Ke-Kin-Is-Uqs v. British Columbia (Minister of Forests),


2008 BCSC 1020

Date: 20080215
Docket: L043095
Registry: Vancouver


Ke-Kin-Is-Uqs, also known as Judith Sayers,
Chief Councillor suing on her own behalf and
on behalf of all members of the Hupacasath First Nation,
the Hupacasath First Nation Council,
and the Hupacasath First Nation



Minister of Forests of the Province of British Columbia,
The Chief Forester and Brascan Corporation


Before: The Honourable Madam Justice Smith

Oral Reasons for Judgment

In Chambers
February 15, 2008

Counsel for the Petitioners

P.R.A. Grant
J. Huberman


Counsel for the Respondent Minister of Forests of the Province of British Columbia, The Chief Forester by teleconference


G.R. Thompson

Counsel for Respondent Island Timberlands, successor to Respondent Brascan

T.F. Isaac
L. Martz


No other appearances


Place of Hearing:

Vancouver, B.C.


[1]                THE COURT:  On December 6, 2005, I handed down reasons for judgment on the petitioners’ application.  The application was for judicial review of decisions by the British Columbia Minister of Forests and the Chief Forester pertaining to land owned by Brascan that previously formed part of Tree Farm Licence 44.  The order was entered January 19, 2006, after it was settled before a master.  So far as I am aware, no party filed a notice of appeal and no appeal is pending. 

[2]                The order provides as follows:

The applications of the Petitioners coming on for hearing at 800 Smithe Street, Vancouver, British Columbia, July 11-15, 2005, and on hearing Peter Grant and D. Schulze, counsel for the Petitioners, Glen Thompson, counsel for the Respondents Minister of Forests and the Chief Forester, and D. Ross Clark, Q.C., counsel for the Respondent Brascan Corporation (“Brascan”), and upon reviewing the material filed therein and judgment being reserved to this date:

This court declares that:

1.      the Respondent Minister of Forests had, prior to the removal decision on July, 2004 (the “Removal Decision”), and continues to have, a duty to consult with the Hupacasath First Nation (“Hupacasath”) in good faith and endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage Tree Farm License 44 (“TFL 44”) in accordance with the public interest, both aboriginal and non-aboriginal;

2.      the removal decision on July 9, 2004 made without consultation with the Hupacasath was inconsistent with the honour of the Crown in Right of British Columbia in its dealings with the Hupacasath;

3.      the Chief Forester had, prior to the August 26, 2004 decision to amend allowable annual cut for TFL 44, and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal;

4.      making the Removal Decision without consultation with the Hupacasath was inconsistent with the honour of the Crown in Right of British Columbia in its dealings with the Hupacasath; and

5.      the Chief Forester had, prior to the August 26, 2004 decision, to amend the allowable annual cut for TFL 44 (the “AAC Decision”), and continues to have a duty to meaningfully consult in good faith with the Hupacasath and to endeavour to seek accommodation between their aboriginal rights and the objectives of the Crown to manage TFL 44 in accordance with the public interest, both aboriginal and non-aboriginal.

This court orders that:

6.      the Crown and the Petitioners will attempt to agree on a consultation process and if they are unable to agree on a process, they will go to mediation.  If mediation fails, the Crown and the Petitioners may seek further directions from the court;

7.      the Crown and the Petitioners will provide to each other such information as is reasonably necessary for the consultation to be completed and the Crown and the Petitioners will attempt to agree on the document exchange and if they are unable to agree, the matter will go to mediation;

8.      the terms in this paragraph 8 apply to Brascan, Island Timberlands and their successors in interest and will be in effect for the earlier of two years from the date of entry of this Order or until the Crown has completed consultation with the Hupacasath:

(a)   Brascan will maintain the current status of “managed forest” on the privately owned lands removed from TFL 44 (the “Removed Lands”) and will keep the Removed Lands under the Private Managed Forest Land Act, S.B.C. 2003, c. 88, subject to all of its provisions and regulations governing planning, soil conservation, harvesting rate and reforestation;

(b)   Brascan will maintain variable retention and stewardship on old growth areas in the Removed Lands;

(c)   Brascan will fulfill its commitments outlined in the Minister of Forest’s letter dated July 9, 2004 regarding maintenance of water quality on the Removed Lands;

(d)   Brascan will maintain all current wildlife habitat areas on the Removed Lands;

(e)   Brascan will maintain ISO or CSA certifications and will continue to subject the Removed Lands to the public advisory process as per CSA standards;

