Decision Date: September 23, 1999

Court: B.C.S.C. Pitfield, J.

Cite: Vancouver Registry No. 98-1858

Thomas Paul, an aboriginal Canadian, applied for an order prohibiting the Forest Appeals Commission from hearing an appeal under the Forest Practices Code of British Columbia Act, on the question of whether he removed four cedar trees from Crown land in contravention of s. 96 of the Code. Mr. Paul claimed an aboriginal right to harvest timber in traditional territory, but argued that s. 91(24) of the Constitution Act precludes the province from enacting legislation which empowers the Commission to directly adjudicate in respect of the existence of aboriginal rights and, in the alternative, if the province can so legislate, it has neither expressly nor impliedly done so. The Province disputed Mr. Paul’s claim that it cannot empower a tribunal to adjudicate in respect of the aboriginal right claimed by Mr. Paul, but endorsed his position that the Commission had not been so empowered.

The Court rejected Mr. Paul’s first argument on the grounds that it incorrectly equated the capacity to adjudicate with the capacity to legislate. It concluded that the provincial legislature may lawfully constitute a tribunal for the purpose of dealing with matters within provincial legislative authority. Forest lands and the management and development thereof are matters within provincial jurisdiction. The Court found that the provincial legislature may empower a tribunal to balance the competing rights of the Crown in relation to its constitutional authority and property, against those of an individual who asserts an aboriginal right. In doing so, the province is not legislating in respect of aboriginal rights, but providing a mechanism by which a trespass against Crown property will be adjudged.

On Mr. Paul’s second argument, the Court found that the provincial legislature has not expressly empowered the Commission to adjudicate in respect of aboriginal rights in the context of s. 96 of the Code, but the power can and should be inferred from the legislation. The Court concluded that the Commission has jurisdiction over the parties and the subject matter; namely, the construction and application of s. 96 of the Code. It found that the Commission also has jurisdiction over the remedy as it can invoke s. 52(1) of the Constitution Act and declare s. 96 to be of no force and effect. Finally, the Court found that there are practical reasons that support this conclusion, such as avoidance of a bifurcated process.

The application for an order of prohibition was dismissed.