Decision Date: June 14, 2001

Court: B.C.C.A.; Lambert, J. Donald, J.  Huddart, J.

Cite: Vancouver Registry No. CA026440/V03552

Corrigendum

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 British Columbia Supreme Court found that the Province had lawfully granted the Commission jurisdiction over the parties and subject matter of the appeal, as well as the remedy sought. Accordingly, the Supreme Court dismissed the application for an order of prohibition. Mr. Paul and the Province subsequently appealed to the Court of Appeal. The Court of Appeal considered two issues. First, it considered whether the Province has the constitutional capacity to give the Commission the jurisdiction to decide questions of aboriginal rights and title in the context of deciding appeals about alleged violations of the Code. Second, it considered whether, if the Province had that constitutional power, it has exercised it by conferring that jurisdiction on the Commission.

The majority of the Court found that the provincial legislature had no constitutional authority to give the Commission the power to determine questions of aboriginal title or aboriginal rights when dealing with alleged violations of the Code. In light of this, Mr. Justice Lambert found it unnecessary to address the question whether the Code granted such power. Mr. Justice Donald concurred with Mr. Justice Lambert on the first issue. However, he also allowed the appeal on the second issue, as he found that the Code did not give the Commission the power to decide the aboriginal rights issues in this case. In dissent, Madame Justice Huddart would have dismissed the appeal and upheld the conclusion of the Supreme Court.

Accordingly, the appeal was allowed. The Court reserved judgement on the remedy, pending further submissions on the remedy from the parties.