(f)     Brascan will maintain current access for aboriginal groups to the Removed Lands; and

(g)   Brascan will provide to the Hupacasath seven days notice of any intention to conduct activities on the land which may interfere with the exercise of aboriginal rights asserted by the Hupacasath;

9.      the parties will exchange positions as to what kinds of activities might interfere with the exercise of aboriginal rights on the Removed Lands and if there is a failure to agree on a framework, the matter will go to mediation;

10.  the Crown will facilitate the operation of the order in paragraph 7, including, if requested by the Petitioners and Brascan, providing the services of independent mediators at Crown expense;

11.  the Petitioners’ applications for orders to either quash, set aside or suspend the effect of the Removal Decision and the AAC Decision are dismissed; and

12.  the Respondents will pay the Petitioners’ costs of the proceedings.

[3]                (I pause to note that preparing this ruling caused me to review carefully the terms of the entered order and it was not apparent to me why both paragraphs 2 and 4 and paragraphs 3 and 5 were included.  Paragraphs 2 and 4, and 3 and 5 respectively seem to be pretty much identical.  I will leave it with counsel to consider whether the order needs to be corrected pursuant to Rule 41(24) in that regard.)

[4]                In any event, on January 21, 2008, the petitioners filed a Notice of Motion seeking an order:

1.                  extending the terms of paragraph 8 of the order of this court made December 6, 2005, to August 30, 2008, in order to allow completion of the consultation process; and

2.                  ordering or directing the appointment of a settlement conference judge or an independent mediator to participate in the consultation process and assist the parties to reach an accommodation in a timely manner.

[5]                That application has been set for hearing on March 17 to 20, 2008.  Counsel for the petitioners, for the Minister of Forests of the Province of British Columbia and for Island Timberlands LP (the successor to Brascan), appeared before me on February 6, 2008, because Mr. Grant for the petitioners seeks an interim order extending the term of paragraph 8 of the December 6, 2005 order until the full hearing of the petitioners’ application.

[6]                Mr. Grant argues that the intent of the December 6, 2005, order was that the conditions set out in paragraph 8 would remain in place pending the completion of consultation between the petitioners and the Crown.  He submits that the intent was not that the conditions would expire automatically at the end of the two-year period.  The petitioners’ position is that the court retained jurisdiction to ensure that the Crown complies with the requirement for consultation and accommodation.  Mr. Grant submits that the Crown’s obligations, to uphold the honour of the Crown and promote the reconciliation of the petitioners’ interests with those of the Crown and others, are continuing and that an extension of the constraints imposed by paragraph 8 is necessary, at least for a brief period.

[7]                Mr. Grant referred to evidence that the consultation process between the petitioners and the Crown has not yet resulted in agreement as to accommodation and that the conditions imposed on Island Timberlands in paragraph 8 of the order have not been fully or properly observed.  In their Outline, the petitioners submit that:

Unless an interim extension order is granted, there is a real risk that Island Timberlands will take steps prior to the full hearing making the subsequent re-imposition of the conditions of the original order difficult, if not impossible, and thus undermining the meaningfulness of the remedy sought.

[8]                The petitioners’ position is that the court has jurisdiction to grant this relief under its inherent jurisdiction or under Rule 1(5), 1(12), or 3(2).  Those Rules provide:

1(5)      The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. …

1(12)    When making an order under these rules the court may impose terms and conditions and give directions as it thinks just. …

3(2)      The court may extend or shorten any period of time provided for in these rules or in an order of the court, notwithstanding that the application for the extension or the order granting the extension is made after the period of time has expired.

[9]                Counsel for Island Timberlands argues that the terms of the December 6, 2005, order are clear and accurately reflect the reasons for judgment in stating that two years from the date of entry of the order was the maximum period during which the conditions imposed on Island Timberlands would be in effect.  Mr. Isaac for Island Timberlands submits that the court lacks jurisdiction to grant an extension of the order because the court is functus officio and that the petitioners’ attempt to rely on Supreme Court Rule 3(2) is misplaced.  Mr. Isaac submits that the interim relief sought by the petitioners requires the granting of a new order, not a mere “extension”.

[10]            The Crown’s position is that if it is entitled to take a position in this matter, it would not oppose a brief extension of the original order. 

