Judicial Review Decisions

  • Attorney General of British Columbia and Ministry of Forests v. Thomas Paul

    October 3, 2003
    File Numbers:
    SCC 55

    Decision Date: October 3, 2003

    Court: S.C.C. McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

    The Ministry of Forests seized four logs in the possession of Mr. Paul, a registered Indian, who planned to use the wood to build a deck on his home.  Mr. Paul asserted that he had an aboriginal right to cut timber for house modification and, accordingly, section 96 of the Code, a general prohibition against cutting Crown timber, did not apply to him.  Both the District Manager and an Administrative Review Panel agreed that Mr. Paul had contravened section 96.  Mr. Paul appealed to the Forest Appeals Commission, which decided, as a preliminary matter of jurisdiction, that it was able to hear and determine the aboriginal rights issues in the appeal.  Mr. Paul appealed to the B.C. Supreme Court, which concluded that the Legislature had validly conferred on the Commission the power to decide questions relating to aboriginal title and rights in the course of its adjudicative function in relation to contraventions of the Code.  Mr. Paul then appealed to the Court of Appeal, the majority of which set aside the decision, holding that s. 91(24) of the Constitution Act, 1867, which gives Parliament exclusive power to legislate in relation to Indians, precluded the Legislature from conferring jurisdiction on the Commission to determine questions of aboriginal title and rights in the forestry context.  The province appealed to the Supreme Court of Canada.

    In a unanimous decision, the Supreme Court of Canada held that the province has legislative competence to endow an administrative tribunal with capacity to consider a question of aboriginal rights in the course of carrying out its valid provincial mandate.  The Code is valid provincial legislation in relation to development, conservation and management of forestry resources in the province, and there was no suggestion that the law’s effects on Indians are so significant as to reveal a pith and substance that is a matter under exclusive federal competence.  As a law of general application, the Code applies ex proprio vigore to Indians, to the extent that it does not touch on the “core of Indianness” and is not unjustifiably inconsistent with section 35 of the Constitution Act, 1982.  The effect of the Code is to prescribe that Indians who face an administrative penalty under the Code will first raise an aboriginal rights defence before the Commission, as opposed to before a superior court judge.  This effect has not been shown to have a substantial impact upon Indians qua Indians.

    The doctrine of interjurisdictional immunity relates to the exercise of legislative powers — that is, the power of a province to apply its valid legislation that affects matters under federal competence.  The majority of the Court of Appeal erred in applying the doctrine in the context of an adjudicative, not legislative, function.  In determining a question of aboriginal rights, a provincially constituted tribunal would be applying constitutional or federal law in the same way as a provincial court, which is also a creature of provincial legislation.  Tribunals must take into account all applicable legal rules, both federal and provincial, in applying their enabling legislation.

    A determination by an administrative tribunal, such as the Commission, is very different from both extinguishment of a right and legislation in relation to Indians or aboriginal rights.  First, any adjudicator, whether a judge or a tribunal, does not create, amend, or extinguish aboriginal rights.  Second, the Commission’s decisions do not constitute legally binding precedents, nor will their collective weight over time amount to an authoritative body of common law.  They could not be declaratory of the validity of any law.  Moreover, as for constitutional determinations respecting sections 91(24) or 35, the Commission’s rulings would be reviewable, on a correctness basis, in a superior court on judicial review.

    To determine if a tribunal has the power to apply the Constitution, including section 35 of the Constitution Act, 1982, the essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law.  If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide the question at issue in light of section 35 or any other relevant constitutional provision.  There is no persuasive basis for distinguishing the power to determine section 35 questions from the power to determine other constitutional questions, and practical considerations will not suffice generally to rebut the presumption that arises from authority to decide questions of law. Here, the Commission has the power to decide questions relating to aboriginal rights arising incidentally to forestry matters.  Section 131(8) of the Code permits a party to “make submissions as to facts, law and jurisdiction.”  The Commission thus has the power to determine questions of law and nothing in the Code provides a clear implication to rebut the presumption that the Commission may decide questions of aboriginal law.  Any restriction on the Commission’s remedial powers is not determinative of its jurisdiction to decide section 35 issues, nor is the complexity of the questions.

    The appeal was allowed.