (a) those receiving benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, or (b) those for whom payment of the fees would case undue hardship. It is clear that Rule 20-5 is focussed on and codifies a statutory process for the waiver of fees taking into account financial considerations. Waiver of fees under R 20-5(1) requires evidence of receipt of benefits or undue hardship - which has a strong financial aspect to it and requires at least some evidence about financial hardship (Cambie Surgeries S.C. at para 26; Trial Lawyers). [86] The language in Items 9 and 10 of Appendix C is not, however, focused on waiver of fees or consideration of financial issues. Instead, these provisions - and only these provisions of Appendix C - refer to the court making an order for payment by another party. There is no set out process, as there is in R. 20-5(3), for how to apply for an order for payment by another party under Appendix C. There are no requirements for affidavits or financial statements. This suggests the court may consider other, non financial, considerations. [87] The difference in language and structure between the waiver provisions in R. 20-5 and as reflected in Forms 79 and 80, and the phrase used in Appendix

C ("unless the court orders payment by another party") suggest that discretion contained in the Appendix is not limited to situations set out in R. 20-5 engaging financial strain, but is instead intended to cover other situations. The question is then, in what circumstances should the court exercise its discretion to order another party to pay the daily hearing fees? One such circumstance was identified by Justice Steeves in Cambie Surgeries S.C., but the list is not, in this Court's view, closed. [88] This Court is of the view that there is discretion under Appendix C to order payment by another party where it is in the interests of justice to do so. It goes without saying that this exercise of discretion must be done judicially. [89] The S.C.C. has recognized that in the Aboriginal context, reconciliation weighs heavily. The concept and promise of reconciliation which is contained in s. 35(1) infuses the courts' exercise of discretion under Appendix C in this case. In the circumstances of this case: the constitutional principles engaged, the unique relationship between the parties, the burden the hearing fees impose on Indigenous plaintiffs involved in lengthy trials, and the role of the court in ensuring a fair process all indicate that it is in the interests of justice for the court to exercise its discretion and order the defendant (Crown), not the Indigenous plaintiffs,

to pay the hearing fees. [90] This is further bolstered by the fact that there is no other recourse available to Blueberry to seek to enforce and protect their treaty rights from the cumulative impacts they allege. As set out earlier in these reasons, Blueberry has attempted to negotiate a resolution of these issues; they have brought injunctions; and they have applied for judicial review. They have been told that the matter must be adjudicated at a trial. That is the reason they are now before this Court, and that is the reason they are seeking to be absolved from the requirement to pay daily hearing fees. VI. Conclusion [91] The application is successful. Blueberry is not subject to the hearing fees regime in this trial. [92] The Court grants a declaration that Item 10 of Schedule 1 in Appendix C of the Rules is of no force and effect insofar as it requires Indigenous peoples who are seeking to uphold or protect their s. 35(1) Aboriginal and/or treaty rights from alleged infringements, and who are required to do so through a trial, to pay daily hearing fees to the Crown as the defendant in any such action. [93] If this Court is wrong in reading down the hearing fee provision in the way set out above, then it would exercise its discretion contained in Item 10 of Schedule 1 in Appendix C to order the Crown to pay the hearing fees in this action. "Burke J"