[11]            Once an order has been entered, outside a limited range of circumstances, the court does not have jurisdiction to vary it.  The court has completed its task and is said to be functus officioThe principles are concisely described by McEwan J. in Weyerhaeuser Co. Ltd. V. Hayes Forest Services Ltd., 2006 BCSC 1375 at paras. 6-8:

This Court has an “unfettered discretion” to reconsider an issue before entry of the order to prevent a miscarriage of justice (see: Clayton v. British American Securities Ltd. et al., [1935] 1 D.L.R. 432 at 440-441 (B.C.C.A.).

The discretion is to be “exercised sparingly” to avoid fraud and abuse of process (Clayton, supra).  An issue may be reconsidered where new, relevant evidence is adduced that was not available at the time of the original trial, or where the original judgment is in error because it overlooked material evidence (see:  Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (B.C.C.A.)).

The situation is quite different where the order has been entered.  The court is functus officio, subject to exceptions for accidental errors or omissions, or to the power of the court to rectify an order that does not reflect nor manifest intention of the court.  Where no exceptions obtain the situation is as described by McEachern C.J.S.C. in Canada Trust Company v. Sundist Holdings Ltd., Colclough (1981), 29 B.C.L.R. 1 at 4-5 (S.C) …

[12]            Mr. Grant does not argue this application falls within that limited range of circumstances.  He does not submit that the words of the order failed accurately to set out what was stated in the reasons for judgment, that a matter should have been but was not adjudicated upon, or that there was a clerical error.

[13]            In effect, Mr. Grant argues that some orders have continuing application and it is implicit in this order that the parties may return to the court for further direction, whether or not that is explicitly stated.  He points to the fact that in this order there is an ongoing requirement for the Crown and the petitioners to consult and to endeavour to seek accommodation and that the order specifically contemplates in paragraph 6 that the Crown and the petitioners may seek further directions from the court if they are unable to agree on a consultation process and if mediation fails.

[14]            I do not wish to foreclose any arguments that may be made at the full hearing, but I am not persuaded, for the purposes of this interim application, that the December 6, 2005 order means other than what it says — the period of time during which use of the land is restricted is two years or the completion of consultation, whichever comes first.  Nor am I persuaded that it is inherent in the order that extensions of the time specified in paragraph 8 may be sought.

[15]            Mr. Grant also relies on Rule 3(2).  The question is whether that Rule provides jurisdiction for the court to extend the period during which the conditions set out in paragraph 8 must be followed by Island Timberlands.

[16]            In Canadian Plywood Corp. v. Felix (1985), 58 C.B.R. (N.S.) 29, [1985] B.C.J. No. 171 (S.C.), the court had made an order for security for costs.  The parties who were to post security did not do so until after the expiry of the time limited by the order.  They sought an order extending the time for posting the security pursuant to Rule 3(2) and (3) which read at that time:

3          (2)        The court may extend or abridge the period within which a person is required or authorized by these rules or by an order to do or abstain from doing any act.

(3)        The court may extend a period referred to in subrule (2), although the application for extension is made after the expiration of the period.

[17]            Cowan L.J.S.C. stated at paragraph 8 in Canadian Plywood:

In my view the principle stated applies to situations where it is sought to "review, rescind or vary" the substance of the original order.  In this case the substance of the order in question is the requirement that the respondents post security for costs in the amount of $2,000. What is sought here is an extension of time in which to comply with the order.

[18]            The court held that the situation fell under Rule 3(2) and (3) and exercised its discretion to extend the time.  That same approach was taken in two cases decided under the existing wording of Rule 3(2):  Canada (Attorney General) v. Lau, 2002 BCSC 87, where time was extended for payment of rental arrears, and Marby Holdings Ltd. v. Slocan Forest Products Ltd., 2002 BCSC 153, where extension of time to post security for costs was refused.

[19]            The three cases I have referred to all arose when applications were made to extend a deadline for posting security for costs, or for paying arrears of rent, by a party who was expected to perform a discrete act and who would suffer an adverse consequence if the deadline was not extended for the performance of such an act. 

[20]            This is not such a case.  The time period during which restrictions were imposed on Island Timberlands’ use of its land was not a deadline for performing an act in order to prevent an adverse consequence.  Instead, the time period defined one of the benefits which the petitioners were to receive from the order.

[21]            I am not persuaded that in circumstances such as these Rule 3(2) is meant to supersede the ordinary rule that entered orders cannot be varied or amended.

[22]            I find that I do not have jurisdiction to extend the term of the order.

[23]            Nevertheless, viewing the matter as a fresh application, have the petitioners shown that an interim order restraining Island Timberlands in its use of its land should be made pending the full hearing of the petitioners’ application?

