Administrative law – Logging permits – Aboriginal issues – Government’s duty to consult – Procedural requirements – Natural justice
Lax Kw’alaams Indian Band v. British Columbia (Minister of Sustainable Resource Management),  B.C.J. No. 1699, British Columbia Supreme Court, July 19, 2002, Maczko J.
On April 30, 2002, the Minister of Sustainable Resource Management (the “Minister”) granted West Fraser Mills Ltd. a site alteration permit authorizing West Fraser to log 1,327 culturally modified trees. The Band claimed aboriginal title over the area covered by the permit. The Band brought an application pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 seeking a declaration that the Minister had an enforceable statutory, legal, and equitable duty to consult with them prior to granting a site alteration permit to West Fraser.
The Band argued that the Ministry failed in its duty to provide a fair opportunity to be heard and was, therefore, in breach of the rules of natural justice. The Band noted that its lawyer had written three letters asking for a meeting which would involve consultation and accommodation but no response was received. However, the court found that after the permit was issued, the Band raised their concerns with the Ministry and the permit was suspended for another 30 days for the purpose of permitting the Band to make further submissions. The Band chose not to make further submissions at that time. In the court’s view, the duty of fairness was met by the Ministry as the rules of natural justice only required that a person affected by a decision of an administrator be given a full and fair opportunity to be heard.
The Band argued that the Minister had a fiduciary and constitutional duty to consult and seek an accommodation of their aboriginal rights and title. The Ministry agreed that there was an obligation to consult but argued that this obligation had been met. The court reviewed the decision of the Supreme Court of Canada in Delgamuukw v. British Columbia,  3 S.C.R. 1010 and the decisions of the British Columbia Court of Appeal in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2002), B.C.L.R. (3d) 16 and Haida Nation v. B.C. (Minister of Forests) (2002), 99 B.C.L.R. (3d) 209 and noted that the obligation to consult and accommodate is not imposed on the Minister on the basis of the purpose of a statute, but rather this obligation is imposed whenever the Crown infringes on aboriginal rights or title. However, the court held that the Band had not made out a case that the Crown had not made adequate accommodation with regard to the cutting permit issue. The court held that the Band was not entitled to insist that a particular ministry or person carry out the accommodation but is only entitled to insist that the Crown provide an accommodation. To do this, the Band was required to show that the accommodation had not taken place. No evidence was put before the court on that issue in this case. Therefore, the petition was dismissed without prejudice to the Band’s right to bring on another petition with further evidence to establish that there had been inadequate accommodation.
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