[24]            The significant underlying issue in this litigation is what impact, if any, claims to aboriginal rights and title have on privately-owned land.  Counsel for Island Timberlands argued that an order, which would impose restrictions on a private landowner pending a hearing, should be made only if the test for an interlocutory injunction has been met and that the test has not been met on the evidence here.  Mr. Isaac submitted that there is no evidence that during the period of time since the paragraph 8 conditions expired there has been harm to the petitioners’ alleged rights, and he argued that there is no evidence that a continued absence of such conditions until the hearing will cause the petitioners irreparable harm. 

[25]            I agree with that submission.  The petitioners have not provided evidence showing that they will suffer irreparable harm between now and the proposed hearing if an order is not made in the same terms as the order which has now expired or that the balance of convenience favours making an interim order.  The time before the full hearing will be brief.  Mr. Isaac, on behalf of his client, agreed that pending my decision, he would provide notice to the petitioners’ solicitor of activities that would impact aboriginal rights.  Since there will not be an interim order in place, in the short time before the full hearing, it is appropriate to direct that Island Timberlands give notice to the petitioners of activity on the land that could impact the aboriginal rights asserted by the petitioners, to enable the petitioners to come to court if they see fit, and I will so direct.

[26]            As for the date of the full hearing, Mr. Thompson argues that it is important to allow these matters to be argued fully and properly.  He submits that full and proper argument would be possible by early in April, but not necessarily by the proposed dates of March 17 to 19, 2008, given the need to assemble the record of the consultation and prepare legal arguments.  I agree with him that exchange of legal arguments in advance is desirable in a case such as this.

[27]            On the other hand, Mr. Grant for the petitioners argues that it is necessary for this matter to be argued as soon as possible in order to prevent harm to the petitioners’ interests.

[28]            As I have said, the petitioners’ application is set down for March 17 through 20, 2008.  I direct that it remain set down for those dates, but that counsel appear before me by telephone, if that is convenient for them, for a pre-hearing conference on March 4, 2008.  If at that time it appears unlikely that counsel will be able to assemble the record of the consultation and prepare legal arguments for March 17, then new dates can be set for April.  Mr. Grant.

[29]            MR. GRANT:  My Lady, you have indicated that you would be directing that Island Timberlands give notice if there’s any activity adverse to the plaintiffs’ rights in the short time period before the hearing to give the plaintiffs opportunity to appear before court.  You did not indicate the period of time involved, because obviously there would have to be a period of time that they would give notice in advance of that activity and I just would ask for clarification so that the plaintiffs -- the petitioners, I should say, could come before the court if that arises.

[30]            THE COURT:  Yes.  I would like to know what counsel consider to be reasonable in the circumstances.  Mr. Isaac.

[31]            MR. ISAAC:  My Lady, yes, just to follow up, I guess from Island Timberlands’ perspective, we would like just further clarification on your direction.  We would think, in terms of what I understood you said, that it would be on the same conditions as paragraph 8(g) where what was then Brascan provided just seven days notice of any intention, and essentially do what we had been doing in respect of 8(g) in terms of providing notice.

[32]            THE COURT:  Yes.

[33]            MR. ISAAC:  Not that it would be some new interpretation or new direction.

[34]            THE COURT:  No, the idea is that to prevent what might be irreparable harm to interests that might exist, you give notice to the petitioners.  Seven days would seem reasonable, Mr. Grant?

[35]            MR. GRANT:  Yes, I was -- I actually was going to propose something which was moderately different, was 10 days because what I’m concerned about is that we -- in this situation, unlike the situation that we had before where there would be notice which was for the purpose of the consultation -- under the order, for the purpose of the Crown/Island Timberlands, on the one hand, Hupacasath consultation process, seven days worked, but in this situation where it, in the interim, would be for us to come to court, I think that seven days is short, because that effectively is five days, five working days.  So I would ask for 10 days.

[36]            MR. ISAAC:  My Lady, we don’t see any need for 10 days notice.  We think the original terms of the order are sufficient and, in fact, as I’m aware, the Hupacasath have been notified of all the activities far in advance of that -- of the seven days in any event, so.

[37]            THE COURT:  Well, I will make it seven days and Mr. Grant may be applying for short leave, but I am sure that that can be accommodated.  Anything further?

[38]            MR. THOMPSON:  Well, My Lady, it’s Thompson in Victoria.

[39]            THE COURT:  Yes, Mr. Thompson.

[40]            MR. THOMPSON:  With respect to the pre-hearing conference you’ve directed for March the 4th, I have two questions on that.  One, will that be the regular time of 10:00 a.m., and secondly, with respect to the provision of argument, you had indicated in your reasons that you thought the provision of argument between counsel was appropriate; is that something you will deal with on that date with regard to dates for exchange?

[41]            THE COURT:  If it is not too late to do so then.  We could talk about it now if you would like.  I was thinking the pretrial conference could be before court, although actually it does not matter.  I am on a reserve week that week, but what is convenient for counsel for pre-hearing conference?

[42]            MR. GRANT:  I’d just like to know what day of the week that is on?

[43]            THE COURT:  March the 4th is --

[44]            MR. GRANT:  A Tuesday.

[45]            THE COURT:  Tuesday.

[46]            MR. GRANT:  I would be -- given that -- I -- before court time would be fine with me.

[47]            THE COURT:  So 9:15?  We will say 9:15 on March 4.  Mr. Thompson, that is agreeable?

[48]            MR. THOMPSON:  9:15 is agreeable.  Thank you, My Lady.

[49]            THE COURT:  Yes, and would counsel like to talk about dates for exchange of arguments now, working toward the March 17, if possible?

[50]            MR. GRANT:  Well, the issue is, of course, as Mr. Thompson has indicated -- made argument or made submission about timing for his materials to be delivered and, of course, my friends, except for anything that has happened subsequent and, of course, in response, my friends have had our material since February 4th and that’s sort of the key to getting to their responsive materials for arguments to be exchanged.  So that I think that the first discussion, and I don’t know if that’s what you want to discuss on March 4th or now, is when will my friends be filing their responsive materials?

[51]            THE COURT:  Mr. Isaac.

[52]            MR. ISAAC:  My Lady, we would propose for affidavit evidence from Island Timberlands that March 3rd be the date for the submission of that affidavit evidence and March 10th as the deadline for response by the petitioners.

[53]            THE COURT:  Mr. Thompson.

[54]            MR. THOMPSON:  My Lady, I think that March the 4th is an appropriate date to discuss if we’re having difficulty at our end putting our materials together as you’ve indicated.  I would agree with Mr. Isaac that if it was possible to do it by the 3rd of March, we will certainly strive for that, but from our position, we would like to leave open the possibility we can discuss the extension of that on March the 4th.  In spite of my friend Mr. Grant’s submissions to you about the length of time we’ve had his material, there still is a great deal for us to do. 

[55]            So that would be a good use of our time on the 4th.  With respect to the exchange of argument, I would agree with Mr. Isaac that if we can receive the petitioners’ reply materials and written argument by the 10th of March, one week in advance, that would assist us greatly and we will move as quickly as we can to provide our argument in response to that prior to the hearing date.

[56]            THE COURT:  Thank you, Mr. Thompson.

[57]            MR. GRANT:  I think Mr. Thompson has, of course, added a condition to the petitioners that Mr. Isaac carefully didn’t, which was that on March -- Mr. Isaac referred to our responsive materials.  I agree with the March 3rd and the March 10th.  I would ask that the court give directions that the respondents do file by March 3rd or March 10th subject to if Mr. Thompson has problems, which he will, he will, of course, be able to raise those on March 4th and we understand that he has alerted you to that.  But if there’s guidance provided by the court on this, then that -- we can all organize ourselves accordingly because if I have a week to respond -- Mr. Isaac  -- Mr. Thompson says he has substantial materials so I don’t know what that is and obviously I’ll have to respond to it.

[58]            THE COURT:  All right.  We will leave the question of deadline for the petitioners’ response until the March 4 pre-hearing conference.  We will set March 3 as the date for affidavit evidence to be filed by Island Timberlands and by Her Majesty the Queen and March 10 as the date for filing of responses, but at the March 4 pre-hearing conference, I will hear from counsel as to whether they are having success in meeting these deadlines.

[59]            MR. THOMPSON:  My Lady, just if I may, one small point on that, if you directed that we provide material by March 3rd and we’re unable to do so, we can’t speak to it until March the 4th.  I would request that you put some term in the order indicating that the Province will be not be in breach of any order if we fail to make that March 3rd deadline.

[60]            THE COURT:  Well, why do I not make the deadline March the 4th and then it all comes out even. 

[61]            MR. GRANT:  Yes.

[62]            THE COURT:  All right.  And you can then speak to it at that time.  So it is March the 4th and March the 10th for filing of responses.

“Lynn Smith J.